02-15-1988 Regular MeetingFebruary 15, 1988
The regular scheduled meeting of Mayor and Council was held
February 15, 1988, at Smyrna City Hall.. The meeting was called
to order at 7:30 o'clock p.m. by presiding officer Mayor A. Max
Bacon. All council members were present. Also present was city
Administrator John Patterson, Rita Littlejohn, City Attorney
Charles E. Camp and representatives of the press.
Invocation was given by Reverend Robert Wardlaw of the Spring
Street Baptist Church followed by the pledge to the flag.
CITIZENS INPUT: Helen Lewellyn of Old South BBQ on Cherokee Road
presented a petition disapproving the widening of Cherokee Road
from South Cobb Drive to Atlanta Road.
DEPARTMENT REPORTS: None due to the length of the agenda.
PUBLIC HEARINGS:
(A) Sign Variance - ERA Properties, Powders Springs & So. Cobb
Drive.
John Patterson said John Dickson of ERA Properties at 672 Concord
•Road is requesting a variance to allow a sign to be placed at the
property of the Our Savior Lutheran Church located on Powder
Springs Road and South Cobb Drive for a six month period. The
sign would advertise a new subdivision which is under
construction just off Hickory Acres Drive. It appears as though
there is a problem getting prospective buyers to the homes.
Carolyn Ponder, Realtor with ERA Adventure Properties explained
that people did not know the subdivision exists because of their
location therefore the sign is needed.
Following discussion Jack Shinall made a motion to deny the sign
variance Kathy Jordan seconded the motion to deny which carried
7-0.
(B) Zoning Variance - 2079 Nancy Circle - side yard setback
reduced from 10 feet to 3 feet.
John Patterson stated that Mr. James Smith is asking for this
side yard variance to allow the construction of an ac.cessory
building that will cover his swimming pool pump and filters.
There is a letter of hardship in the package as well as a letter
from the adjacent property owners indicating they have no
objection to this variance. This variance would allow the
building to be placed three feet from the property line which is
a seven foot variance from the side yard requirement of ten feet
as specified int he R-15 zoning.
Wade Lnenicka made a motion to approve the side yard setback
being reduced from 10 feet to 3 feet. Bob Davis seconded the
motion which carried 7-0.
(C) Business License - First Edition Limousine - 1060 Concord
Road.
John Patterson stated that First Edition Limousine would be used
to transport businessmen to and from the airpprt in downtown
Atlanta. There was no opposition to granting business license.
Motion was made by Jim Hawkins to approve, seconded by Jack
Shinall which carried 7-0.
(D) Beer, Wine & Liquor license management change for
Copperfields, South Cobb Drive.
John Patterson stated than an investigation showed nothing to
preclude the issuance of this license. There was no opposition
to granting the license. Jim Hawkins read an investigation
February 15, 1988 - Continued
report on Mr. Rhodes which stated there was no reason to bar Mr.
Rhodes from having the license. Jim Hawkins made a motion to
grant the license.. It was seconded by Jerry Mills and passed
7-0.
(E) Rezoning Request - 1321 Marston Street FC to LC.
John Patterson stated that James Little and Kenneth Swofford are
representing the property owner, Joan Goss, in this request to
rezone this parcel from FC to LC.
Jerry Mills stated that there had been two meetings with the
neighbors regarding this matter. Jerry Mills made a motion to
rezone from FC to LC with the understanding that: (1) There will
be a general contractors office in the building. (2) Request
that there be a 16,000 sq. ft. total building space. (3) Prefer
a single story may have one 16,000 sq. ft. building. (4) One
curb cut for left turn exit only on Gilbert Street 'and no curb
cuts on Marston. The left turn out of the project onto Gilbert
Street is to be concrete high enough that a car cannot make a
right turn. (directional shute) (5) The building must front on
Hawthorne Street. (6) On -site parking to be located away from
Marston Street & Gilbert Streets (7) All setbacks to be observed.
(8) Recommend building outerwall to be brick if possible. (9)
Buffer to consist of raised burm planted with jupiter white or
other low growing pines with magnolias interspliced on
residential sides. (10) Outside trash receptacles to be kept
away from residential sides. Jim Hawkins seconded motion which
carried 6-1 with Wade Lnenicka opposed.
(F) Rezoning request corner of Concord and Hurt, Jebco Ventures
from OI & RTD to GC.
John Patterson stated that Van Westmoreland on behalf of Jebco
Ventures, Inc. has presented a petition to Mayor and Council
asking that the property approximately 11.9 acres in the V of
Concord and Hurt Road be rezoned from RTD & OI to GC. Mr.
Westmoreland is proposing to construct a 73,700 square foot
shopping center with a 40,000 square foot food store, 8,500
square foot drug store and miscellaneous shops totalling 25,200
feet. Mr. Patterson stated there is a long history behind this
rezoning as many of you were intimately involved in a situation
that arose back in 1974. The Constitutional objections have been
filed today and I hope that each of you has received a copy of
those. Planning and zoning Board voted to deny this request at
their meeting all advertisements have been met. The property to
the north is R-15 single family detached. To the east there is a
small section of limited commercial and R-20 single family
detached. To the south is R-20 single family detached. To the
west is RM-12 and a RTD development. This is in Mr. Bob
Betenbaugh's Ward.
Mayor Bacon called for the applicants to please step forward.
Mayor Bacon stated that this is a public hearing and asked if
anyone was opposed to this rezoning request. We would like to
allow everyone that would like to speak to speak for or against.
Mayor Bacon stated that the only thing he asked was that we limit
it to say five or ten minutes whatever you need but try to limit
it and be considerate. We would also like for those people who
would want to speak to please come forward at this time and be
sworn in. I don't mind you speaking but I don't like to stop the
meeting two or three times to have people sworn in during the
meeting. So if you want to speak or you are a spokesperson for
the group you need to come forth at this time and be sworn in.
