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07-09-2007 July 9, 2007 Council Meeting July 9,2007 - The regular scheduled meeting of Mayor and Council was held at Smyrna City Hall. The meeting was called to order by presiding officer Mayor A Max Bacon at 7:30 o'clock p.m. All council members were present. Also present were Deputy City Clerk Lee Miller, City Attorney Scott Cochran, Community Development Director Ken Suddreth, City Administrator Wayne Wright, Planner Rusty Martin, Assistant City Administrator Eric Taylor and representatives ofthe press. Invocation was given by Pastor Robin Hancox from International Gospel Outreach Church, followed by the pledge to the flag. AGENDA CHANGES: Mayor Bacon stated agenda item 8 E (Approval of prohibition of smoking at all City-sponsored outdoor concerts and events) will be removed from the consent agenda. Mayor Bacon stated approval of use of council chambers for a meeting of the Bank Street homeowners association (HOA) will be added to the consent agenda. MAYOR'S REPORT: Mayor Bacon had no report. LAND ISSUES/ZONINGS/ANNEXATIONS: (A) Public Hearing- Variance Request V07-017 - Reduction of the ~etback requirement for driveways in the R-15 Zoning District from five-feet to zero-feet - 3248 King Springs Road - Mr. Wright stated this request was referred from the License and Variance Board (LVB) in June because of citizen opposition. Mr. Wright stated staff recommends approval ofthe request. Mayor Bacon stated this is a public hearing and asked for public comment, and the oath was administered to at least three persons by Mr. Cochran. Council Mell!ber McNabb recognized Ms. Elizabeth Hetzel representing EL Designs, Inc. (ELD). Mr. Suddreth showed the present officials a graphic representation of the driveway in question and the segment of the driveway which encroaches on the side setback and property line. Mr. Suddreth stated the part of the driveway which crosses the property line would have to be removed. Mayor Bacon recognized Mr. Doug Mathies, residing at 3244 King Springs Road. and Mr. Mathies stated that, now that he has a better understanding of the applicant's plan, he has no objections to this variance request. l, Mayor Bacon recognized Ms. Amy Thompson, residing at 3258 King Springs Road, and Ms. Thompson stated the existing driveway does not conform to the configuration of the original one. Ms. Hetzel stated she is amenable to a suggestion from Ms. Thompson that ELD purchase a section of Ms. Thompson's land and build a fence between her property and the subject tract. - July 9. 2007 2 Council Member Lnenicka asked if sale of a portion of 3258 King Springs Road would create some form of encroachment on that property, and Ms. Thompson said yes. Mr. Cochran stated approval of the variance as proposed would be subject to both property owners coming to some agreement and that the property at 3258 King Springs Road would be grandfathered against - encroachment. MOTION: Council Member McNabb made a motion to approve Variance Request V07-017 for reduction of the setback requirement for driveways in the R-15 Zoning District from five feet to zero feet at 3248 King Springs Road and 3258 King Springs Road. The motion was seconded by Council Member Scoggins. Motion was approved 7 - O. (B) Public Hearing- Variance Request V07-034 thru 037 - Waiver of minimum lot area and lot width requirements in R-15 zoning district - 2794 Hillside Road - Tim Allen Homes, LLC Mr. Wright stated the applicant proposes to build two new single-family homes on the subject property. Mr. Wright stated the subject tract comprises two existing lots of record which do not meet current zoning standards for lot area and lot width. Mr. Wright stated the applicant is requesting two variances for each lot to allow construction of two houses in place ofthe one existing structure. Mr. Wright stated this request was referred from the License and Variance Board in June because of citizen opposition. Mr. Wright stated staff recommends approval of all four variance requests. Mr. Suddreth showed the present officials a graphic representation of the subject property and a proposed site plan for lots 6 and 7. Mr. Suddreth stated the two existing lots are comparable in size to other lots in the surrounding subdivision. Mr. Suddreth stated staff believes the requested variances will not adversely affect the surrounding residences and that approval is recommended. Mayor Bacon asked if additional water runoff would be created by construction of an additional house, and Mr. Suddreth stated the city engineer would have to make certain that post-development water runoff does not exceed the predevelopment level. - Mayor Bacon recognized Mr. Brian Daughdrill, an attorney representing the applicant, and Mr. Daughdrill stated the final plat for Cheney Woods subdivision was filed during August of 1954. Mr. Daughdrill stated the subject property was platted as lots 6 and 7 and that the property has retained this legal description throughout every subsequent deed of conveyance. Mr. Daughdrill stated a copy of the chain of title and copies of all the certified plats have been filed as part of the record. (Clerk's note: The referenced information is appended hereto as Exhibit "A") Mr. Daughdrill stated all but a small number of lots in the subject area were developed as originally platted. Mr. Daughdrill stated the proposed structures will each be less than 3,000 s.f. in size. Mr. Daughdrill stated the requested variances will not create lots but will recognize existing platted lots of record predating the City's code of ordinances. Mr. Daughdrill stated there is no self-created hardship in this case because the developer did not create lots 6 and 7. Mr. Daughdrill stated the two lots are not being created or subdivided because they have been in existence for over fifty years. Mr. Daughdrill stated a strict application of the relevant provisions of the zoning code would deprive the developer of reasonable use of the second lot. Mr. Daughdrill stated the applicant is requesting the minimum variance needed to recognize two existing platted lots of record. Mr. Daughdrill expressed the view that the two proposed structures are of a scale which is not expected to be incompatible with the surrounding houses. Mayor Bacon stated this is a public hearing and asked for public comment. and the oath was administered to numerous persons by Mr. Cochran. - Julv 9. 2007 3 - Mayor Bacon recognized Mr. Stephen G. Smith, Jr., an attorney representing Mrs. Susan Wilkinson, and Mr. Smith stated his client is in opposition to the requested variances. Mr. Smith stated that according to Section 506 ofthe City's zoning code" no lot, even though it may consist of one or more adjacent lots of record, shall be reduced in size so that the lot width or depth, ... lot area per dwelling unit or other requirements of this ordinance are not maintained..." Mr. Smith stated the applicant's proposal for the subject property is not allowed by the City zoning ordinance. Mr. Smith stated the applicant wants to separate the subject property into two non- conforming lots. Mr. Smith stated the two lots combined meet R-15 requirements and that the applicant is, in fact, creating a hardship in this case. Mr. Smith stated reasonable use of the subject property is the same use that has exited there for over fifty years. Mr. Smith stated he believes there is no grandfathering in this case because the applicant is seeking to change the circumstances on the subject property. Mr. Smith stated he believes the requested variances are not minimal in nature because the existing use requires no variances whatsoever. Mr. Smith made reference to the case of Matheson v. Dekalb County which he believes constitutes a pattern of facts similar to those found in this variance request. Mr. Smith stated that according to this case local zoning authorities are not required to grant variances to allow expansion. Mr. Smith stated there are legal grounds for the city council to deny these requested variances. Mr. Smith stated the applicant's proposal would increase the amount of impervious surface on the subject property. Mr. Smith stated a goal of the zoning ordinance is to decrease density but the request under consideration would increase density. Mr. Smith stated the unfinished basement component of the proposed structures will boost their square footage by a considerable amount. Mr. Smith stated the applicant's proposal would change the