In July of 2015, then Community Development Director, Ben Song, denied the Porter Square LDP application on the basis the developer “must seek rezoning before the proposed LDP can be fully vetted by staff.” SDS Real Property Holdings, LTD. and JLB Realty, LLC. (the developers) disagreed and challenged that decision in DeKalb’s Superior Court.
On June 17, 2016, Superior Court Judge Clarence F. Seeliger concurred with Brookhaven that JLB did not complete the rezoning process and City records show their application for rezoning was withdrawn. He said because of that, the City was justified in concluding their application for an LDP was on property not properly zoned for the proposed use the LDP would have set in motion. That ruling was subsequently disputed in the State Court of Appeals.
JLB and SDS said Judge Seeliger’s decision was “absurd” and “with all due respect, Judge Seeliger completely confused the law of quasi-judicial decision-making applicable to permits, with legislative decision-making applicable to rezoning requests, directly contradicting our Supreme Court’s bright line rule distinguishing the two laid down in 1986.” In effect, SDS and JLB said Judge Seeliger used the wrong standard of review in this case, citing that in-fact, the City’s original denial of the Permit was “an error of law.”
In Tuesday’s Appeals Court reversal decision, Chief Judge Sara L. Doyle writes, “The Developers argue that the superior court erred by affirming the denial of the LDP because the underlying R-100 zoning provisions conflict with the overlay district regulations and, therefore, do not apply. We agree.” Chief Judge Doyle added that as an initial matter, the Developers contend the Superior Court applied the incorrect legal standard to in formulating the appeal decision.
“We agree that the Superior Court failed to apply the appropriate de novo standard of review to the interpretation of the zoning ordinances at issue, and thus, its review was flawed from the outset,” Chief Judge Doyle explained. “Applying that standard here, the Developers are correct that the [Brookhaven] Planning Director and ZBA incorrectly interpreted the zoning ordinances to require a rezoning in this instance.”
The Court of Appeals effectively concurred with JLB and SDS’s claim and handed down their decision reversing Seeliger’s decision. This opens the door for the project to be developed as proposed, unless Brookhaven decides to seek a decision by the Georgia Supreme Court, which could take some time.
At the center of the case are provisions in the Brookhaven Peachtree Overlay, a zoning district created by DeKalb County in 2007 to codify the recommendations of the Brookhaven LCI Study that seems to be a point of contention for several issues with zoning in the Peachtree Corridor these days.
The City of Brookhaven has 10 days from June 20th to appeal to the State’s Supreme Court.