The Brookhaven Place Diaries January 2007

Florida-based The Sembler Company is one of the largest developers of shopping centers working in Atlanta. According to Sembler, the $66 million purchase of the 50-acre Peachtree Gardens Apartments at Peachtree Industrial and Hermance on May 1, 2006, was at the time the largest land deal in DeKalb County.  Meeting with BPCA in May 2006, Sembler’s President of Development Jeff Fuqua claimed Brookhaven was “run-down and in need of major redevelopment” and that it was time Brookhaven become more like Buckhead. He was quoted in the media claiming of Brookhaven Place: “It will be twice the size of Lindbergh with the feel of Perimeter.”According to Sembler’s June 2006 Corporate Newsletter released in May 2006, the builder originally proposed a massive $400 million project including 600,000 square feet (SF) of commercial and 1,500 residential units. By June when the Georgia Regional Transportation Authority (GRTA) completed its portion of the Development of Regional Impact Review (DRI), the project included 564,000 SF of retail, 36,000 SF of restaurants, 150,000 SF of office space, 440 homes for sale and 1,260 rentals (1,700 unit’s in total).  In that March meeting with BPCA, Fuqua said they doubted they would get all 1500 units so it was normal to increase the request. According to Sembler’s lawyer at September 26, 2006, DeKalb Board of Commissioners (BOC) zoning meeting, the company later cut 139 units “at great expense to themselves.”From the beginning, the “plan” for Brookhaven Place was designed for massive financial success. According to Fuqua the company profits from a business model based on retail chain contract fulfillment, not on designing town centers to fit communities. Where most shopping centers have between two and five anchors, Sembler plans between ten to a dozen national chains prearranged as major anchors, including a massive Home Depot. But Sembler can only plan two entrances and two smaller driveways for a complex of five massive multi-family towers and commercial space virtually equal to the size of Phipps Plaza (which has 12 entrances).  Even though planned building heights ignore OCR zoning and LCI maximums, no usable area remains for open park space as real town centers should always include.The plan for this project remains twice as bottlenecked as the most inaccessible Sembler projects around Atlanta, as shown on this Commercial Access Comparison.  Remove the 5 acres of transitional and creek buffer, and the separate 5-acre townhouse development, and the entire Brookhaven Place is about 40 acres, equal to the 42-acre Perimeter Place which needs no transitional buffer. While Perimeter Place is already cramped and crowded, Brookhaven Place includes about 70% more commercial SF and almost three times as many residential units - with half as many exits. At what point scale is an issue to governing bodies seems very unclear. Development on every acre of Sembler’s big-box projects continues to mushroom in scale and density as the company finds what it considers better locations for more national retail chain contracts.  Combined with DeKalb’s thirst for revenue and the state’s drive to de-sprawl, things like rules, regulations, and of course community vision just isn’t part of the equation.  Mike Alexander with ARC considers them elements of “the perfect plan” - an ideal to be shunned because developers just are not going to stand for it. Brookhaven Place is 40 percent denser than Sembler’s previously most dense Atlanta area project - Lindbergh Plaza. The average SF per acre of all other Atlanta Sembler projects combined is less than half the SF per acre of Brookhaven Place. Perimeter Place, Sembler’s biggest DeKalb project prior to this (another Boyer-supported deal), includes 8,300 CSF and 13 units per acre. Brookhaven Place is planned to include 14,200 CSF and more than 27 units per those same acres. At Perimeter Place Sembler installed an exit for every 4.5 acres of CSF and units, but at Brookhaven Place Sembler only planned an exit for every 12.5 acres of CSF and units.  The numbers are confusing, but the comparison in whole is chilling. Why is scale and density ignored?  

“What LCI?”

During May Urban Collage’s Eric Bosman assisted the builder in changing its weak “placeholder” site plan to meet a Mixed Use definition, but Sembler only adapted a few recommendations that allowed the placeholder plan to begin to appear as Mixed Use to impress the ARC and still cram too much of everything.  Urban Collage turned down Sembler’s attempt to hire the company’s opinion, because the company was still a consultant with DeKalb County’s Economic Development Department.

