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City of BrookhavenReceived by PZApril 7, 2021LETTER OF INTENTandOther Material Required byThe City of Brookhaven Zoning Ordinancefor theVariance ApplicationofFloor and Decor Outlets of America, Inc.for 6.44 Acres of Landlocated inLand Lot 197, 18th District, Dekalb CountyAddress: 1670 and 1690 NE Expressway§ 27-743 (Table 8-1):Reduce bicycle parking requirements;§ 27-390:Reduce open space requirements;§ 27-384:Increase curb cut width and radius;§ 27-385:Modify streetscape requirements; and§ 27-294 (Table 4-3):Reduce Transitional Buffer.Submitted for Applicant by:Kathryn M. ZickertDennis J. Webb, Jr.Joseph A. BrockSmith, Gambrell & Russell, LLPPromenade, Suite 31001230 Peachtree Street, NEAtlanta, Georgia 30309404-815-3500SGR/24594961.1

City of BrookhavenI.Received by PZApril 7, 2021INTRODUCTIONFloor and Decor Outlets of America, Inc. (“Floor and Decor”) is a specialtyretailer of hard surface flooring and related accessories (www.flooranddecor.com).Founded in 2000, the company is headquartered in Atlanta. It currently owns andoperates 143 warehouse-format stores in 32 states.The company sells toprofessional installers, commercial businesses and do-it-yourself customers.Unbeknownst to many, the very first Floor and Decor outlet is the storelocated in Brookhaven. It was opened in the early 2000’s on two leased propertiessituated on the north side of the I-85 access road, between Clairmont Road and NorthDruid Hills Road. The first leased property (1690 NE Expressway; 18-197-01-019)contains a 56,689 square foot, single-story building built in 1965 that houses thewarehouse showroom. The second leased property (1706 NE Expressway; 18-19701-021) is adjacent to the east. It contains a two-story, 9,384 square foot buildingalso constructed in 1965 that houses the design center.20 years have passed since Floor and Decor opened the original Brookhavenlocation. In the time since, Floor and Decor has refined its warehouse conceptsignificantly by, among other things, combining the design center and warehouseinto a single building. Floor and Decor hopes to replace the original store with thelatest model, in essentially the same location.2SGR/24594961.1

City of BrookhavenReceived by PZApril 7, 2021To do so, Floor and Decor intends to vacate the leased design center propertyat 1706 NE Expressway (18-197-01-021).It will ground lease the existingwarehouse property at 1690 NE Expressway (18-197-01-019) and the adjacent tract(west) at 1670 NE Expressway (18-197-01-020), which most recently containedNTB National Tire & Battery (1690 and 1670 NE Expressway are hereaftercollectively referred to as the “Subject Property”). Floor and Decor will thendemolish both structures, consolidate the lots and erect its newest prototype store.The new store will be 80,175 square feet, consisting of 61,595 square feetof combined showroom and design center space, 15,931 square feet of interiorwarehouse storage and 1,800 of office area. The new building will provide allparking required by code and meet the dimensional requirements for front, side andrear setbacks.Further, the site will provide stormwater management and limitimpervious surface to 72.1%, which is well below the 80% allowed (the imperviousis currently 79.6% and will be reduced to 72.1% after development).Certain of the City’s development requirements would create a hardship,however. The Subject Property is located at the southern boundary of the BufordHighway Zoning Overlay district (“BHO”). It is also in the Buford HighwayCorridor Character Area under the City of Brookhaven’s Comprehensive Plan 2034(the “Comp Plan”).Both the BHO and the Comp Plan are focused on theredevelopment of Buford Highway and hope to transform it into a mixed-use3SGR/24594961.1

