The house under construction at 2802 Ashford Road.

The house under construction at 2802 Ashford Road.

Angry Ashford Park neighbors told Brookhaven City Council that the city’s handling of permits for a new home in their neighborhood has them questioning their confidence in the new city.

On Nov. 22, residents addressed the City Council before a special called private meeting. They are concerned about a home being built at 2802 Ashford Road that they say is far closer to the street than it should be under city zoning regulations.

According to the DeKalb County zoning code adopted by Brookhaven, there is a minimum setback – the distance a house may be built from the street – for each zoning district. In addition, some areas have another requirement for an average setback, meaning a property owner must take an average of the setbacks of the homes on either side of their property.

This provision is meant to protect the look of the neighborhood so that the homes on the street are relatively in alignment.

The city has issued a stop-work order for the Ashford Road house, which is about three-quarters complete. On Nov. 12, Community Development Director Susan Canon told the City Council that her department had issued the permit to build the home by mistake without realizing the average setback requirement.

“I believe that what was relied upon was the minimum of the district which was 35 feet, versus the average setback,” Canon said Nov. 12. “Had it been the minimum of the district it would have met that requirement. We made a mistake. We issued it in error.”

The Ashford Park residents told City Council they want the city to be accountable and come up with a way to remedy the situation.

“The streetscape is a very, very important factor,” Dan Maloy said. “I own three properties on Ashford Road. It very much matters to me.”

Others said they felt the city’s planning department is understaffed because there doesn’t seem to be enough inspectors.

Ashford Park resident John McGrew told council he thought the new city would have a better control over zoning issues.

“There was one reason in the end we decided to support [the creation of] the city of Brookhaven, and that was zoning,” McGrew said.

Carl Myers said the house under construction damages the streetscape of Ashford Road. He said he’s disappointed that this happened under the new city’s watch.

“I thought it was going to be better enforcement, better oversight, but we’ve gone in the other direction,” Myers said.

Doug Dillard, an attorney representing the property owners, told council members his clients are “innocent victims.”

“They in good faith relied on permits issued by the city,” Dillard said.

Dillard called the requirement to average the two neighboring properties to find the average setback “arbitrary and capricious.” He said his clients recognize that a retaining wall on their property does not meet the code and they are prepared to rebuild it. He hopes they won’t need it, but they have also applied for a variance with the Zoning Board of Appeals to allow the house to be completed as is.

“We hope we can work it out,” Dillard said. “We either work it out this way or we’ve got a damage claim against somebody.”

City Attorney Tom Kurrie told council members there is no action they could take at this time. However, he did prepare a written opinion on the issue. He said because the houses on either side of the home under construction are in different residential zoning districts, he doesn’t believe the owners are required to abide by the average setback requirements.

“Since you cannot average a cohort which contains only a single ‘comparable,’ we are of the opinion that the setback averaging requirement does not apply,” Kurrie wrote in his opinion.

Councilman Jim Eyre said the city needs to look at ways of providing the Community Development Department resources that will allow them to be more vigilant on zoning matters.

“We have problems that go beyond just this house,” Eyre said. “It may mean we need to provide additional staff.”

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