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04-02-1979 Regular MeetingApril 2, 1979 The regular scheduled meeting of Mayor and Council was held pursuant to the Charter at City Hall, Smyrna, Georgia on April 2, 1979. Presiding officer Mayor Frank Johnson called the meeting to order at 7:30 o'clock p.m. All Council members were present. Also present was City Attorney Charles Camp, City Clerk Willouise Spivey, Finance Director Gunter Newsom, Police Chief R. E. Little, Fire Chief Don Atkinson, Recreation Superintendent Bill Johnston, Public Works Director J. E. David, Civil Defense Director Jim Farley, Inspector Len Williams and representatives of the press. Invocation was given by Councilman Elbert Coalson, followed by the pledge to the flag. Citizens Reports: C. 0. Canada expressed his continued interest in the City, and particularly King Springs Park. He stated that during his administration tentative plans had been made to sidewalk King Springs Road, from Concord to the park and asked what progress had been made toward this construction. Jerry Mills stated that estimates had been received for this sidewalk in the amount of approximately $25,000, but this road is partially in the county and plans would have to be coordinated with the county. Jim Tolleson stated that they had already searched the minutes but could not find where previous approval had been given for this work. Continuation of Annexation Hearing - Ridge Road & South Cobb Drive: Mayor Johnson stated he had been in communication with Mr. Potts who was one of the persons signing the original application of annexation. Later, Mr. Potts gave a letter withdrawing his name from that request. There was some question as to whether or not that might have been done prematurely. At this time, and with the latest communication with Mr. Potts, he says that as long as the neighbors at the intersection of Ridge Road and South Cobb Drive are satisfied by virtue of a covenant being signed for an additional 15 years protecting that property then he would give consideration for replacing his name on the original petition. That is where we stand now and at this time I understand that the petition is being circulated in the area of the intersection of Ridge and South Cobb Drive. All the principal people who might be involved, I believe, have signed that paper and the last one who has agreed to sign after every- one else in that area is Mr. Don Hall who says he will sign it, after everyone else has. If that is done, I think Mr. Olin who is another party will be in town I under- stand by the middle of the week, and it's very likely that Mr. Olin might reinstate his name also. If that develops, then we do intend to proceed with our annexation efforts for that piece of property. We actually have nothing to do here tonight than to continue it until such time as we might be able to consummate the covenant. Attorney Bob Smith: I am not aware of what Mr. Potts has said in regard to the conditions on the covenant, but it was my understanding that originally the Mayor had indicated there were no conditions on the covenant. I think it's pretty "iffy" right now whether the covenant will protect the property under Georgia law for the addition of 15 years, and I can assure you that the people aren't going around sign- ing up these covenants so that Mr. Potts will come back on the annexation petition - it's just the opposite. It's our understanding that he wants the protection of the covenant. Mayor Johnson: Mr. Smith, I would like to respond to that. It is my understanding that you drew the covenant and Mr. Hall had indicated that in all good faith he did not intend to put anything at that location other than a residence and:to,,shgow g6od.:fairh that he would be willing to sign the covenant also. The City does not have a thing in the world to do with the covenant. I talked to one of the people in that neigh- borhood yesterday and she wanted to know if I. or anyone on the Council wanted to take the paper to Mr. Hall and get him to sign it and I said "No mam, you take it to him - he's your neighbor. The City doesn't have anything at all to do with that covenant." You drew the paper, Mr. Smith, so why is it not any good? Attorney Smith: I explained that to the people; because there is already a covenant on it. The City Attorney, as I understand it, drew another continuation of the pro- tective covenant and sent it out to Mrs. Beavers and Mr. LeFevre. As a matter of fact, if my