City attorney Chuck Camp administered the oath to the parties
wishing to speak in opposition.
Mayor Bacon stated we will hear from the applicants first.
February 15, 1988 - Continued
Mr. Betenbaugh stated he met with the petitioners a couple of
times before and basically know what is planned and asked Mr.
Westmoreland if he would like to make his presentation.
Mr. Hylton Dupree represented Jebco Ventures, Inc. in this
application for rezoning. Mr. Dupree stated as previous stated
and also announced by Mr. Patterson this piece of property does
have a long history dating back to and prior to being annexed
into the City of Smyrna. Mr. Dupree stated first of all even
though the application requests rezoning they will change to the
neighborhood shopping catagory if that be the desir.e of the
Council. Essentially as stated the applicant is seeking to
develop on approximately 11.9 acres of land, a shopping center
facility of some 73,000 square feet anchored by a 40,000 plus
square foot food store and a drug store. The requested amount of
square footage is less than the ordinance would require and this
is done because the applicants rezoning is aware not only from
the history but from talking with the people in the area about
the sentiment especially from the residential area about the
development of this piece of property. Accordingly, they have
developed a landscaping plan that would attempt to buffer this
facility as much as possible from the residential area and I can
just show you that now. This landscaping plan right now is
tentative and preliminary and the applicant Jebco has agreed to
authorize me to make a stipulation to the zoning that any
landscaping plan that is submitted in reference to this would
have to be approved by the planning department of the City prior
to the issuance of the certificate of occupancy. Mr. Dupree
stated they have commissioned also a traffic study because they
recognize that Concord at this particular intersection does
present a concern of traffic and that traffic study has been
addressed in the report that you have been handed. I don't know
at this point where you have seen it or not, we filed this after
the public hearing that we had before the Planning Commission.
Mr. Dupree stated as far as impact is concerned, the history of
this you know is that this property has been previously zoned
neighborhood shopping and has been previously rezoned office and
institutional and on the front part, the out parcel included in
the application the intended purpose of that is a catagory that
would fall within the office and institutional catagory.
However, the application for rezoning is asking or the applicant
is asking that it be rezoned neighborhood shopping so it can
accommodate some parking encroachment on that one tract for that
reason only. Otherwise, again we would agree to stipulation on
that triangle that it be limited to an O&I use such as a bank or
other similar type service facility. Mr. Dupree stated that he
thought one thing of significance in this is the reason that the
applicants feel that this is a suitable use for the property and
that also to bring the point to your attention that this property
has been attempted to be marketed in the past for a development
similar to that adjacent to it that is town homes and found that
it is economically unfeasible to do that and many of you must
know by now that on the residential townhomes that were developed
on part of the old Ruff property there have already been two
foreclosures of that particular tract due to its being a
nonfeasible economic issue. So we would ask you to consider this
application and if you have any questions concerning specifics on
this Mr. Van Westmoreland with Jebco Ventures will answer them
for you.
Jerry Mills asked why Jebco asked for a GC zoning and now you are
saying you would go for a downgrade to neighborhood shopping?
Answer: Right.
Jerry Mills: What would bring that concession on?
Answer: Quite frankly I think in analyzing the planning in what
they wanted to do with it when the original application was filed
they believed or were mistaken in thinking that General
Commercial was what they needed in the zoning catagory to fit in
the shopping center. In studying the ordinance it doesn't.
Jerry Mills: In other words you are saying the same development
will. be there under neighborhood shopping versus general
commercial.
Mr. Dupree: Yes sir.
Jack Shinall: You made the statement that this piece of property
had previously been zoned for neighborhood shopping?
Mr. Dupree: Yes sir, (indicated area on map).
John Patterson asked Mr. Dupree if his client realizes that to
accept neighborhood shopping zoning classification would limit
the size of any one store to 5,000 square feet? Mr. Dupree
stated that no they were not aware of that, it was.not pointed
out in the ordiance that they have, so they will take that back.
Mr. Patterson stated that it was in the ordinance that was handed
to him perhaps they overlooked the code section.
Wade Lnenicka asked Mr. Dupree the purpose of filing the
Constitutional objections.
Mr. Dupree explained that the purpose was several fold
Possession of an applicant and owner of the property that the
current zoning restriction upon this piece of property is
confistory and in violation of the Constitution of the State of
Georgia.and the Constitution of the United States. It is also
positioned in any intervening zoning classifications placed upon
it by the Council would also likewise be unconstitutional. The
procedural purpose for filing the petition with the Council is to
put you on notice that that is the position of the applicant and
the owner and give you an opportunity to act on it prior to any
judicial body acting on it.
Jack Shinall asked if the firm who conducted the traffic study
was represented at the meeting. Mr. Westmoreland stated that
they were not in attendance.
Mr. Westmoreland stated we were talking about the traffic, we
would be willing to do as much as it would take within - as long as
the means were there to improve that situation.
Mr. Shinall stated he noticed that only P.M. traffic hours were
studied. He asked Mr. Westmoreland if he was aware that one of
the major problems in that particular area is the A.M. problem.
Mr. Westmoreland said he refers to the P.M. peak hours a lot that
was not the only time he studied that property. He refers to
that a lot because traditionally that is the most traveled part
of the day for shopping in this particular kind of development.
The majority of shopping is done at early P.M. hours.
Mr. Shinall states that it is stated on page two un-numbered,
that only P.M. traffic volumes were recorded.
Mr. Westmoreland stated he was sure that this thing is not as
complete as it need be.
Mayor Bacon stated that he thought it was time that they heard
from the opposition. Stated to Mr. Westmoreland that he would
have the opportunity to come back and retaliate.
