Tuesday, March 18, 2014

Dunwoody Special Land Use Permits - Running with the Land for Home Occupations may not be what we intended?

On October 14, 2013 we approved the Zoning Code rewrite Amending and Readopting Chapter 27. In the old regs the Special Land Use Permits (SLUPs) were granted to the applicant and in the new regs the SLUPs run with the land except that the documentation provided to Council in the Notes (143 in particular as shown below) specifically identifies that a time limit can be expressly imposed as a condition of approval. (Bottom of pg 163 in link above)

I voted for the zoning rewrite code under the belief that time limits could be put into place if appropriate to do so. Now based on conversations with staff and legal, I am told that we are not allowed to use the time limits that I intended to use on a regular basis in order to protect the long term character of our communities.

New Zoning Code and Notes:

27-19.80 City Council Public Hearing and Decision
27-19.80-A. Upon receipt of recommendations from the planning commission, the mayor and city council must hold a public hearing on the special land use permit application. Following the close of the public hearing, the mayor and city council must act by simple majority vote to approve the special land use permit, approve the special land use permit with conditions or deny the special land use permit based on the applicable review and approval criteria of Sec. 27-19.90. The mayor and city council are also authorized to defer action on the special land use permit or allow the applicant to withdraw the special land use permit without prejudice.143

143 The current ordinance requires that the city council specify a time duration on all approved SLUPs…at the time of approval. This provision has not been carried over, which means that no limitation would apply unless a time limit is expressly imposed as a condition of approval.

27-19.110 Transfer of Special Land Use147
Approved special land use permits, and any attached conditions, run with the land and are not affected by changes in tenancy or ownership.

147 This is a change. The current ordinance states that approvals are granted to persons, corporations or other legal entities and allows transfers to others only after application to the community development director.

I understand the need for some SLUPs to be tied to the land for example: a multimillion dollar church is given a SLUP to build in the R-100 zoning district and if forced to expire 5 years later it would be unfair for Council to deny the second application.

That being said, I question the home occupation Special Land Use Permits being given the same “forever status” without the ability to sunset the activity at some foreseeable time in the future.
Sec. 27-168. Home occupations.
Use permits and supplemental regulations for Type B home occupations.
(1)   Special land use permit approval required. Type B home occupations are allowed only if reviewed and approved in accordance with the special land use permit procedures of article V, division 3, provided that teaching-related home occupations conducted entirely within the principal dwelling are not subject to the special land use permit procedures, but instead require review and approval in accordance with the administrative permit procedures of article V, division 7.

This new SLUP process potentially enables 'spot zoning,' once approval is granted as the SLUP now 'runs with the land,' which means that the variance will stay in place after the property is sold. Thus, one owner can permanently change the intrinsic use and value of their property forever and force all future neighbors to have little or no recourse than to live with the business allowed to exist next door.

What if a future owner is not be a good neighbor, or may seek to expand operations causing adverse impact on neighbors; there is little legal remedy other than code enforcement.

What if there are five SLUP's in a row on what is now a residential main street, would that then be a quasi-commercial zone?

I am told that one interpretation of the current Dunwoody ordinance (maybe Georgia Law?) is that once a SLUP has been granted for a home occupation, it is forever tied to the land and cannot be taken away without evoking eminent domain of a regulatory taking. I am told that there is no process in Georgia by which a SLUP can be removed through automatic operation of law or a condition placed upon it.

I have reviewed other administrative options in Dunwoody besides a Special Land Use Permit, including Variances, Special Exceptions and Administrative Permits and all currently run with the land with different decision makers being the main difference.

I am confused as to why the City of Atlanta and others have Special Permits tied to the applicant and allow a sunset clause to be enacted, as we had previously, yet we are now told that we need to tie SLUPs to the land with no sunset clause allowed? Was there a State Zoning Law change that we have adopted based on our rewrite that other Cities have not?

I have asked our Planning Director if a Text Amendment could be drafted to not tie Home Occupations to the land and/or to allow a sunset clause?

After watching the video of the March 11th Planning Commission discuss our first SLUP application since the rewrite and in reading the final recommendation; I am interested to know if their recommendation of Approval with a sunset clause tying the approval to the applicant (not the land) was a sound recommendation based on a legal interpretation in which they may not be aware?

If an interpretation of Dunwoody Code would not allow time limits, should the Planning Commission hear this matter again before it reaches the City Council so that a proper recommendation can be given?

I am interested in discussing this further with my fellow Council Members, Staff and our legal team in an open forum and have asked that it be added to the March 24th, 7 pm Dunwoody City Council Meeting.


Colleen O'Casey said...

What have you gone and done John "DiMaggio" Heneghan? Your "girlfriend" who designs those web sites with the muddled data organization and third grade level designs is blaming you for all this. You bad bad man! However in a careful review of the facts of the SLUP, which I have doggedly followed, that's not how I'm seeing this situation. I am of the opinion that you did everything you could for the good of the general community.

