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09-08-2009 September 8, 2009September 8, 2009 The regular scheduled meeting of Mayor and Council was held at Smyrna City Hall. The meeting was called to order by presiding officer Mayor A. Max Bacon at 7:30 o'clock p.m. All council members were present. Also present were Acting City Administrator Eric Taylor, City Clerk Susan Hiott, City Attorney Scott Cochran, Community Development Director Ken Suddreth, Chief Lanyon, Deputy Chief Acree and Lt. Jabaley from the fire department and representatives of the press. Invocation was given by Associate Pastor Stephen Crocker of Hurt Road Baptist, followed by the pledge to the flag. AGENDA CHANGES: Mayor Bacon stated Zoning Amendment Request Z09-007 will be tabled to the next meeting. LAND ISSUES/ZONINGS/ANNEXATIONS: (A) Public Hearing -Zoning Amendment Request Z09-007 -Changes to previously approved building orientation and building elevations - 3.45 acre tract -Land Lots 482 and 527 -Southwest corner of Kings Springs Road and Hayes Drive -Ashton Woods Homes Mr. Taylor stated the applicant is requesting a zoning amendment to change previously approved building orientation and building elevations. Mr. Cochran stated that any comments made at this meeting are not part of a public hearing and are citizens' input only. Mayor Bacon recognized Mr. Howard Martin, residing at 3435 Lee Street, and Mr. Martin expressed the view that the stipulations under present consideration differ from what was approved some three years previously. Mr. Martin stated only twelve structures of a specified size were previously approved, as well as a specific building orientation. Mr. Martin expressed the view that this proposal should be heard by the Planning and Zoning Board (PZB) before it can be further considered. Council Member Lnenicka stated the City's community development director has discretionary authority to approve changes of limited scope without bringing the proposal before the city council. Mayor Bacon recognized Ms. Judy Nethery, residing at 3589 King Springs Road, and Ms. Nethery expressed the view that traffic on King Springs Road is heavy, and stated that her driveway is near a stop sign at the bottom of a hill. Ms. Nethery asked the present officials to address traffic problems in the subject area. Mayor Bacon recognized Mr. James Hawkins, residing at 1249 Hayes Drive, and Mr. Hawkins expressed concerns about the loss of large trees on the subject property. Mr. Hawkins expressed the view that the proposed landscaping and fence are not acceptable and that more vegetative buffering is needed. Mayor Bacon recognized Ms. Gill Bass (phonetic), and Ms. Bass expressed objections to building driveways connected to King Springs Road and the planned fence. September 8, 2009 MOTION: Council Member McNabb made a motion to table Zoning Amendment Request Z09-007 for changes to previously approved building orientation and building elevations fora 3.45 acre tract in Land Lots 482 and 527 at the southwest corner of Kings Springs Road and Hayes Drive for Ashton Woods Homes to the September 21, 2009 meeting. The motion was seconded by Council Member Pritchett. Motion to table was approved 7 - 0. MAYOR'S REPORT: (A) Recognition of Emory Adventist Hospital Mayor Bacon recognized Chief Lanyon, Deputy Chief Acree and Lt. Jabaley from the fire department, and Mr. Bob Crowe from Emory Adventist Hospital (EAH). Mr. Crowe provided details to those present concerning extensive emergency planning and training conducted by EAH in conjunction with local authorities. Mayor Bacon commented favorably about EAH, and thanked Mr. Crowe for his comments. Council Member Lnenicka stated EAH is a great resource for the community, and that he believes EAH will continue to grow and improve to keep pace with the citizens' changing needs. Chief Lanyon announced that the City's defibrillators will be replaced with updated technology scheduled to be in place within about 30 days. PRIVILEGE LICENSE: There were none. FORMAL BUSINESS: (A) Public Hearing -Polling Place Changes for Ward 7 effective November 3, 2009 Mr. Taylor stated the Cobb County Elections Board has requested reduction in the number of polling stations in Ward 7 from three to two to increase efficiency and economy. Mr. Taylor stated staff recommends approval of the requested change. Mayor Bacon stated this is a public hearing and asked for public comment. There was none. MOTION: Council Member Wood made a motion to approve polling place changes