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10-21-1996 Regular MeetingThe regular scheduled meeting of Mayor and Council was held at Smyrna City Hall. The meeting was called to order by presiding officer Mayor A. Max Bacon at 7:30 o'clock p.m. All council members were present. Also present was City Administrator Howard Smith, City Clerk Melinda Dameron, City Attorney Charles E. Camp, Fire Chief Larry Williams, Finance Director Claudia Edgar, Assistant Public Works Director Scott Stokes, Police Chief Stan Hook, Library Director Michael Seigler, Parks and Recreation Director Steve Ciaccio, Clean and Beautiful Coordinator Ann Kirk, Personnel Director Mary Ann White, City Engineer Ken Hildebrandt, Chief Building Official Robin Broyles and representatives of the press. Invocation was given by Reverend Gary Ellison, pastor of Calvary Baptist Church, followed by the pledge to the flag. C M7F.NS INPUT: Mayor Bacon recognized the political candidates who were in attendance at the meeting - David Casey and Frank Bradford - both candidates for Representative of the 30th District. Both candidates thanked the mayor for the opportunity to speak tonight and urged the citizens to vote November 5, 1996. PUBLIC HEARINGS: (A) Alcoholic Beverage License Request - Retail Pouring of Beer, Wine and Liquor - Space Station Night Club - 3240 South Cobb Drive Mr. Smith stated this is an application for retail pouring of beer, wine and liquor and the agent will be Rosa I. Vega, who is also the owner of the business. Mayor Bacon asked Ms. Vega to step forward. Mayor Bacon stated this is a public hearing and asked if anyone was present in opposition to the granting of this license request. There was none. Ms. Vega asked that her application be withdrawn at this Councilman Hawkins told Ms. Veda that was her right but wanted to be sure she understands that since it was not withdrawn prior to Thursday, October 17, it will be withdrawn with prejudice. He further explained that means Ms. Vega can not re -apply for one year at that location for a pouring license. He then asked Ms. Vega if she wanted to withdraw the application. Ms. Vega responded that was correct. Councilman Hawkins made a motion that the Space Station Night Club application be withdrawn, at their request, and that it is further understood the withdrawal is at the request of the Space Station Night Club and they can not re -apply for one year (at this location). Councilman Cramer seconded the motion. Motion was approved 7-0. (B) Alcoholic Beverage License Request - Change of Ownership - Retail Pouring of Beer - Wing's Pub - 1024 Windy Hill Road Mr. Smith stated this application is for retail pouring of beer and Ms. Ko Kelly will be the agent for this establishment. He further stated she is the manager of the business and this is a change of ownership request. Mayor Bacon asked Ms. Kelly to come forward. Mayor Bacon stated this is a public hearing and asked if anyone was present in opposition to the granting of this variance request. There was none. Councilman Hawkins asked Ms. Kelly if this is the restaurant on Windy Hill Road, just west of Belmont Hills Shopping Center. Ms. Kelly responded that was correct. Mr. Hawkins asked Ms. Kelly if she has just recently purchased the restaurant and she responded the new owner is Mr. Eun T. Han. Mr. Hawkins asked Ms. Kelly if she has ever held an alcoholic beverage license before and Ms. Kelly responded that she had at this same location. Mr. Hawkins asked Ms. Kelly if she understood the ordinance as it pertains to alcoholic beverages and Ms. Kelly responded she did. Mr. Hawkins asked if there was a training program in place and Ms. Kelly responded there was. Councilman Hawkins stated for the record the Police Department background investigation revealed nothing that would preclude the issuance of this license to Ms. Ko Kelly. Councilman Hawkins made a motion the alcoholic beverage license request for change of ownership - retail pouring of beer at Wing's Pub, 1024 Windy Hill Road, with Ms. Ko Kelly being the license holder. Councilman Scoggins seconded the motion. Motion was approved 7-0. (C) Alcoholic Beverage License Request - Agent Change - Retail Package of Beer and Wine - Winn Dixie #1809 - 3240 South Cobb Drive Mr. Smith stated this is an application for retail package of beer and wine - agent change. He stated Mr. Scott Anthony Zanke has applied to be the agent for this establishment. He stated he is employed by Winn Dixie as the Assistant Manager and is a resident of Smyrna. October 21, 1996 meeting - continued Mayor Bacon asked Mr. Zanke to come forward. Mayor Bacon then stated this is a public hearing and asked if anyone was present in opposition to the granting of this alcoholic beverage license request. There was none. Councilman Hawkins asked Mr. Zanke how long he has been employed by Winn Dixie. Mr. Zanke responded two and a half years at this location. Mr. Hawkins asked why the change in agent is necessary. Mr. Zanke responded the store manager, Mr. Wester, has been transferred to another location. Mr. Hawkins asked about the training program in place at Winn Dixie. Mr. Zanke stated they have an indoctrination program consisting of several video tapes and quarterly follow-up training sessions. Mr. Hawkins advised Mr. Zanke that the city conducts sting operations from time to time and if Winn Dixie was found to be in violation of the