City of BrookhavenReceived by PZApril 7, 2021environment that is a “denser, more walkable and bikeable corridor, that featurescompact pedestrian-friendly development.” (Comp Plan, p. 71 of 540). The BHOimposes development requirements consistent with an area in which residents wouldlive within walking distance of amenities such as shopping, dining and basic servicesand their workplaces.The Comp Plan also identifies a number of “priorityredevelopment sites” on Buford Highway that would be suitable for this type ofdevelopment. (Comp Plan at p. 55 of 540).The Subject Property is not on Buford Highway, though, and is not a “priorityredevelopment site.” It is located on a one-sided access road fronting an interstatehighway and in an industrial area that is not ideal for pedestrian-orienteddevelopment. The Comp Plan seems to recognize this fact, stating that “[h]igherintensity land uses are appropriate in the areas adjacent to I-85.” (Comp Plan at p.55 of 540). Nonetheless, and because of its inclusion on a map, the Subject Propertyis regulated by the BHO and the mixed-use, pedestrian-oriented developmentrequirements it imposes.Floor and Decor seeks relief from certain of theserequirements, for the reasons below.II.REQUESTED VARIANCESA.§ 27-743 (Table 8-1): Modify the Bicycle Parking Requirement4SGR/24594961.1

City of BrookhavenReceived by PZApril 7, 2021Section 27-777 of the Zoning Code would require Floor and Decor to provideeight long-term bicycle spaces. As noted above, however, Floor and Decor sellsmaterial that would be difficult to transport by bicycle at a location in which bicycleuse should be discouraged.Hard surface flooring is sold in bulk and typically onpallets. Further, Floor and Decor has a variety of tractor-trailer, flatbed and otherheavy duty trucks coming onto and off of the site regularly, all along a heavilytravelled interstate access road. Floor and Decor anticipates little to no bicycletraffic from the general public but recognizes that some employees might choose totravel to and from work on a bicycle. To accommodate this possibility and in thespirit of the ordinance, Floor and Decor seeks to vary the requirement to eight shortterm bicycle spaces placed along the streetscape.B.§ 27-390: Modify Open Space Requirements (b)(2), (c)(3) and(d)(1)Consistent with a family-friendly, mixed-use and walkable environment, theBHO requires publically-accessible open space, stating that:(b)(2) - On development sites with an area of one acre ormore, at least 15% of the development shall be open space.(c)(3) - Unless otherwise expressly stated in this section,open spaces shall be open to general public access duringdaylight hours and shall be directly accessible from a publicsidewalk; and(d)(1) – Amenity spaces are limited to at-grade hardscape orlandscape areas improved for pedestrian enjoyment; rooftopdecks; patios and porches; balconies; or yards, lawns, and5SGR/24594961.1

City of BrookhavenReceived by PZApril 7, 2021gardens. Interior or exterior stairs or elevators may provideaccess to rooftop decks, patios, parks, and balconies. They arefurther subject to compliance with the criteria of Table 5-2.Table 5-2 dictates the form of the open space, requiring that it be either a park, pocketpark, plaza or amenity space.Hence, the BHO would require Floor and Decor to provide almost one acre ofpark, pocket park, plaza or amenity space for use by the general public. This is notfeasible nor advisable. First, and as to feasibility, the area at the rear of the SubjectProperty has steep slopes and is unsuitable. 1 Therefore, the only possible locationwould be the area now proposed for parking on the NE Expressway frontage. Thisarea is essential, however, to efficient site design and operation.Second, a park, pocket park, plaza or amenity space would not be desirableeven if feasible. It would be adjacent to and overlook I-85, an interstate that seesroughly 250,000 vehicle trips per weekday. It would also be placed on a high-trafficaccess road in an industrial area that is pedestrian-unfriendly now and likely toremain so in the future. The fact is that given the nature of the activities conductedand the attendant safety concerns, there is no area on the Subject Property where thepublic should be encouraged to linger.1The Subject Property also has no feasible connection to the Peachtree Creek Greenway at the rear. There is aroughly 80-foot grade change from the back of the Subject Property to Peachtree Creek.6SGR/24594961.1

