A developer who grew up on Buford Highway wants to build an assisted living center across the street from his former home. But residents living in one of the last neighborhoods remaining off the busy corridor are pushing back against the plans, saying they have a 33-year-old zoning covenant that protects them from developments encroaching on their neighborhood.
It’s a zoning case that highlights issues a young city like Brookhaven faces as it works through codes handed down from a prior government — in this case, DeKalb County.
Arkadiy Yakubov said he and his family fled Russia in 1991, when he was a teen. They moved into an apartment where the Terraces at Brookhaven are now located and lived there for 13 years. Now a businessman and developer, Yakubov said he’s sunk more than $1 million into buying land and tearing down a building at 3523 Buford Highway, directly across the street from the apartment complex in which he once lived.
Yakubov, who lives in Lenox Park in Brookhaven, and his attorney, Alex Yusopov, claim they were told by Brookhaven and DeKalb officials there were no restrictions on the property zoned for commercial use, so they were moving ahead to build the assisted living facility, including demolishing an old building at the site last year.
As part of the development, however, the state fire marshal required Yakubov to build an access road south of the property, where a house now is located. To do so, he entered into a contract to buy the house on Afton Lane from the homeowner. He then went before the city’s Zoning Board of Appeals in January seeking a variance to do away with a 50-foot buffer between the house he was buying and the planned facility so he could build the mandated access lane via Afton Lane.
But when residents living on the other side of Afton Lane and on nearby Folkstone Road caught wind of the variance request, they started organizing and meeting. They showed up at the January ZBA meeting with what they saw as a “silver bullet” — a DeKalb County zoning covenant dating back to 1984 that placed strict conditions on any kind of development planned at 3523 Buford Highway, including a prohibition on access to the development property from Afton Lane.
The variance request was withdrawn and all activity on the project was stopped in its tracks.
“It was kind of epic, actually,” resident Rich Clarke said of the ZBA meeting showdown. Clarke lives on Folkstone Road and is the spokesperson for the neighborhood.
“This is the story of Brookhaven now,” Clarke said. “People want to build here and people already live here, so there’s going to be conflict. Fortunately for us, we essentially had a silver bullet … we had the law on our side thanks to the foresight of the people who lived here more than 30 years ago.”
Yakubov said he was “shocked” when the covenants that included no curb cuts at all along Afton Lane and a mandatory tree line along the same road to buffer from any future development were presented at the ZBA hearing. He was given no choice but to seek rezoning of the property. He goes before the Planning Commission on May 3.
“If I had known about the conditions, I would never have bought this property,” Yakubov said. “I’ve spent eight months on the design of this project … I went back and forth with the city four or five times. Unfortunately the city is so new and I got caught in the middle.
“I’m frankly puzzled at how the city behaved,” he added.
He said he’s already threatening legal action against the city if he does not get approval for his rezoning request and has hired the powerful zoning firm of Prusley, Friese, Torgrimson to represent him at the May 3 Planning Commission meeting.
The city denies any wrongdoing. Community Development Director Patrice Ruffin said a land disturbance permit was issued to the developer on July 26, 2016, for the demolition of the building on the site.
“We are not aware of any meetings related to this project ahead of the official LDP and variance submittals in 2016,” she said in an email. “However, as a matter of practice the department does not ‘OK’ projects verbally.”
City spokesperson Ann Marie Quill said in 2014 the city contracted with Pond & Associates to research DeKalb zoning decisions and later found nearly 1,000 errors and some that were missing records, including some records for this Buford Highway property.
Clarke said he knew there was “finger pointing” going on and he did empathize with Yakubov to some extent. He said there were two other planned developments, one in 2000 and another in 2007, before Brookhaven was incorporated, where the 1984 restrictions came into play and DeKalb County prohibited development.
“It’s an unfortunate situation for the developer,” Clarke said. “It sounds like the city should’ve known because it paid a company to import [zoning] data from the county … And somebody at the county obviously knew about the restrictions.”
At the ZBA hearing, board members scolded Yakubov for not speaking to representatives of the neighborhood about the planned development, saying it is common courtesy to do so. Since that time, Yakubov said he and his attorney, Yusopov, have met a couple times with residents. He said, though, he has told them his name is Michael Snow because it easier to pronounce.
“They’ve always been secretive,” Clarke said.
Yakubov said he sees himself as a “pioneer” for the redevelopment along Buford Highway and believes his assisted living facility fits in perfect with Brookhaven’s plans for the stretch of the road corridor where many apartment complexes are located.
Currently, PulteGroup is seeking to buy the land where the Terraces at Brookhaven and Northeast Plaza apartments are located in order to raze the complexes and build townhouses and residential homes.
“Buford Highway is due for redevelopment and I’m willing to put up $20 million for this project,” Yakubov said. “I’m a pioneer of that change.”
“This has been interesting and unusual case,” Clarke said. “My hope is it works out well for everybody.”