In a letter to the ARC dated June 13, 2006, Sembler’s Heather Duffy stated that at the May BPCA meeting Eric Bosman of Urban Collage confirmed that Brookhaven Place was “consistent with the development principles annunciated in the Brookhaven LCI Study.” He did not.  Because Sembler had agreed to actually mix some retail with residential and add a main street, Bosman stated that Sembler “was moving in the right direction” and was “lightyears ahead of where they started.” But Bosman also stressed the many areas of the LCI Sembler continued to ignore, and admitted his basic displeasure with the overall design. But in a June Sembler presentation staged for Ashford Park, Bosman appeared for the company saying, “Forget density, it’s a done deal. Just concentrate on what the buildings look like.”  After the Ashford Park presentation, Bosman responded to questions about his statements, admitting that he had no choice in what he could say. The ARC, the agency that provides LCI grants, was expected to uphold the planning principles it funds, but it seemed to buckle. In fact the ARC went out of its way to support the inaccessible auto magnet, although it stated that more future residents should be able to find jobs onsite for it to be considered true Mixed Use. That’s when Sembler bumped up the SF of office to 150,000 without limiting other uses.In that same memo to the ARC dated June 13, 2006, Duffy claimed Sembler was “seeking a Special Land Use Permit (SLUP) to allow us to construct buildings over two stories in height.”  The issue the ARC posed was that the OCR zoning ordinance demands that SLUPs for oversized buildings must be approved BEFORE a site plan can be approved by the BOC.  Duffy went on to say that “All applications are scheduled to be heard by the Board of Commissioners on July 25, 2006.” No requests for SLUPs went before the Community Council, or the Planning Commission, or were ever on the BOC agenda in 2006.According to the few in DeKalb government willing to uphold zoning requirements, Sembler’s lawyers determined that this OCR requirement did not apply to Sembler, as it did to everyone else, and claimed they wouldn’t know which buildings are too tall until after the site plan is approved - because until then the buildings may or may not be taller than two stories.  This logic makes SLUPs unnecessary and automatically approved, and the law superseded.  But the law doesn’t work this way for other developers.  Actually the same buildings that were over the maximum limit on the March site plan are still over the maximum limit today.The county, the ARC and Urban Collage have since publicly applauded the site plan whenever required even though major elements remain unplanned and OCR and LCI guidelines go unmet. The ARC ignored its own LCI process entirely and claimed it had no standards by which to measure scale - only whether it was Mixed Use.  In its original analysis, it even ignored the recommendations of agencies that were opposed to the project.  A county manager with Economic Development was brought to the August Area I Community Council meeting to help convince the volunteer group that the County liked the plan as it stood.  Answering stiff questions she admitted Sembler still needed to make more changes to meet requirements. In the next couple of weeks it was announced by DeKalb County that the Econ Dev manager would be leaving its employment.

The LCI Overlay Disappears

Approving an LCI Overlay zoning district in 2006 was to have been the next step in the LCI process. Urban Collage released the first draft of the LCI overlay to the county three months after first talking to Sembler.  The LCI study recommendations were compromised somewhat, and it incorporated what would already be major elements of Sembler’s July site plan - except for the lack of usable greenspace, over-the-limit mixed use buildings, seven story parking deck, and the 20 story tower everyone was against.

In August Bosman prepared a straightforward memo comparing the July site plan to the text of the LCI study and to the first draft of the overlay. While it required unique calculations to stretch the LCI Study around Sembler’s plan, it acknowledged several areas like height and greenspace that fell far short of the study and the overlay. Sembler told the Community Council in August that residential buildings were four stories, but after that meeting Fuqua changed it to four stories of residential on top of one story of retail.

