The Brookhaven City Council is slated to consider in September annexing more than 15 acres of commercial and residential property south of I-85 at the busy intersection of Briarcliff and Clairmont roads.

The request comes after Brookhaven developer Jay Gibson failed to get approval from the DeKalb County Board of Commissioners to construct a new 24-hour RaceTrac gas station and convenience store, a Wendy’s restaurant and an Express Oil on the northwest corner of the intersection where an old auto repair store and several dilapidated buildings now stand.

A red arrow on the Google Map shows where the Camden St. Clair apartments are located on Brookhaven’s border. To the east of this site is four acres a local developer wants annexed into the city after failing to get approval from DeKalb County for a project.

But DeKalb Commissioner Jeff Rader said Gibson is just “shopping the zoning” to Brookhaven and he and fellow Commissioner Kathie Gannon have asked the city to deny the request.

Gibson is seeking to annex several parcels totaling approximately 4 acres. Gibson was the developer behind the Walgreens and Piedmont Health building on Peachtree Road in Brookhaven.

Joining Gibson in the annexation request are the Florida-based owners of Camden St. Clair apartments at 3000 Briarcliff Road. The property includes 336 units on approximately 13 acres, including a small cemetery.

Residents living in 271 condominiums at the Enclave on Briarcliff sitting on nearly 12 acres of land at 1100 Westchester Ridge N.E. are also separately petitioning the city to be annexed.

Several special land use permits are needed for all the properties, including rezoning from DeKalb’s ordinance to the city’s ordinance. The Planning Commission is slated to take up the SLUPS at the Sept. 5 meeting, but only the council can vote on annexations.

Attorney Carl Westmoreland represents Gibson and Camden St. Clair apartments. He said Camden St. Clair is seeking annexation because the owners believe being in the city would increase their property value. But Gibson also needs Camden St. Clair to be considered for annexation because its property borders Brookhaven and the land he wants to build on, Westmoreland said. City ordinance requires property seeking annexation be contiguous.

DeKalb County Commissioners Rader and Kathie Gannon sent a letter in July to Mayor John Ernst and the City Council asking they deny annexing property around the intersection. They say the property is better suited for a hotel rather than the small businesses Gibson is proposing.

“This location is an important one,” the letter says. “Traffic to and from I-85 destined for points along Clairmont and Briarcliff roads increasingly congest these intersections. Congestion is expected to grow due to Brookhaven’s annexation and re-entitlement of the [Tullie] Circle properties of Children’s Healthcare of Atlanta for a new hospital, yet neither Brookhaven nor CHOA propose to upgrade the intersection to accommodate the traffic.”

In 2014, the City Council approved annexing CHOA located south of I-85. CHOA is currently building out a 70-acre medical campus at I-85 and North Druid Hills Road that will include a $1.3 billion hospital. CHOA promised Brookhaven as part of the annexation to put in $4 million of its own money for I-85 underpass improvements and up to $10 million in improvements to the North Druid Hills Road interchange.

CHOA has promised millions more in transportation improvements, but only in the immediate area surrounding the campus.

Gibson and the county worked together for more than six months trying to come up with an agreement. But Gibson said repeated deferrals by the commission forced him to move on.

“We worked long and hard with Kathie Gannon and Jeff Rader and we made the plan better,” Gibson said. “But I don’t know why they kept deferring.”

Rader said a major reason for the deferrals was that Gibson could not reach any kind of agreement with the residents living in Riviera Terrace Condominiums at 3046 Briarcliff Road. This property includes 44 units.

Gibson’s proposal to the county included encroaching on the 50-foot buffer around Riviera Terrace, Rader said. Residents there asked Rader to help them find ways to mitigate the noise, smell and bright light nuisances they expect to come from a drive-through fast food restaurant and a 24-hour gas station and convenience store being built next door to them.

“For whatever reason, Gibson couldn’t reach an accord with them … not even to compensate them,” Rader said.

Gibson was seeking special land use permits from DeKalb to sell beer and wine at the RaceTrac and to build a drive-through at the Wendy’s. The DeKalb Planning Commission recommended denial of the SLUPS in May and Gibson withdrew his request in June. He submitted a SLUP and annexation request to Brookhaven in July.

“At the last minute he withdrew his request and now it appears he is shopping the zoning to the city,” Rader said. “I guess he felt Brookhaven would be more lenient.”

“Shopping zoning” is common, Rader said, especially where there are intensive negotiations.

“Regrettably, the impact will be on those … who are not Brookhaven residents,” if the annexation is approved, he said.

As county commissioners, Rader and the others are accountable to county residents and Brookhaven residents. Brookhaven elected officials, however, are only accountable to city residents.

“The county has the interest of the stakeholders in the area,” he said. “Brookhaven elected officials don’t.”

Gibson said his proposed development and annexation request would benefit Brookhaven. The area is currently blighted, he said, and new buildings at the site will clean up a visible intersection.

His proposed project includes donating right of way for a new turn lane on Clairmont Road to try to ease congestion as well as adding some green space.

“Brookhaven has to grow,” he added. “We are landlocked. I think it is critical the city continues to grow so we don’t become a victim of someone else’s growth.”