The city of Brookhaven will pay up to $20,000 to Ashford Road residents to cover their legal expenses stemming from a lawsuilt.
The city of Brookhaven will pay up to $20,000 to Ashford Park residents to cover their legal expenses stemming from a lawsuilt.

Brookhaven City Council has voted to approve a settlement agreement to end a lawsuit with residents of Ashford Park.

The residents sued the city over the way officials handled a permit for a new home in their neighborhood, which they say was allowed to be built too close to the street in violation of the city’s zoning regulations.

“I just want to say I’m glad this issue has been resolved,” said Mayor J. Max Davis at the council’s March 25 meeting.

The settlement stipulates that the city will pay the Ashford Park residents up to $20,000 to cover their legal fees related to the lawsuit. City officials also agreed to pay the neighbors on either side of the house at 2802 Ashford Road, Todd Varino and Maxine Robinson, $10,000 each to install a landscaping buffer on their property lines.

The most controversial piece of the settlement agreement involves procedures for future construction in Ashford Park. Until the city of Brookhaven adopts a new zoning map, all building permit applications for the Ashford Park neighborhood will require a map of the parcel and the parcels contiguous to it from DeKalb County’s zoning map.

“I’m disappointed that we elected to go that route,” said Councilman Jim Eyre, who represents Ashford Park.  Eyre said he would have liked for that procedure to apply to all building permits in the city.

Linda Dunlavy, the attorney representing the Ashford Park residents, also said she was disappointed that the regulations would only apply to Ashford Park.

“We would have preferred that it be citywide, and it makes more sense to be citywide,” Dunlavy said. “But the Ashford Park compromise is obviously acceptable.”

Dunlavy said with several months until the city will be ready to adopt a new zoning map, she’s surprised that the council elected only to apply those regulations to one neighborhood.

“There is very little doubt in my mind that the zoning map is invalid –  that it wasn’t adopted properly,” Dunlavy said.

But Davis said city staff already verifies zoning before issuing permits. “It shouldn’t be seen as an affront to a particular neighborhood. It should be seen as a negotiation in a settlement,” Davis said.

In July, Brookhaven issued a building permit for 2802 Ashford Road. A stop work order was issued in November after neighbors raised concerns that the home was being built too close to the road, in violation of the zoning regulations.

According to the DeKalb County zoning code adopted by Brookhaven, there is a minimum setback – the distance a house may be built from the street – for each zoning district. In addition, some areas have another requirement for an average setback, meaning a property owner must take an average of the setbacks of the homes on either side of their property.

This provision is meant to protect the look of the neighborhood so that the homes on the street are relatively in alignment.

Initially, Planning Director Susan Cannon said that the building permit for 2802 Ashford Road had been issued in error because the average setback was not considered.

But City Attorney Tom Kurrie later issued an opinion that because the houses on either side of the property have different residential zoning classifications, the setback averaging requirement did not apply.

In December, the stop work order was lifted, and construction continued.

Brookhaven officials have said they believe as much as 20 years’ worth of files are missing from the zoning map that was adopted from DeKalb County at the time the city incorporated. The city has hired a firm to conduct an audit of the zoning map which is expected to be completed later this year.

“We arrived at an agreement that I think maybe everybody’s not happy with on both ends,” Davis said. “It was a way to make sure that our city was not at odds with citizens, whether the city had some culpability in the original issue, whether it was DeKalb County, whether it was a surveyor, whether it was a builder, whether it was excited passions that maybe spilled over a little too much, that’s all behind us now.

“I think that our staff is and has been doing a good job these last few months making sure issues like those that arose on this street don’t happen again.”