Developers of a proposed mixed-use project on the former Hastings Nursery site are heading to the state Court of Appeals in their challenge to the city’s rejection of the plan.

JLB Realty and SDS Real Property sued the city and some individual residents last year after the city did not issue a land disturbance permit for property located at 3920, 3926 and 3930 Peachtree Road 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 Google Earth image of the former Hastings Nursery site on Peachtree Road at Colonial Drive in Brookhaven.

A Google Earth image of the former Hastings Nursery site on Peachtree Road at Colonial Drive in Brookhaven.

In June, DeKalb County Superior Court Judge Clarence Seeliger ruled the city was right to deny the permit because, among other reasons, the developers did not complete the rezoning process.

JLB Realty and SDS Real Property appealed the ruling, and on Aug. 16 the Court of Appeals agreed to hear the case.

The developers argue in their appeal that the apartments they are seeking to build are located within the area of the property zoned for commercial use and that the Overlay District allows them to build the apartments in a commercial zone. They add that they are not planning to develop the parcel that is zoned single-family residential.

The development, named JLB Porter Square, includes plans for 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. The residents named in the lawsuit hired zoning attorney Doug Dillard of Pursley, Friese, Torgrimson to represent them.

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

“We’re not against development in general, we’re against an 87-foot high-rise towering over our neighborhood,” Historic Brookhaven resident Gayle Sherlag, a defendant in the lawsuit, said in 2015.

Under the developers’ original plans filed with the city, the apartments would be built 30 feet into that forested buffer, and the plans are to keep only 30 feet of landscaped buffer space between the neighborhood and the development. That space will also include a detention pond and a public open space.

The city supported the development during the rezoning process, stating in a memo to the Planning Commission in 2015 that “the emerging trend for mixed-use, pedestrian-friendly development along Peachtree Road as part of the Brookhaven-Peachtree Overlay District, the subject property appears to be underutilized.

“The requested PC-2 [Pedestrian Community] zoning would allow for a density and use that is consistent with the Brookhaven-Peachtree Overlay District, and the policy and intent of the Comprehensive Plan,” the memo stated.

On May 7, 2015, developers applied to the city for a land disturbance permit and then on May 26, 2015, withdrew its rezoning application. They were seeking to rezone the property from C-1 (commercial) and R-100 (single-family residential) to PC-2.

“Having failed to complete that [rezoning process], they would have been able to obtain a land development permit,” Seeliger said in his June decision in favor of the city.

The city declined to comment on the case. Attorneys for the residents and the developers did not return requests for comment.

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