character of the neighborhood. .... Mayor Bacon asked Mr. Daughdrill ifthe subject property was advertised as two lots at the time it last changed hands, and Mr. Daughdrill stated the property was purchased with such an expectation in mind. Mr. Daughdrill stated the applicant's affidavit indicates the subject property has a certain value as separate lots and that maintaining the tract as one lot diminishes the value of the property by about 35%. Mayor Bacon recognized Mrs. Susan Wilkinson, residing near the subject property, and Mrs. Wilkinson expressed the view that ifthe subject tract is subdivided the two resulting lots would not be comparable to the lot upon which her house is built. Mrs. Wilkinson stated she is not certain which lots Mr. Daughdrill was talking about. Mrs. Wilkinson stated she believes the homes proposed by the applicant for the subject property will each have a basement comprising some 3,000 s.f. Mrs. Wilkinson stated she believes each proposed house would be closer to 7,000 s.f. in size. Mrs. Wilkinson stated she is concerned about the stability and integrity of her neighborhood. Mrs. Wilkinson expressed concerns about storm water runoff which could be generated by new houses on the subject property. Mrs. Wilkinson stated she believes approval of the variances as requested could set a precedent for future redevelopment in her neighborhood. Mrs. Wilkinson commented favorably about the houses and scenery in her neighborhood. Mrs. Wilkinson stated that building large houses on small lots would diminish the appeal of the neighborhood. Mrs. Wilkinson stated there are many people in her neighborhood who feel the same way she does about this matter. Mrs. Wilkinson provided to those present a summary of the comments she received while collecting signatures on a petition expressing opposition to the proposal under consideration. - Mayor Bacon recognized Mrs. Laura Pew, owner of the property at 2793 Hillside Road, and Mrs. Pew stated she is opposed to this variance request and redevelopment proposal. Mrs. Pew stated the proposal under consideration does not meet requirements for R-15 zoning. Mrs. Pew stated the height ofthe proposed new structures wi II be about 37.5 feet and wi II be out of scale with July 9, 2007 4 surrounding structures. Mrs. Pew stated the proposed new structures will not be compatible with the neighborhood. Mrs. Pew stated she believes approval of the variances as requested could set a precedent for future redevelopment in her neighborhood which will result in overcrowding and destruction of trees and lawns. Mrs. Pew stated she believes approval ofthis variance request will have a negative impact on the value of her property. Mrs. Pew asked the present officials to deny this variance request. - Mayor Bacon recognized Mrs. Joan Mayfield, residing on Hillside Road, and Mrs. Mayfield expressed the view that the zoning ordinance is being violated. Mrs. Mayfield commented favorably about the houses and landscape in her neighborhood. Mrs. Mayfield stated her neighborhood is stable. Mrs. Mayfield stated she would like to see the integrity of her neighborhood protected by the zoning ordinances. Mrs. Mayfield stated her neighbors like the stable atmosphere and ambiance in its present state. Mrs. Mayfield stated Cheney Woods is different from newer neighborhoods and asked the city council to let the resident there have their uniqueness, woods and shade trees. Mrs. Mayfield stated there are existing laws to protect homes and zoning. Mrs. Mayfield stated the City's officials are here to protect the zoning they put in place. Mayor Bacon recognized Mr. James Swann, residing at 729 Timberland Street, and Mr. Swann expressed concerns about storm water runoff which could be generated by new houses on the subject property. Mr. Swann expressed concerns about loss of trees and loss of natural beauty on the subject property which could result from the proposed construction. Mayor Bacon recognized Mr. Ed Whittington, residing at 720 Pinehill Drive, and Mr. Whittington stated he believes approval of the variances as requested could set a precedent which will result in overcrowding of neighborhoods. Mr. Whittington stated no more "McMansions" are needed in Smyrna. Mr. Whittington stated he is opposed to this variance request. - Mayor Bacon recognized Mrs. Lee Browning, residing at 2770 Hillside Road, and Mrs. Browning stated two houses are not acceptable on the subject property. Mrs. Browning asked the present officials to deny this variance request. Mayor Bacon recognized Mr. Dave Lincoln, residing on Parkwood Road, and Mr. Lincoln stated the character of the neighborhood should be maintained and that the proposed structures are incompatible with existing ones. Mr. Lincoln stated greenspace should not be destroyed in order to make money for someone. Mr. Lincoln stated the owner of the subject property could make improvements to the existing structure and sell it. Mr. Lincoln commented favorably about the trees in the subject area and the positive impact they have on the environment. Mr. Lincoln stated he is opposed to this variance request. Mayor Bacon recognized Ms. Julie Jenkins, residing at 858 Bank Street, and Ms. Jenkins stated the proposed structures could jeopardize the integrity of the neighborhood. Mayor Bacon recognized Mr. Murray Glass, residing at 850 Bank Street, and Mr. Glass stated he is opposed to this variance request. Mr. Glass expressed concerns about storm water runoff which could be generated by new houses on the subject property. Mayor Bacon recognized Ms. Casey Clavin, residing in Williams Park, and Ms. Clavin stated Cheney Woods is an intact neighborhood with mostly original structures in good repair. Ms. Clavin stated the integrity of this area would be unfavorably compromised by the proposed project. Ms. Clavin stated it is likely many trees will be lost if the proposed structures are built. - July 9, 2007 5 - Ms. Clavin stated the Georgia Trust for Historic Preservation considers a structure or district to be historic when it reaches fifty years of age. Ms. Clavin stated there are good reasons to want to preserve this neighborhood. Ms. Clavin stated the existing structure at the subject location is a viable one. Ms. Clavin believes approval of the variances as requested could set a precedent for future redevelopment in this neighborhood. Ms. Clavin stated Cheney Woods is an ideal place for elderly people to live for a number of reasons. Mayor Bacon recognized Mr. Johnny Potter, residing at 4935 Hickory Mill Drive, and Mr. Potter stated construction of the proposed structures would not destroy the surrounding neighborhood but it will damage it. Mr. Potter stated water detention structures are unattractive. Mr. Potter stated the proposed structures will be larger than existing houses in the subject area. Mr. Potter expressed concerns about possible loss of trees in connection with this proposal. Mr. Potter stated he believes his father would have changed the legal description of the subject property ifhe had reason to believe it would prevent the type of redevelopment as proposed by the appl icant in the subject area. Mr. Potter stated the proposed redevelopment may be legal but it would be wrong. Mayor Bacon recognized Ms. Bonnie Barnert, residing at 776 Pinehill Drive, and Ms. Barnert stated she believes the subject neighborhood has a certain feeling which appeals to her. Ms. Barnert stated the residents of her neighborhood are fortunate to have many young people living there who appreciate the qualities ofthe houses there. Mrs. Wilkinson stated she is opposed to this variance request. Mrs. Wilkinson stated she believes approval ofthis variance request will have a negative impact on the value of her property. - Mr. Daughdrill stated Section 506 of the City zoning code is not applicable in this case. Mr. Daughdrill stated the applicant is not altering the size of the lots. Mr. Daughdrill stated the vesting in Matheson v. Dekalb County did not derive from a platted lot but rather from construction of a duplex and the rezoning of the property to R-75. Mr. Daughdrill stated the applicant's vested rights in this case do not stem from what was built on the property but from the platting ofthe tract in 1954. Mr. Daughdrill stated stonn water management measures are addressed by the city engineer and are not associated with the variance process. Mr. Daughdrill stated the height of the proposed structures would be about 29' and the basements do not measure 3,000 s.f. Mr. Daughdrill stated Mrs. Wilkinson's house is built on a property which was originally platted as two lots. Mr. Daughdrill stated any house on any lot in the subject area could be removed and replaced with a new structure. Mr. Daughdrill stated that speculation as to what the elder Mr. Potter mayor may not have done in regard to the legal description ofthe subject property is not evidence and not properly before the council and that he objects to this statement. Mr. Daughdrill stated the proposal before the council is a viable use for the subject property. Mr. Daughdrill stated older ranch-type houses are considered by many people to be functionally obsolete and they are being removed and replaced with newer structures. Mrs. Pew posed questions regarding lot sizes in the subject area which were addressed by Mr. Suddreth. Mrs. Browning provided details to those present concerning the marketing of the subject property a few years ago. - Mrs. Wilkinson stated the smaller lots in the subject area contain smaller houses which are compatible with the lots. July 9. 