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.