alcoholic beverage ordinance, Mr. Zanke would be held responsible. Mr. Hawkins stated the Police Department investigation revealed nothing that would preclude the issuance of the license to Mr. Zanke. Mr. Hawkins made a motion the alcoholic beverage license application for an agent change at Winn Dixie #1809 at 3240 South Cobb Drive be approved with Mr. Scott Anthony Zanke as the agent. Councilman Lnenicka seconded the motion. Motion was approved 7-0. (D) Alcoholic Beverage License Request - Retail Package - Beer - Amoco Oil Company d/b/a Amoco #353 - 5160 South Cobb Drive Mr. Smith stated Mr. Lawrence Joseph Owens, Jr., will be the agent for this establishment and is also the manager of the Amoco. Mayor Bacon stated this is a public hearing and asked if anyone was present in opposition to the granting of this alcoholic beverage license request. There was none. Mr. Ken Rickert, representing Amoco, and Mr. Joe Owens, the applicant, came forward. Mr. Rickert stated the business is currently under construction. Mr. Wood asked Mr. Owens if he has ever been an agent before and Mr. Owens responded he has for an Amoco station in Fulton County. Mr. Wood asked if he was familiar with the rules and regulations of the City of Smyrna as they pertain to the holding of an alcoholic beverage license and the responsibilities associated with it. Mr. Owens responded he did. Mr. Wood advised Mr. Owens the city does periodically conduct sting operations. Mr. Wood stated the Police Department investigation revealed nothing that would preclude the issuance of this license to Mr. Owens. Councilman Wood made a motion the alcoholic beverage license request for retail package of beer at the Amoco Oil Company located at 5160 South Cobb Drive with Mr. Lawrence Joseph Owens, Jr. as the agent be approved. Councilman Cramer seconded the motion. Motion was approved 7-0. (E) Variance Request - 2815 Crestwood Road - Reduce Side Yard Setback from 10 Feet to 0 Feet Mr. Smith stated the applicant, Mr. S. R. Phillips, has requested the variance to reduce the side yard setback from 10 feet to 0 feet so that he can enlarge his carport in order to house his van. Mayor Bacon asked Mr. Phillips to come forward. Mayor Bacon stated this is a public hearing and asked if anyone was present in opposition to the granting of this variance request. There was none. Councilman Cramer asked Mr. Phillips if this structure is already in place and was an oversight that it encroached on the setback. Mr. Phillips responded that was correct. Mr. Cramer noted for the record there is a note from his neighbor that she has no objections to the encroachment. Councilman Cramer made a motion that the variance request at 2815 Crestwood Road to reduce the side yard setback from 10 feet to 0 feet be approved. Councilman Hawkins seconded the motion. Motion was approved 7-0. (F) Rezoning Request - 2155 Campbell Road - From N.S. Neighborhood Shopping to RAD- Conditional - Single Family Mr. Smith stated the developer, Pulte Homes, is requesting the rezoning to develop a subdivision and the density on the application is 5.6 units per acre. He noted the applicant is requesting a change in the density. Mayor Bacon stated this is a public hearing and asked if anyone was present in opposition to the rezoning request. Several persons indicated they were in opposition. Mayor Bacon stated they would give everyone an opportunity to speak either for or against the rezoning but asked that anyone wishing to speak should be sworn in. City Attorney Charles Camp administered the oath to several persons. Councilman Newcomb stated this request is to change the zoning on 6.92 acres on Campbell Road (known as the Aunt Fanny's Cabin) property. Mr. Newcomb stated this rezoning request was considered by the Planning and Zoning Board and they recommended the request be denied. This issue came before the Mayor and Council at the October 7, 1996, meeting and at the request of the applicant was tabled to this meeting. Mr. Newcomb stated a neighborhood meeting was held October 16. He further stated the current zoning is N.S. Neighborhood Shopping which could include planned shopping development, automobile service stations, nurseries, kindergartens, etc. Mr. Newcomb stated the rezoning requested by the applicant is for residential - attached/detached conditional. Mr. Newcomb stated the original proposal requested they be allowed to build 35 units with a density of 5.03; minimum lot square footage was 5,000 square feet, lot width was 50, 0 lot setback line and house square footage was 1400; distance between the houses would have been 10 feet. He stated the proposal brought to the neighborhood meeting last week went to 33 units; density - 4.77; minimum lot square footage -5500; lot width 55; distance between buildings 15 feet with the side yard setback remaining at 0 - which means that the applicant might put a house on the property line but then would make up for it by placing the next house over 15 feet so there is a distance between the two houses of 15 feet. He stated the square footage was 1600 square feet. He stated the proposal that was sent to the City on Friday by Mr. Puvogel was for 28 units with a density of 4.05, minimum lot square footage of 6500; lot width of 60; distance between buildings of 15 feet with a five foot side yard setback, the house square footage of 1700. He stated he had received a call today from Mr. Puvogel