2007 6 Mrs. Wilkinson stated the property tax statement for her property reflects only one lot. Mrs. Pew asked if the proposed structures will conform with the neighborhood covenants. Mr. Cochran stated if the covenants are recorded with the deed and have not expired they mayor may not be active. Mr. Cochran expressed the view that the covenants have no bearing on the variance matter under consideration. Ms. Pew presented a copy ofthe covenants for inclusion in the record. (Clerk's note: The referenced information is appended hereto as Exhibit "8" and a petition from citizens in opposition to this proposal is appended hereto as Exhibit "C") - Council Member Smith acknowledged that he signed a petition expressing objection to this variance request. Council Member Smith stated that, to be fair to all concerned, he will abstain from discussing this matter and voting on it. Council Member McNabb commented favorably about the positive manner in which the residents of the subject area expressed their views on this subject. Council Member McNabb commended Council Member Smith for taking responsibility for his actions and for his decision to abstain from participation in this process. Council Member McNabb stated he will not contest the applicant's assertion that he is within his rights to build two houses on the two separately platted lots. Council Member McNabb stated he considers the structures proposed for the subject property to be totally out of character with the surrounding neighborhood and for this reason he will not support this variance request. Council Member Pritchett stated she supports the rights of property owners, and that she is not comfortable with the idea of elected officials imposing excessive restrictions on land use. Council Member Lnenicka commented favorably about the civic-mindedness and civility demonstrated at this meeting by the residents ofthe subject area. Council Member Lnenicka stated this is the kind of community Smyrna is. - Council Member Newcomb stated Council Member Smith is doing the right thing by abstaining from participating in this process and that he respects his decision. MOTION: Council Member Newcomb made a motion to approve Variance Requests V07 -034 through V07 -037 for waiver of minimum lot area and lot width requirements in R-15 zoning district for the property at 2794 Hillside Road for Tim Allen Homes, LLC. The motion was seconded by Council Member Pritchett. Council Member Lnenicka stated he appreciates the views expressed by the residents of the subject area and the he is proud ofthe cohesiveness they find in their neighborhood. Council Member Lnenicka stated there is no overlay ordinance to regulate such details as house size, exterior finish materials and orientation of structures on lots. Council Member Lnenicka stated this is the way most people seem to want housing regulations to be. Council Member Lnenicka stated he would consider an overlay ordinance if the members of a particular community expressed interest in such regulations. Council Member Lnenicka expressed the view that the illustrations ofthe proposed structures furnished by the applicant seem insufficient because they are vague in many areas. Council Member Lnenicka stated they do not appear to be the type of houses he would like to see built in the subject area. Council Member Lnenicka stated he is unhappy with the high grass and weeds and other evidence of indifferent maintenance he has observed at the subject property since the applicant took ownership. Council Member Lnenicka asked the owner to make arrangements to have the grass cut and the grounds cleaned up at the subject property tomorrow. Council Member Lnenicka stated the issue under present consideration is the number of lots which legally exist on the - Julv 9, 2007 7 - subject tract. Council Member Lnenicka stated evidence presented indicates there are two legally existing lots at the subject location. Council Member Lnenicka stated he will support the motion. Council Member Newcomb stated he believes the proposed structures are out of character with the subject area, but there seems to be little doubt that there are two existing lots at the subject location. Council Member Newcomb stated a subdivided view of the subject tract reveals two lots which are not dissimilar in size from surrounding properties. Council Member Newcomb stated he will support the motion. Motion was approved 4 - 2, with Council Members McNabb and Wood in opposition and Council Member Smith abstaining. Mayor Bacon stated he will veto this decision, and that he will communicate such intention in writing to the council members. (Clerk's note: A copy ofthe notice of veto is appended hereto as Exhibit "D") PRIVILEGE LICENSE: (A) Public Hearing- Privilege license request - retail pouring (beer and wine) - New application for Ameribistro, Inc., d/b/a Ameribistro - 3315-C South Cobb Drive - Woo Chin Kim, applicant MOTION: Council Member McNabb made a motion to table privilege license request for retail pouring of beer and wine for Ameribistro, Inc., d/b/a Ameribistro at 3315-C South Cobb Drive for Woo Chin Kim, applicant until the July 16,2007 meeting. The motion was seconded by Council Member Scoggins. Motion to table the measure was approved 6 - O. (Clerk's note: Council Member Wood was not present at the time ofthis vote) (B) Public Hearing- privilege license request - retail pouring of beer, wine and liquor - Blusushi, Inc. - 2700 Cobb Parkway, Suite 3B - 4B - Hai Van Do, applicant - Mr. Wright stated the applicant has completed a responsible alcoholic beverage sales and service class as required by the City ordinances. Mr. Wright stated inquiry by the City police department has disclosed no information which would preclude issuance ofthe requested license. Mayor Bacon stated this is a public hearing and asked for public comment. There was none. Council Member Pritchett recognized Messrs. Hai Van Do and Sun Do. At Council Member Pritchett's request, Mr. Do provided details to those present concerning the business his father, the applicant, plans to operate. Council Member Pritchett asked Mr. Do what steps will be taken to make certain alcoholic beverages are sold at Blusushi only in a lawful manner. Mr. Do stated he takes policy matters seriously, and that he and his father will be on the subject premises during business hours. Mr. Do stated individual servers must have valid permits before they can be hired and are required to undergo orientation. Mr. Do stated employees must sign a statement acknowledging that they understand policies governing the sale of alcoholic beverages and will comply with them. Council Member Pritchett asked Mr. Do if servers at Blusushi understand the full extent of their obligations under the law when they serve alcoholic beverages, and Mr. Do stated their responsibilities are explained to them. Mr. Do stated servers under his management will check for valid identifications before dispensing alcoholic drinks and will be trained to look for the red flash on Georgia drivers licenses which indicate underage bearers. - MOTION: Council Member Pritchett made a motion to approve the privilege license request for retail pouring of beer, wine and liquor for Blusushi, Inc. at 2700 Cobb Parkway, Suite 3B - 4B for Hai Van Do. The motion was seconded by Council Member Newcomb. Motion was July 9, 2007 8 approved 7 - O. FORMAL