In November the commissioners announced the Brookhaven LCI overlay would be considered some time in 2007 when other LCI overlays were ready for discussion.  Sembler would be decided first without the aid of enforceable requirements.  In the meantime the LCI continues to be interpreted by developers as a Mixed Use District where scale is no issue. The Brookhaven Place site plan continued to grow with an additional 31,000 SF of office, and ignoring what would have been overlay requirements, the mixed use buildings grew to six stories again, the parking deck remained seven stories, and the tower remained 20 stories - 13 stories over the maximum height limit as detailed in the LCI overlay.The Conditions of Zoning, written by Sembler attorney Kathy Zickert, were presented to Boyer’s workgroup of Sembler and Area I resident representatives the week before the final vote as being the last word on how Brookhaven Place would look.  While it showed the tower as 20 stories, Boyer promised it will be lower, but she didn’t know how much lower because Sembler hadn’t shown her pictures of different sizes yet. It was clear Sembler would not agree to any loss of density. All other residential buildings remained well over OCR and LCI Overlay limits. What should have been an acre-and-a-half of usable greenspace is codified in Sembler’s Conditions of Zoning as a .3 acre patch - a 75 foot wide strip of median grass.  Even so Sembler still claimed to be in compliance with the LCI and OCR zoning codes.For Sembler the delay was upsetting since it was costing the builder $26,000 a day, according to Fuqua.  It seemed to be normal to be bumped well ahead of dozens of other developers on the BOC’s 2006 agenda, work around OCR zoning code, and all but void the Brookhaven community’s LCI initiative.  In October when a school board member told the media of secret negotiations to buy public land on North Druid Hills without the public’s knowledge, both DeKalb and Sembler went into high gear to sell the idea to residents. That board member quietly left county employment within a few weeks.“Influence peddling is a completely different thing.”

In the last days of negotiations with Commissioner Kathy Gannon, Sembler agreed to reduce the 20 story condo tower to 16 stories, then divide it into two eight story towers.  Since May Sembler had discussed a willingness to reduce the tower to 16 stories and as expected the loss of four stories on the Peachtree tower did not reduce the project’s density.  In the conditions pushed by Elaine Boyer, Sembler increased the height of the huge condominium Building B to seven stories and added the caveat that apartments could be turned into condos without prohibition.

Sembler could never figure out how to get 600,000 SF of retail on the property, so the conditions claimed that the additional 31,000 SF of office space added in July would make up the difference.  The final tally included 750,000 SF of retail/office space and 1,560 residential units - about 20% more commercial and more units than Sembler originally planned.  The two once-four-story condo towers in the far southwest corner, closest to existing homes, became one massive six story tower with a seven story parking deck.

Even though Sembler told GRTA and ARC it would pay for any or all of the road improvements detailed by the organizations during the DRI assessment, according to the final conditions Sembler is only responsible for small changes around the development, and “working with” the county to construct a rotary island at its north exit on Hermance.  Later the company may replace speed tables just installed on Hermance adjacent to its property, according to the conditions.  All of the other many changes required to every street shuttling increased traffic to and from Brookhaven Place will be paid for by us - the county taxpayers.Sembler opted for the minimum required detention facility to handle the runoff on 45 acres of future cement, although they agreed to chip in $187,000 for 700 feet of downstream creek bank modifications. But Sembler refused to pay the downstream money until they are handed a disturbance permit.  If they don’t get a permit, according to the conditions, they don’t pay. When the Sunday Paper asked Sembler PR flack Angelo Fuster about claims of bribery, he stated the money Sembler handed out were contributions, and avoided the question by saying “Influence peddling is a completely different thing.”Fuster’s right.  Influence peddling would be when, because of a new development, a commissioner turns down a neighborhood’s long-sought request for, say, traffic calming devices. Then the developer goes to those neighbors and states he can get their request approved if they agree to support his plan.  Once a deal is struck, the same commissioner agrees to approve the same request at the next meeting.  That would be influence peddling. Or if a neighborhood agreed to support that developer by jumping at the offer to convince the county to install long-needed sidewalks, that would be influence peddling - even if the county refused to do it.In a friendly gesture to the Brookhaven community, Sembler promised a $120,000 grant to fund the Ashford Park Elementary School’s computer lab, even though the aging school has been on the county’s short list of schools to close for several years due to a low number of potential students served.  This year it has been reported that the school has moved much higher on that list, and Sembler’s buyout of Peachtree Garden Apartments removed from the school one third of the current enrollment.  Rudy Terrer, president of Ashford Park Civic Association at the time, claims to have sealed the deal himself (his kids start going to the school next year). Terrer, who earlier tried to ask Sembler about the deal but was rebuffed, had expressed the opinion that less density was needed.  But after the deal he did a 180 and became Kathy Zickert’s most vocal supporter, and personally withdrew his neighbors’ longtime support from the LCI.While some in Ashford Park said they were happy to see children that Ashford Park Civic Association (APCA) officers call “transients” forced from the school, concerned parents and school supporters in Brookhaven struggled to convince the county to keep it open.  Several civic groups spent their own small budgets to desperately market the school to realtors and a school board Sembler has worked with secretly for many months. It is not known if Sembler is using its influence with the board, but some parents close to members of the school board say they have been assured Ashford Park will not be cut - even though Sembler’s 1500 future DINK-oriented apartments and condos will not add to the enrollment.  Sembler will have already paid the grant by the time it is decided whether to close the school.

