The state Supreme Court last month denied the city of Brookhaven’s petition to ask the court to hear its appeal in the lawsuit over a proposed development on Peachtree Road that dates back to 2015.

Councilmember Bates Mattison, far left, with Community Development Director Patrice Ruffin, talks with residents who have concerns about the proposed Brookhaven-Peachtree Overlay District rewrite. (Dyana Bagby)

The Supreme Court’s denial means the Court of Appeals decision that the city was wrong to deny a land disturbance permit to developers JLB Realty and SDS Real Property stands.

“We lost,” City Manager Christian Sigman said at a Jan. 16 public meeting called by Councilmember Bates Mattison to allow residents to ask questions of staff about the Brookhaven-Peachtree Overlay District rewrite slated to be voted on by the City Council on Jan. 23 after Mattison asked it be delayed from a November vote.

JLB Realty and SDS Real Property in 2015 sued the city and some individual residents after the city refused to issue a land disturbance permit for property located at 3920, 3926 and 3930 Peachtree Road, what is known as the former Hastings Nursery site, for a mixed-use development on the nearly 5 acres. The property abuts the Historic Brookhaven neighborhood and lies within the Brookhaven-Peachtree Overlay District.

A DeKalb Superior Court judge ruled in 2016 in the city’s favor, leading the developers to take the case to the Court of Appeals where they came out victorious. The city then attempted to appeal all the way to the state Supreme Court, but on Dec. 11 the high court denied to hear the case.

The development, named JLB Porter Square, included plans for a 6-story building with 273 apartments, 17,695 square feet of retail and commercial space, 2,500 square feet for a leasing office and 6,691 square feet for an enclosed amenity area.

Residents of Historic Brookhaven strongly opposed the mixed-use development with several hiring their own attorney to represent them.

Historic Brookhaven residents asked developers three years ago to include keeping the 150-foot forested buffer at 3926 Peachtree Road zoned R-100 for single-family residential and to not disturb it. That property lies between the commercially zoned parcels on Peachtree Road and a handful of backyards of Brookhaven Drive homes.

Under the developers’ original plans filed with the city, the apartments would be built 30 feet into that forested buffer, and the plans were to keep only 30 feet of landscaped buffer space between the neighborhood and the development.

At the Jan. 16 meeting, Bob Connelly, president of the Historic Brookhaven Neighborhood Association, said his neighborhood is now opposing the portion of the Overlay District rewrite that would include changing the R-100 buffer area into the new Peachtree Road-1 District. The Overlay rewrite divides the area into three Peachtree Road, or PR, districts.

PR-1 is the same as what is currently known as sub-area 1 and includes the Peachtree Road corridor from North Druid Hills Road to Oglethorpe University where high density development is encouraged. Connelly and others fear removing the specific R-100 zoning that dates back to before city incorporation could open the door to developers encroaching into that 150 foot forested area and the current mandate of a 30-foot setback.

The proposed Overlay District rewrite includes a revision by the Planning Commission addressing neighborhood transition areas in the PR districts that states, “The required buffer must have a width of at least 30 feet or a width equal to 15 percent of the depth of the subject lot, whichever is greater” and would provide more of a setback, according to city officials.

Sigman said, however, that because the city lost the lawsuit with JLB Realty and SDS Real Property, a developer could come in and have the legal right to build what was proposed in 2015.

“The litigation is over, but until the Overlay is passed there is still a 30-foot setback,” Sigman said.

Historic Brookhaven residents want the city to somehow come up with a way to legally preserve the buffer area without changing its designation in the proposed Overlay District rewrite.

“We request that the City Council and city leadership protect the 150 feet transitional green space by either designating it as a permanent green space, or removing it from the buildable area of the Peachtree Overlay,” Connelly wrote in a letter to the City Council and Planning Commission that was presented to Councilmember Mattison at the Jan. 16 meeting.

“By protecting and preserving this R-100 150-foot buffer that has existed for decades between the city of Brookhaven’s premier neighborhoods and its developing urban area, the city will allow for development that is both environmentally friendly and forward thinking,” Connelly stated.

Mattison said he also has concerns about the Overlay District rewrite in that it allows development by right without a public rezoning process.

“We have a very impassioned public” that remains involved in zoning issues, he said. And part of the reason the city of Brookhaven was founded five years ago was to have more local control of zoning, he added.

“We don’t want to be that city that can’t get development through,” Mattison said, “but at the same time this is a leap of faith I’m personally uncomfortable with.”