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04-04-1988 Regular MeetingApril 4, 1988 The regular scheduled meeting of Mayor and Council was held April 4, 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 except for Kathy Jordan. Also present was City Administrator John Patterson, City Attorney Charles E. Camp, City Clerk Melinda Dameron and representatives of the press. Mayor Bacon stated that Kathy Jordan had broken her leg and was at home recuperating. Invocation was then given by Reverend Elmer Foust, pastor of Welcome All Baptist Church, followed by the pledge to the flag. CITIZENS INPUT: Forster Puffe, a resident of Creat Trail said a petition had been presented to the City several months ago from residents in his neighborhood requesting speed humps on Creat Trail but they still have not been installed. This is a residential street and traffic sometimes exceeds 50 MPH. Also, there is a deep depression in the street in front of his home caused from erosion under the pavement and Mr. Puffe said he did not understand why these problems could not be taken care of more expeditiously. Mayor Bacon said he did not know why the speed humps have not been installed but would ask Wade Lnenicka to check into it. Also, he would have the street repaired this week. DEPARTMENT REPORTS: Departments. Reports were given from the Police, Clean City and Parks PUBLIC HEARINGS: Mayor Bacon said if there were no objections from council, he would move item (C) up on the agenda, to approve the management change for Quik Trip at 3875 South Cobb Drive. John Patterson said that Mr. Douglas Patrick Cussimanio has submitted an application to be the appointed agent and manager for Quik Trip on South Cobb Drive. This location was approved for a package license in January 1987. The police investigation was favorable and there was no opposition from the audience. Mr. Cussimanio said he has worked for Quik Trip for 7 1/2 years and has been at this location since they opened. When the store first opened, he did not meet the residence requirements but now that he does, would like to have the license transferred to his name. Mr. Cussimanio said he was familiar with the ordinance and understood that he was responsible for any violations. Wade Lnenicka made a motion the license be approved. Bob Davis seconded the motion which carried 6-0. (A) Exchange of right of way for Campbell Road. John Patterson said that some time ago, the property at the corner of Spring and Campbell Road was rezoned for the Campbell Corners Shopping Center and at that time there was a stipulation required by the City of the developer to relocate Campbell Road. For a number of months prior to the rezoning, there was an issue of safety at the existing intersection. The State Department of Transportation requested the relocation in an alignment that would put it at more of a 90 degree angle. The City required the developer of Campbell Corners to relocate the road, and bear all associated expenses. Tonight is a formalization of the process in approving the swapping of the right of way of the newly proposed Campbell Road for the old Campbell Road that will be taken out of existence. The exchange of right of way will not hurt any access to Campbell Road; it will simply provide better access. The developer was not a party to this and would actually prefer not to build the new road, but is doing so at the City's request. Conley Ingram represented Bill McKenna in opposition. Mr. Ingram said that the McKenna family originally gave the property for Campbell Road and Mr. McKenna owns the property on the south side. Mr. McKenna objects to the proposal by the City to deed the abandoned right of way to RCC Investment which would deprive him of about 500 to 600 feet of frontage on Campbell Road. In an effort to not delay the action tonight, Mr. McKenna met with RCC Investment, City staff and others involved and made a proposal in a spirit of compromise, the last of which was a meeting last Wednesday at City Hall. A copy of the proposal was mailed to Mr. Dupree, Mr. Crim and Mr. Patterson but Mr. McKenna has had no response. Mr. Ingram said they were left with no recourse but to be here tonight. Mr. Ingram said if indeed the City does own Campbell Road they would have the right to close and abandon it, provided they follow State law. The method the City is proposing to use tonight by closing the road and April 4, 1988 - continued conveying fee simple title to it in exchange for the new Campbell Road, they think, does not follow State law. If it is approved tonight, Mr. Ingram said they would have no alternative but to challenge the action they take since it would deprive Mr. McKenna of the road frontage he now enjoys. In the compromise proposal, he has asked simply that one-half of the existing Campbell Road bordering his property to the centerline be conveyed to him and is willing for Mr. Crim to have the other one-half of the road. Mr. McKenna would also want an outlet on Spring Road for access to his property. Mr. Ingram said Mr. McKenna wants to be cooperative, but is left with no recourse but to pursue his legal rights to protect the frontage he now has on Campbell Road. Jerry Mills asked Mr. Ingram about the questions he raised concerning the legality of the action tonight since the property was posted