Sealing the Deal

The DeKalb Board of Commissioners passed Sembler’sBrookhaven Place rezoning with only two abstentions and no opposing votes at the BOC Zoning Meeting on the evening of November 20.  A few wording changes were made in Zickert’s written zoning conditions, but were accepted by the county as ultimate dictates. Boyer stated that the motion to approve was contingent on changes to the conditions and that day’s site plan that needed to be made, and Kathy Zickert quickly agreed, saying, “they’re being worked on as we speak.” Kathy Gannon and Connie Stokes abstained, and Gannon read a long list of reasons why the plan should not be approved at the time, but she was unable to provide a No vote.In Sembler’s conditions, the LCI overlay was only mentioned as fitting Sembler’s streetscape design.  Before the vote Commissioner Elaine Boyer announced to her Sembler/community workgroup that the county applied for competitive public LCI grant money to implement LCI overlay approved streetscapes.  The LCI implementation grant is not designed to cover the expense of Sembler’s necessary streetscapes, but will instead pay for improving sidewalks on the West side of Peachtree between MARTA and the development to enhance the three-quarter mile walk to the “pedestrian-friendly” Brookhaven Place.  Sembler had said eariler they would be willing to make those changes, but now some of the limited LCI money will be used by DeKalb to improve access to Sembler’s development. Even though the BOC passed the site plan on Nov. 20, they made changes to it in order to meet approval.  Boyer and Gannon agreed that Sembler’s most recent trick of raising several buildings and decks, including the largest condo, Residential Building B, to seven stories wasn’t going to happen, but they missed the last minute raising of the three story townhomes to four stories.  The commissioners agreed with Sembler there would be only two eight story buildings and that was all.  But Sembler wasn’t through trying for all the extra height and density they could get everyone to allow. Sembler still had a Special Land Use Permit to approve that would define just how high they could go on all of their buildings.“I think we were tricked on this one.” Sembler went before the Area 1 Community Council on Dec 19 to “explain” the Special Land Use Permit (SLUP) they expected to get for all of the buildings in Brookhaven Place that exceed the OCR building height limits.   When the Council learned just how tall Sembler planned the buildings they had been told by Sembler would be four stories, the Area I Community Council recommended denial of the SLUP.  The young woman who was sent to detail the application didn’t actually know that many, but everyone knew denial would never happen.  The next step for Sembler was getting the wink from Planning and the nod from the Planning Commission, and they got the recommendation they wanted. But something wasn’t kosher about the deal Sembler worked out with the Planning Department.According to the OCR Zoning District, a SLUP must be analyzed by Planning, who informs the Planning Commission and BOC of each building’s worthiness based on specific criteria. Then it is approved or altered by the BOC before the BOC signs off on a site plan and a rezoning application. But DeKalb now interprets that rule differently. The BOC can approve a site plan contingent on the SLUP approval that now happens later. The catch is that since the BOC has approved the site plan (even though it’s contingent), DeKalb believes the SLUP doesn’t require analysis since its approval is now “automatic” - the BOC has already approved it, sort of. While the wording in OCR seems to claim that each building pushed above its maximum of two stories requires a SLUP, DeKalb claims one application covers every bumped up building on the site.  In this case, it includes two residential buildings to eight stories, four residential buildings to six stories (one is being snuck to seven), two commercial building to six stories, and 50 odd townhomes to four stories.  But according to DeKalb only one SLUP application is needed in this case.  At least two of the residential buildings do not meet SLUP criteria, but because the single SLUP is “automatic” nobody in DeKalb is concerned.Not even that was good enough for Sembler. On the day of Nov. 20 Commissioners Gannon and Boyer caught Sembler trying to sneak into the conditions an extra floor onto Residential Building B, the largest condominium.  They refused to allow it.   Sembler’s Heather Duffy claimed the LCI Overlay, which nobody had yet seen, allowed them an extra floor on all six story buildings because they added affordable housing, but that was wildly inaccurate. The draft allows an extra floor on top of four stories if 20% of all residential units meet the affordable definition - over 300 units for Sembler. The company only allowed 150 units.  None of that mattered.  Sembler fought hard to be sure it didn’t fall under the overlay’s criteria, and there was no reason to pretend it could profit by it (in this case).Since Sembler didn’t get its additional floor of condominiums past the commissioners, it had one more chance.  If Planning recommended the SLUP be based on the Nov. 20 site plan (which did not show the changes), it would codify the extra height they hadn’t been allowed on Nov. 20.  Instead of using an amended plan that showed the two eight story buildings the commissioners allowed, Sembler shaded a swath of property on Peachtree (that included the six story office tower) and stated that anything built in that area can be eight stories.  That’s what Planning and the Planning Commissioners recommended.  It almost worked, but Gannon and Boyer discovered the discrepancies the week before the final vote, and claim to have discussed changing them back with DeKalb’s Director of Planning Patrick Ejike.