I wouldn't worried about it, though, it's just how some folks in Dunwoody deal with their inadequacies and jealousies by blindly striking out at others. The problem is that in most places hypocrisy is a sin, but here in this town sometimes it's a downright virtue.

Bob Lundsten said...

NOT being an attorney (thank God), I think you staff is wrong based on the code that YOU passed.
DeKalb has long allowed for the conditioning of a SLUP. From what I have read so far of the new code in Dunwoody you have the absolute right to condition a SLUP as you see fit.
These are LAND USE PERMITS. They may follow the zoning procedures but are for specific USES in a zoning category that require additional approval by Council. As the Legislative authority in the city, YOU get to decide what you can do based on your interpretation of your code. Legal council may disagree but it Is totally your call
Our dear friend in the Working Mom building is so blinded by the home occupancy issue she sometimes loses perspective. And while she often accuses me of flying off the handle, the last post was way out of line and I pass that knee jerk award over to her.
You passed a code so you follow it with the INTENT that you passed it. Let a damaged party sue to change it. If they win, so be it. You do not give up the principle because one lawyer says so. Where were they when the code rewrite was being discussed?
It is also a problem that this “steering committee” for the Code rewrite, by virtue of being on the “steering committee” considers themselves experts in the field. Hardly.
Pass the SLUP and let them sue. If they win go back and tighten the code.

Max said...

I take exception to Mr. Lundsten's broad comment that "... by virtue of being on the “steering committee” considers themselves experts in the field. Hardly," as a former member of that group.

In fact, I am a subject matter expert by virtue of my chosen profession.

That said, I completely agree with the this statement, "...from what I have read so far of the new code in Dunwoody you have the absolute right to condition a SLUP as you see fit.

These are LAND USE PERMITS. They may follow the zoning procedures but are for specific USES in a zoning category that require additional approval by Council. As the Legislative authority in the city, YOU get to decide what you can do based on your interpretation of your code."

Mr. Lundsten has a proven track record of writing careless comments that both disgrace and dishonor Commmissioner Elaine Boyer and himself.

Do Better, pally.


GaryRayBetz said...

My apologies to the McCoys -

"Hang On SLUPPY, SLUPPY, hang on. SLUPPY is even for us who live in the bad part of town and everybody, yeah, tries to put my SLUPPY down. So, just don't try to put my SLUPPY down!"

Bob Lundsten said...

Max, I stand by my comments.
But no one can deny that some Steering committee members were driven by personal agendas and issues
I apologize if you feel threatened by my comments;
And to be clear I write on these blogs as a private citizen of Dunwoody and not for the Commissioner
you have a beef, take it up with me and leave the Commissioner out of it. County politics have nothing to do with this.
In my 20+ years on the planning commission and the ZBA in DeKalb I do not recall you every appearing for a SLUP or a rezoning, so I will take you for your word that you know what you are talking about.
However your misinterpretations of the zoning process has been demonstrated before

Max said...

Conditions are routinely attached to SLUP's as long as they are legally enforceable and not unreasonable.

B E W A R E the Administrative Variance:

Administrative variances are often a key area of concern in zoning matters due to a potential for improprieties.

Power, once shifted from Council, is one step further removed from public recourse. Usually the soundness of a traditional government employee decision is balanced by that persons employment tenure. Bad decisions can result in firing and even recourse against a pension.

Administrative variance abuses that occurred in Gwinnett cost people their jobs. Most of my work is in Gwinnett, Fulton, BTW. Same principles apply.

Since Dunwoody is not a tradition City, thankfully, we do not have pensioned employees. Thus, there are fewer checks and balances on administrative variances. I clearly made this point during the Zoning Re-Write process.

Administrative variances can open the door to poor outcomes or they can be effectively managed and uniformly administered. Sunshine (Public transparency) is the best disinfectant.

The Re-write is complete and I am pleased that this particular case moved forward in a streamlined manner.

Conditions are routinely attached to SLUP's as long as they are legally enforceable and not unreasonable.

Thank you for your apology, Bob.

Chip said...

Farmer Bob:

Max was right to call you out for your calumny. That's all I dare say, for fear of being seen as condescending.

Seems to me there are four (4) words in a SLUP: Special, Land, Use, and Permit.

Special implies out of the ordinary or conventional.

Land implies both the notion of "land" in its physical sense as site, geographic location, as well as, "place" meaning activities associated with a site.

Use seems to be the critical term in all of this, what is the purpose or activities that are constrained or permitted by the other three words.

Permit is the second critical term, as it clearly implies a license or variance that must, perforce, come with some limitations.

This would have been a lot clearer if there were such a thing as a "Special Use Permit" that didn't muddy the issue.

As experts in your areas, is there a reason that these types of issues have to be thru a SLUP and not a SUP?

Bob Lundsten said...

