By: Jack White, VHCA Board President
A Bit of History
The use and ownership of alleys in our neighborhood has come up in several contexts over the years. The alleys had two major purposes: utility access and garbage pick-up. It’s hard to envision now, but until 1975 (apologies for the uncertain date, but that’s close) the city picked up garbage twice a week from privately-owned trash cans supplied by the residents and left in the alley. As you can imagine, those trashcans came in every possible condition, were often not well secured, could easily be tipped over, and were frequently scavenged by raccoons, dogs, and possums. The resulting debris was typically strewn up and down the length of the alley; in summertime, it was paradise for flies and yellow jackets, and it attracted a number of semi-wild and occasionally aggressive dogs.
Pickup was dangerous and physically daunting for sanitation workers. In some instances, small golf carts were used to access the alleys; in other cases – where spaces were constructed – individual workers filled larger bins and then muscled them out to the trucks on the street. All in all, it was hugely expensive, inefficient, unsanitary, and dangerous.
One of the signal accomplishments of Maynard Jackson’s first administration was the transition to once-a-week street side pickup, employing the now-ubiquitous green “Herby Curbie” containers, provided free of charge then (as they are now) to every household.
It was a huge capital investment – trucks had to be modified, too – but the improvements were immediately visible. Every one of the problems mentioned earlier was rapidly ameliorated. To my knowledge, Atlanta was the first city in the metro region to adopt the practice; in the intervening decades, almost every municipality has followed.
The original costs were amortized in the long run by a large reduction in labor cost; fewer workers could pick up more trash with less effort. Some workers were laid off too, and a resulting strike produced the first policy crisis of Jackson’s administration. The strike didn’t succeed.
The alleys suddenly got much less use, but access for utility functions was still maintained. New telephone wires were frequently strung from the rear, especially as the neighborhood’s population rebounded and demand for fax and phone lines increased. As wireless took over, even those uses have faded away.
There are other uses for the alleys, of course. Many have provided auto access to rear parking; some have not been used that way for a very long time and are overgrown. As petty theft became an issue in the 90’s, some property owners physically blocked alleys not otherwise in use to prevent their being escape routes.
A quick tour of the neighborhood will demonstrate all these conditons, as well as quite a few different levels of grading. A few of the alleys are asphalt, others neatly graded, and some are rutted and barely passable.
Who Owns the Alleys?
A memo from January of this year helped formalize the city’s position. It cited a 1996 city code provision that states the city has no property interest in any alley, except for three downtown. Barring other evidence, the city assumes the centerline of an alley to be the dividing line between adjacent property owners. A process is provided for the requirements an owner must meet if (s)he wishes to formally add one’s half of an alley to a property deed.
The memo goes on to note, however, that any property owner who wishes to add their part of an alley to their deed and exercise an undivided interest in their new property must have proof of permission of all adjacent priority owners. The memo specifically references the possibility of a “right of egress”, which (as mentioned) is exercised daily in many – but not all – VaHi alleys. It does not specify what happens when an alley has not been in such use.
In calculating setback and lot coverage for variance proposes, does an alley count?
The alley may be used for setback calculations; unless a formal re-platting has occurred, it does not count for coverage purposes.
May one build in the alley?
Such an action will at minimum require a building permit that includes a variance request for a setback; there may be other factors that come into play. (In an alley, restricting existing access might be one.) There are structures adjacent to alleys within setbacks all over the neighborhood that are legally grandfathered – i.e., they existed prior to the 1983 adoption of the current code – or that were built with variances.
What issue is before us now?
Property owners on Todd Road asked the City of Atlanta’s Office of Planning to approve a re-plat of the alley on the south edge of their property, abutting adjacent owners on Adair Avenue NE. Those owners provided a deed description of their property that pre-dated their ownership by several transactions indicating that they owned the entire alley in question. The city’s official plats did not agree; they showed the property as an open alley and therefore split in ownership down the middle between adjacent owners on both sides.
The Office of Planning instructed the applicants to acquire the signed consent of the neighbors along the alley. The applicants acquired the written approval of three of the neighbors; a fourth was not home when they called on a couple of occasions, and a fifth declined to give his approval.
The applicants submitted that document to the Office of Planning on January 13th; on January 23rd, the Office of Planning approved the re-platting.