City of BrookhavenReceived by PZApril 7, 2021Consistent with the spirit of the requirement, Floor and Decor has proposed .55 acres or 24,090 of green space including general and larger open areas at thesoutheast corner for aesthetics and at the rear for employee use. It plans to landscapethe Subject Property throughout. It has also reduced impervious surfaces: TheSubject Property is 80% impervious surface now but will be 72 % afterredevelopment. For these reasons, Floor and Decor asks to (1) reduce the open spacerequirement from 15% to 8% ( .55 acres or 24,090 square feet) (§ 27-390 (b)(2));(2) remove the requirement that the open space be accessible to the general public(§ 27-390 (c)(3)) and; (3) allow the open space to consist of general landscaped andother areas as shown on the site plan submitted with this Application in lieu of thecriteria outlined in the code (§ 27-390 (d)(1)).C.§ 27-384: Modify Subsections (g) and (d) to Allow Curb CutWidths Greater than 24 Feet and Radius Greater than 20 FeetSection 27-384 of the BHO, subsection (g), states that “[c]urb cuts may notexceed 24 feet in width,” and subsection (d) states that “[t]he maximum allowedcurb cut radius at any . . . curb cut is 20 feet.” As alluded to above, these widths maybe suitable for passenger-vehicle traffic and pedestrian-oriented environments, butthey are inadequate for the type of truck traffic that will frequent the SubjectProperty. The BHO-required curb cut widths and radius dimensions would makeentering and exiting the Subject Property infeasible for trucks therefore restrictinguse of the Subject Property in a manner commensurate with similar properties in the7SGR/24594961.1

City of BrookhavenReceived by PZApril 7, 2021area. It should be noted that the interstate access road is controlled by the GeorgiaDepartment of Transportation (“GDOT”) and as such, modifications andimprovements must be designed according to GDOT requirements. Floor and Decorseeks a variance to allow for the curb cuts and radii reflected on the site plansubmitted with the Application, which were specifically designed to allow for safeand efficient ingress and egress and have been reviewed and preliminarily approvedby GDOT.In addition to the above, Floor and Decor notes that it is proposing severalother features that will enhance access to the Subject Property and traffic on theroadway it fronts. For example, the Subject Property has three, full-access curb cutsnow. Floor and Decor will reduce the number of curb cuts and increase the spacingbetween the two proposed driveways. It also is adding a turn lane into the SubjectProperty, which will allow visitors to safely decelerate into the site withoutimpacting the travel lanes. GDOT has reviewed and preliminarily approved theseimprovements as well.D.§ 27-385: Modify Streetscape RequirementsThe BHO would require the following streetscape at the Subject Property: asix-foot landscape zone from the back of curb and a six-foot pedestrian zone, for atotal of 12 feet. § 27-385(c). It would also require street trees in the landscape zone.§ 27-385(e).Both the landscape zone and pedestrian zone would run along the8SGR/24594961.1

City of BrookhavenReceived by PZApril 7, 2021interstate access road, which is controlled by GDOT. GDOT does not allow streettrees in landscaped areas adjacent to its right-of-way, however, when like here theproposed trees are within 500 feet of an existing billboard.As indicated above, Floor and Decor does not believe that the SubjectProperty is located in a walkable environment. Nonetheless, and to overcome theGDOT restriction, Floor and Decor proposes modifying the streetscape requirement,providing a combined area of 21 feet (9 feet more than the code requires) and theplacement of street trees in an area that does not require GDOT approval.Specifically, Floor and Decor proposes reducing the landscape zone area to two feetand creating the six-foot pedestrian zone. Floor and Décor will then plant the streettrees in a 13 foot landscaped area behind the pedestrian zone on land that it ownsand controls.E.§ 27-294 (Table 4-3): Reduce Transitional Buffer RequirementSection 27-294 of the Zoning Code requires a 50 foot transitional bufferbetween commercial buildings and any “R” zoned property to create visual andspatial separation between the different uses. The northern portion of the SubjectProperty touches an apartment complex zoned RM-18 and triggers this requirement.Floor and Decor needs to encroach upon 7,200 square feet of the transitionalbuffer for two primary reasons. First, the northwest corner of the Subject Propertycontains construction debris and other fill material that must be removed. Second,9SGR/24594961.1

City of BrookhavenReceived by PZApril 7, 2021and once the area is remediated, Floor and Decor must locate a driveway partially inthe buffer to provide delivery truck circulation around the building due to constraintswith the shape and topography of the site.The City-mandated transitional buffer is not needed here, however. Theproposed building will be at least 300 feet from the closest apartment building to thenorth. In between, there is an existing tree buffer (which will be supplemented byproposed plantings), a 50 foot grade change and a 100 foot power line easement.Hence, significant visual and spatial separation between the different uses alreadyexists.Pursuant to § 27-1665, the criteria for each variance is met. First, the strictapplication of the development standards to the Subject Property would deprive theproperty owner of rights and privileges enjoyed by other similarly situated propertyowners in the same district. Second, the requested variances seek only the minimumnecessary to afford relief and do not constitute a grant of special privilegeinconsistent with the limitations of other properties in the relevant zoning district.Third, the grant of variances will not be materially detrimental to the public welfareor injurious to the other properties or improvements in the relevant zoning district.Fourth, the literal interpretation and strict application of the zoning ordinance andLand Development Regulations would cause undue and unnecessary hardship.10SGR/24594961.1

