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200 Ashford Center North Suite 150 Dunwoody, GA 30338 N (404) 637-0500 Fax (404) 637-0501 www.brookhavenga.gov
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To the best of my knowledge, this variance application form is corect and complete. If additional materials are determined to be
necessary, I understand that I am responsible fr filing additional materials as specified by the City of Brookhaven Zoning
Ordinance. I understand that failure to supply all required information (per the relevant Applicant Checklists and Requirements
of the Brookhaven Zoning Ordinance) will result in the rejection of this appllcation. I have read the prvisions of the Georgia
Code Section 36-67A-3 as required regarding Campaign Disclosures. My Signed Campaign Disclosure Statement is included with
the A lication.
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VarlanceApp|lcaI|On Fage4 O| 7
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1. By reason of exceptional narrowness, shallowness, or shape lot, or by reason of
exceptional topographic conditions, which were not created by the owner or applicant,
the strict application of the requirements of this chapter would deprive the propert
owner of rights and privileges enjoyed by other propert owners in the same zoning
district:
The strict application of Chapter 27 deprives the owners of rights
and privileges enjoyed by other property owners similarly situated.
The current font yard setback is 36.7 fet fom the right-of-way of
Ashfrd Road. The ordinance could require 50 feet fom said
right-of-way. There are other homes that are closer to Ashfrd
Road than 50 fet (some as close as 34 fet) and, therefre,
Applicant is deprived of rights and privileges enjoyed by other
property owners in the same zoning district.
2. The requested variance does not go beyond the minimum necessary to aford relief and
does not constitute a grant of special privilege inconsistent with the limitations upon
other properties in the zoning district in which the subject propert located:
The grant of this variance does not grant a special privilege
inconsistent with limitations aforded other properties in the same
zoning district and also located on Ashfrd Road.
3. The grant of the variance will not be materially detrimental to the public welare or
injurious to the propert or improvements /h the zoning district in which the limitations
upon propert is located:
The grant of this variance will not be materially detrimental to the
public welfre or injurious to other properties within the R- 100
zoning district.
4. The literal interpretation and strict applicant of the applicable provisions or
requirements of this Chapter would cause undue and unnecessary hardship; not merely
impose a casual/discretionary inconvenience upon the applicant or his assigns:
The literal interpretation causes the Applicant to remove the
existing structure and lose thousands of dollars of new construction
built under what the Applicant thought was a valid building permit.
5. The requested variance would be consistent with the spirit and purpose of this Chapter
and the Cit of Brookhaven's Comprehensive Plan text:
This variance is not inconsistent with Chapter 27 of the
Brookhaven Code or the Brookhaven Comprehensive Plan text in
that a single-fmily residence will be constructed on the property.
6. How although economic considerations may be taken into consideration as a hardship,
they are hul, of themselves, the sole criteria upon which the applicant seeks this
variance:
While the failure to grant this variance does create a fnancial
hardship as set frth hereinabove, the fnancial issue is not the only
reason fr requesting this variance.
The hereinafer Constitutional Notice is now required by Georgia law.
The Applicant was issued a building permit to construct a single-fmily detached
residence at 2802 Ashfrd Road, DeKalb County, Brookhaven, Georgia.
At the time of the issuance of the building permit, the Applicant and his builder thought
and understood that the same was in compliance with all Brookhaven codes and ordinances.
On the 15
11
day of November, 2013, the City issued a stop work order on construction of
the residence because the font yard setback was not in confrmity with the requirements of
Section 27-788 of the Brookhaven Code of Ordinances.
Under said Ordinance, the City contends that the font yard setback should be 50 fet.
The required setback without averaging is 35 fet, and the existing setback is 36.7 fet. There
are other residences on Ashford Road which do not comply with Section 27-788. To require the
Applicant to comply with such an interpretation has no relationship to the protection of the
public health, safty and welfre, and is unlawfl and unconstitutional as hereinafer set frth.
The portions of the City of Brookhaven Zoning Ordinance, fcially and as applied to the
Property, which restrict the Property to any zoning classifcation, uses, or to any zoning district
other than that proposed by the Applicant are unconstitutional in that they would destroy the
Applicant's property rights without first paying fir, adequate and just compensation for such
rights, in violation of Article I, Section I, Paragraph I and Section III, Paragraph I of the
Constitution of the State of Georgia of 1983, and the Due Process Clause of the Fourteenth
Amendment to the Constitution of the United States.
The application of the City of Brookhaven Zoning Ordinance, fcially and as applied to
the Property, which restricts the Property to any zoning classifcation, uses, or to any zoning
classification other than the classifcation as proposed by the Applicant is unconstitutional,
illegal, null and void, constituting a taking of Applicant's Property in violation of the Just
Compensation Clause of the Fifh Amendment to the Constitution of the United States; Article I,
Section I, Paragraph I, and Section III, Paragraph I of the Constitution of the State of Georgia of
2
1983; and the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the
Constitution of the United States denying the Applicant an economically viable use of its land
while not substantially advancing legitimate state interests.