information is correct, Mr. Newsom told Mrs. Beavers that he would get Mr. Hall's signature but I am not here to argue that point. I understand that the City has no legal duty or involvement in the covenant but I don't think anybody who has had anything to do with this will question that the City has been involved - I can't see any other reason for Mr. Hall signing the covenant. My point is that as of tonight, which is well past the 45 days for a hearing, you don't have the requisite number and I can assure you that the people who were given the covenant are not going on the basis that when they complete the covenant that they fixed it - to use that word - so that Mr. Potts will come back on and I don't believe that is Mr. Potts' understanding either. We urge you to dismiss this and if you want to annex the property to start over in the proper manner, because it's been well past the time, you don't have the requisite registered voters and we submit that the matter (Continuation of April 2, 1979 Meeting) is dead under the law and as I said before, I don't mind coming back out here, I'm enjoying the ride. At some point it's going to have to be decided in the courts if it goes on the way it's going and we submit that there is just so many things gone on with regard to this annexation that if you think you can do it and you want it, you ought to start over. We submit that this one is dead and we urge that you kill it tonight. Mayor Johnson: Mr. Smith, I think I would respond to that, that the effort is certainly not dead and it's not dead from the legal point of view because the only reason that we deferred it to begin with is because circumstances prevailed that indicated that Mr. Potts was maybe not quite as ready to release his letter as was so stated. Mr. Potts has indicated that if everything can get worked out, which was his original statement, that he did not disagree with the City's intent to move south of Ridge Road and wouldn't do anything to prevent the City from moving south, but at the same time he has compassion for his neighbors, as does the City of Smyrna, and he wanted to be as confident as he could be that everything would be worked out from the stand- point of not allowing commercial growth to be at the corner of Ridge and South Cobb, that being his primary concern. We have continued to act in a legal manner by having it on the agenda and continuing it under a very legal form of Roberds Rules of Order and we intend to do that again until next Council meeting. Hopefully, at that time, all persons involved with the annexation and the signing of the covenant would be protected as they might see fit by signing the covenant. Attorney Smith: Mr. Potts has not resigned the application at this time, is that right? Mayor Johnson: I do not have a paper that he has given me at this time. Attorney Smith: And the covenant would not in any way affect the property south of where Mr. LeFevre lives, the 18 acres. Mayor Johnson: No. Attorney Smith: Just those people within the subdivision who have signed the covenant. Mayor Johnson: That is correct. Only the people who have signed it. I believe there is 22 years left on the original covenant. Attorney Camp: Mr. Mayor, may I make a statement of information for your benefit. I think you have stated that the City is not getting involved in the covenant and I think Mr. Smith is trying to get you involved in it. As legal counsel for the City, I would advise you to drop the issue of what the covenant will do. He drew it and he knows better than anybody in the world what is in it. I have not seen it and I don't know. Attorney Smith: I understand that, and I don't mean to get into an argument over the covenant. The Mayor said if the covenant worked out, Mr. Potts would come back on so it seems to me the covenant is pretty much an integral part of what Mr. Potts does. Attorney Camp: My point, Mr. Mayor is that we have not heard from Mr. Potts personally at this Council since the initial application was filed. All we have heard is some- one else delivering a report of him withdrawing. I think we need to not discuss that until Mr. Potts is present. Jerry Mills made a motion that the hearing be continued until the next regular Council meeting on April 16th. Bill Darby seconded and the motion carried 7-0. Decision of Recorder's Court - Ralph Cowden, Docket #36629 - Mayor Johnson stated that Mr. Ralph Cowden had been found guilty in Recorder's Court of a traffic light violation (red signal) on