Gordon Certain
President
North Buckhead Civic Association
September 27, 2000

These days, Atlanta neighborhoods are frequently out of luck when fighting construction projects that stretch or violate legal limits. For example, The Bishop Company is at this moment building a Chick-fil-A drive-thru restaurant on Roswell Road just south of Wieuca Road.

Nearby homeowners, on quiet Midvale Drive, convinced that the project was too close to their homes, appealed the building permit when they found out about it. They and the North Buckhead Civic Association took the case to the City of Atlanta’s Board of Zoning Adjustment (BZA). The neighborhood argument, supported by both the current City Zoning Administrator and his predecessor (who jointly wrote the law years ago), was that the Bureau of Buildings had simply misread the long-standing ordinance designed to keep drive-ins well away from residential areas. The BZA found that the drive-in did not meet the requirements of the ordnance and ordered the city to revoke its building permit.

After the BZA decision, Midvale Drive neighbors were cautiously optimistic that the developer and Chick-fil-A might finally come to the table and work with them to mitigate the impact of their project’s curb cut, which threatened to inject traffic onto their street and noise into their homes. Instead, technicalities started creeping into the picture. The developer appealed to Fulton County Superior Court. Ignoring the merits of the BZA’s conclusion, that the plain English of the ordinance wasn’t followed by the city, the court found that the neighborhood didn’t appeal quickly enough.

So, it seems that the city generously offers the right to any citizen to appeal building permits, but the letter of the law is that the appeal must be filed within 30 days whether or not one could possibly know about it.

This is how it happened on Midvale. While the neighborhood and the developer were going through the city-required formal “variance” review process for a slightly different Chick-fil-A plan, the city quietly approved a new Chick-fil-A plan, the one that the BZA ultimately rejected. The neighborhood thought they were still negotiating the previous plan, but the 30-day appeal clock was already ticking.

Demolition started about six weeks after the appeal period expired; even then no building permit had been posted on the site. During much of this time, the neighborhood had periodically checked with the Bureau of Buildings, trying to find out if a permit had been issued or any site plan approved – each time the city told them that they “couldn’t find” anything.

Then a neighbor was finally able to get the plans and an appeal was quickly filed, in the belief that a fair clock should not start ticking until there was actual knowledge of the City’s actions. However, in his August ruling, the judge ruled that the neighborhood should have appealed at least six weeks before it had any knowledge of the permit.

The neighborhood continues to believe the building plan violates the ordinance. And, in spite of Chick-fil-A’s statement in its first meeting with the neighborhood, that if the neighborhood didn’t want a Chick-fil-A there, it wouldn’t be built, the project is marching on. The family-oriented restaurant chain and the builder should be ashamed for hiding behind this technicality to undermine a nice neighborhood full of young families.

If that were the end of it, it would be bad enough. But just a mile away in another part of the same North Buckhead neighborhood, other neighbors appealed a “residential” project. Their neighbor had built a city-approved “storage shed” just five feet from their back yard. This is not your everyday shed; it is a looming two-story 24’ x 30’ structure with large windows overlooking the neighbors’ patio and into their window-covered home. Worse, the neighbor manufactures furniture and had announced in an AJC interview last winter that he intended to relocate his furniture business to his residence – which would be an illegal land use according to the zoning code. Sensing that the City had once again issued a permit that exceeded the zoning ordinances, the neighbors appealed as soon as they saw the building going up. As it turned out, they were also too late – the BZA cited the Bishop/Chick-fil-A case as precedent: appeals must be filed within 30 days of permit approval. Period.

The fundamental unfairness of the situation is clear. Citizens and builders alike have a guaranteed right to appeal city mistakes. But now builders have a winning roadmap to render the neighbor’s rights meaningless: simply don’t tell anybody anything for 31 days.

What should be done? The City should appeal the Superior Court’s decision in the Bishop case. Further, the city is obligated to change its ordinances since a right to appeal without a right to know is a mockery of justice. The solution is simple: start the 30-day appeal clock when the building permit is publicly posted on the site. The city should also list new permits on their web site. Making these simple changes would go a long way to restore the neighborhood’s rights.

On October 16, 2000, in response to the issues described above, Lee Morris introduced an ordinance 00-O-l664 drafted by the City's Law Department.  Morris called it the "Chick-fil-A ordinance" when he introduced it.  The ordinance will be referred to the City's Zoning Review Board for a public comments on December 14, 2000.  Thank you Lee!

AN ORDINANCE

BY LEE MORRIS

    AN ORDINANCE TO AMEND SECTION 16-30.004 OF THE CITY OF
    ATLANTA ZONING CODE SO AS TO ADD A NEW SECTION
    16-30.004(2)

   WHEREAS, Sections 16-30.010(a) of the City of Atlanta Zoning Code provides
that any person aggrieved by any decision of an administrative official may take an
appeal to the Board of Zoning Adjustment by filing a notice of appeal within 30 days
after the action was taken;

   WHEREAS, persons affected by the issuance of building permits have had
difficulty learning when a building permit is issued and thus, in certain instances,
deprived of the right to challenge the issuance of same by appeal to the Board of
Zoning Adjustment;

   WHEREAS, it is in the best interest of the City of Atlanta [to] provide notice to
citizens who may be aggrieved by a building permit of the City of Atlanta provide notice to
citizens who may be aggrieved by a building permit that may have been issued based
on an erroneous finding of a material fact or in an arbitrary manner;

   NOW THEREFORE BE AND IT IS HEREBY ORDAINED BY THE COUNCIL
OF THE CITY OF ATLANTA AS FOLLOWS:

Section 1.  That Section 16-30.004 of the City of Atlanta Zoning Code is amended by
adding a new Section 16-30.004(2) to read as follows:

   (2) Notice:  Whenever a building permit is issued by the Bureau of
    Buildings, notice shall be provided as follows:

   a. The city shall post notice of same on the City of Atlanta Web Page;

   b. The Bureau of Buildings shall submit a copy of same to the Clerk of
Council who shall maintain files for public viewing during regular business hours
that are organized according to the month and year of issuance, and

   c. The recipient of the building permit shall post a copy of same on a sign not
less than six square feet with the words "Notice of Issuance of Building Permit" in
letters not less than four inches high in a conspicuous place on the affected property
so that the sign and the permit can be easily viewed from the public street on which
the property fronts.  Said sign shall be posted not less than 24 hours after the
issuance of the building permit and shall not be removed for 30 days.

Section 2. That all ordinances or parts of ordinances in conflict with this
ordinance shall be repealed.