Gannon told Duffy and Zickert internal buildings had to remain six stories, and Boyer asked at the time of the vote if that change had been made, and Zickert answered yes. So Boyer moved that the plan be approved with those changes. Apparently Zickert never changed the conditions to show the original six stories on Building B, and even though Ejike has the ability to make the minor change to the conditions under Sec 27-845, he refused to lower the building because it was still in the conditions.  Actually it’s not even a minor change as defined by the code since it isn’t approved conditions – the Nov. 20 approval was contingent on that condition being changed.

When Commissioners Gannon and Boyer found out the conditions has not changed and Ejike refused to allow the building to meet the commissioners’ original decision, Gannon responded, “I think we were tricked on this one.” She said the motion they make on Jan. 23 “should reflect that the crossed hatched area to the right of the entry may include one office building of up to 6 stories and two residential buildings up to 8 stories,” but she didn’t explain why the southern half of the Peachtree frontage Sembler still wanted eight stories was to be included.

At this time, only the BOC’s Jan. 23, 2007, zoning meeting where they decide on the SLUP will complete Sembler’s county permitting process - unless they return for more buildings and more height and variances and additional permits to change what they have already managed to obtain approval for. It would be interesting to watch this project develop, but since nothing else will be public we probably won’t know about it.

When Governments Go Bad

As much as Zickert and Fuqua wept and wailed all year long about how much they cared for the community and how much they were doing for the residents, no other developer has lied, pretended to promise, bad mouthed, cheated, abused, tricked, bought off, threatened, and peddled influence more than Sembler and its attorneys. They did the same to the BOC and got away with it. They got away with everything. Perhaps the commissioners will be more wary the next time Kathy Zickert hands them conditions the day before a vote. Maybe now it sinks in: whatever they were told they can’t have, it will be detailed in the sneaky conditions with the expectation that it will not be noticed until after the vote.

No other developer in recent memory has so completely owned DeKalb County; only one Commissioner and one Planning Commissioner stood against Sembler and forced any change at all. The ability to leverage other potential developments in DeKalb helped turn government officials against it own zoning code, and against the residents of Brookhaven who unsuccessfully asked the county for a fair judgment. The only help provided by CEO Vernon Jones was to Sembler. Those commissioners who tend to vote as a block in favor of Jones’ pet projects never once questioned the deal with Sembler.