A few days later, the absent neighbor returned to town and learned of the re-platting. She objected to the Office of Planning and requested a meeting with the Director of the Department of Planning and Community Affairs. That meeting – postponed once by the city’s closure due to weather – was held at City Hall on February 14, 2014. Present were the neighbor who was objecting, her agent, the applicants, myself from VHCA, and several staff members from the Office of Planning.
The planner reviewed his decision and the process that led up to it, including consulting with the City’s Department of Law. He cited the applicant’s deed description and an affidavit that cited a driveway in part of the alley dating back 30 years. The neighbor argued that the deed to her property had been in her family for decades, that she was unaware of any claim to her own ownership of half the alley, and that she did not believe this one to be accurate. She requested additional time to submit a response; the deadline for filing an appeal to the BZA was approaching. The Director of Planning said she was powerless under law to grant the request.
On behalf of VHCA and all homeowners who abut an alley, I made the following procedural argument: a minimum due process expectation in this type of case should include formal notification by the city of all adjacent property owners and a reasonable of time to respond. Among other methodologies, a registered letter to the owner of record providing 30-day notice to comment (if desired) would be sufficient. Other standards might also suffice, but relying on an applicant who initiated the process and was its beneficiary is insufficient for an outcome that involves the transfer of ownership of real property.
Nor was there any reason for a rushed or expedited decision in this instance, and no such reason was offered. Purchasers of property abutting an alley – who number in the hundreds in VaHi – rely on the city’s plats as accurate and legal; no owner or purchaser could reasonably be expected to search every adjacent alley owner’s property deed and bear no responsibility to conduct such searches in search of potential conflicts.
Additionally, the city routinely provides impacted owners formal written notice of potential variances; it is easily well within their ability to do so in a re-platting. In acting so precipitately, the Office of Planning had denied the objecting citizen her due process right to be heard on a very important issue.
I asked for a reversal of the approved re-platting, for reasonable time to allow the objecting citizen to respond, and for another planner to be assigned the issue for an independent decision. Those requests were denied; an appeal to the Bureau of Zing Adjustment (BZA) was the only option.
I then noted that the Legal Department typically provides consultation to the BZA in such matters and asked that – in the event of an such an appeal – there be no further discussion between that Department and the Office of Planning with the BZA about this case. Both the Office of Planning and Legal Department’s rulings and recommendations would be contested in an appeal, and it would be improper for those parties to independently consult or review them with the exact group – the BZA – that would then hear that appeal. The Planning Department termed this a ‘matter of philosophy’ and said the Legal Department would be representing only the BZA in such a consultation.
The neighbor’s ‘agent’ – retained because the citizen who is appealing has out-to-town employment – filed an appeal to the BZA. The case will be heard on May 1, 2014.
The VHCA Board passed the following motion last Monday: (1) VHCA supports this appeal as it relates to this appellant’s due process rights (and those of all other potentially impacted owners who abut alleys.) This citizen was denied her opportunity to be heard by the Office of Planning and forced to incur the expense and inconvenience of filing an appeal. (2) We renew our objection to any further independent discussions on any aspect of this case between the BZA (which will hear the appeal) and the City of Atlanta’s Office of Planning and/or Legal Department (whose procedures and judgment are being appealed.) Such interactions would not be merely an appearance of conflict of interest; they would be the very definition of such a conflict.
If the BZA needs specific legal counsel or advice on these matters – and it may – it cannot be provided by the very department whose legal advice is being challenged or the very office whose process and decision are in dispute. It should be provided by outside counsel. Further inquiry into this issue suggests that at least DeKalb County provides outside counsel to its citizen-member agencies in such instances.
To conclude: We are not now suggesting nor have we ever thought or implied that the original applicants acted in bad faith in asking for the re-plat, and we leave arguments about the internal merits of the appeal to the body hearing it. We are asserting that transfers of real property cannot properly be made in an abrupt and arbitrary manner that does not respect the due process rights of adjacent neighbors to comment and be heard prior to decision.
This article mentions both the ‘Office of Planning’ and the ‘Department of Planning.’ Which is it?
The ‘Office of Planning’ sits administratively within the larger ‘Department of Planning and Community Development.’ The city changed its terminology a couple of years ago and dropped the use of the term ‘bureau’; the ‘Bureau of Buildings’ became the ‘Office of Buildings’, and so forth.