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05-02-2011 May 2, 2011Mayor and Council Meeting May 2, 2011 All Council Members were present. Also present were City Administrator Eric Taylor, City Attorney Scott Cochran, City Clerk Susan Hiott, Finance Director Robert Porche, Community Development Director Ken Suddreth, City Planner Rusty Martin and representatives of the press. The regular scheduled meeting of Mayor and Council was held at Smyrna City Hall. Presiding officer Mayor Max Bacon called the meeting to order at 7:33 o'clock p.m. Mayor Bacon recognized Pastor Joey Hatchell of Faith United Methodist Church, who conducted the invocation and led all present in the pledge to the flag. AGENDA CHANGES: Mayor Bacon stated that there were none. MAYOR'S REPORT: (A) Proclamation in Recognition of Respect for Law Day (WL) Mayor Bacon requested that Council Member Lnenicka read the proclamation aloud and asked that Ms. Betty Turley step forward to be recognized. Ms Turley thanked the Mayor and Council on behalf of the Smyrna Optimist Club and encouraged all to join her organization in paying respect to the law enforcement community, inviting the City representatives to attend an upcoming event. (B) Proclamation in Recognition of National Tourism Week (JS) Mayor Bacon introduced the Cobb Convention Bureau members present and acknowledged Councilman Smith, who read aloud the proclamation in recognition of national tourism week, after which he conducted the presentation to Convention Bureau CEO Holly Bass and Board Member Don Geiger. Ms. Bass expressed her appreciation for the partnership and support of Mayor and Council and Mayor Bacon commented on a study he had recently read. 4. LAND ISSUES /ZONINGS /ANNEXATIONS: (A) Public Hearing- Zoning Amendment Request Z11 -001 - Approval of a zoning amendment to modify the previously approved plans and zoning conditions for rezoning case Z05 -015 - 0.55 Acre Tract - Land Lot 677 - Lois Street and Main Street - Michael P. Landry, LLC (WL) Tabled from April 18, 2011 Mayor Bacon stated that this was a public hearing that had been tabled from the meeting of April the 18 "', confirmed the presence of the applicant Mr. Landry and asked that City Administrator Mr. Eric Taylor provide the background. Mr. Taylor explained to all present the zoning request background and that it was originally heard on April 18, 2011. He made known that the item had been tabled to allow for informational discussions to occur and that those meetings, to his knowledge, had been held. Mr. Taylor stated that staff recommended approval and Mayor Bacon announced that Community Development Director Ken Suddreth would be making a presentation. Mayor Bacon asked that anyone wishing to give testimony be sworn in by the City Attorney, encouraging all to do so. He then acknowledged Councilman Lnenicka, who asked Mr. Suddreth to review the proposal. Mr. Suddreth emphasized that the request was to amend previously approved plans by removing zoning conditions #16, #20 and #21, modifying the height restrictions on lots 7 and 8 and temporarily swapping the location of the May 2, 2011 2 subdivision's open space to allow for construction. He stated that five lots would be affected, showing maps and details of the proposed plans as well as photos of existing structures and properties. Mr. Suddreth asserted that staff continued to recommend approval with modifications. d" W^ Council Member Lnenicka requested that Mr. Suddreth summarize the details of the informational meeting that took place between the Councilman, Community Development and residents and Mr. Suddreth provided such. The Councilman then inquired if any of the proposed stipulations had changed based on that meeting and Mr. Suddreth responded in the negative, with the Councilman confirming that there was no change in staff's position on the paper presented to Council. Mayor Bacon asked if there were further questions and recognized Council Member McNabb, who requested clarification on the method used to determine height. Mr. Suddreth explained that measurements were based on average height to take into account change in topography and Councilman McNabb inquired if the current zoning could allow for buildings to have sections exceeding 35' and if the same would be true of the 43' zoning amendment with Mr. Suddreth responding in the affirmative. Mayor Bacon acknowledged Mr. Michael Landry, who thanked Council Member Lnenicka for calling