stating he was going to present a different proposal tonight with an increased square footage. He then asked Mr. Puvogel to come forward. Mr. Doug Puvogel and Frank Johnson came forward. He stated he had presented the clerk with a reservation of their constitutional rights on behalf of the applicant and the owner. Mr. Puvogel stated they have received a lot of input from the council and the citizens and as a result have made several substantial changes to the original application. Mr. Puvogel stated the two primary issues that came out during all the meetings and the feedback they received related to impact of the proposal to the City and its infrastructure and secondly to the compatibility of the proposal to the neighborhood. He stated in terms of impact, the property is now currently zoned neighborhood shopping and there are a number of very intense, commercial uses that are currently allowed on the property that would have substantial impact on traffic, character of Campbell Road, and they feel their proposal is appropriate for the neighborhood. He stated he feels his proposal would actually generate less traffic than the potential commercial uses for the property. He stated in terms of impact on the schools, the reduction from 35 to 28 units would have a negligible impact on the schools. He stated he did not feel the proposed community would attract a lot of families. He stated the property is surrounded by high density residential homes as well as schools - Campbell High School and Argyle Elementary School. He stated they are proposing the same type or similar road configuration, single entrance off Campbell Road to a cul-de-sac; minimize the number of lots that back up to Campbell Road and is essentially the same type proposal in terms of street layout with a reduction of the number of lots from 35 to 28 and the same setbacks. Mr. Puvogel stated one of the significant changes from the original changes was going to a five-foot minimum side yard setback as opposed to a 0 side yard setback and going to less density they were able to get larger lots with 15 feet between structures which is typical for zoning classifications in the city. He stated they had originally proposed 1400 square foot homes and that was revised to 1600 square feet but now has been revised to a minimum of 2000 square feet of heated and cooled area. Mr. Hawkins asked what the typical selling price of these homes would be. Mr. Puvogel said at 1600 square feet the base house price would be in the upper $140,000's and candidly they would have to design some homes with the 2000 square foot to fit on the lot but feels the price would be substantially higher but possibly in the $150,000's and higher range. The following persons spoke in opposition to the rezoning request: Tom Hutchinson, 2374 Goodwood Boulevard; Kim Ewing, 2334 Goodwood Boulevard; Bob Rider, 2327 Goodwood Boulevard; Doris Boggs, Goodwood Boulevard; Maureen Kirby, 3327 Campbell Road; Janice Wise, 2127 Argyle Drive; Debra Murray, 3120 Ann Road; Cynza Sanchez-Urrea, 3360 Ann Road; Linda Gordon, 3305 Campbell Road, citing devaluation of their property values, and need to maintain historical integrity of this site.. Mr. Frank Johnson stated this property has been in the market for some time and they have worked very diligently to do something with it that would be constructive to the City of Smyrna. He further stated this development came along and we presented it to the owners of the property and they felt it was something that would be beneficial to the City of Smyrna other than what is sitting there now. He further stated if the city is interested in the property the owners would be more than happy to discuss that. He stated he felt the issue is the zoning of the property. He stated the owners also has rights in the city and the elected officials represent his rights because they pay taxes in the city. He stated on their behalf he would like to see something done to make this thing work. He stated he was not sure if the issue could be worked out but something is going to be done with the property. Mayor Bacon stated fortunately or for whatever reason the city has not even considered the use of this property. He stated when Mr. Johnson purchased the property, they made a lot of improvements to Aunt Fanny's Cabin and the last thing anyone on council wanted to see was for that restaurant and old historical site not to stay there. Mayor Bacon said the first mention of the city acquiring the property was two weeks ago and that has not been discussed as a group or as individuals and the only issue as far as he is concerned is whether this body should rezone this property from N.S. to RAD request being asked for tonight. Mr. Puvogel stated perhaps his presentation and interpretation of the proposal has been negative rather than in a positive manner but he felt they have come a long way since their original proposal. He stated he did not feel the $140,000 - $150,000 price range they were proposing characterized low-income housing but apparently there is sentiment among the audience that it is low-income housing. He stated they felt the proposed four units per acre was appropriate with the neighborhood. Councilman Newcomb referenced the zoning review standards in Section 1508 of the City of Smyrna ordinances which the Mayor and Council are required to consider in their determination and stated this request