for Ward 7, i.e., 7A at Griffin Middle School and 7B at Smyrna Assembly of God, with an effective date of November 3, 2009. The motion was seconded by Council Member Smith. Motion was approved 6 - 0. (Clerk's note: Council Member Pritchett was not present at the time of this vote) (B) Appointment of Ward 4 representative to the Planning and Zoning Board MOTION: Council Member McNabb made a motion to appoint Theresa Hall as the Ward 4 representative to Keep Smyrna Beautiful for the current term ending December 31, 2009. The motion was seconded by Council Member Smith. Motion was approved 6 - 0. (Clerk's note: Council Member Pritchett was not present at the time of this vote) September 8, 2009 3 COMMERCIAL BUILDING PERMITS: There were none. CONSENT AGENDA: (A) Approval of August 17, 2009 minutes (B) Approval of 2010 Smyrna Community Event Dates (C) Approval of Amendment to SPLOST Program Management Services Agreement with Croy Engineering LLC and authorize Mayor to sign and execute related documents (D) Approval of Change Order for Drainage Improvements at River Line Park and authorize Mayor to sign and execute related documents (E) Consideration and approval of revised Military Leave policy (F) Approval of authorization for the Mayor to execute the agreement for the acceptance of tree grant funds from the 2009 Urban and Community Forest Program (G) Approval of West Spring Street (Market Village) addition to Taste of Smyrna event site MOTION: Council Member Wood made a motion to approve the consent agenda. The motion was seconded by Council Member Smith. Motion was approved 6 - 0. (Clerk's note: Council Member Pritchett was not present at the time of this vote) COMMITTEE REPORTS: Council Member Wood stated there will be a dedication ceremony for Riverline Park this week. Council Member Lnenicka provided details to those present concerning the recent public meeting regarding the Atlanta Road multi-use trail. Council Member Lnenicka provided details to those present regarding an upcoming school fair at Campbell Middle School. Council Member Smith yielded the floor with no report. Council Member McNabb provided details to those present concerning the open house at Imagine Charter School tomorrow evening. Council Member McNabb wished his daughter Anna a happy birthday. Council Member Anulewicz yielded the floor with no report. Council Member Newcomb yielded the floor with no report. Council Member Pritchett provided details to those present regarding some recent road improvements for which the City received short notice. Council Member Pritchett stated this lack of advance notice is the SAMS, I.ARKIN SC HUFF A LIMITED LiAH[LITY PARTNERSHIP GARVIS L. SAMS, JR. SUITE loo 770.422.7016 JGEL L. I_ARHIN 376 POWDER SPRINGS STREET TFi FPHfINR September 8, 2009 4 CITIZENS INPUT: Mayor Bacon recognized Mr. Alex Backry, residing at 3459 Shawnee Trail, and Mr. Backry expressed concerns about the City's recent expenditures for a fireworks display. Mr. Backry expressed the view that calling people derogatory names is a form of personal attack. Mr. Backry stated he would like to see another town hall meeting in Smyrna with questions and answers. Council Member Lnenicka stated he does not recall making any personal attacks against Mr. Backry. ADJOURNMENT: With no further business, the meeting was adjourned at 8:18 p.m. ~~1~~ A. MAX BACON, MAYOR SU AN D. HIOTT, CITY CLERK ~, ~, ~ , _. -~ __. ) ~, ~..... ME ENY P ITCHETT, WARD I RON NEWCOMB, WARD 2 .~ r `` i ERI ANULEWICZ , RD 3 '~°~~2 MICR?1E McNABB, WA ~ ADE S. LNENICKA, WARD 6 ~ ~~ w~ CHARLES PETE WOOD, WARD 7 TO THE CITY OF SMYRNA MAYOR AND COUNCIL SMYRNA, GEORGIA CONSTITUTIONAL CHALLENGE COMES NOW, ASHTON WOODS HOMES, hereinafter referred to as the Applicant, and asserts the following, to-wit: By application to which this exhibit relates, Applicant has applied for an amendment to the rezoning of certain real property lying and being in the City of Smyrna, Cobb County, Georgia, a more particular description and delineation of the subject property, hereafter referred to as the "property", being set forth in said amendment application. 2. The application to amend the rezoning of the property seeks a change in stipulations/conditions to the existing RAD-conditional zoning category. 3. The current RAD zoning classification of the property and all intervening SARIS, L.~RI~I~v S HliFF \ 11111 f 1'I~ I I~kll 111 I~aki~F k~HIY ,VTORSFFti qT L,\1F SI,'f(F. IOU ~4 VO\11lFR SVRftiGS ST. 11\RIET'L\. (i.