At the BOC zoning meeting on September 26, Area I Commissioner Elaine Boyer, who continuously expresses disdain for the LCI, claimed that the collection of neighborhood groups representing over 70 percent of the Brookhaven residents did not represent Brookhaven at all. She demanded that every neighborhood group vote again after Sembler had another chance to present to each one - and it be finished in 60 days. She held meetings with Sembler and its paid supporters and a half dozen residents who were constantly overpowered by attorneys, and she called them core community meetings.

It was in these late meetings that Boyer’s close personal friend, Kathy Zickert, tricked the commissioners into allowing more square footage than Sembler ever told the community it intended to develop.  With Vernon Jones, Patrick Ejike, Elaine Boyer, and Bob Dallas fighting to help Sembler avoid county code, and of the entire BOC only Kathy Gannon willing to fight for a decent reading of the law, the residents of Brookhaven never had a chance to protect themselves from Sembler’s abusive overdevelopment.

Sembler is preparing to do the same thing to residents around North Druid Hills Road in Area II.  The question now is whether they stand a chance at all. It is hoped that some of the lessons learned in Brookhaven will help restrain Sembler’s rampant overdevelopment in that case.

What if the LCI Overlay Applied to Brookhaven Place?

At this point the overlay was somewhat amended by the community and the county, and is waiting for the final approval cycle. Only a few small changes are still being added to the draft.  The overlay does little more than promote the requirements of the Pedestrian Center Zoning District. The restrictions applied to control overdevelopment are equaled by the expansions designed to promote it, and in many ways works to help developers avoid the codes of underlying districts. So how would Brookhaven Place fit into the overlay if it applied to the development and the rezoning to OCR? Sembler would be considering several changes that BPCA and the community asked for all along - because now it would be in Sembler’s interest.  Sembler would need and want more open space.  Except for a few issues, Brookhaven Place would not have to change.   

• Sembler would gain 20 feet on the transitional buffer, which could be reduced from 50 feet to 30. Sembler would still be able to use the reduced transitional buffer and the stream buffer in its 20% open space requirements, but without more open space, they would not meet the 20% requirement - much less come close to a 25% contiguous open space bonus.  
• The transitional buffer could probably be used to meet the 25% contiguous open space bonus requirement if it included more open area since it possibly faces an active use on one side, can open onto Hermance, and provides a walking path – an allowance that completely negates the point of the bonus.  
• Sembler would lose the 120,000 SF Home Depot, since no single-retailer building can be over 50,000 SF. All other nine big box anchors fit since all are between 20,000 SF and 35,000 SF, and for the most part can double in size and still fit. It is not known if Home Depot includes a burger joint inside or if the grocery store includes a bank inside, but if these are no longer single tenant spaces it seems to allow a 100,000 SF space for combined retailers.  
• Sembler does not meet either height bonus in Sub Area II and may only meet one in Sub Area I. It means the two new eight story residential towers in Sub-Area I could only be seven stories, assuming retail uses made up 75% of the first floor. If not, only six stories on Peachtree. It means the office tower remains six stories. Sub Area II would show dramatic change. The mixed use bonus doesn’t apply in Sub Area II, and Sembler didn’t meet the remaining two bonuses: 25% contiguous open space and 20% affordable housing. All four six- and seven- story residential towers would only be four stories at most. 
• If Sembler was to change its plan to meet any height bonuses, the additional story or two would be set back ten feet from the street, including Area I floors over six and Area II floors over four. But currently this is not an issue.  
• Sembler could further reduce the minimum amount of space it allowed for parking. 
• The townhome development would remain three stories instead of the four stories the BOC was tricked into allowing.  
• Besides those changes and probably a few others, Sembler would now fit into the LCI Overlay just fine.

Some of the company’s current Atlanta projects include:

Brookhaven Place (781,000 SF with 1,540 residential units)
Edgewood Retail District (600,000 s.f. Target-anchored community scale vertical, mixed-use urban shopping center + 300 residential units)
Lindbergh Plaza (500,000 s.f. Target & Home Depot-anchored community scale vertical, mixed-use urban shopping center),
Perimeter Place (452,000 s.f. SuperTarget-anchored mixed-use shopping center + 550 residential units)Other interesting Sembler projects: Midtown Place
Canton Marketplace (source: Sembler’s corporate website)