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April 17, 1989 Council Meeting April 3, 1989 meeting - continued Wallace agreed that this was the basis of his appeal. Mr. Whaley said he was attempting tonight, to bring before council an issue which has not been raised in Recorders Court. His options are to either file a motion for a new trial in Recorders Court based on the new evidence on his behalf or to have a new trial by certiorari in the state Court of Cobb County. Attorney Camp agreed that if he had not, in fact, raised the jurisdictional issue before the Judge then it would be improper to hear an appeal on that basis "tonight. Bob Betenbaugh made a motion the appeal be denied by being procedurally improper. Jim Hawkins seconded the motion which carried 7-0. COUNCIL INPUT: Everyone Downtown election for those welcomed and congratulated the members selected to serve on the Development Authority and reminded everyone to vote on the special April 4th to consider increasing our homestead exemption to $10,000 disabled or over 65 years of age. Jack Shinall also reminded everyone of a meeting at the Civic Center April 6th when the School Board will consider closing Wills High School because of declining enrollment. This will be a public forum from 7:00 to 9:00 p.m. and it's imPortant that we have a good turnout from the Wills and Campbell districts. Wade Lnenicka thanked Vic sidewalk on Campbell Road. Broyles and his crews for construction of the Mayor Bacon said he was concerned that the property owners on Sunset Avenue felt the City would treat them unfairly in the land acquisition by the City. This matter has not been publicized because of real estate speculation and certainly not to try and withhold information or deceive them in any way. BOB BETENBAUGH, WARD 7 adjourned at 9:25 p.m. April 17, 1989 The regular scheduled meeting of Mayor and Council was held April 17, 1989 at Smyrna City Hall. The meeting was called to order at 7:30 o'clock p.m. by presi.ding officer Mayor A. Max Bacon. All council members were present except for Bob Davis who was sick. Invocation was Church. given by Reverend L. C. Malone, pastor of Mt. Sinea Baptist CITIZENS INPUT: Lothar Gierschner of 2267 Old Spring Road complained of muddy water at his home since January. Mr. Gierschner said they could not drink th$ water or wash clothes in it and refused to pay the most recent bill he had received. Mayor Bacon said the City has been working on the problem and we hope to have it corrected by the end of . Mayor Bacon asked Mr. Gierschner to leave his water bill and they look into the matter of adjustments. Jimmy Hawkins of 2312 Old Spring ROad also complained of muddy the City had not repaired his yard from the curbing done several and said ago. John Patterson was asked to check into the yard repairs and Mayor Bacon also told Mr. Hawkins that we hoped to have all these problems corrected by the end of the week. Irvin W. stolz, an attorney from the firm of Gambrell, Clarke, Anderson & stolz represented a group of property owners from Sunset Avenue and asked what plans were being made for the use of their property. Mayor Bacon said there is a town hall meeting scheduled for April 20th to bring the residents up to date and answer any questions they may have about the proposed community center and library. Mr. stolz said his clients do not want to sell their property and Mayor Bacon said it was not the City's intention to condemn anyone's property. CERTIFICATION OF SPECIAL ELECTION: City Clerk Melinda Dameron reported on the results of the April 4th special election approving the increase of homestead exemption for residents 65 and over from $4,000 to $10,000 and also to increase homestead exemption for disabled persons from $6,000 to $10,000. Jack Shinall made a motion the election results be accepted. Kathy Jordan seconded the motion which carried 6-0. DEPARTMENT REPORTS: Departments. Reports were given by Finance and Parks and Recreation PUBLIC HEARINGS: (A) Annexation of 40 acres in Land Lot 272 and 273 John Patterson said that Henley Vansant, Senior Vice President of Barnett Bank has requested the annexation of this property which was originally part of Martha's Vineyard Condominiums on Smyrna Powder Springs Road. The legal description was read and made a part of the February 20, 1989 minutes. There was one person in opposition, sworn in along with Jack Thompson representing Barnett Bank. Mr. Thompson said this land and included the ingress and egress to petition appears to be in annexation request was for 40 acres of undeveloped roadway known as Vineyard Way which would provide the proposed new development. Jack