BUSINESS: - (A) Amendment to the agreement with Potts Construction for renovation of the former Brawner Hospital property Mr. Wright stated the first phase of the agreement consisted of development of detailed cost projections for renovation of the subject building and surrounding property. Mr. Wright stated that in order for the project to move forward to the construction phase, it is necessary to amend the contract with Potts Construction to provide funds for construction. Mr. Wright stated staff recommends approval of the amendment and authorization for the Mayor to sign and execute the amendment to the agreement with Potts Construction. Council Member Wood recognized Messrs. Howard Bach and Chris Kingsbury of Moreland Altobelli. Mr. Bach provided a summary of work completed at the subject location to date. MOTION: Council Member Wood made a motion to approve amendment to the agreement with Potts Construction for renovation of the former Brawner Hospital property and authorization for the Mayor to sign and execute the amendment. The motion was seconded by Council Member Lnenicka. Messrs. Bach and Kingsbury responded to additional questions from the present officials. Motion was approved 7 - O. COMMERCIAL BUILDING PERMITS: There were none. - MOTION: Council Member Wood made a motion to suspend the rules for addition of an item to the consent agenda. The motion was seconded by Council Member Scoggins. Motion was approved 7 - O. MOTION: Council Member Scoggins made a motion to add item 8 E (Approval of use of council chambers for a meeting of the Bank Street homeowners association (HOA) on July 25, 2007 from 7:00 p.m. until 9:00 p.m.) to the consent agenda. The motion was seconded by Council Member Pritchett. Motion was approved 7 - O. CONSENT AGENDA: (A) Approval of June 18, 2007 minutes (B) Acceptance of land donation at corner of Oakdale Road and Turner Road (C) Approval of a name for the park at the former Brawner Hospital (Taylor-Brawner Park) (D) Approval of lease agreement at 1198 Concord Road (E) Approval of use of council chambers for a meeting of the Bank Street homeowners association (HOA) on July 25, 2007 from 7:00 p.m. until 9:00 p.m. MOTION: Council Member Wood made a motion to approve the consent agenda. The motion was seconded by Council Member McNabb. Motion was approved 7 - O. COMMITTEE REPORTS: Council Member Pritchett yielded the floor with no report. - July 9, 2007 9 Council Member Newcomb yielded the floor with no report. - Council Member Scoggins yielded the floor with no report. Council Member McNabb reminded those present about the upcoming City concert. Council Member Smith yielded the floor with no report. Council Member Lnenicka yielded the floor with no report. Council Member Wood provided details to those present concerning an upcoming meeting of the Bennett Woods residents. CITIZENS INPUT: There was none. Mayor Bacon provided details to those present concerning upcoming park dedication ceremonies. ADJOURNMENT: With no further business, the meeting was adjourned at 10:24 p.m. - - July 9, 2007 fi A. MAX BACON, MAYOR Ll~~ CAJ~ CHARLES PETE WOOD, WARD 7 10 - ~~ jJvl RON NEWCOMB, WARD 2 - - '" """'i .. ''1' I CERTIFY that the Restrictive Covenants of .CHENEY WOODS" Subdivision, is set ro~th below and rep~esents a true and co~~eot copy of same, recQrded ~n Deed Book 271, Page 215~ Cobb County, Georgia, Records, and are those Restrictive Covenants affecting the attached loan. 7~~~ July 9, 2007 Exhibit "B" CHENEY WOODS SUBDIVISION SN~NA, COBB COUNTY, GEORGIA P ART_ J.. PREAMBLE This the 4th day of January, 1954. The Smyrna Land Company, a corporation of the State of Georgia, Gwns a certain subdivision located at Smyrna, Cobb County, Georgia, as per plat of survey thereof made b~Watts and Browning, Oetober 1952, and recorded in Plat Book 10, Page 157, of the records of the Clerk. of the Superior Court of Cobb County, Georgia, with the exception of Blocks A and B shown thereon. Tbe legal address ef the owner, Smyrna Land Company, is 410 Palmer BUifding, Atlanta, Georgia. PART B. AREA OF APPLICATION B-1. Fu~IY PROTECTED RESIDENTIAL AREA. The residential area covenants in Part C in their entirety shall apply to the above described property with the exception of Block A and B thereof. PART C. RESIDENTIAL AREA COVENANTS . C-l. LAND USE AND BUILDING TYPE. No lot shall be used except for residential purposes, No building shall be erected, altered, placed, or permitted to r~ain on any lot other than one detached sing1e- family dwelling not to exceed two and one-half stories in height and a private garage for not more than two cars. C-2. ARCHITECTURAL CONTROL~. No building shall be erected, placed, or altered on any lot until the construction plans and specification~ and a plan showing the location of the structure have been approved by the architectural control committee as to quality of workmanship and materials, harmony of external design with existing structures, and as to location with respect to topography and finish grade elevation, No fence or wall shall be orected, placed or altered on any lot nearer to any street than the minimum building setback line u~ess similarly approved, Approval shall be provided in Part B. C-3, DWELLING COSTf QUALITY AND SIZE. No dwelling shall be per~ mitted on any lot a a cost or less than $8,000.00 based upon cost levels prevailing on the date these covenants are recorded1 it being the intention and purpose of the covenant to assure that all dwellin[ shall be of a quality of workmanship and materials substantially the same or better than that which can be produced on the date these covenants are recordod at the minimum cost stated herein for the minimum permitted dwelling size, The ground floor area of tho main structure, exclusive of one-story open porches and garages, shall be not less than 1150 square feet for a one-story dwelling, nor less than 800 square feet for a dwelling of more than one story. ~ C-4. BUILDING LOCA1'ION. No building shall be located 6n any lot nearer to the front line or nearer to the side street line thah the minimum building setback lines shown on the recorded plat. In any event no bui~ding shall be located on any lot nearer than 35 feet to the front lot line. No building shall be located nearor than 5 feet to an interior lot line. No dwelling shall be ~ocated on any interior lot nearer than 50 f<;:let to the rear lot lino. For the purposos of this covenant, eaves, steps, and open porches shall not be considered as a part ot a building, provided, howover, that this shall not be construed to permit any portion of a building, on a lot to encroach upon another lot. C-5. LOT AREA AND WIDTH. No dwolling shall be erected or placed on any lot having a width of less than 75 feet at the minimum building setback line nor shall any dwelling be erected or placed on any lot having an area of less than 10,000 square foet. 0-6. EA.8EMENTS. Easomepts for installation and maintenanoe of' uttrltles dncr-druinage facilitiosarc reserved as shown on the recorded plat and over the rear five feet of each lot. C-7. NUISANCES. No noxious or offensivo activity shall be carried on upon any lot, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood. C~8, TEMPORARY STRUCTURES. No structure of a temporary character, trailer, basement, tent, shack, garage, burn, or other outbuilding '~ sha.ll be used on any lot at any time us a residence either tempor- arily or pormanently. C~9. LIVESTOCK AND POULTRY. No animals, livestock, or poultry of any kind shull 00 raised, bred or kept on any lot, except that dogs, cats, or othor household pets may be kept provided that they are not kept, bred, or maintained for any commercial purpose, C-10. GARBAGE AND REFUSE DISPOSAL. No lot shall be used nr main- taj,ned as a dumping ground.for rubbish. Trash, garbage, or other .~"/i._./a~~be~ept except in sanitary containers. All inoiner'~ a'to>>..... Q'th$J- eqtt1pment tor the storage or disposal. of' such ..torlal shall be kept in a clean and sanitary condition. e..1.;)..... SEWAGE DISPOSAL. No individual sewage-disposal system shall bciJi~tted on any lot unless such system is designed, located, and ....~ctod in accordance with the requiremen1:;s, standards and ~~ommendations of the City of Smyrna, Georgi!. Approval of such .,.tem as installed shall be obtained from such authority. f:.~~.SIGH'l' DISTANCE AT INTERSECTIONS. No fence, wall, hedge or .