and notices of the public hearing were advertised in the newspaper. Jerry said the City's concern was for the flow of traffic from a safety standpoint. Mr. Ingram said he had a different opinion about the right of the City to convey the abandoned roadbed. Bob Davis said he has had numerous meetings with citizens over the development of the Campbell Corners shopping center and we had received a request from the State DOT to re-route the road for safety purposes and this issue, he thought, was resolved when the Campbell Corners property was rezoned one year ago. Mr. Ingram said he thought Mr. McKenna had been somewhat frustrated in his effort to get some understanding with the developer and he has tried a number of times to have meetings. All efforts have been unsafisfactory and that is why they are here tonight. John Patterson said at the meeting last week with Mr. McKenna, he made the statement that he thought the 91 feet of frontage on Spring Road for 425 feet on Campbell Road would be a fair swap. Mr. Ingram told Mr. Patterson his recollection of that meeting was not accurate; Mr. McKenna has had an appraisal done on the property and what he decided then and now, is that he is being short changed. Jack Shinall asked Mr. Ingram how his proposal would change anything in regards to access to Mr. McKenna's property. Mr. Ingram said it would give him greater access on Spring Road than he would have, so that he could at least get into his 100 acres as it now exists. Jack Shinall asked how much frontage Mr. McKenna would have if the plat as presented was approved tonight. Mr. Ingram said he would lose 500 or 600 feet of frontage on Campbell Road. John Patterson said it was 425 feet on the plat. Jack Shinall said this zoning was heard after being properly posted and advertised; all plats were available at City Hall. Council required this developer to relocate the road and a condition of the zoning was the land swap for the new right of way. There was no one here to represent Mr. McKenna to object. Mr. Ingram said his point of view is he did not believe that gave council the right to take an abandoned road bed and give it in a swap in a way that would deprive Mr. McKenna's property of road frontage it enjoyed previously, without him having the opportunity of buying the abandoned road bed or at least sharing it one-half to the centerline. After hearing what Mr. McKenna's appraiser had to say, they learned the developer is benefiting greatly in terms of private ownership. Mr. Camp asked if Mr. McKenna had ever owned the property that RCC Investment is developing. Mr. Ingram said he believed at some point, it was in the family. Mr. Camp advised Mr. Ingram that he could not advise city council to do what he was asking tonight with respect to one triangle which appears to be 77 x 44 feet that the City has nothing to do with. Mr. Ingram said he realized that; he was asked to make a compromise proposal on behalf of Mr. McKenna, both to the City and developer, and if the City accepted the proposal totally, it would also require some cooperation by RCC Investments. Bob Betenbaugh asked if Mr. McKenna felt the Campbell Road frontage was more valuable than the additional frontage he will gain on Spring Road. Mr. Ingram said he thought that was right; the loss of frontage will cause his property to depreciate considerably and he will not be fully compensated by the additional frontage he will gain on Spring Road. April 4, 1988 - continued Wade Lnenicka asked if Mr. Ingram had any documentation to support his statements concerning the decrease in valuation. Mr. Ingram said he did not have a written report; they had met with the appraiser who stated in his opinion the property would be affected in an adverse way. After further discussion, three people from the audience were sworn in by Mr. Camp to voice their opposition. Claire Ducy of Goodwood Boulevard asked about the plans for development of the outparcel which will be created by the relocation of the road. Bob Davis said they are considering a bank or service station, but nothing has been definitely approved. Deborah Lathem of Goodwood Boulevard said she was concerned because of Mr. Wallace's involvement in the development and felt that very likely, they would use the outparcel for a convenience store and objected to that. Ms. Lathem said she is already harrassed by high school students and Campbell Road needs cleaning up. A convenience store would only worsen the situation. Maureen Kirby of Campbell Road said she objected because her children attend Argyle Elementary School and felt the relocation would make the intersection more dangerous because of the traffic from the shopping center. Ms. Kirby said the residents on Campbell Road were opposed to the shopping center originally and still do not think they need it. Bob Davis said he had numerous meetings about this particular piece of property concerning the road conveyance and had very few where people were actually opposed to the shopping center at that time and did not have anyone who was opposed to re-routing Campbell Road to this particular point. The DOT recommended the relocation and requested it for safety reasons and for that reason, it was a stipulation of the zoning that the developer would re-route the road, build sidewalks, add needed extra lanes, at