Shinal.l. said the order and asked to hear from the opposition. Dorothy Kiley were concerned development and of 2511 Vineyard Way said the homeowners of Martha's Vineyard because the bank would not tell them anything about plans for they were concerned with the density. Mr. Thompson said they were building 39 single family homes in phase I with an estimated 80 to 90 homes in the second phase which will be on the other side of the creek. Jack Shinall said Mr. Thompson's development would reduce the density presently allowed on this property over 50% and any changes from what was approved tonight would have to be brought back before council for approval. The roadway known as Vineyard Way will be included in the annexation tonight and dedicated to the City after construction but the "V" part at the front of Martha's Vineyard as shown on the map wil.l not be included. After further discussion, Jack Shinall made a motion the property be annexed into the City to become a part of Ward 5. Jim Hawkins seconded the motion which carried 6-0. (B) Rezoning of (conditional) 14.7 in Land Lot and 273 from RM8 to RAD 272 acres John Patterson stated that Jack Thompson is requesting this zoning to develop 39 single family homes on the 14 acre tract behind Martha's Vineyard, with R15 zoning to the east and RM12 to the south and west. The Planning and Zoning Board recommended approval of the zoning with several stipulations. There was one person sworn in opposing the rezoning. Jack Thompson said they are proposing 39 single family detached homes in this first phase with a minimum of 1350 square feet living space. Units will be stucco and brick fronts selling in the low 80's to mid 90's. Minimum lot size will be 5,700 square feet but there are only 3 or 4 lots in that category with all other lots exceeding that size. Jack Shinall said in earlier meetings Mr. Thompson had agreed to several with one being a 40 foot setback line and 10 foot undisturbed buffer on lots abutting R15 zoning, to be part of deed restrictions. Jack Shinall asked Mr. Thompson if this zoning had ever been denied in the county and Mr. Thompson said it had not; he had never been before the Cobb County Planning & Zoning Board with this request and to his knowledge, neither had Barnett Bank. Mr. Thompson said their ingress and egress would be Vineyard Way and he fully understood that they would have to build specifically to what is approved tonight, with any changes approved by council. Attorney Gary Pernice represented Robert McCaleb of 2715 Vineyard Way whose unit will face lots 1, 2 and 3. According to plans presented, one part of his building will be 7 feet from the property line and 23 feet from the property line at the other end. Mr. McCaleb expected 40 feet on the back yard when he purchased the unit and that is their primary concern. They have met with Barnett Bank and Mr. ThOmPson and have not been able to resolve the differences. Mr. Pernice said it appears that if the zoning takes place, it would be a taking of Mr. MCCaleb's property value without just compensation. Also, the zoning would be arbitrary and somewhat unreasonable based upon what they bought originally and what they will end up with if .the zoning is approved. On behalf of Mr. McCaleb, Mr. Pernice requested the zoning be denied. Mr. McCaleb was then sworn in by Mr. Camp and said the present zoning from Cobb County requires a 40 foot setback on the rear and these plans will leave a maximum of 23 feet from building to property line. 'I'hey are currently negotiating with Barnett Bank to honor a contract he had with his purchase agreement but at this point had been unable to resolve the problem. Mr. CamP meet our would be require a said the property weare considering rezoning would have lots that minimum setback requirement and technically, Mr. McCaleb's building in violation of the county building code if it does, in fact, 40 foot setback. Mr. Camp said he was trying, legally, to Mr. McCaleb's point but there was nothing this body could do to matter, outside of denying Mr. Thompson the zoning. resolve the Jim Hawkins asked if the City could be held liable in any way by approving the zoning in accordance with our code after the owner had subdivided the lot. Camp said this should be a civil matter between the two parties and he not think it would involve the City and did not think we could be held accountable for anything that happens on our side of the property line. After further discussion Jack Shinall made a motion the zoning be approved as presented per plat attached to the zoning request with the following stipulations: 1) Minimum 40 foot rear se.tback line on lots 