Mr. Mayor and members of the Council, my name is Pete Wood, I
live at 371 Havilon Way, in the City of Smyrna. I am here
representing a group of residents who live in the immediate
vicinity of the proposed rezoning. These residents will be
adversely impacted by the proposed rezoning. We are adamately
opposed to rezoing of the property at the intersection of Concord
and Hurt Roads. As you know this property has been the subject
February 15, 1988 - Continued
of at least five rezoning request over the past number of years
that has already been alluded to. Prior to the time the property
was annexed into the City of Smyrna, the Cobb County Commission
denied rezoning for a shopping center, other commercial
development and multi -family housing. Similar requests have been
denied by the Smyrna City Council on several occasions. The most
recent rezoning of this property occurred in April of 1983. At
that time the Smyrna City Council zoned 18 acres for a
residential townhouse development. The 4 acres at the point of
Concord and Hurt Roads was left zoned at O & I. The RTD zoning
was approved with certain stipulations including size, minimum
sales price, 6.5 units per acre, maximum density, buffer and
shrubs, screening, and several other stipulations that are
specified in the minutes in the April 18, 1983 meeting of the
Smyrna City Council. Homeowners that reside in the area were
present but did not oppose this rezoning. A number of townhouses
have been built on the property since the 1983 rezoning including
some in the last year or so (new ones) . We believe that the
present zoning offers an economically viable opportunity for the
owner of this property to receive a fair return on his
investment. Our opposition to the proposed rezoning is based on
the adverse impact such rezoning would have on the health,
safety, and general welfare of the residents who live in this
area. The site plan for the proposed retail development shopping
center calls for a total of 438 parking spaces for automobiles.
Obviously, the applicant expects very heavy automobile traffic in
its proposed development. These spaces could turn over several
times a day on busy days as frequently happens in shopping
centers. The proposed development includes a 40,000 square foot
supermarket. As we all know, supermarkets are high volume, high
traffic retail stores. The proposed development also includes a
drug store and other unspecified stores and shops. We believe
this will generate substantial noise and air pollution in the
surrounding area that is a dense residential area. The
additional noise and air pollution is a heath concern of ours.
As you are aware, Cobb County is one of the few counties in
Georgia whose residents are required to have their vehicles pass
the emission control test before they can purchase a license tag.
Obviously, air pollution is deemed a health problem in Cobb
County including the Smyrna area and certainly has the concern of
the Environmental Protection Agency and other State and Federal
Health Agencies. We believe it is a legitimate health concern.
The safety impact - Both Concord Road and Hurt Road are narrow,
winding, hilly roads in the area of the proposed rezoning. Both
are inadequate to handle. the current traffic volume. The
increased volume and density of traffic on these roads would
create additional safety hazards in the area. To illustrate the
gravity of the safety problem in this area there have been more
than 50 traffic accidents at the intersection of the Havilon Way
and Concord Road. Although Cobb County is currently in the midst
of a multi -million dollar road program there are no assurances
that Concord or Hurt Road would be widened from two narrow lanes
in the area of the proposed development. It is also a fact that
school buses board and discharge students along these narrow
roads on a regular basis. We believe the additional traffic and
congestion generated by a retail development in this area would
pose additional safety hazards for our school age children. It
is also a historical fact that Saturdays and Sundays are heavy
shopping days at supermarkets and many other retail stores. Most
residents who live in the area are usually home on Saturdays and
Sundays and use the roads in the area. The traffic in the area
will be compounded by the presence of this proposed retail
development. Obviously much of the traffic generated by the
proposed development would come from shoppers other than the
residents of the area. Many supermarkets alone generate more
than 10,000 transaction per week and some have traffic counts as
high as 12,000 to 15,000 shoppers a week. Many supermarkets are
open 24 hours a day, seven days a week, or stay open late hours.
Obviously this means that additional traffic will be generated in
the area during peak hours. The peak hours for many supermarkets
February 15, 1988 - Continued
on week days is 5:00 to 7:00 P.M. when also the residents come
home from work. We contend the traffic generated from proposed
retail development will not be limited to non -peak hours for
normal traffic in the area. The concern for public safety in the
area of the proposed retail development is such that the Smyrna
City Council appointed a citizens committee to study the problem
and make recommendations several years ago. Two citizens and
representatives of the Smyrna Police Department were appointed to
the committee. In summary we believe the additional noise
generated by high concentration of automobiles in the proposed
retail development and the safety hazards generated by the
substantial additional traffic on inadequate roads pose
significant threats to the general welfare of the residents who
live in the area of the proposed rezoning. We also ask you to
consider the following: The proposed rezoning is not consistent
with the City of Smyrna's land use plan or the Cobb County land
use plan. We also believe that the proposed rezoning may well be
spot zoning since the property is not contiguous to any other
commercial property by definition, it does not touch other
commercial property at the edge or at the boundry. The property
you_ are being asked to rezone is surrounded, by residential
propertly, mostly single family dwellings. It is our
understanding it was confirmed here tonight that the Smyrna
Planning Zoning Board recommended the proposed rezoning be denied
by a very strong vote. It is also clear to us that the proposed
rezoning does not meet certain zoning review standards as
intended by the State Code. The proposed rezoning will not
permit a use that is suitable in view of the use and development
of adjacent or nearby property. The zoning proposed will
adversely affect the existing use and useability of adjacent and
nearby property. I don't think it is any doubt that my house or
Frank Johnson's or some of the others right along there, if you
put a shopping center across the street it will obviously have an
adverse impact on that. It is not in conformity with the intent
of the City of Smyrna's land use plan as I previously addressed.
The proposed rezoning would be detrimental to the aesthetics of
the general neighborhood. I don't think anybody wants to look
out their front door across the fence at 5 acres, 8 acres, of
shopping carts and that type thing, aesthetically obviously it
would have a negative impact. For all the reasons I have stated,
we respectfully request that you deny the applicant's request to
rezone for a retail development.
