2014-04-16 zoning board of appeals - full agenda-1181 (1)

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CITY OF BROOKHAVEN

ZONING BOARD OF APPEALS

Tim Nama ChairmanCorey Self

Don Bolia

Glenn ViersHope Bawcom

Jed Beardsley

Kent Gipson

AGENDA

April 16, 2014 Regular Meeting 7:00 PM

2 Corporate Boulevard, Suite 125, Brookhaven, GA 30329

A) CALL TO ORDER

1. Roll Call

B) APPROVAL OF MINUTES

1. Approval of March 19, 2014 Zoning Board of Appeals Work Session Meeting Minutes

2. Approval of March 19, 2014 Zoning Board of Appeals Regular Meeting Minutes

C) ORGANIZATIONAL AND PROCEDURAL ITEMS

D) UNFINISHED BUSINESS

1. ZBA 13-27: JEG Family Trust and Trop, Inc. D/B/A Pink Pony - Variance to Appeal

Administrative Decision Concerning Nonconformance. Property Location: 1837Corporate Boulevard, Brookhaven, GA

2. ZBA14-07: Patsios Homes C/O Roberts & Daughdrill, PC - Increase Lot Coverage, and

Reduce Front and Rear Yard Setback - 3165 Lynwood Drive

E) NEW BUSINESS

1. ZBA14-08: Michael Patrick - Increase Lot Coverage from 35% to 62% and Waive Lot

Merger Requirement - 1082 Wimberly Road



Agenda Zoning Board of Appeals April 16, 2014

3. ZBA14-10: Bright Ventures LLC/Hakim Hilliard - Reduce the Side Yard Setback Along

Curtis Drive from 50’ to 39’, Reduce the Rear Yard Setback from 30’ to 10’, Reduce the

Transitional Buffer Zone Along the West Property Line from 50’ to 21’ and ReduceParking from 72 to 45 Spaces - 3020 Buford Highway

4. ZBA14-11: Wayne Nicholls - Increase Lot Coverage from 35% to 53.8% and ReduceSetback for an Accessory Structure (Swimming Pool and Associated Patio) from 10’ to

1’ - 2508 Appalachee Drive NE

5. ZBA14-12: Alton Moss - Increase Lot Coverage from 35% to 39% - 1380 Sylvan Circle

6. ZBA14-13: Michalene and Gerald Donegan - Reduce Side Yard Setback from 10' to 5.2'

- 3028 Mabry Road

7. ZBA14-14: Ryan and Irina Connelly - Reduce Rear Yard Setback from 30’ to 15’ for

Deck Addition and Reduce Setback for an Accessory Structure (Fireplace) from 10’ to 3’

- 2423 Coosawattee Drive

8. ZBA14-15: Ralph Reilly - Reduce Stream Buffer from 75' to 50' to Construct a SingleFamily Home - 2465 E. Osborne Road

9. ZBA14-16: Rockhaven Homes LLC - Reduce Rear Yard Setback from 40' to 20' toConstruct a Single Family Home - 1290 Oaklawn Avenue

10. ZBA14-17: Nelson Consunji - Reduce Front Yard Setback from 109.4' to 76.6' to

Construct a Staircase - 4189 Oak Forest Drive NE

F) ADJOURNMENT



Minutes Zoning Board of Appeals March 19, 2014

1. Adjournment

RESULT: APPROVED [UNANIMOUS] MOVER: Jed Beardsley

SECONDER: Corey Self

AYES: Nama, Self, Bolia, Viers, Bawcom, Beardsley, Gipson

APPROVED:

_____________________

Tim Nama, Commissioner

ATTEST:

___________________________Community Development

Approved

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CITY OF BROOKHAVEN

ZONING BOARD OF APPEALS

DRAFT MINUTES

March 19, 2014 Regular Meeting 7:00 PM2 Corporate Boulevard, Suite 125, Brookhaven, GA 30329

A) CALL TO ORDER

Attendee Name Title Status Arrived

Tim Nama Chairman PresentCorey Self Present

Don Bolia Present

Glenn Viers Present

Hope Bawcom Present

Jed Beardsley Present

Kent Gipson Present

B) APPROVAL OF MINUTES

1. Approval of February 19, 2014 Zoning Board of Appeals Work Session Meeting Minutes

Minutes were approved as written.

RESULT: ACCEPTED [UNANIMOUS]

MOVER: Glenn Viers

SECONDER: Kent GipsonAYES: Nama, Self, Bolia, Viers, Bawcom, Beardsley, Gipson

2. Approval of February 19, 2014 Zoning Board of Appeals Regular Meeting Minutes

Minutes were approved as written.

RESULT: ACCEPTED [UNANIMOUS]

MOVER: Glenn Viers SECONDER: Kent Gipson


C) ORGANIZATIONAL AND PROCEDURAL ITEMS

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the time allotment of 10 minutes for speakers and also for handling appeals of an administrative decision. Mr.

Beardsley noted a typo under Sect. 17A, item 1, line 5 should read "... voted to defer ..." Mr. Beardsley moved

to adopt the new procedures with the amended word and Commissioner Self seconded. The vote was

unanimous.

2. Certificate of Payment of Cost on Appeals

The Board discussed the added item, Certification of Payment of Cost on Appeals, whereby any case that may

go to Superior Court requires this signed form, and in this instance a case would need to filed by the upcoming

Friday. Commissioner Self moved to allow the Chairman to sign the certificate and Ms. Bawcom seconded.

The vote was unanimous.

RESULT: ADOPTED [UNANIMOUS] MOVER: Kent Gipson



D) UNFINISHED BUSINESS

Ms. Canon stated that case ZBA13-27 - 1837 Corporate Drive, would be on next month's agenda after a 90 daydeferral.

1. ZBA13-43: Patsios Homes, LLC - Encroach into the 75 Foot Stream Buffer for aTemporary Construction Area - 2381 Drew Valley Road

ZBA13-43 - Mr. Song reviewed the history of the case at 2381 Drew Valley Road which was deferred

originally for 60 days to allow the applicant to meet with neighbors. The applicant then submitted a revised site

plan on February 10 and the staff requested a 30 day deferral to allow enough time to review the site plan. The

new request showed the home would be built outside of the stream buffer and that only a temporary

encroachment into the stream buffer for construction access was needed.

Chairman Nama noted receipt of an email from a neighbor and representative of the Drew Valley Association

who had previously objected but was now in agreement with the revised plan and conditions.

There were no supporters or opponents in attendance. The board discussed the case. Commissioner Gipson

moved to approve the case based on the revised staff report and with conditions. Mr. Viers seconded the motion

and the vote was unanimous.

RESULT: APPROVED WITH CONDITION [UNANIMOUS] MOVER: Kent Gipson

SECONDER: Glenn Viers

AYES: Nama, Self, Viers, Bawcom, Beardsley, Gipson

RECUSED: Bolia

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The applicant, represented by Doug Dillard, stated they accepted the staff's conditions and requested approval

of their application. The rear yard setback, from 40' to 31', is not a part of the application but request approval

based on the site plan. He believes the reduced size of the deck is achievable.

No one spoke in support of or opposition to the application.

Chairman Nama asked questions relative to the amount of impervious surface and the use of pervious concrete,

pavers, etc. in the paving of the driveway.

Mr. Beardsley made a motion to approve the requests as stated and subject to the staff condition and added the

conditions that the deck be limited to 10' and that the applicant use best effort to use pervious concrete on the

driveway. The motion was seconded by Mr. Bolia. The vote was unanimous.

RESULT: APPROVED WITH CONDITION [UNANIMOUS]

MOVER: Jed Beardsley

SECONDER: Don Bolia


2. ZBA14-06: Gipco Southern Inc. C/O Jay Gipson - Increase Lot Coverage (Sec. 27-586)and Vary from the Requirements of the Brookhaven-Peachtree Overlay District: (27-

728.15.10(A)(2)&(3); 27-728.15.10(G)&(K); 27-728.15.12 (D)(3), (4)&(8); 27-728.15.12(F)(3)(A); 27-728.15.12(L)(6)) - Peachtree Road and Colonial Drive

Mr. Gipson recused himself as the applicant is a relative. Mr. Song noted that the applicant cannot request a

variance to 27-728.15.12(f)(3)(a) because of the Brookhaven Peachtree Overlay District requirements but that

the proposed project is already in compliance with that item. He then stipulated to the staff report.

Doug Dillard represented the applicant and made mention of the constitutional issues they felt were present inthe case. He requested the first amendment they had made to the application be a part of the record. They

agreed with the staff recommendations. With regard to variance #2 or staff condition #7, he stated the retail

screening has been extended from the original point on Colonial Drive all the way to the first entrance into the

parking deck. They felt the extent the staff wants to extend the screening is not practical but they will try to use

materials that will provide a transition such as landscaping to soften the impact of the parking deck. As far as

the second staff condition relative to interparcel access, Mr. Dillard stated that is no way to know what will be

built next door and to allow access to that project through this parking lot is not reasonable.

No one spoke in support of the project.

Linda Dunlavy, retained by the Brookhaven Peachtree Community Alliance, then spoke in opposition and

offered a paper submission. Ms. Dunlavy then went on to request the case be deferred. Ms. Dunlavy gave a

history of the BPCA's involvement with this address and the overlay district. She also stated that Walgreens

purchased the property 5 years ago and was denied a variance request two years ago by Dekalb County. She

continued by saying that several plans have been submitted to Walgreens which would be compliant without

variances She stated they feel the hardship is self imposed because the developer does not want underground

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Speakers in opposition included:

Bill Draper, 1435 Cartecay Drive

Joseph Palladi, 1073 Dunbarton TracePeter Curnyn, 2257 Colonial Drive

Thomas Porter, 1420 Canoochee Drive

Ted Sandler

Lynda Martin, owns property next door

Marc Acampora, traffic engineer

Mark Miller

Robert Boyd, Bullock Manly partners

Kathy Forbes, Brookhaven Heights resident

Aaron Brown, Brookhaven Heights resident

Doug Dillard then addressed each speaker and encouraged the ZBA to think in terms of what is reasonable for

the property. He said that the current traffic is not destination traffic but through travel traffic. Mr. Dillard said

he felt like the case had already been pending for a while and they had met with staff so he thinks there is

sufficient information to make a decision tonight.

The Board then had discussion and asked questions.

Board member Beardsley asked Ted Sandler if the three curb cuts could be turned into a driveway between the

Martin property and Subway and the answer is yes, it has been proposed before. Mr. Dillard stated all partieswould need to agree on a price and the other two already have the access they need. Ms. Martin stated they have

tried since 1997 to come to an agreement.

Mr. Beardsley asked the applicant about the loading dock design and he replied that since meeting with the

staff, the design has been modified and there is a wall along Colonial Drive which would block the view of any

truck that is sitting at the dock.

Mr. Self asked about the BPOD overlay restrictions on curb cuts and Ms. Canon quoted a lengthy section from

the BPOD.

Mr. Self stated he did not feel like the application met the five criteria and did not think the application should

be approved based on them.

Mr. Beardsley moved for a 60 day deferral to May 21 with any comments and revised plans due to be submitted

by May 5. Ms. Bawcom seconded the motion. The vote was unanimous.

RESULT: DEFERRED [UNANIMOUS] Next: 5/21/2014 7:00 PM

MOVER: Jed Beardsley SECONDER: Hope Bawcom

AYES: Nama, Self, Bolia, Viers, Bawcom, Beardsley

RECUSED: Gipson

3 ZBA14 07 P t i H C/O R b t & D hd ill PC I L t C d

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square foot home, and she explained how the proposed house meets all five of the criteria.

Those who spoke in support of the application:

Alan Roberds - applicant/ownerRyan Brenny - Lynwood park resident

Gretchen Patsios - husband is the builder and designs his own houses

Kataska Davis, 3169 Lynwood Drive

Opponents to the application were:

Monique Kidder, 3161 Lynwood Drive, who presented a petition which had been signed by 17 of the residents

Alan Powell, 3182 Silver Lake Drive

Susan Radics, 3181 Lynwood Drive stated she was not opposed to the house but she is concerned about

stormwater runoff and whether it was even a buildable lotRonnie Mayer - neutral

Ms. Roberts then spoke in rebuttal stating that it is a matter of constitutional property law and that just because

neighbors want it as their backyard is not justification for the ZBA to deny the application. She then stated they

agreed to the staff conditions particularly conditions 2 and 3 which pertain to stormwater runoff.

Mr. Beardsley asked Ms. Davis about her support when she will be the most negatively impacted. Her response

was that she does not think it will negatively impact her and that she supports change and she knows she lives in

a transitional neighborhood.

Mr. Self made a motion to approve the application as requested subject to the recommended conditions but the

motion died due to a lack of a second.

Mr. Beardsley made a motion to approve the first variance request but deny the second and third variances

which would preclude for 2 years the request of either of the two variances. Mr. Viers seconded the motion. Mr.

Beardsley moved to withdraw his motion and Mr. Self seconded it. The vote was unanimous.

Mr. Self made a motion to approve as requested but would stipulate that a landscape buffer be added along the

back property line. The motion died due to a lack of a second.

Mr. Viers made a motion for a deferral until to April 16 with the hope that the applicant can revise the plan and

gain neighbor consensus. Mr. Self seconded the motion. The vote was unanimous.

RESULT: DEFERRED [UNANIMOUS] Next: 4/16/2014 7:00 PM

MOVER: Glenn Viers


AYES: Nama, Self, Viers, Bawcom, Beardsley

RECUSED: Bolia, Gipson

F) ADJOURNMENT

APPROVED:

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Community Development

Approved

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MEMORANDUM

MEETING OF: April 16, 2014

COMMITTEE: Zoning Board of Appeals

DEPARTMENT: Community Development

ISSUE/AGENDA ITEM TITLE:

ZBA 13-27: JEG Family Trust and Trop, Inc. D/B/A Pink Pony - Variance to AppealAdministrative Decision Concerning Nonconformance. Property Location: 1837 CorporateBoulevard, Brookhaven, GA

BACKGROUND/SUMMARY: Please see attached files.

FISCAL IMPACT: (Budgeted – over or under)

STAFF RECOMMENDATION: See attached. The applicant has requested a 90 day deferral (Apri l 16, 2014). The staff report

wil l be updated upon receipt of revised information from the applicant expected no later than

March 21, 2014. Revised mater ial s were received on March 18, 2014 and are attached herein.

I n addition, the City's position statement is also enclosed.

ATTACHMENTS:

ZBA13-27 staff memo (PDF)

ZBA13-PP 4-9-14 City's brief (PDF)

City Exh. A, 1990 DeKalb Zoning sec 27-146 (PDF)

City Exh. B, DeKalb Sup. Court Order (PDF)

PP Variance Documentation_3-18-14 (PDF)

1837 Corporate Drive Appeal of Trop Inc and JEG Family Trust 8-12-13 (PDF)

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Case: ZBA13-27

Location: 1837 Corporate Boulevard, Brookhaven, Georgia

Applicant: JEG Family Trust and Trop, Inc. d/b/a/ Pink Pony

Request: Appeal of Director’s interpretation of Section 27-936 of ZoningOrdinance

APPEAL OF DIRECTOR’S INTERPRETATION OF A ZONING PROVISION

Section 27-956 of the Brookhaven Zoning Ordinance vests the Community DevelopmentDirector with responsibility to interpret the City’s zoning ordinance. This appeal asks the ZBA to

review the Director’s interpretation of Section 27-936, a provision that prohibits a

nonconforming use from being “enlarged, expanded, moved, or otherwise altered in a mannerthat increases the degree of nonconformity.”

POWER AND DUTY OF THE BOARD ON APPEALSection 27-912 states that the Zoning Board of Appeals has the power and duty to hear and

decide appeals where an aggrieved party alleges that there is error “in any final order,

requirement, or decision made by an administrative official based on or made in the enforcementof the zoning ordinance.” To pursue an appeal, the party must be “aggrieved”, which means:

(1) Said person or said person’s property was the subject of the action appealed from; or (2) Said

person has a substantial interest in the action appealed from that is in danger of suffering special

damage or injury not common to all property owners similarly situated.

To sustain an appeal, the ZBA must expressly find that the Director’s action was based on an

erroneous finding of a material fact, or that the Director acted in an arbitrary manner. The ZBA

may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or

determination appealed from. The ZBA shall decide the appeal within 60 days from the hearing.

SUMMARY OF STAFF RECOMMENDATIONS (1) Staff believes the ZBA should dismiss this appeal because the challenged interpretation does

not amount to a final order, requirement, or decision based on or made in the enforcement of the

zoning ordinance. No decision that has been made concerning the Director’s interpretation, nor is

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BACKGROUND CONCERNING THIS APPEAL The Appellants, JEG Family Trust (owner of 1837 Corporate Boulevard) and Trop, Inc. d/b/a

Pink Pony, are suing the City of Brookhaven with respect to the City’s sexually oriented business licensing regulations, sexually oriented business zoning regulations, and alcohol regulations.

That lawsuit is pending in the DeKalb County Superior Court.

In April 2013, the Appellants (“Pink Pony”) submitted an incomplete Land Disturbance PermitApplication that proposed to expand its building by more than 2,700 square feet (from 8,308 sq.

ft. to 11,050 sq. ft.). On May 9, 2013, the Director wrote Pink Pony’s engineer to explain that the

submittal was incomplete with respect to general application requirements, planning

requirements, and engineering requirements. The Director’s letter also explained that if PinkPony were a nonconforming use, the proposed expansion might be prohibited by Section 27-936.

Pink Pony did not appeal the Director’s conclusion that its submission was incomplete.

Although no application was pending, Pink Pony’s attorney wrote a letter dated June 19 to the

Director concerning the nonconforming use issue. Pink Pony claimed it was a nonconforming

use because current laws prevent it from serving alcohol in an adult business. (Nonconforminguse status, however, relates to changes in the zoning ordinance, not alcohol or conduct rules.)

Pink Pony also outlined its efforts to obtain permission from DeKalb County to expand its building from 2008 through 2012, before Brookhaven incorporated. Pink Pony has not produced

a building permit from DeKalb County. With respect to its potential expansion, Pink Pony statedthat increasing “the floor area by close to 3000 square feet” would involve “updating the

dressing room/toilet facilities for its existing female staff and improving its office space.”

The Director replied in a letter dated July 25, reiterating that Pink Pony’s LDP application was

not pending because it was incomplete. The letter also stated that Pink Pony is nonconforming

because it is in a C-1 district, where adult businesses are not allowed (and not because alcohol is

prohibited). With respect to Section 27-936, the Director’s letter stated:

Your letter also reflects that the proposed expansion of Pink Pony’s building would

enlarge it in a manner that increases the degree of nonconformity, which is prohibited bySec. 27-936 of the Brookhaven Zoning Ordinance. Page 2 states that part of the

expansion is for “updating the dressing room/toilet facilities for its existing female

staff ….” This expansion would increase the degree of the nonconformity because itwould increase the number of dancers that could be on the premises at any one time.

More space in the dressing room allows for more dancers in the dressing room and more

dancers who can rotate to the stages and customer areas, even if the square footage of

those public areas were held constant. The proposed expansion of Pink Pony’s buildingtherefore appears to violate Sec. 27-936.

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building, structure, or use of land shall be enlarged, expanded, moved, or otherwise

altered in a manner that increases the degree of nonconformity.

Pink Pony operates in a C-1 zoning district, where adult businesses are not allowed. In

correspondence, Pink Pony asserted it was a nonconforming use and that it intended to expand its

building by close to 3000 square feet in floor area. The Director interprets Section 27-936 to

mean that a 30% increase in floor area would increase the space available for the adult business,its patrons, and its employees to use, which would increase the degree of nonconformity. In

response to information in Pink Pony’s June 19 letter, the Director expressed the view that the

“proposed expansion of Pink Pony’s building therefore appears to violate Sec. 27-936.”

REASONING FOR STAFF RECOMMENDATIONS Staff recommends the ZBA dismiss this appeal and not pass judgment on the Director’s

interpretation of Section 27-936. A determination by the ZBA at this point is premature. PinkPony has not submitted a complete Land Disturbance Permit application, so there has been no

decision on such a permit. There has only been correspondence which led to the Director’s

opinion that a proposed expansion of a claimed nonconforming use (as described incorrespondence) appeared to violate a zoning provision. Section 27-912, which governs appeals

to the ZBA, does not make the Director’s every response that includes an interpretation of thezoning ordinance to be appealable to the ZBA. Rather, ZBA appeals are for correcting “error in

any final order, requirement, or decision” that is based on or made in the enforcement of thezoning ordinance. If Pink Pony later applies for a Land Development Permit, and if the Director

denies that application based on Section 27-936, then Pink Pony could challenge the

interpretation at that time to correct any error in that actual decision. At that point the ZBAwould have a completed application from Pink Pony to provide context for the decision. Until

then, the interpretation only concerns a hypothetical proposed expansion, which Pink Pony could

adjust or even abandon.

Alternatively, Pink Pony is not aggrieved by the Director’s interpretation. Although Pink Pony’s

property was the subject of correspondence concerning a potential expansion, there has been no

action that has applied or followed the challenged ordinance interpretation.

Similarly, the provision at issue prohibits enlargement or expansion of a nonconforming use.

Since before Pink Pony opened, its location has been zoned C-1. Adult businesses are notcurrently allowed in a C1 zone in Brookhaven, and Pink Pony has not shown that DeKalb

County zoning allowed adult businesses in the C-1 zone. Although Pink Pony has asserted that it

is a lawful, nonconforming use, it has not met its burden of demonstrating that. If Pink Pony is

not a lawful, nonconforming use, then Section 27-936 would not apply.

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STAFF RESPONSE TO PINK PONY’S APPEAL Pink Pony argues that its proposed expansion of its building would not increase the degree of

nonconformity for its adult business because it would not increase the existing floor area devotedto adult entertainment. It contends that any nonconformity is limited to the public areas where

dancing and alcohol service occur. Pink Pony also argues that its proposed alterations were

approved by DeKalb County just before the City of Brookhaven was incorporated. None of Pink

Pony’s arguments are sufficient to reverse the Director’s interpretation.

With respect to the expansion of floor area, Pink Pony suggests that the dressing area for its

dancers does not count as part of its use. That is like a theater discounting its need for a back

stage area, a TV studio ignoring green rooms, or a retailer saying that its stockroom is not part ofits store. If the dressing area is not part of the adult business, why would an adult business

choose to expand it? It is directly related to an expansion of the use of the property as an adult

business; if this were not the case, Pink Pony would simply remodel (not expand) its currentdressing rooms. Pink Pony also objects to the common-sense observation that a larger dressing

area for dancers would allow more dancers to be at the club at a time. It does not dispute that

truism, but instead argues that it “did not say” it would hire or use more dancers than in the past.But that does not change the fact that expanding the dressing room for an adult business’s

dancers is an expansion of the adult business, which is prohibited if it is a nonconforming use.Furthermore, the expansion of public bathrooms for Pink Pony’s patrons also expands/enlarges

the adult business (to service more patrons) in a manner prohibited for a nonconforming use.

