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August 2, 1999 Council Meeting August 2, 1999 The regular scheduled meeting of Mayor and Council was held August 2, 1999 at Smyrna City Hall. The meeting was called to order at 7:30 o'clock p.m. by presiding officer Mayor A. Max Bacon. All council members were present. Also present was City Administrator Howard Smith, . . City Clerk Melinda Dameron, Chief Building Official Robin Broyles, City Attorney Chuck Camp and Al Cochran. .t IrfVocation was given by Jim Hawkins, followed by the pledge to the flag. ... Mayor Bacon read a proclamation recognizing Jay Foster on his 80th birthday. The proclamation was presented by Councilman Bill Scoggins. Bill Hamilton, board member for MUST Ministries thanked the Mayor and Council members individually and collectively for their support of MUST by providing their building space on W. Spring Street for the last 10 years. Bill Brown, Commander of the American Legion, presented Mayor Bacon with his 20-year membership pin. Mary Rose Barnes of the Cumberland Civic Association complained of an abandoned vacant lot on Main Street, just behind Fire Station #4. Ms. Barnes said the lot is overgrown with kudzu and not only is offensive to look at, but presents a clear and present danger to the community. Ms. ~arnes said they have asked for help from the City but have had no response and was asking for help from council tonight. PUBLIC HEARINGS: (A) Rezoning request - 815 Windy Hill Road (0.55 acres) - from R15 to Limited Commercial ... Howard Smith stated Joel Haney has applied for the rezoning of this property and the request was tabled at the last two meetings. The oath of office was administered by City Attorney Charles E. Camp. Councilman Cramer said at the last meeting this item was tabled at the request of the opposition so that they obtain legal counsel and discuss some of the issues raised at the last meeting but he has heard nothing from them. Councilman Cramer said the road improvements and widening of the Windy Hill corridor has changed most of the homes from residential to commercial. Attorney Parks Huff representing the applicant Joel Haney said it was his understanding at the last meeting that the opposition wanted to retain counsel to determine the status of the restrictive covenants in the Belmont Hills Subdivision. Mr. Huff said he had talked with their attorney Tom Cauthorn and he concurred that the covenants are no longer in effect. The applicant has complied with the City's land use plans and they are asking that their property be rezoned to Limited Commercial for professional offices and they would also stipulate what offices would be allowed in the building. Their list will not pre-empt uses allowed by the City's zoning ordinance but would augment and strengthen the limitations on use. .. Tom Cauthorn said he was retained a couple of weeks ago to address the issue of restrictive covenants recorded in 1956. Mr. Cauthorn said council should be placing emphasis on what they are hearing from the citizens and just because the land use plan identifies the site as commercial, does not means that is the proper use. Mr. Cauthorn said that Mr. Edens and his neighbors had asked him to remind council of the simple facts. Future land use does not require any particular zoning but leaves that decision to council. This has been a residential neighborhood for 40 years and this intersection is the gateway to the neighborhood. Mr. Cauthorn said he was asking council to recognize that and to allow the neighborhood to maintain its residential integrity. In closing, Mr. Cauthorn asked the Mayor and Council not to rezone this property for non-residential use and to exercise their discretion in denying the request. Jack Cramer said he has always exercised due diligence in trying to maintain the residential neighborhoods but Windy Hill Road has changed significantly over the last few years. Councilman Cramer said he has family ties to this particular neighborhood and the future land August 2, 1999, meeting - continued use plan clearly indicates that this property should be zoned for commercial use. Council has heard a lot of testimony but their decision must be based on the advice of our attorney. Councilman Cramer then made a motion that the property be rezoned from R15 to Limited Commercial with the following stipulations: 3) No access to Beaver Creek Road Use will be restricted to offices of health practitioners including physicians, surgeons, dentists, dental surgeons, dental lab, chiropractors, health service practitioner, Attorneys, accountants, auditors, engineers, surveyors, architects and others similar in character to such professions. General business offices, including financial, real estate, insurance, manufacturers and sales representatives, and others similar in character to those listed provided that no goods are for sale at retail. ...., 1) 2) 4) Councilman Jim Hawkins seconded the motion and stated when you look at this zoning you have to ask yourself if it meets the basic requirements of the zoning ordinance and clearly this property does. Property owners are entitled to the highest and best use of their property and if you look at other similar zonings on Windy Hill Road the vast majority are Limited Commercial. Mr. Hawkins said he believes that if this zoning is denied we will be back in a few months to reconsider or the court could strip the property of any zoning regulations. Mr. Hawkins said he did not really think in this case that it would hurt the residential neighborhood. Councilman Wade Lnenicka said council is very concerned with preservation of the neighborhood but the law charges them with nine zoning review standards that they must consider in zoning decisions and when you review those standards it comes to about a 50/50 split. Mr. Lnenicka cited as an example the first review standard charges the council with deciding if the zoning proposal would permit a use that is suitable, in view of the use and development of adjacent and nearby property. Mr. Lnenicka stated if you look to the north of this property where you enter into a residential neighborhood - the answer would be "no" but if you look along Windy Hill Road (former Cherokee Street) or across the street, he thought the answer was "yes." Mr. Lnenicka stated if this motion passes tonight, he could not imagine himself nor the council ever voting to zone down Beaver Creek into the heart of that residential neighborhood. Mr. Lnenicka stated he would support the motion but also wanted to make a public pledge that he will never, ever support a commercial rezoning on Beaver Creek north into that neighborhood beyond the frontage along Windy Hill Road. ...., Councilman Scoggins expressed his appreciation to Judge Cauthorn for his explanation of the Land Use Plan and said it was the first time it had been satisfactorily explained since the council passed the plan and accepted it. Mr. Scoggins then stated he will support the motion. Councilman Newcomb stated the law states you can not take away somebody's enjoyment of their property unless there is a reasonable basis and it is done by a reasonable procedure. Councilman Newcomb stated he supports the motion. Councilman Cramer told Mr. Haney that he charged him with doing the best he could with this property and asked that in the future if a meeting is necessary with the neighborhood he contact him. Councilwoman Capilouto asked Councilman Cramer if the motion is approved and Mr. Haney elects to sell the property, would the stipulations go with the property. Mr. Cramer responded they would. Councilman Wood stated he believes this council and future councils will protect the quality of this neighborhood and would deny encroachment of commercial development beyond the Windy Hill Road frontage. Councilman Wood stated he also supports the motion. WIllI Motion to approve the rezoning request at 815 Windy Hill Road from R-15 to L.C. with the above listed stipulations was approved 7-0. ~,:.