Kroger Fails to Comply with Brookhaven Standards

Beginning in early 2012, the Kroger Company fought hard to avoid zoning compliance for its expansion in Cherokee Plaza, and, was inexplicably granted 15 variances by the DeKalb County Zoning Board of Appeals in June 2012.  At that time, Kroger pledged to continue to work with the community to resolve the important outstanding issues relating to achieving compliance with the Brookhaven Overlay streetscape improvement standards.

Just last month, about a month before the planned opening of the expansion of Kroger on August 1, 2013, Kroger representatives finally sat down to let a group of concerned neighbors know that they were not doing anything further to satisfy community concerns.  These neighbors also learned that Kroger was not in fact even upholding the requirements imposed by their variances.  After months of requests, it was the first time Kroger shared their approved plan.   Kroger has been difficult to reach and unresponsive to numerous requests to address long standing concerns.  It is now clear that Kroger will not follow through on previous promises made to work towards improving the Peachtree Road frontage

At stake are three main issues with this property for Brookhaven:

  • Failure to Address Vehicular Safety Concerns: A new landscaped island that they propose at the main entrance off Peachtree Road will back traffic onto Peachtree Road with only two vehicles in the shallow entrance (see sketch). This is truly a PUBLIC LIFE/SAFETY  ISSUE whose impact at best will be to further snarl traffic, or worse, to trap a southbound car turning left in the path of northbound traffic.

    Kroger Entrance Conflict

    Kroger Entrance Conflict

  • Failure to Comply with Zoning Approvals for Site Landscaping: Kroger plans to install trees that are less than half the size of those required by their variances, and, 6 fewer trees than the minimum required.
  • Failure to comply with Overlay Streetscape Standards & Pedestrian Safety: Kroger refuses to widen the Peachtree sidewalk and install landscaping as all other developers in the Overlay zoning area have been required to do. This is far more than an aesthetic issue on Peachtree Road; it is a public safety issue in an area that is already dangerous for pedestrians and auto traffic. Invariably, cars exiting Cherokee Plaza block the sidewalk & force pedestrians to walk in the street.

Further discussions with Kroger after our meeting have been dragged-out and their promises of timely responses have been broken. Kroger is scheduled to begin the site work on August 1st.

Simply put, regard for traffic and public safety should be utmost in the minds of anyone who does business in Brookhaven. The ruling of the DeKalb Zoning Board of Appeals exemplifies at least one of the reasons why Brookhaven is now a city. Currently DeKalb County retains authority over the Kroger permits and inspections. The City of Brookhaven is not powerless though.

What can you do as a resident and a Kroger shopper?

  1. Contact Kroger – Tell Kroger that you’re bothered by their failure either by phone, email  or stopping by to see Bobby Smith (Store Manager) at 404-240-0808 (  You might also contact Eyvonne Johnson, Assistant Real Estate Manager at Kroger ( 770-496-7583.

Send a clear message to Kroger that your patronage is at stake and they need to support this community and do what is right.  If they don’t, then shop there a little less or not at all.

  1.  Contact the City of Brookhaven – Let you City Council representatives know that you’re bothered by this and wish they could do whatever they can to help.
  2. Contact Cherokee Plaza –   call Lori Walker, Cherokee Plaza Property Manager for Weingarten Real Estate ( 770- 618-1086, and insist that their property meet Overlay standards.


If we think as a community, expend a tiny bit of effort, we can send a clear message to all the merchants that want our dollars that they must respect and support the community too. Time is of the essence as we understand the site work will begin about August 1

Thank You.

Proposed Overlay District Changes

Proposed changes to the Brookhaven-Peachtree Overlay District will be heard before the Brookhaven Planning Commission on June 5th at the Brookhaven Municipal Court hearing room.  It will be a public meeting, beginning at 7 PM.

The draft changes from the Brookhaven Planning Director are not currently available.  We will post them here as soon as they become public.  The legal ad, as it appears in the DeKalb Champion, follows:


City of Brookhaven

Notice of Public Hearing


Wednesday, June 5, 2013 AT 7:00 P.M.


MONDAY, June 11,  2013 AT 7:00 P.M.

 City of BrookHAVEN MUNICIPAL CouRT Chamber

ADDRESS: 2 Corporate Boulevard, Suite 125, Brookhaven, Georgia 30329

 The following text amendment to the City of Brookhaven Zoning Ordinance affecting property located within the City of Brookhaven is scheduled for Public Hearings as stated above.

TEXT AMENDMENT:                       RZ13-02

Property LOCATION:       Brookhaven-Peachtree overlay district

APPLICANT:                          CITY OF BROOKHAVEN

PROPOSED revision:                         Technical amendments concerning terms relating to parking, height, story, sidewalk signs, density, and for other purposes.