The vast majority of documents attached to Pink Pony’s a ppeal are just attachments to Pink

Pony’s June 19, 2013 letter and concern Pink Pony’s efforts to get County approval to expand its building. Those proceedings are not relevant here.1 Under a settlement agreement between

DeKalb County and Pink Pony, Pink Pony had to get approval from the DeKalb County Board of

Commissioners for any increase of the square footage of its business or the amount of floor spacedevoted to adult entertainment. That settlement agreement does not bind the City of Brookhaven.Moreover, while DeKalb County voted on Pink Pony’s proposed expansion just before

Brookhaven was incorporated, Pink Pony has produced no building permit from DeKalb County.

Further, the vote of DeKalb County does not allow Pink Pony to expand or enlarge its building inviolation of Brookhaven’s zoning ordinance. Pink Pony relied on those documents to argue for

the right to expand its building, but they do not concern the Director’s interpretation of

Brookhaven’s zoning ordinance and do not matter for Pink Pony’s appeal of that interpretation.

CONCLUSION The appeal should be dismissed, or the Director’s interpretation should be affirmed.

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Case: ZBA13-27

Location: 1837 Corporate Boulevard, Brookhaven, Georgia

Applicant: JEG Family Trust and Trop, Inc. d/b/a/ Pink Pony

Request: Appeal of Director’s interpretation of Section 27-936 of Zoning

Ordinance

POSITION STATEMENT OF CITY OF BROOKHAVEN

IN SUPPORT OF DIRECTOR’S INTERPRETATION

AND OPPOSING APPEAL OF JEG FAMILY TRUST AND TROP, INC.

CONCERNING PROPOSED EXPANSION OF PURPORTED NONCONFORMING

SEXUALLY ORIENTED BUSINESS AT 1837 CORPORATE BOULEVARD,

BROOKHAVEN, GEORGIA

Submitted for City of Brookhaven by:

Scott D. Bergthold, Ga. Bar No. 202030

Law Office of Scott D. Bergthold, P.L.L.C.

7446 Shallowford Road, Suite 202Chattanooga, TN 37421

423-899-3025

423-899-3029 [email protected]

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APPEAL OF DIRECTOR’S INTERPRETATION OF A ZONING PROVISION

Section 27-956 of the Brookhaven Zoning Ordinance vests the Community Development

Director with responsibility to interpret the City’s zoning ordinance. Pink Pony asks the ZBA to

review the Director’s interpretation of Section 27-936, which prohibits a nonconforming usefrom being “enlarged, expanded, moved, or otherwise altered in a manner that increases the

degree of nonconformity.”

POWER AND DUTY OF THE BOARD ON APPEAL

Section 27-912 states that the Zoning Board of Appeals has the power and duty to hear anddecide appeals where an aggrieved party alleges that there is error “in any final order,

requirement, or decision made by an administrative official based on or made in the enforcement

of the zoning ordinance.” To pursue an appeal, the party must be “aggrieved”, which means:(1) Said person or said person’s property was the subject of the action appealed from; or (2) Said

person has a substantial interest in the action appealed from that is in danger of suffering special

damage or injury not common to all property owners similarly situated.

To sustain an appeal, the ZBA must expressly find that the Director’s action was based on anerroneous finding of a material fact, or that the Director acted in an arbitrary manner. The ZBAmay reverse or affirm, wholly or partly, or may modify the order, requirement, decision or

determination appealed from. The ZBA shall decide the appeal within 60 days from the hearing.

SUMMARY OF CITY’S POSITION

(1) The ZBA must decide whether Pink Pony has met its burden of proving that Pink Pony was a

lawful use when it opened in 1990. Pink Pony has not met that burden, so Section 27-936 doesnot apply.

(2) Even if Pink Pony could establish that it was a lawful use when it opened in 1990, the ZBA

should affirm the Director’s interpretation of Section 27-936 because it is neither based on anerroneous finding of material fact nor an arbitrary interpretation of the zoning ordinance.

BACKGROUND

The Appellants, JEG Family Trust (owner of 1837 Corporate Boulevard) and Trop, Inc. d/b/aPink Pony, sued the City of Brookhaven with respect to the City’s sexually oriented business

licensing regulations, sexually oriented business zoning regulations, and alcohol regulations. In

December, the DeKalb County Superior Court ruled for the City on all claims. Pink Pony hasappealed to the Georgia Supreme Court, where briefing is underway and oral argument will be

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In June, Pink Pony’s attorney wrote the Director concerning the nonconforming use issue. With

respect to its potential expansion, Pink Pony stated that increasing “the floor area by close to3000 square feet” would involve “updating the dressing room/toilet facilities for its existing

female staff and improving its office space.”

The Director replied in a letter dated July 25, reiterating that Pink Pony’s LDP application was

not pending because it was incomplete. The letter also stated that Pink Pony is nonconforming

because it is in a C-1 district, where sexually oriented businesses are not allowed. With respect toSection 27-936, the Director stated:

Your letter also reflects that the proposed expansion of Pink Pony’s building wouldenlarge it in a manner that increases the degree of nonconformity, which is prohibited by

Sec. 27-936 of the Brookhaven Zoning Ordinance. Page 2 states that part of the

expansion is for “updating the dressing room/toilet facilities for its existing female

staff….” This expansion would increase the degree of the nonconformity because itwould increase the number of dancers that could be on the premises at any one time.

More space in the dressing room allows for more dancers in the dressing room and more

dancers who can rotate to the stages and customer areas, even if the square footage ofthose public areas were held constant. The proposed expansion of Pink Pony’s building

therefore appears to violate Sec. 27-936.

In August 2013, Pink Pony appealed the Director’s interpretation of Sec. 27-936. On October 16,

2013, the Board held a hearing and deferred the appeal so Pink Pony could address deficiencies

in its LDP application. Pink Pony has since submitted additional LDP information, which Citystaff is reviewing, and Pink Pony’s attorney has tendered additional documents and argument on

the non-conforming use issue.

ARGUMENT

Pink Pony operates in a C-1 zoning district, where sexually oriented businesses are not

permitted. To lawfully operate there, Pink Pony must be a lawful, nonconforming use. Pink Pony bears the burden of proof on that issue. Under Georgia law, “it is incumbent upon one seeking to

use the property for a non-conforming use after the rezoning ordinance to show that his prior use

of the property was legal and not unlawful.” Flippen Alliance for Community Empowerment, Inc.v. Brannan, 267 Ga. App. 134, 137 (2004).

Pink Pony cannot meet that burden due to Section 27-146 of the DeKalb County Zoning

Ordinance that was in place in 1990 when Pink Pony commenced operations (the full zoningdi j t tl id d t Cit t ff b Pi k P ) Th t di t t d th t “

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adult entertainment to be in a C-2 district) in 1991. But under Section 27-146, that only proves

that an adult entertainment use was prohibited at the time that Pink Pony commenced.

Even if Pink Pony is a lawful, nonconforming use, the Brookhaven zoning ordinance prohibits

Pink Pony from expanding in a manner that increases the degree of its nonconformity. The

Director’s determination on this issue is sound: it is not based on an erroneous finding of amaterial fact, nor can Pink Pony show that the Director acted in an arbitrary manner. Thus, if the

ZBA reaches the issue that Pink Pony seeks to have reviewed, the ZBA should affirm.

I. Pink Pony is not a lawful nonconforming use.

Pink Pony opened in a C-1 zoning district in DeKalb County in late 1990. Under the 1990

DeKalb County zoning ordinance, permitted uses for the C-1 district did not include adult

entertainment. (Pink Pony Exh. 2, 1990 DeKalb County Zoning Ordinance Sec. 27-457.) Section27-146 of the zoning ordinance stated that “no land, building or structure shall be used except in

accordance with the uses and standards permitted within each district. Any use not specifically

designated as permitted shall be deemed to be prohibited.” (Exh. A at 3, 1990 DeKalbCounty Zoning Ordinance Sec. 27-146) (emphasis added). Therefore, the DeKalb County zoning

ordinance prohibited adult entertainment in the C-1 zoning district when Pink Pony opened in1990.

Pink Pony ignores Section 27-146. In doing so, it overlooks that adult businesses were prohibited

in the C-1 zoning district in 1990. Because Pink Pony’s operation of an adult business in a C-1

district was not lawful at its inception, it is not entitled to protection from Brookhaven zoningregulations as a nonconforming use. Corey Outdoor Advertising, Inc. v. Bd. of Zoning

Adjustments, 327 S.E.2d 178, 184 (1985).

DeKalb County did not specifically designate adult entertainment as a land use until May 1991,

and even then the County did not allow adult entertainment in the C-1 district. (Pos. Stmt. at 4.)

In 1999, DeKalb County passed an ordinance to regulate alcohol in adult businesses, and that

effort was promptly met by more lawsuits. In 2001 the County settled with Pink Pony and others,and a copy of that agreement is Exhibit 4 to Pink Pony’s Position Statement. On page 5 of its

brief, Pink Pony asserts that the 2001 settlement accorded it “legal non-conforming status to

continue providing adult entertainment in their then existing locations.” But that is false. The2001 settlement did not concern zoning or land use, but alcohol sales with nudity in adult clubs.

[T]he County hereby grants “non-conforming status” to the Adult Clubs, currently

operating as such adult entertainment establishments and/or erotict t i t/d t bli h t tl d fi d i th C d f D K lb

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granted herein shall be for a term of eight (8) years effective January 1, 2001,

unless determined otherwise by a court of competent jurisdiction.

(Pink Pony Exh. 4 at 10 (emphasis added).) The settlement also provided for a “certificate of

non-conforming status” that depended on financial payments to the County and the adult business’s ongoing compliance with the settlement agreement.

A certificate of non-conforming status shall be issued as long as the Adult Club iscurrent with its annual fee obligation and has not violated any other provision of

this agreement.

(Pink Pony Exh. 4 at 16.) On June 19, 2001, the DeKalb County Finance Department issued an

“Adult Entertainment Certificate of Non-Conforming Status” to Pink Pony. (Pink Pony Exh. 5.)

From 2001 through the incorporation of the City of Brookhaven, Pink Pony received business

and alcohol licenses from DeKalb County. In 2007, Pink Pony and other clubs also renewed and

extended the 2001 settlement agreement with DeKalb County.

But the fact that Pink Pony offered alcohol and nudity under settlements with and licenses fromDeKalb County does not show that Pink Pony was a lawful land use under the zoning ordinancewhen it opened in 1990.

Similarly, the City’s arguments in the DeKalb County Superior Court do not meet Pink Pony’s

burden to show that it opened as a lawful use. Speaking of Pink Pony’s zoning, the Court stated:

Finally, for all of Plaintiffs’ [Pink Pony’s] reliance on lawful, nonconforming use

status, Plaintiffs did not plead facts showing that it has such status. . . . [T]heComplaint does not allege that the parcel on which Pink Pony operates is zoned

C-2. In fact, the City indicates that the DeKalb County zoning map (the zoningdistricts of the County were carried over to the City) shows the parcel is zoned

C-1. Again, this dispute is irrelevant to the resolution of this case because neither

party has pled a claim that Plaintiffs cannot operate a sexually oriented business at1837 Corporate Boulevard, Plaintiffs’ location. Rather, this case centers on the

applicability of Brookhaven’s SOB Code, including its prohibitions on nudity and

alcohol, at that location.

For the foregoing reasons, Defendants are entitled to judgment on the pleadings

on Count VIII that Plaintiffs are not grandfathered against enforcement of theCity’s SOB Code.

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II. The Director’s interpretation—that the proposed expansion would increase the

degree of nonconformity of Pink Pony’s facility—should be affirmed.

Brookhaven Zoning Ordinance Section 27-936 explains that nonconforming uses are

incompatible with permitted uses and are generally disfavored. It further provides:

It is the intent of the city council to require the cessation of certain of these

nonconformities, and to permit others to continue until they are otherwise removed or

cease. It is further the board’s intent that nonconformities not be used as grounds foradding other buildings, structures, or uses of land prohibited by this chapter, and that no

such building, structure, or use of land shall be enlarged, expanded, moved, orotherwise altered in a manner that increases the degree of nonconformity.

If Pink Pony were a lawful nonconforming use, Pink Pony would then have to show that the

Director’s interpretation of Section 27-936 is arbitrary or is based on an erroneous finding of

material fact.

Pink Pony has operated in a C-1 zoning district, where adult businesses have never been

permitted, since late 1990. According to Pink Pony, there is one land use occurring at 1837Corporate Boulevard—adult entertainment. It seeks to increase its building’s footprint by close

to 3000 square feet to enhance and prolong that use.

It admits that its adult entertainment facility is aging and its adult entertainers’ dressing room and

bathroom do not meet modern standards. It wants new and additional office space to facilitate its

adult entertainment business, to provide larger and more upscale dressing rooms for its adultentertainers, and to offer additional restroom space to its adult entertainment patrons.

This request is completely contrary to the presumption in Section 27-936 that nonconforming

uses are disfavored and will cease over time. Pink Pony wants to enhance its ability to attract

adult entertainment workers and patrons—to extend its viability as an adult entertainment

establishment for another quarter century—through expanding its adult establishment by close to3000 square feet.

The Director interprets Section 27-936 to mean that a 30% increase in floor area would increasethe space available for Pink Pony’s adult entertainment business, its patrons, and its employees

to use, and that such an expansion would increase the degree of nonconformity. That

interpretation is neither arbitrary nor based on an erroneous factual finding. Rather, it isconsistent with the rest of Section 27-936 in that nonconformities may continue only until they

are otherwise removed or cease. To allow the expansion of a twenty-plus-year-old adultP

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Pink Pony argues that the proposed expansion of its adult entertainment building would not

increase the degree of nonconformity for its adult entertainment business because it would not

increase the existing floor area devoted to adult entertainment, but that claim is wrong becausethe floor area for adult entertainer dressing rooms and restrooms is necessary for the adult

entertainment use to which the entire building is devoted. Pink Pony contends that any

nonconformity is limited to the public areas where dancing and alcohol service occur, but that isequally wrong because the entire building services the adult entertainment use—the only land

use occurring on the property. Pink Pony also argues that its proposed alterations were approved

by DeKalb County just before the City of Brookhaven was incorporated. None of Pink Pony’sarguments are sufficient to reverse the Director’s interpretation.

With respect to the expansion of floor area, Pink Pony suggests that the dressing area for itsdancers does not count as part of its adult business use. That is like a theater discounting its need

for a back stage area, a TV studio ignoring green rooms, or a retailer saying that its stockroom is

not part of its store. If the dressing area is not part of the adult business, why would an adult

business choose to expand it? It is directly related to an expansion of the use of the property asan adult business; if this were not the case, Pink Pony would simply remodel (not increase the

size of) its current dressing rooms.

Pink Pony also objects to the common-sense observation that a larger dressing area for dancers

would allow more dancers to be at the club at one time. It does not dispute that truism, but

instead offers to stipulate that it would not hire more dancers as a condition on the landdisturbance permit. But that is a red herring, because even if the total number of dancers on the

Pink Pony’s payroll (or independent contractor list) stays the same, a larger dressing room would

allow more to work (and perform adult entertainment) at one time. Again, Pink Pony’s requestfor an increase in floor area for adult entertainment dancers, as opposed to a simple remodeling

of the dressing room, belies their argument. Indeed, Pink Pony’s offered stipulation presupposesthat expanding the dressing room for dancers allows for the expansion of the nonconforming

adult entertainment business. Furthermore, the expansion of public bathrooms for Pink Pony’s

patrons—who are there for adult entertainment—also expands/enlarges the adult business in a

manner prohibited for a nonconforming use.

Most of Pink Pony’s exhibits concern its licensing and litigation history with DeKalb County and

Pink Pony’s efforts to get County approval to expand its building. Those proceedings are notrelevant here. Under the settlement agreement with DeKalb County, Pink Pony had to get

approval from the DeKalb County Board of Commissioners for any increase of the square

footage of its business. Although DeKalb County voted on Pink Pony’s proposed expansion just before Brookhaven was incorporated, Pink Pony has produced no building permit from DeKalb

County. Further, the vote of DeKalb County does not allow Pink Pony to expand or enlarge itsP

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statute has been interpreted to include governmental contracts as well as ordinances.” (Exh. B,

DeKalb County Superior Court Order at 5.)

The Director’s interpretation of Section 27-936 is correct based on the language of the ordinance

and the facts in Pink Pony’s letter. Pink Pony claimed it was a nonconforming use that proposed

to expand its floor area by close to 3000 square feet. It admitted that the expansion wouldincrease the dressing room/toilet facilities for its dancers, the very dancers that make Pink Pony

an adult business. It is consistent with the material facts, and it certainly is not arbitrary, to

conclude that such an expansion would increase the degree to which Pink Pony can offer adultentertainment. Thus, there is no basis to reverse the Director’s interpretation.

CONCLUSION

Pink Pony wants to enlarge, by close to 3000 square feet, its purported nonconforming adult

entertainment use to provide improved facilities for employees and patrons. But this is preciselywhat Section 27-936 prohibits a nonconforming use from doing. Because no adult business was

permitted in the C-1 zoning district under the 1990 DeKalb County zoning ordinance when Pink

Pony opened, Pink Pony cannot show that it was lawful at its inception; therefore, Section 27-

936 has no application to Pink Pony. Even if Pink Pony could meet its burden of proving that itis a lawful nonconforming adult entertainment use, the Board should affirm the Director’s

interpretation of Section 27-936.

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Exhibit A

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I 27-438 CODE OF DEKALB COUNTY

g) Buffers. A buffer of at least fifty (50) feet

shall be provided when the Jot adjoins an R, RM

or MHP district. ./

(h) Minimum residential floor area. The min·

imum floor area of a residence shall be one thou

sand 1 ,000) square feet.

(Code 1976, § 11-2244)

Sees. 27- 39-27-455. Reserved.

IVISION 17. LOCAL COMMERCIAL

DISTRICT, C-1

Sec. 27-456. Scope.

The provisions of this division apply to the C-1

district.

Sec. 27-457. Permitted uses.

Permitted uses are as follows:

(1) Accessory uses and structures:

a. Accessory uses and structures n i-

dental tc an permitted use.

b. Signs and outdoor advertising in accordance with the provisions of this

chapter and chapter 21.

(2) Agriculture and forestry:

a. Commercial greenhouse or plant

nursery.

b. Temporary or portable sawmill.

(3) nimal care facilities:

a. Animal hospitals and veterinary

clinics.b. Boarding and breeding kennels.

c. Dog grooming shops.

Automotive boat and trailer sales

e. Autcmobile, truck and trailer lease and

rentals as an accessory t an automo-

bile service station.

f. Automobile wash service.

g. Boat sales.

h. Minor autcmobile repair and mainte

nance shops.

i. Retail autcmobile parts and tire store.

J. Trailer salesroom and sales Jot.

(5) Building materials and farm equipment·

a. Electrical supply stores.

b. Farm equipment.

c. Lumber, hardware and other building

material establishments.

d. Paint, glass and wallpaper stores.

e. Plumbing and heating equipment

dealers.

6) Commercial recreation nd entertainment·

a. Amusement, recreational and enter-

tainment activities carried on wholly

within a permanent ly enclosed

building.

b. Art shows, carnival rides and special

events of community interest for pe

riods not to exceed fourteen (14) days.

c. Tennis centers, clubs and facilities.

(7) Communication:

a. Radio and television broadcasting sta

tions.

b. Radio, television and other communi

cation transmission towers.

c. Point-to-point communication agencies.

d. Telephonebusiness

office.

8) Community facilities:

a. Assembly halls.

b. Cultural facilities.

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ZONING

9) Constructwn contractors:

a. General building contractors.b. Heavy construction c;ontractors.

c. Special trade c o n t r ~10) Dwellings:

a. Mobile home, as an accessory structure to be used for security purposes.

b. High-rise apartments as part of a

mixed-use development on sites of ten

10) or more acres where the gross floor

area of the apartment does not exceedfifty 50) percent of the total gross floor

area on the property.

11) Eating nd drinking places:

a Drive in restaurants.

b. Restaurants.

c. Restaurants when accessory to a motel.

12) Educatwn:

a. Commercial vocational schools.

b. Day nurseries and kindergartens.

c. Private or parochial elementary and

high schools.

d. Public schools.

e. Specialized nondegree schools.

13) Lodging·

a. Hotel.

b. Motel.

14) Religwus facilities:

a. Churches and other places of worship

and accessory facilities.

b. Religious meetings.

15) Retail trade:

a. Accessory retail sales and .servires.

b. Apparel and accessory stores.

c. Book and ststionery stores.

I 27-457

j. Furniture, home furnishings and equipment stores.

k General merchandise stores.

l Gift novel ty and souvenir shops.

m. Hobby toy and game shops.

n. Jewelry stores.

o. News dealers and newsstands.

p. Planned shopping developments and

centers.

q. Retail liquor stores.

r. Retail liquor stores as accessory uses

to hotels motels and high-rise officebuildings.

.. Specialized merchandise stores.

t. Sporting goods stores and bicycle sales.

u. Transient or temporary retail and

wholesale sale of goods and merchan

dise not produced or processed on the

premises.

16) Services personaL·

a. Barbershops and beauty shops.

b. Business service establishments.

c.. Coin-operated laundries and dry

cleaning.

d. Dry-cleaning plants.

e. Funeral homes.

f Laundry and dry-cleaning pickup sta

tions.g. Linen and diaper services garment

pressing, alteration and repair.

h. Miscellaneous personal services.

i. Photographic studios.

j. Shoe repair and shoeshine parlors.

k. Personal care home congregate.

L Personal care home family.

m. Personal care home group.

17) Buvi<:es, repair:

.a. Home appliance repair and related ser-

vice.

b. Jewelry repair.

c. Light repair services.

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c. Offices of health service practitioners.

d. Other health services not elsewhere

classified.

e. Pharmacies.

f. Private ambulance and emergency

medical service.

19) Services legaL·

a. Legal service offices.

20) Services other:

a. Accounting, auditing and bookkeeping

o f f i c ~ sb. Engineering and architectural offices.

c. Finance real estate insurance offices

and financial institutions.

d. General office uses as part of a planned

office center.

e. Other service business and profes·sional offices.

21) Transportatwn and storage:

a. Automobile parking.

b. us stations for freight.

c. Landing areas for rotary wing aircraft.

d. Railroad stations for freight.

e. Taxi stands and dispatching agencies.

f. Stations and terminals for bus and railpassenger service.

22) Wholesale trade:

a. Wholesale sales offices.

Code 1976, § 11-2201)

Sec. 27-458. Development standards.

a) inimum lot area The minimum lot area

shall be twenty thousand 20,000) square feet.

b) inimum lot width. The minimum Jot width

shall be one hundred 100) feet.

e) aximum height of structures. The max

imum height of any structure shall be five 5) stories. Buildings in excess of five 5) stories shall be

permitted only upon approval of a height vari

ance by the board of commissioners. Buildings in

excess of three 3) stories must be approved by the

county to ensure adequacy of fire protection faci).

ities and service.

D inimum spacing. A side yard of at least

twenty 20) feet between buildings shall be provided, except that the buffer requirements shall

apply i the Jot adjoins an R, RM or MHP district.

g) Buffers. A buffer of at least fifty 50) feet

shall be provided when the Jot adjoins an R, RM

or MHP district.

h) inimum floor area. The m1mmum floor

area provided for high-rise apartments shall be as

follows:

1) For a one-bedroom unit six hundred fifty

650) square feet.

2) For a two-bedroom unit eight hundred 800)

square feet.

3) For a unit containing three 3) or more bed

rooms, one thousand 1,000) square feet.