did not permit a use that is suitable in view of the use and development of adjacent and nearby property, nor did it meet the other standards outlined in that section. Councilman Newcomb made a motion to deny the request of the applicant at 2155 Campbell Road to change from N.S. to RAD Conditional, Single Family, as submitted. Councilman Scoggins seconded the motion. Councilman Hawkins said he would like to ask the City Attorney if there is a difference in RAD Standard/Straight and RAD Conditional. Mr. Camp responded the conditional part is as submitted according to plan. Motion to deny the rezoning request was approved 7-0. (G) Request to Change Future Land Use Plan at 2155 Campbell Road From Neighborhood Activity Center to Medium Density Residential Councilman Newcomb stated no action is required since the rezoning for this property was denied. (H) Ordinance Amendment - Section 402.19.1 - Drug Store Definition Mr. Smith stated there has been some question about defining what a drug store is and then read the proposed clarification of the term "drug store." Mr. Smith stated, "Drug Store - An establishment which is licensed by the State of Georgia and the United States Government to dispense drugs by prescription for human medical purposes or received the same as an apothecary or pharmacy. Not a variety store which sells, at retail, a wide range of products." Mayor Bacon stated this is a public hearing and asked if anyone was present who would like to make any public comment regarding this issue. He further stated this is the second reading of the proposed amendment and the city will be taking action tonight on this issue. Councilman Wood stated this is the second hearing and it was duly advertised. Mr. Wood stated the city had residents come to us and ask about drug stores and where they were defined in the Zoning Ordinance and they were told the term drug store was not defined in the ordinance and were a permitted use under the O&I zoning category. He further stated the proposed amendment simply defines the drug store as read by Mr. Smith. Mayor Bacon recognized Jim Nay, Suite 600, 100 Galleria Parkway, Atlanta. Mr. Nay stated he is here tonight representing CK Atlanta Retail, L.L.C. and mentioned his company is on the agenda for approval of a building permit (Item 5-B). He stated he is not here to object to the amendment that is being proposed but his concern grows out of the fact that this proposed ordinance directly affects the drug store they are seeking to build, where they have a building permit, where they are vested under the City's ordinance, and that gives them great concern and consternation and they are seeking the city's assurance that this drug store amendment does not affect their drug store for which they already have a number of permits and have already taken a number of steps to vest their positions. He stated he did not want to get into, but would, their concerns, what they have done, where they are and the great dilemma they find themselves in now and in particularly what a terrible dilemma it would put them in if they get to a juncture where the new drug store definition is something that would be made applicable to them. He said if he could get some reasonable assurance that the new drug store definition as he has heard it described and understands it to be described does not apply to them and he could probably save a good deal of time and not object if those assurances could be given. Mayor Bacon stated that according to what the attorneys have told the city, the adoption of this ordinance will have absolutely nothing to do with the issuance of their building permit tonight. Mr. Nay stated then in essence they can build their drug store under the generic term rather than the more limited term he has heard this evening. Mr. Camp stated if they are vested, then they are vested. Mr. Nay asked if the city attorney was telling him they are vested and Mr. Camp responded he was not saying that. Mr. Camp stated he could not make a determination on whether or not he was vested as he did not have facts before him. Mr. Camp stated whether or not Mr. Nay was vested had nothing to do with the definition of the drug store. Mr. Camp stated he was told Mr. Nay would not be affected but was not making a judgement decision on that. Mayor Bacon again stated he has been told by the city's attorneys that the adoption of the definition of the drug store ordinance has absolutely nothing to do with the two drug stores that have been in an on -going process, have gone through the building permit process, both have letters from the city stating that drug stores could be built in that zoning category. Mr. Nay stated they clearly have letters from the city and clearly have made application with the city and clearly comply with the statutory and the legal requirements. Mr. Nay stated they will be available to answer any questions when their building permit is discussed. Councilman Wood made a motion that the adoption of the amendment to Section 402.19.1 of the Smyrna Code of Ordinances pertaining to zoning be approved. Councilman Cramer seconded the motion. Motion was approved 7-0. (A) Validate Petition to Annex Property in Land Lots 623 and 674 - Cooper Lake Drive Mr. Smith stated the applicant, Jason A. Lewis, has petitioned the City to annex his property located in Land Lots 623 and 674 of the 17th District, 2nd Section of Cobb