~ ,...... August 2, 1999, meeting - continued (B) Variance Request - 2308 Garden Park Drive - Reduce Rear Yard Setback from 30 Feet to 17 Feet ,,*, Mr. Smith stated Bill and Susan Morton have requested this variance and further stated the home is already built and the garage was built over the property line by the builder unbeknownst to them. Mr. Smith stated the Mortin's are requesting this variance as a hardship because the house already exists and included in the packet are letters to contiguous landowners notifying them of the request. Mayor Bacon announced this is a public hearing and asked if anyone was present in opposition to the granting of this variance request. There was no opposition. -- Councilman Lnenicka asked Mr. and Mrs. Morton to explain what they are requesting and why it is necessary. Mrs. Morton explained the builder built the home over the rear setback line of the property and they did not discover that until the day of closing. Mrs. Morton stated they closed on the property so as not to lose their good rate. Mrs. Morton stated when they applied for the variance, they discovered on the back line of the property (on which the encroachment occurs) there is a large brick privacy fence and from Cooper Lake you can not even see garage and therefore it does not affect any of the neighbors. Mr. Lnenicka stated the brick wall along Cooper Lake Drive is at least six-feet high and the Morton's home sits below the road and any adjacent neighbor to the rear would actually be on the other side of Cooper Lake - all the way across their front yards - a long distance away. Mr. Lnenicka stated this is clearly not a case where any close-by neighbors that would be intimately affected by this and is not something that was done deliberately by the Morton's. Councilman Lnenicka thanked the Morton's for attending the meeting tonight. Mr. Lnenicka stated this is clearly a hardship within the definition of the ordinance and has no adverse affect on any adjacent neighbor or property owner. Mr. Lnenicka stated those persons notified of the variance request have no objection to it and the builder does not object to it. Councilman Lnenicka made a motion to approve the variance request at 2308 Garden Park Drive to reduce the rear yard setback from 30 feet to 17 feet. Councilman Wood seconded the motion. Motion was approved 7-0. ... (C) Special Land Use Permit - Jonquil Drive - 150-Foot Telecommunications Tower Mr. Smith stated Nextel Communications is requesting this location for a telecommunications tower. He then stated there will be three users on the tower and there is no available space on any other tower that will provide coverage in the area. Mayor Bacon recognized Ms. Pat Chapman, Chris Palomba, and David Chuquea, Nextel Communications. Mayor Bacon stated this is a public hearing and asked if anyone was present in opposition to the Special Land Use Permit. Mayor Bacon asked those persons to come forward and be sworn in. -- Councilman Newcomb identified the location of the proposed tower as follows. Mr. Newcomb stated if you go down Spring Road and turn south on Jonquil Drive and cross over Corn Road and go into the light industrial area, it dead ends and is out in a field as shown on the diagram presented. Ms. Chapman stated the site is on property at the end of Jonquil Drive and is a thirteen-acre tract, vacant and predominantly open except for a stand of mature hardwoods which are along the stream on its northern border and then some scattered young pines which are along the railroad which forms the other side of the property. Ms. Chapman stated the site Nextel wishes to use is up against the railroad right of way in almost the far corner of the property. Ms. Chapman stated the upper approximate 60 % of the property is floodplain so the only usable portion of the property is back towards the railroad. Ms. Chapman stated the Land Uses in the area are a mixture of light industrial, heavy commercial uses, and there are some apartments, townhouses and some single-family residences in the general vicinity and on the other side of the railroad are some condominium and townhouse developments and then some other commercial properties. Ms. Chapman stated they are asking for a 150-foot monopole even though Nextel's height requirements are not quite that high in order to achieve the goals of the city for co-location on towers in the city and they would like to go higher than that in order to accommodate two or perhaps three additional users. Ms. Chapman stated they did consider using the BellSouth Mobility tower which is about 112 mile away from this site and after doing the engineering studies for a signal propagation found that it did not give them satisfactory coverage for the area. Ms. Chapman stated they are hoping to cover Spring Road, Pasadena and somewhat to the north. Councilman Cramer asked if this tower is due to dead spots in cellular coverage based on increased usage of cell phones? Ms. Chapman stated the mandates of the licenses are for universal, blanket coverage - not just certain areas of a community but August 2, 1999, meeting - continued the entire community - and they have certainly been demonstrated as critical utilities in times of natural disasters. Mayor Bacon asked if he were driving down Spring Road and crossed over the railroad track and can see the tower on the right, would he also be able to see the Nextel tower and Ms. Chapman responded not from that area. Mayor Bacon then asked if the tower would be visible from Atlanta Road traveling south toward Campbell Middle School and Ms. Chapman responded that based on the visual analysis they did there might be one space between some of those developments where the upper portion of the tower might be visible. Ms. Chapman stated the only place she thinks the tower would be visible from is at the commercial property on Atlanta Road between Campbell Middle School and the townhouses and if you went to the back side of the property, next to the railroad track, and look around the curve there you might be able to see the tower site from that location. Ms. Chapman stated that also from the Vinings Forest condominiums, which look over the railroad, the tower is not directly across from them but the upper floors of the eastern-most building might have some view if they went out to their balcony and looked to the side. Mayor Bacon stated he was concerned about the appearance of the tower as people drive down the road. Ms. Chapman stated there are ways to change the appearance of the tower and offered photos of camouflaged cell towers. Councilman Hawkins asked Ms. Chapman about the engineering study done on the BellSouth tower and she indicated it could not be used by Nextel. Ms. Chapman stated that tower is 150- feet with BellSouth located at the top and a microwave dish located about 20 feet below that leaving the first available space is somewhere llO-feet plus there is a difference in the elevation of that site and the proposed Nextel tower site. Ms. Chapman stated when the study was done Nextel did not get satisfactory coverage from the BellSouth site due to a difference in elevation and a ridge that they can not get over. Ms. Chapman stated Nextel will be at 100 feet on the proposed tower and the additional height is there to provide co-location opportunities for other carriers. Councilman Wood asked whom the other users would be and Ms. Chapman responded they have not been identified yet. Councilman Newcomb asked Mr. Palomba if the tower has to be 150 feet and why it could not be 110 feet? Mr. Palomba responded that the carriers are now looking at multi-user structures instead of single-user towers. Mr. Palomba further stated they are willing to spend the extra money to build the 150-foot tower in order to accommodate three other carriers - potential users - plus themselves making it a four-user tower. Mr. Palomba stated that they have enough leased area to accommodate other people to co-locate on this existing tower. Councilman Newcomb stated he feels the real issue with this tower is that it is located in such a way that it is right at the boundary of Ward 2 and Ward 6 and some of the residents of the Vinings Forest Condominium have been talked with about the tower. Mr. Newcomb stated it is not going to be visible anywhere except from the folks in Vinings Forest and only those who look out the back and it will not be visible from any street and is in a light industrial area. Mr. Newcomb stated the sign advertising the public hearing for this site was on the Jonquil Drive side, where it should be, but the folks in the Vinings Forest side have an interest in it and there was no sign posted on that side. Mr. Newcomb stated Mr. Lnenicka would like an opportunity to discuss the proposed location with those residents. Councilman Lnenicka stated one of those residents is present tonight and will be heard from momentarily. Mr. Lnenicka stated he was interested in hearing what Nextel would do to camouflage that tower and make it less obtrusive. Mr. Palomba stated Nextel could build the tower at 150 feet to accommodate other carriers or they could build it at what they need it to be - 100 feet - but that would only allow one carrier and they could also build it with canisters to camouflage it. He then stated they could build it to 120-feet and still get two users other than Nextel on the tower. Mr. Palomba stated the pole would be a galvanized finish and they try to stay away from painted towers due to the maintenance associated with them. Mr. Lnenicka