Notwithstanding the above minimum floor area

requirements a maximum of twenty 20) percent

of the total units constructed in any single devel

opment of more than one 1) building may be one

bedroom units having floor areas of less than six

hundred fifty 650) square feet but not Jess than a

minimum floor area of five hundred twenty 520)

square feet.

Code 1976, § 11-2202)

Sees. 27-459-27-470. Reserved.

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ZONING 27-593

(c) Lumber hardware and other building mate

rial establishments. The following provisions applyto lumber, hardware and oth7,r building material

establishments: Z

1) In a C-1 district, there shall be no outdoor

storage of materials, supplies, equipment

or vehicles.

2) In C-2 and M districts, outdoor storage shall

be at least fifty 50) feet from the future

street right-of-way line.d) P p i n ~ glnss and wallpaper stores. The fol

lowing provisions apply to paint, glass and wa11-'aper stores:

1) In an NS or C-1 district, there shaJJ be no

outdoor storage of materials, supplies,

equipment or vehicles.

2) In C-2 and M districts, outdoor storage shall


street right-of-way Jines.

(e) Plumbing and heating equipment dealers.The foJJowing provisions apply to plumbing and

heating equipment dealers:

1) In a C-1 district, there shaJJ be no outdoor

storage of materials, supplies, equipment

or vehicles.

2) In C-2 and M districts, outdoor storage shaJJ


street right-of-way lines.Code 1976, § 11-2251 E))

Sec. 27-593. Commercial recreation an d en -

tertainment.

a) m u s e m e n ~ recreatwnal and entertainmentactivities carried on wholly within a permanently

enclosed building. This subsection applies to

amusement, recreational and entertainment ac

tivities carried on whoJJy within a permanently

(c) a m i v a ~ rodeo horse show shooting or ath·

letice v e n ~

community fair. The foJJowing provisions apply to carnivals, rodeos, horse shows,

shooting or athletic events, community fairs orother events of public interest for periods not toexceed fourteen 14) days:

1) AJJ buildings and structures associated with

this use shaJJ be set back not less than two

hundred 200) feet from any property line.

2) This use shaJJ not be permitted within fivehundred 500) feet of the boundary of an R

or RM district.

d) Coliseums or stadiums. This subsection ap

plies to coliseums or stadiums.

e) Drive-in theatre. The foJJowing provisions

apply to drive-in theatres:

(1) The theatre screen, projection booth or other

buildings shaJJ be set back not Jess than

fifty 50) feet from any property line.

2) Driving and parking areas shall be paved.

3) Ingress and egress from a public street shall

be so designed and constructed as to pro

vide for safe traffic movement.

4) Central loudspeakers shaJJ be prohibited.

5) The theatre screen shaJJ not be visible from

an expressway or major thoroughfare.

6) The theatre shaJJ be enclosed by a waJJ or

fence, of adequate height to screen the

parking area from view of adjacent prop

erty, and a buffer area ten lO)feet in depth.

f) Fairgrounds and amusement parks. The fol

lowing provisions apply to fairgrounds and amuse

ment parks:

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g) olf or baseball driving ranges. The fol-

lowing provisions apply to golf or baseball drivingranges:

1) The facility shall be enclosed by a wall orfence and buffer area ten (lO).feet in depth

to screen a ljacent property.

2) Central loudspeakers shall be prohibited.

3) Lighting shall be established in such a way

that a ljacent properties and roadways arenot adversely affected and that no direct

light is cilst upon a ljacent properties and

roadways.

h) Miniature golfcourses. The following provi

sions apply to miniature golf courses:

1) The facility shall be enclosed by a wall orfence and buffer area ten 10) feet in depth

to screen the adjacent property.



that a ljacent properties and roadways are

not adversely affected and that no directlight is cast upon a£\jacent properties and

roadways.

(i) Par-3 golf courses. The following provisionsapply to par-3 golf courses:

1) The facility shall be enclosed by a wall or

fence and buffer area ten 10) feet in depth

to screen a ljacent property.



that adjacent properties and roadways arenot adversely affected and that no directlight is cast upon adjacent properties and

roadways.

j) Recreation grounds and facilities. The fol-


that adjacent properties and roadways are

not adversely affected and that no direct

light is cast upon adjacent properties and

roadways.

k) Tennis centers clubs and facilities. The fol-

lowing provisions apply to tennis centers, clubsand facilities:

1) All buildings and structures associated withthe use shall be set back not less than fifty

50) feet from property zoned for R or RMpurposes.



that a ljacent properties and roadways are

not adversely affected and that no directlight is cast upon adjacent properties an_d

roadways.

O Go-cart concessions. The following provisions

apply to go-cart concessions:

1) All buildings and structures associated with

this use shall be set back not less than two

hundred 200) feet from any property line.

2) This use shall not be permitted within fivehundred 500) feet of the boundary of an Ror R district.

3) The facility shall be enclosed by a wall orsolid fence of not less than six 6) feet in

height.

4) The maximum motor size of any cart usedshall not exceed five 5) horsepower.

5) The maximum area occupied by the facility

shall not exceed forty thousand 40,000)

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r p ~ nIN THE SUPEIDOR COURT OF DEKALB O ~ ~

STATE OF GEORGIA

TROP, INC. d/b/a Pink Pony and the

JEG FAMILY TRUST,

Petitioner,

vs.

CITY OF BROOKHAVEN, GEORGIA,

A municipal corporation; J. MAX DAVIS

in his official capacity as Mayor of Brookhaven;REBECCA CHASE WILLIAMS, JIM EYRE,

BATES MATTISON, and JOE GEBBIA

in their Official capacities as City Council

Members of Brookhaven and SUSAN HIOTT

in her Official capacity s City Clerk,

Respondents.

2 l3DEC23 Pr12=1

Civil Action No: 13CV5593-1

ORDER GRANTING DEFENDANTS MOTION TO DISMISS

AND/OR FOR JUDGMENT ON THE PLEADINGS

Before the Court is the Defendants Motion to Dismiss and/or for Judgment on the Pleadings filed

by the City ofBrookhaven, Georgia, s well s its Mayor, City Council Members, and City Clerk, who

were named s defendants in their official capacities. Defendants seek judgment s a matter oflaw on the

fifteen counts raised by Plaintiffs Trop, Inc. d/b/a Pink Pony and the JEG Family Trust. The parties

briefed the motion fully, and they appeared by counsel on August 1 for oral argument. Based upon the

pleadings and exhibits incorporated into the pleadings, and after considering the parties arguments, the

Court GRANTS Defendants motion because all of Plaintiffs claims tur upon the application of legal

principles and are properly resolved s a matter oflaw for Defendants.

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Exhibit B

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resolve the claim without considering those documents. Under O.C.G.A. § 9-11-lO(c), [a] copy of any

written instrument which is an exhibit to a pleading is a part thereof for all purposes. While some of

Plaintiffs' claims can be resolved by reviewing only the Complaint and the law governing those claims,

others require evaluation of the pleadings of both parties and the attachment to those pleadings. Because

the Court has considered the pleadings filed by both parties, as well as their attachments, the Court

resolves Defendants' motion as one for judgment on the pleadings.

Judgment on the pleadings should be granted where the undisputed facts contained in the

pleadings establish that the movant is entitled to judgment as a matter oflaw. Novare Group, Inc. v.

Sarif, 290 Ga. 186, 191 (2011). While well-pleaded material facts are taken as true, the Court is not

required to adopt a party's legal conclusions based on those facts. Id. Although such motion is, by

definition, limited to the pleadings, a trial court may also consider exhibits that have been incorporated

into the pleadings. Printis v Bankers Life Ins. Co., Inc., 256 Ga. App. 266, 266 (2002); see also Shreve

v World Championship Wrestling, 216 Ga. App. 387, 388 (1995) ( This document was incorporated by

reference in the answer and was attached as an exhibit, it was part of the pleading (O.C.G.A. § 9-11-

lO(c)) and properly could be considered by the court below. ).

Although a trial court may review documents attached as exhibits and incorporated into a

pleading on a motion for judgment on the pleadings, the Defendants are only entitled to judgment on the

pleadings if there is a complete failure by the Plaintiffs to make out a cause of action. Prentis v Bankers

Life Ins. Co. Inc., 256 Ga App. 266 (2002).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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including the Pink Pony, entered into a Settlement and Release Agreement with DeKalb County. The

establishments dismissed pending damages actions against DeKalb County in exchange for the right to

continue their operations for a term of eight years. The establishments also agreed to pay an increased,

graduated licensing fee as consideration for the Agreement. See Plaintiffs' Complaint, Exhibit A .

In May 2007, the eight remaining DeKalb County adult entertainment establishments entered into

the First Amended and Extended Settlement and Release Agreement, which provided, in salient part, that

the original Agreement would be extended for a minimum of fifteen years with an option to renew for an

additional ten years. The Agreement was expressly binding upon any governmental body to which the

County transfers regulatory control over matters therein; expressly including any municipality which

obtains jurisdiction by incorporation or annexation. As consider for the Amended Agreement, the Pink

Pony and the other adult entertainment establishments agreed to pay an increased, graduated licensing fee

in excess of $100,000 per year, per club. See Plaintiffs' Complaint, Exhibit B

Until recently, the Pink Pony was within the boundaries of unincorporated DeKalb County;

however, that section of the County was incorporated into the new City ofBrookhaven in December

2012. At the time ofthe incorporation, the Pink Pony had a valid alcohol license, business license, and

adult entertainment license from DeKalb County for 2012 and it had renewed its 2013 alcohol license

from DeKalb County. The new City adopted a Sexually Oriented Business Ordinance ( SOB

Ordinance ) on January 14,2013 that, inter alia requires licensure of SOBs, prohibits appearing in a

state of nudity and prohibits the possession, use, or consumption of alcoholic beverages on the premises

of an SOB after January 2, 2014.

Adult Cabarets, such as the Pink Pony, are considered sexually oriented businesses pursuant D e K a l b S u p . C o u r t O r d e r ( 1 1 4 7 : Z B A 1 3 - 2 7 : J E G F a m i l y


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effectively prohibits employees from appearing without at least a G-string and pasties. No alcohol may

be possessed, used, or consumed on the premises of a business where employees appear semi-nude and it

also makes it ulawful to establish, operate, or cause to be operated a sexually oriented business within

100 feet of another sexually oriented business within 300 feet of a residential district, place of worship

park or public library. SOB, Sections 15-416(d); 15-419(a)-(b).

n response to the incorporation of the new City and subsequent passage or new ordinances,

Plaintiffs filed a fifteen-count lawsuit seeking declaratory and injm1ctive relief that would allow Pink

Pony to continue operating with nudity and alcohoL One count seeks to undo the incorporation of

Brookhaven, but most of the counts allege constitutional challenges against Brookhaven ordinances or

assert that Plaintiffs are shielded from Brookhaven regulations by an agreement Plaintiffs had with

DeKalb County (Exhibit B to Complaint, hereafter DeKalb County Agreement or Agreement ).

Upon review of the voluminous number of pleadings and evidence, as well as the argumentation

presented at the hearing on August 1 2013, this Court hereby GRANTS Defendants' motion for the

following reasons:

COUNT REGULATORY TAKING/INVERSE CONDEMNATION

Count I alleges that Brookhaven's bans on nudity and alcohol in sexually oriented businesses

result in the regulatory taking/inverse condemnation of Plaintiffs' claimed right to offer nude dancing and

alcohol at Pink Pony. Resolution of this claim is controlled by the application oflegal principles, so it is

proper to resolve Count I by judgment on the pleadings .

. Plaintiffs' regulatory taking/inverse condemnation claim, concerning their claimed right to offer

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governmental interest. Id. at 697 (rejecting aduJt businesses' claim of a vested right to continue offering

alcohol despite newly-enacted ban on alcohol in such establishments). Numerous Georgia appellate (as

well as federal appellate) decisions uphold ordinances prohibiting alcohol with adult entertainment. See,

~ Goldrush II v. City of Marietta, 267 Ga. 683 ( 1997); Quetgles v. City of Columbus, 268 Ga. 619

(1997); Flanigan's Enters., Inc. of Georgia v. Fulton County, 596 F.3d 1265 (11th Cir. 2010).

Their reliance on the Agreement fails for several reasons. First and foremost, the DeKalb County

Agreement is ultra vires because it violates O.C.G.A. § 36-30-3(a), which forbids local government

councils from binding themselves or successor councils so as to prevent them from legislating freely. This

statute has been interpreted to include governmental contracts as well as ordinances. City ofMcDonough

v. CamJ?bell, 289 Ga. 216, 217 (2011) ( To the extent that a governmental contract impinges on a

municipal ity's ability to legislate freely, the contract is ultra vires and void. ); Madden v. Bellew, 260 Ga.

530, 531 (1990) (noting same limitation applies to counties). According to Plaintiffs, the DeKalb County

Agreement allows the County to legislate in all matters relating to the regulation of Adult Clubs with the

exception o he specific exclusions set forth elsewhere in the greement such that the County was not

binding the hands of future bodies to otherwise legislate freely in connection with Adult Entertainment ..

. . (Plaintiffs' Response Brief at 14) (emphasis added). In other words, Plaintiffs concede that the

DeKalb County Agreement prevents future bodies from legislating freely in the areas of adult business

regulation covered by the Agreement. This is a textbook example of what O.C.G.A § 36-30-3(a) forbids.

Brookhaven did not exist when DeKalb County reached the Agreement with the Adult Clubs, so

Defendants could not have been party to the Agreement. Plaintiffs provide no authority to support their

contention that Brookhaven's ability to regulate sexually oriented businesses under its jurisdiction can be D e K a l b S u p . C o u r t O r d e r ( 1 1 4 7 : Z B A 1 3 - 2 7 : J E G F a m i l y


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Plaintiffs have no vested right to continue offering nudity and alcohol in their establishment, Plaintiffs

have no legal basis to pursue a regulatory taking/inverse condemnation claim against Brookhaven's bans

on alcohol and nudity in sexually oriented businesses.

Finally, the history of DeKalb County allowing Plaintiffs to offer alcohol and nudity pursuant to

the Agreement does not help Plaintiffs here. DeKalb Cmmty arguably ratified the Agreement for a new

quarterly term each time it accepted a quarterly payment from Plaintiffs, but that did not give Plaintiffs

any vested right against the City o Brookhaven s laws. Indeed, under Buckhorn Ventures, LLC v.

Forsyth County, 262 Ga. App. 299 (2003), DeKalb County is free to stop ratifying the ultra vires

Agreement with its adult clubs. See DeKalb Countyv. Ga. Paperstock Co., 226 Ga. 369,371-72 (1970)

(holding county's agreement to provide waste com1gated boxes to company was exercise of legislative

function and would not be enforceable beyond the year in which it was made without the continued

approval of such board of commissioners evidenced by a formal resolution passed by that body, or by the

ratification of the contract evidenced by the board accepting the benefits thereof during such subsequent

years ). Because Plaintiffs have no vested rights to assert against the County, it then follows that they

have none to assert against Brookhaven.

Defendants are therefore entitled to judgment on the pleadings as to Count I

COUNT IMPAIRMJENT OF OBLIGATIONS OF CONTRACT

Count II alleges that Brookhaven's bans on nudity and alcohol in sexually oriented businesses

unconstitutionally impairs contractual rights that Plaintiffs have under the DeKalb County Agreement.

Like Count I this claim turns on legal principles, and it fails for much the same reasons.



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Marietta, 267 Ga 683 (1997); Quetgles v CityofCo1umbus, 268 Ga. 619 (1997); Flanigan's Enters., Inc.

of Georgia v Fulton County, 596 F.3d 1265 (11th Cir. 2010).

Even if the DeKalb County Agreement were not ultra vires, Brookhaven's SOB Code could not

impair the contractual rights that Plaintiffs have under the Agreement. That Agreement involves dult

Club payments to DeKalb County in exchange for non-enforcement of ounty regulations. Plaintiffs' may

continue to pay DeKalb Cmmty 100,000 per year so that the County will not enforce Cmmty adult

business and alcohol regulations against Pink Pony. Brookhaven's SOB Code does not interfere with that

arrangement. But the City of Brookhaven was not party to the DeKalb County Agreement, and paying

DeKalb County could never insulate Plaintiffs from Brookhaven's regulations.

Plaintiffs' pleadings and argument fail to meet the legal threshold for pursuing an

unconstitutional impairment of contract claim. Count II fails as a matter of law, and Defendants are

entitled to judgment on the pleadings.

COUNT U VIOLATION OF CITY CH RTER

In Count III Plaintiffs contend that the application of Brookhaven ordinances to Plaintiffs, which

they argue would make Pink Pony operate differently than when it was under DeKalb County's

jurisdiction, violates section 6.03 of the Brookhaven Charter. Plaintiffs do not further explain tllis claim,

nor did they address it in their response to Defendants' motion.

Section 6.03 of the Brookhaven Charter is a page and a half long with seven subparts that deal

with the transition of authority from DeKalb Cmmty to the City of Brookhaven. Defendants' mot ion

suggests that Plaintiffs may rely on subsection (e), which states that DeKalb County ordinances remain



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or any pending prosecution of a violation of a DeKalb County ordinance. The Brookhaven ordinances do

not abate any judicial proceedings or pending prosecutions under a DeKalb County ordinance.

Whether the City's application of its ordinances violates the City charter is a legal question.

Nothing in Section 6.03 prevents Brookhaven from applying its ordinances to Plaintiffs. Defendants are

therefore entitled to judgment on the pleadings on Count III.

COUNT IV FREE SPEECH PRIOR RESTRAINT

Count IV contends that the SOB Code, Alcohol Code, and Zoning Code are unconstitutional prior

restraints on speech. This challenge concerns the facial validity of the ordinances, posing legal questions

that are proper to resolve by a judgment on the pleadings.

The term prior restraint is used 'to describe administrative and judicial orders forbidding certain

communications when issued in advance of the time that such communications are to occur.' M Nimmer,

Nimmer on Freedom of Speech§ 4.03, p. 4 14 (1984) (emphasis added). Alexander v United States,

509 U.S. 544, 550 (1993). To challenge a law as an unconstitutional prior restraint, [t]he law must have a

close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and

substantial threat ofthe identified censorship risks. City of Lakewood v Plain Dealer Pub. Co., 486 U.S.

750, 759 (1988). Laws that are not aimed at conduct commonly associated with expression and do not

permit licensing determinations to be made on the basis of ongoing expression or the words about to be

spoken, carry with them little danger of censorship, and thus are not subject to facial challenges on prior

restraint grounds. Id.

As an initial matter, Plaintiffs label Brookhaven's Zoning Code a prior restraint, but they do not



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Unified Gov t of Athens-Clarke County, 285 Ga. 637, 638 (2009) (holding that plaintiffs lacked standing

to challenge noise ordinance on free speech grounds where ordinance had not been enforced against

them).

With respect to the SOB Code and its licensing requirement for sexually oriented businesses, it is

well-settled that [a] city may enact an ordinance, for legitimate purposes, requiring those who would

exercise their freedom of speech to obtain a license in advance. Airport Book Store, Inc. v. Jackson, 242

Ga. 214,220 (1978). Licensing sexually oriented businesses is constitutional provided that the ordinance:

(1) avoids unbridled discretion in the licensing decision, (2) requires the licensing decision within a

specified and reasonable period oftime during which the status quo is maintained, and (3) provides the

possibility of prompt judicial review in the event that the license is erroneously denied. City of Littleton

v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 786 (2004) (internal citation omitted).

Cmmt IV does not specify any particular part of the SOB Code that Plaintiffs allege to be a prior

restraint, but their brief presents a single prior restraint argument against the SOB Code. According to

Plaintiffs, they are unable to qualify for a Temporary License or a Provisional License because they

are not a preexisting sexually oriented business. Plaintiffs assume that an applicant must have a

Temporary or Provisional license to qualify for an annual SOB license. Their premise is flawed, and so is

their reading ofthe SOB Code.

Under§ 15-403 of the SOB Code, Brookhaven has 30 days

to process a license application, and

the City may deny a sexually oriented business license only based upon neutral, nondiscretionary

standards that are unrelated to the content of expression, such as whether the applicant is underage, is in

an improper location, or has been convicted of specified crimes (and then only within the last five years). D e K a l b S u p . C o u r t O r d e r ( 1 1 4 7 : Z B A 1 3 - 2 7 : J E G F a m i l y



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SOB license. The licensing provisions, which are modeled after the ordinance upheld in City of Littleton,

easily satisfy the relevant constitutional standards. City of Littleton v Z.J. Gifts D-4, L.L.C., 541 U.S.

774 (2004); Club S Burlesque, Inc. v City of Carrollton, 265 Ga. 528, 531-32 (1995) (upholding

ordinance with 13 standards for licensure, including one providing for consideration of the health, safety

and welfare of the citizens and preservation of the neighborhoods and concluding that [t]he ordinance

sets forth ascertainable standards which control the City's exercise of its discretion and provide a standard

for determining whether that discretion has been abused. ) As a matter oflaw, Defendants are entitled to

judgment against Plaintiffs' prior restraint challenge to the SOB Code.

Plaintiffs also attack the Alcohol Code, but they lack standing to do so In Granite State Outdoor

Advertising, Inc. v Citv of Roswell, 283 Ga. 417 (2008), recons. denied (Ga. April II, 2008), cert.

denied 555 U.S. 882 (2008), the Georgia Supreme Court held that a billboard company had standing to

challenge only those portions of a city's sign ordinance that had caused it injury, i.e., that had been

enforced against it. See also Manlove v Unified Gov t of Athens-Clarke Cmmty, 285 Ga 637, 638

(2009) ( Whether proceeding under federal law or the law of this state, in order to challenge the

constitutionality of an ordinance on First Amendment grounds, the party before the court must show an

injury in fact. ). Plaintiffs have not applied for a Brookhaven alcohol license, so no provision of the

Alcohol Code has been applied to them.

In sum, Plaintiffs operate a sexually oriented business that is required to be licensed under the

SOB Code; thus, Plaintiffs have standing to challenge the SOB Code. However, that challenge fails as the

SOB Code easily satisfies the standards for licensing ordinances set forth in City of Littleton v Z.J. Gifts

D-4, L.L.C., 541 U.S. 774 (2004). Plaintiffs lack standing to challenge the Zoning Code and Alcohol D e K a l b S u p . C o u r t O r d e r ( 1 1 4 7 : Z

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COUNT V FREE SPEECH- OVERBREADTH

Count V challenges Brookhaven ordinances on facial overbreadth grounds. Whether a law is

lmconstitutionally overbroad is a legal issue that is properly addressed in a judgment on the pleadings.

To sustain a facial overbreadth claim, Plaintiffs must show that a law punishes a 'substantial'

amount of protected free speech, 'judged in relation to the statute's plainly legitimate sweep' . . . .

Virginia v. Hicks, 539 U.S. 113, 118-19 (2003). The facial overbreadth doctrine is an exception to

standing principles and is strong medicine that should be employed only as a last resort. Broadrick v.

Oklahoma, 413 U.S. 601, 613 (1973). The overbreadth of a statute must not only be real but substantial

as well, judged in relation to the statute's plainly legitimate sweep. Id. at 615 (emphasis added). The

claimant must make the substantial overbreadth demonstration from the 'text of [the law] and from

actual fact. ' DA Mortgage v Miami Beach, 486 F.3d 1254, 1270 (11th Cir. 2007) (quoting Hicks, 539 at

122). Finally, an overbreadth claim fails if the law can be narrowly construed. Virginia v. Am.