1 through 12 be established; 2) On lots 4 through 12, that there remain an undisturbed buffer of 10 feet that is secured by deed restrictions; 3) All homes will be $75,000 or above; 4) Minimum square footage be 1350 square feet; 5) Minimum lot size be no less than 5700 square feet; G) Minimum lot width at rear setback for lots 4 through 12 be GO feet. Jim Hawkins seconded the motion which carried G-O. (C) Management Parkway change - beer and wine package license - Tenneco, 2G10 Cobb John Patterson stated that Charles Gilbert Archer has applied as the appointed agent to hold the package beer and wine license for Tenneco Food stores. There was no apposition. Mr. Archer said he was manager of one of the Tenneco stations now and had read some of the ordinance, but was not totally familiar with it... Following discussion, Jim Hawkins made a motion the application be tabled until the committee could meet with Tenneco. Kathy Jordan seconded the motion which carried 6-0. (D) Management change - beer and wine package license - Tenneco, 902 Windy Hill Road. Jim Hawkins made a motion the application be tabled. Jack Shinall seconded the motion which carried 6-0. (E) Management change Concord Road. beer and wine package license - Tenneco, 1166 Jim Hawkins made a motion the application be tabled. Jack Shinall seconded the motion which carried 6-0. (F) Mall. Privilege license - liquor pouring - Howard's Delicatessen, Cobb Center John Patterson said that Robert H. Martin has applied for a liquor pouring at this location which is currently licensed for beer and wine. The police investigation was favorable and there was no opposition. Mr. Martin said they have held familiar with the ordinance and Jordan made a motion the license be which carried 6-0. a pouring license for 25 years and he was state laws. With little discussion, Kathy approved. Jim Hawkins seconded the motion (G) Variance Drive. Front, side and rear setback - Wilma Southeast, 1000 Curtis In the tabled 6-0. absence to the of next Bob Davis, meeting. Jack Shinall made a motion the variance be Jim Hawkins seconded the motion which carried (H) Home occupation (child care) license - Mrs. Shirley Phillips, 706 Green Acres Road John Patterson said Mrs. Shirley Phillips has requested a home occupation license for child care in her home and has already received her certificate of registration from the state to allow her to keep up to 6 children. There was no opposition. Mrs. Phillips said she has been keeping children for 3 years and did not know she needed a city license. A petition was circulated to all property owners within 300 feet, but there were several that did not sign, including her next door neighbor who has filed COmPlaints against her. Mrs. Phillips said the children range from 3 months to 3 years. Her husband is totally disabled and cannot work and she also has allergies that are so severe she cannot work outside the home. Kathy Jordan said we do have a letter from the Atlanta Allergy Clinic to verify Mrs. Phillips condition and also read a portion of a letter from Dr. Robert D. Hoff regarding the medical condition of Mr. Phillips, stating that he is permanently and completely disabled and would require medication for the rest of his life. Following discussion, Kathy Jordan made a motion the license be approved subject to Mrs. Phillips erecting a 6 foot wooden privacy fence along the property line between her Mrs. Maloney, her next door neighbor. Bill Scoggins seconded the motion which carried 5-1, with Wade Lnenicka opposed. FORMAL BUSINESS: (A) Set date to hear appeal of Recorders Court - Heather McClellan Bob Betenbaugh made a motion the appeal by Heather McClellan be heard at the May 15th meeting. Wade Lnenicka seconded the motion which carried 6-0. (B) Open bids - auditing services. Bids for auditing follows: services for 1989-90-91 were opened, read and recorded as Price Waterhouse Gladney & Hemrick Peat, Marwick, Main & Co. Moore & Cubbedge Arthur Young Mauldin & Jenkins Pannel, Kerr, Forster 1989 38,500 14,300 15,800 15,100 15,000 23,500 14,500 1991 43,235 15,100 16,800 18,780 17,000 28,900 14,500 1990 40,800 14,700 16,300 17,680 16,000 25,200 14,500 Williamson & Company Deloitte, Haskins & Sells 9,990 10,250 10,804 18,000 (hourly rates thereafter) Jim Hawkins made a motion the bids be turned over to the Finance Committee with their recommendation back at the next meeting. Bob Betenbaugh seconded the motion which carried 6-0. BID AWARDS: Nothing to report. COMMERCIAL BUILDING PERMITS: First Baptist Church at 1275 addition at an estimated the permit be approved. Jim Church Street requested a building permit cost of $1,516.523. Jack