A resident is alleging Brookhaven City Council did not follow legal procedure when it approved a mixed-use development on Dresden Drive and is asking a judge to reverse the rezoning decision.
Steve Pepmiller, who lives on Caldwell Road, filed suit in DeKalb Superior Court on Feb. 23, just a month after the council voted to rezone to PC-2, pedestrian community, the nearly 4 acres in the Brookhaven Peachtree Overlay District near the MARTA station and where the DeKalb tag office is located. The city has 30 days to respond.
The rezoning makes way for the construction of a 5-story complex with 169 apartments and retail shops on the ground floor. The development will also include a six-level parking deck, seven for-sale townhouses facing Caldwell Road and the Dixie Moon restaurant on Caldwell Road.
The rezoning is “rife with procedural defects,” said Pepmiller’s attorney, Lawton Jordan, of the firm Williams Teusink LLC.
“We don’t believe the rezoning was validly passed,” Jordan said. “We’re asking the court to rule the rezoning was improper … and revert back to the prior zoning.”
Mayor John Ernst and each of the council members along with SSP Dresden, the company seeking to develop the property, are named as defendants in the lawsuit.
“While the city cannot comment on the specifics of pending litigation, it is a right of any resident or developer to ask a court of law to review our processes as they have done in this case,” Communications Director Burke Brennan said in an email.
SSP Dresden, part of the Connolly Realty and Investment development firm, did not respond to a request for comment.
Pepmiller, who was one of dozens of people who showed up at City Hall to oppose the project, saying it would lead to a “concrete canyon” on Dresden Drive, says in his lawsuit that the rezoning decision is unconstitutional.
“There is a lot of concern from many residents,” Jordan said. “There are many people who share Mr. Pepmiller’s reservations about this development.”
The lawsuit alleges the city removed the definitions of “medium density,” “high density” and “very high density” in early 2016 from the zoning code without public input and without review by the Planning Commission.
The lawsuit also questions the city’s definition of “contiguous” and the city’s approval of five stories for Dresden Village rather than the allowed four stories. SSP Dresden presented the city with a site plan that it states provides 32 percent contiguous public green space. The city zoning code states if a development’s site plan includes 25 percent or more “contiguous” public green space, the development is allowed to request an additional story.
Pepmiller and his lawyers say the Dresden Village site plan’s green space is not contiguous and there are four areas where the green space does not touch and are divided by driveways and buildings within the development.
“The various site plans submitted by the applicant attempt to achieve this open space requirement by adding up various segregated portions of the property,” states the lawsuit. “However, these various open spaces are neither singular nor contiguous as is required by the code.”
Pepmiller in his lawsuit also alleges the city violated the zoning code by approving a revised site plan submitted just a few days before the council vote without posting it publicly in time for a thorough review by the public. The lawsuit also states the city’s approval for Dresden Village is actually “spot zoning” and not legal.