Booksellers Ass'n, 484 U.S. 383, 397 (1988); Gravely v Bacon, 263 Ga. 203, 206 (1993).

Plaintiffs claim that definitions of nudity, semi-nudity, and specified anatomical areas in

the SOB Code are unconstitutionally overbroad. Their brief also tags six sections (that span twelve pages

of the SOB Code) with the overbreadth label, but Plaintiffs fail to explain how any part is overbroad. This

failure is fatal. t is Plaintiffs' duty, not Defendants' and not this Court's, to state how a law violates the

constitution. In re D.H., 283 Ga. 556, 558 (2008) (noting challenger's duty to specifically show wherein

the statute, or some designated part of it, violates such constitutional provision ).

In any event, Plaintiffs ' overbreadth claim also fails because the SOB Code does not punish any

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by appellate courts. S e e , ~ Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County, 630 F.3d 1346,

1349-50 (11th Cir. 2011) (discussing and upholding the same regulations). But neither definition prohibits

semi-nudity or any speech. As for the tem1 specified anatomical areas, it is not relevant to an adult

cabaret like Plaintiffs' establishment, nor does it punish speech in the adult bookstore context (where the

term does apply).

Plaintiffs also do not allege actual facts to support their overbreadth challenge. As explained

below, numerous appellate courts have upheld ordinances like Brookhaven's as a means of addressing

documented negative secondary effects. As it pertains to this case, the Brookhaven SOB Code regulates

adult cabarets, which are commercial establishments that regularly feature live conduct characterized

by e m i - n u d i t y , ~ ' employees in pasties and G-strings. (Plaintiffs' Exh. 2 at 7.)

Because the SOB Code is narrowly tailored to regulate only those categories of businesses

shown to produce the unwanted secondary effects, it avoids unconstitutional overbreadth. City of

Renton v. Playtime Theatres, Inc., 475 U.S. 41, 52 (1986). The Code does not regulate beyond adult

businesses, and does not punish a substantial amount of actual speech at all, let alone when ')udged in

relationship to its plainly legitimate sweep. Virginia v. Hicks, 539 U.S. 113, 118-19 (2003). Moreover,

because a finding of unconstitutional overbreadth invalidates a law in toto the overbreadth doctrine

creates substantial societal costs when it blocks application of a law to constitutionally unprotected

conduct. Id. at 119. For that reason, a plaintiff must show substantial overbreadth from both the text of the

law and actual fact. Id. Plaintiffs make no such showing here, so their overbreadth challenge to the SOB

Code fails as a matter oflaw. Richland Bookmart, Inc. v. Knox County, 555 F.3d 512, 532 (6th Cir. 2009)

(upholding ordinance substantively identical to Brookhaven's SOB Code against overbreadth claim); D e K a l b S u p .

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labeled as overbroad have been repealed by Ordinance No. 2013-06-09. Definitions of mainstream

performance establislnnent, specified anatomical areas, and specified sexual activities have been

deleted from§ 4-1. Sections 4-50(j), 4-50(k), and 4-51(e) (concerning adult entertainment employees)

have also been deleted, and § 4 1 04 was repealed and replaced. Because § 4-104 as amended applies only

to alcoholic beverage licensees, Plaintiffs are not harmed by and cannot challenge that provision.

Plaintiffs' claims of facial overbreadth do not meet the legal standards for such a claim.

Defendants are entitled to judgment on the pleadings on Count V.

COUNTV FREE SPEECH PARAMOUNT TEST VIOLATIONS

Count VI contends that Brookhaven's ordinances violate free speech protections by failing the

legal standard set forth in Paramount Pictures v. Busbee, 250 Ga. 252 (1982). The ordinances, which

identify and incorporate the judicial decisions and secondary effects reports that support the regulations,

are attached to the pleadings. Full copies ofthe incorporated judicial decisions and secondary effects

reports are also attached to the pleadings, and are a part thereoffor all purposes. O.C.G.A. § § 9-11-10(c).

Because everything to evaluate this claim is either a legal authority or a document that is part of the

pleadings, Colmt VI can be resolved by judgment on the pleadings.

The Georgia Supreme Court, applying the familiar three-part Paramount Pictures test cited in

Plaintiffs' complaint, has repeatedly upheld laws regulating adult entertainment establislnnents, including

laws prohibiting alcohol on the premises of such establislnnents. See, ~ See Parker v. Whitfield

County, 265 Ga. 829, 830 (1995) (upholding ordinance that, inter alia, bans alcohol on adult business

premises because it (1) furthers important government interests, (2) that interest is umelated to the

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Enters., Inc. v. Fulton County, 596 F.3d 1265 (11th Cir. 2010); 5634 East Hillsborough Ave., Inc. v.

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Hillsborough Cmmty, 294 Fed. Appx. 435 (11th Cir. 2008). These cases make clear that Plaintiffs'

Paramount claim fails as a matter of law.

First, under Gravely, Parker, Goldrush II and numerous other cases, Brookhaven's SOB Code

satisfies the first prong of Paramount Pictures because it serves the substantial government interest in

preventing the negative secondary effects of sexually oriented businesses. As adopted, the SOB Code

specifies the numerous secondary effects its regulation are intended to prevent, identifies extensive

judicial authority docmnenting said effects, lists additional evidence demonstrating secondary effects, and

concludes with the City Council's findings and regulatory rationale based on this voluminous legislative

evidence. (Plaintiffs' Exh. 2, at 3-5, SOB Code§ 15-400 (setting forth legislative record and findings).)

Plaintiffs assert that the City lacked a legitimate government interest in prohibiting nude

conduct and regulating semi-nude conduct (i.e., condi1ct by pasties and G-string clad employees) in

sexually oriented businesses, but controlling authority dispels that claim. A city has a substantial

government interest in attempting to preserve the quality of urban life City of Renton v. Playtime

Theatres, Inc., 475 U.S. 41, 50 (1986). The reduction of criminal activity and prevention of the

deterioration of neighborhoods are important government interests Discotheque v. City Council of

Augusta, 264 Ga. 623, 624 (1994). The city's desire to preserve the quality of urban life and its attempt

to reduce crime and prevent neighborhood deterioration by separating alcohol from adult entertainment

are important government interests unrelated to the suppression of speech. Goldrush II, 267 Ga. at 692.

Second, [a n ordinance designed to combat the undesirable secondary effects of sexually explicit

businesses is content-neutral. Goldrush II 267 Ga. at 690. Plaintiffs argue that the SOB Code, with its D e K a l b S u p .

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rejected appellant's contention that an ordinance regulating adult entertainment establishments, such as

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the instant ordinance, is not content-neutral. ); Goldrush II, 267 Ga. at 692 ( Judicial inquiry into

legislative motives or purposes is a 'hazardous matter,' for what motivates one legislator to make a

comment about a law is not necessarily what motivates fellow legislators to enact the law. ); City of Erie

v Pap s A.M., 529 U.S. 277 (2000) (upholding nudity ban and observing that the governmental interest

in combating prostitution and other criminal activity is not at all inherently related to expression )

(internal citation and quotation marks omitted).

Third, the SOB Code is sufficiently narrowly tailored because it is limited to sexually oriented

businesses, the types of establishments associated with the negative secondary effects identified in the

ordinance's extensive legislative record. Goldrush II, 267 Ga at 692-93; Gravely v Bacon, 263 Ga. 203,

207 (1993); see alsoBen s

Bar, Inc.v

Villageof

Somerset, 316 F.3d 702,727-28 (7th Cir. 2003)

(holding that, as a practical matter, a complete ban of alcohol on the premises of adult entertainment

establishments is the on y way the Village can advance its substantial interest in combating the

secondary effects resulting from the combination of nude and semi-nude dancing and alcohol

consumption ) (emphasis in original). Similarly, the ordinance's ban on nudity (while allowing semi

nudity, i.e., pasties and a G-string) is narrowly tailored. Barnes v Glen Theatre, Inc., 501 U.S. 560 (1991)

(holding that pasties and G-string requirement is narrowly tailored); City of Erie v Pap's A.M., 529 U.S.

277 (2000) (same); Daytona Grand, Inc. v City of Daytona Beach, 490 F.3d 860, 886 (11th Cir. 2007)

(holding that both the requirement that dancers wear G-strings and pasties in all adult theaters, and the

additional requirement of more covering within 500 feet of alcohol establishments, are narrowly

tailored). D e K a l b S u p .

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Jahannes v Mitchell, 220 Ga. App. 102, 103-04 (1996) (holding it improper to allege entirely different

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breach of contract claim as the one pleaded in complaint), the Court will address Plaintiffs' additional

arguments because they do not change resolution of this claim.

First, Plaintiffs contend that Brookhaven's pasties and G-string requirement in alcohol-free

sexually oriented businesses is unprecedented and contrary to Georgia law. To the contrary, in Barnes v.

Glen Theatre, Inc., 501 U.S. 560 (1991), the U.S. Supreme Court upheld a state nudity prohibition as

applied to an adult bookstore that did not serve alcohol. The Georgia Supreme Court, in published

decisions, has repeatedly cited Barnes in rejecting free speech claims brought under the U.S. and Georgia

constitutions. S e e , ~ Gravely v Bacon, 263 Ga. 203, 205 (1993); S.J.T., Inc. v Richmond County, 263

Ga. 267,268 (1993). Similarly, in City ofErie v Pap s A.M., 529 U.S. 277 (2000), the U.S. Supreme

Court upheld a local ordinance prohibiting nudity in places open to the public, without regardto

the

presence of alcohol. The Georgia Supreme Court cited City of Erie in rejecting an adult business's free

speech claims. I.D.K., Inc. v Ferdinand, 277 Ga 548 (2004). And of course, Georgia appellate courts

have repeatedly cited its prior decisions with approval. S e e , ~ Goldmsh II, 267 Ga at 687, 693 (citing

Gravely and S.J.T.).

Moreover, state and federal appellate courts have repeatedly upheld ordinances substantively

identical to the SOB Code, which prohibits both live nudity and alcohol on the premises of sexually

oriented businesses. Peek-A-Boci Lounge v. Manatee County, 630 F.3d 1346, 1350 (11th Cir. 2011);

Daytona Grand, Inc. v City of Daytona Beach, 490 F.3d 860 (11th Cir. 2007); Richland Bookmait, Inc.

v Knox County, 555 F.3d 512 (6th Cir. 2009); Ben s Bar, Inc. v Village of Somerset, 316 F.3d 702,706

(7th Cir. 2003); Ocello et al. v Koster, Missouri Attorney General, 354 S.W.3d 187 (Mo. 2011) (bane); D e K a l b S u p .

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i a n c e t o

reviewed a statewide ban on the displaying or simulation on [alcohol] licensed premises of certain sexual

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acts, the touching or caressing of particular body parts, and partial or total nudity. 259 Ga. at 702.

Because the statute applied at non-sexually oriented business venues (i.e., museums, opera houses,

mainstream theaters, etc.) where it would not further the governmental interest (preventing illegal activity

associated with nude dancing and alcohol establishments), the Court held that it was not narrowly

tailored. Id. at 703-04. In Great Amer ican Dream, the Court was not even addressing a nudity ban, and

merely held it was error to apply the rational basis test when evaluating free speech claims. 290 Ga. at

751.

t is telling that Plaintiffs do not cite Gravely v. Bacon for their nudity cannot be regulated

argument. There, the Georgia Supreme Court cited Barnes and upheld an ordinance as a

carefully and nar rowly drawn regulatory scheme which makes appropriate distinctionsbetween public and private behavior and which impacts only those modes of expression

which, in the experience of local governments, tend to be the focal points of negative

effects such as increased crime, [and therefore passes] constitutional muster

notwithstanding some restriction of protected expression.

Gravely, 263 Ga 203, 205 (1993).

Here, the e m n m s pasties and G-string requirement applies only in sexually oriented

businesses, i.e., commercial establishments open to the public that regularly feature sexually oriented

entertainment. The on-point case law and the legislative record cited in the ordinance demonstrates that

such establishments, in the experience oflocal governments, tend to be the focal points of negative

effects including crime and illicit sexual behavior. The ordinance requires covering of only some of

those parts ofthe human body associated with sexuality. S.J.T., 263 Ga. at 269. The minimal covering

serves the City's interests in preventing illicit sexual behavior involving the covered body parts, and the

D e K a l b S u p .

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businesses is a valid conduct regulation with only an incidental e f f ~ t on erotic dancing that passes muster

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under the state and federal constitutions.

Second, Plaintiffs' effort to describe the SOB Code as content-based to gamer the application of

strict scmtiny is unavailing. An ordinance designed to combat the undesirable secondary effects of

sexually explicit businesses is content-neutral. Goldmsh II v. City of Marietta, 267 Ga. 683, 690 (1997)

(citing Citv ofRenton v. Playtime Theatres, Inc. 475 U.S. 41, 49 (1986) and Chambers v. Peach County,

266 Ga. 318 (1996)). The City's rationale and findings set forth in SOB Code§ 15-400 show that the

regulations are content-neutral because they target the adverse secondary effects documented in the

reports, affidavits, and judicial decisions cited in the legislative record (see Answer Exhs. 3 4).

Plaintiffs also wrongly assert that Brookhaven regulations ban all expressive nudity and semi-

nudity.In

tmth, the nudity ban in the SOB Code applies only in sexually oriented businesses, not

everywhere in the City. (Plaintiffs' Exh. 2 § 15-416(a).) The nudity regulation in the Alcohol

Amendment bans nudity in alcohol establishments, but not in venues primarily devoted to performances

of serious value. (Plaintiffs' Exh. 5, Sec. 7 (enacting§ 4-104(c)( 4).) As for semi-nudity, that conduct is

explicitly allowed by sexually oriented business employees. (Plaintiffs' Exh. 2, § 15-416(b).)

Plaintiffs also offer a contrived reading of the SOB licensing provisions to assert that the City

prevents any new applicant, including Pink Pony, from obtaining a license. They essentially contend

that the De Facto Temporary License in§ 15-415(a) and the separate Temporary License in§ 15-

403(a) are prerequisites for seeking and obtaining an annual sexually oriented business license under

§ 15-403. But that is incorrect. The e Facto Temporary License granted a 120-day grace period from the

effective date of the ordinance for establishments to start complying with SOB licensing requirements; D e K a l b S u p .

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§ 15-403(a)(l)-(7) is not met. And none of those standards for the annual license requires an applicant to

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be preexisting or to first obtain a temporary license.

Third, Plaintiffs' brief says little of the Paramount Pictures test which the Georgia Supreme

Court has applied time and time again in upholding adult business regulations and instead relies upon

the least restrictive means test mentioned in Grady v Unified Government of Athens-Clarke County, 289

Ga 726 (2011). They ignore, however, the grave doubts expressed by the Georgia Supreme Court

concerning whether the Georgia Constitution provides greater protection for adult entertainment than the

First Amendment. Grady itself (a noise ordinance, not adult business, case) took pains to show that

previous Georgia Supreme Court statements suggesting greater free-speech protection in the state

constitution were dictum, id at 729, gratuitous, id. at 730, and/or supported by no authority or

reasoning. Id

More recently, in an adult business case, the Georgia Supreme Court rejected Plaintiffs' argument

that regulations having an incidental effect on speech must employ the least restrictive means. Citing

Goldrush II, the Court emphasized that the longstanding Paramount Pictures test applies when the

regulation does not involve core political or religious speech. See GreatAm

Dream, Inc.v

DeKalb

Couhtv, 290 Ga 749, 751, 752 n.7 (2012) (hoJding content-neutral regulation with incidental effects on

adult business expression is subject to Paramount Pictures test and not Grady least restrictive means test).

Thus, Plaintiffs present no authority suggesting that the Georgia Supreme Court has dispensed with the

Paramount Pictures test which is the test that Plaintiffs pled and is the test repeatedly applied by the

Georgia Supreme Court in adult business cases.

But even if least restrictive means applied to adult business regulations, the City is entitled to. D e K a l b S u p .

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( Section 5(b)'s liquor prohibition is no greater than essential to further the Village's substantial interest

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in combating the secondary effects resulting from the combination of nude and semi-nude dancing and

alcohol consumption because, as a practical matter, a complete ban of alcohol on the premises of adult

entertainment establishments is the only way the Village can advance that interest. ) (emphasis in

original). Similarly, banning exposure of human genitals and the nipple/areola of female breasts is the

least restrictive means of preventing the illicit sexual contact involving those body parts and the related

potential transmission of disease on the premises of sexually oriented businesses. See DLS, Inc. v City of

Chattanooga, 107 F.3d 403, 410 (6th Cir. 1997). The requirement that dancers wear pasties and G-strings

is a minimal restriction in furtherance of the asserted government interests, and the restriction leaves

ample capacity to convey the dancer's erotic message. Citv of Erie v Pap s A.M., 529 U.S. 277, 301

(2000) (holding that the restriction is no greater than is essential to the furtherance of the government

interest and any incidental impact on the expressive element of nude dancing is e minimis. ).

Brookhaven's SOB Code is a carefully and narrowly drawn regulatory mechanism designed to

address sexually oriented businesses' negative secondary effects, Gravely, 263 Ga. at 205, and the City is

entitledto

judgmentas

a matter oflaw. Parkerv

Whitfield County, 265 Ga. 829, 830 (1995) (upholding

ordinance prohibiting alcohol at adult businesses, .requiring buffer between patrons and performers,

prohibiting touching between same, etc., because it furthers important government interests that are

unrelated to the suppression of free speech, and the incidental restriction of speech is no greater than

necessary to further the government interests. See Paramount Pictures Corp.v

Busbee, 250Ga

252. ).

COUNT VII- INADEQUATE ALTERNATIVE AVENUES OF COMMUNICATION

D e K a l b S u p .

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Brookhaven's location regulations require them to move or harm them in any way. Manlove v. Unified

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Gov't of Athens-Clarke County, 285 Ga. 637, 638 (2009).

Alternatively, Plaintiffs contend that Brookhaven's regulations on conduct in sexually oriented

businesses ammmt to a ban on adult entertainment. To the extent that Plaintiffs challenge the prohibition

against nudity and sex acts in § 15-416(a) of the SOB Code, that challenge fails as a matter oflaw

because the U.S. Supreme Court and lower courts have repeatedly upheld similar regulations as

constitutional.S e e ~ .

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (upholding ban on public

nudity); City of Erie v. Pap's A.M., 529 U.S. 277 (2000) (same); Peek-A-Boo Lounge of Bradenton, Inc.

v. Manatee County, 630 F.3d 1346, 1350 (11th Cir. 2011) (upholding an across the board ban on

appearing in a 'state of nudity ' in sexually oriented businesses). With respect to semi-nudity, SOB Code

§ 15-416(b) specifically allows sexually oriented business employees to appear semi-nude, that is,

wearing pasties and G-strings § 15-401, defining nudity and semi-nudity ). Banning nudity while

allowing semi-nudity provides adequate alternative avenues for communication, as the U.S. Supreme

Court has recognized:

The ordinance regulates conduct, and any incidental impact on the expressive element of

nude dancing is de minimis. The requirement that dancers wear pasties and G-strings is a

minimal restriction in furtherance of the asserted government interests, and the restriction

leaves ample capacity t convey the dancer s erotic message.

City of Erie v. Pap's A.M., 529 U.S. 277, 301 (2000) (emphasis added). In this same way, Brookhaven's

regulations do not ban adult entertainment. Semi-nude dancing sexually oriented business employees

showing their buttocks and breasts, with only their genitals, anus, and nipples/areolae covered is

allowed under the SOB Code. Count VII therefore fails as a matter of law, and Defendants are entitled to

D e K a l b S u p .

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alcohol in sexually oriented businesses. This claim concems whether a legal doctrine applies in the

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manner that Plaintiffs claim, so it can be resolved as a matter of law by judgment on the pleadings.

First, lawful, nonconforming use status simply protects ( grandfathers ) a lawful land use

against future enforcement of a new zoning ordinance which prohibits that land use in a particular

location (a circumstance not present here). ·The grandfathering concept is designed to protect against a

taking of land for public benefit without just compensation, and has its genesis in takings jurispmdence.

Thus, the takings holdings from Goldrush IIv

City of Marietta, 267 Ga.683

(1997), Quetglesv

City of

Columbus, 268 Ga. 619 (1997), and Walleye, LLC v City of Forest Park, 745 S.E.2d 781 (Ga. App.

2013) apply. In each of those case$, the adult businesses were using parcels of land-presumably in

compliance with the cities' zoning ordinances-to operate adult entertainment uses in a particular manner

~ , w i t h alcohol in Goldrush II and Walleye, and with one-on-one lingerie modeling in Quetgles). n

each case, the cities adopted new adult business licensing or regulatory ordinances restricting how adult

businesses could operate, i.e., by banning alcohol (or as in Quetgles, one-on-one encounters). Those

ordinances, like Brookhaven's, did not require the amortization or forced relocation of the adult

entertainment businesses from where they had historically operated.

n Goldrush II, the Georgia Supreme Court acknowledged the zoning principle that a landowner

will be allowed to continue a land use despite a restriction contained in an ordinance where, prior to

the effective date of the ordinance, in reliance upon a permit theretofore validly issued, he has, in good

faith, made a substantial change of position in relation to the land, made substantial expenditures, or has

incurred substantial obligations. 267 Ga. at 698 (quoting 3 Rathkopf, Law ofZoning and Planning, § 57-

3). But the Court rejected the argument that just because a use ofland (adult entertainment) is allowed to D e K a l b S u p .

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The Quetgles court applied the same principle in rejecting the plaintiffs' argument that the new

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ordinance-which banned previously-allowed one-on-one lingerie modeling- deprives them of a

valuable property right because they have invested time and money in the current use of their property, in

part by contracting with the models and remodeling the premises. 268 Ga. at 621. Rather, the ordinance

regulates their businesses by imposing a manner restriction on how plaintiffs can operate as adult

entertainment establishments. Id. at 6 2 1 ~ 2 2

And in Walleye, the Court of Appeals followed Goldmsh II in rejecting the claim that the city's

new sexually oriented business licensing ordinance (with its alcohol ban) destroyed the preexisting use of

the property, constituting a taking. 745 S.E.2d at 783.

Thus, even assuming that Plaintiffs' zoning use (adult entertainment) may be continued in a

particular location, their claim that it need not comply with the SOB Ordinance fails as a matter of law.

Second, Plaintiffs' reliance on the language of the Zoning Code is misplaced.

As an initial matter, the Zoning Code recognizes nonconforming uses in the traditional sense, i.e.,

as those which were lawful before this chapter was adopted or amended, but which would be prohibited

under the terms o his ch pter or future amendment. (Zoning Code Section27-936 (emphasis added.))

Thus, lawful, nonconforming use status is designed to protect only against changes to the Zoning Code.

Additionally, Section 27-34 makes it clear that the Zoning Code cannot be interpreted or used to

exempt a party from regulations or requirements of other ordinances: Compliance with the provisions of

this chapter shall not be interpreted to obviate the requirements for compliance with any and all other

provisions of federal or state law, or the City of Brookhaven Code of Ordinances, including but not

limited to requirements for licenses or pennits of any kind. D e K a l b S u p .