Mr. John Hicks who resides at 159 Oak Forest Drive spoke in
oppositon of the rezoning. Mr. Mayor, Members of the Council, my
name is John Hicks, I live at 159 Oak Forest Drive in Smyrna. I
am not up here to make a long talk or state a bunch of statistics
to you. You have apparently been attempted to be dazzled by the
Constitution by the legal man here tonight. The Constitution of
the United States of American and one I spent four years of my
life defending is a very simple instrument. The Constitution was
drawn for the purpose of defending the people of this country.
It provides for the right of peaceful domain, it provides the
right for the pursuit of happiness and it provides for a
democratic process of governing the people of this country. I am
not sure that the man is right in his constitutional presentation
and I am not sure he is wrong. I can tell him one thing, there
will be a lot of dogs in this fight before he wins it, that is
for sure. I am against the zoning, I do not know of a single
majormarket or supermarket in Cobb County that is not either
located on four or more lanes of highway other than some old ones
that were built several years ago and most of them if you will
look today are on roads that are being approved for four or more
lanes. We have two, two lane roads serving this piece of
property. They come together at this point, I don't believe as
far as traffic is concerned, I have some experience with that, I
spent several years in the real estate department of a major oil
company. The traffic generated by a major supermarket is
probably five or six times that generated by one of or the
largest service that you will locate anywhere in the City of
February 15, 1988 - Continued
Atlanta. Cash register transactions at those stores have to be
enormous because they operate on about 1% net profit maybe 2% but
that is a good store so that means lots of volume. I don't
believe the two roads can serve it. The county just did a little
something to that intersection to improve it just a little. Two
lane highways are not for supermarket areas. The next thing is
this property as stated by the gentleman before does not touch
any commercial property it only touches residential property and
multi -family property. It is pretty obvious what the strategy is
here, the bulk of the population lies to the west of South Cobb
Drive. The strategy is to come down build and cut off the
traffic before it reaches the other two and one under
construction which would make three major supermarkets at the
near intersection of South Cobb and Concord. The use of this
property as stated the owner cannot sell the property, the owner
can't get a fair return. The owner has elected to stay there and
play poker with this piece of property. The neighborhood has
developed all around him over all the years, he has had many
opportunities to take a fair market value for the property and
return it. He has elected to stay and play poker with it. I
don't believe we should stay and be a part in assisting him to
win a poker game. I respectfully request that you deny the
proposal for this zoning and I promise you I will do everything
in my power to get all the people that I can in that near area to
assist the City in whatever legal action and whatever legislative
action or whatever action we need to take to prevent this type
zoning and this type construction.
My Name is Ken Cook and I 1
Subdivision which.about less t]
from the intersection. I didn't
anything like that, I saw the
intersection and I thought I had
you my concerns about the proper
Smyrna, I moved here about eight
there near Wills High School. 0
the property that I live at now
quite residential area yet real
like and Smyrna is kind of like
reallv like the area and I r(
ve down in Concord Village
an a half of mile down Concord
come with any group tonight or
sign down on the corner of the
better come down and express to
y. I am kind of a newcomer to
years ago, I first lived over
ie of the reasons that I bought
was because it was in a nice
close to Smyrna which I really
the town I grew up in and so I
allv liked it because it was
residential. Now since I have been living there it has been
about seven years, I have really watched a lot of growth on
Concord Road and I obviously am not very happy about that but
there is - not much I can do. When I need to go shopping, when I
go down to Kroger's or Winn Dixie's and shopping for us is not an
inconvenience but having this kind of traffic with this kind of
development with this kind of littering and so forth, it is just
not the thing that we would need or would like to have there. So
I just like to say as sort of an independent citizen that we
don't want it, we don't need it and we feel that it should stay
residential and we would like to have your approval for that.
Thank you.
Jack Shinall stated that he would just like to say that the
merits of this case have to be based on the property itself, it
cannot be based on anyone saying we don't want it, it is not
going to look good over there, it is residential. It has to be
based on the merits of the particular case itself.
Mayor Bacon asked Mr. Dupree if he had anything else to say.
Mr., Jack Shinall asked Mr. Dupree about the constitutional
questions that he would like clarified. Are you saying in your
constitutinal questions that GC is the only ,zoning that would
work for that piece of property? Mr. Dupree stated that this was
correct. Mr. Dupree stated that this was based on the historical
data that he had already explained about the failure of the
townhouse development. And Mr. Patel's experience in trying to
market the O & I for the past two and one-half years. It has
been unsuccessful. The neighborhood shopping catagory, we
February 15, 1988 - Continued
frankly thought when we came up here that it would have been
satisfactory. Then it was pointed out by the administrator that
it was not because it would limit the size of the stores which
only leaves general commercial. We are not enamoured with the
word general commercial because in other areas general commercial
includes a lot of things that these developers are not intested
in putting in and that is why he has stated that they are willing
to sit down with the government and you professional people and
work out things -such as buffers and uses of the property and so
forth consistent with good planning.
Mr. Dupree was asked if he had evidence supporting Mr. Patel's
claim that he has marketed it for O & I at a fair market value
that he could present to this board tonight?
Mr. Dupree stated that he could call Mr. Patel as a witness, if
he wanted to go through that, I am basically stating in my place
what he has told me about the property.
Mr. Dupree stated that Judge Brantley recently ruled that these
type of proceedings should be adversarial and the Supreme Court
disagreed with him so that is why we didn't have witnesses and
all that.
Wade Lnenicka questioned Mr. Dupree about the law and the
constitution.
Jack Shinall stated the proposed rezoning is in direct opposition
to the future land use plan that was adopted during the period of
time that the property was owned by Mr. Thompson and Mr. Patel.
We held public hearings on that particular land use plan, invited
the public, it was advertised and they were announced and neither
one of the two property owner's appeared before this body to
express their dissatisfaction with the proposed land use plan. Is
there any particular answer to that, were they out of town those
times, we had two, maybe three.
Mr. Dupree stated he did not know.
Mr. Patel was asked by Jerry Mills why he did not attend the
meetings on land use plan?
Mr. Patel was sworn in.