the informational meeting and for his impartial handling of the matter. Mr. Landry commented that he was reassured that the majority of the neighbors were supportive of the proposed changes and asked for a positive vote on the amendment. Councilman Lnenicka asked that Mr. Landry provide an explanation for the decision to change the overall design of the development from its former design and Mr. Landry outlined the reasoning for such. Councilman Lnenicka then requested that Mr. Landry explain an offer made during the resident meeting and asked him to detail that suggestion. Mr. Landry shared his intent, with the permission of the owners of lots 9, 10 and 11, to maintain the landscaping on those parcels to ensure a pristine appearance in the area. Council Member Lnenicka thanked him for his offer and the resultant benefit it would provide to the neighborhood. Mayor Bacon asked for citizen input. Mr. Wesley Behman, residing at 1870 Main St., shared that his greatest concern about the proposed elevation was that it might break the continuity of the horizon and could possibly obscure the view. He expressed his opposition to the amendment. Mr. Jeff Mitchell of 1915 Main St. mentioned photos he had emailed showing the views from Lois St. at the original elevations as well as approximating those at the proposed height. He stated that, in his opinion, the developer had not proven that views would be unaffected by the homes and landscaping on the lots. Mr. Robert Jacko, residing at 4566 Lois Street, commented that a portion of his HOA dues were being used for the new project and stated his full support of the amendment. He highlighted that the price point on the new development would benefit his home value and that he regarded it as a huge, positive improvement over the existing situation. He stated that he, along with all of his neighbors on Lois St., were in favor. Mr. Adrian Schmidt with Sotheby's Realty, located at 3290 Northside Pkwy. Suite 200, stated that he had transacted the home sales for Mr. Jacko and Mr. Wilkes on Lois Street and was pleased to see plans advancing. He praised Smyrna's concentration of amenities, recreational activities, dining and shopping that attracted a large number of home buyers. He remarked that the anticipated price point of the Lois St. development was a positive sign and beneficial for those residents in the immediate area, stating his stance as a strong proponent of the amendment. Ms. Mary Rose Barnes of the Oakdale Community Association stated that she was opposed to the amendment, providing background on the history of the 2005 vote by Mayor and Council and pointing out that the properties had not been deed restricted to 55 and over. She commented on the recent economic conditions that had distressed Lois St. and resulted in foreclosures there being purchased by younger families. Ms. Barnes expressed her gratitude for the meeting conducted at the request of Councilman Lnenicka and for Mr. Landry's participation in that event. She discussed the applicant's offer to gain permission to use lots 9, 10 and 11 during construction and questioned his ability to do so, asserting that workers would park on neighboring properties and making known her concern about setting a precedent of increased building heights. May 2, 2011 3 Ms. Lisa Smith Boyer, residing at 1955 Main Street, stated her support for the planed development. She thanked the Mayor and Council for listening to the citizen's concerns and allowing additional time for discussions to occur, expressing her appreciation to Mr. Landry for the same. She stated that she would be among those impacted by the height increase but believed the progress and quality of the project beneficial, especially to residents of Main Street, and requested approval of the item. She made known her concerns about the future development of lots 9, 10 and 11 and shared with all present Mr. Landry's assurances that he was supportive of a 2 -story maximum on those lots. Councilman Lnenicka recognized Mr. Landry, who clarified that the request was for a 7' variance, that the first spec house would have a master on the main consistent with senior easy living requirements and that one of the homes being developed was for a senior buyer. He confirmed that he would maximize the 35' zoning if the amendment was not approved and responded in the affirmative to Councilman Lnenicka's inquiry that the height variance applied only to lots 7 and 8. The