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(UPDATE) City of Decatur discourages environmental board from weighing in on controversial project

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(UPDATE) City of Decatur discourages environmental board from weighing in on controversial project

One of the tributaries (Stream 1) of Shoal Creek as it flows onto the property planned for the Heights at East Decatur development. Photo credit: The Worthing Companies.
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The Zoning Board of Appeals at its Aug. 12 meeting voted to table the developer’s variance request and will take the matter up at a special called meeting that will be scheduled at a later date. 

Here is our earlier story … 

By Cathi Harris, contributor 

A developer’s plan to construct a 322-unit apartment complex along Weekes Street and South Columbia Drive near East Decatur Station is drawing the ire of some residents over a request to build inside city-mandated stream buffers for two sections of Shoal Creek that cross the property.

But city leaders have asked Decatur’s Environmental Sustainability Board (ESB) to refrain from taking a position on the project which is currently under consideration by the Zoning Board of Appeals (ZBA).

“It is the opinion of the city attorney that if the Environmental Sustainability Board were to issue some kind of advisory letter or opinion regarding a specific matter before the Zoning Board of Appeals, then that would be acting outside its scope,” Decatur Mayor Patti Garrett told Decaturish following a called meeting of the ESB on Monday. “If they did so, and then the ZBA denied the application, then the applicant could pursue the issue in court and the city could face legal consequences.”

The Worthing Companies, a regional developer of high-end apartment communities across the Southeast, wants to construct a four- to five-story apartment building and parking garage on approximately 4.3 acres of property it has assembled from 16 different parcels just south of the former Ace Hardware store on College Avenue.

The proposed development, called The Heights at East Decatur, would be a mix of studio, one and two-bedroom units. There would be no three-bedroom apartments, according to information presented with the developer’s variance application. Approximately 65 percent of the units would be studio and one-bedroom apartments, with the rest planned to have two bedrooms.

Image obtained via Google Maps. The developer is under contract with 16 parcels along Weekes and S. Columbia and Commerce Drive. (Note: Weekes is spelled incorrectly on Google Maps.)

Encouraging denser development

At issue is Worthing’s contention that it cannot develop the property in keeping with city staff demands without variances that would allow it to bury one stream in a drainage pipe and build into the city’s buffer area for a separate stream.

Over the past year and a half, the developer has worked with the city’s planning and engineering departments to come up with an acceptable site plan which satisfies the requirements of the Avondale MARTA Livable Cities Initiative (LCI) land use plan, said Linda Dunlavy, the attorney representing Worthing. 

Developed in 2002, the Avondale LCI plan serves as a blueprint to guide future growth in the area surrounding the Avondale MARTA station. Key goals of the plan are to encourage a shift from the outdated mix of commercial and single-family residential development to denser mixed-use projects, with better transportation connectivity, including pedestrian and bicycle infrastructure and connection of streets to improve traffic flow. 

The improvements that Worthing agreed to fund include a widening and connecting Freeman Street with Commerce Drive and realigning it to allow the potential for the street to eventually connect to New Street. The developer will also set aside space for a multi-use path on part of the property, as well as construct a second multi-use path that will connect to city-owned greenspace south of the development.

“While the applicant makes these agreements voluntarily, they do cause the development footprint to be greatly reduced and necessitate the securing of stream buffer variances to make the project with the agreed upon improvements viable,” Dunlavy said in the statement accompanying the company’s variance application.

Opposition and environmental concerns

During a lengthy public hearing at the ZBA meeting on June 25, several city residents who spoke to oppose the variances said they were surprised to hear Lyn Menne, the city’s Assistant City Manager for Community and Economic Development, speak in favor of it.

In her position as staff support to the Decatur Development Authority, Menne attended the meeting to express the authority’s support for the project.

A resolution passed by the DDA on March 8 expresses the board’s belief that the project would expand housing opportunities in the city and would improve the existing water quality and environmental conditions in the area. Notably, the resolution also states that the DDA board has “evaluated and determined” that the developer has met all of the separate criteria in the city’s zoning code for obtaining a variance from the stream buffer regulations.

This is surprising to Ash Miller, a Decatur resident and attorney specializing in environmental law. He believes the developer has not done all of the appropriate environmental studies required by the code to support a variance.

“The Unified Development Ordinance requires that a variance granted be ‘at least as protective of the natural resources and environment’ as would exist otherwise,” Miller told Decaturish in an interview. “But they have not done the baseline analyses necessary to show this. They have looked at stormwater retention, but there are other impacts that must be evaluated.”

For example, enclosing the creek in a pipe would also involve clear-cutting almost a half acre of trees around the stream. Decatur has its own tree ordinance, which would require the developer to either preserve a certain amount of trees, commit to replanting replacement trees or contributing funds to a tree bank, which supports planting more trees elsewhere in the city.

“But that covers any tree removal and these aren’t just any trees,” Miller said. “These are trees in a stream buffer, which serve a particular function in that ecosystem. The impact to the ecosystem of their removal should be evaluated.”

An analysis of the impact to wildlife in the area should also be undertaken, Miller continued. For example, two federally protected bird species, the chimney swift and pileated woodpecker, are known to inhabit that area of east Decatur. The potential impact of the removal of so many trees and greenspace to local wildlife should be considered and mitigated, he said. 