County, Georgia and the property is contiguous to the property at Cooper Lake Drive. He further stated if the property is annexed it will bring 10.738 acres into the city as part of Ward 6. Councilman Lnenicka stated Mr. Lewis has purchased this property on Cooper Lake Drive immediately south of Old Vinings Mill Subdivision and adjacent to it on that side. He stated Mr. Lewis is proposing to do a residential development on that property. Mr. Lnenicka stated that proposal will be heard on November 4 and the annexation would be effective November 18, 1996. Mr. Lnenicka reminded everyone the rezoning request would be heard on November 4. Councilman Lnenicka made a motion that the petition to annex 10.738 acres in Land Lot 623 and 674, 17th District, 2nd Section of Cobb County, Georgia, be validated with a public hearing date of November 18, 1996. Councilman Wood seconded the motion. Motion was approved 7-0. (B) Ordinance Amendment - Utility Facilities Beautification and Coordination Mayor Bacon stated this item was tabled from the October 7 meeting and asked Councilman Hawkins to address the issue. Councilman Hawkins stated there were concerns at the time the ordinance amendment was presented at the last council meeting that the businesses that were already in the city were not grand fathered. He stated the Telecommunications Committee has met with the attorneys and they have made changes to the effect that the companies that are currently here and lawfully licensed to be here. He stated there were some companies using the rights -of -way that were not permitted and this ordinance does not protect them but does grand father those companies that are using the rights -of -way that are above ground. He further stated this ordinance, in the ADD1 and ADD2 districts, and the new districts that were authorized at the last meeting, UDD1 and UDD2, all new communications companies coming in wanting to run cables will have to do so underground, will have to be permitted and the ordinance will be available in the City Clerk's office. Councilman Hawkins made a motion that the ordinance amendment Utility Facilities Beautification and Coordination be approved. Councilman Scoggins seconded the motion. Motion was approved 7-0. (C) Opening (Bid 96020) - Dump Truck (Rugby Dump body) For Public Works Department Mayor Bacon asked if there were any bids in the audience. There were none. There was only one bid returned. The bid was opened and read as follows: Fouts Brothers $45,999.00 Councilman Wood made a motion the bid be turned over to the Public Works Committee for their review with a recommendation to be brought back before Council at the next meeting. Councilman Cramer seconded the motion. Motion was approved 7-0. (D) Bid Opening (Bid 96021) - Dump Truck (Warren Body Model) For Public Works Department Mayor Bacon asked if there were any bids in the audience. There were none. There was only one bid returned. The bid was opened and read as follows: Fouts Brothers $46,723.00 Councilman Cramer made a motion the bid be turned over to the Public Works Committee for their review with a recommendation to be brought back before Council at the next meeting. Councilman Hawkins seconded the motion. Motion was approved 7-0. (A) Joe N. Guy Company - Permit for 10,908 Square Foot Drug Store - Eckerd's - 2393 Spring Road Mayor Bacon recognized Bob Kern, 8150 Roswell Road, with United Retail the developer of the property. Mr. Kern stated this building request is for a 10,908 square foot drug store. He stated all access will be from Park Drive and Farmstead Road. He stated they have met with Ms. Capilouto and Mr. Newcomb and discussed the beautification of Spring Road. He stated his company will be the first business to comply with that new UDD2 ordinance. He stated their landscaping plans include a variety of trees (Red Sunset Maples, tree form Wax Leaf Lugustrum, jonquils, day lilies, Coresia Holly, etc.) and totals approximately $40,000. He stated he felt it was in keeping with the plans for Spring Road. Councilman Newcomb stated he was pleased with the landscaping plans as presented. Councilwoman Capilouto stated there were some concerns about the construction close to the Farmstead property line. She then asked if when the detention pond is in place, the planting of some buffers take place to prevent the row of units from facing the construction. Mr. Kern stated they were asked to do two things - one, to keep all construction traffic off Farmstead Road which they will do and secondly, once the detention is outlined, they will install the eight -foot fence and do the landscaping behind it at the beginning of construction. Councilwoman Capilouto asked if there was any possibility any of the larger trees could be saved and Mr. Kern stated he did not think many of the trees could be saved and indicated perhaps only one or two could be saved. Councilman Lnenicka asked about the hours of operation and Mr. Kern responded from 9 a.m. to 9 p.m. seven days a week. He then asked about the dumpster location and asked that the dumpster is not picked up at too early a time. Mayor Bacon stated the city controls the time of collection for commercial dumpsters through Waste Management. Councilwoman Capilouto asked about the drive -through window. Mr. Kern responded there will be a drive - through window and they have removed all the word signage off the building, there is no