A denial of this Application would constitute an arbitrary and capricious act by the City
of Brookhaven City Council without any rational basis therefre constituting an abuse of
discretion in violation of Article I, Section I, Paragraph I and Section III, Paragraph I of the
Constitution of the State of Georgia of 1983, and the Due Process Clause of the Fourteenth
Amendment to the Constitution of the United States.
A refsal by City of Brookhaven City Council to rezone the Property in accordance with
the zoning criteria requirements as requested by the Applicant would be unconstitutional and
discriminate in an arbitrary, capricious and unreasonable manner between the Applicant and
owners of the similarly situated property in violation of Article I, Section I, Paragraph II of the
Constitution of the State of Georgia of 1983 and the Equal Protection Clause of the Fourteenth
Amendment to the Constitution of the United States. Any rezoning of the Property subject to
conditions which are different from the conditions requested by the Applicant, to the extent such
different conditions would have the efect of frther restricting Applicant's utilization of the
Property, would also constitute an arbitrary, capricious and discriminatory act in zoning the
Property to a unconstitutional classifcation and would likewise violate each of the provisions of
the State and Federal Constitutions set frth hereinabove.
The existing zoning classification which prohibits the Applicant's use of the property is
unconstitutional. This notice is being given to comply with the provisions of O.C.G.A. 36-33-5
to afford the City an opportunity to revise the Property to a constitutional classifcation. If action
is not taken by the City to rectify this unconstitutional zoning classifcation within a reasonable
time, a claim will be fled in the Superior Court of DeKalb County demanding just and adequate
compensation under Georgia law fr the taking of the Property, diminution of value of the
Property, attorney's fes and other damages arising out of the unlawfl deprivation of the
Applicant's property rights.
Accordingly, your Applicant respectfully requests that this variance application be
granted as requested by the Applicant.
If there are any questions about this rezoning request, you may contact me at 404-926-
4545 or at dougd@wncwlaw.com.
Sincerely,
G. Dou
Attorney fr Applicant
3
3500 Lenox Road, NE
4
th
Floor
Atlanta, GA 30326
404-926-4545
100424624
4
200 Ashford Center North V Suite 150" Dunwoody, GA 30338 (4O4) 637-0500 P Fax (404) J7O'O'' www.brookhavenga.gov
Property Owner{s)
Notarized Certification
The owner and petitioner acknowledge that this variance application form is correct and
complete. By completing this form, all owners of the subject property certify authorization of
the filing of the application for varlance(s), and authorization of an applicant or agent to act on
their behalf in the filing oft pplication Including all subsequent application amendments.
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. Notary Public, Georgia
Notary Public:
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Var|anceApp'|cal|on Fage5 cf7
200 Ashford Center North P Suite 150 P Dunwoody, GA 30338 V (404} 6370500 V Fax (404) 637-050'1 P www.brookhavenga.gov
Campaign Disclosure
Statement
Have you, within the two years Immediately preceding the fllfng of this
application, made campaign contributions aggregating $250.00 or
0 YES NO
more to a member of the City of Brookhaven City Council or a member
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of the City of Brookhaven Planning Commission?
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If the answer above is yes, please complete the following section:
Var|ancaApp|'cuI|0n Fage7 0f7
200 Ashford Center North V Sulte 150 Dunwoody, GA 30338 (404) 637-0500 V Fax (404) 637-0501 P www.brool<havenga.gov
Campaign Disclosure
Statement
Have you, within the two years immediately preceding the filing of this
application, made campaign contributions aggregating $250.00 or
0 YES
more to a member of the City of Brookhaven City Council or a member
of the City of Brookhaven Planning Commission?
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If the answer above is yes, please complete the following section:
Var|anceApp'|caI|on Fage 7 of7
LPLhLLhH h111
G. DOUGLAS DILLARD, of the law frm of WEISSMAN, NOWACK, CURRY WILCO,
P.C., has been retained to represent PAUL BIERBUSSE, befre the CITY OF BROOKHAVEN,
GEORGIA. Pursuant to the provisions of O.C.G.A. 36-67 A-3, please fnd below a list of the
contributions made by the above-named individual, or the law frm of WEISSMAN, NOWACK,
CURRY WILCO, P.C., in the past two years, aggregating $250.00 or more, to local government
ofcials who may PAUL BIERBUSSE's Variance Application.
NAME OF
GOV'T. OFFICIAL
J. Max Davis
Bates Mattison
Rebecca Williams
3500 Lenox Road, N.E.
4
th
Floor
Atlanta, Georgia 30326
(404) 926-4545
100407558
AMOUNT OF DATE OF
POSITION CONTRIBUTION CONTRIBUTION
Mayor $250.00 06/20/2013
City Council $500.00 07/18/2013
City Council $250.00 10/9/2013
WEISSMAN, NOWACK, CURRY WILCO, P.C.