asked if the tower were to fall - the 150-foot high tower - would it hit any buildings on the other side of the railroad track. Ms. Chapman responded no. Councilman Newcomb asked how far from the railroad track would the tower be located and Ms. Chapman responded 40 feet from the railroad and there is a 100-foot right of way and there is a difference in elevation with a berm on the property along the railroad track and it is more than its height away from the nearest identifiable residential property. ...", ..." Mayor Bacon recognized Tim Gunther, Vinings Forest resident, who stated his concern is that the tower will be right outside his residence and within visibility of his home. He then asked that the issue be tabled until the Vinings Forest Homeowners Association has an opportunity to discuss the proposed tower location and further stated he would also like to discuss this with the residents of the Cumberland Vail complex. Mayor Bacon recognized Bob Davis, resident of Ward 2, who stated when he was on council several years ago, the city did extend the tower on Spring Road about 70 feet and at that time that user implied another tower would never have to be built because it would be high enough for everybody to use. Mr. Davis then asked why another tower is now necessary. Councilman Hawkins stated he remembered when that tower was extended and the mention that another tower would not be necessary. Mr. Palomba stated ....., ,,,. ;:~_.....;.. .Ill: ~ August 2, 1999, meeting - continued ... the existing BellSouth tower is ISO-feet high and Nextel is a totally different frequency than BellSouth, AT&T and AirTouch and does not have the exact same coverage as those companies and the competition among the various companies. Mr. Palomba stated they did look at co- location on rooftops, existing towers, etc., and that information was presented back to Nextel Communications and their engineers and if you look at those plots you can see why those sites will not work for Nextel Communications. Mr. Palomba stated this site is zoned light industrial and there are other uses on this piece of property that is permitted by right and they are asking for a 150-foot tower in order to accommodate other carriers throughout Georgia and there's more coming. He then stated they could build a 100-foot tower and put canisters on there that will look like a light pole and that is up to the city officials. He stated it is either more towers or few towers. Mr. Davis asked about the runoff going to Poplar Creek and if there would be a runoff from this tower location and Mr. Newcomb responded there would not be any runoff from this proposed location. Councilman Newcomb made a motion to table the special land use permit request on Jonquil Drive for a 150-foot telecommunications tower until the August 16, 1999, council meeting. Councilman Lnenicka seconded the motion. Motion to table was approved 7-0. (D) Annexation of Property - Concord Road (6.544 Acres) - Land Lot 241, 17fu district, 2nd Section, Cobb County, Georgia Mr. Smith stated J. L. Harmon and Lamar and Mary Joyce O'Bryant have requested the annexation of 6.544 acres in Land Lot 241. Mr. Smith stated the property was zoned July 19, 1999 for development of 19-single family homes and fronts on Concord Road and all advertising requirements have been met. Mayor Bacon stated this is a public hearing and asked if anyone was present in opposition to the annexation request. There was no opposition. Councilman Wood stated the petition to annex this property was validated at the July 6, 1999, council meeting with a public hearing date scheduled for tonight. Councilman Wood made a motion that the property on Concord Road (6.544 acres), Land Lot 241, 17fu District, 2nd Section, Cobb County, Georgia be annexed into the City of Smyrna and become a part of Ward 7 with an effective date of September 1, 1999. Councilman Cramer seconded the motion. Motion was approved 7-0. .. (E) Approval of Ad Valorem Tax Millage Rate for 1999 Mr. Smith stated the city advertised a .10 millage rate reduction but due to the fact that the digest came in from the county much higher than projected, the council is recommending the actual millage rate be lowered by .5 mils rather than .1 mil and would go to a millage rate of 10.70. Mayor Bacon asked if anyone was present who wished to make any public comment concerning the proposed ad valorem tax millage rate for 1999. There was no comment. Councilman Lnenicka stated the proposal tonight is to reduce the millage rate Ih mil which will take it from 11.20 to 10.70. Mr. Lnenicka stated this is an indication of the quality growth seen in the City of Smyrna. Councilman Lnenicka made a motion to approve the ad valorem tax millage rate for 1999 at 10.70. Councilman Newcomb seconded the motion. Motion was approved 7-0. (F) Variance Request - 4720 Harness Court - Reduce Front and Rear Yard Setbacks (Front Yard from 35 Feet to 25 Feet and Rear Yard From 30 Feet to 15 Feet) ... Mr. Smith stated Phil Early, Jr., is requesting the front and rear yard setbacks in order to place the size house they are requesting to build on this lot. Mayor Bacon stated this is a public hearing and asked if anyone was present in opposition to the granting of these variance requests. Those persons came forward and were administered the oath by City Attorney Chuck Camp. Councilman Wood asked the applicant, Mr. Early, to explain why the variance is being requested. Mr. Early stated they are requesting the variance due to the configuration of the lot and he will have to have a front yard variance from 35 feet to 25 feet - on one of the front corners - and on the rear from 30 feet to 15 feet. Mr. Early stated they are trying to put a split foyer type house on the lot - 3,031 square feet of finished space excluding the garage. Mr. Wood asked about the exterior construction of the home and Mr. Early stated the front foyer will be brick and the rest will be vinyl siding. Mr. Wood stated in order to place this house on this lot a variance for the front and rear yard setbacks is necessary. Mr. Wood then stated the August 2, 1999, meeting - continued rear of the property abuts the Silver Comet Trail property and faces Harness Court on the front. Mayor Bacon asked if the variances were not granted, could the house be built on the lot. Mr. Early responded they could not. Councilman Cramer asked if a smaller house could be built on that lot and Mr. Early responded the house is in an R-15 zoning area and they could put an 1800 square foot home on the property without requesting any variances if he wanted to. Councilman Scoggins asked Mr. Early what the estimated construction for the house would be and Mr. Early responded approximately $161,000. Councilman Wood asked Chief Building Official Robin Broyles when the plat was filed and approved, what were the conditions, minimum square footage, setbacks, and to explain the approval process. Mr. Broyles responded it was an R-15 standard zoning, rear yard setback is 30 feet, the sides 10 feet, and the front is 35 feet with a minimum house size of 1800 square feet. Mr. Wood asked Mr. Broyles if under the city's zoning ordinance, R-15 requires a minimum of a 1500 square foot home and Mr. Broyles responded that was correct. Mr. Wood then stated that according to the plat filed the lot meets this requirement and Mr. Broyles responded yes. Mr. Wood then asked when the original plat was approved and Mr. Broyles responded he believed it was in 1985 with approximately 48 lots in the subdivision. Mr . Wood stated there are very few lots remaining in the subdivision. Mr. Wood then asked Mr. Broyles to categorize the type of structures in the subdivision and Mr. Broyles responded there are some ranch style homes, two-story, split-foyer and a mixture of all kinds of construction materials. Mr. Wood then asked if it was correct there were single-story, some brick with siding, few all brick or stucco, and Mr. Broyles responded that was correct and also if it is a ranch-style home there is a full basement under it as well. Mr. Wood then stated then there are some wood or siding homes that are completely wood or siding and Mr. Broyles responded that was correct. Mr. Wood stated there is a wide variety of architectural styles and sizes in the subdivision. -- Mayor Bacon recognized Deidra Denechaud, representing many members of Churchhill Downs Subdivision, and is an attorney at Kearnes and Associates. Ms. Denechaud stated the residents oppose the variance because there are protective covenants that were issued and control the neighborhood and have been in effect since the late 1980's. Ms. Denechaud stated the covenants state "that no home shall be built without first submitting to the purveyor of the builder's agents