DRUID HILLS CIVIC ASSOCIATION, INC. et al.
BUCKLER et al.; and vice versa
Reconsiderations denied July 23 and July 24, 2014 -- Cert. applied for.
Zoning. DeKalb Superior Court. Before Judge Jackson.
Robert H. Benfield, Jr. , Jenkins & Bowen, Frank E. Jenkins III, for appellants.
Duane D. Pritchett , John E. Jones, Jr. , Roberts & Daughdrill, Brian E. Daughdrill , Matthew Momtahan , Alston & Bird, Peter M. Degnan, for appellees.
BRANCH, Judge. Barnes, P. J., and Boggs, J., concur.
These companion appeals arise from a superior court's grant of the developers Robert Buckler and Anthony McCullar's motion to dismiss the petition for certiorari of the Druid Hills Civic Association and two of its members (collectively, " the Association" ) as to the [328 Ga.App. 486] DeKalb County Planning Commission's approval of the developers' plans for Clifton Ridge, a subdivision in the Druid Hills area of Atlanta. Case No. A14A0138 is the Association and certain of its members' interlocutory appeal from the trial court's grant of the developers' motion to dismiss the petition for lack of standing. Case No. A14A0139 is the developers' cross-appeal from the superior court's ruling in the same order that the Association's 2012 petition was a valid renewal of its original 2011 petition. We conclude that the Association's 2012 petition is a valid renewal action, but that because
the developers failed to raise the matter of the Association's standing before the Planning Commission, they were not entitled to raise that issue for the first time in the superior court. We therefore affirm in Case No. A14A0139 and reverse and remand for further proceedings in Case No. A14A0138.
This is the fourth time this litigation has required this Court's attention. In 2004, the developers bought the three contiguous lots at issue on Clifton Road, Atlanta. The first major stage in this ligitation, including its first three appeals, involved proceedings before DeKalb County's Historic Preservation Commission (HPC). The second and current stage in the dispute began in December 2010, when the director of the DeKalb County Planning Department told one of the developers that the HPC did not have jurisdiction over the subdivision of the property because the subdivision of vacant land in a historic district did not require a certificate of appropriateness. In February 2011, the developers applied directly to the Planning Department for approval of their plans for the subdivision, which would transform three preexisting residential lots into seven new ones. On March 2, 2011, the Planning Department informed the developers that although the Department's own staff had approved their application, the DeKalb County Law Department had advised [328 Ga.App. 487] the Planning Department that the developers " most likely" needed a certificate of appropriateness from the HPC.
On March 9, 2011, the DeKalb County Planning Commission held its first hearing on the developers' application. After the conclusion of that hearing, the developers were asked to explain why a certificate of appropriateness was not required. The developers argued in writing that under the Georgia Historic Preservation Act, OCGA § 44-10-20 et seq., a subdivision of unimproved residential lots did not amount to a " material change in the appearance" of a historic property, structure, or site requiring a certificate of appropriateness. OCGA § 44-10-27 (a).
The public agenda for the second hearing, held on April 13, 2011, included the Planning Commission's staff recommendation that although the proposed plat complied with zoning requirements, the sketch plat should be rejected as incompatible with " historic patterns within the district" under DeKalb County Ordinance § 14-183 (b) and as missing a certificate of appropriateness required under DeKalb County Ordinance § 14-96 (a) (8). At the hearing, the Association's counsel and one Druid Hills property owner, Elise Riley, spoke against the proposed subdivision. ...