Councilman raised the issue of construction parking and Mr. Landry agreed that it would have to be controlled, suggesting that all vehicles park on one side of the street to alleviate problems, stating his commitment to do as much as possible to find resolution. Council Member Lnenicka asked if lots 9, 10 and 11 could be used for construction vehicles and Mr. Landry stated that was his hope and there was some discussion about the foreclosure litigation surrounding those lots. Council Member Smith commented about the method used to determine housing heights, explained that it was based on a mean measurement and expressed his concern that this appeared to allow the actual height of structures to exceed the zoned maximum in some areas. Mr. Landry stated that he was following code and Councilman Smith made known that he had opposed the method outlined in that code since his election to office as it did not utilize true height. He commented on the intent of the original zoning and informed all present that since he had objected initially, based on spacing between houses and density, that he would stand by his original vote. Mayor Bacon addressed Councilman Lnenicka about the issue of the residences being designed for 55 and over and asked him to discuss. Council Member Lnenicka stated that the development originally was to be built to easy living standards, and shared some of the qualifying factors for that designation. He reminded all present of the considerations that resulted in the land being rezoned to residential with the potential for commercial encroachment eliminated. There was discussion about the impact of the economy and recent trends after which Councilman Lnenicka stated that Mr. Landry had requested flexibility with the first spec house to install standards marketable to seniors but still attractive to younger families. Mayor Bacon commented on the amount of time passed since the inception of the project. Councilman Lnenicka stated his intent to propose a motion, sharing that this issue had been challenging as he was in favor of the original zoning and acknowledging the original developer and current owner of lots 9, 10 and 11, Mr. Frank Pritchard. Council Member Lnenicka expressed to all that he thought the original design was a good concept and that he still supported the model. He expressed that he would like to see seniors provided with more options that allowed them to remain in their communities, commented on his mother's situation and made known his hope that Mr. Landry would attempt to adhere to the initial guidelines. Council Member Lnenicka recognized the quality of Pritchard builders and their unfortunate circumstances in the recent economic climate. The Councilman elaborated further that Smyrna was fortunate to have an increase in requests for permits and stated that economic conditions had caused him to consider more favorably the type of request being considered. MOTION: Council Member Lnenicka moved to approve Zoning Amendment Request Z11 -001 - Approval of a zoning amendment to modify the previously approved plans and zoning conditions for rezoning case Z05 -015 - 0.55 Acre Tract - Land Lot 677 - Lois Street and Main Street - Michael P. Landry, LLC with stipulations and changes. Motion was seconded by Councilwoman Pritchett. Mayor Bacon recognized Councilman McNabb, who inquired of Council Member Lnenicka if the technical measurement would be the actual physical height or a mean height of 43' and Councilman Lnenicka stated that it would be defined in accordance with City ordinances, deferring to City Attorney Scott Cochran who confirmed the response. May 2, 2011 4 Councilman Newcomb shared with all present the difficulty surrounding this issue as he had voted in favor of the original plans in 2005 based on its anticipated use as senior living. He commented that homes targeting that demographic had not been as successful as anticipated and that a high sales price alone now was not persuasive enough to elicit a yea vote. He expressed that he had been influenced by testimony of price point benefiting neighborhood values. Councilman Newcomb ruminated about the ability of governing bodies to regulate enjoyment of life liberty and property, stating that several constitutional due processes had to be considered and stating each. He expressed his opinion that those processes had been adhered to and acknowledged that while opposition existed, based on viewshed, others were