I sent the following email to the Dunwoody Mayor, City Council, and Staff.  I am posting it here so that you also can hear my thoughts and concerns on this important issue.  

Re: MOU regarding the permitting of temporary buildings on DCSD property

Mayor, Council Members, and Staff,

I am writing regarding Item #12, the Memorandum of Understanding (MOU) with DeKalb County School District, that is on your agenda for Monday, May 8, 2017.

I assume based on the MOU, the City’s discussions with the school district, and recent inspection activity around school trailers, that the City has now accepted that it must enforce all applicable municipal ordinances and regulations; the only exception being those that relate specifically to zoning powers in Chapter 27 of Dunwoody’s Code of Ordinances. I appreciate that the city has adjusted course on this matter and is attempting to comply with the enumerated and codified powers of the City Charter and Code.

I do have concerns about the substance of the MOU.

1. The precedent of treating a property owner (DCSD) differently than other property owners with respect to ordinances and regulations with which they must comply appears to give favor to one property owner over all others.

2. Section 8 of the MOU states: The inspections certifying compliance with the approved plans shall be accumulated/assembled and at the end of the project or as requested by City, shall be submitted to the City for City’s review. The City will issue Certificate of Occupancy upon compliance.

Reliance on a vendor selected by DCSD to inspect and document compliance with the City’s code seems like an abrogation of the City’s obligation to enforce them. The issuance of a City Certificate of Occupancy based on a vendor that has a financial relationship with the property owner (DCSD) likely leaves the city with increased risk and liability. This risk involves the most precious residents in the city – our children.

a. Would the City of Dunwoody give any other property owner the ability to contract compliance with a vendor of their choice, that they paid, and give that owner a CO?

b. If the answer is “no”, then why does the city think that this MOU structure is a good idea?

3. The applicable City Code does not seem to contemplate temporary, portable buildings. The only place where the Code contemplates temporary buildings is in Chapter 27; specifically, Sec. 27-186 through 189. Chapter 27-188(b), states: The community development director is authorized to approve temporary buildings to be used in conjunction with construction work or pending completion of a permanent building. The temporary building shall not be approved until a permit for the land development or building construction has been issued.

The City Code only contemplates temporary structures in conjunction with the building of a permanent structure. That limitation is not specifically a zoning power and is not related to any particular zone or district. The definition of zoning power is set forth in OCGA § 36-66-3(3) and it was discussed in the 2002 Court Case about which I previously emailed you:

“Zoning” means the power of local governments to provide within their respective territorial boundaries for the zoning or districting of property for various uses and the prohibition of other or different uses within such zones or districts and for the regulation of development and the improvement of real estate within such zones or districts in accordance with the uses of property for which such zones or districts were established.

a. Given the prohibition of building temporary structures within the entire city, except as used in conjunction with permanent building construction, on what basis can anyone (DCSD’s vendor or the City itself) permit a temporary structure?

b. If the code specifically states that authorization must come from the Community Development Director (CDD) can an MOU contravene that requirement?

c. The Code only gives the CDD authority to approve a temporary building in one situation – in conjunction with permanent building construction. Would the issuance of any type of permit for a temporary building be illegal/unauthorized under the Code? Would it possibly be void? Would it possibly put the CDD in a compromised liability position?

d. Under what codes will the vendor, paid for by the property owner (DCSD), permit these temporary buildings? How could a CO be issued for a type of structure that is not permitted within the city at all?

e. As Georgia is a “Dillon’s Rule” state, might the City have a “Dillon’s Rule” problem with the unusual arrangement afforded DCSD in this MOU, in that it seems to be granting power that is not already explicitly given?

4. Right now, the temporary classrooms at DCSD property in the city, have no COs. Why is the City not interested in using the substantial powers of the City to leverage this situation to get more value for the residents of the City?

For example, why not negotiate from a position of strength and tell the school district that you will adopt an ordinance that allows them to place temporary buildings on their property in the city, if the school district will enter into an agreement with the city that says all children within the city boundaries shall attend a school within the city boundaries? As you know there is one school that feeds into PCMS and DHS but is not in the City. If this school were redistricted to another cluster, there would be little to no capacity issues at PCMS and DHS. Why not enter into an agreement that accomplishes this redistricting?

I hope that you will rethink this strategy. You are empowered by the voters of the city to use your power to benefit the city, create value, and improve the quality of life. This MOU is antithetical to those ideals. I would be more than happy to discuss this with you further. I am confident that each of you would receive much support and praise from the residents with this approach.

Please consider this letter to be an Open Records Request. Specifically, I would like responses regarding the technical questions that I have asked in my letter (see #2 and #3).

–Nancy Jester