signage on the building that will say anything other than Eckerd's. Mr. Hutch Moore, representing the Farmstead Homeowner's Association, came forward. He stated the Homeowner's Association President Melanie Pritchett was ill and could not be here tonight. He stated he represents the Association in a number of matters. He stated they are appreciative of Mr. Kern's efforts to be responsive and cooperative to the concerns of the homeowners. He further stated the homeowners are supportive of the development however they are concerned with the impact that the use of this property will have on the adjacent residential neighborhood - Farmstead condominiums. He stated they object to the curb cuts onto Farmstead Road and feels it will infringe on their ability to enhance and continue to have a neighborhood and residential character and feel of the Farmstead condominiums. He stated Farmstead Road is a private road that has not been dedicated to the city or county and that has been maintained previously by the condominium association. He stated they have a non-exclusive but perpetual easement that will travel with that property so when that property was sold to United Retail or whoever, that easement will follow it, and will continue throughout its life. He stated the condominium association will have the right to the use of that easement. He questioned how the two curb cuts would impact the Farmstead Condominiums. He stated he felt it would interfere with their easement rights. He stated under Georgia law, since they do have a perpetual easement, that easement will follow with the property and it also entitles them to non-interference of their easement rights and to the extent that any other use by the property owner even to the extent they use the condominiums' easement and it restricts the condominiums ability to use it to the full enjoyment of their own benefit then such a use is prohibitive. He stated that is where they take issue with it. He then asked why two curb cuts were necessary on Farmstead Road when there are two already on Park Drive and Park Drive has a traffic light. He stated the residents of Falling Water and customers of Eckerds will cause traffic to back up on Park Drive and those persons will use Eckerd's as a cut through and use Farmstead Road. Mayor Bacon stated it is unusual to have this much discussion concerning a commercial building permit. He further stated that usually the building permits are only brought before the mayor and council when it reaches a certain dollar amount. Mayor Bacon stated Mr. Moore's questions should have been addressed earlier and the approval of this building permit is a formality only and does not allow for public comment. Mr. Camp stated if Farmstead Road is a private road, then the city would have no control over it. Mr. Camp further stated that having only two curb cuts onto that road would actually be doing the homeowners a favor because otherwise there could be unlimited curb cuts and would be completely open. Mr. Camp stated this is a matter between two private parties and should not involve the city. Councilman Newcomb asked who actually owns the road and Mr. Kern responded Eckerd's owns the road and he did not feel it was an issue for the City. He stated Eckerd is going to give Farmstead their easement over the road and have closed the points of egress on Spring Road and they need the four curb cuts. Mr. Moore stated the homeowners would like to prevent additional access and cut through traffic from Park Drive onto Farmstead Road and have proposed a gate being installed and operated at the discretion of Eckerd. Mr. Camp stated he could not legally advise the city to deny a building permit because of an objection to a curb cut on a private road. He further stated if Farmstead feels such curb cuts would interfere with their rights to use their easement, Farmstead should sue Eckerd. Mr. Moore stated he was concerned about the determination as to when the road (Farmstead Road) might need resurfacing and who would be financially responsible for that. Mayor Bacon asked Mr. Camp if the city could be involved in placing any stipulations on the granting of this building permit. Mr. Camp responded the city should not become involved and just address the issue of the building permit. Mr. Moore stated he would like to preserve the rights of the homeowner's association to challenge the action of United Retail's rights as he did not think they were vested. Councilwoman Capilouto stated she was sympathetic to Farmstead as Farmstead Road is the only entrance to Farmstead Condominiums. Mr. Moore stated he would like to present for the record a letter outlining Farmstead's position on this matter. Councilwoman Capilouto made a motion the building permit for Eckerd Drug Store at 2393 Spring Road be approved. Councilman Newcomb seconded the motion. Motion was approved 6-1 with Councilman Pete Wood opposed. (B) C. K. Atlanta Retail, L.L.C., - Permit for 11,208 Square Foot Drug Store - 485 Concord Road Mayor Bacon recognized Jim Nay, Suite 600, 100 Galleria Parkway, Atlanta. Mr. Nay stated he was present to answer any questions pertaining to their development. He stated the building permit is for an approximate 11,000 square foot facility built on a 1.6 acre site. Councilman Wood asked Mr. Nay if this is for a Rite Aid drug store at 485 Concord Road. Mr. Nay responded that was correct. Mr. Wood stated