Timeline of Legal Proceedings Related to Proposed Clifton Ridge Subdivision
Since March 2004, Robert Buckler and Anthony McCullar have filed no fewer than eight administrative applications and prosecuted no fewer than five lawsuits, seeking to subdivide the three lots located at 1142, 1150, & 1158 Clifton Road (the “Clifton Ridge Subdivision”).
Each of these lawsuits was unsuccessful, either being dismissed by the court or by the developers themselves. In opposition to the proposed subdivision, the Druid Hills Civic Association (DHCA) has filed two judicial appeals (one of which was voluntarily dismissed and re-filed as a renewal action) and one administrative appeal.
A more detailed chronology follows:
February 2004 – Buckler/McCullar purchased the Clifton Road Property from Alex Nunan. Well before the purchase, in July 2003, Nunan and the architectural firm Preston & Associates had commenced litigation in DeKalb County Superior Court challenging the denial of their application to the DeKalb County Historic Preservation Commission (the “HPC”) for a Certificate of Appropriateness (“COA”) authorizing them to subdivide the property into nine lots (first COA Application). This litigation was still pending at the time of Buckler/McCullar’s purchase, and on March 16, 2004, they filed a Notice of Substitution asking to be substituted as plaintiffs in the litigation.
July 2004 – Buckler/McCullar filed a second COA Application on July 17, 2004, seeking approval of a 5-lot “flag driveway” plan. The HPC denied this application on July 19, 2004, but on September 28, 2004, the DeKalb County Board of Commissioners (the “BOC”) reversed that decision and directed the HPC to issue the COA. (Because the motion to reverse was made by Commissioner Gale Walldorff, this is sometimes referred to as the “Walldorff COA.”) However, the development permitted by this COA never took place due to litigation over required zoning variances (see “April 2005” below).
March 2005 – Buckler/McCullar filed a 3rd COA Application on March 1, 2005, seeking approval of 5-lot cul-de-sac plan but withdrew that application on April 4, 2005.
April 2005 – Buckler/McCullar filed an application with DeKalb County Zoning Board of Appeals (the “ZBA”) on April 1, 2005, seeking zoning variances needed for the development permitted by the Walldorff COA. The ZBA denied this application on May 11, 2005, and, on June 8, 2005, Buckler/McCullar filed a lawsuit in DeKalb County Superior Court seeking to overturn the ZBA denial. This lawsuit was voluntarily dismissed on August 17, 2005 and refiled on August 22, 2005. On March 8, 2006, the Superior Court granted a motion by DeKalb County to dismiss the refiled lawsuit on procedural grounds. That decision was subsequently reversed by the Georgia Court of Appeals in Buckler v. DeKalb County, 290 Ga. App. 190, 659 S.E.2d 398 (2008); however, on remand, the Superior Court entered an order on July 8, 2009, upholding the ZBA’s denial of the variances.
June 2005 – Buckler/McCullar filed a 4th COA Application on June 30, 2005, seeking approval of a 5-lot cul-de-sac plan. The HPC denied this application on August 15, 2005.
December 2005 – Buckler/McCullar filed a 5th COA Application on December 2, 2005, seeking approval of a 5-lot “flag driveway” or “fan lot” plan. The HPC denied this application on December 19, 2005, and the BOC affirmed that denial on February 14, 2006. On March 16, 2006, Buckler/McCullar filed suit in DeKalb County Superior Court seeking to overturn this decision, and on October 19, 2006, the Superior Court ruled that the HPC’s decision was void because the Commission did not have a full slate of members at the time it denied the application as required by the DeKalb County ordinance establishing it. On November 9, 2007, the Georgia Court of Appeals reversed this ruling in DeKalb County v. Buckler, 288 Ga. App. 346, 654 S.E.2d 193 (2007), holding that the HPC did not lack authority to render its decision. On remand, the Superior Court affirmed the denial of 5th COA Application, and that decisions was affirmed by the Georgia Court Appeals in Buckler v. DeKalb County Board of Commissioners, 299 Ga. App 465, 683 S.E.2d 22 (2009).