Time for me to exit this silly conversation that MAX and ChiP have started
My comments about the "steering Committee were not directed at max personally but at the Committee as a whole.
Sorry max if I hit a nerve
Being a developer does not makke you an expert in land use , SLUPS or anything else. Experienced in the business perhaps, but far from an expert.
And Chip

I have admitted many times that you are far brighter than I am.

Had to look it up:


1. : a misrepresentation intended to harm another's reputation

2: the act of uttering false charges or misrepresentations maliciously calculated to harm another's reputation. (Websters)

Nowhere in any of my first comments does what I say do any of that. Not even close.

The fact the MAX disagrees with my feeling about this group and some comments that some of the members have said is simply his opinion.

But then again you and Max are far brighter than I and far be it for me to argue.

Fighting over SLUPs just months after that adoption of the Code rewrite, just wait till the big developers come to town. I will leave that to your expert opinions. After all I did not serve on the "committee"

Chip said...

Actually Farmer Bob, the word "calumny" also applies when you tell a "true" statement with the intention of creating a false conclusion. For instance, the famous question "Have you stopped beating your wife?" is a form of calumny.

In the case at hand, you said rather pointedly that you had never seen Max at any DeKalb Zoning Board Meetings in 20 years! (While probably true, it still had the rather irksome and negative implication that Max didn't know what he was talking about!---hence, calumny.

Max might have responded in kind with "Well Bob, in 20 years in Gwinnett and Fulton Zoning Boards, I never saw you argue a case there, either.

Now, there you go....I thought it was funny, in fact, I burst out laughing when I first read it and got the unintended implication...but since you hamstrung me on being condescending I could only "call'em like I sees 'em"

And, I would like a brief primer on this issue vis-a-vis a SLUP versus a SUP, since by definition of SUP is limited to an activity and at a location, and a SLUP is more often associated with a permanent variance in zoning. Is that a distinction without a difference?

Max said...

I am not, nor have I ever been a developer.

Mr. Lundsten should know this, since we spent an entire Saturday morning at Hickory House, my treat.

No need to chime in - Bob, I just want to correct your perfidious comment.

GaryRayBetz said...

Perfidious? Nah, that appellation oozes unctuousness, perhaps an Iago-like villain you could refer to in that manner, but not Bob.

The Bob I know is a good honest compassionate man (an extremely rare characteristic for a Republican) - a bit bombastic and ingenuous at times, but certainly not perfidious.

Max said...


Knowingly misrepresenting a neighbor, publicly, is an act that is deceitful and not trustworthy or perfidious, in my opinion.

There is more here than will ever be published, Gary Ray Betz.

Chip said...

I guess I'm not going to get an answer to my question about why a home-based business has to be done thru a SLUP vs. SUP process, now.

Seems to me that a home-based business that doesn't materially affect the structure or property sufficiently to render it compatible with it's neighborhood (for example, an out-building used for business purposes) isn't really a zoning variance, but rather a variance in use.

I believe the original approach was to limit the amount of public contact, car parking, noise, etc. but it got thrown into the SLUP process because there was no other vehicle available.

In hindsight, maybe that was a reach.

Kate Lee said...

AND while you guys debate the meaning of words, a very nice young woman who wants to run a infant-day day care in her home is still waiting to open her business.
Figure out a solution that doesn't hold people hostage in the short run, please, John.

Colleen O'Casey said...

I'm sure she is a very nice young woman; however, she also has to be considerate of her neighbors and the rest of the community. I know I wouldn't want a day care facility next door to me, no matter whether it was 4 children or 27.

People live in residential zoned areas for a reason. To live there, not work, and not have your neighbors conduct business there. She should open up a day care in a thus zoned area.

But you are correct, they should have just denied her request immediately and not given her hope that this might be possible.

Max said...

"But you are correct, they should have just denied her request immediately and not given her hope that this might be possible."

No offense, but that solution is NOT an option. A SLUP application for a legal use cannot be arbitrarily denied - That is a violation of one's property rights.

Colleen O'Casey said...

No offense taken Max, but I do know the rules. That particular statement was just me being droll in an attempt to express my feeling that this shouldn't have been anything that should have been considered to begin with, by the city or the submitter.

Max said...

Hi Colleen,

It's all these doggone facts that keep make for an interesting chat.

This one is meaningful to me - It's in my neighborhood.

Bottom line is that conditions on the SLUP, if both legal and reasonable, are OK. Reasonableness is currently established as the Chair of the Planning Commission was wise to ask if the Applicant agreed with a time limit to the SLUP. She did.

The other big case on Manget (sp) is more interesting as it is a plan to permanently change the land use, based on a well written business application.

These changes, once made, do change the nature of a block of residences. Of course, law is a limber thing and can be written to reflect community values. That just takes considered and legal approaches.

We have a wonderful sapling that is Dunwoody, and we enjoy the ability to grow a strong City and out destiny locally, despite what other - not you - may say.

Be well,