their expense. Since the Georgia DOT and several residents requested the exchange of right of way to improve safety conditions and RCC Investors has agreed to donate the land for construction of a new road in exchange for a portion of existing right of way, Bob Davis made a motion the exchange of right of way be approved, and the Mayor be authorized to sign all necessary documentation to accomplish this purpose in consideration of the public health, safety and welfare of our citizens. Jim Hawkins seconded the motion which carried 6-0. (C) Management change for beer, wine and liquor package license - Doc's Wines and Spirits, 2350 Spring Road. John Patterson said that Barbara Ann Brenner has made application as the owner and license holder for Doc's Wines and Spirits in Campbell Corners Shopping Center. The police investigaiton was favorable and there was no opposition. Attorney Lynn Rainey represented Mrs. Brenner and stated she and her husband have been in the restaurant business for several years as owners of Doc's on Hargrove Road. Mrs. Brenner said she has held the pouring license with the county for 6 1/2 years and there have been no violations. Mrs. Brenner said she will hire a manager to run the package store and she will be on the premises often. Bob Davis made a motion the license be approved. Wade Lnenicka seconded the motion which carried 6-0. (D) Rezoning request - 3023 Lee Street from Future Commercial to Limited Commercial. John Patterson said that James Locklear is requesting the rezoning of this parcel at the corner of Lee Street and Concord Road. Mr. Locklear is losing a number of parking spaces at his business due to the DOT widening and he is requesting that the property adjacent to him at the rear be rezoned to facilitate parking. Property to the north, east and west is Limited Commercial with Future Commercial to the South. The Planning and Zoning Board had recommended rezoning with the stipulation that the curb cut be designed in such a way that would discourage left turns onto Lee Street. There were three people who raised their hands in opposition who were sworn in along with Mr. Locklear. April 4, 1988 - continued Mr. Locklear said the DOT acquired some of his property frontage in conjunction with the widening and by doing so have made his building useless by doing away with the parking area in front. Mr. Locklear said he owns the property at 3023 Lee STreet and he would like to combine the two lots. If the zoning is approved, he will reduce the size of the existing house to 700 square feet and close off the entrance facing Lee Street to have the building entrance facing Concord Road. Also, an 8 foot fence will be erected around the property to protect the homes adjacent to it. The house would then be used for a small office for a doctor, lawyer, etc. They will use the existing curb cut on Lee Street, engineered to allow only north bound traffic. Wade Lnenicka read a letter from the DOT to the Mayor and Council asking for their consideration in granting this zoning for Mr. Locklear. Bev Sawyer of Twin Oaks Circle presented a petition with 30 names opposing the zoning. Mr. Sawyer said this is a residential area and they do not want the commercial encroachment and did not want to see an office of any type on Lee Street. After seeing the plans and configuration of the curb cuts on Lee Street, Mr. Sawyer said he would withdraw his objection. Michael Lovinggood of Lee Street said he had no problem with the zoning with the configuration of the curb cut presented tonight, but was concerned about the sale of the property in future years. Marilyn Pennington of Lee Street said she had lived in her home since 1955 and was totally opposed to the commercial zoning of any property on Lee Street. Also, Mr. Locklear does not currently have any parking in the front of his building, it is mostly on the side and back of his property. Mrs. Pennington said Lee Street is residential and she felt it should stay that way. John Patterson said this property if rezoned will require five separate variances because of the lot size, unless council wants to address these issues as a part of the rezoning tonight. Attorney Camp said if a motion was made to grant the rezoning and include in the motion that all the required variances be approved, it would be legal. After further discusison, Wade Lnenicka made a motion the zoning at 3023 Lee Street be granted from Future Commercial to Limited Commercial subject to the drawing presented tonight by Mr. Locklear, and that the variances that would be required under the Code be considered approved at this time subject to any future building that may be constructed on this site being subject to and in conformance to the Code at that time, and also conditional upon the recording of the proper plat to combine the two lots. Jerry Mills seconded the motion which carried 6-0. (E) Rezoning request - 920 Cherokee Road from RM-12 to General Commercial. John Patterson said that Don Laughran of McDonald's Corporation is requesting the rezoning of this parcel to relocate the existing McDonald's on Cherokee Road to this site. The existing drainage through the property will have to be routed in a manner to meet city specifications and the right of way necessary to facilitate the widening of Cherokee Road will have to be