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SDS Real Property Holdings, Ltd. v. City of Brookhaven

Court of Appeals of Georgia, Second Division

June 20, 2017

SDS REAL PROPERTY HOLDINGS, LTD et al.
v.
THE CITY OF BROOKHAVEN et al.

          DOYLE, C. J., MILLER, P. J, and REESE, J.

          Doyle, Chief Judge.

         This Court granted the application for discretionary review filed by SDS Real Property Holdings, LTD, and JLB Realty, LLC ("the Developers"), who now appeal from a superior court order affirming the decision of the City of Brookhaven Zoning Board of Appeals ("the ZBA"), which upheld the Planning Director's refusal to issue a land disturbance permit ("LDP") to the Developers. The Developers argue that the superior court erred by affirming the denial of the LDP because (1) underlying residential density requirements did not apply because they conflict with the overlay district regulations; (2) residential density requirements did not apply because no livable structure was planned for the underlying residentially zoned property; (3) rezoning was unnecessary in order for issuance of an LDP, and therefore, denial of the LDP by the BZA resulted in exhaustion of administrative remedies; and (4) the court failed to apply the de novo standard of review. For the reasons below, we reverse.

We review the construction of a zoning ordinance under a de novo standard. The scope of review of the superior court is limited to all errors of law and determination as to whether the judgment or ruling below was sustained by substantial evidence. . . . The construction of a zoning ordinance is a question of law for the courts. Zoning ordinances are to be strictly construed in favor of the property owner. [Because] statutes or ordinances which restrict an owner's right to freely use his property for any lawful purpose are in derogation of the common law, they must be strictly construed and never extended beyond their plain and explicit terms.[1]

         Viewed in this light, the record shows that the Developers own property consisting of three parcels and approximately 4.6 acres of land within the municipal boundaries of the City of Brookhaven. Each parcel was originally zoned individually under the residential or commercial zoning ordinances. As to this underlying zoning, most of the property was zoned C-1, which allows only commercial and office uses but no residential. The rear portion of the property was zoned R-100, which allows single-family detached dwellings only. In addition to the underlying zoning, all three lots were included in the Brookhaven-Peachtree Overlay District ("Overlay District"), which runs along Peachtree Street and encompasses a number of parcels all with different underlying zoning. The Overlay District contains its own zoning rules allowing for mixed-use, high-density development on any of the parcels contained in the district regardless of underlying zoning, and if the provisions of the Overlay District conflict with the underlying zoning, the Overlay District provisions govern.

         In October 2014, the Developers submitted a request for rezoning of the entire property from C-1 and R-100 to PC-2 in order to build a high-density mixed-use development. In May 2015, the Developers submitted a LDP application pursuant to the Overlay District provisions, seeking to build a multistory building, including 276 residential multifamily units, 11, 300 square feet of office space, and 19, 500 square feet of commercial space on the property.[2] Instead of waiting for a decision on the pending rezoning application, the Developers withdrew it to await a decision on the LDP.

         The Planning Director denied the LDP, finding that the Developers needed to have the property rezoned in order to proceed. The Planning Director concluded that underlying R-100 zoning on part of the property contained a density requirement that precluded the development proposed by the Developers. The Planning Director stated that "[w]herein the . . . Overlay District is absent of density[, ] the existing R-100 has a mandated density of one single-family detached dwelling permitted per parcel." The Developers appealed to the ZBA, and the ZBA affirmed the denial of the permit after a hearing.

         The Developers then filed a petition for writ of certiorari to the superior court, challenging the denial of the permit. After a hearing, the superior court found that the Developers failed to exhaust their administrative remedies by withdrawing their rezoning application. Additionally, the superior court found that the ZBA's decision was supported by the record and not an abuse of discretion.

         1. The Developers argue that the superior court erred by affirming the denial of the LDP because the underlying R-100 zoning provisions conflict with the overlay district regulations and, therefore, do not apply. We agree.

         As an initial matter, the Developers contend that the superior court applied the incorrect legal standard to their appeal. We agree that the superior court failed to apply the appropriate de novo standard of review to the interpretation of the zoning ordinances at issue, and thus, its review was flawed from the outset.[3]

         Applying that standard here, the Developers are correct that the Planning Director and ZBA incorrectly interpreted the zoning ordinances to require a rezoning in this instance.

         Pursuant to City of Brookhaven Code Section 27-31, "[d]ensity means the number of dwelling units per acre of land, " "dwelling, single-family, means a building designed for and containing one dwelling unit, " and "dwelling unit, multifamily, means one or more rooms with a private bath and kitchen facilities comprising an independent, self-contained residential unit in a building containing four or more dwelling units."

         R-100 designated lots are restricted by floor area, numbers of structures, and lot coverage, requiring minimum lot sizes of 15, 000 square feet, minimum dwelling sizes of no less than 2, 000 square feet, coverage not exceeding 35 percent, and a single dwelling plus allowable accessory buildings, such as garages or sheds.[4]

         C-1 zoned lots are intended to provide retail shopping and service areas within the city, and a list of allowable establishments are contained in the code; lot coverage is limited to 80 ...


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