as to the harmony of its exterior design and general quality with the existing standard of the neighborhood." Ms. Denechaud continued that according to her clients, they viewed an actual plat or plan of this proposed building, and the proposed plan stated the actual square footage would only be 1728 square feet while the applicant now states it will be 3000 or 3100 square feet. Ms. Denechaud continued quoting from the protective covenants "that a one- story dwelling shall cover ground area of not less than 1850 square feet" or "a two-story dwelling of 2200 square feet." Ms. Denechaud stated in 1991 a proposed split-level foyer was put up to the architectural committee and it was denied and further stated there are no split-level foyer homes in the subdivision. Ms. Denechaud stated the architectural committee looked throughout the neighborhood and determined that this split-level foyer would not comply with the other homes in the neighborhood and therefore they denied the proposal. Ms. Denechaud stated most of the homes in this neighborhood are $200,000 and up and a house this size does not fit with the common scheme of the neighborhood. Ms. Denechaud stated there are many residents opposed to the variance request. Ms. Denechaud stated the Early's purchased the lot with the full knowledge of the protective covenants and knew that building a home on this lot would probably not comply with those covenants and the purchasers of the homes in Churchhill Downs bought their homes relying on those covenants to not decrease the value of their homes by removing the covenants and accepting this variance. Mayor Bacon asked who is the committee that would review the plans and Ms. Denechaud responded she was not exactly sure. Councilman Hawkins asked where Ms. Denechaud obtained the 1750 square footage figure when Mr. Early's plans call for a 3000 square foot home? Ms. Denechaud stated that was the amount shown on a plat to some of her clients but they are not here in evidence tonight. Mr. Giraldo, a framing contractor, stated he had framed quite a few of the homes in that subdivision and when the plans were presented to him, that house was not 3200 square feet and it was just completely all vinyl siding. Mr. Giraldo stated he has been framing most of the homes in that subdivision being built by Mr. Bum. Mr. Valardo stated that these gentlemen did present him with a plan to give them a price on framing and at that time the plan was presented was not for a 3200 square foot plan and he further stated he did not know what they have today but the plan he saw was simply a "box" with vinyl siding all the way around it, roof truss, and he stated he did not believe there was one house in that subdivision that is built with roof trusses. Councilman Scoggins asked Mr. Broyles about the footage for the proposed home and Mr. Broyles responded they do require residential plans to get a permit but they originally did permit it for 1800 square feet and realized perhaps with the opposition that that would not work and modified their permit for 3100 square feet of finished area. Mr. Scoggins then asked if the council approves a 3100 square foot house, is that what the city would expect to be built there -- ... ..-. -.... r.!'." 1\ .. ... .. August 2, 1999, meeting - continued and Mr. Broyles responded that is correct. Mayor Bacon asked Mr. Giraldo, 4650 Derby Lane, if he was the same person that applied for a variance in 1992 and he responded he was. Mayor Bacon asked him if he still resided there and he replied he did. Mayor Bacon asked if that variance request was to reduce the rear yard setback from 30 feet to 20 feet and he responded that was correct. Mayor Bacon stated that variance was due to the slope of the land and then asked what size house Mr. Giraldo had built to which he replied 5000 square feet. Mayor Bacon recognized Mr. Jerry Staggs who stated he has the unpleasant job of opposing something for people he likes very much. Mr. Staggs stated he built his home in 1987 and complied with all of the covenants and setback lines and at that time, when he purchased the property from Mr. Fouts, there was no discussion of variance - he had to comply. He stated he spent an extra $6,000 having an architect design a house that could be placed within the setback lines and that is what he did and he further assured the council that the city's inspections department put him through the wringer and made sure he did comply with every one of the covenants and regulations of the city. Mr. Staggs stated he was personally presented the plan from Benny Brooks Designs and it stated clearly on the plan that it was a 1728 square foot plan. He then stated the center of the door, as Mr. Early told him, would be either stacked stone or brick and the rest of the home would be siding and now I am hearing that it will be vinyl siding and he is not aware of any vinyl siding homes in that neighborhood. Mr. Staggs stated he did know that how you have to put a house on that lot, it will have to sit extremely close. to the street, there is nothing else like that and all of the houses sit back from the street and it is placement on the lot that is really unacceptable to the neighborhood. Mr. Staggs further stated Mr. Fouts knew when he sold this lot, and it has been common knowledge for years, and I have been there since early 1987 that this lot was not a buildable lot, has never been considered to be a buildable lot and the houses were sold on either side with the understanding that the lot could not be built on. Mr. Staggs submitted to the council that they ought to be even-handed and if there are things like this that are so drastic and so severe it should be denied and that's a job for the elected officials to determine. Mr. Staggs stated the residents all pay their taxes and they are hoping for an increase in value and the houses that are being built there are from $300,000 - $350,000 now and it's a very eclectic neighborhood of really neat housing but what he submits is being built is a one-story house with a basement and it clearly does not meet the covenants nor the setbacks that has been defined for the city and they, as residents, who have been paying taxes for a long time would really appreciate the city protecting them for what they have done for the city by trying to be good neighbors and don't want to be bad neighbors but they do not want this to happen. Mayor Bacon asked Mr. Staggs if it would make any difference if Mr. Early was asking for a greater reduction in the rear yard setback that would get him further off the road, maybe go from 30 to even further back, would that help the issue about getting him further off the road. Mr. Staggs stated that is a very real concern and felt almost anything would look better than to have it so close to the street. Mr. Staggs stated that is a decision for the mayor and council about the setback but the front setback is just unacceptable. Mayor Bacon stated he had heard someone else had been looking at buying that lot and building on it also and Mr. Staggs said he did not know about that. Mr. Staggs stated he felt precedence had been set when Mr. Fouts' daughter lived next door to lot 31, that the split foyer thing was squashed right away and nothing like this occurred. Mayor Bacon asked if everyone had always been told they could not build on this lot and Mr. Staggs responded that was correct including Keith Colson on one side and he could not remember who was on the other side. Mayor Bacon asked Mr. Broyles if the city approved the subdivision plat and this is Lot 27 was it a buildable lot. Mayor Bacon stated the lot is shown on their packet of information as a recorded lot and Mr. Broyles stated it does meet the 15,000 square foot criteria if the engineer so desires to draw his setbacks in there it does still comply. Mayor Bacon stated this is not the first time the city has had an issue where someone has come forward on a lot that everybody thought you could not build on and property is now so valuable in Smyrna that now on all the unbuildable lots you are going to see a lot of houses on there. Mr. Staggs stated this is very important to him and feels personally, that if he had to comply he expects his neighbors to comply. Councilwoman Capilouto stated she has a question about everyone talking about the covenants and asked if anyone had a copy of them. Mr. Staggs stated he thought he did. Councilman Hawkins stated while the neighborhood may have had common knowledge that it was an unbuildable lot in their opinion, he did not think there is anything in the city's records that would indicate that it was an unbuildable lot. Mayor Bacon recognized Greg Jackson, 4611 Derby Lane, stated he is opposed to the variance because he feels forcing a house