February 25, 1979. He was fined $25.00 and had requested in writing to appeal that decision before Mayor and Council. Mr. Cowden and arresting officer Rick Leger were sworn by Attorney Charles Camp. Mr. Cowden stated that he was stopped and given a citation for running the red light at the intersection of King and Concord Road. He said the last time he looked at the traffic light it was orange, and he continued through the intersection. This light holds orange for four seconds, so he had four seconds from the time that it first turned to either stop or go through, and the law does not specify whether or not you should stop or go through. He stated the light was orange, and not red when he entered the intersection, and / therefore according to the Georgia law, was not technically guilty of running a red light. He stated that he felt, in his estimation, he had plenty of time to continue through the intersection before the light turned red. Officer Leger stated he and (Continuation of April 2, 1979 Meeting) Officer Wrozier observed Mr. Cowden traveling east on Concord and it had been his practice to monitor traffic by watching the light on his side and observing the traffic entering the intersection. At the point when the light had turned green on his side, Mr. Cowden had entered the intersection. Mr. Cowden was stopped and issued a citation. Officer Leger stated he observed the vehicle prior to entering the intersection and he appeared to be traveling faster than the 35 mph speed limit. After discussion, Elbert Coalson made a motion to uphold the decision of Recorder's Court. Jim Hawkins seconded the motion carried 7-0. Request for Beer and Wine Pouring License - Monterrey Mexican Restaurant, 2640-A Atlanta Street - Jim Hawkins stated the police investigation did not reveal any factors in the application that would bar the applicant, Jesus Diaz from obtaining a pouring license. The License Committee has looked at this application and recommended the license be approved. Motion by Jerry Mills to approve the license was seconded by Bill Darby, and carried by a 6-1 vote. John Steely voted against. Management Change - Beer & Wine Package License - Majik Market - 2630.Herodian Way Mr. Larry Hall, an agent of Munford.Corporation.appeared on behalf of the applicant, Mr. Daniel LeMay who had been called .out of town. Jim Hawkins stated the police investigation did not reveal any factors in the application which would bar the applicant, Daniel LeMay from obtaining the license. The application is in order and the License Committee recommended it be approved. Jim Tolleson made a motion the management change be approved. Bill Darby seconded and the motion carried 7-0. Management Change - Beer & Wine Package License - Majik Market - 2498 Spring Road Jim Hawkins stated the police investigation did not reveal any factors in the application which would bar the applicant, Daniel LeMay, from obtaining the license requested. The application is in order and the Committee recommends it be approved. Jim Tolleson made a motion the management change application be approved. Jim Hawkins seconded .the motion which carried 7-0. Management Change - Beer & Wine Pouring License - Lum's Restaurant, 2365 South Cobb Dr. Jim Hawkins stated investigation by the police department did not reveal any factors that would prevent the.applicant, Richard A. Zappolo, from obtaining the license requested. The License Committee recommends it be approved. Elbert Coalson made a motion to approve the application for management change. Motion was seconded by Jack Shinall and carried 7-0. Variance Request - Richard J. Pratt - 1395 South Cobb Drive - Jim Hawkins read a request from Mr'..Richard J. Pratt for a setback variance of 20' on the front of the building, located at 1395 South Cobb Drive. Mr. Pratt stated he.was requesting the variance in order to build an addition for a waiting area, which would also give more seating in the restaurant. Mr. Pratt stated the building is presently located 50' from South Cobb Drive and if this variance is granted, it would make the building 30' from the right-of-way of South Cobb Drive. After discussion, he was informed that he would need to obtain written approval from the State Highway Department prior to requesting a variance from the City, as this setback requirement is also a State law, on major thoroughfares. Mr. Pratt asked that his request be withdrawn until approval could be obtained from the State, at which time the