January 2009 – Buckler/McCullar filed a 6th COA Application on January 30, 2009, seeking authorization to subdivide the lot at 1158 Clifton Road. The HPC denied this application on February 17, 2009, and the BOC affirmed the denial on March 24, 2009. Buckler/McCullar filed suit in the Superior Court seeking to overturn this decision on April 23, 2009, but withdrew the COA Application on February 2, 2011, and voluntarily dismissed the Superior Court suit on March 22, 2011.
February 2011 – Buckler/McCullar filed an application with the DeKalb County Planning Commission (the “Planning Commission”) on February 3, 2011, seeking approval of 7-lot cul-de-sac subdivision without applying to HPC for a COA. At a hearing held on April 13, 2011, the Planning Commission approved this subdivision notwithstanding the lack of a COA, and on May 11, 2011, DeKalb County and the DHCA filed separate lawsuits in Superior Court seeking to overturn this decision. DeKalb County dismissed its lawsuit on October 28, 2011. To correct a procedural defect in the record, DHCA voluntarily dismissed its lawsuit on November 15, 2011, and refiled it on May 15, 2012.
April 2012 – Buckler/McCullar applied for a Land Development Permit (“LDP”) on April 5, 2012, based on the Planning Commission’s approval of their subdivision application, and on July 3, 2012, filed suit in DeKalb County Superior Court alleging that DeKalb County CEO Burrell Ellis and County employees Gary Cornell and Hari Karikaran had improperly refused to issue the LDP. On December 17, 2012, the DeKalb County administration issued an LDP for the proposed Clifton Ridge Subdivision, and Buckler/McCullar filed a voluntary dismissal of this lawsuit on December 19, 2012.
August 2012 – Buckler/McCullar filed a 7th COA Application on August 30, 2012, seeking approval to install detention pond fence and facing on the Property. The HPC denied this application on September 18, 2012; however, on November 13, 2012, the BOC reversed that denial without articulating any reason for doing so.
January 2013 – The DeKalb County administration issued a Stop Work Order to review its decision to issue the LDP, but lifted that Order on January 14, 2013. On the morning of January 18, 2013, Buckler/McCullar began site clearance on the Clifton Road Property. Later that day, Presiding Judge Gail Flake entered a 30-day Temporary Restraining Order (the “TRO”) in the DHCA’s pending lawsuit in DeKalb Superior Court, halting further work on the property.
February 2013 – At a hearing held on February 13, 2013, the ZBA denied separate appeals filed by the DHCA and by County Commissioners Kathie Gannon and Jeff Rader seeking to overturn the administrative decision to issue the LDP. On February 15, 2013, Judge Asha Jackson extended the TRO in the DHCA’s pending lawsuit to March 18, 2013, and scheduled a hearing for that date on various pending motions in the suit.
March 2013 – On March 14, 2013, Commissioners Gannon & Rader and the DHCA filed separate lawsuits in Superior Court challenging the ZBA’s denial of their appeals of the issuance of the LDP.
May 2013 – On May 9, 2013, Judge Jackson entered an order in the DHCA’s lawsuit dismissing its appeal of the Planning Commission’s decision to approve Buckler/ McCullar’s subdivision application, based on a determination that the DHCA and the property owners who had joined with it in bringing the appeal lacked standing to be heard on the matter. On May 23, 2013, site clearance work on the Clifton Road Property commenced anew.
June 2013 – On June 25, the Georgia Court of Appeals agreed to hear DHCA’s appeal of the trial court’s dismissal of one of our lawsuits (the judge cited legal standing). Thanks to attorney Rob Benfield, we now possess a fair chance of having our main lawsuit reinstated. But it will be months before the Court of Appeals hears the case and delivers a verdict.
Unfortunately, we won’t be able to secure another temporary restraining order anytime soon. That means that the developer can continue his work in accordance with his Land Disturbance Permit, including cutting down trees and extensive grading. He can also install water, sewer, and utility lines, and can create a road with sidewalks. Without a building permit, however, no houses may be constructed on the property — and the developer doesn’t have one.