Mr." Shinall put forth the question. Mr,. Patel, I will restate
the question. We have public hearing on our proposed land use
plan prior to adoption. These proposed hearings to the best of
my knowledge was held during your ownership of the property. If
you were having trouble selling it or could not market it, why
were you not here to object to the proposed use of the property?
Mr. Patel stated he did not know when it was presented because he
had been overseas a number of times at least four times in the
last year and one-half.
Mr. Patel stated that he had been overseas quite extensively over
the last year and one-half. I had the property under contract
once, to sell it to two individual buyers. The first corner
acres was under contract with Circle K company for putting up a
convenience store. The back three acres were under contract for
building a very massive apartment lodge type concept such as you
see on South Cobb. Now I live out there I didn't prefer having
it there and was quite glad it was declined. I was under
contract for about six or seven months under that contract.
Since than I have been under contract with Fletcher Bright
Company prior to Fletcher Bright Company assigning or selling
their interest to Jebco. So all together for about six or seven
months.
Mr. Patel was asked to point out his property on the map.
February 15, 1988 - Continued
He was also asked why he didn't want to develop his property
under the present zoning.
Mr. Patel stated that Mr. Ted Jones had numerous marketing
efforts done on his behalf and apparently he had not been able to
obtain any contract during the life of this ownership of this
land. He apparently suggested that we may not be able to market
this as an O & I.
Mr. Patel was asked by Kathy Jordan if when he purchased this
property did he intend to develop it himself?
Mr. Patel stated I had intention to develop a portion'of it, yes.
I was thinking of building an office condo project there one
time, but I did some study on my own and I believe that it would
be a mistake to do so right at Concord and Hurt at that location
if I had a more conspicuous location on South Cobb Drive perhaps
it would be a bit more successful, so I dropped the idea.
A question was put to Mr. Patel by Kathy Jordan of why would that
be a bad location for a doctor.
Mr. Patel stated it is not a bad location it is very good but
from what I have found out through Ted Jones the number of
inquiries he had and apparently the number of efforts he has made
to market the property as O & I, I couldn't get a good response.
I had him on the lookout for even a tenant so I could build and
he could lease them out.
Jack Shinall: So you have tried to market it through one real
estate company is that correct? Only one?
Mr. Patel stated yes, only one.
Bob Betenbaugh: When you first purchased this property you
obviously knew the zoning that was on the property.
Mr. Patel stated yes.
At that time did you go to some consultants or other people in
the real estate business to get an opinion on whether or not that
property could be developed at a profit under its existing
zoning? Or did you wait until you bought it and then were told
by this one company that it was not possible to do. Did you have
a formal study done before buying this property?
Mr. Patel stated No, I had no formal study done on the property.
Jerry Mills: Any judgment made by this body is made on the best
use of the property. Why would you want to go to GC vs O & I
would it be because there is more dollars to be made off it as GC
instead of O & I?
Mr. Patel stated that obviously that is how it translates to you.
So it is not a matter of taking a loss or not being able to use
the property or sell the property it is selling it at a price
that you expect to get out of it.
Mr. Patel stated he had failed to locate buyers to build suitable
O&I development on the property.
Mr. Bob Betenbaugh stated at this time he had studied all of the
evidence and the facts of this particular rezoning as much as he
can, there are people in the room, Mr. Dupree, Jerry and Jack and
some people who have been around here know this piece of property
by heart. But I spent a.good many hours studying the evidence
and facts available to me talking to various people, and based on
that evidence and facts I think a motion is in order and I would
like to make a motion that the zoning of this property be denied
February 15, 1988 - Continued
and further I would like to make comments for the record and I
too will be using as a guide Code Section 1508 The Zoning Review
Standards as we see them. There are certain guidelines or
criteria if you will, a lot of which have been talked
specifically to you here tonight and some talked around. Whether
or not this zoning will be suitable in view of the adjacent
property, in opinion it will not. The property around there is
totally residential and has been for a long time and as you will
hear me say again this is a neighborhood that is twenty plus
years old. It is a neighborhood of stability, it has grown in
quality and value during that twenty years. Secondly,. I think
that the area there would in fact be adversely effected because
with the nature of a shopping center being a 24 hour facility and
certainly a later hour facility there will be lights, there will
be full time traffic, the noise and air pollution issue has been
talked about and I think that is in fact a genuine, legitimate
issue. Another thing that we have talked about is the roadways
there which I will talk about further. We've also talked
extensively about whether or not this property can have a
reasonable economic use or reasonable economic return to its
owner. I understand tha tthe price of a horse is what the owner
is willing to sell it for and a buyer is willing to pay for it,
and that determines the value of that horse and I think the thing
that we have learned here tonight if nothing else is this
property can indeed be marketed under its present zoning. We
have the purchaser here who has owned the property for about two
years and a gentleman who says he sold the property so one man
did indeed sell it and I assume that if he is in the real estate
busienss he sold it at a profit. But at any rate I assume the
property can indeed be marketed, it is a matter of what can it be
marketed for and how much profit do we want to make. That front
four acres, three -fourths of it is going to be supposedly in
landscaping so that runs the square footage price of that four
acres up tremendously I'm sure, since it's not going to be used
and I think that's something to be considered. We ask ourselves
our Code Section 1508 addresses the fact will this have impact on
existing streets, facilities, the utilities? There is no
question at that point Concord Road is a very narrow, winding and
hilly road. The traffic is already_ overflowing there, if you
will, we have a serious traffic problem as it is. I'm not
certain of the numbers, but I know that some of the people can
give us the exact numbers of accidents that have occurred at the
intersection of Havilon Way and Concord Road for instance. There
is recorded proof and statistical data to show us that it is
dangerous and this indeed can affect the safety of the
neighborhood. Again, Section 1508 directs us to ask if the
zoning as requested meets the land use plan. Now, we have heard
earlier that both the Cobb County Planning and Zoning Board and
the City of Smyrna Planning and Zoning Board recommended denial
of this rezoning. It all cases they referred to some of the same
things but the strongest case that each of them made was the fact
that this was not consistent with the future land use plan of
either governmental agency. One of the things that all citizens
have been concerned with over the past five or ten years and we
hear it constantly is the growth in our county and surrounding
counties and how do we control that growth, and everybody talks
about it, and pressure is brought to bear upon elected officials
to do something about it if they can and one of the ways that
they do that is through a land use plan. Smyrna adopted, Mr.
