Brookhaven, GA, July 27, 2016 – by Trey Benton – The City of Brookhaven kicked off a Character Area Study on July 14th, intended to add specifics to the Character Areas identified in the 2034 Comprehensive Plan the City adopted in 2014. But residents are asking why the Peachtree Corridor area, which contains the Brookhaven Peachtree Overlay District, is not included.
A byproduct of the study results will be to guide City Officials’ direction on how to proceed with recommendations on development moving forward, and with the areas within the Overlay District being the most likely candidates for new development, why would we not want to identify specific land uses there too?
Resident Billy Roberts, asked during the July 14th kick-off meeting at City Hall after noticing the study will cover the Buford Highway corridor, “Is there a carve-out to consider all the commercial development that’s happening in the Peachtree Corridor? Time is of the essence on that I would think.”
Kristine Dederick, Principal at Sycamore Consulting, Inc. whose firm is leading the initiative said, “We did not include those in the particular study. We’ve decided to focus mainly on the residential components of it.” Dederick said because there is enough work to be done on the residential component, they wanted to make sure the focus was on that discussion and hammer that out.
Since the creation of the City of Brookhaven, development along the Peachtree Corridor and everywhere else in the City that falls within the Overlay, has seen a considerable amount of real and prospective development activity. Whether it be the Walgreens project, the former Hastings site, the proposed Brookhaven MARTA Transit Oriented Development, Solis Dresden, Dresden Village…the list goes on and on…and the developers of each of these projects had to contemplate how the Overlay applies to them.
To the layperson, all the way up to the highest authorities in the City, there appears to be a considerable amount of confusion created each time the contents of the Overlay are subjected to a new interpretation or subjective application, whether by an applicant filing for a new permit or by a resident trying to understand what trumps what and whom.
Councilman Bates Mattison, who has been vocal about his desire to have the Peachtree Corridor (and the Overlay District) included in the Character Area Study, sent several questions to City Staff because he wanted more clarification on the Overlay and how it applies in certain cases. The City’s Community Development Director, Ben Song, replied to Mattison. See that conversation below.
Mattison: When the LCI was created, and subsequently when the overlay was adopted, I had heard from the design consultants and the DeKalb County representatives that the Overlay was intended to provide for “allowed uses by right” within any zoning class if they complied with the “allowed uses” listed in the Overlay law.
Song: Your statement is correct. The Overlay was intended to function as form-based zoning code – “A form-based code is a land development regulation that fosters predictable built results and a high-quality public realm by using physical form (rather than separation of uses) as the organizing principle for the code. A form-based code is a regulation, not a mere guideline, adopted into city, town, or county law.” The form-based code allowed for the development of @1377 and Rosewood without seeking a rezoning through DeKalb County because the use (multifamily dwelling) is a permitted use in the Overlay and the “density” is assumed by the physical barriers that are dictated by the Overlay development standards (i.e. building height, setbacks, buffer, etc).
Mattison: When we were faced with a specific situation of a residential development on Peachtree at Bellaire, which met the legal requirements of the overlay, but was too dense, we added a text amendment to the overlay stating that: “Wherever the underlying zoning regulations are in conflict with the provisions of this overlay district, the regulations of this overlay district shall apply. Conflict means there are competing regulations or provisions. In the absence of a provision in the overlay district, the regulations of the underlying zoning shall apply.” At the time it was explained to me that the inclusion of a residential component would require compliance on density, typically to the PC-2 code at 60 units/acre.
Song: With the adoption of the text amendment as referenced above, the form-based code provision did not apply if a property within the Overlay district maintained an underlying residential zoning then a rezoning must be enacted if a developer seeks to increase the density of the property beyond what may be permitted (density established by the underlying zoning). Please note – PC-2 is typically selected by developers because of the commonality of development standards shared between the Overlay and PC-2 – and because it also allows for a density up to 60 units per acre.