~~ planting which obstructs sight lines at elevations between 2_4.6 feet abo'tlO the roadways shall be placed or permitted to J-e....tiJ,/~n.any. .come:r....lot within the triangular area formed by the 8t;reet.~()pa:t"tylil1es and 0. line connecting them at points 25 feet f'l"olll'tbe1.ntorsoctlon ot the Stroet lines, or in case of a rounder':, properqr corner t"Pom the street proporty lines extended. The same s1.ght-linelimitatlons shall apply on any lot within 10 feet from the intersection ora streot property line with the edge "r a driveway ~ a.lley pavements No tree shall bo permitted to remain within such distances of such intersections unless the foliage line is maintained at sufficient height to prevent obstruction of such sight lines.. PAJi'l' D. ARCHITEC~HJRAL CONTROL COMMITTE],. .1. .~$HIP. The architectural control committee is composed otW..A"~IN~ T.T. FLAGLER, JR., and J# B" GODWIN, all of AtllU1'ta,i~01"~1a.. .A...3or1ty of the committee may designata a rGpre&Je",~...'1v&to.actr to'1/' 'it. In the event of death or resigna.- t10n ot.~. _J.llbel'otthe. committee, the remaining members shall have tUllautbor1't,f;odesignate a suecessor. Neither the members of the coDl'J11ttee~Mr .its designated representative shall be en- titled to art3co~el'lsation for services perf'ormed pursuant to this covenant. At any time, tbe then rocl".rd ownors of a majority of the lots shull have the power through a. duly recorded writton instrument to change tho membership of the committee or to with- draw from the committee or restore to it a~y of its power~ and duties. ~ D-2. PROCEDURE. The ,Qonnnittee's approval or disapproval as requiroa.in these covenants shall be in writing. In the event the committee, or 1ts designated representative, fails to approve or disapprovo within thirty days after plans and specifioations have been submitted to it, or in any event, if no suit to enjoin the construction has been cOlmnenced prior to the completion there. of, approval will not be required and the related covenants shall Qe deemed to have been fully complied with. PART E. GENERAL PROVISIONS. E-l. TERtiI. These covenants are to run w-ith the land and shall be binding op all parties and all persons claim1ng under them for a period of twenty-five years from the date those covenants are recorded, after which ~ime said covenants shall be automatically extended for successive periods of 10 years unless an instrument signed by a majority of the then owners of tho lots .has boen .recorded, agreeing to chango said covenants in whole or in part. E..2. ENFORCEMENT. Enforcoroont shall be by proceedings at law or in equity' 'against any person or person~" violating or attempting to violate any covenant either to rest~4in violation or to rocover damages. E-3. SEVERABILITY. Invalidating of anyone of thoso covonants by judgment or court order shall in no wise afrect any of the other provisions which shallremain in full force and effect. .~ '~--... PART F. ATTEST. - Respectfully submitted this 4th day of Ja~uary, 1954. SMYRNA LAND COMPANY By T. S. HA~La JR. Pre,! ont ATTEST: Wm. A. MoCLAIN Seoretary (Seal) WITNESSES JEAN C. DA VI.E1 JULIA A. HAMMACK (Seal Attached) Notary Public State of Georgia County of Ftuton iN Filed January 29, 1954, 9:30 A.M. Rocorded Fobruary 2, 1954 I/JI "148 i WARRANTY DEED RECORD 280 -------.---...--------.--------.--.---......--..------._.~..._- --.-...---...--.--.-----------.---.------------.----------.---..--.-----,----.-- .< -..-.--...- -- .-.- -.- .-..- TO -) U\ j State of Georgia COBB COUNTY _ .._ _. _ __m_umuSMYRNA_LAND_uCOMPANY _m..u.G:ABrn.EIL...A._..f..Q.TTE.R THIS INDENTURE, Made this.. ___.2.O't.b__..._..day of. J.\J.Jyu uu.., in the year of our Lord One Thousand Nine Hundred and ... -uFift-y-FoUP.m--... .__.between... _ __ .$.MXRNA_..__Lt\NP.......C.Q.MP.AN.Y......a..c.O.I'.p.ar..a.t1.on.... - . ..__......of the State of ..g.~().~.g~~u m............_and County of ._.____Ji'.v,.l.t.Qn..._ of the first part, and..__..__GARDNER_.A...__.P.O.T.TER__. of the State of..._.........__..Ge.O_rg.lB.....m..m...... .__.. __....and County oL_.._ .Co-bb .. ._...._._.of the second part, WITNESSETH: That the said part ._."1- ...00.___ of the first part, for and in consideration of the sum 01._..__ .-----'I.e.n.--.......-.....--.-....--..(.oIP.lO..-OO.J-..----.--.-.-.--..an-d.-o-.th-ep..-.v.al,.uahl-e.----eons.-1de!"~t.ion..--....--..-.---.-- .....______..___._____.....__.___.DOLLARS, in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, haS .______.____ granted. bargained, sold and conveyed, and by these presents do..____________e.s grant, bargain. sell and convey unto the said parL __..--'1'._..__ . of the second part. ___.___...11.1.s__m__...__..__.....______..._ heirs and assigns. all that tract or parcel of land lying and being in Land Lot 377 of the 17th District, Second Section of Cobb County, Georgia, being Lots 6 and 7 of Block H of the Cheney Woods Subdivision, as per plat of survey by Watts and Browning, date': May 31, 1954, and more particularly described as follows: BEGINNING at a point on the west side of Hillside Road One Hundred Fifteen (115) feet from the southwest intersection of Timberland Street and Hillside rtoad; running thence south along the west side of Hillside Road On~ Hundred Sixty (160) feet to a point; running thence west One Hundred F~r.ty (140) feet to the southeast corner of Lot 12 of said Subdivision; running thence north along the eastern boundary line of Lots 11 and 12 one Hundred Twenty-Five (125) feet to a point on the southern boundary of Lot 9 of said ~bdiv isi on running thence north- easterly along the southeastern boundary of said lot 9 fifty (50) feet; running tnence east along the southern boundary of Lot 8 of said Subdivision One Hundred Five (105) feet to the west side of Hillside Road and the point of beginning. (~2 .20 EEVENUF, STAMPS) TO HAVE AND TO HOLD, The said bargained premises, together with all and singular the rights, members and appurtenances thereof, to the same being. belonging, or in any wise appertaining, to the only proper use. benefit and behoof of ----.-.----. _____..._____the said parL__y._.__. ..__.__ of the second part. ._._ --.----.bi.s---- ___________._heirs and assigns, forever. IN FEE SIMPLE. And the said parL_Y.........__.... of the first part. for.__...___......____..__ its su.e.ee.s.s-o.t>s--------------...-----. l1IIilX executors and administrators, will warrant and forever defend the right and title to the above described property unto the said party__.._ - ---.- of the second part. ____..__..p.J.~.__.__.___....__.heirs and assigns, against the lawful claims of all persons whomsoever. IN WITNESS WHEREOF. The said part. --------Y---..----- of the first part, ha_s__________. ___ hereunto set...____...lts. __.________hand._____._... and affixed__ __..A1;;.~. seal .______...._ the day and year above written. Signed, sealed and delivered in the presence of; ..----.-SMYBNA..--LAN-D...{JOMPANY----. -..--...--'''-- ....(SEAL) __....__......l3.Y.....M1.L._ALMc CLAIN ..__...._______....._(SEAL) Wm. A. McClain, Secretary ..--..---...rc6RP-6'R'AT.~...S.'E.AL..--XTTA'6!iEDy..--...--........--..--...(SEAL) _____.....__....___....____..__ .__...__.(SEAL) JULIA A. HAM~ACK JEAN C. DAVI S (SEAL ATTACHED) Notary Public, State of Georgia, Commission from Fulton Gounty, rJxp.1:~:..~::~~:.~:~:__~.~~.~.:::~~:..~..~;--:~:::~--:.~..--.:':.i.~__~;...:__:.:__ July 51~ ----Bi~3-0-?9-. {y-~ (SEAL) __....__...................._______..... 19... __~_4, at......._.4.__.P..._I11c;c1ock and recorded___.........??....___..___..__ ...day of _____..__.__.__.I.9..illL.T.__.._.__L.E.G.BQ.Y..__....__..._.......____.__.........__......___.. Clerk NG \V ARRAN1~'{ [)EEI) RECORD 259 " ",M. . ..N-.c..:~L/:..I. ~J.....E~T.,.. (L... ::'!',ffR:\IA L/ i~~_) COM?,'~~';Y, corp or ~~ t ion State of Georgia COBB COUNTY TO THIS !)lDSX'rURE, \ladl' this 1. 0 ~1.'l ......d;~.: (If Febr:xc cJ.. . in the year of our Lord One Thousand Nine Hundred and .r-':~f~~l.:-:_t.hp_e~ f,~c ":;lJ!' I ~J ,. ~I ..of the State of hetw('en F.. ,J 1'1 ?i!iJ ~'~u.;.',.L_LJI'; .., JrJ1L~..~I3,~... QO:?~J..l..:'l.,.. .~\.. ..r. .."FLAG LEn .It . Jeorel;11' . am! County of the first part. a~d L.~ rTD .r; .]~"':?,'~ .YJ , ,~ .-'~ ": ~'1~ ,) ?",' t 1. <;., of the State of '~fJ anrl Count}' of . .Y"l~tQn ... ...of the second part, ,\'ITNESSETIT: TInt the s: id [lort ... ..:Le s... of the lirst p3rt, for :'11(1 in considerotion of the sum of C).-!c---- . DO).. ~_::.:.,'~....._~.~:.~.~.~..."y.~~}..:.~.l..~.?}:.~...~ (.