DeKalb County v. Post Apartment Homes, L.P.

Shea Evans Roberts

Practice Area:Land Use / Zoning

Outcome:Plaintiff won.

Description:Post Apartment was issued a land disturbance permit and building permit to build apartments pursuant to a rezoning application that was approved by the DeKalb County Board of Commissioners. It included a "no build box" of 130 feet from a neighbor's boundary line. Once construction began, the adjacent neighbor objected claiming that the setback was to be measured in an arch rather than a straight line. Post Apartments filed a declaratory judgment and injunction action against DeKalb County to preclude it from interfering with its right to construct the apartments according to rezoning conditions. The trial court ruled against DeKalb County as a matter of law as to the construction of the rezoning ordinance and for Post that the 130-foot setback was a straight line from the boundary line as a “no build” box rather than as an arch measured from any point along the property line. DeKalb County timely filed its notice of appeal. The Court of Appeals affirmed Judge Weeks' decision.