Agenda - Planning Commission - 01/03/2008

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Zoning Bulletin Commission-Petitioner challenges composition of commission that denied application Claims commission had to have seven members Citation: DeKalb County v. Buckler, 2007 WL 3307235 (Ga. Ct. App. 2007) GEORGIA (11/08/07)-Buckler purchased three adjacent lots totaling 4.6 acres of land located in a historic district of DeKalb County. Af- ter purchasing the property, he obtained a certificate of appropriate- ness for a plan to subdivide the three lots into fiv.e in a manner that included driveways for each lot. Certificates of appropriateness were necessary to alter lot lines within the district. After the initial development ran into opposition, Buckler submit- ted two alternate plans for re-platting the same property. The plans also provided for five lots, though with different configurations. A hearing was held to review the new application. At the time, there were four active members serving on the Historic Preservation Commission. All four were present for the hearing; three voted against the application and one member abstained. The commis- sion later issued an official notice of denial, in which it concluded that both plans submitted by Buckler would have a "substantial adverse ef- fect on the aesthetic, historic or cultural significance and value of the historic district." Buckler petitioned the court for a review of the commission's deci- sion, asking for judgment without a trial on two issues. He claimed that: the commission's decision was void because it did not have the required seven members when it rendered the decision; and the hearing was not properly noticed because the application was considered at 1:20 a.m. on the day following the originally scheduled hearing date. The trial court agreed that the commission was legally deficient be- caUse the county code that established the commission stated that it "shall consist of seven members." Moreover, there was a provision that stated that if the commission did not act on an application within 45 days of its submission, it was considered automatically approved. Be- cause the commission's decision was voided, and 45 days had passed from the time of application, Buckler's petition was approved. The commission appealed. DECISION: Reversed. To decide this case, the appeals court looked at the language in the bylaws of the commission. In addition to stating that the commission "shall" have seven members, "(d]ecisions of the preservation commis- sion shall be by a majority of those members present and voting, a quo- 8 70 ,/"'., l ( ) --' ) -.J" :i i\ ,\ [, I' !\ !I II '\ ]1 !i :1 I! q II 1\ I. iI i! :\ li '1 \1 iI lj II H 11 H ., II !I iI 1\ II 1\ 'I II Ii Ii Ii II :t ;1 Ii I: 'I !I ii !j 'I II Ii ii " il :\ Ii it il :1 l) i' ,! i