Brookhaven, GA, November 17, 2016 – by Trey Benton – A builder working in the Brookhaven Fields neighborhood now faces tearing off part of a home he constructed that ended up extending 11 inches beyond a line that was approved by the City of Brookhaven’s Community Development Department when they issued him a building permit. And in Brookhaven, infill housing is literally a game of inches.
On Wednesday, the City’s Zoning Board of Appeals (ZBA) denied a variance application made by James Lane of South Peak Construction, a variance requested after the fact, that if approved, would have allowed a 25-foot span of an exterior wall of a new home at 2517 Ellijay Drive, to remain as constructed…in error. The City’s Community Development Department recommended approval of the variance, conversely.
According to City records, a site plan filed in August 2015 and approved in September of 2015 for a building permit, did not show a “bump out” on the south side of the home (see below). Subsequent architectural drawings however, did show the “bump out”, but architectural plans are not used for site plan approval. As a result, the setback for the “bump out” and the attached exterior brick water table, were not taken into consideration by staff during the building permit review when the setback measurement on the site plan was approved.
After construction was completed, South Peak had a final survey done that was submitted to the City for a Certificate of Occupancy – a certificate necessary for the home to be lived in. According to the approved site plan for the building permit, the exterior brick water table for the new dwelling was proposed to be setback 7.3 feet from the property line. During final site plan review, the City discovered the home is set only 6.6 feet back. Lane told Commissioners he asked the City what he should do and was advised to seek a variance.
Learning of the setback discrepancy and the filing of the subsequent variance request, homeowners in the Brookhaven Fields community who have seen alot of infill activity and have become savvy on the process, sent letters to the City requesting the variance request be denied.
Citing language used by the Community Development Department Staff when deciding whether the five required elements of criteria for a variance has been met, Tracy Elliott, whose backyard abuts the new home, told Commissioners all of the criteria has not been met. And approving the variance would in-fact constitute granting of special privileges, inconsistent with the limitations upon other properties in the zoning district.
“We all have narrow lots,” said Elliott. “If all property owners in Brookhaven get the privilege of building outside the code and getting variances after the fact, this seems like a horrible precedent to set for the community or any homeowner in Brookhaven. This is 25 feet x 10 inches…that’s 250 square feet. This is a protrusion that’s affecting our property and the feel of the neighborhood.”
A letter sent by the builder included in the agenda packet explains the area was supposed to have an 8” cantilever, but got brick under it by mistake. “I apologize for this,” the builder says, “it was not our intent.” But be that as it may, mistake or not, the finished product does in fact extend past what the City approved.
Also included in the agenda packet were several tables showing variances for side yard setbacks that had previously been approved in the area by DeKalb County, ranging from 5-feet to 3-feet.
Brookhaven Fields resident Terrell Carstens pointed out to the Commission, including the tables appears to be intended to be used to show hardship criteria for the applicant. “I think this is a dangerous road to go down and a very slippery slope,” said Carstens. “I also thought a precedent can not be set and is not allowed in zoning application requests.”
ZBA Chairman Jed Beardsley, did not look favorably on these inclusions. Because variance cases are on a case by case basis and are not intended to set precedent, Beardsley said he does not want to see these type of tables included in the future because of their irrelevance. Deputy Director of Community Development Patrice Ruffin clarified the table inclusion by saying they were not intended to show precedence, but only to show what already exists in the area.
Beardsley said in closing out the deliberation process, “I don’t think it’s our job to fix builder error. There might be insurance for that…I don’t know. But, it’s not our job.”
The ZBA voted 4-1 to deny the variance. Commissioner Caitlin Miller did not vote in favor of the denial.