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manner or operation of use. These regulatory restrictions often take the form oflicensing or special permit

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requirements. )

Plaintiffs also argue that their use under the Zoning Code is erotic entertainment dance

establishment and then suggest that any conduct that falls within the definition of that use, including

totally nude conduct, cam1ot be prohibited by virtue of another licensing or regulatory ordinance. But

again, that proposition runs headlong into Goldrush II, Quetgles, Walleye, LLC, and other authorities

discussed above.

Additionally, it is contrary to the facts of record. Although the DeKalb County Agreement does

not bind Brookhaven, it shows that Pink Pony and the other strip clubs entered the agreement to escape

not only the alcohol prohibition in § 15-402(o of the County's adult entertaimnent code, (see Complaint,

Exh. Bat 6), but also the public nudity prohibition in§§ 16-60 to 16-64 of the County's general code of

ordinances. (Complaint, Exh. Bat 7-8.) Thus, Plaintiffs are well aware that an adult entertainment zoning

use does not insulate it from regulatory ordinances, as their business has historically been subject to them.

Moreover, Plaintiffs' position would lead to absurd results. For example, the City's Zoning Code

formerly defined an erotic entertainment dance establishment as an establishment that features live

performances that are distinguished or characterizedby an emphasis on specified sexual activities or

specified anatomical areas. (Plaintiffs' Exh. 6 at 8.) Specified sexual activities include any of the

following: (a) Actual intercourse, oral copulation, anal intercourse, etc But it is quite obvious that

such sexual acts in public places are not insulated from prohibition simply because they have been

referenced in zoning definitions.

Finally, for all of Plaintiffs' reliance on lawful, nonconforming use status, Plaintiffs did not plead D e K a l b S u p .

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the district in which such use is located. (Zoning Code, Plaintiffs' Exh. 6 at 23 . Plaintiffs allege that the

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Zoning Code specifically permits adult entertainment establishments in C-2 and M districts subject to

the distancing requirements of Sec. 27-702. Sections 27-59(e)(l) and 27-681 (g)(l) . (Complaint at 29

139.) That is true. But the Complaint does not allege that the parcel on which Pink Pony operates is

zoned C-2. In fact, the City indicates that the DeKalb County zoning map (the zoning districts of the

County were carried over to the City) shows the parcel is zoned C-1. Again, this dispute is irrelevant to

the resolution of this case because neither party has pled a claim that Plaintiffs cannot operate a sexually

oriented business at 183 7 Corporate Boulevard, Plaintiffs' location. Rather, this case centers on the

applicability of Brookhaven's SOB Code, including its prohibitions on nudity and alcohol, at that

location.

For the foregoing reasons, Defendants are entitled to judgment on the pleadings on Count VIII

that Plaintiffs are not grandfathered against enforcement ofthe City's SOB Code.

COUNT U X DUE PROCESS- ARBITRARY AND CAPIDCIOUS

Count IX invokes due process, contending broadly that the Brookhaven Code of Ordinances and

its Alcohol Chapter, Sexually Oriented Business Chapter, and Zoning Chapter treat nude dancing and

semi-nude dancing arbitrarily and capriciously and that Defendants are applying the Brookhaven Code

of Ordinances to Plaintiffs in an arbitrary and capricious manner, without due process of law, depriving

Plaintiffs of their property and the use of their property. Count IX is subject to dismissal because it

consists of mere labeling and fails to allege facts to state a claim. t also fails to properly raise a

constitutional challenge because Plaintiffs do not identify the particular regulations they claim are

D e K a l b S u p .

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y T r u s t a n d T r o p ,

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D / B / A P i n k P o n y - V a r i a n c e t

the Court because Plaintiffs did not plead it in their Complaint. Jahannes v. Mitchell, 220 Ga. App. 102,

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103-04 (1996) (holding it improper to allege entirely different breach of contract claim as the one pleaded

in complaint).

Even if Colmt IX were pleaded as a challenge concerning secondary effects, it fails on the

pleadings. Brookhaven's SOB Code (Plaintiffs' Exh. 2, 15-400), Alcohol Code (Plaintiffs' Exh. 5, § 4-

104), and Zoning Code (Defendants' Exh. 5, § 27-732) each specify the City's reliance on relevant court

d e c i s i o n s ~ ,Flanigan's Enterprises v. Fulton County and Peek-A-Boo Lounge v. Manatee County) and

several studies and reports ~ F u l t o n County, GA- 200 l previously held to be sufficient legislative

evidence to support the same regulations on adult businesses. Because the ordinances and the materials

cited therein as support are exhibits incorporated into the pleadings, it is appropriate to consider and

discuss these items in the context of a motion for judgment on the pleadings. Printis v. Bankers Life Ins.

Co., Inc., 256 Ga. App. 266, 266 (2002). Because the City relied on the kinds of information that courts

have consistently held to be sufficient to support adult business regulations, Defendants are entitled to

judgment as a matter. of law.

When a city adopts sexually oriented business regulations, it is not required to conduct new

studies or produce evidence independent of that al ready generated by other cities, so long as whatever

evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.

City ofRenton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52 (1986); ClubS. Burlesque, Inc. v. City of

Carrollton, 265 Ga. 528, 530 1 995) (quoting same). Under this broad, deferential standard, legislative

evidence need not be scientific or empirical, but can consist of a wide variety of information, including

prior judicial decisions, land use studies, police reports, and investigator affidavits. Peek-A-Boo Lounge D e K a l b S u p .

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affidavits from investigators who visited area sexually oriented businesses, and other materials. (Compare

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Answer Exhs. 3 4 with Peek-A-Boo, 630 F.3d at 1355-57 (upholding similar ordinance supported by

much ofthe

same legislative evidence contained in City's legislative record).) The Eleventh Circuit held

the County has made a substantial showing, relying on as thorough a record as we have seen in these

cases, and far more than the 'very little evidence' required under [Citv of Los Angeles v Alameda Books,

Inc., 535 U.S. 425 (2002)]. Peek-A-Boo, 630 F.3d at 1355.

In addition to reports and studies that Manatee County considered, Brookhaven's secondary

effects evidence also includes the 337-page July 2001 Fulton County report3

discussed in Flanigan's

Enterprises, Inc. of Georgia v Fulton County, 596 F.3d 1265 (11th Cir. 201 0). These on-point authorities

show that the City's legislative record satisfies the deferential reasonably believed to be relevant

standard as a matter oflaw. Accord Goldrush II, 267 Ga. at 692 (holding that ordinance's legislative

finding was substantiated by other cities' experiences that council reasonably believed to be relevant );

Quetgles, 268 Ga at 621 (holding that ordinance furthers important governmental interests (reducing

crime and protecting property values) ). Plaintiffs' Cmmt IX, both as originally pleaded and as modified

in response to Defendants' motion, fails as a matter of law and Defendants are entitled to judgment on the

pleadings.

COUNT DUE PROCESS VAGUENESS

Count X, another due process claim, challenges certain terms in Brookhaven regulations as

unconstitutionally vague. Whether such terms exist in the City's ordinances any longer, and whether those

terms satisfy due process standards, are legal questions that may be resolved on the pleadings.

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D / B / A P i n k P o n y - V a

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subject to and have no injury from the various provisions of the Alcohol Code that they would attack.

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Granite State Outdoor Advertising, Inc. v. City of Roswell, 283 Ga. 417, 420 (2008).

Even if Plaintiffs had standing to challenge definitions in the Brookhaven Alcohol Code, the

terms adult entertainment establishment, erotic entertainment, and dance establishment are no

longer at issue. Section 4-1 of the Alcohol Code defined the term adult entertainment establishment,

and erotic entertainment/dance establishment was subpart (g) of that definition. But these terms are no

longer part of the Brookhaven Alcohol Code. They have been deleted pursuant to Section 1 of Ordinance

No. 2013-06-09.4

(Plaintiffs' Exh. 5 ( [S]ection4-1 of Chapter 4 of the Code is hereby amended by

deleting the definitions of 'Adult entertainment establishment' (including subparts (a)-(g) within that

definition), . .. . ). Plaintiffs are not entitled to relief from now-repealed tenns.

Plaintiffs also list several subsections ofChapter 4 in their argmnent about unconstitutional

vagueness. As with the definitions, many of these provisions are no longer part ofBrookhaven's lcohol

Code. For example, Alcohol Code§ 4-49(d) and§ 4-50(k) have been deleted. (Plaintiffs' Exh. 5,

Ordinance No. 2013-06-09, sec. 2 and 3.) Language targeted by Plaintiffs in§ 4-49(b)(8), regarding

requests for other information during the licensing process, has also been deleted. Id. Ordinance No.

2013-06-09, sec. 2.) Plaintiffs cannot challenge§ 4-57 because that provision is not mentioned in their

complaint. See Jahannes v. Mitchell, 220 Ga. App. 102, 103-04 (1996) (holding new claim raised in

response briefwas not procedurally proper because it was not pleaded in complaint). nd§ 4-104 has

been repealed and replaced (Plaintiffs' Exh. 5, sec. 7).

Even if Plaintiffs had standing to challenge the parts of the Alcohol Code that remain, the Court

holds that there is no unconstitutional vagueness in the provisions. Due process requires only that laws be D e K a l b S u p .


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common parlance and are sufficiently clear so that a reasonable person can lmderstand their meaning, the

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ordinance is not unconstitutionally vague. Deja Vu of Cincinnati, L.L.C. v. Union Township, 411 F.3d

777, 797-98 (6th Cir. 2005) en bane). Finally, even where some vagueness exists inan

ordinance, a

scienter requirement in the offense will prevent a finding of unconstitutionality. Boyce Motor Lines, Inc.

v. United States, 342 U.S. 337, 342 (1952).

The terms in the Alcohol Code are in common parlance and do not require a person of ordinary

intelligence to guess at their meaning. The conduct regulations in the City's Alcohol Code require a

violation to be committed either lmowingly or recklessly. Thus, the current Brookhaven regulations

challenged by Plaintiffs readily satisfy due process standards.

COUNT X DUE PROCESS CONFLICTING, IRRECONCILABLE REQUIREMENTS

Count XI likewise relies on due process principles to challenge what Plaintiffs allege are

irreconcilable requirements for sexually oriented businesses in various parts of the Brookhaven Code. To

the extent this cmmt presents any justiciable claims, they are legal claims which may be resolved based on

the pleadings.

Plaintiffs' lawsuit coincides with Brookhaven's first year of existence, during which the City is

updating code provisions (carried over from DeKalb County) to reflect the City's policies, as envisioned

by the Act of the General Assembly that created the City ofBrookhaven. Since the beginning of the City,

Brookhaven has amended its ordinances, substituting its own terminology and substantive regulations

governing sexually oriented businesses in place of similar regulations on adult entertainment that

prevail in DeKalb County. Such changes are reflected in the City's SOB Code, Ordinance No. 2013-01-

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characterized by semi-nudity. Plaintiffs do not dispute that they are subject to the SOB Code-indeed

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they challenge its provisions because it applies to them.

Because Plaintiffs want to operate as a sexually oriented business nd to sell alcoholic beverages,

they challenge the City's policy decision in Section 15-416(d) ofthe SOB Code that sexually oriented

businesses should be alcohol-free. And as explained previously, that rule is a constitutionally-permissible

regulation that the Court will not strike down. Brookhaven has adopted a corollary provision in the

Alcohol Code. Section 4-50(c) provides that alcoholic beverages licenses shall not be issued for sexually

oriented businesses. (Plaintiffs' Exh. 5 Ordinance No. 2013-06-09, sec. 3.) This is similarly

constitutional, as numerous decisions from the U.S. Supreme Court, Georgia Supreme Court, and federal

appellate courts uphold the separation of alcohol consumption and adult entertainment.

Because the SOB Code constitutionally prevents a sexually oriented business from selling

alcohol, the Court need not determine whether Alcohol Code provisions and the SOB Code can be

reconciled. Curves, LLC v. Spalding County, Ga., 685 F.3d 1284, 1292 (11th Cir. 2012) ( When a court

upholds one statute that prohibits certain conduct, the court should not rule on the constitutionality of a

second statute that also prohibits the same conduct: the second ruling would have no effect on the parties'

behavior. ) (citations omitted). Plaintiffs refer to§ 4-104 and§ 4-101.1 ofthe Alcohol Code, but they are

not required to comply with those provisions. As amended by Ordinance No. 2013-06-09 (Plaintiffs'

Exh. 5), § 4-104 only applies to a Brookhaven alcoholic beverage licensee, which Pink Pony is not. ( On-

premises conduct. No licensee, as defined in this chapter, shall .... § 4-104(c).) Likewise,§ 4-101.1 only

applies to the sale of alcoholic beverages, an activity that the SOB Code forbids at Plaintiffs' business. In

short, the Alcohol Code governs alcoholic beverage establishments, not sexually oriented businesses. As D e K a l b S u p .


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including adult cabarets instead of the ten11S adult entertainment establishments and erotic

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entertainment/dance establishment. The distancing requirements for sexually oriented businesses in

Zoning Code § 27-732(c) and (d) have been decreased to correspond with the spacing requirements in

SOB Code § 15 41 9(a) and (b).5

But even discussing the Zoning Code to this extent is academic. The

Plaintiffs' current location is not an issue in this case-no party contends that Plaintiffs are required to

relocate their establishment. In other words, Plaintiffs lack standing to challenge the Zoning Code as

vague because they have alleged no harm to themselves that stems from it. Manlovev.

UnifiedGov t of

Athens-Clarke County, 285 Ga. 637, 638 (2009).

As with the due process claims in Counts IX and X, Defendants are entitled to judgment on the

pleadings as to Plaintiffs' claims in Cmmt XL

COUNTS XU, XIH, XIV-DECLARATORY RELIEF, INJUNCTIVE RELIEF, MANDAMUS

Counts XII and XIII seek declaratory and injunctive reliefbased upon other counts in Plainti ffs'

complaint. Because those other claims fail on the pleadings as a matter of law, the Court likewise rejects

Plaintiffs' requests for declaratory and injunctive relief in these counts.

Count XIV seeks mandamus relief against Defendants concerning the issuance of licenses to Pink

Pony. But Plaintiffs did not allege that they sought or applied for any such licenses, nor did they address

this claim in their response brief to the City's motion. Mandamus is the remedy for inaction of a public

official. Hilton Constr. Co., Inc. v. Rockdale ~ o u n t y B d ofEd., 245 Ga. 533,540 (1980) (emphasis

added). t is an extraordinary remedy to compel a public officer t pe jorm a required duty when there is

no other adequate legal remedy. Schrenko v. DeKalb County School Dist., 276 Ga. 786, 794 (2003)

D e K a l b S u p .


I n c .


r i a n c e

Moreover, per the discussion above of the substantive counts of the Complaint, Plaintiffs are not entitled

to relief against the City's ordinances, none ofwhich have been applied to Plaintiffs.

D.1.d

e t o



Count XIV fails as a matter oflaw and is subject to judgment on the pleadings.

COUNT XV- INCORPORATION VOID

Count XV seeks to undo the incorporation of the City ofBrookhaven by arguing that HB 63 6 was

not properly noticed to the local governing body as required by O.C.G.A. § 28-1-14(b). Defendants raise

a legal argument against this claim, namely that the statute does not apply to HB 636. This issue may also

be resolved on the pleadings.

When local legislation is to be introduced in the General Assembly, O.G.G.A. § 28-l-14(b)

requires that the local government be notified ahead of time if the local bill would amend its charter if a

municipality) or its enabling act if a county or consolidated government). The Court agrees with

Defendants that HB 636 did not amend Brookhaven's charter because that local bill provided for the

incorporation of the City and serves as the City 's charter. When HB 636 was introduced in the General

Assembly, there was no City of Brookhaven to notify and there was no City ofBrookhaven Charter that

HB 636 could amend. O.C.G.A. § 28-l-14(b) simply does not apply.

Plaintiffs' brief abandoned the claim that HB 63 6 amended Brookhaven's charter. Instead, they

argued (for the first time) that HB 636 clearly amended the enabling act ofDeKalb County by

reducing the precincts within certain DeKalb County Commission Districts. This new argument is

improper. Jahannes v Mitchell, 220 Ga. App. 102, 103-04 (1996). Nevertheless, Plaintiffs' only support

for this claim is to point to sections 2 and 23 of the DeKalb County enabling act6

and to Appendix B of

7 D e K a l b S u p .


I n c .


r i a n c e

Because Brookhaven lies within DeKalb County, it is only natural that there would be overlap

between Brookhaven city council districts and one or more of the DeKalb County commissioner districts.

D.1.d

c e t o



But there is nothing in HB 636 to suggest that any precincts or geographic units mentioned in the

Brookhaven charter are somehow taken away from DeKalb County, or that the enabling act ofDeKalb

County has been amended by reducing the precincts within County Commission districts. Precincts that

fall within any of the Brookhaven council districts do not thereby cease to be a part of DeKalb County or

the underlying county commission districts. There is therefore no basis to conclude that HB 636 amended

either the not-yet-existent Brookhaven charter or the enabling act ofDeKalb County. Thus, O.C.G.A.

§ 28-I-14 b) has no application in this case. Cmmt XV fails as a matter of law, and Defendants are

entitled to judgment on the pleadings as to this claim.

So Ordered ~ o December 2013.

Cc: Alan Begner

Begner Begner

5180 Roswell Road

South Building, Suite 100

Atlanta, Georgia 30342

Linda Dunlavy

I 026 B Atlanta A venue

Decatur, Georgia 30030

Aubrey T Villines

Magarahan, Villines, Honis

Courtney L. son, udge

Superior Court of DeKalb County

Stone Mountain Judicial Circuit

D e K a l b S u p

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MEMORANDUM




ISSUE/AGENDA ITEM TITLE:ZBA14-07: Patsios Homes C/O Roberts & Daughdrill, PC - Increase Lot Coverage, and Reduce

Front and Rear Yard Setback - 3165 Lynwood Drive


FISCAL IMPACT: (Budgeted –

over or under)

STAFF RECOMMENDATION: Please see attached files. The applicant was granted a 30-day deferr al (Apri l 16, 2014). Staff

has attached email c orrespondence received from opposition and the applicant’s legal

representative. No new information has been added to the staff report f rom March 19, 2014.

ATTACHMENTS:

ZBA 14-07 Staff memo (PDF)

A Powell email (PDF)

S Roberts email (PDF)

M Kidder email (PDF)

ZBA14-07 Stamped application (PDF)

D.2



ZBA14 07 Stamped application (PDF)

ZBA14-07 Stamped site plan-existing (PDF)

ZBA14-07 Stamped site plan-proposed (PDF)

Case: ZBA14-07

Location: 3165 Lynwood Drive, Brookhaven, GA 30319

Tax Parcel # 18-275-06-048

Property Owner: Alan and Margaret Roberds

Applicant: Patsios Homes c/o Roberts and Daughdrill, PC

Request: A variance from the 1967 Lynwood blanket variance related to front

yard setback requirements from 50 feet from centerline of right-of-way to 16 feet, a variance to increase lot coverage from 36.39% to

45% and to reduce the rear yard setback from 40 feet to 18 feet

DESCRIPTIONThe applicant is requesting three variances associated with this case as noted:

A variance from the 1967 Lynwood blanket variance related to the front yard setbackrequirement of 50 feet from centerline of right-of-way to 16 feet.

Increase the lot coverage from 36.39% to 45%.

Reduce the rear yard setback requirements from 40 feet to 18 feet.

SITE PLAN AND SITE ANALYSIS The property exists as an interior lot located along the northeast side of Lynwood, approximately500 feet northwest of its intersection with Silver Lake Drive. The property is zoned R-75

(Single-Family Residential District) and is immediately surrounded by R-75 properties on all

sides. The subject lot contains a single-family residence that was built in 1958. The applicant

plans to construct a new 2,272 square foot home on the property. In order to accomplish theconstruction the applicant seeks to demolish the existing house and request variances to lot

D.2.a

P a t s i o s H o m e s C

/ O R o b e r t s & D a u g h d r i l l , P C - I n c r e a s e L o t C o v e r a g e , a n d R e d u c e F

r o n t



construction, the applicant seeks to demolish the existing house and request variances to lot

coverage and front and rear yard setbacks.

Similar to neighboring lots, the subject property is a legal nonconforming lot of record, as the

property lacks the lot frontage of 75 feet and lot size of 10,000 square feet required of R-75

zoned districts. Additionally, the existing house is also a nonconforming structure as itencroaches into the front, side and rear yard setbacks, and exceeds the allowable lot coverage at

36.39%. The subject property is substantially smaller in size (3,505 square feet; 0.08 acres)

compared to majority of the lots fronting on Lynwood Drive. The property maintains a depth of

105 feet with a frontage of 44.79 feet that narrows to 33.52 feet moving towards the rearf f

m e m o ( 1 2 8 7 : Z B A 1 4 - 0 7 : P

CRITERIA TO BE USED BY THE BOARDThe applicant seeks variances to the development standards. Consideration of this request should

be made under the terms of the following criteria, found in the City Zoning Ordinance: No relief may be granted or action taken under the terms of this division unless such relief can be

granted without substantial detriment to the public good and without substantial impairment of

the intent and purpose of this chapter and the comprehensive plan text. The Zoning Board of

Appeals shall apply the following criteria to the types of applications specified below as follows:(a) Variances from the provisions or requirements of this chapter shall be authorized only upon

making all of the following findings:

(1) By reason of exceptional narrowness, shallowness, or shape of a specific lot, or by

reason of exceptional topographic conditions, which were not created by the owner or

applicant, the strict application of the requirements of this chapter would deprive the

property owner of rights and privileges enjoyed by other property owners in the samezoning district;

Staff Comment:

By reason of exceptional narrowness, shallowness, shape and size, which were notcreated by the owner, the strict application of the zoning regulations concerning setbacks

and lot coverage would appear to preclude development on the property. As previously

noted, the subject lot is 3,505 square feet in size, which would equate to one third of the

size of a conforming R-75 lot. Furthermore, the minimum dwelling size requirement foran R-75 zoned property is 1,600 feet, which would translate to 46 percent coverage (11%

above the 35% maximum) on the lot. The applicant has attempted to further reduce lot

coverage associated with the property by proposing a pervious driveway. However, in

order to build a dwelling of similar form and character consistent with the neighborhood,the applicant seeks to increase lot coverage from 36.39 percent to 45 percent..

It should be noted that a blanket variance for setbacks was approved for the Lynwood Park Neighborhood in 1967. Under this variance, 3165 Lynwood Drive is subject to a

front setback of 50 feet from the centerline of the property Additionally the applicant is

D.2.a


/ O R o b e r t s & D a u g h d r i l l , P C - I n c r e a s e L o t C o v e r a g e , a n d R e d u c e F

r o n t



front setback of 50 feet from the centerline of the property. Additionally, the applicant is

required to comply with a 40 foot rear yard setback per the R-75 zoning district. Asnoted, the property is only 105 feet at its deepest point; thus, if both the front and rear

setbacks were strictly applied, the buildable area of the site would be reduced 1,330

square feet. Given the reduced buildable lot area, it would appear that the setback provisions would prevent the construction of a home similar to privileges enjoyed by

other property owners in the same zoning district.

(2) The requested variance does not go beyond the minimum necessary to afford relief,and does not constitute a grant of special privilege inconsistent with the limitations upon

f f m e m o ( 1 2 8 7 : Z B A 1 4 - 0 7 :

were approved for an increase in lot coverage to 46.44 percent and 48.51 percent,respectively for an infill development. Both of the aforementioned lots maintain a larger

lot size than the subject property.