request would be re- submitted. Jim Tolleson made a motion the proposed swimming pool rates for 1979 be approved as read: DAILY ADMISSION - Walk/On Ages 0 - 3 years " 4 - 17 years " 18-up SWIM PASSES I. Year -Round A. Individual B. Family Free 50c/per person $1.00/per person $45 $85 II. Quarterly (Spring -Summer -Fall) A. Individual $25 B. Family $40 CLASS REGISTRATION FEE - $10 per/person Jerry Mills seconded the motion which carried 7-0. (Continuation of April 2, 1979 Meeting) Commercial Building Permits - (1) John & Lamar Dickson requested a building permit for mini -warehouses to be built on Smyrna Hill Drive. Plans had been approved by the Fire Marshal and Inspector Len Williams recommended the permit be approved. Jim Hawkins made a motion the permit be.approved. John Steely seconded and the motion carried 7-0. Elbert Coalson made a motion the minutes of March 12, 1979 be approved. Jim Hawkins seconded and the motion carried 7-0. Elbert Coalson made a motion the minutes of March 19, 1979 be approved. .Jim Tolleson seconded the motion which carried 7-0. Validation of Annexation Request - John & Lamar Dickson requested annexation of property located in Land Lots 412 and 381. The application was read as follows: "We the undersigned, who constitute sixty percent (60%) of the electors resident in the area described below and who constitute sixty percent (60%) of the owners of the land area by acreage of the area described below, which is unincorporated and contiguous to the City of Smyrna, hereby apply to have said area annexed into the City of Smyrna under the provisions of the Code of Georgia Annotated, Sections 69-904 through 69-912 (Georgia Laws, Acts 1966, Pages 409, 410, 411, 412, 413; 1971, 399; 1976, Pages 1101, 1012; said property to be annexed being described as follows, to wit: PARCEL 1: All that tract or parcel of land lying and being in Land Lots 412 and 381 of the 17th District, 2nd Section, Cobb County, Georgia and being more particularly described as follows: BEGINNING at a point on the southwesterly right-of-way of Radcliff Road, said iron pin being 250 feet southeasterly as measured along the south- westerly right-of-way of Radcliff Road from the corner formed by the inter- section of the southwesterly right-of-way of Radcliff Road and the southeasterly right-of-way of Concord Road; running thence in a southwesterly direction a distance of 228 feet to a point; running thence in a southeasterly direction a distance of 125 feet to a point; running thence in a northeasterly direction a distance of 228 feet to a point on the southwesterly right-of-way of Radcliff Road; thence running in a northwesterly direction along the southwesterly right-of-way of Radcliff Road a distance of 125 feet to the point of BEGINNING. PARCEL 2: All that tract or parcel of land lying and being in Land Lot 412, 17th District, 2nd Section, Cobb County, Georgia and being more particularly described as follows: BEGINNING at an iron pin at the intersection of the southwesterly right-of- way of Radcliff Road and the northwesterly right-of-way of Smyrna Hill Drive; running thence south 55 degrees 25 minutes 30 seconds west along the north- westerly right-of-way of Smyrna Hill Drive a distance of 110 feet to an iron pin; running thence north 33 degrees 24 minutes 35 seconds west a distance of 140 feet to an iron pin; running thence north 55 degrees 24 minutes 30 seconds east a distance of 110 feet to an iron nail on the southwesterly right-of-way of Radcliff Road; running thence south 33 degrees 24 minutes 35 seconds east along the southwesterly right-of-way of Radcliff Road a distance of 140 feet to an iron pin and the point of BEGINNING. WHEREFORE, THE UNDERSIGNED HEREUNTO SET THEIR HANDS AND SEALS, AND THEREBY MAKE SAID APPLICATION FOR ANNEXATION TO THE CITY OF SMYRNA. Witness the signature of the record title holders of the fee simple title, or his legal representative, of 60% of the land area above described by acreage: s/JOHN DICKSON & C. LAMAR DICKSON" Jerry Mills moved to validate the petition. Jack Shinall seconded and the motion carried 7-0. Validation of Annexation Request - Raymond Moon and H. S. Pair requested annexation of property located in Land Lots 671 and 672. The application was read as follows: "We the undersigned, who constitute sixty percent (60%) of the electors resident in the area described below and who constitute sixty percent (60%) of the owners of and land area by acreage of the area described below, which