conveyed to the county before building permits can be issued. Other conditions must be met if approved, such as a 6 foot fence on the back of the property and sidewalk placement. The Planning and Zoning Board had recommended approval of the rezoning and there was one person in the audience in opposition. Mr. Laughran was sworn in with the opposition. Mr. Laughran said they will relocate McDonald's and rebuild the existing structure to remove any resemblance to McDonald's. The new restaurant will be 4,000 square feet with plenty of landscaping and parking. There will be access to the new location from Ward Street and Cherokee Road and it will be a much better location for them. McDonald's has been working with the Department of Transportation on the drainage problem and they are willing to do whatever is necessary to help correct it. A solid cedar fence will be placed along the rear of the property line to help reduce the volume from the speakers at the drive-thru window and trees on Cherokee Road will be maintained. Randy Cannon of 2323 Ward Street presented a letter in opposition to the rezoning and a letter from the DOT about the drainage problem, which he said April 4, 1988 - continued no one will accept the responsibility for. Mr. Cannon said his father's name was on the deed as one of the original owners of this property and there is a restrictive covenant on the deed that prohibits certain usage, including drive- in restaurants. Mr. Cannon said since there is a stipulation on the property he felt it would be a violation of his constitutional rights to have it rezoned. The noise from the speakers was a concern but that has been take care of. Mr. Cannon said his main concern is the problem with the water runoff. Also, he thought a McDonald's would hurt his business and his apartments have never had a vacancy since they have been built. Mr. Cannon said he thought it would be premature to rezone the property until someone was willing to accept responsibility for the drainage problem and correct it. In response to Mr. Cannon's statement about the covenants, Attorney Camp stated that council could not enforce any private covenants recorded on the deed. Mr. Laughran said he realized there is a problem with drainage and they have volunteered to work with the State and County to see that it is corrected. John Patterson said there is going to be a re-routing of the water down Cherokee Road which should alleviate the problem and Cobb County has agreed to make improvements and assist in this matter. Following discussion, Jack Shinall said property on Cherokee Road is, in his opinion, General Commercial and the restrictive covenant is a civil matter to be resolved between the other parties. Jack Shinall made a motion the property at 920 Cherokee Road be rezoned from RM-12 to General Commercial with the following stipulations: 1) Existing drainage through the property will have to be routed in a manner which meets City of Smyrna specifications. 2) Necessary right of way to facilitate the widening of Cherokee Road to be conveyed to the county before issuance of building permits. 3) A six foot opaque fence to be constructed along the backside of the curb, due to grade differentials, on the south and east property lines. 3) A sidewalk 5 feet in width to be required along the entire property frontage on Cherokee Road. 4) Sidewalk placement must be coordinated with the Cherokee Road widening project. 5) Any amount of money equal to the construction cost of this to be placed in escrow for construction at the time the road is widened. Jerry Mills seconded the motion which carried 6-0. (F) Variance request - side yard setback at 1191 Medlin STreet. John Patterson said that Kevin Williamson is requesting that the side yard setback be reduced from 10 feet to 5 feet for construction of a 22 x 30 garage containing approximately 660 square feet. The adjacent property owners do not object to the variance. Mr. Williamson's house contains approximately 900 square feet which means the accessory structure will exceed the maximum 25% coverage as provided by our ordinance. The letter of hardship also indicates that the garage may be used for business activities. There was no opposition. Mr. Williamson said his hobby was racing cars and he was presently storing his car at his parents house. The car needs weekly maintenance work and he would like to keep it at his home. Also, he needed a garage large enough to store his tools. Jim Hawkins asked Mr. Williamson if he had talked to his neighbors to the rear about the variance since it would affect them also. Mr. Williamson said he had not discussed it with them recently, but sometime ago he did talk to them about a garage on his property and they did not seem to be opposed. Jim Hawkins said this request tonight was actually for two variances due to the size of the building. Jim Hawkins made a motion the variance be approved but warned Mr. Williamson about conducting any business or activities from his home that would create a disturbance or cause complaints from the neighbors. Bob Davis seconded the motion which tied 3-3. Voting for the motion was Jim Hawkins, Bob Davis and Wade Lnenicka. Opposed was Jerry Mills, Jack Shinall and Bob Betenbaugh. Mayor Bacon voted in opposition to break the tie and deny the variance. April 4, 