By Cathi Harris, contributor 

The Decatur Zoning Board of Appeals (ZBA) voted Monday night to deny a developer’s request to allow it to build inside the city’s 75-foot buffer on one stream and bury a second stream in a pipe on assembled properties it is under contract to buy along Weekes Street in southeast Decatur.

The vote was 3 – 0 with one member absent and another, Vice Chair Seegar Swanson, abstaining due to a potential conflict of interest.

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The Worthing Companies, a developer of high-end apartment communities throughout the Southeast, wants to build  a 322-unit apartment building and 500-space parking garage on approximately 4.3 acres of property it has assembled just south of the former Ace Hardware store on College Avenue.

The variance application had been considered at three lengthy previous ZBA meetings in May, June and August, with board members hearing hours of heated public comments both in favor of and against the application. 

Ultimately, board members said they still felt the developer did not meet all of the criteria stated in Decatur’s Unified Development Ordinance (UDO) that would justify a variance.

Specifically, the stream protections section of the ordinance indicates that applicants must present at least one alternative plan that does not show a buffer or setback intrusion or explain why such a site plan is not possible, ZBA Chair Eric Pawloski noted.

“They have [at a previous meeting] presented several different alternative plans, but in all of the plans that stream was piped,” Pawloski said.

Board member Andy Rutledge, who joined the board in August, said he would have preferred to at least have had some discussion of a plan that may have involved an incursion into the buffers while still keeping that stream open.

“You would still need a variance to reduce the buffer, but the stream would still be daylit,” he added.

In addition, the portion of the ordinance governing stream protections notes that a buffer variance may only be granted in cases of “extreme hardship” to the owner and that the hardship cannot be self-created.

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Worthing contends that design constraints prompted by the assembled parcels location coupled with requests from the city to realign a public street and cede space for sidewalks and multi-use paths within the development made the assembled property undevelopable without the granting of the variances.

While some of the individual parcels within it might be undevelopable without a variance, the board felt the developer could not apply this condition to the entirety of the proposed development.

In making the developer’s case before the board, Worthing’s attorney, Linda Dunlavy, said that they had worked extensively over the previous months to meet all of the city ZBA’s requests, including agreeing to perform additional streambank restoration for adjacent property owners and agreeing to fund future streambank restoration on a planned city park south of the development.

“We have done everything this board has asked of us,” Dunlavy said.

Since the application was denied, the developer cannot reapply for at least 12 months, though they may appeal the ZBA’s decision in DeKalb County Superior Court.

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