on this lot will reduce curb appeal of the whole neighborhood and it will be cocked to the side from what he understands and not facing the road which again will reduce curb appeal and it will have a small driveway and a small front yard and too close to the road. He stated when he built his home two years ago, he complied with all the city's requirements. Mayor Bacon asked Mr. Jackson if it was also his opinion that Lot 27 was an August 2, 1999, meeting - continued unbuildable lot and Mr. Jackson stated yes, without a variance. Councilman Lnenicka asked Mr. Jackson if you could build a home under the R-15 zoning, 1800 square feet minimum, without a variance perhaps, if the home was designed right on that lot, or come forward with a request for a variance for a home just over 3,000 square feet, which would he think is better for the neighborhood. Mr. Jackson responded that between an 1850 or 3000 square foot home - he felt that whatever would represent the neighborhood best in relation. He stated the square footage is important but there are covenants to go by, however, the visual appearance... Mayor Bacon stated the covenants are under the control of the city and they do not get involved in those. Mayor Bacon continued that if there are violations of the covenants that is something the individual homeowner has the right to go and file suit. Mayor Bacon stated at the time the city rezoned the property he felt there were certain restrictions placed on the property as to the size of the house and perhaps some other things but as far as the covenants the city does not become involved. Councilman Wood stated the covenants are an agreement between the owner who is selling the house and those that buy into it. Mr. Wood stated the city attorney stated that the declaration of covenants is a totally different issue than the zoning on the property. Mr . Wood stated that according to this document Mr. Fouts has to approve, or had to approve, all of the architecture of the original construction and any subsequent construction as part of the covenants and it also says you can build a one-story or split level dwelling with a ground area of coverage of 1850 square feet. Mr. Wood stated that is not what the zoning says, the zoning says you can build a house in there that is 1800 square feet and it is not up to the city to dictate covenants or to even enforce them because that is not what they do. Mr. Wood continued that the covenants say "the enclosed heated living area, exclusive of garages, carports, porches, terraces, bulk storage and basements of one-story or split level dwellings shall cover a ground area of not less than 1850 square feet. Two-story dwellings must cover a ground floor area of 1100 square feet and not less than 2200 square feet of heated living space. The covenant is something you agree to, but that is not an issue with the city as long as it does not conflict with the zoning. This declaration of covenants is an agreement between C. J. Fouts and Betty Fouts as owners of this property and whoever builds there. Normally when a subdivision is built out everything is turned over to the homeowners association and they are responsible for seeing that the covenants are carried out. Mr . Wood said he wanted to make sure that everyone understands the difference between the covenants and actual zoning because they re two separate issues. Mr. Wood said he was not aware of the covenants until today when he received a copy from one of the residents and they are not filed in the City, nor are they required to be filed with the City. Mr . Wood stated he wanted to clarify the difference as pertains to what is said in the covenants. He further stated what is contained in the covenants has nothing to do with the official zoning of the property. Mr. Jackson then stated he is present in opposition to the granting of the variance. Mr. Wood stated there had been approximately three variances granted in Churchhill Downs that he was aware of and from time to time, in almost all developments, have situations where they may need a variance. Mr. Wood stated that a violation of a covenant agreement or of a declaration of covenants has nothing to do with city government, county government, state government - it is an agreement between property owners that purchase property in a given subdivision and the owners of that property or subdivision. Mr. Jackson stated in answer to an earlier question he would rather see an 1850 square foot house within the setbacks in his neighborhood than a 3000 square foot or larger square footage house out of bounds. Mayor Bacon recognized David Meeks, 4630 Derby Lane, who read a letter from another homeowner in the neighbor basically stating four reasons that some of them are in opposition to the variance. The reasons are as follows: 1. Lot 26, which is adjacent to the subject lot, was sold originally to the builder Mike Keener. Subsequently, Mike Keener built on Lot 26 and upon laying out the foundation of the home the builder violated the setback line on the right side of the property. At that time, instead of applying for a variance, developer C. J. Fouts chose to give the required footage on the right side of Lot 26 taken from subject lot (27) in order to meet all the setbacks required. Builder Mike Keener was to get first right of build on Lot 27 but later deemed that the lot was not suitable for building a home that would meet the required setbacks and covenants, therefore, he opted not to exercise his right and the lot went back to the developer, C. J. Fouts. Now the developer has sold and the purchaser has requested a significant variance on that lot and it is not buildable. Churchhill Downs recorded covenants clearly identify ranch, split level and two-story style homes to be built in the upscale neighborhood but not split foyer style homes. Currently, there are no other split-level or split foyer homes in the subdivision. 2. . ~ .... ..., .., ._ .~,t......-.;.;.~ August 2, 1999, meeting - continued 3. The precedent was set approximately eight years ago when Mrs. Ellens on Lot 31 proposed to build a split foyer style home but was turned down by an architectural committee and the developer and deemed not suitable for this subdivision. 4. This is not a variance grant but more in line with rezoning. We believe this variance will cut the size of the lot approximately to a quarter plus or minus acres. .. Councilman Wood asked Mr. Meeks if this letter was from the homeowners association or another neighbor in the subdivision. Mr. Meeks stated it is from one of the homeowners who could not be present tonight. Mr. Meeks stated his opinion is that he has been in the neighborhood three months, purchased his home for the upper $200,000's and feels the neighborhood is in that price range and the variance is the issue at hand and I can tell you that the style house that is being proposed as being built here and the fact that the variance request to move the lines back does not mix with the neighborhood and he does not feel it is the right thing to do. Mayor Bacon asked who the letter was written by and Mr. Meeks responded Ms. Andrea Myers. Mayor Bacon then asked if this were a $400,000 home, would you be opposed to the variance request and Mr. Meeks responded that he would still have a problem with it because the feel of the neighborhood is based on the homes being set a long way off the street. Mr. Meeks further stated he did not want the house moved back further toward the Silver Comet Trail because when you are on the trail you have the feel of being in the country. Councilman Hawkins asked Mr. Meeks if the house plan goes forward tonight, wouldn't the owner still have to submit his plans to the homeowners' association and couldn't the issue of a split foyer style home be addressed within the protective covenants of the neighborhood. Mr. Meeks stated he thought they would have to rely on the homeowners association to address that issue. Councilman Scoggins stated he has not yet heard anything about the letter signed by nine property owners that is in the packet that state they have no objection to the front yard and back yard variance on Lot 27 in Churchhill Downs Subdivision. Councilman Wood asked Robin about the implied encroachment from Lot 26 on Lot 27 and if that would have required a zoning amendment or variance of some type. Mr. Broyles stated that would have required resurveying the property and submitting a plat to the city revising the one property line and then re-recording. Mr. Wood then asked if there was anything official on the plat that has ever been changed from the original Lot 27 as far as changing the property lines. Mr. Broyles responded they have several copies of the plat and everyone he reviewed all state that