this is part of a parcel that has been extremely controversial for at least 25 years and this particular portion is a part of four acres that is located at Hurt Road and Concord Road. Mr. Wood asked Mr. Nay if his client, Childress Klein, had purchased about 1.6 acres of this approximate four acre tract. Mr. Nay responded that was correct. Mr. Wood then asked if there would be some 2.3 and 2.5 acres remaining that are zoned O&I that is actually between the property acquired and the housing development called Concord Glen. Mr. Nay responded that was correct. Mr. Wood stated there has been recent information in the newspaper that indicates Rite Aid Corporation is moving out of Georgia and South Carolina and some of the other states in the southeast and that they plan to close their stores. Mr. Wood asked if this was correct. Mr. Nay responded Rite Aid does not intend to close their stores and that part of what has been said is incorrect. He further stated they do intend to stop building new stores. He stated Rite Aid does plan to build all stores for which they already have arrangements for and leases for and they are in that circumstance. He stated they have bought the property and already entered into an enforceable lease with them and he presented a letter to the council stating Rite Aid has fifty-five other drug stores in Georgia and that they intend to honor and build all the drug stores they have under contract and go forward and utilize them. Mr. Nay stated he has an enforceable lease that if Rite Aid does not build that drug store he would be in a great deal of trouble as he is legally bound to build that store and they are legally bound to accept that store. He presented the letter to the City Clerk. Mr. Wood asked about the hours of operation proposed for this drug store. Mr. Harper responded he did not have any information pertaining to the hours of operation on that store. Mr. Nay stated they are the owners of the property and will be leasing it to Rite Aid and do not control everything they will do on the site. Mr. Wood asked City Engineer Ken Hildebrandt to address the curb cuts proposed for the property. Mr. Hildebrandt stated the plans indicate two curb cuts - one on Hurt Road and one on Concord Road approximately 400 or so feet from the intersection. Mr. Wood asked if Concord Road was in the city or county. Mr. Hildebrandt responded the Concord Road side is in the city but the Hurt Road side is in the county and the county has jurisdiction on that side. Mr. Wood asked Mr. Hildebrandt if he saw any site distance problems from the curb cut on Concord Road. Mr. Hildebrandt responded he did not as the curb cut is about 400 feet west of the intersection and there is ample sight distance. Councilman Lnenicka asked Mr. Hildebrandt if any accel/decel lanes were being considered. Mr. Hildebrandt stated the city is requiring an accel/decel lane on Concord Road. Mr. Lnenicka asked if there was any concern about left -turning traffic on either side and Mr. Hildebrandt stated there was a concern as there is a lot of traffic on Concord Road but did not feel it was overly unsafe. Mr. Lnenicka asked if he was planning to recommend a right in/right out at that location. Mr. Hildebrandt responded he was not. Mayor Bacon asked if C.K. Atlanta Retail, L.L.C. has met all the requirements asked of them. Mr. Hildebrandt responded they have. Mr. Hildebrandt stated his only question was pertaining to the curb cut on Hurt Road and he felt that should be handled through Cobb County. Mr. Wood asked Mr. Camp to present his legal opinion concerning this proposed business. Mr. Camp stated Mr. Nay had pointed out in a letter the case of W. M. M. Properties v. Cobb County is controlling. He stated they are entitled to rely upon those actions and get the building permits. He further stated Section D of the opinion written by Justice Gregory in that case says "that where October 21, 1996 meeting - continued the land owner makes substantial change by expenditures and relies upon probability of issuance of building permit, based on existing zoning ordinance, he acquires vested rights and is entitled to have the permit issued." Mr. Camp stated this is a proper permit with all the curb cuts, etc. in place. Mr. Camp stated he makes no determination as to the quality of their application as he has not seen it and does not make any determination as to whether they have met all the other criteria, but did state they are entitled to building permit on this use if they have fulfilled all those obligations. Mr. Wood then asked Mr. Camp if in his opinion they were legally entitled to that building permit and they have met the criteria. Mr. Camp said if they have met the criteria, they are. Councilman Lnenicka made a motion that the building permit for C.K. Atlanta Retail, L.L.C. at 485 Concord Road be approved. Councilman Cramer seconded the motion. Motion was approved 6-1 with Mr. Wood opposed. BID AWARDS: (A) Bid Award - Garbage Truck Body Councilman Scoggins made a motion that the bid award for a garbage truck body be awarded to Consolidated Disposal Systems for $37,674.00 the low bidder meeting specifications. Councilman Cramer seconded the motion. Motion was approved 7-0. (B) Bid Award - Copier for Parks and Recreation Department and Human Resources Department Councilman Newcomb stated these copiers are for the Parks and Recreation and Human Resources Department. He