is un- incorporated and contiguous to the City of Smyrna, hereby apply to have said area annexed into the City of Smyrna under the provisions of the Code of Georgia (Continuation of Apri1.2, 1979 Meeting) Annotated, Sections 69-904 through 69-912 (Georgia Laws, Acts 1966, Pages 409, 410, 411, 412, 413; 1971, 399; 1976, Pages 1101, 1012; said property to be annexed being described as follows, to wit: All that tract or parcel of land lying and being in Land Lots 671 and 672 of the 17th District, 2nd Section, Cobb County, Georgia and being more particular- ly described as follows: BEGINNING at an iron pin located at the southwestern corner of Land Lot 671 (being the corner common to Land Lot 671, 672, 625 and 626, said district, section and county); running thence along the western margin of Land Lot 671 north 0 degrees 2 minutes west a distance of 169.0 feet to an iron pin; running thence along the western margin of Land Lot 671 north 0 degrees 20 minutes 30 seconds west a distance of 490.0 feet to an iron pin; thence north along the west Land Lot line of Land Lot 671, 229.70 feet to a point; thence easterly 803.18 feet to a point; thence south 40 degrees 30 minutes 194.30 feet to a point; thence south 73 degrees east 78 feet to a point, running thence in a southwesterly direction along the northwestern margin of the right-of-way of Ridge Road of the following courses and distances: southwest 160 feet to a point; south 46 degrees 0 minutes west a distance of 143.4 feet; thence south 47 degrees 11 minutes 45 seconds west a distance of 165.8 feet; south 45 degrees 31 minutes 30 seconds west a distance of 100.6 feet; south 41 degrees 52 minutes 15 seconds west a distance of 200.3 feet; south 43 degrees 0 minutes west a distance of 364.2 feet; south 43 degrees 53 minutes 45 seconds west a distance of 310.9 feet to an iron pin on the western margin of Land Lot 672; running thence north 0 degrees 5 minutes 45 seconds west along the western margin of Land Lot 672 for a distance of 279.3 feet to the point of BEGINNING. WHEREFORE, THE UNDERSIGNED HEREUNTO SET THEIR HANDS AND SEALS, AND THEREBY MAKE SAID APPLICATION FOR ANNEXATION TO THE CITY OF SMYRNA. Witness the signature of the record title holders of the fee simple title, or his legal representative, of 60% of the land area above described by acreage: s/H. S. PAIR s/RAYMOND D. MOON BUILDER, INC." Bill Darby made a motion to validate the application, seconded by Jim Tolleson. Motion carried 7-0. Jack Shinall made a motion that the date for public hearing be set for Tuesday, April 17, 1979 at 7:30 p.m. Jerry Mills -seconded and the motion carried 7-0. Committee Reports: (Water) Jack Shinall reported that the cut-off notices for delinquent water customers had reduced the actual number of cutoffs by about 50%. (Inspections) Jim Hawkins read a request from John and Lamar Dickson for a variance for a 25 foot setback on Smyrna Hill Drive instead of the 50 -foot setback required in the Code in order to build mini -warehouses behind Dickson Shopping Center. Jim Hawkins made a motion the variance be approved. John Steely seconded and the motion carried 7-0. (Streets) Jerry Mills read a request from Jim David that, $10;000 be transferred from salaries in the Street Department budget to supplies and drainage expense account, #8501. These funds will be utilized to improve the flood control program (curbing, guttering, etc.) in various areas of the City. Jerry made a motion that these funds be transferred to the flood control program. This transfer of funds had already been approved by the Finance Committee. Bill Darby seconded the motion which carried 7-0. Jerry Mills made a motion that bids be accepted for a new dump truck body, to be opened at the next council meeting on April 16th, to be expended from Revenue Sharing in next year's budget. Motion was seconded by Jack Shinall and carried by a 7-0 vote. (Finance) Bill Darby requested that the continuation of the annexation hearing on Ridge Road/South Cobb Drive be placed at the bottom of the agenda on April 16th, as a courtesy to the citizens of Smyrna that they not be detained longer than necessary. Bill Darby reported that $350,000 in notes had been paid and made a motion to renew another note for $200,000. Jerry Mills seconded and the motion carried by a 7-0 vote. Mayor Johnson reminded everyone of the GMA 7th District Conference in Kennesaw on April loth. The next council meeting will be April 16th. Meeting adjourned at 8:40 p.m.