\IIkV+a classifications between same and the amendments proposed by the Applicant are unconstitutional in that they deprive the Applicant under and pursuant to Article 1, Section I, Paragraph I and II of the Georgia Constitution of 1983 and the Equal Protection and Due Process clauses of the Fifth and Fourteenth Amendments to the Constitution of the United States. This deprivation of property without due process violates constitutional prohibitions against the taking of private property without just compensation. 4. The RAD zoning classification and all intervening classifications between same and the proposed amendment as they presently exist violate the Applicant's right to the unfettered use of the property in that the existing zoning classification does not bear a substantial relation to the public health, safety, morality or general welfare and is, therefore, confiscatory and void. Further, said classifications are unconstitutional in that they are arbitrary and unreasonable, resulting in relatively little gain or benefit to the public, while inflicting serious injury and loss upon the Applicant. 5. The Code of Ordinances of the City of Smyrna is further unconstitutional in that the procedures contained therein pertaining to the public hearing held in connection with zoning applications also violates the aforementioned constitutional provisions in that said procedures contain the lack of procedural and evidentiary safeguards, do not restrict evidence received to the issues at hand and are controlled wholly and solely by political considerations rather than the facts and considerations required by law. 6. Pursuant to O.GG.A. §§ 36-11-1 and 36-33-5, please consider this your notice that as of today's date the Owner/Applicant is contending that Smyrna's unconstitutional zoning classification of the property has caused damages to the Owner/Applicant. As a direct and proximate result of the unconstitutional zoning classifications, the Owner/Applicant has suffered and will continue to suffer monetary damages in the nature of attorneys' fees and costs, interest and other expenses on pending loans on the property, loss of income from the property and other related damages. This tiAMS. LARRLS S; HUFF SII~tITit'•I IiH~I_I11 Y~kT\FRSHIP 4'ffQRNE1S AT [.AU' tiCtTf 1011 M)ltT)ER SPR ItiG5 Sl'. ll 1 R I [ I7 a. G ~\ ?1M1n3 amount cannot be calculated to an exact certainty; however, the Owner/Applicant will assist Smyrna by providing whatever additional information, if any, Smyrna feels is necessary to adequately investigate this claim. If the Owner/Applicant does not receive a timely request for additional information, it will be presumed that the City of Smyrna does not require any additional information and can make a determination within the allowed statutory period. Respectfully submitted, this the ~ day of September, 2009. SAMS, LARKIN & HUFF, LLP ~---- GA Attorney for Applicant Ga. Bar No. 623950 SAMS, LAR6IN K HL'FP I:1! f!;'~ I I ~I?II I I\ N-\k 1 \f'N)1IIY aTT!1V2\h1'C \ I I..~1\ til iTf I!rl ~ PO0. t iF R SPH I \'f 5 ST. ?,IARIFIIA.G> i1NNr1 SAMS. LARKIN & HUFF A LIMITED LIABILITY PARTNERSHIP GARVIS L. SAMS. JR. JOEL L. LARKIN PARKS F. HUFF JAMES A. HAI.LI MELISSA P. HAISTEN JUSTIN H. MEEKS September 4, 2009 VIA E-MAIL Mr. Ken Suddreth, Director Community Development Department City of Smyrna 3180 Atlanta Road Smyrna, GA 30080 770.422.7016 TELEPHONE 770.426.6683 FACSIMILE SAMSLARKII~iHUFF. COM Re: Application of Ashton Woods Homes to Amend a Previously Approved Rezoning (No. Z06-019) to Amend the Site Plan and Stipulations (No. Z09-007) Dear Ken: As you know, this firm represents Ashton Woods Homes concerning the above-captioned application. In that regard, attached please find a Constitutional Challenge. I would appreciate it if you would ensure that the Constitutional Challenge is made a part of the file and permanent records. With regards and best wishes for the Labor Day holiday, I am Very truly yours, SAMS, LARKIN & HUFF, LLP ,= ----- -~ Garvis L. Sams, Jr. Sams e,samslarkinhuff.com GLSjr/brl Attachment cc: Honorable Max Bacon, Mayor, City of Smyrna -VIA E-Mail - w/attaclunent Mr. Mike McNabb, Ward 4 Councilman -VIA E-Mail - w/attachment Mr. Russell G. Martin, Planner I -VIA E-Mail - w/attachment Scott Cochran, Esq. -VIA E-Mail - w/attachment Mr. Greg Huff, Division President, Ashton Woods Homes -VIA E-Mail - w/attachment Mr. Mike Busher, Vice President-Land Acquisition, Ashton Woods Homes - VIA E-Mail - w/attachment SUITE 100 376 POWDER SPRINGS STREET MARIETTA. GEORGIA 30084-3448