Brookhaven, GA, August 26, 2016 – by Trey Benton – In legal documents obtained by The Post, a Brookhaven property owner is claiming City Councilmembers violated his Constitutional rights as a land owner when they denied a controversial Terwilliger-Pappas mixed-use development on Dresden Dr. proposed to be developed on his property. He wants a DeKalb County Superior Court Judge to review the case and decide whether Brookhaven’s denial was proper. Appeals to land use decisions made by Brookhaven’s Zoning Board of Appeals or City Council are made to DeKalb County Superior Court.
On August 23rd, in DeKalb Superior Court, Attorney Lauren Hansford with The Galloway Law Group, LLP, filed an Appeal and Verified Complaint, a request for Declaratory Judgement and Mandamus, on behalf of property owner John A. Carlos, Manager of Dresden Properties, LLC., (“Plaintiff”), naming Brookhaven’s Mayor John Ernst and Councilmembers Linley Jones, Bates Mattison, Joe Gebbia and John Park in their official capacity as Councilmembers as Defendants.
The complaint says the July 26th denial of an application filed by Terwilliger-Pappas Multi-Family, LLC, who aimed to develop a mixed-use project comprised of 121 Residential Units, 3,600 square feet of Live-Work Units, and 9,000 square feet of ground-floor commercial space, was unconstitutional, illegal, null, and void, constitutes a taking of Plaintiff’s Property in violation of the Just Compensation Clause of the Fifth Amendment to the Constitution of the United States, the Constitution of the State of Georgia, and the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the Constitution of the United States. The specific land parcels are 1411, 1417, 1423, & 1427 Dresden Dr.
The claim also says the denial strips the Plaintiff of an economically viable use of his land, not only because Brookhaven’s Council denied the Solis Dresden proposal, but also because that denial “imposes a mandatory twenty-four month waiting period before any successive rezoning applications could be considered for the Property.”
Carlos and his legal Counsel are asking for legal fees associated with their claim as well, and for the Court to take over jurisdiction of this matter, order Brookhaven to reconsider the Application as filed and allow Carlos to develop his property as is “Constitutionally permissible”.
During the July 26th City Council Meeting, Attorney Laurel David, also with the Galloway Law Group who represented the developer throughout the process, asked Councilmembers to withdraw the application. She said if the application is denied, no one would be able to develop the property for two years, which would cause detriment to the owner. “We are not asking for a rezoning this evening, we are asking to withdraw this application,” David said. “And there is no public purpose that is being served by denying the request for withdrawal.”
Greg Power from developer Terwilliger-Pappas told Councilmembers he also supported the withdrawal of the application. “We worked really hard on trying to design something that would meet the land use plan and gain support of the community,” said Power. “We were unsuccessful and we have no intentions of pursuing this project any further.”
Councilman Bates Mattison, who represents Brookhaven’s District 3, where the property in this case is located, made the motion to deny the Solis Dresden development. He said, “As a community we’ve got to be clear to our developers what we want to see. I encourage us to add the Overlay to the Character area study, for this parcel, and other future developments along Peachtree.” He also commented the City and the developer have reached a zero-sum, lose-lose in this case.
Councilman John Park said during the July 26th meeting, he has been telling developers to bring their “A-Game” early, get community support early, because if they don’t, the City will not hesitate to follow its laws, laws Park says are in place for a reason.
“The reason why the denial option is in the law books,” said Park, “is because, it’s in order to protect the citizens so that every 6 months they don’t have to come back and sacrifice hundreds of hours of their time. These aren’t people that are retired, with plenty of time on their hands, doing this for fun. These are people with jobs, with children, who are working hard to protect their neighborhoods. For us to ignore that, and to not send a clear message, and not deny when it’s warranted, I think is irresponsible on our part as a council.”
As far as the “damage” the denial has done to the owner, Park said as far as he is concerned, the owner of the property is the applicant who has hired an agent to represent him. “That agent did not act without the owner’s permission,” Park said. “So that to me, that argument is dubious. It’s like a ZBA hearing…creating your own hardship and asking to rectify that.”
When contacted for comment on Carlos’ request for Declaratory Judgement and Mandamus, Brookhaven said, “We cannot comment on Pending Litigation.” Also, looking at the Court records, the Brookhaven Elected Officials named in the filing have not been served as of yet.
The City has 30 days to file a response to Carlos’ claim with the Court.
The full filing The Post obtained is below.