By Amy Wenk

Buckhead residents are outraged over a Dec. 5 decision by the city’s Board of Zoning Adjustment (BZA) regarding a proposed subdivision at 1110 Moores Mill Road.

“The BZA meeting was the only opportunity that the affected neighbors as appellants had to stop the approval of the subdivision short of going to Superior Court,” said Robert Warlick, a member of the Neighborhood Planning Unit C (NPU-C) executive board.

But the BZA voted to deny the appeal of four property owners in NPU-C who live near the proposed development. The residents were looking to overturn the Bureau of Planning’s Aug. 28 approval of the preliminary plat, the first step in the subdivision process.

“I think the correct decision wasn’t reached,” said NPU-C Chairman Eric Ranney, who spoke on behalf the homeowners at the Dec. 5 meeting. “A lot of people are upset by this, and we need to evaluate what to do.”

The property in discussion covers 5 acres near the Carl Sanders YMCA on Moores Mill Road. Before the Graddy Development Co. purchased it, one house sat on the steep land. The owners are proposing a nine-lot development called The Villas at Moores Mill.

NPU-C opposed the initial request for the preliminary plat in September 2007. At that time, members met with the Bureau of Planning’s Subdivision Review Committee, and three problems with the application from Graddy were identified.

First, a stream runs through the property, across which the applicant proposes to run a sanitary sewer line, Ranney wrote in an e-mail recounting the meeting. City ordinances necessitate a stream buffer variance for such a crossing, but Graddy never applied for one.

“The city subdivision ordinance requires that the subdivision be denied if a variance is required for its approval,” Warlick said.

Second, the proposed lots do not have a direct connection to the public sanitary sewer. The applicant has to buy an easement from an adjacent property owner to gain sewer access. However, city ordinances require a legal right to connect to the public sewer before a subdivision is approved, Ranney said.

Third, two drainage swales were identified on the property by Dave Thomas of the Department of Watershed Management (DWM) but were not shown on the applicant’s submitted drawings. Ranney said Thomas declared the swales to be waters of the state, which would require a 25-foot buffer.

“Somehow, some way and at some time in 2008, this buffer determination requirement apparently was removed by the DWM without notice to the NPU or the neighbors,” Warlick said.

Although those issues were not resolved in the minds of neighbors, the Bureau of Planning approved the preliminary plat request Aug. 28.

The DWM told Ranney it was not necessary to provide evidence of sewer availability with the preliminary plat application, only when applying for a land disturbance permit.

“This is just a step in a much wider process,” said Christian Olteanu, the Bureau of Planning representative who reviewed the application. “The preliminary plat is an overall agreement of the city that if all requirements are met, (the developer) has the right to continue.”

He added no development could proceed without obtaining a series of permits, which each outline specific requirements.

In addition, the Department of Watershed Management said no stream bank buffer variance is required from the city or the state for a sewer line crossing that is less than 25 degrees from perpendicular.

The department also said the swales were no longer deemed waters of the state.

“Essentially, what we were told is that all these problems went away,” Ranney said.

Those three issues, however, remain of significant concern to residents because “flooding and silt sediment and erosion damage from new development have occurred frequently in our neighborhoods,” Warlick said.

In 2006 and 2007, three properties on Mornington Drive were damaged while an adjacent house was constructed at 3030 Northside Drive, he said.

“The permit to build at 3030 was based on a city stream buffer variance that the city approved, although the application referred to a different address and contained a photo of a different property than the one at issue,” Warlick said. “The inspecting DWM representative also overlooked the fact that a stream had been rechanneled in violation of state law.”

The Department of Watershed Management did not respond to the complaints of the homeowners until the residents submitted an appeal with the BZA to revoke the building permit, he said.

At the hearing, one neighbor threatened to file a complaint with the state Environmental Protection Division regarding the illegal stream rechanneling. Soon after the appellants were issued paperwork from the Department of Watershed Management revoking the building permit at 3030 Northside Drive due to stream buffer violations, said Warlick.

“The neighbors who brought the appeal of the subdivision approval at 1110 Moores Mill Road are not meddlesome adversaries to development,” he said. “The neighbors only want to protect their properties from damage caused by development and avoid the possibility of damage to their properties like … the three homeowners on Mornington Drive. If the city had followed its own stream buffer ordinances and state stream buffer law, the damage to the properties on Mornington Drive would never have occurred.”

Now that the BZA has denied the residents’ appeal, they have two options, Warlick said.

Neighbors can follow the subdivision approval process step by step to ensure each permit meets the requirements of the city ordinances and state and federal laws.

“At best, it is often difficult for the neighbors and NPU to get information from the BOP,” Warlick said. “Too often, the information we get is outdated, incomplete and/or received too late to meet deadlines for appeals. Sometimes, we don’t get information at all.”

Alternatively, the neighbors can go to the state or federal regulatory agencies that oversee land disturbance permits if the city fails to uphold required statutes during development.