Bellaire Decision Delayed Until Nov. 20

The Brookhaven Zoning Board of Appeals (ZBA) deferred a decision on the Tomlinson family’s request for approval of a 6 story apartment project at the corner of Bellaire Drive and Peachtree Road for 6 months to give neighbors and the Tomlinson family more time to reach a reasonable solution.  About 75 neighbors showed up at the public hearing in opposition to the proposed project.  Many were disappointed with the deferment.

It’s an open question whether the Tomlinson family will lower their expectations on development density–and therefore price–on the property.  Until that happens, neighbors are intent on keeping any new development on hold.

See “Original Story” and other notes in the Brookhaven Overlook thread (Updates, bottom right).  If you want to see the current site plan, click here.

Moratorium Text

From 12:01 a.m. on March 27, 2013 until midnight on June 25, 2013, there shall be a complete moratorium on the City’s acceptance, review and processing of any new applications for amendments to the text of the Brookhaven-Peachtree Overlay District, official zoning map amendments, comprehensive land use plan amendments, variances, administrative variances, special exceptions, special land use permits, land disturbance permits, new building permits, new land development permits, new clearing or grading permits, and any and all new permits or licenses related to the development of land for property located within the Brookhaven-Peachtree Overlay District, as specifically described in Brookhaven City Code section 27-728.15.3, within the municipal boundaries of the City of Brookhaven as specifically described in House Bill 636.

This moratorium becomes effective at 12:01 a.m. on March 27, 2013.

This moratorium shall expire at midnight on June 25, 2013, and be of no force and effect, unless shortened or extended by an official action of the City Council of the City of Brookhaven.


The Brookhaven City Council has passed a moratorium on all variance and zoning applications, as well as all building and land use permits, in the Brookhaven-Peachtree Overlay District, effective March 27th.  The intent is to allow time for the City to clarify a few key elements of Overlay District regulations that have been causing confusion for developers and city staff.  Examples are:  what is the definition of a second story?  what is the parking requirement for a stand-alone restaurant?  should parking minimums and maximums be the same number?  what is the residential unit/acre density allowed in Area 1 and Area 2 of the Overlay?

City staff will be studying the issues and proposing modifications to the Planning Commission and City Council within the next month or so.  While the moratorium is declared to last 90 days (until June 25th), the hope is that the modifications will be complete within 60 days so the moratorium can be lifted by the end of May.

The Moratorium text can be found here.



Bellaire Decision by ZBA

By a 5-2 vote, the Brookhaven Zoning Board of Appeals (ZBA) voted to defer a decision on the Bellaire property appeal until their May 15th meeting.  The purpose is to give the property owners and neighbors a chance to negotiate an agreement.

After a 2 hour meeting, the ZBA voted to defer, much to the disappointment of the 100 or so Brookhaven residents packing the Brookhaven Court Chamber.  Half the crowd had to stand along the edges of the room and in the lobby outside; everyone sweltered as the HVAC system, apparently turned off for the evening, failed to cool.

Each side was given 30 min. to make their case, with Atty. Kathy Zickert presenting for the Tomlinson Family (property owners) and Linda Dunlavy presenting for the BPCA, HBNA and Bellaire neighbors.  Zickert, et al., maintained that the DeKalb County Planning Dept. incorrectly interpreted the density allowed on the site in denying the owners a Certificate of Overlay Zoning Compliance.  Furthermore, she argued, DeKalb County should have allowed them to make any necessary changes to their site plan and continued to process their LDP application rather than pass on the application to the City of Brookhaven.

Dunlavy, et al., countered that DeKalb Planning Dept.’s interpretation of allowable density was a correct interpretation of the zoning code and therefore the denial of a Certificate of Overlay Compliance should stand.  The Brookhaven ZBA should read Brookhaven’s code and form their own clear opinion, with no deference given to prior decisions made by DeKalb County on other projects.

In the end, the likelihood that either losing party would pursue their case in Superior Court, with the City of Brookhaven as defendant, seemed to convince the ZBA to encourage a negotiated solution.

If such a solution isn’t reached by May 15th, the ZBA will be forced to decide yes or no on the property owners’ appeal.  For more details and a video, see this Brookhaven Post article.

Bellaire Public Hearing

The proposed Brookhaven Overlook project, at the corner of Bellaire Drive and Peachtree, will have a public hearing before the Brookhaven Zoning Board of Appeals (ZBA) this Wednesday at 7 PM at the Brookhaven Municipal Court Chamber (map).  The property owners, represented by Attorney Kathy Zickert, are appealing an administrative decision made by DeKalb County Planning Department to deny them a certificate of Overlay Zoning Compliance last November.  The application and appeal were passed from DeKalb County to the City of Brookhaven in December.