considerably in favor. He stated his observance that the burden of proof to prevent this applicant's request had not been met and that he would vote in support of the amendment. Mayor Bacon acknowledged Councilman McNabb, who expressed there had been a lack of testimony that convinced him additional height was required to enhance value. He commented on the statement provided by the realtor that highlighted the numerous positive reasons Smyrna was an attractive community for homebuyers, remarking that none were tied to height. Council Member McNabb offered that standards exist to define communities and that the development on lots 7 and 8 did not conform, in any way, to the standard established. He explained that the original stipulations of 10 -12 ft between buildings would make height variations appear more pronounced and that based on evidence he did not believe a variance was necessary. He elaborated that while he was inclined to oppose the vote, due to unique economic circumstances, he would opt to protect the property values in the immediate by voting in favor. Motion approved 6 -1 with Councilman Smith opposed. 5. PRIVILEGE LICENSES: (A) Public Hearing -new owner agent- retail pouring sales of beer and wine -Pad Thai & Chinese Cuisine, Inc dba Pad Thai & Chinese Cuisine - Rhonda Luang -5350 United Dr STE 102- restaurant opened same ownership in July 2010 (PW) Mayor Bacon acknowledged Mr. Eric Taylor, who read the background to all present. Mr. Taylor stated that Ms. Luang had been provided with a copy of the alcoholic beverage ordinance and attended the mandatory alcohol awareness workshop. He made known that a background check was conducted and failed to reveal any information that would preclude the issuance of the license and stated that staff recommended approval. Mayor Bacon announced that this was a public hearing and asked for input. There was none. Mayor Bacon acknowledged Councilman Wood, who confirmed the applicant's training and understanding of the City's requirements for the privilege license. Council Member Lnenicka mentioned the regular compliance checks performed by the Smyrna Police Department and informed the applicant of the importance of complying with the alcohol laws and there was some discussion about the length of time the applicant had resided in the country. MOTION: Councilman Wood moved to approve new owner agent- retail pouring sales of beer and wine -Pad Thai & Chinese Cuisine, Inc dba Pad Thai & Chinese Cuisine - Rhonda Luang. Motion was seconded and approved 7 -0. 6. FORMAL BUSINESS: (A) Approval of Ordinance 2011 -08 - Adding Section 66 -3, Disorderly Conduct of Chapter 66, City of Smyrna Code of Ordinances (WL) (B) Approval of Ordinance 2011 -09, Adding Section 66 -11, Loitering, of Chapter 66, City of Smyrna Code of Ordinances (WL) (C) Approval of Ordinance 2011 -10, repealing Section 66 -17, Prowling, of Chapter 66, City of Smyrna Code of May 2, 2011 5 Ordinances (WL) (D) Appointment of Planning & Zoning Board Member - Ward 1 (MP) Mayor Bacon stated that items 6(A), 6(B) and 6(C) were related and asked Mr. Taylor to provide the background. Mr. Taylor informed all present that at the April 18, 2011 Mayor and Council meeting it was voted to repeal ordinances and noted at that time that they were to be rewritten. He stated that those ordinances had been updated by the City Attorney and that staff had reviewed and recommended approval. MOTION: Councilman Lnenicka moved to approve Ordinance 2011 -08 - Adding Section 66 -3, Disorderly Conduct of Chapter 66, City of Smyrna Code of Ordinances. Motion was seconded by Councilman Wood. Mayor Bacon recognized Council Member McNabb, who inquired if City Attorney Scott Cochran had reviewed section 66 -3 as currently written. The Councilman solicited Mr. Cochran's opinion on the use of overly broad language and the attorney replied that although it could appear overbroad, much of the language had been taken from cases that were upheld by the Supreme Court. Councilman McNabb asked if, based upon the language included, cases could be easily prosecuted and the City Attorney responded in the affirmative. Motion approved 7 -0 MOTION: Councilman Lnenicka moved to approve Ordinance 2011 -09 - Adding Section 66 -11, Loitering, of Chapter 66, City of Smyrna Code of Ordinances. Motion was seconded by Councilman Wood. Mayor Bacon acknowledged Council Member McNabb who posed the same questions as previously to Mr. Cochran. The City Attorney