the lot is a little over 15,000 square feet. Mr. Broyles stated if that had occurred the surveyor should have found the discrepancy at the time Lot 26 closed and the plat of record and what he found when he surveyed, were it to differ, he would have brought that to Community Development or to the Mayor and Council at that time. ~. .. Mayor Bacon stated there are other people present who have been sworn in and he would like to give them an opportunity to speak. Mr. Early stated that he believed there was information in the packet that C. J. and Betty Fouts have approved the plans and felt that should take care of the homeowners' association approving any plans. Mayor Bacon asked if he was saying the Fouts' were the approving authority and Mr. Early responded he understood they were. Mayor Bacon recognized Tim Mauer, 4680 Derby Lane, stated in reference to the petition with nine names on it in favor of the variance that there were eight homes represented here tonight in opposition to the variance request and there are several others that could not be here. .. Mayor Bacon recognized Phil Early, Sr., who stated that when Phil and Cardi Early purchased this lot they thought it was a buildable lot and he now knows it is a buildable lot. He stated it is a buildable lot because he had met with Mr. Carlisle and George Wright has taken over the survey for him. He then stated George Wright looked through the files and looked at the lot and it is a difficult lot but is not an unbuildable lot. Mr. Early continued that Mr. Burr had already told him that it could be buildable and about where the house would have to be placed but he did not take Mr. Burr's word for that and went to an engineer to plat it and show him exactly why they needed the variance and to give us the most house on that lot that could possibly be built on that lot to where they would have enough room - around 2800 - 3000 square feet of house - and the engineer did his job and plotted it. Mr. Early stated those are the setbacks they used to ask for the variance and that is what they did. He stated they only thing they did wrong was to obtain a construction loan before they got the variance and before they had the engineer plat it on the lot but they know they had to have it and that is why they are here asking for the variance. Mr. Early stated he wanted to clarify that the house has around 3000 square feet and is a split foyer and not a two-story house and is not one that is in the cuI de sac down there - three stories high. Councilman Newcomb asked Mr. Early if he had a copy of the plat and asked about the 50-foot right of way circle in the cuI de sac and then the circle that represents the building line setback. Mr. Newcomb asked Mr. Early about the ':'!' August 2, 1999, meeting - continued pin that is south of there on the land lot line (rear of the property) and according to the graphic scale the fact that it looks to be about 50 feet from the pin line to the 35 foot building line setback and that is 50 feet and if you take off the 30 feet for the rear building setback you have about 20 feet and asked about the small amount of buildable space remaining. Mr. Early responded he is going by the measurements that George Wright gave him as to what size house could be built on that lot. Mr. Newcomb asked about a 20-foot deep house. Mr. Early stated it is not a 20-foot deep house. Mr. Newcomb stated if you respect the setbacks it could not be any more than 20 feet according to the plat. Mr. Early responded the house is 34 feet by 52 feet. Mr. Newcomb stated that would not fit on the lot. Mr. Early stated the engineer said it would. Mr. Newcomb stated the graphic scale shows 50 feet between the front building lines and the rear setback and if you take away 30 feet because of the rear setback and then you would only have 20 feet left. Mr. Newcomb continued that without a setback he is trying to figure out how that could occur unless he is figuring the rear setback on the east side. Mr. Newcomb then asked if he was considering the rear setback on the east or south side and Mr. Early stated the 15 foot is on the left as you face the lot but is the same place the house has been plotted to be built before. Mr. Newcomb stated it would be helpful for him if Mr. Early would sketch in how the house will be built because it is an issue to him as to whether it is a buildable lot or not. Mr. Early stated without a variance the lot can not be built on. Mr. Early stated they can build a house that is 30 feet by 40 feet without a variance or an 1800 square foot house but they do not want to build an 1800 square foot house over there. Councilman Wood asked Mr. Early what he believes the value of the house will be - not what it cost to be built but the actual value. Mr. Early responded the completed value should appraise for over $200,000 - $225,000 is what some houses brought on Gann Road and they have 300 square feet less than what we are proposing to build and the house will appraise somewhere between $200,000 and $250,000. Mr. Wood stated a question came up about the difference in split- level and split foyer style homes. City Attorney Al Cochran stated several years ago the term split-level was used when the covenants were probably written but all things being changed, the term split foyer is used and they are actually the same. Mr. Early stated he assumed Mr. Cochran is partially correct. Mayor Bacon stated in the letter of hardship submitted from Phil and Cardi Early they state a building permit has already been obtained. Mr. Early responded that is correct and they have also obtained a construction loan and have paid for the lot. Mayor Bacon asked Mr. Broyles how a building permit could be obtained without the variance being granted first. Mr. Broyles responded that the lot met the 15000-foot requirement and the permit initially met the minimum 1800 square foot requirement and it is up to them to fit it within the setbacks. Mr. Wood asked Mr. Early, Sr., when they purchased the lot from Mr. Fouts was he the person to give the architectural approval for the house to be built. Mr. Early responded that Mr. and Mrs. Fouts were the persons to approve the house to be built and that function was not the responsibility of the homeowners association or a designee. Councilman Lnenicka asked Mr. Early if there was contemplated a number of homes to be built at which point the architectural control would change from the builder/developer to the homeowners association. Mr. Early stated he did not know about that and the only thing he did know was that when the subdivision was platted in 1984 that now there are two sets of covenants floating around. Mr. Early stated the original set of covenants and the original square footage required for homes in the subdivision and the original plat has not been changed on the county records and neither could they renew the covenants or put in new covenants unless they got every landowner in there to sign off and that has not happened. Councilman Lnenicka asked Mr. Early who, under the original covenants, has the architectural authority and Mr. Early responded Mr. and Mrs. Fouts for all lots. Councilman Newcomb asked if it was possible to move the house back further into the rear setback. Mr. Early responded that the house is sitting back from the back of the curb 35 feet the way it is plotted - not the building line as it is 25 feet from the building line. Councilman Newcomb stated the city usually does setbacks from the right of way. Mr. Early stated they could not move the house back and still build the size home they want to build. ., ......,... -- ..... Mayor Bacon recognized Gary Myers who stated he felt Phil and Cardi Early would be great neighbors in their neighborhood. Mr. Myers stated his home was the first one built in the subdivision in 1986 and they have had a homeowners association in the past and he is the only original homeowner still living in the neighborhood that was on the original homeowners association. Mr. Myers stated the association was formed due to some problems they experienced with Mr. Fouts doing some things that were jeopardizing the integrity of the subdivision. Mr. Myers stated there was a lot by the side of Mr. Fouts' son-in-law and daughter - Lee and Jane Edens - that was bought by Mrs. Owens and she was planning to build a split foyer that was not in keeping with the what the homeowners felt the integrity of the subdivision was. He stated the home was reduced in price compared to what the rest of the homes were. He stated they did have an architectural committee that looked at the blue prints .... ~. ...... August 2, 1999, meeting - continued I. ,.,;r of that house and he was a member of that committee and they determined, while sitting in