Shinall made a Hawkins seconded the motion which carried (A) for an motion 6-0. (B) Ridgeview Institute at 3995 South Cobb Drive requested a permit for an addition to the building at an estimated cost of $580,000. Bob Betenbaugh made a motion the permit be approved. Wade Lnenicka seconded the motion which carried 6-0. CONSFNT AGENDA: (A) Appointment of Major Kent Sims, Acting Police Chief (effective 5/1/89) (B) Close Bank Street for Arts & Crafts Festival, April 29 Jim Hawkins made a motion the consent seconded the motion which carried 6-0. agenda be approved. Jack Shinall APPEAL OF RECORDERS COURT - JOHN FRANKLIN MANN: Bob Betenbaugh made a motion the appeal be tabled to the May 15th meeting. Wade Lnenicka seconded the motion which carried 6-0. Wade Lnenicka said Chief Li ttl.e' s retirement would be May . Mr. Lnenicka said he appreciated his many years of service and wished him the best of luck. Wade Lnenicka said Campbell Road sidewalk is almost completed and work should begin tomorrow on Creatwood Road, to take the sidewalk from Atlanta Road to Mohawk Place. Mr. Lnenicka said since the last council meeting we have had a couple of occurrences with the railroad and last Wednesday night a train was left unattended for 21 straight hours with the engines running at an idle speed behind the homes at the cul-de-sac. Five days later there was another incident with trains parking there and crews trespassing in the yards of the homeowners. Mr. Lnenicka said he was a little frustrated with the railroad because we cannot seem to resolve this problem. Bill Scoggins reported on a meeting he had with the Rose Garden Mens Club and stated we have on some of the projects and are working on the entire list of projects they had requested. Jim Hawkins said at the last meeting there was a zoning on Concord Road with some question as to whether or not we could require the applicant to provide a brick facade on the existing building. This began in 1968 when council rezoned 66 parcels on Concord Road with the following stipulations: 1) that all existing structures be removed when developed prior to request of land use permit or application for building permit; 2) masonry type construction mandatory on all commercial type structures which shall meet existing City building codes; 3) minimum setback of 50 feet from the right of way of Concord Road be established; 4) that no existing building in the approved zoning for the 66 parcels shall be used for commercial purposes. At .this time, Concord Road was a two lane road and the first two businesses to go in after this zoning was approved was Smyrna Auto Parts and Cobb Heating & Air. They met all requirements then but later when Concord Road was widened it automatically deleted the requirement about the 50 foot setback. In 1974, council had a petition to rezone by Moore & Bacon Realty and they asked for a waiver of the original stipulation of tearing down the building by putting a brick veneer on the entire outside of the building. That was approved, and on that same night another zoning was approved for Mr. Bostick and he also was exempted from the requirement to tear down the existing building and was allowed to use a brick facade. Mr. Hawkins said there has been a lot of discussion over the years that the to have a masonry front but since that time, each individually, on its own merits. Mr. Hawkins said he by not requiring Mr. McLane to provide a brick the last meeting and since there have been so many the original stipulations were not valid. Jack Shinall also a good job Little the best of luck; he is a good man and last week took a very big step and thanked and Campbell to merge and improve the level on Old Spring Road to be patient with the working to correct it. s has been very fortunate to have a man of and wished him good luck. also the citizens of the Thursday night town hall the new community center and library, starting plans adjourned at 9:27 p.m. ( ( YES Act be approved which provides for homestead exemption from certain Smyrna ad valorem taxes for certain s 65 years of age or older? NO #1 YES YES 19 #3 103 YES YES YES 254 YES YES Managers to conduct this Special results: NO NO 16 NO 14 NO 12 NO 13 NO 6 NO 30 NO 107 Managers to conduct this Special results: YES Act be approved which provides for homestead exemption from all City ad valorem taxes for certain residents? YES NO 20 YES 18 NO 20 YES 99 NO 18 YES 285 NO 20 YES NO 19 YES 185 NO 13 YES 438 NO 42 S 31 NO 4 NO 156 and Council of the City of of the votes cast: Manager, Ward #1 Manager, Ward #2 Manager, Ward #3 Manager, Ward #4 Manager, TNard #5 Manager, Ward #6 Manager, Ward #7 ( NO #3 #4 #6