The Orchard at Brookhaven, an assisted living facility that specializes in caring for those with dementia, recently opened on Buford Highway, a large, yellow “pre-leasing” banner still hanging over its front entrance.

Just yards from that front entrance is a dirt path that runs along Buford Highway, created over many years by people walking along the busy thoroughfare despite a lack of sidewalks. That dirt path is supposed to become a 10-foot-wide sidewalk and a 5-foot-wide landscape strip, a condition the city put on the developer when the property was rezoned two years ago to make way for the 79-unit facility. Another stretch of frontage along Buford Highway in front of the new building is also supposed to have the same requirements.

The dirt path in front of the Orchard at Brookhaven on Buford Highway is the subject of a dispute about a sidewalk and a landscape strip. (Dyana Bagby)

But the developer says it cannot build the full 15 feet of sidewalks and landscape strips along both stretches because a faulty survey of the site came up 4 feet short, leaving only 11 feet to construct the required sidewalks and strips. The developer is now asking the council to alter its zoning condition for the building that sports the address 1634 Afton Lane despite having an entrance and exit right off Buford Highway. The building is at the corner of Buford Highway and Afton Lane.

The mayor and City Council members argued changing the zoning requirements on sidewalks and landscaping size would set a bad precedent for how it plans to guide redevelopment along Buford Highway, including construction of multiuse paths bordered by 5-foot landscape strip to provide a safety barrier between pedestrians and cars racing by on the busy Buford Highway. The city’s comprehensive plan for Buford Highway also includes creating a more walkable community including encouraging the development of mixed-use projects with sidewalks, trails and bike paths.

City officials are also aware of the Georgia Department of Transportation’s upcoming “pedestrian safety project” to build wider sidewalks and create larger barriers between pedestrians and the fast cars zooming along the six-lane thoroughfare.

New or upgraded sidewalks are planned to be built on nearly 3 miles between Afton Lane to Shallowford Terrace. Property appraisals and negotiations are underway for right-of-way for this project, according to GDOT spokesperson Natalie Dale. There are 90 parcels required for the project. The project is expected to go out to bid in Spring of 2021 and construction to start in the summer of 2021.

Following two deferrals on the request to change the zoning conditions in April and May, accompanied by heated exchanges between council members and representatives for the developer, the council is set to again consider the developer’s request to reduce the sidewalk zoning requirement at its June 25 meeting.

‘It’s just 4 feet of landscaping’

Doug Dillard is the high-profile zoning attorney representing the developer, Green Implementation Group. He told the council at its April 23 meeting a faulty survey led to a faulty site plan and 4 feet less than the developer originally believed he had along Buford Highway. Building out the full 10-foot sidewalk and 5-foot landscape strip would mean taking out some of the already constructed surface parking lot fronting Buford Highway.

He asked the council to change its zoning requirement and require the developer build only a 1-foot landscape strip, keeping the full 10-foot sidewalk.

The mandated 5-foot landscape strip between the road and the sidewalk is necessary to separate pedestrians, such as mothers walking with young children in strollers, from the busy traffic racing by on Buford Highway, Councilmember Linley Jones argued.

“It’s just 4 feet of landscaping,” an exasperated Dillard told the council.

“If it’s just 4 feet of landscaping, then deed the right-of -way to the city so we can give it to GDOT … so there won’t be condemnation,” Mayor John Ernst shot back at Dillard. “After all, it’s just 4 feet of landscape.”

Dillard declined to do so on behalf of his client.

City Manager Christian Sigman also questioned why the developer was just now seeking a zoning modification. The building was under construction for a year and a half, he said, and there should have a been a point much sooner in the process to notice there was not enough space to build the required 10-foot sidewalk and 5-foot landscape strip.

Ernst said the city is “between a rock and a hard place” on the zoning modification request. If the zoning modification is approved, then all future developers along Buford Highway will be asking for the same leeway, he said.

“This would be setting a precedent … for future zoning on Buford Highway,” he said.

Jones also said it should not be the city’s responsibility to compromise its conditions due to a mistake made by a surveyor hired by the developer. “This is a critically important road that goes through our city,” she said. “And we have deep concern for safety.” That landscape strip is a “visible divider” that protects pedestrians, she added.

Ernst also pointed out that the argument is not about 1 foot or 5 feet of landscaping. The city made zoning requirements for 15 feet of property along the new development.

“We’re arguing about 15 feet … and it’s always been 15 feet based on the original site survey,” he said. “We’re not talking about 4 feet. The 4 feet has always been there … but now it’s not.”

Modified request includes GDOT easement

Dillard and his colleague Baxter Russell came back to the City Council on May 14 with an amended zoning modification – they asked if the council would approve the developer building 6-foot sidewalks and 5-foot landscape strips.

Councilmembers again were unimpressed.

“Your client is in an unfortunate position due to a faulty survey … but this is the future of Buford Highway,” Jones told Russell.

She said it was more appropriate for the developer to seek a remedy from the Zoning Board of Appeals, but Russell said the developer would have a difficult time proving the hardship necessary to gain a zoning variance from the ZBA.

A faulty survey may qualify as a hardship to be considered by the ZBA, Jones said.

Ernst came back to the fact that the entire zoning requirement is based on 15 feet of property along stretches of Buford Highway in front of the new senior assisted living facility. The faulty survey conducted by a firm hired by the developer is what caused this “rigmarole,” he added.

Russell, seeing he was getting nowhere with the council, said a third option could include donating a 4-foot-wide easement to GDOT for its planned sidewalk improvements along Buford Highway. In exchange, Russell said the developer could build 8-foot-wide sidewalks and 3-foot-wide landscape strips.

The developer only has 11 feet to build the sidewalks and the landscape strips, Russell said. The council said it needed more time and will take up the issue June 25.

“It’s unfortunate there has been another delay, but we are upholding the standards that are important to the future of the city,” Jones said.

Dyana Bagby

Dyana Bagby is a staff writer for Reporter Newspapers and Atlanta Intown.