The reduction in front yard setback would be acceptable by staff as requested, since the

proposed setback of 16 feet would be consistent with the average setback requirement

and the home would be set back further from the right-of-way than the adjacent neighborto the south. The proposed reduction in setback of the rear yard from 40 feet to 18 feet

would meet the minimum necessary to afford relief and would be found to be consistentwith other properties in the zoning district that exist with similar exceptional conditions pertaining to the shape of the lot.

(3) The grant of the variance will not be materially detrimental to the public welfare or

injurious to the property or improvements in the zoning district in which the subject property is located;

Staff Comment:

Based on the applicant’s request, the granting of the setback reductions and increase inlot coverage to 45 percent would not appear to be detrimental to the public welfare or

injurious to the property or improvements in the zoning district. It shall be noted that the

average front yard setback on the property is 16.23, so the request for variance to the

Lynwood blanket variance would be consistent with the average setback requirement. Although increase in lot coverage may contribute to additional stormwater run-off, the

applicant would be conditioned to administer appropriate water detention and soil

erosion control measures on the property.

(4) The literal interpretation and strict application of the applicable provisions or

requirements of this chapter would cause undue and unnecessary hardship, not merely

impose a casual/discretionary inconvenience upon the applicant or his/her assigns; andStaff Comment:

The strict application of the Zoning Ordinance may cause undue and unnecessary

D.2.a


/ O R o b e r t s & D a u g h d r i l l , P C - I n c r e a s e L o t C

o v e r a g e , a n d R e d u c e F

r o n t



pp f g y y

hardship, due to the relative lot size of the property. If the required setbacks were to beapplied, the applicant would not have the ability to construct a dwelling of similar size

and character of the neighborhood unless variances were granted to the setbacks and lot

coverage.

(5) The requested variance would be consistent with the spirit and purpose of this chapter

and the DeKalb County Comprehensive Plan text.

Staff Comment:The requested variance has no impact on the terms of the Comprehensive Plan.

f f m e m o ( 1 2 8 7 : Z B A 1 4 - 0 7 :

2.

The portion of driveway within property limits shall be constructed in a manner that provides stormwater infiltration capability and that maintains infiltration capability by

preventing compaction of driveway surface and shall be subject to acceptance by the CityEngineer.

3. For the portion of proposed rooftop that will drain to the rear of the lot, development

shall include practice(s) that will capture 1.2 inches of runoff from rooftop to bedischarged in no less than 24 hours. If discharge is to be accomplished through

infiltration into soil, prior to issuance of building permit for the proposed development,the owner/developer shall provide substantiation that soil infiltration rate is no less than0.25 in/hr or owner/developer shall provide amended soil stratum to foster infiltration,

subject to acceptance by the City Engineer.

D.2.a

P a t s i o s H o m e s C / O R o b e r t s & D a u g h d r i l l , P C - I n c r e a s e L o t C

o v e r a g e , a n d R e d u c e F

r o n t



f f m e m o ( 1 2 8 7 : Z B A 1 4 - 0 7 :

Becky Apter

From: Ben Song

Sent: Monday, April 07, 2014 5:03 PMTo: External-Zoning Board of Appeals

Cc: Susan Canon; Becky Apter

Subject: FW: 3165 Lynwood Drive

Board Members,

Below you will find an email from Mr. Powell who would like to withdraw his opposition to ZBA14‐07 and have suggested the

following conditions for your consideration.

Thank you,

Ben Song

Deputy Director of Community Development City of Brookhaven | www.brookhavenga.gov O: 404-637-0536F: 404-637-0537

This e‐mail message (including any attachments) is for the sole use of the intended recipient(s) and may contain confidential and privileged information. If the reader of

this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this message (including any attachments) is strictly

prohibited. If you have received this message in error, please contact the sender and destroy all copies of the original message (including attachments). The City of

Brookhaven is a public entity subject to the Official Code of Georgia Annotated §§ 50‐18‐70 to 50‐18‐76 concerning public records. Email is covered under such laws and

thus may be subject to disclosure.

From: Alan Powell [mailto:[email protected]]

Sent: Tuesday,

April

01,

2014

12:11

PM

To: Ben Song

Subject: 3165 Lynwood Drive

Ben - I met with Jason Patsios and would like to withdraw my opposition to the original submitted plan with thefollowing conditions;

D.2.b

s H o m e s C / O R o b

e r t s & D a u g h d r i l l , P C - I n c r e a s e L o t C o v e r a g e , a n d R e d u c e F r o n t a n

d R )



1. I prefer the 2 story plan (original)

2. I would like the home to have architectural shingles

3. I would like a rear buffer that includes 7-8' Arborvitae (either Thuja (dark green) and/or giant variety planted every6'

4. I would like the home to use a mix of exterior materials to include brick, board and batten siding, and horizontalsiding l

( 1 2 8 7 : Z B A 1 4 - 0 7 : P

a t s i o s

o: 678-507-1260 | m: 770-402-1072 | f: 678-507-1221 www.calero.com | www.call-accounting-solutions.com Follow us: Facebook | Twitter | LinkedIn

__________________________________________

This message and any attachment are solely for the use of the individual or entity to which this message is addressedand contains information that is confidential. If the reader of this message is not the intended recipient, you are herebynotified that any review, retransmission, disclosure, copying, distribution or the taking of any action in reliance on thecontents of this communication by persons or entities other than the intended recipient is strictly prohibited. If you havereceived this e-mail in error, please contact the sender and delete the material from any computer.

D.2.b

o s H o m e s C / O R o b

e r t s & D a u g h d r i l l , P C - I n c r e a s e L o t C o v e r a g e , a n d R e d u c e F r o n t a n

d R )



l ( 1 2 8 7 : Z B A 1 4 - 0 7 : P

a t s i o

Becky Apter

From: Ben Song

Sent: Monday, April 07, 2014 5:06 PMTo: Becky Apter

Subject: FW: ZBA-14-07/ Application of Patsios Homes, LLC for property located at 3165 Lynwood Drive

Becky,

We need to print this for the Board of Zoning Appeals for their hearing on April 16, 2014.

Thanks!

From: Shea Roberts [mailto:[email protected]]

Sent: Monday, April 07, 2014 3:42 PM

To: Ben Song; External‐Zoning Board of Appeals

Cc: Jason Patsios ([email protected])

Subject: ZBA‐14‐07/ Application of Patsios Homes, LLC for property located at 3165 Lynwood Drive

Dear Ben

and

Members

of

the

ZBA,

I am writing in reference to ZBA‐14‐07/ Application of Patsios Homes, LLC for property located at 3165 Lynwood Drive. To

refresh your memory, the ZBA deferred this matter to give my client, Jason Patsios, an opportunity to meet with the adjacent

neighbors to seek a compromise. It was suggested by the Board that he should specifically evaluate whether he could come up

with a house plan that would result in a 25 foot rear yard setback rather than the originally proposed 18 foot rear yard

setback. Mr. Patsios considered and shared such a plan with the adjacent neighbors, and they all agreed that the only house

that could comply with such restrictions would result in a looming tower that was not architecturally appealing and would be

more intrusive

upon

them.

Thus,

the

consensus

of

all adjacent neighbors is that they would

rather have

the

originally

proposed

home as submitted to the Board at its March meeting. It is my understanding that both Mrs. Kidder and Mr. Powell have

emailed you regarding their withdrawal of opposition to our proposed plan and variances. Mr. Powell, who is the rear neighbor

on Silver Lake Road, also has suggested some additional conditions of the variance, including the planting of trees and

architectural specifications. Mr. Patsios does not object to these additional conditions should Staff and/or the Board choose to

include them.

D.2.c

o s H o m e s C / O R o

b e r t s & D a u g h d r i l l , P C

- I n c r e a s e L o t C o v e r a g

e , a n d R e d u c e F r o n t a n d R )



I am confident that you all see builders come before you every month with proposed variances that are not really the minimum

necessary. By

way

of

contrast,

Mr.

Patsios

spent

an

enormous

amount

of

time

carefully

planning

a marketable

house

with

features that would promote privacy for the adjacent neighbors, such as the placement of the covered porch, while also only

asking for what is truly the minimum necessary to build a home on a very tiny lot. We hope you will listen to the adjacent

neighbors and acknowledge Mr. Patsios’ efforts by granting approval of his requested variances at your next meeting. Thank

you for your time and attention to this matter.

Sincerely,

i l ( 1 2 8 7 : Z B A 1 4 - 0 7 : P a t s i o

NOTICE: This e‐mail correspondence, including any attachment, is being sent by or on behalf of an attorney, is intended exclusively for the

designated recipient(s) in the "To","Cc" and "Bcc" lines of this e‐mail and may contain confidential, privileged or other legally protected

information. If you are not a designated recipient of this e‐mail correspondence, you are not authorized to read, print, retain, copy,

disseminate or rely upon this e‐mail correspondence in whole or in part. If you have received this e‐mail correspondence in error, please

notify the sender by reply e‐mail and delete or destroy all copies of this message and attachments in all media. NO DUTIES ARE INTENDED

OR CREATED

BY

THIS

COMMUNICATION.

If

you

have

not

executed

a fee

agreement

or

engagement

letter,

this

firm

does

NOT

represent

you

as your attorney. You are encouraged to retain counsel of your choice if you desire to do so. All rights of the sender for violations of the

confidentiality and privileges applicable to this e‐mail correspondence and any attachments are expressly reserved. Pursuant to U.S. Treasury

Department Circular 230, any tax advice contained in this communication (including any attachments) is not intended to be used, and cannot

be used, for purposes of (i) avoiding any tax‐related penalties under the U.S. Internal Revenue Code, or (ii) promoting, marketing, or

recommending to another party any tax‐related matter addressed herein.

This e‐mail message (including any attachments) is for the sole use of the intended recipient(s) and may contain confidential and privileged information. If the reader of

this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this message (including any attachments) is strictlyprohibited. If you have received this message in error, please contact the sender and destroy all copies of the original message (including attachments). The City of

Brookhaven is a public entity subject to the Official Code of Georgia Annotated §§ 50‐18‐70 to 50‐18‐76 concerning public records. Email is covered under such laws and

thus may be subject to disclosure.

D.2.c

i o s H o m e s C / O R o

b e r t s & D a u g h d r i l l , P C





i l ( 1 2 8 7 : Z B A 1 4 - 0 7 : P a t s i

Becky Apter

From: Ben Song

Sent: Tuesday, April 08, 2014 12:36 AMTo: External-Zoning Board of Appeals

Cc: Susan Canon; Becky Apter

Subject: FW: ZBA14-07-Variance at 3165 Lynwood Drive

Board Members,

Please find

below

an

email

from

Monique

Kidder,

the

adjacent

neighbor

to

3165

Lynwood

Drive,

who

has

notified

staff of her decision to withdraw opposition of ZBA14‐07.

Thank you,

Ben Song

From: Monique <[email protected]>

Sent: Wednesday, April 02, 2014 9:11 PM

To: Ben

Song

Cc: [email protected]

Subject: Re: ZBA14‐07‐Variance at 3165 Lynwood Drive

Mr. Song,

I

am

withdrawing

my

opposition

to

the

variance

requested

concerning

3165

Lynwood

Drive.

I

am

in

support

of

Mr.

Patsios' plan for a two‐story home (the original submitted plan).

Thank you,

Monique Kidder

D.2.d

o s H o m e s C / O R o b e r t s & D a u g h d r i l l , P C - I n c r e a s e L o t C o v e r a g

e , a n d R e d u c e F r o n t a n

d R )



Sent from my iPad

On Mar 18, 2014, at 12:48 PM, Ben Song <[email protected]> wrote:

Mrs. Kidder,

Thank you for sharing your concerns. I will forward your email on to the Zoning Board of Appeals for their review

and consideration. i l

( 1 2 8 7 : Z B A 1 4 - 0 7 : P

a t s i

this message (including any attachments) is strictly prohibited. If you have received this message in error, please contact the sender and destroy all

copies of the original message (including attachments). The City of Brookhaven is a public entity subject to the Official Code of Georgia Annotated §§

50‐18‐70 to 50‐18‐76 concerning public records. Email is covered under such laws and thus may be subject to disclosure.

From: ChinSee Monique [mailto:[email protected]]

Sent: Monday, March 17, 2014 9:22 PM

To: Ben Song

Subject: ZBA14‐07‐Variance at 3165 Lynwood Drive

Mr. Song,

I am a resident of Lynwood Park and I am in opposition to the variance requested byPatsios Homes to minimize the required setbacks and significantly increase the lotcoverage of this property. I am asking you to share with the Zoning Board of Appealswhy I am requesting a denial of the applicant's petition.

1. The builder does not own the property and just has an option to build if he can

get the variances approved. The builder will not be burdened with this propertyshould he not obtain the variances. There is no hardship to Patsios Homes.2. The builder's request will excessively reduce the specific zoning requirements

established to protect existing homeowners. As the homeowner of 3161Lynwood Drive, the neighboring property to the subject property, approvingthe variance would negatively impact my family's quality of life and bedetrimental to the marketability of our property. Please see photos included.

3. The requested variances are excessive for the lot and would diminish theaesthetics of Lynwood Drive. At 2,272 square feet, the proposed home would,in effect, be jammed in between a 4,400 sq. ft. home and a 3,300 sq. ft. homecovering nearly every part of the lot. This home will not be in scale with theexisting homes.

4 Fi ll th A li t' L tt f I t t it " t h d hi th O f

D.2.d

i o s H o m e s C / O R o b e r t s & D a u g h d r i l l , P C


e , a n d R e d u c e F r o n t a n

d R )



4. Finally, the Applicant's Letter of Intent cites "extreme hardship on the Owner of

Subject Property because they will not be able to sell their property unless suchvariances are granted to the Applicant". There is no such hardship to theProperty Owners (Meg and Alan Roberds) as other neighbors have interest in purchasing the property as-is. More specifically, we, the Kidders, haveindicated our desire to purchase the property as-is from the Roberds. Werecently purchased the Roberd's previous home, 3161 Lynwood Drive, and havea contractual agreement (see attached pg 6 Special Stipulations) that we have i l

( 1 2 8 7 : Z B A 1 4 - 0 7 : P a t s i

Monique and Kevin Kidder 3161 Lynwood Drive NE

D.2.d

s i o s H o m e s C / O R o b e r t s & D a u g h d r i l l , P C





i l ( 1 2 8 7 : Z B A 1 4 - 0 7 : P a t s

D . 2 . e

P a c k e t P g .

3 2 3

A t t a c h m e n t : Z B A 1 4 - 0 7 S t a m p e d a p p l i c a t i o n ( 1 2 8 7 : Z B A 1 4 - 0 7 : P a t s i o s H o m e s C / O R o b e r t s & D a u g h d r i l l ,



D . 2 . e

P a c k e t P g .

3 2 4




D . 2 . e

P a c k e t P g .

3 2 5




D . 2 . e

P a c k e t P g .

3 2 6




D . 2 . e

P a c k e t P g .

3 2 7




D . 2 . e

P a c k e t P g .

3 2 8




D . 2 . e

P a c k e t P g .

3 2 9




D . 2 . e

P a c k e t P g .

3 3 0




D . 2 . e

P a c k e t P g .

3 3 1




D . 2 . e

P a c k e t P g .

3 3 2




P a ck e t P g. 3 3 3

Attachment: ZBA14-07 Stamped site plan-existing (1287 : ZBA14-07: Patsios Homes C/O Roberts & Daughdrill, PC - Increase Lot Coverage, and Reduce Front and R)



P a ck e t P g. 3 3 4

Attachment: ZBA14-07 Stamped site plan-proposed (1287 : ZBA14-07: Patsios Homes C/O Roberts & Daughdrill, PC - Increase Lot Coverage, and Reduce Front and R)

MEMORANDUM




ISSUE/AGENDA ITEM TITLE:ZBA14-08: Michael Patrick - Increase Lot Coverage from 35% to 62% and Waive Lot Merger

Requirement - 1082 Wimberly Road



over or under)

STAFF RECOMMENDATION: Please see attached files.

ATTACHMENTS:

ZBA 14-08 revised staff memo (DOCX)

ZBA14-08 application (PDF)

E.1



Case: ZBA14-08

Location: 1082 Wimberly Road, Brookhaven, GA 30319

Tax Parcel # 18-275-04-007

Property Owner/

Applicant: Michael and Susan Patrick

Request: To waive the lot merger requirement of Section 27-938 and increase

lot coverage on lot 7 from 35% to 62%

DESCRIPTION

The applicant is requesting two variances associated with this case as noted:

A. Waive the lot merger requirement of an R-75 lot currently located at 1082 Wimberly

Road. This request is being made to revert the lot to the original Thomas J. Northcutt

plat (dated June 26, 1950) which shows two legal non-conforming lots of record.

B. Increase the lot coverage from 35% to 62% (Lot 7).

SITE PLAN AND SITE ANALYSIS The property is zoned R-75 (Single-Family Residential District) and is immediately surrounded

by R-75 zoned properties. The property has frontage along Windsor Parkway and WimberlyRoad so it is considered a double frontage lot. Per the original plat, the subject lot contains two

separate parcels consisting of lot 6 and lot 7. The subject property contains a residentialstructure and pool. The neighborhood has seen incremental redevelopment of larger homes to

the north, south and east of the property, including the subject residence.

The subject parcel totals 0.514 acres (22,396 square feet) and has 139.65 feet of street frontage

along Wimberly Road wherein the district requires a minimum of 10,000 square feet and 75 feetof street frontage. Based on the applicant’s letter of intent, the request to revert to the original

plat, which shows two lots, meets the minimum lot size requirement of the district. Staff would

E.1.a

3 1 7 : Z B A 1 4 - 0 8 : M i c h a e

l P a t r i c k - I n c r e a s e L o t C o v e r a g e f r o m 3 5 % t o

6 2 % a n d W a i v e L o t M e r g e r



note that because the original lots are non-conforming, contiguous and held in commonownership, they are treated as an undivided lot per Section 27-938. In an effort to revert to the

original platted lots, the applicant requests a lot merger waiver.

In 2009 a variance was approved by DeKalb County to increase the impervious surface of lot 7from 35% to 41% to build the current residence. Subsequently, the property owner purchased lot

6. Due to this purchase, the property was merged. Later, a pool was permitted by DeKalb

C Th l dd d ddi i l 21% f i i f l 7 A i l v i s e d s t a f f m e m o ( 1 3

CRITERIA TO BE USED BY THE BOARD

The applicant seeks a variance to a development standard. Consideration of this request should be made under the terms of the following criteria, found in the City Zoning Ordinance: No relief may be granted or action taken under the terms of this division unless such relief can be

granted without substantial detriment to the public good and without substantial impairment of


Appeals shall apply the following criteria to the types of applications specified below as follows:(a) Variances from the provisions or requirements of this chapter shall be authorized only upon





property owner of rights and privileges enjoyed by other property owners in the samezoning district;

Staff Comment:Unless a lot merger waiver is granted, lots 6 and 7 are treated as a single lot. As

undivided, the lot size, lot frontage and lot coverage are conforming to the R-75 district.

Through actions of the owner, reverting the lots back to the original plat would create

narrow, non-conforming lots; in addition, it will result in 62% lot coverage on lot 7.Such action would appear to grant the property owner greater impervious surface area

than what is enjoyed by their neighbors.


other properties in the zoning district in which the subject property is located;

Staff Comment:

As currently existing, the subject property has a combined lot which maintains a lot

coverage of 32%. If a lot merger waiver is granted, then it would result in lot 7becoming non-conforming with 62% lot coverage. It appears that the applicant has

E.1.a

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6 2 % a n d W a i v e L o t M e r g e r



received the benefit of lot coverage in the past taken from lot 6. Given the circumstances,it appears both variances requested are not the minimum necessary to afford relief. If granted, a special privilege may be afforded.



v i s e d s t a f f m e m o ( 1 3


requirements of this chapter would cause undue and unnecessary hardship, not merelyimpose a casual/discretionary inconvenience upon the applicant or his/her assigns; and

Staff Comment:

It appears that the literal interpretation and strict application of Section 27-938 would

prohibit the applicant from reverting to the original lots of record and prevent theapplicant from developing the lot in a similar manner to lots nearby. However, because

a pool was added by the applicant in 2011 and permitted based upon the combination of

lots 6 and 7 , the variance to lot coverage is a result of the owner’s action s. As such, theliteral and strict application of the requirements of this chapter do not cause undue and

unnecessary hardship upon the applicant as the hardship has been created by the

applicant.



Staff Comment:

The requested variance has no impact on the terms of the Comprehensive Plan.

STAFF RECOMMENDATIONStaff recommends the Board vote to deny the variances to waive the lot merger requirement of

Section 27-938 and increase lot coverage on lot 7 from 35% to 62%.

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6 2 % a n d W a i v e L o t M

e r g e r



v i s e d s t a f f m e m o ( 1

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MEMORANDUM




ISSUE/AGENDA ITEM TITLE:ZBA14-09: HSC Intown, LLC - Reduce Rear Yard Setback from 40' to 30', Reduce Average

Front Yard Setback from 33.4' to 30.8' for Lot 26 and Waive Lot Merger Requirements - 1628Wayland Circle




ATTACHMENTS:

ZBA14-09 Staff Memo.doc (PDF)


E.2



Case: ZBA14-09

Location: 1628 Wayland Circle, Brookhaven, GA 30319

Tax Parcel # 18-237-05-012

Property Owner/ James and Katherine Barron

Applicant: HSC Intown, LLC

Request: To waive the lot merger requirement of Section 27-938, reduce

the rear yard setback of from 40 feet to 30 feet (lot 1), reduce the

rear yard setback of from 40 feet to 30 feet (lot 26), and reducethe average front yard setback from 33 feet 4 inches to 30 feet 8

inches (lot 26).

DESCRIPTION

The applicant is requesting four variances associated with this case as noted:

A. Waive the lot merger requirement of an R-75 lot currently located at 1628 WaylandCircle. This request is to correct a formality in the tax parcels of lot 1 and lot 26, which

were merged into one lot by DeKalb County. Such variance will allow the applicant to

revert the lot to the original plat from 1946, which shows two lots of record.B. Reduce the rear yard setback of from 40 feet to 30 feet (lot 1).

C. Reduce the rear yard setback of from 40 feet to 30 feet (lot 26).

D. Reduce the average front yard setback from 33 feet 4 inches to 30 feet 8 inches (Lot 26)

SITE PLAN AND SITE ANALYSIS The subject property consists of 0.61 acres (22,600 square feet) and is located on the northwest

corner of Wayland Circle and Richwood Drive. The property is zoned R-75 (Single-FamilyResidential District) and is immediately surrounded by R-75 zoned properties. Per the original

plat, the subject lot contains two separate parcels consisting of lot 1 (1620 Wayland Circle) and

lot 26 (1628 Wayland Circle). Based on the submitted site plan, both lots conform to minimumdistrict standards of 10,000 square feet and 75 feet of street frontage. The subject property

contains a single home on the combined lot. The applicant is seeking the aforementionedvariances to construct new single-family homes on lot 26 and lot 1.