Mattison: If a commercial office or any other “allowed use” did not have a residential component, it would have no defined density, and therefore would therefore be permitted under the overlay without the requirement for rezoning. If true, this is a risk which I have been uncomfortable with for some time.
Song: This is true. I will reiterate again that the Overlay is a form-based zoning code and functions as a zoning district itself. The “by right” uses are stated within the Overlay, and if a proposed development does not include a residential component, technically, there is no “density” that the development is required to establish since “density” is only related to residential units and not commercial “units” or floor area.
Mattison: When the text amendment was adopted, it was explained by the BPCA** as follows:
Song: The explanation provided by BPCA** is incomplete and more detailed information must supplement the above text. The Hastings Site was required to seek a rezoning due to the fact that amongst the C-1 zoned parcels, the developer was also including an R-100 zoned parcel into the overall development acreage and utilized the R-100 acreage to calculate “density” for the development. However, if the R-100 property was not included and the proposed mixed-use development was located solely on C-1 zoned parcels then no rezoning would be required. The text amendment states if a provision is missing in the overlay, we are required to default to the underlying zoning. Although C-1 does not allow for residential use, the Overlay does and since you can consider it a conflict – the text states that when a conflict arises, the Overlay trumps the underlying zoning. Also, both the C-1 and the Overlay does not specify “density” – so it would default to the form-based zoning code and development would be dictated by the implied “density” that is established by the scale and size limitations placed by the Overlay development standards.
Mattison: Essentially, the public zoning process, could be circumvented if the project did not including a housing component to parcels within the Overlay.
Song: I wouldn’t necessarily conclude that the public zoning process is circumvented but instead the Overlay District was established and always intended to be utilized as a form-based zoning code, where physical form and allowable uses are established by the development standards.
Mattison: I just want to be sure I understand correctly – The case at Hastings focused on the issue of challenging the city’s right to deny the permit based on their adherence to the Overlay under allowed uses. Their development clearly had a housing component to the project- something I believe is clearly addressed in the text amendment referencing compliance to underlying density. However, how does this apply when a commercial use (without housing component) doesn’t specify any density, and doesn’t violate any of the underlying zoning where the Overlay has been silent. [Link to the City Code here]
The logical next step to clarity for all parties considered is suggested for the City to conduct the second “Phase” of creating an Overlay District. According to residents who were involved in the original effort, there was support to “take it to next level” and get very granular. Mattison told The Post that step was never done because of a lack of funding from the Atlanta Regional Commission and DeKalb County.
The “granular” study could be to identify parcel-by-parcel, for all parcels included in the Overlay, and come up with a defined use and a defined density. Perhaps come up with an effective “one-sheeter” or “bible” so that everyone knows and can expect what can reasonably be developed within the Overlay. And, perhaps that “one-sheeter” could be supplied to developers so they don’t even try to bring a proposal to the City for approval because they already know if their plan falls outside a clearly defined criteria, it will be rejected.
That’s what residents are asking for – clarity, predictability and consistency. It’s a big ask, and City Leaders say cracking open the Overlay may turn in to a project of epic proportion and it may be costly and may be highly contentious. But for the sake of themselves and the residents alike, they may just have to bite the bullet.
So, Why is Brookhaven’s Peachtree Corridor and Overlay District not part of the Character Area Study? It appears to be because of cost, complexity and (maybe) a little bit of politics.
** “This is a rather subtle legal distinction geared to strengthening the City’s argument that residential density is not specified in the Overlay language, and therefore the underlying zoning district establishes it. Effectively, this means that new projects along Peachtree in C-1 districts (think Hastings site) will have to apply for a Special Land Use Permit or for rezoning of the underlying zoning district if they want to include housing in their development. While clearly not the intent of the Overlay, which intends to entitle property for mixed-use, this interpretation does allow additional public input and review. The public input and review period often encourages developers to put forward their best effort and think more deeply about public space aspects of their projects.” (Included in the emails between Mattison and Song. First appeared on the Brookhaven Peachtree Community Alliance Website (BPCA) here.)