Mr. Fouts' house, that the house was not the type house that should be in their subdivision for price and architectural design so there is a precedent for homeowners being involved in the decisions that have to go along with what type houses are being built in there. Mr. Myers stated that he feels this variance will allow a house to be built in there that is not conducive to the rest of the subdivision. Mayor Bacon asked Mr. Myers if there was any compromise that would hopefully satisfy everyone. Mr. Myers stated if the Early's could build a house that is conducive to the rest of the subdivision on that lot, without the variance, sure. Mr. Myers stated he is against the front yard variance and the document he signed that is in the agenda packet was signed on the basis of his being notified a variance was being requested. Councilman Wood stated he had received calls from persons objecting to a $100,000 home being built in the neighborhood and based on the testimony heard tonight he wanted to clarify that the home will certainly not be a $100,000 home. Mr. Wood stated Lot 27 still contains over 15,000 square feet so a house could still be built on that lot under the current zoning classification. .. Mayor Bacon recognized a gentleman who stated Mr. Early has stated the house Mr. Early has proposed to build is going to be evaluated at well over $250,000 or between $200,000 and $250,000, He then stated if he can build the house he is proposing and it is worth $250,000 then go ahead and give him the variance. Mayor Bacon recognized Scott Sorado, 3910 Gann Road, who stated that the property Mr. Early is talking about is up the street from him and is a split foyer that recently sold for $214,900 and is actually a little smaller than the home the Early's are planning to build. Mr. Sorado stated he felt what was being heard tonight concerned the aesthetics more than the variance request. .. Councilman Wood stated he wanted to acknowledge there were a couple of letters received in opposition to the granting of the variance request and they will be on file in the office of the City Clerk and are part of the record. He stated they were delivered tonight. Mr. Wood stated there appears to be a lot of different views as to the type and style of the proposed house and questions about the covenants, Lot 27 versus Lot 26 and he really believes there has to be a way to make this situation acceptable to all the parties. Councilman Wood stated he hoped the members of the homeowners association would be willing to meet with the applicants and work something out. Councilman Wood made a motion that the variance request at 4720 Harness Court to reduce the front yard setback from 35 feet to 25 feet and the rear yard setback from 30 feet to 15 feet be tabled until August 16, 1999. Mr. Early stated they do not want to proceed any further if the request is tabled. Councilman Cramer seconded the motion. Motion to table failed 4-3 with Council members Pete Wood, Jack Cramer and Ron Newcomb in favor of tabling the request. .. Mayor Bacon asked if there was a motion to act on the request. Councilman Wood made a motion to approve the variance request at 4720 Harness Court to reduce the front yard setback from 35 feet to 25 feet and the rear yard setback from 30 feet to 15 feet be approved. Councilman Scoggins seconded the motion. Councilman Hawkins commented that the issue about the style of the house is not an issue for the council to decide and he does support the motion. Councilman Newcomb asked if the owners of Lots 26 and 28 were present tonight and Mr. Early responded the owners of Lot 28 (at the corner of Derby Lane and the cuI de sac) Melvin and Barbara Webb submitted a letter of opposition and the owners of Lot 26 are being married this evening and were not present but submitted a letter of opposition. Councilman Newcomb stated the council has a history of not granting variances when the adjoining property owners oppose the variance that he could not support the motion. Councilman Hawkins stated that if it was the intention of trying to get these people back together to try and work this out he has no problem with that but there is no sense in the council sitting here for an hour and a half listening to all this if the intent all along was to table the issue. Mr. Hawkins stated he thought that was unfair to all the other people on the agenda. Councilman Lnenicka stated the issue before council tonight is the variance request on the front yard and rear yard setback and supports the motion. Councilwoman Capilouto stated she agreed with both Councilman Hawkins and Councilman Lnenicka that this issue is a variance and not the aesthetics of the home and will support the motion. Motion was approved 6-1 with Councilman Newcomb opposed. August 2, 1999, meeting - continued .- (G) Business License Request - Taxi International - 1690 Cobb Parkway (Ownership Change) Mr. Smith stated Mr. Antunesz Castaneda Piedad will be the agent for this establishment located at 1690 Cobb Parkway, Smyrna. Mr. Smith stated Mr. Piedad has been given a copy of the vehicle for hire ordinance and it has been reviewed with him by the Business License Officer. Mr. Smith stated the Police Department investigation revealed nothing that would preclude the issuance of the license to Mr. Piedad. 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 no opposition. Mr. Francisco Diaz (seller and previous owner) identified Mr. Antunesz Piedad and Mr. Ruiz the interpreter and representative of Mr. Piedad. Councilman Lnenicka asked Mr. Antunesz if he was familiar with the ordinance governing the taxi business and he responded that he was. Councilman Lnenicka asked where the business office will be located and Mr. Ruiz responded it will remain at 1690 Cobb Parkway until the lease expires and then he will look for a place in Smyrna. Councilman Lnenicka asked the applicant if he understood that the office and dispatcher has to be available 24 hours a day and he responded he did. Councilman Lnenicka then asked if the drivers would be dispatching cabs from their home and the applicant responded they would not. Councilman Lnenicka asked the applicant if he promised to pick up his fares, deliver them to their destination safely and treat them courteously and he responded yes. Councilman Hawkins asked the applicant if he had the required amount of insurance per taxicab that is required by State laws and he responded he did. Councilman Hawkins asked if the city has a copy of the insurance policy on file and the applicant responded they do. Councilman Hawkins suggested the dispatcher service would include a bilingual individual. Councilwoman Capilouto asked if the drivers will be taking their cars home with them and the applicant responded they will take them home. Councilwoman Capilouto asked if the cabs are dispatched from their homes. Mr. Ruiz explained the only time the cars are allowed to be parked at their homes is when they go out for lunch or a break but mostly the cars drive around the city to see if there are any fares needing to be picked up. Mr. Ruiz stated they will work on having the cars parked at the business instead of at the residences. Councilman Lnenicka stated the Police Department investigation revealed nothing that would preclude the issuance of the license for a City of Smyrna taxi permit. Councilman Lnenicka made a motion to approve the business license request for Taxi International, 1690 Cobb Parkway, ownership change. Councilman Wood seconded the motion. Motion was approved 7-0. - .... (H) Privilege License - Carniceria Y Fruteria Guerrero - 1022 Windy Hill Road - Retail Sale of Package Beer 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 no opposition. Councilman Hawkins asked the applicant, Mr. Julian Pineda, if he plans to sell beer and wine and Mr. Pineda stated he plans to sell beer primarily and then later perhaps sell wine. Mr. Hawkins stated the business license will reflect that the establishment is a grocery store and meets all the distance requirements. Councilman Hawkins stated that the Police Department investigation revealed nothing that would preclude the issuance of this license. Councilman Hawkins cautioned that the age of the person at the checkout counter must be of legal age to ring up alcoholic sales. Councilman Hawkins made a motion to approve the business license request for package beer and wine at Carniceria Y Fruteria Guerrero, 1022 Windy Hill Road, be approved. Councilman Lnenicka seconded the motion. Motion was approved 7-0. FORMAL BUSINESS: (A) Ratify Decision of Buildings Hearing Officer - 2118 Oak Drive - Mr. Smith stated the property is owned by Richard Dowling and the Hearing Officer heard this issue at the June 10, 1999, abatement hearing. Mr. Smith further