By John Ruch
A DeKalb County board has shot down an appeal of the Atlanta public safety training center’s land disturbance permit (LDP) in a largely technical decision that could send the underlying pollution issue and other legal arguments to court.
The DeKalb Zoning Board of Appeals’ (ZBA) unanimous decision on April 12 came from motions by two members who expressed their reservations about the project as a whole. But the vote boiled down to whether the County planning director made an error in issuing the LDP earlier this year amid disputed claims about sediment runoff into Intrenchment Creek’s watershed, and ZBA members found no clear evidence of fault.
ZBA member Mark Goldman was an unenthusiastic second to the motion to deny the appeal. “I understand the concerns. Even people in my own family are opposed to this training center,” he said, adding that was not the actual question before the board. “I’m not convinced it was the best site or is the best site for a training center, and I, too, have concerns about the impacts on the environment. But again, those aren’t what’s before us today.”
ZBA Vice-Chair Dan Wright, a civil engineer, continually pressed staff members and attorneys in an attempt to resolve the question of how much, if any, sediment runoff should be allowed from the training center site. He ultimately moved to deny the appeal because the question was unresolvable and the ZBA had to defer to staff decision-making. He said he was “sorry to say, because I have reservations about this project as well,” that he was making the motion.
Jon Schwartz, an attorney for the appellants, indicated in opening remarks that he already expected the underlying issues to go to court either way. He said that “probably any legal interpretation will be resolved by an appeal of your decision.” He was not immediately available for comment after the vote.
The enormously controversial training center is in a preliminary land-clearing phase at a City-owned site within unincorporated DeKalb County on Key and Constitution roads. While the facility is intended for the City police and fire departments, it is being planned by the Atlanta Police Foundation (APF), a private nonprofit.
The LDP appeal was filed by Amy Taylor, a local resident who also serves on the Community Stakeholder Advisory Committee, a controversial review body appointed by the Atlanta City Council and operated by the APF. Also signing onto the appeal were resident Carolyn Tucker and District 6 DeKalb Commissioner Ted Terry.
“It’s disappointing that the board decided to uphold an unlawful land development permit,” said Terry.
In the ZBA meeting, attorneys for both sides raised numerous legal issues that also could be grounds for court arguments. Among those raised by Simon Bloom, representing the City and APF, were whether the appellants have legal standing to appeal and whether County zoning applies to a project being planned by another governmental entity.
But the decision came down to two facets of the sediment pollution issue: whether runoff from the training center site is allowed under state law that caps the creek’s amount, and whether the County planning director made an error in following a Georgia Environmental Protection Division (EPD) opinion that it is.
Schwartz argued that the County cannot issue a permit that violates state law. “The issue for this board is whether Atlanta’s police training center will violate state water quality standards,” he told the ZBA. “… It’s unlawful to build a training center in that South River Forest property, and no one, including the police, is above the law. We only ask that you follow the law and uphold the water quality standards by reversing the director’s decision.”
Leah Ward Sears, a former Supreme Court of Georgia chief justice who represents the County in the case, said there are many holes in the argument about the runoff cap and its applicability to the training center site. Bloom also emphasized that APF is following the law as presented by EPD. “This is the most-watched real estate development project in the region,” he said, noting it is inspected daily. That is in part due to a previous court order related to the appeal.
But perhaps more significant was Sears’ emphasis that the appellants had the burden of proof that the planning director made an error. She said staff undertook “careful review” for 11 months, including several revisions and corrections that got EPD’s “blessing.”
“There’s no basis at this point for second-guessing this process or the ultimate decision,” she said.
That procedural point was persuasive to the ZBA, which voted unanimously to deny the appeal.
But it also leaves unresolved the legal and practical questions about sediment runoff from the site. At the heart of the matter are two apparently undisputed and contradictory points: a state legal cap on sediment runoff in the creek’s watershed, and the training center site’s discharge of sediment into the creek’s tributaries. Schwartz displayed photos of alleged sediment runoff from the site into a creek tributary, with no objection from the other side.
Schwartz and the appellants argue that the cap is already far exceeded, and thus no land disturbance, including the training center, can be legally permitted in the watershed at this point. Sears emphasized previous EPD opinions that such a cap does not apply to the training center site and that a different type of permit, which allows some runoff constrained by various standard erosion control tactics, is OK. She noted that other projects are under construction in or near the same watershed. Donovan Cushnie, the floodplain coordinator in the County’s Planning & Sustainability Department, told the ZBA that the permit issuance relied on EPD’s opinion that there are runoff load allocation issues, “but this project is not held to this standard.”
“I don’t know how to resolve this issue of the total [sediment runoff] load,” Wright said at one point. That ultimately meant the ZBA deferred to the planning staff’s decision-making.
The appeal was heard as part of a standard ZBA meeting held virtually via Zoom. The meeting began chaotically, as someone bombed the video stream with pornographic movie clips and shouted profanity and a racist slur. County staff blocked general access to microphones and video, apparently contributing to confusion about who could speak or show images during the training center appeal portion.
Update: This story has been updated with comment from DeKalb Commissioner Ted Terry.
I think things like this need to be handled seriously to scare other people and protect the environment.
This is a very good account of this hearing by John Ruch — which I viewed as a member of the public as my neighborhood had an interest in a later case on the agenda. Mr Schwarz was up against a conference table full of lawyers from Smith Gambrell Russell not just former justice Sears. I would only dispute that the issue before the DeKalb ZBA should not have been “did the director make an error in issuing the permit” but “did the permit comply with all local state and federal law?” — which is required by the DeKalb Code. If the permit issued by EPD is in error or invalid or was issued on a political basis (that would never happen, right?) — then the DeKalb land disturbance permit is NOT in compliance with federal law regarding pollution into the river. The ZBA has all of the powers of the DeKalb official being appealed and can exercise their own judgement as to whether it complies with all laws. However, I don’t recall hearing Mr. Schwartz cite a precedent case where a court upheld a decision by a local board to reject a state permit and therefore invalidate a local permit. That would have helped the DeKalb ZBA — who did ask intelligent questions. Maybe Mr. Schwartz can fare better in the court on appeal.
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