stated that the verbiage used in the revised ordinance was taken verbatim from .o.... Georgia code and upheld by Supreme Court rulings. Councilman McNabb confirmed that based on those standards it would be easily prosecutable with Mr. Cochran expressing his assurances. Motion was approved 7 -0. MOTION: Councilman Lnenicka moved to approve Ordinance 2011 -10, repealing Section 66 -17, Prowling, of Chapter 66, City of Smyrna Code of Ordinances. Motion was seconded by Councilman Wood and approved 7 -0 Mayor Bacon recognized Councilwoman Pritchett, who moved to appoint Matthew Wright of Argyle Estates as Planning & Zoning Board Member - Ward 1, for a term to expire 12/31/2012. Motion was seconded and approved 7 -0 COMMERCIAL BUILDING PERMITS: Mayor Bacon stated that there were none. CONSENT AGENDA: Mayor Bacon acknowledged Mr. Eric Taylor, who read the consent agenda. (A) Approval of April 18, 2011 Mayor and Council Meeting Minutes (B) Approval of road closure for Sanford Place from Powder Springs to Bank Street for Smyrna Public Safety Benefit held at Cobb Park from 11:00 a.m. to 5:00 p.m. and allow a ride through Smyrna presenting hot rod cars '" prior to the car show at Cobb Park, on May, 14, 2011, hosted by the Public Safety Foundation (C) Award RFQ 11 -I1I to NAI Brannen Goddard for commercial real estate brokerage services related to Hickory Lake property and Mayor to sign and execute related contract documents May 2, 2011 6 MOTION: Council Member Lnenicka moved to approve items 8(A) and 8(B) of the Consent Agenda. Motion seconded by Council Member Wood and approved 7 -0. P.M" Mayor Bacon asked for a motion for item 8(C) MOTION: Councilman McNabb moved for approval to Award RFQ 11 -II1 to NAI Brannen Goddard for commercial real estate brokerage services related to Hickory Lake property and Mayor to sign and execute related contract documents. Motion was seconded by Councilwoman Pritchett. Mayor Bacon recognized Councilman Lnenicka, who made known that he would abstain from voting due to his absence at the proposal review meeting with the brokers and a desire to avoid making an uninformed decision. Motion approved 6 -0 with Councilman Lnenicka abstaining. COMMITTEE REPORTS: Mayor Bacon recognized Councilman Wood, who inquired if Finance Director Robert Porche had a report to deliver. Mr. Porche responded in the negative. Mayor Bacon acknowledged Councilman Lnenicka, who restated that the zoning issue had been a difficult decision and that the goal was to achieve a positive situation for everyone. The Councilman mentioned the upcoming movie night and commented on current events. He expressed his opinion on the news about Osama Bin Laden, the far - reaching impact of the events of 9/11 and commended intelligence services and armed forces for their work in seeking justice and restoring hope, sharing his own desire for a more tolerant future. Mayor Bacon acknowledged Councilman Smith, who mentioned recent devastating storms and commented ..a favorably on Smyrna's warning system. The Councilman urged all residents to put in place emergency plans and encouraged participation in the upcoming "It's my park" volunteer day activities, providing details of the event. Councilwoman Pritchett provided supplemental facts on the parks to be included and Councilman Smith stated that additional details were available on the website, giving contact information for Parks and Recreation. Mayor Bacon recognized Council Member McNabb, who commented on the catastrophic storms, royal wedding, delayed space launch and capture of Bin Laden. The Councilman gave thanks to Mr. Eric Taylor and Chief Lanyon for their coordination of efforts in dispatching rescue vehicles to assist crews in Ringgold Georgia. He asked all to remember that unpredictable disasters occur and encouraged all present to achieve a level of self - sufficiency adequate to sustain their families and neighbors in those times of need. Mayor Bacon acknowledged Councilwoman Anulewicz, who extended her profound appreciation for city staff that helped make the Jonquil Festival a success. She discussed the upcoming redistricting meeting to be held by the Cobb County School Board to solicit public input and stated that additional information could be found on the Cobb County Schools website. Mayor Bacon recognized Councilman Newcomb, who yielded the floor with no report. Mayor Bacon acknowledged Councilwoman Pritchett, who corrected an error made during the