~ I-j ! de T1~. ~.: "'l-~ . . DOLLARS. in Iwnd paid at and before the ,eaiin'~ and dC!i"CIT of these present" the reeeip1 whereof is hereby acknowledged, ha ye. gronted. bargained. 501d and conveyed. Gwl hI,: thcs~"' prc-scllts '.10 gr:1nt, barg-ain, sell and C{,IlVCY unto the said rart S of the second part, Lt.;;;.. :3.UGGC3.sor:l JWi,Aandassigns.~11lthattra('torp3~Tclojhp.dlyingRndb':,in,gjlJ t.h~'\ ll~~ Jl:::;-r..rlct, 2nd ScctiOll, 0[' ,~oLb G()U~-11.:.-'y 'J():['(~.L'. ('r,: lyin, 'n1 t,oin,~Jn L?nrl .sot:: 376. 377. .'j.l.~: "n:3!+1.6, 20:ltr"lnirp Li:;hV{ fOnd Scve!;ty:~Etisht .Iu.r'1~I'c.JLLs (::?'('.7n,) Bcres, And beia?; more pr~~..,t~lc1i}[lrly de,{.j('.~.-tbcd'f"S" rc;]l(Y\N~~: l.:.L'J~I:T:-;LN~-J. pt.~ p8int 1 CH~P t~f~d (in the nnrthoy,),l. Ll()",L:Jt'l'Y 1 i.~'18 of' L~-'nd Lo:, )'-r':~ ~t n;-l br'l:1rr SevcL1 HunJrc:d Thirty-FIve (735) feet eest frum the rl') Lh"N8.3L c:or:::..';P oJ-.... ::3Hl.j Lsn:} LOj~ ~-17,;:;:'-rt;.{-I- nt ~ tl;P.~1C(j n()I'th_ ~.1.c~n;- ::' ';re~-::k nn(~ ~.:-.~(' 'Y;r;r:ndcc'! :::~~:~ :,I-l("!~O r TVl01~Je lIundpcd 'I'h~ l'0J Seven (l,? 1) feet to the snlJt:h side cf PC'NJ'::7' ...;)....'l.J '-;~ itc..-'c1: ~""unn:i-J.g Lhence eE~~t r}o,,'i.G t.h~ SOlJth- ern Rl~le ,_)r rrYNder ,:jp-rin;..;'s Hct"_d :~lneteen :Iu.nJ_"c 1 ~C:\' -Jly F,~\;t._~ (1117S) ref~t, rrc'V"c C1' JcrJ8, 7~C\ til8 nort::e!':"l; ~r,l':1fn' ;r L9nd Lot 1)1:,; runnln:.; thence ."outhwo8terly 1<,) O'JeJ1 liunured :':~';0ty (ll(Y') felet, to the northern b.::JUnd[ll'Y 111B .'Jf Lr'ncJ Lot 1.11'5; rUll!111:g Gl0;;.CC C82L ,'1 :HI~ tt'w l1ol'ther'1 cDumlq'y 1. tr.c of 3!'ld L; n.' :.)t ,!~ ~ Tw~ Hundred Thirty pnG Seven Te,lths (230.7) f'eet to t:-lr n,.2thepsr- CDl"'nAr ('If ,:1rld Lr~1.cl Lot. )~l;)'; running thence 3Qutb $;lo:\,~-, t,}lG pr;stJ~:rn L')U;l:jpry (.,1 .S~.__tIJ Lr'n':1 .L...ot 415 ~Jirle H;l,ndr'e(.1 i~Zi}"'~i.:h~' ("}(,'I,) ~!,~c.t; runnl.ng Lheneo r.f_ s ~', T'~.'f':~.Ve liwl\J._r>ud- l"tfty F'-yor ~. lhl F,)'J.:c Ij'?n!~~l': (1.2,);i,.lt-; r~~:..: L. Lt :'.:'! r);,)l:iL. (';'1 the 81:'_3 t~~f'i"l b :)u;d~ r'j ; i'lo I) r ~> "J Lo'~ 37 s: !.'UrlrlLL~; '!w fl.; '~' L:;r lit ", ,.[1 (~ tl10 e r:3 t;) PO b :JUnde ry ], i ~w (0 r 'c":]'):',,'; }70 :H;,e ;Iun,'r'_,d Ltghty l'h:'08 (()IJ3i ;':3t. mor,,' 0)' 18s~, to the norther~':JL cor:-,!)!' !-:;[' zvlJ Lr-1':(1 J...JoL 37;1..1; -runnin~ thence 'Ne~:l~ '11u~1g th~\ ;lo~~t11eI'll bCLln.:.;.ery l-~l1e Dr ~~~!J.(} =-,['7'1(1 L0~ 37:~j ;.35.:\ aundr~ed I\1\8r''1t~y (:J2,'~I) feet, P.:0],,( /'." Les::~, to the polnL of' be:.:.~inning, sc:id tr["ct ~,f lend leing t [In'1, (,r the SriJi:e p'ope,.ty COnV'lYf,'; by F. ,3tE'phen Hllll, Jr., t,~ In;;e::' b. l::c"dwin. oL r1. ,tJY .Jeed d:tec: ~'u:w,s, J):;,.>, ]:; I' ~:"T .t:"LJI ,-,;(,] lie,,; 2$), ['r 'e ;f,', 'H i,-,n-,) vl:~pkl.s .rf"""'0r'~~:-; -:; r tr~.e "'-Jll;-:C:l'l.IJr :.....-'U,...!.:. '1..;;),"';:) ,-,CUTlt,;;, l.ur~Ol'LJ.~,l. l't) n1cre r(,C;l~."'!-~(' '1':;:~(~ri~It.,i::r; r)" ~. ":_: ;:!r~)::'r ~,,"', ",:.,f"f:PC(~8(; l~; n:rc.p >-i,_I:Jdl_vl:.::l :.,ri r('(~Ol'Je,J 1 )'1 . J jJ I:.. 2c,r,!: : - :-';"g(~ 1 i,,"ilUl,y, GeorGie. :'':'1 (. ;-.,Y', ',,-l.'." 1 :)n~l f)l ~~ ':: >[' tLc Recf)r'(;:,: cf t, he ') C 1,-:\'. ilC H rk of the:'; l"f'l'i. C('ur~, C0bL (:ft;J3.(]() Hcven;JO 2>t1mps j TO HA VII AND TO HOLD. The said barg-ained premioes, tog-ether with all and singular the rights, members and appurtenances thereof. to the same being, belonging. or in any wise appertaining, to the only proper use. benefit and behoof of ...:';;.m:YJTu;:.,.,.LL.r;~}.,.,.G.Qr,!J2F..,UJn......E."....m.. ce;:, ,~; (:.1' S ,.._...~~n.~.,....:..'.'..~.,r..a.,..t..,.,:....r-~1, h 'd t) f h d t..,... "u.c-- / 'k.A!""",, d 'f IN FEESI'fPLE . ~ .... t e Sat par...;' . 0 t e see on part, ,L ..":...n.'..........:.:/............."'.... an assIgns. orever, '", And the said part m.l.G..D... of the first part. for.. n :.ne).X heirs, executors and administrators, will w;J.{!ant and forever defend the right and title to the above described property unto the said part .....L of ,_/'e~'.:'r'" the second part.i\.~.,...:;'..u..~:;:.,r...~.hiaJ.scand assi~ns. against the lawful claims of all persons whomsoever. IN WI1'NESS WHEREOF. The said part.. ..+9....::... of the tirst part, ha... ..YS) ........ hereunto set....'.;'J':.JT. ......hand..".... and affixed....~:.:X":'I' seal ..5.......... the day and year above wri tte1l. Signed, sealed and delIvered in t he presence of: .....,i.,~._.~.~.~~..~. ,. ~!'.tJ".~.". .....(SEAL) J.[)~~,' t ~ ,U/,.N~~.~L~.E.... t~... . . ......_ . ),O.l/h'J). ..............(SEAL) C(!!rJ;i3's~()n rec...J~l Ij"!ul':~o J F .~.pI.~-:f}"s.' .Feb]~u';:. ry.... h.Ch'~' I.. i~'LJlCL}'E 'C') 1.,(1..1,.. .. ..........(SEAL) .': .J,; c:~JJI)L (SEAL) ......(SEAL) Filed for record .......;;.2. .............day af....... )/~()) C b , 19 . at . '1.::} , ........o.clock and recorded. .. ......3..Q ........ day of ..........1,'..'J'c.I1.... . 19.. .......:)3 ~ '~\r:',~ ~.... ~;);;.t;._h.~~X,... , Clerk ~L ~sq f5 If ~O ..;; cl... "C)a~. ~ ~~~ ~~-~~~ -----_.~~.:..-::- ~!i\( WARRANTY DEED-I:ORM 36. 12,".7.75 Am_ Sea1 lit Stamp Co. - AtI..1a. Ca. {(~ STANDARD WARRANTY DEED 492 STATE OF GEORGIA, ~ )~ ~ THIS INDENTURE, made this. 16th da,- of_noJ:une..__ in the ,-ear of our Lord One ThO\U4J1d Nine Hundred and. Seventy-six COBB County. betw_ GARDNER .A,..XQTT~~ of the State of_~.ll!.!?r.gJ...a and Count)' of._...___-----C$).hb..______.._of the lint part EMILY P. POTTER llnd........__...__... ) ~ ~ of the State of~eonda WITNESSETH; That the Mid part Y of the firat part, for and in consideration of the lIWD 01 Cobb and Count)' of. of the second part !.~_~Dollar~Q.ve and A.f.f...e..ction - - - - - - - - - - - - - - - - .. - - - - - Ra.UJtI in hand paid at and before the -linC and delivery of these p..-ts, the receipt whereof is hereby aclmowledged ha. S D'U\ted, bupined, .old and conveyed and by these p..-ta do es l!nJlt, barpin, sell and convey unto the said part"'y'-of the IeCOI1d part, her hein and uaigns. all that tract 01' parc:e\ of land lyi~ and beiDc in~~.d Lot 377 of the 17th District. Second Section of ~obb County. Georgia, beinR Lots 6 and 7 of Block H of the Cheney Woods Subdivision, as per plat of survey by Watts and Browning, dated May 31, 1954. and more particularly described as follows: BEGINNING at a point on the west side of Hillside Road one hundred fifteen (115) feet from the southwest intersection of Timberland Street and Hillside Road; running thence south along the west side of Hillside Road one hundred sixty (160) feet to a point; running thence west one hundred forty (140) feet to the southeast corner of Lot 12 of said Subdivision; running thence north along the eastern bOL~dary line of Lots 11 mId 12 one hundred Twenty-five (125) feet to a point on the southern boundary of Lot 9 of said Subdivision running thence northeasterly along the southeastern boundary of said Lot 9 fifty (50). feet; running thence east along the southern boundar of Lot 8 of said Subdivision one hundred five (105) feet to the west side of Hillside Road and the point of beginning. Counl1. G~...,p. ~1"ran.l~ TaX Real -.:'" pald $ 0.\. TO HAVE AND TO HOLD the aid bupined ~ tccether with all and sineuJar the ri&hta. IDImben and appurtenances thereof, to the _ beinc. belno,i/B. or ia 8IIJ" 1riae appertaininc, to the oaJy proper uae. beae6t and behoof of her the aid ~ ol the __ ~ h...,. Wna and lI8lIicna. fonYWl', IN FEE SIMPLE.. Aud the Mid 1'Ct.JZ-- of tIw fint part, _ hiQ hili.... -..ton and admiItin:raton will wumnt and forenr delead the ri&ht and title to tIw abcmI deM:ribed property unto the add 1'Ct....!..- of the e<<ond part, h..r heira and _ipa, apinst the bnrfaJ c:Jaima of all ~ ~. his baDIL- ISea1l lSeaU lSeaIl CSeaIl ~ .. ':.... ;,l).r..i.'"":....;~~-..~:.l. :=~'!:: :~t l.:"!rt!t' : if. '. .... ''-..~..:.~, l~li (i.> .... .." .' ... t~\'l . ~ "11.,. \ ,../ ~ I", ""Utl .' 9"- .... = ---=-~~~ =---~----=~ ~\\ \1 (5 ~~ Lt9?- ~j' ~ ~ad;'Z ~ CITY OF SMYRNA 11 Q/9/07 n f.. ((::../; :; JL ,- A. MAX BACON MAYOR July 9, 2007 Exhibit "0" MEMORANDUM FROM: Council City Administrator Wayne Wright City Clerk Susan Hiott City Attorney Scott Cochran Community Development Director Ken Suddreth Mayor A. Max Bacon ..e ~?