1988 - continued FORMAL BUSINESS• (A) Bid openings: Bids for a 1988 pickup truck for the Parks Department were opened, read and recorded as follows: Capital Ford $10,265.70 Beaudry Ford $ 9,749.00 Wade Ford $ 9,700.00 Jack Shinall made a motion the bids be turned over to committee with their recommendation back to full council. Wade Lnenicka seconded the motion which carried 6-0. Bids for a 4x4 pickup for Public Works were opened, read and recorded as follows: Days Chevrolet $11,775.00 Fouts Brothers $12,839.46 Wade Ford $11,019.00 Chuck Clancy Ford No bid Wade Lnenicka made a motion the bids be turned over to committee with their recommendation back to full council. Jim Hawkins seconded the motion which carried 6-0. Bids for a tractor for Public Works were opened, read and recorded as follows: Coweta Farm Supplies $12,260 Ponce DeLeon Ford Tractor $12,112 Cobb County Tractor $11,984 Wade Lnenicka made a motion the bids be turned over to the committee with a recommendation back to full council. Jack Shinall seconded the motion which carried 6-0. Bids for a fence for the new Public Works facility were opened, read and recorded as follows: Acme Fence $ 9,712.00 Fence World $ 7,975.00 Allied Fence $10,532.00 Groover Fence $12,894.60 Jerry Mills made a motion the bids be turned over to committee with a recommendation back to full council. Jack Shinall seconded the motion which carried 6-0. DTn TTJADnO. (A) Sewer rehabilitation - Phase IV. John Patterson said the actual low bid for Phase IV of the rehabilitation project was from J. S. Haren Company at $964,153.90. However, their company is based in Tennessee and they have only been in business since August 1987 and were unable to provide references for a complete project of this type that they have completed. It was the recommendation of the engineer to accept the second low bid from Trescon Corporation at $989,559.25. Based upon the recommendation from Welker & Associates, Wade Lnenicka made a motion the bid be awarded to Trescon Corporation at $989,559.25. Jack Shinall seconded the motion which carried 6-0. CONSENT AGENDA: (A) Block Hunter Street and Bank Street for April activities (B) City limit signage (C) Quit claim deeds and maintenace agreements for Atlanta Road (D) Rate schedule for Smyrna Cab (E) Approval of March minutes (F) Parade permit June 11 for Ponders Baptist Church Vacation Bible School (G) Approval to request bids for Sand Kat 725G April 4, 1988 - continued Jack Shinall made a motion the consent agenda be approved. Bob Davis seconded the motion which carried 6-0. COUNCIL INPUT: Jack Shinall reminded everyone of the choral presentation by Wills and Campbell High Schools at Cumberland Methodist Church, to benefit the Jerry Mills Fund. With no further business, meeting adjourned at 10:50 p.m. BOB BETENBAUGH, FoKhMES M. HAWKI14S, WARD. KATHY BROOKS JORDAN, WARD 6 April 7, 1988 A special called meeting of Mayor and Council was held April 7, 1988 at Smyrna City Hall. The meeting was called to order at 6:30 p.m. by presiding officer Mayor A. Max Bacon. All council members were present except for Kathy Jordan. Also present was City Administrator John Patterson, City Attorney Charles E. Camp and City Clerk Melinda Dameron. GRIEVANCE APPEAL - THOMAS S. MAHANEY John Patterson said that Thomas S. Mahaney had filed a grievance against the City due to his transfer from the Suppression division of the Fire Department to the Fire Prevention Bureau. He felt the transfer was improper and has petitioned through the proper channels to appeal the transfer, first to Chief Williams, then the Fire Committee and now to full council. Lieutenant Mahaney was sworn in with Chief Larry Williams, Captain Jim Ruffner and Lieutenant David Hancock. Lieutenant Mahaney presented a copy of Public Law 99-150 concerning discrimination against an employee with respect to wages or other terms or conditions of employment and a copy of case 73562, Ellis -Adams vs. Whitfield County Board of Education concerning the transfer of an employee as the basis of his appeal. Lt. Mahaney said he felt he had been discriminated against under the Fair Labor Standards Act and his transfer to the Bureau of Fire Prevention was retaliatory on the part of Chief Williams because of the pending law suit between some members of the Fire Department and the City. Lt. Mahaney said Chief Williams did not ask him his opinion or anything before making the transfer and he and his lawyer assumed that because of that, the action was retaliatory. His lawyer has filed a suit on this issue and advised him to go through the appeal process. Lt. Mahaney said the situation could be remedied tonight and go no further if council voted in favor of his appeal. Lt. Mahaney said he did not disagree with the transfer; Chief Williams has the authority to do that but he was saying it was done because of the law suit that he is a party to. The law suit was filed over the deduction of sleep time and meal time in the Fire Department which is against the law and they feel they are entitled to overtime pay for that. Jerry Mills asked Lt. Mahaney if he had any proof he had been discriminated against because they would need that in making a decision. Lt. Mahaney said the only thing he could go by was the Public Law 99-150 Section 8 paragraph that he had presented to council.