reading of item 6(D), clarifying that the name of the Ward 1 appointee to the Planning and Zoning Board was Matthew Wirth. She commented on the recent storm, the impact of power loss on her family in Alabama and the potent reminder of scarcity of resources in disaster situations. She stressed the importance of achieving a level of self - sufficiency. Mayor Bacon commented on the huge turnout and spectacular success of the Jonquil Festival, Jonquil Jog, Atkins Park crawfish boil and Annual Golf Tournament. He shared with all present that he had received numerous compliments about the event and expressed his appreciation for the efforts of staff that made the events possible and praised the excellence of the clean -up. May 2, 2011 SHOW CAUSE HEARING Mayor Bacon stated that there were none. CITIZEN INPUT 7 Mayor Bacon recognized Mr. Alex Backry, residing at 3459 Shawnee Trail, who commented on upcoming elections. Mr. Backry encouraged those wanting to run for office to contact the State Ethics Board and provided the website address. He stated that he had been advised that the Mayor would be running for re- election made known his desire to participate in a candidate debate. Mayor Bacon acknowledged Donna Short Woodham, residing on Flemming Street, who criticized Councilman McNabb and Mayor Bacon for relocation hardships experienced by residents of Hickory Lakes Apartments. She questioned the pedestrian /bike path on Concord Road and inquired about expenditures on that project. Mayor Bacon called upon Diane Rasin, who invited the Mayor and Councilman McNabb to attend the 15th annual Grace Meadows subdivision spring meeting and provided the date of June 5th in response to the Mayor's inquiry. Councilwoman Anulewicz commented on resources available for those considering running for office. She stated that in addition to campaign disclosure information available at ethics.gov that potential candidates could visit the Cobb County elections or Secretary of State websites and provided details for both. With no further reports, Presiding Officer Mayor Bacon announced the meeting adjourned at 9:05 o'clock p.m. A. MAX BACON, MAYOR SUSAN D. HIOTT, CITY CLERK �tELIIN_ TCHETT, WARD 1 ��y7ilG��GfiU/ TERI ANULEWICZ,4VARD 3 Mme, 0,-C . coy,-_ � CHARLES PETE WOOD, WARD 7 RON NEWCOMB, WARD 2 M X�l � V,- MIC H I. MC''NARR WAR d ORDINANCE NO. 2011-10 AN ORDINANCE OF THE CITY OF SMYRNA, GEORGIA, PROVIDING THAT THE CODE OF ORDINANCES, CHAPTER 66, SECTION 66 -17, PROWLING, CITY OF SMYRNA, GEORGIA, BE REPEALED. BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF SMYRNA, GEORGIA: That Section 66- 17 of Chapter 66, Prowling, of the Code of Ordinances of the City of Smyrna, Georgia, be repealed. All ordinances, parts of ordinances, or regulations in conflict herewith are repealed as of the effective date of this ordinance. Severability: Should any section of this Ordinance be declared invalid or unconstitutional by any court of competent jurisdiction, such declaration shall not affect the validity of the Ordinance as a whole or any part thereof which is not specifically declared to be invalid or unconstitutional. Approved by Mayor and Council this 2nd day of May, 201 A. Max Bacon, Mayor Attest: q4agge an D . tt, City Clerk City of Smyrna Approved a to form: Scott Cochran, Attorney Ordinance 2011 -08 ORDINANCE NO. 2011-08 AN ORDINANCE OF THE CITY OF SMYRNA, GEORGIA, PROVIDING THAT THE CODE OF ORDINANCES, CITY OF SMYRNA, CHAPTER 66, BE AMENDED BY ADDING SECTION 66 -3, DISORDERLY CONDUCT. BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF SMYRNA, GEORGIA: That Section 66 -3 of Chapter 66, Disorderly Conduct, be added to the Code of Ordinances of the City of Smyrna, Georgia: Sec. 66 -3 - DISORDERLY CONDUCT. (a) It shall be unlawful for any person within the corporate limits of the city to engage in any act of disorderly conduct as defined and declared in Section (b). (b) The following acts are declared to be disorderly conduct: (1) Act in a violent or tumultuous manner toward another whereby any person is placed in fear of the safety of such person's life limb or health; (2) Act in a violent or tumultuous manner toward another whereby the property of any person is placed in danger of being damaged or destroyed; (3) Cause, provoke or engage in any fight, brawl or riotous conduct so as to endanger the life, limb, health or property of another; (4) Assemble or congregate with another or others for the purpose of illegal