E.2.a

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n ,

L L C - R e d u c e R e a r Y a r d S e t b a c k f r o m 4 0 ' t o 3 0 ' , R e d u c e A v e r a g e

F r o n t




The applicant seeks a variance to a development standard. Consideration of this request should

be made under the terms of the following criteria, found in the City Zoning Ordinance: No relief may be granted or action taken under the terms of this division unless such relief can be

f f M e m o . d o c (


reason of exceptional topographic conditions, which were not created by the owner orapplicant, the strict application of the requirements of this chapter would deprive the property owner of rights and privileges enjoyed by other property owners in the same

zoning district;

Staff Comment: In regards to the request to the waiver of the lot merger requirement, the existing lot

merger is not the result of the actions of the owner or applicant. The strict application of

the requirement of this chapter will deprive the property owner of the rights and privileges enjoyed by other property owners in the same zoning district.

The existing physical characteristics of both lots 1 and 26 were not created by the owner

or applicant. There appears to be no impact associated with exceptional narrowness, shallowness, or shape of lot 1. However, lot 26 appears to be irregularly shaped since

the rear property line slants inward impacting the building envelope. The strict

application of the requirement of this chapter may deprive the property owner of rights

and privileges enjoyed by other property owners in the same zoning district.

(2) The requested variance does not go beyond the minimum necessary to afford relief,

and does not constitute a grant of special privilege inconsistent with the limitations uponother properties in the zoning district in which the subject property is located;

Staff Comment: In regards to the request to the waiver of the lot merger requirement, the existing lot

merger is not the result of the actions of the owner or applicant.

The requested reduction of the rear yard setback on lot 1 from 40 feet to 30 feet appearsto go beyond the minimum required to afford relief.

Along the front of lot 26, the applicant has requested a reduction of the average front yard setback. Based on the buildable area, it appears that the setback goes beyond the

minimum necessary as the footprint of the home could be adjusted to meet the setback. Inreviewing the building footprint on lot 26, the requested reduction of the rear yardsetback from 40 feet to 30 feet appears to be the minimum required to build a home and

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n ,

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F r o n t



setback from 40 feet to 30 feet appears to be the minimum required to build a home and

therefore, will not appear to constitute granting of a special privilege.

(3) The grant of the variance will not be materially detrimental to the public welfare orinjurious to the property or improvements in the zoning district in which the subject


Granting of the rear yard setback from 40 feet to 30 feet as requested for lot 1 may bematerially detrimental, as the applicant has requested more than needed.

The request to reduce the average setback on lot 26 may have a negative impact as the

request would deviate from the requirement of the average setback and also from the

required front yard setback of the R-75 zoning district, which is 30 feet. Due to theirregular shape of lot 26, which constrains the buildable area, the request to reduce the

rear setback to 30 feet will not be detrimental to the public welfare or injurious to the

property.



impose a casual/discretionary inconvenience upon the applicant or his/her assigns; and

Staff Comment:

It appears that the literal interpretation and strict application of the zoning requirements

concerning the lot merger requirement would cause undue hardship as the applicantwould not have the ability to revert the subject property to the original plat and to the

original two lots of record without granting of a variance.

The literal interpretation and strict application of this chapter may cause undue and

unnecessary hardship to lot 1 if a reduction of the rear yard setback is not granted as it is

a corner lot requiring the application of two front yard setbacks impacting the buildingenvelope. However, the reduction of the rear yard setback from 40 feet to 30 feet for lot

1 is more than is needed as it appears that a lesser reduction would provide for the

proposed home.

Strict application of the rear yard setback requirement for lot 26 may place undue and

unnecessary hardship on the applicant as there may not be the necessary lot depth to

construct the proposed home. As noted, the proposed dwelling footprint could bereconfigured to meet the average setback in the front yard, which may be viewed as a

mere discretionary inconvenience.


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Y a r d S e t b a c k f r o m 4 0 '

t o 3 0 ' , R e d u c e A v e r a g e

F r o n t





Staff Comment:Generally, based on the proposed development of two single-family detached residences,


STAFF RECOMMENDATION

Staff recommends the Board vote in favor of the lot merger waiver requirement and thereduction of the rear yard setback for lot 26 as requested.

Staff recommends the Board vote to deny the reduction of the average front yard setback for lot

26 and the reduction of the rear yard setback from 40 feet to 30 feet for lot 1 and substitute in

lieu thereof 35 feet (lot 1).

The following conditions are recommended:

1. Development of the lot shall occur in accordance with the site plan submitted March 18,2014 to the Community Development Department.

2. Lot 1 shall apply a minimum rear yard setback of 35 feet.

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MEMORANDUM




ISSUE/AGENDA ITEM TITLE:ZBA14-10: Bright Ventures LLC/Hakim Hilliard - Reduce the Side Yard Setback Along Curtis

Drive from 50’ to 39’, Reduce the Rear Yard Setback from 30’ to 10’, Reduce the TransitionalBuffer Zone Along the West Property Line from 50’ to 21’ and Reduce Parking from 72 to 45

Spaces - 3020 Buford Highway




ATTACHMENTS:

ZBA 14-10 Revised Staff memo (DOCX)


ZBZ14-10_ Letter to Property Owners from Applicant (PDF)

ZBA14-10 site plans (PDF)

E.3



Case: ZBA14-10

Location: 3020 Buford Highway, Brookhaven, GA 30319

Tax Parcel # 18-156-05-022

Property Owner/ Imran Sirani

Applicant: Bright Ventures, LLC/ Hakim Hilliard

Request: To reduce the front yard setback facing Curtis Drive of from 50 feet

to 39 feet, reduce rear yard setback from 30 feet to 10 feet, reduce the

transitional buffer zone requirement from 50 feet to 21 feet along theinterior side property line, and reduce the on-site parking

requirement from 72 required spaces to 45 spaces.

DESCRIPTIONThe applicant is requesting four variances associated with this case as noted:

A. Reduce the side yard setback facing Curtis Drive from 50 feet to 39 feet

B. Reduce the rear yard setback from 30 feet to 10 feetC. Reduce the transitional buffer zone requirement from 50 feet to 21 feet along the interior

side property line

D. Reduce the on-site parking requirement from 72 required spaces to 45 spaces

SITE PLAN AND SITE ANALYSIS The subject property consists of 0.898 acres (39,153 square feet) and is located on a corner lotalong the northwest side of Buford Highway and Colonial Drive. The property is zoned C-1

(Commercial District) and is immediately bordered by a multi-family apartment complex to thesouthwest of the property. Across Buford Highway, there are a variety of commercial uses that

include a restaurant, bank, convenience store, service station and hotel. Based on the submittedsite plan, the lot conforms to minimum district standards of 20,000 square feet and 100 feet of

street frontage. The subject property currently contains a 2,839 square foot supermarket with 19

parking spaces. The applicant intends to redevelop the site into a two-story building with a 5,000square foot grocery store on the ground level and a 5,500 square foot retail and office space on

the top level. Based on a total of 10,500 square feet of development which includes office/retail

(the office and retail square footages have not been provided by the applicant) and a grocerystore, the parking required ranges from 72 to 80 spaces. The site plan indicates 72 with the

request to reduce to 45 spaces.

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f f m e m o ( 1 3 2 0 : Z B A 1 4 - 1 0 : B r i g h t V e n t u r e s L L C / H a k i m

H i l l i a r d - R e d u c e t h e S

i d e Y a r d S e t b a c k A l o n

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CRITERIA TO BE USED BY THE BOARDThe applicant seeks a variance to a development standard. Consideration of this request should

v i s e d S t a f


reason of exceptional topographic conditions, which were not created by the owner orapplicant, the strict application of the requirements of this chapter would deprive the

property owner of rights and privileges enjoyed by other property owners in the same

zoning district;

Staff Comment:

In reviewing the lot, there appears to be no exceptional narrowness, shallowness, or

uniqueness to its shape. The topography of the site appears to rise approximately 14 feet from the access point along Buford Highway to the rear of the property. In addition, the

western portion of the site appears to serve as a drainage swale.

The strict application of the zoning ordinance in relation to the setbacks and buffer zones, however, would appear to deprive the property owner of rights and privileges

enjoyed by other property owners along Buford Highway.


other properties in the zoning district in which the subject property is located;

Staff Comment:

In regards to the requested variances please note that A, B, and C (as noted on page 1)

appear to be the minimum necessary to afford relief and therefore would not grant a special privilege to the applicant. Pursuant to Section 27-913 the proposed parking

reduction (variance D) appears to be the minimum to afford relief as the use of thebuilding is such to make the full parking provision unnecessary.

(3) The granting of the variance will not be materially detrimental to the public welfare

or injurious to the property or improvements in the zoning district in which the subject

property is located;

Staff Comment:

It appears that granting the variances will not be materially detrimental to the public.The staff notes that the proposed development preserves and slightly enlarges the existing

buffer.

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a f f m e m o ( 1 3 2 0 : Z B A 1 4 - 1 0 : B r i g h t V e n t u r e s L L C / H a k i m



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(4) The literal interpretation and strict application of the applicable provisions orrequirements of this chapter would cause undue and unnecessary hardship, not merely

v i s e d S t a



Staff Comment:The proposed development appears to be consistent with the terms of the Comprehensive

Plan which identifies the site in the commercial redevelopment corridor.

STAFF RECOMMENDATIONStaff recommends the Board vote in favor of the requested variances with the following

condition:

1. Development of the lot shall occur in accordance with the site plan submitted March 5,

2014 to the Community Development Department.

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A t t a c h m e n t : Z B A 1 4 - 1 0 s i t e p l a n s ( 1 3 2 0 : Z B A 1 4 - 1 0 : B r i g h t V e n t u r e s L L C / H a k i m H i l l i a r d - R e d u c e t h e S i d e Y a r d S e t b a c k A l o n g C u r t i s D r i v e )



E . 3 . d




MEMORANDUM




ISSUE/AGENDA ITEM TITLE:ZBA14-11: Wayne Nicholls - Increase Lot Coverage from 35% to 53.8% and Reduce Setback

for an Accessory Structure (Swimming Pool and Associated Patio) from 10’ to 1’ - 2508Appalachee Drive NE



over or under)


ATTACHMENTS:

ZBA 14-11 Revised Staff memo (DOCX)


ZBA14-11 warranty deed (PDF)


E.4



Case: ZBA14-11Location: 2508 Appalachee Drive NE, Brookhaven, GA 30319

Tax Parcel # 18-238-13-016

Property Owner/

Applicant: Wayne Nicholls

Request: Reduce the setback of an accessory structure (swimming pool and

associated patio) from 10 feet to 1 feet and increase the lot coverage

from 35% to 53.8%.

DESCRIPTION

The applicant is requesting the following variances:A. To reduce the setback of an accessory structure (pool/patio) from 10 feet to 1 feet, and

B. To increase the lot coverage from 35% to 53.8%.

SITE PLAN AND SITE ANALYSIS The subject property is a corner lot located on the southwest of the intersection of CanoocheeDrive and Appalachee Drive. The property is zoned R-75 (Single-Family Residential District)

and is immediately surrounded by R-75 zoned properties to the south, east, and west of the property. To the north, there are three residences zoned R-A8 and to the northwest across the

intersection is RM-100. The property is a legal non-conforming lot of record as it totals 0.212

acres (9,251 square feet) and has 50 feet of street frontage along Appalachee Drive wherein thedistrict requires a minimum of 10,000 square feet and 75 feet of street frontage. It should be

noted that much of the neighborhood contains legal non-conforming lot widths, as many of the

lots, including the subject property, were originally platted with 50 foot frontages. Currently the

property utilizes roof downspouts routed to underground detention and infiltration systems.Additionally, the pool is screened by an 8 foot high fence and landscaping.

CRITERIA TO BE USED BY THE BOARD The applicant seeks a variance to a development standard. Consideration of this request should

be made under the terms of the following criteria, found in the City Zoning Ordinance:

No relief may be granted or action taken under the terms of this division unless such relief can begranted without substantial detriment to the public good and without substantial impairment of


Appeals shall apply the following criteria to the types of applications specified below as follows:

(a) Variances from the provisions or requirements of this chapter shall be authorized only uponmaking all of the following findings:

E.4.a

v i s e d S t a f f m e m o

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Staff Comment:

The legal non-conforming lot appears to be exceptionally narrow. Given the character of

the area, the strict application of the requirements of this chapter would appear todeprive the owner the same rights and privileges enjoyed by others in the same district.

(2) The requested variance does not go beyond the minimum necessary to afford relief,

and does not constitute a grant of special privilege inconsistent with the limitations uponother properties in the zoning district in which the subject property is located;

Staff Comment:

In regards to the requested variances please note:

A. The pool/spa/patio are currently constructed. Therefore, the relief sought is the

minimum to afford relief based upon the constructed components. It appears that

granting of A. does not go beyond the minimum necessary and does not constitute a

granting of special privilege.

B. The lot coverage is also existing on grade and could be reduced. Based upon

information provided by the applicant, it appears that other properties in the area exceedlot coverage, and granting of this variance does not afford a special privilege

inconsistent with the limitations upon other properties within the same zoning district.



Staff Comment:The pool is enclosed by a privacy fence and detached garage. In addition, stormwatermanagement techniques have been employed. Therefore, the request does not appear to

be detrimental to the public welfare.




Staff Comment:

It appears that the literal interpretation and strict application of the requirements of the

chapter may cause hardship. The applicant’s letter of intent reveals not granting therequests may result in financial hardship which does not appear to be a causal

inconvenience.

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Staff recommends the Board vote in favor of the application and suggests the following

condition(s):

1. Development of the lot shall occur in accordance with the site plan submitted February18, 2014 to the Community Development Department.

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P g .

4 2 7




P a c k e t P

. 4 . c

A t t a c h m e n t : Z B A 1 4 - 1 1 w a r r a n t y d e e d ( 1 3 2 1 : Z B A 1 4 - 1 1 : W a y n e N i c h o l l s - I n c r e a s e L o t C o v e r a g e f r o m 3 5 % t o 5 3 . 8 % a n d R e d u c e S e t b a c k f o r A n )



E

E . 4 . c

A t t a c h m e n t : Z B A 1 4 - 1 1 w a r r a n t y d e e d ( 1 3 2 1 : Z B A 1 4 - 1 1 : W a y n e N i c h o l l s - I n c r e a s e L o t C o v e r a g e f r o m 3 5 % t o 5 3 . 8 % a n d R e d u c e S e t b a c k f o r A n )



E

E . 4 . d

A t t a c h m e n t : Z B A 1 4 - 1 1 s i t e p l a n s ( 1 3 2 1 : Z B A 1 4 - 1 1 : W a y n e N i c h o l l s - I n c r e a s e L o t C o v e r a g e f r o m 3 5 % t o 5 3 . 8 % a n d R e d u c e S e t b a c k f o r A n )



E.5



MEMORANDUM




ISSUE/AGENDA ITEM TITLE:

ZBA14-12: Alton Moss - Increase Lot Coverage from 35% to 39% - 1380 Sylvan Circle



STAFF RECOMMENDATION:

Please see attached files.

ATTACHMENTS:

ZBA 14-12 revised Staff memo (DOCX)


E.5.a



Case: ZBA14-12

Location: 1380 Sylvan Circle, Brookhaven, GA 30319Tax Parcel # 18-238-06-046

Property Owner/ Conbar, LLC

Applicant: Alton Moss

Request: To increase lot coverage from 35% to 39%

DESCRIPTIONThe applicant is requesting a variance to increase the lot coverage from 35% to 39%.

SITE PLAN AND SITE ANALYSIS The subject parcel totals 0.145 acres (6,310 square feet) and has 50 feet of street frontage along

Sylvan Circle wherein the district requires a minimum of 10,000 square feet and 75 feet of street

frontage. The property is zoned R-75 (Single-Family Residential District) and is immediatelysurrounded by R-75 zoned properties. The site consists of a residential structure. The site plan

indicates an increase in lot coverage from 35% to 39% to construct a larger driveway.

CRITERIA TO BE USED BY THE BOARDThe applicant seeks a variance to a development standard. Consideration of this request should

be made under the terms of the following criteria, found in the City Zoning Ordinance:

No relief may be granted or action taken under the terms of this division unless such relief can begranted without substantial detriment to the public good and without substantial impairment of


Appeals shall apply the following criteria to the types of applications specified below as follows:(a) Variances from the provisions or requirements of this chapter shall be authorized only uponmaking all of the following findings:

(1) By reason of exceptional narrowness, shallowness, or shape of a specific lot, or byreason of exceptional topographic conditions, which were not created by the owner or



zoning district;

Staff Comment:

The applicant acquired a building permit and constructed a home in compliance with thechapter and therefore has not been deprived of rights and privileges enjoyed by others in

Z B A 1 4 - 1 2 r e v i s

e d S t a f f m e m o ( 1 3 2 2 : Z B A 1 4 - 1 2 : A l t o n M o s s

- I n c r e a s e L o t C o v e r a g e f r o m 3 5 % t o 3 9 % )

E.5.a



Staff Comment:

The requested variance does not appear to go beyond the minimum necessary to afford

relief but would appear to grant a special privilege inconsistent with lot coverage placedupon other properties in the same district.



Staff Comment:

Due to the potential for greater storm water run-off, granting the requested variance maybe detrimental to the public welfare or injurious to the property and surrounding area.


requirements of this chapter would cause undue and unnecessary hardship, not merelyimpose a casual/discretionary inconvenience upon the applicant or his/her assigns; and

Staff Comment: It appears that the literal interpretation and strict application of requirements wouldmerely impose an inconvenience to the applicant, as they would be required to have a

smaller driveway.




STAFF RECOMMENDATIONStaff recommends the Board deny the variance.

Z B A 1 4 - 1 2 r e v i s

e d S t a f f m e m o ( 1 3 2 2 : Z B A 1 4 - 1 2 : A l t o n M o s s

- I n c r e a s e L o t C o v e r a

g e f r o m 3 5 % t o 3 9 % )

E . 5 . b

k e t P g .

4 3 4

A t t a c h m e n t : Z B A 1 4 - 1 2 a p p l i c a t i o n ( 1 3 2 2 : Z B A 1 4 - 1 2 : A l t o n M o s s - I n c r e a s e L o t C o v e r a g e f r o m 3 5 % t o



P a c k

E . 5 . b

k e t P g .

4 3 5




P a c k

E . 5 . b

k e t P g .

4 3 6




P a c

E . 5 . b

c k e t P g .

4 3 7




P a c

E . 5 . b

c k e t P g .

4 3 8




P a c

E . 5 . b

c k e t P g .

4 3 9




P a

E . 5 . b

a c k e t P g .

4 4 0




P a

E . 5 . b

a c k e t P g .

4 4 1




P a

E . 5 . b

P a c k e t P g .

4 4 2




P

E . 5 . b

P a c k e t P g .

4 4 3




P

E.6



MEMORANDUM




ISSUE/AGENDA ITEM TITLE:ZBA14-13: Michalene and Gerald Donegan - Reduce Side Yard Setback from 10' to 5.2' - 3028

Mabry Road




ATTACHMENTS:

ZBA 14-13 Staff memo (DOCX)


ZBA14-13 site plan (PDF)

E.6.a



Case: ZBA14-13Location: 3028 Mabry Road, Brookhaven, GA 30319

Tax Parcel # 182 274 01 048

Property Owner/

Applicant: Michalene and Gerald Donegan

Request: To reduce the side yard setback from 10 feet to 5.2 feet to construct an

enclosed two-car garage

DESCRIPTION

The applicant is requesting a variance associated with this case as noted:

A. To reduce the side yard setback from 10 feet to 5.2 feet to construct an enclosed two-car

garage (Section 27-146 (d)).

SITE PLAN AND SITE ANALYSIS

The subject property exists as an interior lot along the west side of Mabry Road, approximately300 feet north of its intersection with East Brookhaven Drive. The applicant proposes to renovate

the existing single family structure. Complete renovations will include the construction of an

enclosed two-car garage. The existing structure includes a carport that is setback 5.2 feet from theside property line.

The subject parcel totals 0.31 acres or 14,442 square feet. The current zoning of this property is R-100 (Single Family Residential District). The subject property is surrounded by single familyresidential uses. The applicant desires to expand the original footprint of the carport that will not

encroach further into the side yard setback than the existing carport.


The applicant seeks a variance to a development standard. Consideration of this request should be

made under the terms of the following criteria, found in the City Zoning Ordinance:

No relief may be granted or action taken under the terms of this division unless such relief can begranted without substantial detriment to the public good and without substantial impairment of the

intent and purpose of this chapter and the comprehensive plan text. The Zoning Board of Appeals

shall apply the following criteria to the types of applications specified below as follows: 1 3 S t a f f m e m o ( 1 3 2 3 : Z B A 1 4 - 1 3 : M i

c h a l e n e a n d G e r a l d D o

n e g a n - R e d u c e S i d e Y

a r d S e t b a c k f r o m 1 0 ' t o 5 . 2

' )

E.6.a




zoning district;

Staff Comment:

The shape of the lot and the existing structure appears to restrict the applicant from

constructing a two-car garage according to applicable standards. The strict applicationof the requirement of this chapter would deprive the property owner of rights and privileges

enjoyed by adjoining property owners in the same district.

(2) The requested variance does not go beyond the minimum necessary to afford relief, and

does not constitute a grant of special privilege inconsistent with the limitations upon other properties in the zoning district in which the subject property is located;

Staff Comment:

The proposed reduction in the side yard setback from 10 feet to 5.2 feet would meet theminimum necessary to afford relief to the applicant. The proposed enclosed garage would

maintain the existing setback of the carport, and would not encroach further into the side

yard setback. It is also worthy to note that the subject property is significantly smaller

than surrounding parcels within the neighborhood. The variance request does not appearto constitute a grant of special privilege inconsistent with the limitation upon other

properties.


injurious to the property or improvements in the zoning district in which the subject


Staff Comment:

Based on the applicant’s request, the granting of the setback reduction would not appearto be detrimental to the public welfare or injurious to the property or improvements in the

zoning district. It shall be noted that the existing carport currently has a side yard setback

of 5.2 feet. The applicant seeks to preserve the original side yard setback to accommodate

the two-car garage.


requirements of this chapter would cause undue and unnecessary hardship, not merelyimpose a casual/discretionary inconvenience upon the applicant or his/her assigns; and 1

3 S t a f f m e m o ( 1 3 2 3 : Z B A 1 4 - 1 3 : M i c h a l e n e a n d G e r a l d D o



' )

(5) Th t d i ld b i t t ith th i it d f thi h t

E.6.a






STAFF RECOMMENDATIONStaff recommends the Board vote in favor of the requested variance and suggests the following

condition(s):

1. Development of the subject property shall occur in accordance with the site plan submittedon March 4, 2014 to the Community Development Department.

1 3 S t a f f m e m o ( 1 3 2 3 : Z B A 1 4 - 1 3 : M i c h a l e n e a n d G e r a l d D o



' )

E . 6 . b

P a c k e t P g .

4 4 8

A t t a c h m e n t : Z B A 1 4 - 1 3 a p p l i c a t i o n ( 1 3 2 3 : Z B A 1 4 - 1 3 : M i c h a l e n e a n d G e r a l d D o n e g a n - R e d u c e S i d e Y a r d



E . 6 . b

P a c k e t P g .

4 4 9




E . 6 . b

P a c k e t P g .

4 5 0




E . 6 . b

P a c k e t P g .

4 5 1




E . 6 . b

P a c k e t P g .

4 5 2




E . 6 . b

P a c k e t P g .

4 5 3




E . 6 . b

P a c k e t P g .

4 5 4




E . 6 . b

P a c k e t P g .