Patel, it was in June of 1986, Smyrna adopted this land use plan
and quite frankly during the hearings that were held on this land
use plan there was practically no participation or attendance by
the citizenry. Yet when it comes time to rezone then .we have
(inaudible). Nevertheless we do have a workable, a viable, land
use -plan. We have taken the liberty, and I will pass this around
and I think that it is appropos for the people here interested in
it to take a look at this as well. This green circle is a half
mile radius, the pink that you see here is the proposed rezoned
property. Concord Road and Hurt Road, this is a half mile
radius, over here, I'm reading backwards, but I think this is
February 15, 1988 - Continued
South Cobb Drive. You see the blue that is light commercial. It
is obvious, very obvious to me, that when you look at this that
the requested zoning is in direct conflict with this land use
plan. Would you look at that and then pass it over to him. I
don't think there is any question that when you look at that it
almost looks like spot zoning. But more than that, both the Cobb
County and the City of Smyrna Planning and Zoning :Boards very
probably recommended denial because of that. So I think if we
have a land use plan we need to use it, to abide by it. Section
1508 also asks us some other things. The changing conditions of
a neighborhood that would strongly support the approval or
disapproval of zoning. As I referred to earlier, this is not a
changing neighborhood. This is a stable mature neighborhood of
twenty plus years. A neighborhood that has grown in monetary
value and there have been no changes that would invite zoning
other than residential. Quite the contrary, there may have been
some credence to the argument that there would be some changes,
but just recently as you know, the Cobb County DOT has deleted
the Concord Road spur as they have deleted the Spring Road
connector, which could possibly have come through there and been
construed as perhaps a change in the neighborhood. But the fact
of the matter is the neighborhood has not changed. It is not in
fact a transitional neighborhood that would invite zoning other
than residential. Section 1508 also addresses the architectural
standards of the neighborhood. It is my understanding, I think
the people that spoke in opposition to this did not oppose the
RTD zoning that is there now. Is that a correct statement? Also
when you look on my map you see here, there is a drug. store and a
dental building as you approach the Concord Road corridor. They
are architecturally compatible with the residential homes in this
area. Certainly a big shopping center with a couple of three
acres of parking would not seem to be architecturally with what
is there now. We then address ourselves to whether or not, again
I am on Section 1508, 1508 addresses us to the fact that would
the wood areas only create a nuisance and I submit that that is a
possibility. Having already addressed the traffic issue which
could be considered a nuisance rather than beat some of the same
horses to death, let's talk about a couple of other things.
There will be rather large dumpsters for depositing refuse.
Shopping centers gather lots of refuse. When I remember working
around some of those things, of course this creates the
possiblity of rodents, disease, and we could go on and on about
what could happen. But certainly I think that that could fall
under the catagory of being a nuisance. We would have to refer t
our legal friends for that for certain. As a citizen I would
consider it a nuisance. We also are addressed by Section 1508 to
whether or not the land area and the proposed use would affect
the area postively or negatively. Again, I draw your attention
to the fact that the very nature of the building itself and the
large paved area is inconsistent with what is there. We have
talked about sewers, the possibility of single family or multi-
family or RTD was there that it would be very costly but
nevertheless we have got to have the same capacity for water run
off especially for a large development of this nature. Again,
having hopefully thoroughly researched the evidence and the facts
that have been presented and having met with the petitioners and
I do appreciate their cooperation with me and their
presentations. I know that they have invited some of you who
went up to visit with them. But having researched all of the
evidence and everything that I can see, I believe in good
conscience as I said that I repeat, I would like to make a motion
that we deny the rezoning.
Wade Lnenicka seconded the motion.
Jack Shinall said he would like to clarify one point of Mr.
Betenbaugh's eloquent presentation. This wasn't reviewed by the
Cobb County Planning and Zoning Board this was reviewed by the
Planning and Zoning Department. The recommendation made sure,
we're not going to have Cobb County come down to Smyrna and do
February 15, 1988 - Continued
our zoning for us. I would like to add one more thing. By their
own traffic study that has been presented to us tonight, the
additional cars that will be added to the area would be 2,625.
If anybody has been in that intersection lately, I would hate
think about us adding 2,600 to that intersection.
Mayor: Any further questions?
Wade Lnenicka: I also would like to support Mr. Betenbaugh's
motion. I have got a copy of Section 1508 of the City Ordinance
in front of me and I too have considered very carefully this
request and the ordinance. I would remind everyone that Mr.
Dupree agreed with me that an ordinance as it relates to zoning
is valid. He agreed that that was a valid document. That we had
the right to enact as a governing body. He disagreed with the
specific zoning of that specific property, but the ordinance
itself he agreed as valid. Under the zoning review standards
there are nine factors. It says that "In the consideration of
any zoning proposal the planning commission and Mayor and Council
shall consider the following factors in their determination." It
lists nine factors which Mr. Betenbaugh has addressed. I think
you could argue as Mr. Betenbaugh did very eloquently on I think
every single one. I would say of those nine there are at least
seven to me that are clearly applicable in this case. Would the
zoning proposal or the use proposed adversely affect the existing
or usability of adjacent or nearby property. I think it would.