gaming; (5) Be in or about any place, alone or with others, with the purpose of or intent to engage in a fraudulent or illegal scheme, trick or device to obtain any money or valuable thing or to aid or abet any person doing so; (6) Be in or about any place where illegal gaming or illegal sale or possession of alcoholic beverages or narcotics or dangerous drugs are practiced, allowed or tolerated, for the purpose of or intent to engage in illegal gaming or the purchase, use, possession or consumption of such illegal drugs, narcotics or alcohol; (7) Direct fighting words toward another, that is, words which by their very nature tend to incite an immediate breach of the peace; (8) Interfere, by acts of physical obstruction, with another's pursuit of a "" lawful occupation; Ordinance 2011 -08 (9) Congregate with another or others in or on any public way so as to halt the follow of vehicular or pedestrian traffic, and to fail to clear that public way after being ordered to do so by a city police officer or any other lawful authority; (10) Stand or remain in or about any street, sidewalk, overpass, or public way so as to impede the flow of vehicular or pedestrian traffic, and to fail to clear such street, sidewalk, overpass or public way after being ordered to do so by a police officer or other lawful authority; (11) Disrupt by actions which tend to cause an immediate breach of the peace the undisturbed activities of any house of worship, hospital, or home for the elderly; or (12) Throw bottles, paper, cans, glass, sticks, stones, missiles, or any other debris on public property; (13) Be and appear in an intoxicated condition in any public place or within the curtilage of any private residence not his own other than by invitation of the owner or lawful occupant, which condition is made manifest by boisterousness, by indecent condition or act, or by vulgar, profane, loud, or unbecoming language. (c) Violations of this Ordinance shall be punishable as provided in 1 -8 herein. All ordinances, parts of ordinances, or regulations in conflict herewith are repealed as of the effective date of this ordinance. Severability: Should any section of this Ordinance be declared invalid or unconstitutional by any court of competent jurisdiction, such declaration shall not affect the validity of the Ordinance as a whole or any part thereof which is not specifically declared to be invalid or unconstitutional. Approved by Mayor and Council this 2 "d day of May, 2011. A. Max Bacon, Mayor Attest: S an D. Hiott, City Clerk City of Smyrna Ap oved as to form: "e, Scott Cochran, Attorne Ordinance 2011 -09 ORDINANCE NO. 2011-09 AN ORDINANCE OF THE CITY OF SMYRNA, GEORGIA, PROVIDING THAT THE CODE OF ORDINANCES, CITY OF SMYRNA, CHAPTER 66, BE AMENDED BY ADDING SECTION 66 -11, LOITERING OR PROWLING. BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF SMYRNA, GEORGIA: That Section 66- 11 of Chapter 66, Loitering or Prowling, be added to the Code of Ordinances of the City of Smyrna, Georgia: Sec. 66 -11— LOITERING OR PROWLING. (a) A person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law - abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity. (b) Among the circumstances which may be considered in determining whether alarm is warranted is the fact that the person takes flight upon the appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstances make it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this Code section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this Code section if the law enforcement officer failed to comply with the foregoing procedure or if it appears at trial that the explanation given by the person was true and would have dispelled the alarm or immediate concern. (c) Violations of this Ordinance shall be punishable as provided in Section 1- 8 herein. All ordinances, parts of ordinances, or regulations in conflict herewith are repealed as of the effective date of this ordinance. Severability: Should any section of this Ordinance be declared invalid or unconstitutional by any court of competent jurisdiction, such declaration shall not affect the validity of the Ordinance as a whole or any part thereof which is not specifically declared to be invalid or unconstitutional. Ordinance 2011 -09 POW Approved by Mayor and Council this 2nd day of May, 2011. A. Max Bacon, Mayor Attest: Su an D. Hiott, City Clerk City of Smyrna App oved as to form: �L-�" - zw'-111' -11 Scott Cochran, Attorney