- SUBJECT: Variance Request Y07-034-Y07037 - 2794 Hillside Road TO: DATE: July 12, 2007 Please be advised that I am vetoing the action of City Council at the July 9, 2007 Council Meeting, item # 4B, Variance Requests Y07-034 - Y07-037), approving the waiver of minimum lot area and lot width requirements in R- 15 zoning district located 2794 Hillside Road. I am officially vetoing the approval of the four Variance Requests V-07-034, Y07-035, Y07-036, and Y07-037. Applicant failed to meet the variance requirements as outlined in the City of Smyrna Zoning Ordinances. Georgia Municipal Association and Georgia Trend Magazine 2003-2004 "City of Excellence" Urban land Institute's 97 Award of Excellence for the Best Public Project Q C .- C o N in PI I ~ o .... >- - Q. 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COUNTY OF FULTON STATE OF GEORGIA AFFIDAVIT OF TIMOTHY ALLEN Personally appeared before me, the undersigned notary public duly authorized to administer oaths under Georgia law, Timothy Allen, on oath deposes and states as follows: 1. My name is Timothy Allen, I am over 18 years old, am competent to testify and have personal knowledge of the facts recited herein. I have been building houses in the metro Atlanta area since 2001. I have extensively reviewed comparable lot sales and property sales in the Smyrna area prior to purchasing a lot there. 2. I, with the help of my real estate agent, researched the price of lots in the Smyrna area. We purchased 2794 Hillside Road, Smyrna (the "Subject Property") with the intent of tearing down the 50+ year old home and building two new homes on the legal, nonconforming lots of record (Lots 6 and 7 of Cheney Woods Subdivision platted in 1952). 3. I performed my due diligence by having my attorney, Shea E. Roberts, research the ability to obtain building permits for the two lots. Upon her confirmation that the City Attorney had advised Robin Broyles to accept building permit applications on each of the two lots, I closed on the Subject Property at a price that was higher than if I were just buying the existing house. 4. I have researched lot prices in the area of the Subject Property and, based on that research, the fair market value of Lots 6 and 7 is approximately $175,000 per lot. 1. Further Affiant Sayeth Not. This 9th day of July, 2007. Sworn to and subscribed before me this !J!!:... day of~ ,2007. . ~~~~ Notary Public My Commission Expires: ~ ~-~. Timothy Allen SHEA E ROBERTS NOTARY PUBLIC DeKafb County Sblite of Georgia My Comm. Expires Sept. 15, 2010 COUNTY OF FULTON STATE OF GEORGIA AFFIDAVIT OF SHEA E. ROBERTS, ESQ. Personally appeared before me, the undersigned notary public duly authorized to administer oaths under Georgia law, Shea E. Roberts, a licensed attorney in good standing in the State of Georgia, on oath deposes and states as follows: 1. My name is Shea E. Roberts, I am over 18 years old, am competent to testify and have personal knowledge of the facts recited herein. I have been a licensed attorney in good standing in the State of Georgia since July, 1996. 2. I represent Tim Allen Homes, LLC on a multitude of land use and real estate matters in several metro Atlanta jurisdictions. In late July, 2006, Mr. Allen called me regarding property located at 2794 Hillside Drive within the City limits of Smyrna, Georgia (the "Subject Property"). He was interested in purchasing the Subject Property, but was performing his due diligence. 3. After researching the chain of title on the Subject Property, it was clear that the legal description of both legal lots of record had been preserved since the two lots were originally platted in February of 1952 as Lots 6 and 7 of the Cheney Woods Subdivision. A house was built across the common property line in 1955 prior to the enactment of a Zoning Ordinance imposing side-yard setback for Lots 6 and 7. Mr. Allen's investment backed expectation when deciding whether to purchase the Subject Property was use of the property as platted-two legal lots of record-so that he could tear down the older house and build a new single family lot on each of the two lots. 4. As part of his due diligence, Mr. Allen met with City officials in the Community Development Department regarding the process for obtaining an address and a building permit for both Lots 6 and 7. He was informed that Lots 6 and 7 were substandard according to the zoning designation that currently existed on the Subject Property. Mr. Allen requested that I explore the issue further with the City so as to resolve any unanswered questions prior to his closing on the Subject Property. 5. I traveled to the City of Smyrna Community Development Department and spoke with Mr. Robin Broyles who informed me that I needed to discuss the issue with the City Attorney, Scott Cochran if Cochran, Camp & Snipes. 6. On August 2, 2006, I contacted Mr. Scott Cochran regarding the need to obtain building permits for Lots 6 and 7. I explained that Lots 6 and 7 were legal, nonconforming lots of record and that the City could not retroactively apply a zoning ordinance that was not in effect in 1952 when the lots were created and was not in effect in 1955 when the house was constructed. Mr. Cochran requested that I send him legal case citations supporting my proposition that even though a house had been built over the two lots, the two lots were still legal lots of record that were buildable. I redacted two letters that I had previously sent to the City of Avondale and the City of Chamblee regarding this same issue, and I faxed them to Mr. Cochran. 7. Within the next day or two, I followed up by telephone with Mr. Cochran and he informed me that he had instructed Mr. Broyles to accept the application for two addresses and/or building permits. 8. I communicated this confirmation from the City Attorney to Mr. Allen, who completed his due diligence, arranged financing and proceeded to close on the property in February, 2007 upon reliance of this information from the City Attorney. 9. In March, 2007, Mr. Allen attempting to obtain the two addresses for Lot 6 and 7 so that he could obtain building permits for the lots. He was informed that no one at the City remembered the discussions from August, 2006. 10. Despite the fact that Mr. Allen had closed on the Subject Property in reliance upon the City Attorney's discussions with me, he was directed to file a variance. Further Affiant Sayeth Not. This cf- day of July, 2007. 0Ity-~~ Shea E. Roberts Sworn to and subscribed before me this Cf day ot vI: , 2006. ,) / ~ /1/ /sf Deed Book 14454 Pg 5072 Filed ~nd Re~orded Feb-22-E007 09:19am c0(d7-(!J@3e!/7eJB Real Estate Transfer Tax $141.00 ~s:~ Clerk of Superior Court Cobb Cty. Ga. Please retum to: FERGUSON MCMANAMY ATTORNEYS AT LAW, LLC 100 ASHFORD CENTRE NORTH, SUITE 120 A TLANT A, GEORGIA 30338 File # 07-01-Q986 STATE OF GEORGIA COUNTY OF FULTON WARRANTY DEED THIS INDENTURE made this 14th day of February, 2007 between JOSEPH TYLER ALLEN as party or parties o.f the first part, hereinafter called Grantor, and TIM ALLEN HOMES, LLC. as party or parties of the second part, hereinafter called Grantee (the words "Grantor" and "Grantee" to include their respective heirs, successors and assigns where the context requires or permits). WITNESSETH that: Grantor, for and in consideration of the sum ofTEN DOLLARS and other good and valuable consideration ($10.00) in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, conveyed and confirmed, and by these presents does grant, bargain, sell, alien, convey and confirm unto the said Grantee, the following described property: All that tract or parcel of land lying and being in Land Lot 377 of the 17th District, 2nd Section, Cobb County, Georgia, being Lot 7, Block H, Cheney Woods Subdivision, as per plat recorded in Plat Book 13, Page 10, Cobb County, Georgia records, which recorded plat is incorporated herein by this reference and made a part of this description. Said property being known as 2794 Hillside Rd SE according to the present system of numbering houses in Cobb County, Georgia. TO HAVE AND TO HOLD the said tract or parcel ofland, with all and singular the rights, members and appurtenances thereof, to the same being, belonging, or in anywise appertaining, to the only proper use, benefit and behoof of the said Grantee forever in FEE SIMPLE. AND THE SAID Grantor will warrant and forever defend the right and title to the above-described property unto the said Grantee against the claims of all persons whomsoever. IN WITNESS WHEREOF, Grantor has hereunto set grantor's hand and seal this first day and year first above written. 111111 \<\, I \. "- t/;:"~" /, .....'. . ...:..:.."......:...-.,.-'/ ........... ~_~...'\\O I/-<.!? ;:"~~-- E ~....... EXP:R~S \:-;;; ~~ - GcOF.Gii\ _ . NOV. 12.200, .. ...... ~ '-<):'" PUBL\'V .";'4.. ;. II" u..... .... . ."