The BPCA, Historic Brookhaven Neighborhood Association, and Bellaire neighbors are supporting DeKalb Planning Department’s decision and opposing the property owners’ appeal.  Attorney Linda Dunlavy is representing the opposition.

The City of Brookhaven Planning Department recommends denial of the appeal.

This is the only item on Wednesday’s agenda.  Details can be found here on the City of Brookhaven website.  Under “Zoning Board of Appeals Meeting”, click on “Packet.”

See other posts under “Brookhaven Overlook” on this website for plans, elevations, and the BPCA analysis of the proposed development.


Caldwell Variance Denied

The Zoning Board of Appeals denied the requested height variance for “the little white house” on Caldwell Road last night by a 4-2 vote.  While ZBA members and public speakers generally welcomed a new restaurant by chef Scott Serpas, the applicant could not demonstrate a hardship that warranted a height variance.  Many area residents also voiced concern about parking on nearby residential streets and traffic congestion.

In the BPCA’s view, this site should be redeveloped with the surrounding properties as part of a cohesive, mixed-use development in accord with the LCI vision.  There has been at least one effort to assemble that block already and it looks like it will happen in the near future.

In the meantime, the “little white house” can continue to serve as an office for small business per its current use.

Caldwell Road Variance Request

There is a zoning variance hearing coming up on Monday night (3/4/13) for 2536 Caldwell Drive (the white house behind Savi Market). The hearing is at 7:00 PM at the Brookhaven Bank, 2221 Johnson Ferry Road. Here’s a summary:

The applicant wants open a restaurant keeping the existing house structure & adding additional building that will almost double the current footprint . The application requests a waiver of the height requirement under the zoning regulations. The plans submitted indicate a little over 100 seats including a 16 seat bar. The site plan submitted indicates a total of only 10 parking spaces provided on-site. The owner purchased the property in mid-2010.

2356CaldwellSiteThe complete application, including site plan and sketches, can be found here, pp. 25-38.  The Brookhaven-Peachtree Community Alliance (BPCA) has filed Oppositions with the City of Brookhaven – Zoning Board of Appeals to the variance request citing numerous technical concerns.   (Click here for the full text of the Opposition as filed).

One of the chief concerns is that BPCA estimates the restaurant will need parking for 50+ cars when busy. The excess 40+ cars (about 2 2/3 football fields long parked end to end) will be parking on the narrow single family streets nearby that have no sidewalks or adequate lighting, plus the streets are narrow. Additionally, Caldwell Drive has no obvious easy driving returns to Dresden drive other than the way in on Caldwell Drive. That intersection is already congested with traffic, inadequate parking and valet services generated from Savi, Kaleidoscope, Sushi One and the soon to be opened Rock Pizza. BPCA is concerned that this will additional traffic volume & noise at nighttime through the residential streets with drivers distracted to find a route out, and, cause dangerous U-turns on narrow Caldwell Drive.

Anyone who shares these concerns should consider attending the hearing, and or making their concerns known beforehand, speaking with their community leaders or contacting your City Council representatives.


Brookhaven Overlook (Bellaire) Update

Brand Properties, developer of the proposed Brookhaven Overlook apartments at 3770 Peachtree Road, applied to DeKalb County for a Land Disturbance Permit (LDP) in early December, 2012.  This was just before the new City of Brookhaven began operations on Dec. 17th.  The DK County Planning Department denied the application after it failed to pass their review for Overlay Zoning Compliance.  One of the reasons cited was that the density of the proposed project (87 units/acre) exceeds the density permitted by the underlying zoning district (RM-75, 18 units/acre) and the underlying Comprehensive Land Use Plan (Suburban Residential, 8 units/acre).

Brand and the property owners–informally known as the “Tomlinson Family”–promptly appealed the Planning Department’s administrative decision to the DeKalb Zoning Board of Appeals (ZBA).  DeKalb County declared they would assume no further jurisdiction for the site and forwarded the appeal to the new City of Brookhaven.  After some discussion, Brand Properties reportedly withdrew from the project and the Tomlinson Family agreed to pursue their action in the City of Brookhaven.

The appeal is now scheduled to be heard before Brookhaven’s new Zoning Board of Appeals at their first public meeting, announced unofficially as March 20th.  The BPCA, Bellaire neighbors and HBNA, represented by attorney Linda Dunlavy, continue to support the Planning Department’s decision and oppose the appeal.  The Tomlinson Family is represented by attorney Kathy Zickert of Smith Gambrell Russell.