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DeKalb ZBA votes to reject citizens appeal on ‘Cop City’ site

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DeKalb ZBA votes to reject citizens appeal on ‘Cop City’ site

Activists opposing the construction of “Cop City” at the Old Atlanta Prison Farm have occupied the site and neighboring Intrenchment Creek Park, pictured here. Photo by Dean Hesse.

By Jaedon Mason, contributor 

DeKalb County, GA — The DeKalb Zoning Board of Appeals on April 11 voted unanimously to reject the appeal of the administrative decision to issue a Land Disturbance Permit for the public safety training center site called ‘Cop City’ by activists.

The appeal was made by DeKalb County Commissioner Ted Terry, and citizens Amy Taylor and Carolyn Tucker. The appeal made three allegations about the permit:

1. That the construction of “Cop City” would cause more erosion than Georgia Environmental Protection Division (EPD) Total Maximum Daily Load (TMDL) evaluation for Intrenchment Creek allows. This TMDL evaluation was one part of a larger evaluation done by the EPD detailing the amount of man-made sediment the waterways in the Ocmulgee River basin can receive without being destructive to the larger ecosystem. This is not legislation but an evaluation by experts. Intrenchment Creek, based on the EPD’s TMDL evaluation, is already at its requirement due to the discharge it receives from the municipal MS4 stormwater system.

2. The Notice of Intent (NOI) submitted by “Cop City” developers didn’t disclose the plan for adherence to the EPD’s TMDL for Intrenchment Creek. The NOI is a document required for issuing a General Permit—the latter a document that regulates Stormwater Discharges from Construction sites in Georgia under the National Pollutant Discharge and Elimination System (NPDES).

3. The Atlanta Public Safety Training Center Site Plan preserves less greenspace than required by the ordinance that authorized the lease of the land to the Atlanta Police Foundation.

Former Georgia Supreme Court Chief Justice Lea Ward Sears and Simon Bloom, legal counsel for the groups opposing the appeal, spoke first, arguing that there is no applicable legislation regulating erosion and stormwater discharge, so there was nothing to be violated by the APF.

They said, since other construction is going on in the area, the watershed can’t be at the limit the appeal claims. They also said the site was adhering to best practices to limit runoff of additional sediment into the water system.

On the third allegation made by the appeal, they said since it was a city of Atlanta ordinance, it was outside the jurisdiction of the DeKalb County ZBA.

As the ZBA moved into discussion, Chair Nadine Rivers Johnson said, “I want to remind everyone what is before us, what is before us is if we should uphold or overturn the administrative appeal, which by our by laws, we have the right to do if an error was made in the original determination or if there was something of a capricious nature.”

A key moment in the meeting was when Vice-Chair Dan Wright began asking about what requirements there are for sediment measurement under Georgia’s Requirements for Stormwater Management.

To which, Lea Ward Spears responded, “Echoing what your chair said, there is a presumption of regularity that the state and the planning staff got it right… You don’t really take it all apart and put it back together again.”

Wright pressed, citing the opposition assertion that there is no additional sediment burden placed on the creek, asking those opposed to the appeal if the measurement of runoff sediment was required for the permit they received, to which Lea Ward Spears replied, “My answer, as a lawyer, is that you defer to the state and to the county and not act as a jury taking it apart, you defer to them, the executive branch.”

A section manager for the training center development said that it was required for the developer to measure the runoff sediment caused by work on the site, but did not provide any more details.

Jon Schwartz, legal counsel for the appellant, said the appeal was within the jurisdiction of the board, due to the overall assertion mainly pertaining to excess sediment in the waterways, citing a case involving copper allotment in a waterway where a zoning board intervened. Schwartz explained that though the EPD had approved the permit, this permit allowed for more run-off into Intrenchment Creek, which is already at capacity based on the EPD’s own evaluation.

However, this EPD oversight was not actually able to be changed by the appeal. The question was not if the EPD had made a mistake—which they had, in approving the NPDES permit that wasn’t in line with their own TMDL evaluation of Intrenchment Creek—but if the planning commission in granting the Land Disturbance Permit, based on the EPDs recommendation, had made a mistake.

Several members of the board shared personal reservations about the location of the “Cop City” site, but ultimately the DeKalb ZBA voted unanimously to reject the appeal.

They said there were no clear violations of law and decided that the planning commission had done their due diligence by checking with EPD twice before issuing the Land Disturbance Permit.

Notably, no one from the EPD was present on the call.

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