...:. '- .... "'", .r /; ....... ,\,-;" ~ "'ti, ON CU'J """ flll/UtI1l1"" O;XY j<JSEPH#YLER ALLEN 15}-. Deed Book 1.4454 Pg 5018 ~iled and Reco~ded Feb-22-2007 09:89am i::!0f!J7-0030700 Real f5tate T~an5fe~ Tax $141.00 ~:s1::: Clerk of Superio~ Court Cobb Cty. Ga. Please return to: FERGUSON MCMANAMY ATTORNEYS AT LAW, LLC 100 ASHFORD CENTRE NORTH, SUITE 120 ATLANTA, GEORGIA 30338 File # 07-01-0975 ~/ (:~ "U"D STATE OF GEORGIA COUNTY OF FULTON WARRANTY DEED THIS INDENTURE made this 14th day of February, 2007 between JOSEPH TYLER ALLEN as party or parties of the first part, hereinafter called Grantor, and TIM ALLEN HOMES, LLC. as party or parties of the second part, hereinafter called Grantee (the words "Grantor" and "Grantee" to include their respective heirs, successors and assigns where the context requires or permits). WITNESSETH that: Grantor, for and in consideration of the sum ofTEN DOLLARS and other good and valuable consideration ($10.00) in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, conveyed and confirmed, and by these presents does grant, bargain, sell, alien, convey and confirm unto the said Grantee, the following described property: All that tract or parcel of land lying and being in Land Lot 377 of the 17th District, 2nd Section, Cobb County, Georgia, being Lot 6, Block H, Cheney Woods Subdivision, as per plat recorded in Plat Book 13, Page 10, Cobb County, Georgia records, which recorded plat is incorporated herein by this reference and made a part of this description. Said property being known as 2794 Hillside Rd SE according to the present system of numbering houses in Cobb County, Georgia. TO HAVE AND TO HOLD the said tract or parcel ofland, with all and singular the rights, members and appurtenances thereof, to the same being, belonging, or in anywise appertaining, to the only proper use, benefit and behoof of the said Grantee forever in FEE SIMPLE. AND THE SAID Grantor will warrant and forever defend the right and title to the above-described property unto the said Grantee against the claims of all persons whomsoever. IN WITNESS WHEREOF, Grantor has hereunto set grantor's hand and seal this first day and year first above written. Deed Book 14349 Pg 3340 Filed and Recorded Jun-28-2Sa6 0B:51am 2006-0106195 Real Estate Transfer TaK $245.00 ~~:~ Clerk of Superior Court Cobb Cty. Ga. R~turn Recorded Document to: Raimondi & Associates, LLC 3391 Town Point Driv~, Suite :nS Kennesaw, GA 30144 WARRANTY DEED STATE OF GEORGIA COUNTY OF COBB File #: R06-1300 This Indenture made this 9th day of .June, 2006 between WILLIAM A PARKER, Ill, of the County of Cobb, State ofGA, as party or- parties of the fir-st part, hereinafter called Grantor, and JOSEPH TYLER ALLEN , as party or- parties of the second part, hereinafter called Grantee (the words "Grantor" and "Grantee" to include their respective heirs, successors and assigns where the context requires or permits). WIT N E SSE T H that: Grantor, for and in consideration of the sum of TEN AND 00/100'S ($10.00) Donars and other good and valuable considerations in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, conveyed and confirmed, and by these presents does grant, bargain, sell, alien, convey and confirm unto the said Gr-antee, ALL THAT TRACT OR PARCEL OF LAND LYING AND BEING IN LAND LOT 377 OF THE 17TH DISTRICT, 2ND SECTION, COBB COUNTY, GEORGIA, BEING LOT 6 AND 7, BLOCK H , CHENEY WOODS SUBDIVISION AS PER PLAT RECORDED IN PLAT BOOK 13, PAGE 10, COBB COUNTY, GEORGIA RECORDS, WHICH RECORDED PLAT IS INCORPORATED HEREIN BY THIS REFERENCE AND MADE A PART OF THIS DESCRIPTION. SAID PROPERTY BEING KNOWN AS 2794 IDLLSIDE RD. ACCORDING TO THE PRESENT SYSTEM OF NUMBERING HOUSES IN COBB COUNTY, GEORGIA. This Deed is given subject to all easements and restrictions of record, if any. TO HAVE AND TO HOLD the said tract or parcel of land, with all and singular the rights, members and appurtenances thereof, to the same being, belonging, or in anywise appertaining, to the only proper use, benefit and behoof of the said Grantee forever in FEE SIMPLE. AND THE SAID Grantor will warrant and forever defend the right and title to the above described property unto the said Grantee against the claims of all persons whomsoever. IN WITNESS WHEREOF, Grantor has hereunto set grantor's hand and seal this day and year first above written. Signed, sealed and delivered in the presence of: MZ/~C ~ WILLIAM A PARKER, III ~ $- (Seal) Dud Book 13782 Pg 410 Filed and RecDrded Jul-el-20i3 11:83.. 2003-0153626 Real Estate Transfer Tax $163.18 1i~:~ Clerk of SuperiDr Court Cobb Cty. ~ WARRANTY DEED (FORM 36A) Return to: McCalla., Raymer. Padrick. Cobb. Nichols & Clark East Cobb Office Ste. 225 IS 19 Johnson Ferry Road Marietta., GA 30062 WARRANTY DEED STATE OF GEORGIA COBB COUNTY Tms INDENTURE, made the 27th day of June two thousand and Three , between EMILY P. POTTER , in the year of the County of COBB hereinafter called Grantor, and , and State of Georgia, as part y or parties of the first part, WILLIAM A. PARKER, ill as party or parties of the second part, hereinafter called Grantee (the words "Grantor" and "Grantee" to include their respective heirs, successors and assigns where the context requires or permits). WITNESSETH: That Grantor for and in consideration of the sum of TEN AND NO/100 DOLLARS (510.00) AND OTHER GOOD AND VALUABLE CONSIDERATION, in hand paid at and before the sealing and delivery of these presents, the receipts whereof is hereby acknowledged, has granted, bargained, sold, aliened, conveyed and confirmed, and by these presents does grant, bargain, sell, alien, convey and confirm unto the said Grantee, ALL THAT TRACT OR PARCEL OF LAND LYING AND BEING IN LAND LOT 377 OF THE 17TH DISTRICT, SECOND SECfION OF COBB COUNTY, GEORGIA, BEING LOTS 6 AND 7 OF BLOCK H OF THE CHENEY WOODS SUBDIVISION, AS PER PLAT OF SURVEY BY WATTS AND BROWNING, DATED MAY 31,1954, AND MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE WEST SIDE OF HILLSIDE ROAD ONE HUNDRED FIFTEEN (1 ] 5) FEET FROM THE SOUTHWEST INTERSECTlON OF TIMBERLAND STREET AND HILLSIDE ROAD; RUNNING THENCE SOOTH ALONG THE WEST SIDE OF HILLSIDE ROAD ONE HUNDRED SIXTY (160) FEET TO A POINT; RUNNING THENCE WEST ONE HUNDRED FORTY (140) FEET TO THE SOUTHEAST CORNER OF LOT 12 OF SAID SUBDIVISION; RUNNING THENCE NORTH ALONG THE EASTERN BOUNDARY LINE OF LOTS] 1 AND 12 ONE HUNDRED TWENTY-FIVE (125) FEET TO A POINT ON THE SOUTHERN BOUNDARY OF LOT 9 OF SAID SUBDIVISION RUNNING THENCE NORTHEASTERLY ALONG THE SOUTHEASTERN BOUNDARY OF SAID LOT 9 FIFTY (50) FEET; RUNNING THENCE EAST ALONG THE SOUTHERN BOUNDARY OF LOT 8 OF SAID SUBDIVISION ONE HUNDRED FIVE (105) FEET TO THE WEST SIDE OF HILLSIDE ROAD AND THE POINT OF BEGINNING. / , . Deed Book 1 3782 Pg 4 1 1 Jay C. Stephenson Clerk of Superior Court Cobb Cty. Ga. THIS CONVEYANCE is made subject to all zoning ordinances, easements and restrictions of record affecting said described property. TO HAVE AND TO HOLD the said described property, with all and singular the rights, members and appurtenances thereof, to the same being, belonging, or in anywise appertaining, to the only proper use, benefit and behoof of the said Grantee forever in FEE SIMPLE. AND THE SAID Grantor will warrant and forever defend the right and title to the said described property unto the said Grantee against the claims of all persons whomsoever. IN WITNESS WHEREOF, the Grantor has signed and sealed this deed, the day and year above written. @'-e::'BA8'".....,... ~ -~o'" t;;<Q~rty.,'}.\ rl.l+';:;-- i ;: \ PUB""'=' /,zJ . ,~.....__.?-#'" \ """,4~,,'\........... . "^ com'l""iiSS'O\~~~"I,;;' 'j U.r:rcr-L 'l.t:i, ~ ~ () (7 ~. 6-J2/~f?~() , ( u-A-'<..t~ (Seal) " r EMTI... Y P. POTTER, BY AND THROUGH HER DULY APPOINTEDATTORNEY-IN-FACT,G. ALLEN POTTER, JR. ~,-ROBERT R. POTTER, AS PER DURABLE POWER OF ATTORNEY DATED 06/03/03, FILED 06/13/03, RECORDED IN DEED BOOK 13768, PAGE 5692, COBB COUNTY, GEORGIA RECORDS (Seal) (Seal) (Seal) . -,.'"'2 "I ,"' '" .. 8 ~ i . ~ ~ ,'<" t.\.g;\ !li ~ ~ e f:; & ~ "" ~ ~ ,,~~ r;T~~ ~~ .~ ""-",,,,-~~.""" "~ -l:l "~ -tJ -~ -0; "~ g~ ~o; (ltlJB3'lD~1.ll .~ ~- "m ~ -~ \ o~ ~~ <~ ""I -m -II ,'I' ~~ \'L, <" -tJl '{.. \ lau.~ 7!i .. <" \ ~ \. \ \ , .l:j -i:i -<t "0 ~ -~ is -ll: \- ON "~ "- -& -IS 5~ "~ -~ "II -Y "II , u ! . '0 ..~ ~ -~ -ll: 5~ ~ .e .", _Il! "~ Iii 0 ~ I ~ <-'0 i IS t 1:; , , ~ l~~ i ~- lJ UWi CD ~ ! n~ ! ;y :> . i ... ~ .f i ;: !:l ;: !! W 8 . I -. g:-~ 15. if ., i i; . ~ ii ' .. i'l ~ l 1=. ~ .!! ' if' 0 .. . ~ i> ~ ~ .. i- if ..