4 5 5




E . 6 . b

P a c k e t P g .

4 5 6




E . 6 . b

P a c k e t P g .

4 5 7




E . 6 . b

P a c k e t P g .

4 5 8




E . 6 . b

P a c k e t P g .

4 5 9




E . 6 . b

P a c k e t P g .

4 6 0




E . 6 . c

A t t a c h m e n t : Z B A 1 4 - 1 3 s i t e p l a n ( 1 3 2 3 : Z B A 1 4 - 1 3 : M i c h a l e n e a n d G e r a l d D o n e g a n - R e d u c e S i d e Y a r d S e t b a c k f r o m 1 0 ' t o 5 . 2 ' )



E.7



MEMORANDUMMEETING OF: April 16, 2014



ISSUE/AGENDA ITEM TITLE:ZBA14-14: Ryan and Irina Connelly - Reduce Rear Yard Setback from 30’ to 15’ for Deck

Addition and Reduce Setback for an Accessory Structure (Fireplace) from 10’ to 3’ - 2423Coosawattee Drive




ATTACHMENTS:




Site plan 2 (PDF)

E.7.a

A d d i t i o n



Case: ZBA14-14Location: 2423 Coosawattee Drive

Tax Parcel # 18 238 08 037

Property Owner/

Applicant: Ryan & Irina Connelly

Request: To reduce the rear yard setback from 30 feet to 15 feet for a deck

addition; to reduce the setback of an accessory structure from 10 feet

to 3 feet.

DESCRIPTIONThe applicant is requesting two variances associated with this case as noted:

A. To reduce the rear yard setback from 30 feet to 15 for a deck additionB. To reduce the side yard setback of an accessory structure (fireplace) from 10 feet to 3 feet

SITE PLAN AND SITE ANALYSISThe subject property exists as an interior lot along the east side of Coosawattee Drive,approximately 100 feet north of its intersection with Tugaloo Drive. The subject parcel is 0.138

acres or 6,001 square feet. The current zoning of this property is R-A8 (Single Family Residential)

District.

The rear end of the existing principal structure currently abuts the rear yard setback. The existing

wood deck encroaches into the minimum rear yard setback by 9 feet. The applicant desires to

lower the existing wooden deck and construct an outdoor fireplace. An expansion in the existingfootprint of the wooden deck is requested to allow proper accessibility to the new fireplace. The

applicant seeks to add four (4) additional steps to the lowered deck in order to expand the deck out

further by a maximum of 6 feet towards the rear yard setback. The applicant has requested avariance to reduce the rear yard setback from 30 feet to 15 feet for the purpose of expanding the

wooden deck. A second variance is requested to reduce the accessory structure setback for an

outdoor fireplace (accessory structure) from 10 feet to 3 feet, per the site plan received by Staff onMarch 4, 2014. The correct reduction in the setback for the fireplace would appear to be 4 feet

and not 3 feet. The proposed square footage of the added deck and new fireplace is 142 square

feet.

The expansion of the wooden deck and addition of the fireplace (accessory structure) on the subjecta

f f m e m o ( 1 3

2 4 : Z B A 1 4 - 1 4 : R y a n a

n d I r i n a C o n n e l l y - R e d

u c e R e a r Y a r d S e t b a c k

f r o m 3 0 ? t o 1 5 ? f o r D e c k A

No relief may be granted or action taken under the terms of this division unless such relief can be

granted without substantial detriment to the public good and without substantial impairment of the

i t t d f thi h t d th h i l t t Th Z i B d f A l

E.7.a

A d d i t i o n



intent and purpose of this chapter and the comprehensive plan text. The Zoning Board of Appeals

shall apply the following criteria to the types of applications specified below as follows:(a) Variances from the provisions or requirements of this chapter shall be authorized only upon




applicant, the strict application of the requirements of this chapter would deprive the property owner of rights and privileges enjoyed by other property owners in the same

zoning district;

Staff Comment:There does not appear to be a reason relating to the narrowness, shallowness or shape of

the lot, which would preclude the construction of a deck and an accessory structure

(fireplace). The proposal to construct the fireplace in the southwest portion of the propertyis resulting in a variance created by the applicant. There appears to be other area in the

rear yard wherein an accessory structure could be built without a variance.

(2) The requested variance does not go beyond the minimum necessary to afford relief, anddoes not constitute a grant of special privilege inconsistent with the limitations upon other

properties in the zoning district in which the subject property is located;

Staff Comment:

Based upon the applicant’s request to enlarge the existing deck, the variance request is the

minimum to afford relief as the rear yard is constrained by the 15-foot sanitary sewer

easement. There is additional area available in the rear yard to locate a fireplace withouta need for a variance. Therefore the request goes beyond the minimum necessary to afford

relief and may grant a special privilege inconsistent with the limitation upon other

properties in the zoning district in which the subject property is located.



Staff Comment:

The granting of the reduction in the rear yard setback for the deck expansion would notappear to be detrimental to the public welfare or injurious to the property or improvements

a f f m e m o ( 1 3

2 4 : Z B A 1 4 - 1 4 : R y a n a


u c e R e a r Y a r d S e t b a c k

f r o m 3 0 ? t o 1 5 ? f o r D e c k A




E.7.a

A d d i t i o n




Staff Comment:

Application of the minimum rear yard setback may cause an unnecessary hardship by not

allowing the expansion of the deck in the area of the existing deck. However, the literalinterpretation and application of the applicable provisions for the accessory structure

would merely impose an inconvenience as an alternative location is available in the rear

yard for the construction of a fireplace without a variance.

(5) The requested variance would be consistent with the spirit and purpose of this chapterand the DeKalb County Comprehensive Plan text.

Staff Comment:

The requested variances would have no impact on the terms of the Comprehensive Plan.


Staff recommends the Board vote in favor of the variance to reduce the rear yard setback from 30feet to 15 feet.

Staff recommends the Board vote to deny the reduction of the accessory structure setback from 10

feet to 3 feet.

The following condition is recommended:

1. Development of the lot shall occur in accordance with the site plan submitted March 4,

2014 to the Community Development Department.

a f f m e m o ( 1 3 2 4 : Z B A 1 4 - 1 4 : R y a n a


u c e R e a r Y a r d S e t b a c k f r o m 3 0 ? t o 1 5 ? f o r D e c k

E . 7 . b

P a c k e t P g .

4 6 7

A t t a c h m e n t : Z B A 1 4 - 1 4 a p p l i c a t i o n ( 1 3 2 4 : Z B A 1 4 - 1 4 : R y a n a n d I r i n a C o n n e l l y - R e d u c e R e a r Y a r d S e t b a c k



E . 7 . b

P a c k e t P g .

4 6 8




E . 7 . b

P a c k e t P g .

4 6 9




E . 7 . b

P a c k e t P g .

4 7 0




E . 7 . b

P a c k e t P g .

4 7 1




E . 7 . b

P a c k e t P g .

4 7 2




E . 7 . b

P a c k e t P g .

4 7 3




E . 7 . b

P a c k e t P g .

4 7 4




E . 7 . b

P a c k e t P g .

4 7 5




E . 7 . b

P a c k e t P g .

4 7 6




E . 7 . b

P a c k e t P g .

4 7 7




E.7.c

i o n a n d R )



Packet Pg. 478

A t t a c h m e n t : Z B A

1 4 - 1 4 s i t e p l a n ( 1 3 2 4 : Z B A 1 4 - 1 4 : R y a n a n d I r i n a C o n n e l l y

- R e d u c e R e a r Y a r d S e t b a c k f r o m 3 0 ? t o 1 5 ? f o r D e c k A d d i t i

E.7.d



A t t a c h m e n t : S i t e p l a n 2 ( 1 3 2 4 : Z B A 1 4 - 1 4 : R y a n a n d I r i n a C o n n e l l y - R e d u c e R e a r Y a r d S e t b a c k f r o m 3 0 ? t o 1 5 ? f o r D e c k A d d i t i o n a n d R )

E.8



MEMORANDUMMEETING OF: April 16, 2014



ISSUE/AGENDA ITEM TITLE:ZBA14-15: Ralph Reilly - Reduce Stream Buffer from 75' to 50' to Construct a Single Family

Home - 2465 E. Osborne Road





ATTACHMENTS:




Case: ZBA14-15

E.8.a

a m i l y H o m e )



Location: 2465 East Osborne Road

Tax Parcel #: 18 241 16 016

Property Owner/ Margaret Coleman

Applicant: Ralph Reilly

Request: A variance to reduce the stream buffer requirement from 75 feet to 50

feet for construction of a single family home with a screened porch and

deck.

DESCRIPTIONThe applicant is requesting a variance associated with this case as noted:

A. To reduce the stream buffer requirement from 75 feet to 50 feet for construction of ascreened porch and deck.

The stream buffer application was received after the stream buffer moratorium was lifted and priorto the adoption of the amended ordinance on March 25, 2014. Therefore, review of this requestfalls under the previous ordinance. In that regard, the Director opted not to consider the request

administratively which is construed as a denial and therefore defaults to the ZBA for consideration.

SITE PLAN AND SITE ANALYSISThe subject property exists as an interior lot along the north side of East Osborne Road,

approximately 300 feet west of its intersection with Camille Drive and approximately 550 feet east

of the intersection with Green Meadows Lane. The subject property is rectangular in shape andhas approximately 65 feet of street frontage along East Osborne Road. The centerline of a creek

serves as the rear property line for the subject property.

There is an existing single family home on the parcel. The lot size of the subject property is 0.28

acres or 12,220 square feet. The current zoning of this property is R-75 (Single Family Residential)

District.

The applicant proposes to construct a single family dwelling to be situated approximately 34.2 feetfrom the property line. The proposed house will be 3,227 square feet and include a screen porch

and deck with a lot coverage of 30.28%. It is evident from the applicant’s site plan that themajority of the proposed screen porch and a portion of the deck is expected to be located within

a f f m e m o ( 1

3 2 5 : Z B A 1 4 - 1 5 : R a l p h

R e i l l y - R e d u c e S t r e a m

B u f f e r f r o m 7 5 ' t o 5 0 '

t o C o n s t r u c t a S i n g l e F

Protection Division (EPD) pursuant to O.C.G.A. § 12-2-8. This first twenty five (25) feet adjacent

to the stream is the purview of the EPD and has not been requested. (The pertinent Land

Development Regulations which include stream buffers for the City of Brookhaven fall under the provisions of DeKalb County’s Development Code (Chapter 14), as adopted by City of

E.8.a

a m i l y H o m e )



Brookhaven.)

The following criteria shall be considered in evaluating the stream buffer variance request:(A) The request will be protective of natural resources and the environment as would a plan

which met the strict application of these requirements. In making such a judgment, the

Board shall examine whether the request will be at least as protective of the naturalresources and the environment with regard to the following factors:

1. Stream bank or soil stabilization;

2. Trapping of sediment in surface runoff;

3. Removal of nutrients, heavy metals, pesticides and other pollutants from surface runoff;4. Terrestrial habitat, food chain, and migration corridor;

5. Buffering of flood flows; and

6. Infiltration of surface runoff.

Staff Comment:

According to the stream buffer variance requested, the applicant agrees to the following:

1. No disturbance within the stream bank. Additionally, soil stabilization will be conducted

on the property, as per the manual for Erosion and Sedimentation Control in Georgia;

2. Double silt fence will be utilized on the site;3. Proper erosion control for trapping of nutrients, heavy metals, pesticides and other

pollutants from the surface runoff;

4. N/A – No terrestrial habitat, food chain or migration corridor exists on the site;

5. No flood zone area, per FEMA Map # 13089C00525 dated 5/16/2013; and6. Proper erosion control for infiltration and surface runoff.

(B) By reason of exceptional topographic or other relevant physical conditions of the subject property that were not created by the owner or applicant, there is no opportunity for any

development under any design configuration unless a variance is granted.

Staff Comment:

Approximately 51% of the site is covered by the undisturbed buffer on the rear of the subject property, which is a relevant physical condition. However, a different design may be possible with

less encroachment.

a f f m e m o ( 1

3 2 5 : Z B A 1 4 - 1 5 : R a l p h


B u f f e r f r o m 7 5 ' t o 5 0 '

t o C o n s t r u c t a S i n g l e F

ability to construct a home with an alternative footprint on the site to be compliant with the stream

buffer that may not deprive the property owner of rights and privileges enjoyed by other property

owners in the area. However, this would require the applicant to construct a home that is less

than 3,200 square feet. According to the applicant’s letter of intent, to build a new home

bl di i ld i h d

E.8.a

F a m i l y H o m e )



comparable to surrounding new properties would require a home as proposed.

(D) The grant of the variance will not be materially detrimental to the public welfare orinjurious to the property or improvements in the area in which the property is located.

Staff Comment:Staff would recognize that the subject property presents environmental challenges associated with

the stream buffer. Given appropriate mitigation and recommended conditions, granting a variance

to the stream buffer would not appear to be detrimental to the public welfare of the area.

According to the site plan, vegetation is evident within the proposed footprint of the house and

screen porch. The existing site analysis shows 22” and 13” hardwood s that could possibly be

impacted within the 75-foot stream buffer.

(E) The literal interpretation and strict application of the applicable provisions or requirements

of Chapter 14 would cause an extreme hardship, provided the hardship was not created bythe owner.

Staff Comment:

Staff would recognize that the subject property presents environmental challenges associated withthe stream buffer not created by the owner. There may be potential for a home with an alternative

footprint to be built outside of the stream buffer.

RECOMMENDATIONStaff recommends the Board vote in favor of the requested variance with the following

condition(s):

1. Development of the subject property shall occur in accordance with the site plan

submitted on March 4, 2014 to the Community Development Department.

a f f m e m o ( 1

3 2 5 : Z B A 1 4 - 1 5 : R a l p h


B u f f e r f r o m 7 5 ' t o 5 0 '

t o C o n s t r u c t a S i n g l e

E . 8 . b

P a c k e t P g .

4 8 4

A t t a c h m e n t : Z B A 1 4 - 1 5 a p p l i c a t i o n ( 1 3 2 5 : Z B A 1 4 - 1 5 : R a l p h R e i l l y - R e d u c e S t r e a m B u f f e r f r o m 7 5 ' t o 5 0 '



E . 8 . b

P a c k e t P g .

4 8 5




E . 8 . b

P a c k e t P g .

4 8 6




E . 8 . b

P a c k e t P g .

4 8 7




E . 8 . b

P a c k e t P g .

4 8

8




E . 8 . b

P a c k e t P g .

4 8

9




E . 8 . b

P a c k e t P g .

4 9

0




E . 8 . b

P a c k e t P g .

4 9

1




E . 8 . b

P a c k e t P g .

4 9

2




E . 8 . c

A t t a c h m e n t : Z B A 1 4 - 1 5 s i t e p l a n ( 1 3 2 5 : Z B A 1 4 - 1 5 : R a l p h R e i l l y - R e d u c e S t r e a m B u f f e r f r o m 7 5 ' t o 5 0 ' t o C o n s t r u c t a S i n g l e F a m i l y H o m e )



E . 8 . c




MEMORANDUM

MEETING OF: April 16 2014

E.9






ISSUE/AGENDA ITEM TITLE:ZBA14-16: Rockhaven Homes LLC - Reduce Rear Yard Setback from 40' to 20' to Construct a

Single Family Home - 1290 Oaklawn Avenue





ATTACHMENTS:




E . 9 . a

P a c k e t P g .

4 9

7

A t t a c h m e n t : Z B A 1 4 - 1 6 a p p l i c a t i o n ( 1 3 2 6 : Z B A 1 4 - 1 6 : R o c k h a v e n H o m e s L L C - R e d u c e R e a r Y a r d S e t b a c k



E . 9 . a

P a c k e t P g .

4 9

8




E . 9 . a

P a c k e t P g .

4 9 9




E . 9 . a

P a c k e t P g .

5 0 0




E . 9 . a

P a c k e t P g .

5 0 1




E . 9 . a

P a c k e t P g . 5

0 2




E . 9 . a

P a c k e t P g . 5

0 3




E . 9 .

b

P a c k e t P g . 5

0 4

A t t a c h m e n t : Z B A 1 4 - 1 6 s i t e p l a n ( 1 3 2 6 : Z B A 1 4 - 1 6 : R o c k h a v e n H o m e s L L C - R e d u c e R e a r Y a r d S e t b a c k



E . 9 .

b

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Case: ZBA14-16

Location: 1290 Oaklawn Avenue

Tax Parcel #: 18 241 04 012Property Owner/ Linda Langford Tawzer

Applicant: Rockhaven Homes, LLC

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Request: To reduce the rear yard setback from 40 feet to 20 feet for the

construction of a single family residential home.


A. To reduce the rear yard setback from 40 feet to 20 feet for the construction of a singlefamily residential home (Section 27-196 (e).

SITE PLAN AND SITE ANALYSISThe subject property is located at the northeastern corner of the intersection of Oaklawn Avenue

and Apple Valley Road. The property is zoned R-75 (Single Family Residential District) and is

located in the Brookhaven-Peachtree Overlay District. The subject parcel totals 0.23 acres (9,904

square feet). The existing parcel has approximately 105 feet of street frontage along Apple ValleyRoad and 68 feet of street frontage along Oaklawn Avenue. The applicant seeks to construct a

two-story “Glenwood” style home with a width of 31 feet and depth of 66 feet. The proposed area

for the primary structure is identified as 4,092 square feet.

The applicant is seeking to demolish an existing home and re-construct a larger home on the subject

property. The new single family structure proposes a 20-foot encroachment to the rear yard

setback. The applicant seeks to reduce the minimum rear yard setback from 40 feet to 20 feet.


The applicant seeks a variance to a development standard. Consideration of this request should bemade under the terms of the following criteria, found in the City Zoning Ordinance:

No relief may be granted or action taken under the terms of this division unless such relief can begranted without substantial detriment to the public good and without substantial impairment of the

intent and purpose of this chapter and the comprehensive plan text. The Zoning Board of Appealsshall apply the following criteria to the types of applications specified below as follows:

(a) Variances from the provisions or requirements of this chapter shall be authorized only upon

making all of the following findings:f f

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Staff Comment:

The building envelope as the result of required setbacks does not create exceptional shape for

the lot. The requested building footprint that has been created by the owner or applicant results

in an encroachment into the rear yard setback which may not be necessary. The strict

application of the requirements of this chapter may not deprive the property owner of rightsand privileges enjoyed by other property owners in the same zoning district.

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(2) The requested variance does not go beyond the minimum necessary to afford relief, and

does not constitute a grant of special privilege inconsistent with the limitations upon other

properties in the zoning district in which the subject property is located;

Staff Comment:

The requested variance to reduce the rear yard setback appears to go beyond the minimumnecessary to afford relief and may grant a special privilege inconsistent with other propertieswithin the zoning district.



Staff Comment:The granting of this variance request maybe materially detrimental to the public welfare in

that there appears a sizable home could be built within the established building envelope.

(4) The literal interpretation and strict application of the applicable provisions or requirements

of this chapter would cause undue and unnecessary hardship, not merely impose a

casual/discretionary inconvenience upon the applicant or his/her assigns; and

Staff Comment:

The literal interpretation and strict application of the applicable provisions of this chapter

may not cause undue or unnecessary hardship to the applicant but may merely impose aninconvenience as an alternative building footprint could be reconfigured to comply with the

requirements of the setbacks.

(5) The requested variance would be consistent with the spirit and purpose of this chapter and

the DeKalb County Comprehensive Plan text.


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MEMORANDUM



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ISSUE/AGENDA ITEM TITLE:ZBA14-17: Nelson Consunji - Reduce Front Yard Setback from 109.4' to 76.6' to Construct a

Staircase - 4189 Oak Forest Drive NE




ATTACHMENTS:




Case: ZBA14-17

Location: 4189 Oak Forest Drive NE

Tax Parcel #: 18 330 11 012Property Owner/

Applicant: Nelson S. Consunji

R T d h f d b k f 109 4 f 76 6 f f h

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Request: To reduce the front yard setback from 109.4 feet to 76.6 feet for the

addition of a front entry staircase to a new single family structure.


To reduce the front yard setback from 109.4 feet to 76.6 feet for the addition of a frontentry staircase to a new single family structure (Section 27-788).

SITE PLAN AND SITE ANALYSIS

The property is zoned R-100 (Single family residential district). The lot on which the proposedhome to be built totals 0.457 acres (19,940 square feet) and has 100 feet of street frontage along

Oak Forest Drive. The lot is rectangular in shape and exists as a legal conforming lot of record.

The parcel appears to be steep and heavily wooded with an existing residential structure locatedon site.

The applicant seeks a variance for a front entry staircase to be located 76.6 feet from the front property line, in lieu of the required 109.4 feet. The applicant was originally granted a variance to

reduce the front yard setback form 109.4 feet to 89 feet.

The proposed single family structure is approximately 50 feet deep, excluding the front and rear porches. The proposed front porch is 8 feet deep with an uncovered attached staircase that is 12.5

feet deep. The rear porch adds an additional 12 feet in overall building depth. The total building

depth of the single family structure is 82.5 feet.

The new single family structure with the staircase proposes a 32.8-foot encroachment to the

average front yard setback. The applicant seeks to encroach into the front yard setback an

additional 12.4 feet from the approved variance.


The applicant seeks a variance to a development standard. Consideration of this request should be

made under the terms of the following criteria, found in the City Zoning Ordinance:7

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1. By reason of exceptional narrowness, shallowness, or shape of a specific lot, or by reason

of exceptional topographic conditions, which were not created by the owner or applicant,

the strict application of the requirements of this chapter would deprive the property ownerof rights and privileges enjoyed by other property owners in the same zoning district;

Staff Comment:

The topography of the site slopes upward approximately 22 feet from the front of thet t th t f th d f t t t i Gi thi diti t ti

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property to the top of the proposed front entry staircase. Given this condition, not granting

the variance request may create conditions that would preclude construction of a front

entry staircase depriving the property owner of rights and privileges enjoyed by other property owners in the same zoning district.

2. The requested variance does not go beyond the minimum necessary to afford relief, anddoes not constitute a grant of special privilege inconsistent with the limitations upon other properties in the zoning district in which the subject property is located;

Staff Comment: Based on the design of the home, it appears that the requested variance is the minimum

required to complete the project. According to the site plan, the proposed location of the

front entry staircase to the new structure will be setback 76.6 feet from the front property

line. Staff would note that more shallow setbacks exist along the block. This is evident at4165 and 4211 Oak Forest Drive where setbacks are approximately 70 feet; thus, the

granting of the variance will not constitute a special privilege.

3. The grant of the variance will not be materially detrimental to the public welfare or

injurious to the property or improvements in the zoning district in which the subject


Staff Comments:

The granting of this variance may not be materially detrimental to the public welfare as

the front entry staircase provides an aesthetic entryway for the home.

4. The literal interpretation and strict application of the applicable provisions or requirements

of this chapter would cause undue and unnecessary hardship, not merely impose acasual/discretionary inconvenience upon the applicant or his/her assigns; and

Staff Comment: The strict application of this provision of the code may cause an undue hardship due to theexisting topography of the site.

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Staff recommends the Board vote in favor of the request for reduction of the front yard setbackwith the following condition(s):

1. Development of the subject property shall occur in accordance with the site plan

submitted on March 4, 2014 to the Community Development Department.

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2014-04-16 zoning board of appeals - full agenda-1181 (1)

Documents