City of BrookhavenReceived by PZApril 7, 2021Finally, the variances sought are consistent with the spirit and purpose of the City’sZoning Ordinance and Comprehensive Plan.III.NOTICE OF CONSTITUTIONAL CHALLENGE TO UNDERLYINGZONING AND PRESERVATION OF CONSTITUTIONAL RIGHTSA refusal to grant the requested Variances would be unconstitutional for,among other reasons, it would constitute an unlawful, arbitrary, capricious, irrationaland a manifest abuse of discretion; all in violation of the Fifth Amendment andFourteenth Amendment of the Constitution of the United States, and Article I,Section I, Paragraph I and Article I, Section III, Paragraph I of the Constitution ofthe State of Georgia.A refusal to grant the requested Variances would discriminate unfairlybetween the owner of the Subject Property and other property owners similarlysituated, in violation of the Fifth Amendment and Fourteenth Amendment of theConstitution of the United States, and Article I, Section I, Paragraph I and Article I,Section III, Paragraph I of the Constitution of the State of Georgia.A refusal to grant the requested Variances would amount to a taking ofproperty, in violation of the Fifth Amendment and Fourteenth Amendment of theConstitution of the United States, and Article I, Section I, Paragraph I and Article I,Section III, Paragraph I of the Constitution of the State of Georgia.A refusal to grant the requested Variances would be unjustified from a factbased standpoint and instead would result only from constituent opposition, which11SGR/24594961.1

City of BrookhavenReceived by PZApril 7, 2021would be an unlawful delegation of authority in violation of Article IX, Section II,Paragraph IV of the Georgia Constitution.A refusal to grant the requested Variances would be invalid inasmuch as theZoning Ordinance of the City of Brookhaven is unlawful, null and void because itsadoption and map adoption/maintenance did not comply with the requirements of itspredecessor ordinance and/or the Zoning Procedures Law, O.C.G.A. § 36-66-1, etseq.The Zoning Ordinance of the City of Brookhaven lacks adequate standardsfor the Zoning Board of Appeals to exercise its power to review and vote on thisApplication. The standards are not sufficient to contain the discretion of the Boardand to provide the Courts with a reasonable basis for judicial review. Because thestated standards (individually and collectively) are too vague and uncertain toprovide reasonable guidance, the Zoning Ordinance is unlawful and violates, amongother things, the Fifth Amendment and Fourteenth Amendment of the Constitutionof the United States and Article I, Section III, Paragraph I and Article I, ParagraphsI and II of the Constitution of State of Georgia.Any limitation on the time for presentation of the issues before the ZoningBoard of Appeals is a violation of the guarantees of free speech under Article I,Section I, Paragraph V of the Constitution of the State of Georgia and the FirstAmendment of the Constitution of the United States. Further, said limitations are in12SGR/24594961.1

City of BrookhavenReceived by PZApril 7, 2021violation of the right to petition and assemble, in violation of Article I, Section I,Paragraph IX of the Constitution of Georgia and the First Amendment of theConstitution of the United States, as well as the Due Process Clauses of theConstitution of Georgia and the Constitution of the United States.The BHO and Zoning Code violate the Georgia Development Fee Act(O.C.G.A § 36-71-1, et seq.).In addition to the above, the Applicant raises the defenses of standing andfailure to exhaust administrative remedies.IV. CONCLUSIONFor the foregoing reasons, the Floor and Decor respectfully requests approvalof the Variances as set out above.This 7th day of April, 2021.Respectfully submitted,Smith, Gambrell & Russell, LLPPromenade, Suite 31001230 Peachtree Street, NEAtlanta, Georgia 30309404-815-3500Kathryn M. ZickertDennis J. Webb, Jr.Joseph A. BrockAttorneys For Applicant13SGR/24594961.1