stated Mr. Dowling did not respond or attend the meeting. Mr. Smith stated the hearing was for a dilapidated brick and wood frame residence that has not been occupied except by vagrants in a number of years and is considered to be a hazard to the neighborhood both residentially and commercially and there has been no response or communication with the owner since 1996. Mr. Smith stated the recommendation is to ratify the order of the Hearing Officer that the property be demolished ~.... August 2, 1999, meeting - continued within 30 days from July 14, 1999, and the cost of demolition to be charged against the owner in the form of a lien against the property. Councilman Wood stated the last hearing was held June 10, 1999, and corrective action ordered by the Hearing Officer was that the above premises be demolished within 60 days of this order and the cost of any demolition be charged against the owner in the form of a lien against the property for the cost associated therewith to free the community from a nuisance created by the owner who has failed in his duty to the community to maintain his property in a manner consistent with the health and welfare standards of the City of Smyrna. Councilman Wood made a motion to uphold the decision of the Hearing Officer. Councilman Lnenicka seconded the motion. Motion was approved 7-0. - (B) Appoint Election Superintendent Mr. Smith stated there are elections for the council and Mayor this fall and this is a recommendation to appoint an election superintendent to perform the duties associated with the election under Georgia Law. Mr. Smith continued that Linda Smith has handled this in the past and is being recommended to be the election superintendent for the November 1999 General Election. Councilman Lnenicka stated Linda Smith has done the city's elections for a number of years and has worked very well with our City Clerk and city staff. He further stated she has done an excellent job in preparing for the elections and then actually running the actual elections and getting all the polls staffed and equipped. Councilman Lnenicka made a motion to appoint Linda Smith, resident of Ward 7, as the Elections Superintendent for the November 1999 General Election. Councilman Wood seconded the motion. Motion was approved 7-0. (C) Ordinance Amendment - Adoption of Cobb County Board of Health and Georgia Department of Human Resources Rules and Regulations .. Mr. Smith stated this is a recommendation to approve a new Chapter 66-18 Cobb County of Board of Health and Georgia Department of Human Resources Rules and Regulations. He then stated the Cobb County Board of Health has requested that enforcement of their rules and regulations remain within their jurisdiction but that any citations for violations be adjudicated through the Municipal Court of the City of Smyrna. He stated the recommendation is to adopt the new chapter. Councilman Newcomb stated the Court Services Committee reviewed the Chapter and approved it and this would add a new Section 18 to chapter 66. He stated that essentially Cobb County asked that when they make citations/cases on several portions of their health code that they could adjudicate these in our municipal court. Mr. Newcomb stated the city will not enforce these cases as Cobb County will continue to do that but make their case in our court and the city would administer any adjudication from that court and collect any fines. Councilman Newcomb made a motion to approve the adoption of a new Section 18 in Chapter 66 that would incorporate the rules and regulations any future amendments of the Cobb County Board of Health and the appropriate State agency into the Code of Ordinances as presented. Councilman Lnenicka seconded the motion. Motion was approved 7-0. (D) Approval of Intergovernmental Agreement with Cobb County Board of Health Regarding Enforcement of Health Matters Councilman Newcomb stated this is the second related item and by approving this the city would adopt an intergovernmental agreement with Cobb County and authorize the Mayor to sign it and he stated he so moved that it be approved. Councilman Lnenicka seconded the motion. Motion was approved 7-0. .... COMMERCIAL BUILDING PERMITS: There were none. " August 2, 1999, meeting - continued '. BID AWARDS: (A) Computer J.D. Badging System for Parks Department Councilman Scoggins stated this system will replace the old one that was installed in 1991. He stated the Parks and Recreation Committee reviewed the bids and recommend the award be given to the lowest bidder meeting specifications - National Photographic Wholesalers. Councilman Scoggins stated this is a budgeted item and made a motion the bid be awarded to National Photographic Wholesalers for a total cost of $5,995. Councilman Lnenicka seconded the motion. Motion was approved 7-0. ... (B) Picnic Tables for Parks and Recreation Department Councilman Scoggins stated the bids that were returned were not sufficient to comply with disabled persons and for that reason all bids will be rejected. Councilman Scoggins made a motion to reject all bids. Councilman Lnenicka seconded the motion. Motion was approved 7- O. (C) Magnetic Door Locks for Probation Offices Councilman Newcomb stated the bids were reviewed by the Court Services Committee. He stated for security purposes the Probation Services Department needs magnetic locks. Mr. Newcomb stated two bids were received and even though the low bid is from ECA Systems, Inc., for $5,570 it is the recommendation of the committee to award the bid to Honeywell for $5,680 because the system offered by ECA is apparently their experiences are for installing devices for apartment complexes and did not have a track record to show the city for installing such system in a building of this type and did not come out and inspect the area. Councilman Newcomb made a motion the bid for magnetic door locks for probation offices be awarded to Honeywell for a total cost of $5,680. Councilman Hawkins seconded the motion. Motion was approved 6-1 with Councilwoman Capilouto abstaining. CONSENT AGENDA: ....., (A) Approval of July 19, 1999, Minutes (B) Approval to Advertise Amendment to Section 6(b) of City Charter (C) Approval to Use Council Chambers for Ward 2 Meeting (D) Approval to Request bids for Picnic Tables (E) Budget Adjustment - Transfer Funds from Contingency for Fireworks Display, New Year's Eve Celebration (F) Approval to Request Bids for Riding Lawnmowers - Parks Department (G) Approval to Install Stop Signs on Mill Pond Road at Mill Pond Condominiums (H) Approval to Request Bids - Spring Road Median Landscaping (I) Approval to Enter into Negotiations with American Transit Display Systems (J) Approval to Amend Fee Schedule for Community Center bookings (K) Approval to Surplus (3) Fire Engines and Negotiate Sales Price Councilman Lnenicka made a motion that the consent agenda be approved. Councilman Cramer seconded the motion. Motion was approved 7-0. COMMITTEE REPORTS: Councilman Wood had no report this evening. Councilman Lnenicka commented about the telecommunications tower issued heard tonight adjacent to the Cumberland Vail townhomes and Vinings Forest condominiums and he will be in touch with those folks to see if a meeting can be arranged with Nextel and any interested parties prior to the next council meeting. - Councilman Cramer and Councilman Hawkins had no report this evening. Councilman Scoggins announced this Friday night is the birthday celebration and invited everyone to attend. August 2, 1999, meeting - continued Councilman Newcomb announced the approval on the consent agenda to request bids for the landscape median on Spring Road. He stated the city has the design from Post Properties and around about September will begin putting that stuff in. Mr. Newcomb stated that on Wednesday, August 11, is a Ward 2 meeting here in the City Hall Council Chamber. Councilman Newcomb announced the Fire Station dedication will be Saturday, August 7, at 10:00 a.m. Councilwoman Capilouto announced that her father had been ill and he wanted her to thank everyone for calling and asking about him. Ms. Capilouto stated while her father was in intensive care she met two ladies from Smyrna and she wanted them to know she was thinking of them. .. Mayor Bacon stated he had planned to announce the birthday celebration and the dedication of the Fire Station and to also make sure Dr. Capilouto knew everyone was thinking of him during his illness. Mayor Bacon stated he was glad Dr. Capilouto was home from the hospital. ADJOURNMENT With no further business, the meeting adjourned at 11 :04 p.m. ~~d? fJ1/~.' p~ /{)~#- MELINDA DAMERON, CITY CLERK ~~\f1' ~ ~ CHARLENE CAPILO TO, WARD 1 ..... ~ ~., RON NEWCOMB, WARD 2 J~ .. '4OGG~~ ,~dW / J CK CRAMER, WARD 5 ~~D~ ...