The city’s Unified Development Ordinance requires that a landowner outline what actions they will take or have taken to offset any negative environmental impact that may result, but this cannot have occurred when many of the potential impacts have not been studied, Miller said.

Misti Frederick-Buckem, a resident of the nearby Village Walk subdivision, said she felt that the city was trading amenities from the developer in return for allowing it to violate its environmental regulations.

“This will set a huge precedent for builders going forward anywhere in the city: Give us what we want — i.e. extra wide sidewalks, roads reconfigured, and trails — and we will help get a variance approved to pave over a stream and clean up one side of another stream,’” Frederick-Buckem said. “Some of the verbiage in the DDA resolution is astounding.”

To read the DDA resolution, click here.

She participated in the public meetings surrounding the development of the Avondale LCI plan, but is dismayed that its goals are being used to justify “getting rid” of one stream and encroaching on the greenspace surrounding another.

“There was never a discussion or mention of streams [in those meetings] or about how to address those that would be affected,” Frederick-Buckem said. “It was not discussed or highlighted in any way that it would be sacrificed in any of the plans [of the Avondale LCI].  Even if this wasn’t something well-known to develop the regulating plan blueprint, I would not then nor now be in favor of just getting rid of streams to make everyone at the development table happy, including re-configuring roads for the city.” 

Though she agrees that redevelopment of the area around Weekes, Freeman and New Streets is a long time coming, she believes the city should wait and get the best development possible and not be willing to sacrifice protection of greenspace and wildlife in return for developer-sponsored infrastructure improvements.

“This is the first development on the table for this area,” she said. “This is not the only way to accomplish all the goals for the regulating plan and yet still try to abide by the ordinances.  As I said at the meeting, we should be asking for bold solutions to things like water runoff and push for things like what was built at [City of Atlanta’s] Old Fourth Ward Park. Or, just wait for the next developer to give us other options.”

Environmental advisory board not consulted

At the recent meeting of the ESB, members questioned why they were being prohibited from giving an opinion regarding the environmental issues regarding the stream buffers, since the board was involved in developing the city’s regulations in the first place, and many of them have professional experience in water quality and management.

“I don’t think anyone on this board is looking to vet projects,” said David Malkin, an ESB board member and the owner of FDM Associates, an energy utility consulting firm. “But when a project first comes to the ZBA what ability do we have to be a resource for them should they have questions about any of these specific issues, even several steps removed from a vote?”

The Zoning Board of Appeals was established through an act of the state Legislature, Garrett explained. It is an independent “quasi-judicial” authority that hears appeals from decisions made by the city’s zoning administrator. Appeals of ZBA decisions must be appealed in DeKalb Superior Court and do not come before the City Commission.

In contrast, the ESB was established by the City Commission to offer advice to the commission on environmental policy or to guide city construction projects. They cannot, as a board, give input on the separate appeals process of a private development.

“You can give your opinions in the public hearings [held by the ZBA] as individual citizens,” Garrett said. “But you cannot issue an official statement as a board. Even I or the other commissioners cannot attempt to influence the ZBA.”

When asked why the DDA could issue a resolution in support of the variances, Garrett said that the DDA was also a state-authorized entity charged with evaluating private development proposals in the city.

An ESB board member wants to know how the board can provide more information to the DDA.

“Then what is the conduit by which we can provide perspective to the DDA?” asked Steven Blackburn, an ESB board member who is also a program officer with the U.S. Environmental Protection Agency in Atlanta. “When I read that [resolution] I did not see where they had the authority to render the different environmental impacts. They came to some conclusions that I find questionable.”

Developer: Higher density not feasible with buffers in place

Opponents of the variance application do not have a good perspective of the property’s current condition, Worthing’s attorney Linda Dunlavy said. 

In order to develop the property, anyone who buys it will to clean up years of soil and water contamination from former industries both on those sites and nearby. In addition to the city’s requested improvements, Worthing will also need to enroll the property in the state Environmental Protection Division’s brownfield program and work to clean it up.

The part of the stream that opponents don’t want to see enclosed already flows out of a pipe from underneath Commerce Drive onto the property and then flows into another pipe elsewhere on the site, she adds.

“Stream one is piped for thousands of feet before it even reaches this property and it has been for more than 50 years,” she says.

The second stream — which Worthing has committed to cleaning up, stabilizing the banks and then building a path along — also suffers from poor water quality due to contaminated runoff from nearby commercial sites.

“That stream is a mess,” she added. “It is going to cost a lot of money to fix all of the issues that will need to be addressed in order for that site to be developed at all. And, I don’t see how it can be developed by anyone under the current higher density zoning requirements with the existing buffers intact.”

New residential construction, construction of the roads and paths and environmental remediation are all prohibitively expensive, Dunlavy said. It is unrealistic to expect a private company to want to build on the property at a lower density – and it is zoned for higher density

If Worthing doesn’t see the project as viable, they will pull out, leaving the parcels and streams in their current state, she says. “I live in this community, too. And I would rather see the two sides restored as they are proposed to be than have nothing be done at all.”

The Zoning Board of Appeals will hold its next meeting on Monday, August 12 at 7:30 p.m. in the Commission Room at Decatur City Hall, 509 N. McDonough St. You can find an agenda and meeting information here.

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