The Brookhaven Board of Aldermen Monday rejected a rezoningrequest that would have allowed a day care facility in aresidential neighborhood.

Paul and Jessie Glasper met with the Brookhaven PlanningCommission in early February to try to begin plans for the proposedday care at 750 North Jackson St.

Monday’s hearing before aldermen was appeal of the commission’srecommendation to deny the Glaspers’ request to rezone the propertyform R-1 to R-3. Under current zoning laws, R-1 is the strictestand most protected residential rating, and R-3 is the least.

The issue of rezoning the property hinged on the question of”spot zoning,” which is an unlawful activity where a small area iszoned differently inside a larger area when it is not flanked byareas of similar zoning.

The Glaspers were represented by attorney David Linzey, whoestablished through witness testimony that commercial structuresdid exist in the vicinity, and that there was a need for a day carein the area.

City Attorney Joe Fernald represented the city in the hearing.He informed the board that three criteria must be established inorder to rezone an area: A mistake in the original zoning, asignificant change in the character of the area, and a need.

“Where we live, a there are a lot of houses going up andfamilies moving in,” said property owner Jessie Glasper, who saidthere were a number of children moving into the area. “LarkspurAve. is more residential, but Jackson is much more commercial.”

Brookhaven City Building Inspector Walter Temple said that whilethere were, in fact, businesses in the area, they had all been inthe area already when the R-1 zoning was applied.

“The stores in the area were legal non-conforming use, and thenthe R-1 zoning was overlaid,” said Temple. “So no, the area is notpurely residential.”

Linzey pointed out that part of the confusion arose when theGlaspers moved to Brookhaven from California, where the zoning lawsare different. In addition, the attorney said his clients were notadvised about zoning laws that would prohibit the day care in thearea.

After speaking with the Planning Commission, the Glaspersbelieved their land could possibly be rezoned under a restrictedcovenant, meaning it would be zoned R-3 only for the time they wereusing it as a day care. The property’s zoning classification wouldreturn to R-1 as soon as it was sold to a new owner.

In addition, the Glaspers had polled residents of theneighborhood and put together a petition with names of people inthe area who said they were in favor of the day care’s location inthe area.

However, citing parking issues, members of a neighboring churchhad voiced opposition. A previous case involving a doctor’s officein the same North Jackson Street area also had set a precedentagainst what city officials agreed would be spot zoning.

Linzey pointed to the fact that a need exists and the propertyowners were willing to cooperate in any way to fill that need.

“The Glaspers are experienced day care owners, and moved herefrom California to run a day care,” said Linzey. “They have takenextra effort to address the needs and concerns people in the areamight have.”

The city maintained the criteria for rezoning had not beenmet.

“While I believe the interests and intentions of the Glaspersare good, the character of that neighborhood has remained intenselyresidential,” said Fernald. “The law is clear and the burden ofproof has not been met. We are not in a position to violate thelaw.”

Following the discussion, the board voted 4-1 against therezoning. Ward Two Alderman Terry Bates supported the rezoningrequest.