stated the City Administrator, through independent price checking, has determined that these are the best bids received and recommended the bid be awarded to Minolta for a price of $8,315.00 each (total of $16,630) for the copiers. Councilman Lnenicka seconded the motion. Motion was approved 7-0. CONSENT ACTF.NDA: (A) Approval of October 7, 1996, Minutes (B) Approval to Close Jane Court (Argyle Estates) Saturday - October 26 from 4 - 8 p.m. (C) Budget Adjustment - Transfer Funds from Contingency for Lighting at Community Center and Copier for Human Resources (D) Approval to Install Speed Humps on Gordon Circle (E) Approval to Request Bids - Replace Sewer Main from Existing Man Hole at Intersection of Reed Street and Church Street (F) Approval to Request Bids - Replace Water Service Lines for Afton Downs and Falling Waters Subdivisions (G) Request for Bids - Two Truck Mounted Snow Blades (Scrapers); One Truck Mounted Sand Thrower; Two Natural Gas Generators (Belmont Lift Station and West Cooper Lake Lift Station) Councilman Scoggins made a motion the consent agenda be approved. Councilman Hawkins seconded the motion. Motion was approved 7-0. COMMITTEE REPORTS - Mayor Bacon stated he was glad to see Larry Brissey tonight. Mayor Bacon then expressed his appreciation to Ann Kirk for her efforts in the dedication ceremony in honor of Ray Curtis this past Sunday. Mayor Bacon recognized David Casey and Reverend Gary Ellison who remained for the entire meeting. Councilwoman Capilouto stated there was no report from the Library this evening. Councilwoman Capilouto asked Steve Ciaccio for a report on the Parks and Recreation Department. Mr. Ciaccio reported the Senior Fall Barn Dance will be Saturday, October 26, from 8 - 10 p.m. He also reported October 26 and 27 the Jonquil Fall Arts and Craft Festival will take place on the Village Green from 10 a.m. to 6 p.m. Mr. Ciaccio reported that on Thursday, October 31, the Halloween Carnival will be at the Community Center. Mr. Ciaccio urged everyone to vote on November 5, 1996, and stated there is a $30 million Parks Bond Referendum and asked that everyone vote their convictions. Councilman Newcomb welcomed Robin Broyles, the new Chief Building Official. Councilman Newcomb asked Mary Ann White for a report on the Human Resources Department. Ms. White announced there are two job openings - one for Building Inspector and one for a Library Technical Services Coordinator - which are open until the end of October. Councilman Scoggins asked Ann Kirk for a report on Smyrna Clean and Beautiful. Ms. Kirk expressed her appreciation to the Parks and Recreation Department for their assistance at the Ray Curtis memorial service on Sunday. Ms. Kirk mentioned the schedule for the Public Works Department as far as yard waste is concerned and noted that bagged leaves will be picked up every Wednesday and the schedule for vacuuming the leaves is in a letter that was mailed to all citizens. Councilman Scoggins noted there was no report from Public Works this evening. Councilman Hawkins stated there is nothing to report from Court Services. Councilman Hawkins informed the citizens of Hughes Street and Fleming Street area that he had contacted the Cobb County D.O.T. today and they are working on scheduling a public meeting to see the proposed widening plan for Fleming Street. He also informed the citizens this is a county project and not a city project. Councilman Cramer stated there is no report from the Fire Department this evening. Mr. Cramer announced the city will allow outdoor burning on Saturdays in the month of November - from 10 a.m. to 6:00 p.m. Councilman Lnenicka stated on the consent agenda the approval to close Jane Court on October 26 from 4 - 8 p.m. is for an Argyle Estates block party. He further stated on November 4, the next council meeting, the rezoning request on Creatwood Farm will be heard. He urged everyone interested in that rezoning issue to please either come to the meeting or to call him if they had any questions. Councilman Lnenicka asked Chief Hook for a report. Chief Hook reported a couple of interesting arrests have been made in the last couple of months. He stated Ricky Lee, working the burglary of new homes being built in the City, apprehended a suspect for four of the burglaries. The suspect was in possession of a lot of stolen property and will also be charged by Alpharetta, Peachtree City and two or three other jurisdictions. He then reported that on October 1 two felonies were reported. A person was cashing stolen checks on Hargrove Road and was apprehended by Officers Rooney and Sparks. He stated there was also a hold up on South Cobb Drive near I-285. The suspect was arrested by Officers Burkhart, Bennett and Conti. He then reported on the stats for the first nine months of the year. Councilman Wood stated there is no report from the Finance Department. Mr. Wood reminded everyone that property taxes are due by October 28. Ms. Dameron reported sample ballots are available at City Hall and applications for absentee ballots are also available. Mr. Smith stated the Fire Station on Spring Road will have an outside awning for the election day. With no further business, the meeting adjourned at 11:00 p.m. A. MAX BACON, MAYOR pa CHARLENE CAPILOUTO, WARD 1 BILL S OGGINS, W 3 X//l � CRAMER, WARD 5 -A" 4�� CHARLES PETE WOOD, WARD 7 i MELINDA DAMERON, CITY CLERK RON NEWCOMB, WARD 2