Whether the property to be affected by the zoning proposal has a
reasonable economic use as currently zoned, I think it does, I
don't think they proved that to the contrary. Whether the zoning
proposal would result in a use which will or could case an
excessive or burdensome use of existing streets, transportation
facilities, utilities and schools, I think in particular in
regards to the streets and the transportation. facilities that is
true. In terms of utilities. They really haven't addressed the
impact on water and sewer, the capacity of the system in that
area. But, further study I think would be .warranted there.
Whether the zoning proposal is in comformity with the policy and
intent to the land use plan it is not neither the City's nor the
County's. Whether the development of the property in the zoning
proposal will conform to, be a detrement to, or enhance,
architectural standards, open space requirements, of the general
neighborhood considering the currently historical and planned
uses in the area. As Mr. Betenbaugh pointed out this is not a
transitional neighborhood, it is stable, it is a 'residential
neighborhood, I think the zoning would be a detriment. Under any
proposed zoning classification where the use proposed may create
a nuisance or is incompatable with the existing uses in the area,
I think again it is incompatable with existing uses which are
residential. whether due to the size of the proposed use in
either land area or building height, the proposed use would
affect the adjoining property, general neighborhood, and other
uses in the area postively or negatively, I think it would affect
it, I think it would affect it very negatively. I think the
nearby homeowners would see their property values not be enhanced
but the reverse be true, they would be declined. So I cannot
support this zoning request.
Vote on the motion to deny carried 7-0.
FORMAL BUSINESS:
(A) Amendment to zoning code/ Archery & Gun Range
John Patterson stated that our current zoning code allows for an
archery and gun range to be constructed within the general
commercial classification. There is a current desire to allow
archery and gun ranges in the light industrial zoning
classification provided they meet certain specifications.
Jerry Mills stated that we had received a letter from Richard
February 15, 1988 - Continued
Vaughn, Vice President of Wilson Development Corporation in
Highland Park requested that Glock, Inc. which sells firearms
would -like to put an indoor gun range. But under our gun code it
does not meet it, so they asked if we would go into the LI zoning
and approve it in that particular code. On the recommendation of
the City Attorney, I will read the code and it will be in the
form of a Motion. I make a motion to amend the ordinance to
read: 714.11(a) within planned industrial parks, archery and gun
ranges (indoor) provided they meet all Federal Regulations and
the National Rifle Association Standards governing such
activities as approved by the City Building Inspector and Fire
Marshall and that these be included in LI zoning. Jack Shinall
seconded the motion which carried 6-0 with Wade Lnenicka
abstaining.
(B) Amendment to the City Charter -Civil Service
Mr. Patterson stated that some time ago the Civil Service Board
met with Mayor and Council to discuss issues that might
streamline the selection process of Police and Fire personnel.
The Civl Service Board is presenting a modification to the
charter. In order for you all to consider this evening, but this
matter needs to be advertised duly -since it is a charter change,
so the motion this evening would be to allow us to advertise the
change and after it is properly advertised and meets all the
legal requirements then we would bring it back to you for your
consideration and hopefully get it before the general assembly
before they depart from this current session.
Bob Davis made a motion that we advertise for a change in the
City Charter/Civil Service. Jack Shinall seconded the motion
which carried 7-0.
(C) Authorize Mayor to sign the EPD Consent Order
Mr. Patterson stated that the State Department of Environmental
Resources has suggested and specifically insists that we enter
into a consent order with .them regarding the Belmont Avenue lift
Station. We have .been negotiating with them for some several
months now and it is to a point that we need to enter into this
agreement in order to protect the interests of the City and this
matter has been brought to you for your attention and
consideration previously. The Georgia Department of Resources
has modified it somewhat and those modifications seem
satisfactory. The City Attorney agrees with this.
Wade Lnenicka made a motion to authorize Mayor to sign Consent
Order and submit it with a check in the amount of $1,300.00 to
the EPD. Jack Shinall seconded the motion which carried 7-0.
(D) Revision of Sign Ordinance
Mr. Patterson stated that the sign ordinance does not include the
same fee to process the variance as some of .the other code
sections. A few years ago the code was modified to charge a
$250.00fee to present a variance before Mayor and Council for
consideration. This particular code section was overlooked and
now brought back to you for your consideration this evening in
the hopes that you will change it to put it in line with the
others.
Mr. Mills stated that paragraph 6-105 as Mr. Patterson had said
is an oversight and the Committee has asked the Council to
approve that the paragraph be changed to read that the sign
variance fees shall be two hundred and fifty dollars ($250.00)
Jerry Mills made a motion the amendment be approved. Wade
Lnenicka seconded the motion which carried 7-0.
(E) Renaming a segment of Windy Hill Road.
February 15, 1988 - Continued
Mr. Patterson stated that this body approved the renaming of
Cherokee Road and. the Cherokee Extension to Windy Hill Road in
order to provide an increase of commerce in that area. There was
a segment of road some time ago in the six points segment, six
points out to 41 that was named Windy Hill. It is necessary now
to avoid confusion for us to rename the segment of road from six
points to the intersection of the new thoroughfare with Windy
Hill Road to rename that back to Smyrna/Roswell Road as it had
been named for a number of years, in order to avoid confusion,
both by the Post Office and Emergency Services.
Jerry Mills made a motion to approve the renaming. Bob
Betenbaugh seconded motion which carried 7-0.
(F) Bid Openings:
(1) Parks & Recreation/Playground Equipment
Childscape -
Hunter Kneppe -
Leisure World -
Dominica Rec. - a.
b.
Miracle Rec. -
Iron Mtn. Forge -
Landscapes -
delivered
no bid
$24,684.63
$24,936.00
$23,529.00
$21,669.00
$24,327.00
item by item
$20,765.00
$21,672.00
Kathy Jordan made motion to turn bids over to Committee with
authorization to accept low bid. Wade Lnenicka seconded motion
which carried 7-0.
(2) Police Department/8 Patrol Cars
Wade Ford -
total
Clancy Ford -
Airport Ford -
Beaudry Ford -
alternate bid
$11,285.00 ea.