Date: 4N ,`-~
PLAT INFORMATION: SCALE 1"=30' DATE:09/27/13
TE MmDATA UPON WICH TIS PLT IS BASED HAS A CLOSURE OF 1 FOOT IN
F AND AN ANGULAR EROR OF 1" SECONDS PE ANGLE POINT AND WAS ADJUSTUSING THE
UT SQUARE METHOD. TIS PLAT HAS BE CALCULT FOR CLOSURE AND FOUND TO BE
ACCURAT TO 1 FOOT IN 100.ooo+ FET. AN ECTONIC TOTAL SATON WAS USE TO GATE
TE INFORMATON USE IN lE PREARATON OF lHIS PLAT. MEMBER OF lE SUR\NG &
MAPPING SOCIE1 OF GEORGIA (SAMSOG) MATS OF T] ARE ECEPT. Q2013
SURVEY: JH KP DRAF:MAL CHECKE: CAA
REFERENCE PLAT BOOK 20,
PAGE 111.
***ELVATIONS SHOW ARE
ASSUMED (NOT M.S.L)
PARCEL AREA 17,493 SF
.40 AC
EXISlNG TRE INVNTORY TO REAIN:
DECIDUOUS (HARDWOODS) CONIFERS (PINE)
1 - 6" DBH 1.6 UNITS
1 - 12" DBH 3.2 UNIT
1 - 22"DBH 6.0 UNITS
1 - 23"DBH 6.0 UNITS
1 - 39"DBH 16.6 UNITS
1 - 17" DbH 4.8 UNIT
1 - 18" DBH = 4.8 UNITS
1 - 24" DBH .U UNITS
GENERAL NOTES
1. AL MATS PERTAINING TO ARE EXCETD.
XTHIS PLAT WAS PREARE FOR TE ECLUSIV USE OF TE PESON,
PESONS OR ENll/Y NAME HEREON.
3. THIS PLAT DOES NOT EEND TO AY UNNAMED PESON, PERSONS,
OR ENl/ vTOUT EXPRESS RECE1FICA10N BY THE SURVYOR
NAMING SAID PERSON, PERSONS OR ENl/.
B
1 16" DBH HARDWOOD TO
BE REMOVED
IMPOUS SURFACES
LEGEND:
IFb -IRON PIN SET -ARC DISTANCE
IF -IRON PIN FOUND h "CHORD
-OPEN TOP PIN c -DRAINAGE EASEMENT
b -RENFORCING BAR -SANITARY SEW EASEMENT
R/-RIGHT-OF-WAY SMH-SEW MAN HOLE
U -LAND LOT b -CAH BASIN
-RADIUS h -HEADWALL
PRE-CONSTRUCTION IMPERVIOUS AREA 3,468 SF
POST-CONSTRUClON IMPERVIOUS AREA 5,656 SF
TOTAL EXISTNG TO REMAIN 161 DBH
REQUIRED 120 DBH PER ACRE X .4 ACRE 48 DBH REQUIRED
REMAINING 161 DBH > REQUIRE % DBH = 0 DBH REQUIRED
PRE-CONSTRUCTION PERCENTAGE OF PARCEL ^ 19.8%
POST CONSTRUCllON PERCETAGE OF PARCE 32.33
g 2.33 CRlCAL ROOT ZONE IMPACT
15.9% CRHCAL ROOT ZONE -c:
30.2: CRll CAL ROOT ZONE IMPACT
g 36.0% CRlllCAL ROOT ZONE IMPACT
! 7.6% CRlCAL ROOT ZONE IMPACT
/
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DEOLTON NQ
IP...
ESTIMATED DISTRBANCE =3,468 SF

iHE PLACEMENT OF DUMPSTERS AND iE PARKING OF AUTOMOBILES IS PROHIBITD IN iHE
RIGHT-OF-WAY.
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EROSION CONTOL MEASURES MUST BE INSTALLED PRIOR TO iE START OF DEOLITION AND MAINTAINED
UNTL PERMANENT GROUND COV IS ESTABLSHED.
UTLIT SERVCES TO BE TRMINATED AT R/W. COORDINAT Wli UTILITY OWERS.
POSITIV DRAINAGE TO BE PROVIDED THROUGH LOT.
DECKS, SIDEWALKS, AND EQUIPMENT TO BE REMOV.
BY GRAPHIC PLOTING ONLY, iHIS PROPERTY I S IN A SPECIAL FLOOD HAZARD AREA TYPE "X",
ACCORDING TO iHE FLOOD INSURANCE RATE MAP, COMMUNITY PANEL NO. 13089C0052 J, WICH BEARS
A DATE OF MAY 16, 2013 FOR DEKALB COUNT, GA.
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