$90,280.00
$11,017.00 ea.
$10,922.00 ea.
$11,212.80 ea.
$11,129.00
Wade Lnenicka made motion to turn bids over to Committee with
authorization to accept low bid. Bob Davis seconded which
carried 7-0.
(G) Request to solicit bids for Parks & Recreation a 1988 Ford
pickup truck.
Mr. Patterson stated that the 1978 Ford pickup that we currently
operate has high mileage and is costing us a substantial amount
to keep it in operating condition.
Bob- Betenbaugh made a motion that we request bids on. the new
pickup. Jack Shinall seconded which carried 7-0.
(H) Set date to hear appear of Recorder's Court Decision.
Mr. Patterson stated that some time ago there was an appeal filed
by an attorney representing a young lady who had plead guilty to
a case and it was determined that since she had plead guilty to
the charge that there was no appeal rights before Mayor and
Council. Her attorney now is asking that an appeal be granted
whereby this body would hear his appeal before you wherein the
Judge denied a motion to bring that matter back before the Court
and you have a letter from our Solicitor and our City Attorney
Mr. Chuck Camp is here to comment regarding that matter, but it
appears that this is not a matter to come before this body in an
appeal situation.
Bob Davis stated that a guilty plea was entered on March 12,
February 15, 1988 - Continued
1987, to a DUI charge in the City of Smyrna Recorder's Court by
the movant Kim Cochran Sorrow. Over 9 months later on
February 4, 1988, the movant petitioned the court with a motion
to correct the record or to withdraw guilty plea. On February 4,
1988, the court denied movant's motion. This is an attempt to
appeal to reverse the denial of the defendant's motion. This is
not an appeal from the original judgment on the guilty plea
accepted almost a year ago, but for a motion to the court to in
effect change the plea and therefore the judgment. It is solely
within the Recorder's discretion to accept or deny such a motion
with the Rules of the Court. Therefore section 8-17 of the code
of ordinances is not applicable and I move that the appeal be
denied. Jack Shinall seconded the motion which carried 7-0.
(I) Request to solicit bids for Public Works.
Mr. Patterson stated that there are three items that the public
works departments needs that are budgeted expenditures and we
would appreciate you allowing us to go out for bids on these
matters.
Mr. Wade Lnenick stated that these are budged items which were
enacted by the previous council in the budget: (1) The street
department needs a bid on a sledge packer (2) Water department
needs a boring machine (3) A water pump is also. needed. Wade
Lnenica made a motion that we solicit bids on these items. Jack
Shinall seconded the motion which carried 7-0.
BID AWARDS:
Jack Shinall
staff car be
and that the
follows:
recommended that the
awarded to Wade Ford
fire equipment be .
Coats & Pants
per set
bids for the fire
for the amount of
awarded to the low
Boots Hoods
per pair ea.
department
$12,505.85
bidders as
Gloves
Harry Harless
$285.
$58.99
$13.98
DNMS
Chas. McLarty
299.
64.00
18.00
NB
American -Safety
321.
NB
15.95
NB
Banner Uniforms
343.68
74.94
15.00
$26.70
Harold's Sales
351.40
64.60
19.60
DNMS
Knoxville Glove
NB
NB
NB
21.80
Kathy Jordan seconded motion. Wade Lnenicka requesated that vote
be taken on these as two separate items. Mayor Bacon agreed to
vote on these as separate items. Motion and second were
withdrawn.
Jack Shinall made a motion that the Fire Department Staff Car be
awarded to Wade Ford for a total price of $12,505.85. Kathy
Jordan seconded motion. After discussion motion carried 6-1 with
Wade Lnenicka in opposition.
Jack Shinall restated the motion on the protective clothing he
moved that the bid be awarded to the low bidder in each catagory
as indicated above. Bob Davis seconded motion which carried 7-0.
COMMERCIAL BUILDING PERMITS:
None.
CONSENT AGENDA:
Renewal of Concession Agreement - Foxcreek Golf Course.
Jim Hawkins made a motion to approve consent agenda. Bob
Betenbaugh seconded which carried 7-0.
February 15, 1988 - Continued
Jack Shinall amended motion so that the renewal of the contract
be contingent on the resolution of the City being provided
adequate access to their five acre park property, and that this
matter be resolved within the next ninety (90) days. Jim Hawkins
seconded which carried 7-0.
COUNCIL INPUT:
Bob Davis stated that Village Parkway and Spring Road has finally
received the lane markings required and visibility. is much
improved.
Wade Lnenicka wished Melinda Dameron a speedy recovery and also
addressed the issue of annexation.
Jerry Mills stated that Mike Washburn has served on the Planning
and Zoning Board for some two years and is now unable to be
reappointed to that board. Mr. R.J. McCurry who resides on
Gilbert Street he is a former Councilman from Smyrna and a former
school board member has accepted the nomination to. serve on the
planning and zoning board. Mr. Mills made a motion that Mr.
McCurry be appointed to the board.
Mayor Bacon stated that a motion to suspend the rules was
necessary.
Jerry Mills made a motion to suspend the rules to take action on
the previous conversatin. Jim Hawkins seconded motion which
carried 7-0.
Jerry Mills made a motion that Mr. R.J. McCurry be appointed to
the planning and zoning board for Ward 3. Jim Hawkins seconded
motion which carried 7-0.
Jack Shinall stated that he would defer reading the fire report
for January 1988 til next Council meeting.
With no r rrher
/business, meeting adjourned at 10:17 P.M.
A. MAX BACON, MAYOR
BOB DAVIS, WARD 1
� L
ERRYt�LLS, WARD 3
JACK SHINALL, WARD 5
BOB BETENBAUGH, WARD 7/
.MELIND DAMER , ITY CLERK
A -
ADE LNEN CK , ftRD 2
��-
DAMES M. HAWKINS, WARD 4
KATHY $ OKS JORDA� WARD 6