05-19-2008 May 19, 2008
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Mav 19,2008
The regular scheduled meeting of Mayor and Council was held at Smyrna City Hall. The
meeting was called to order by presiding officer Mayor Pro Tem Wade S. Lnenicka at 7:30
o'clock p.m. All council members were present except Mayor Bacon and Council Member
McNabb. Also present were City Administrator Wayne Wright, Deputy City Clerk Lee Miller,
City Attorney Scott Cochran, Assistant Public Works Director Frank Martin, Library Director
Michael Seigler, Keep Smyrna Beautiful Director Ann Kirk, Community Relations Director
Jennifer Bennett, Finance Director David Boyd, Community Development Director Ken
Suddreth, Assistant City Administrator Eric Taylor, Fire Chief Jason Lanyon, Police Chief Stan
Hook, Planner Rusty Martin and representatives of the press.
Invocation was given by, Associate Minister Angelo Hunter from International Gospel Outreach
Church, followed by the pledge to the flag.
AGENDA CHANGES:
There were none.
Mayor Pro Tem Lnenicka stated Mayor Bacon and Council Member McNabb are away on City
business this evening.
MAYOR'S REPORT:
(A) Proclamation in Recognition of Poppy Day
Mayor Pro Tem Lnenicka recognized members of the American Legion Auxiliary, and Council
Member Wood read a Proclamation in Recognition of Poppy Day to those present. Ms. Johnson
thanked everyone for their support of our local veterans.
(8) Recognition of Smyrna Police Explorers
Lt. Leonard provided details to those present regarding the recent competition of the Law
Enforcement Explorers Association of Georgia in which the Smyrna explorers won first place and
the State championship. Lt. Leonard recognized the explorers and explorer advisors Ofc. Nesbit
and Cpl. Flowers. Lt. Leonard provided additional details those present concerning explorer
activities. Mayor Pro Tem Lnenicka commended Lt. Leonard and the other associates
of the Smyrna police explorer program for their achievements.
LAND ISSUES/ZONINGS/ANNEXATIONS:
(A) Public Hearing - Rezoning Request Z08-003 - General Commercial (GC) and R-15 to
Mixed Use Conditional - 5.31 acre tract - 2705, 2717 and 2733 Woodland Terrace and
2730 Cumberland Boulevard - The Paces Foundation, Inc.
Mr. Wright stated the proposed rezoning would provide for construction of a mixed-use
development consisting of a four-story age-restricted apartment complex and a six-story
commercial building. Mr. Wright stated the Planning and Zoning Board (PZB) recommend
approval of the request, and that staff supports the proposal with a number of conditions.
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May 19. 2008
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Mr. Suddreth provided additional details to those present concerning this redevelopment
proposal.
Mayor Pro Tem Lnenicka stated this is a public hearing and asked for public comment, and the
oath was administered to several persons by Mr. Cochran.
Council Member Pritchett recognized Messrs. Mark du Mas and Sean Brady and Ms. Jan
Rausch (phonetic) representing The Paces Foundation, Inc. (PFI). Mr. Brady stated PFI is a non-
profit organization providing affordable housing to those who need it. Mr. Brady stated
residential units at Galleria Manor will be designed for persons aged fifty-five and older.
Ms. Rausch provided details to those present concerning eligibility requirements for prospective
tenants and for incentives at the proposed development. At Council Member Pritchett's request,
Mr. du Mas provided details to those present concerning features and amenities of the proposed
housing.
At Council Member Newcomb's request, Mr. du Mas elaborated on income and age requirements
for prospective tenants. Council Member Newcomb expressed the view that families could be
eligible to live in the proposed development. Mr. du Mas stated tenants are screened with
background checks and can be evicted for non-compliance with guidelines. Ms. Rausch pointed
out that senior-specific housing is designed for the needs of older persons and typically would not
be suitable for young families. Ms. Rausch stated that experience with other PFI senior-living
complexes indicates that the tenants in such developments are in fact predominantly older
persons.
Mayor Pro Tem Lnenicka recognized Mr. William Deaton, and Mr. Deaton expressed concerns
about the density and limited space for outdoor activity of the proposed development. Mr.
Deaton stated he is concerned that occupants of the complex will include small children. Mr.
Deaton expressed concerns about the possibility of Woodland Terrace being used as an access
road to this facility. Mr. Deaton said Woodland Terrace is a narrow street with no sidewalks and
is not suitable for such a purpose. Mr. Deaton expressed concerns about the impact of this
development on the value of his property. Mr. Deaton expressed concerns about the location of
the proposed water detention structure.
Mr. Suddreth stated the detention structure and other site plan features will be reviewed by the
city engineer to make certain they are in order. Mr. Suddreth stated Cumberland Boulevard is the
logical conduit for vehicular traffic in the subject area. Council Member Smith asked if
Woodland Terrace could be eliminated as an access point to the proposed development. Mr.
Suddreth stated multiple points of access are usually advisable for a complex such as the one
proposed to provide an alternative entrance and exit in case of an emergency. Mr. Suddreth
stated the city engineer believes that use of Woodland Terrace as an access point to the proposed
development poses no potential problems.
Mayor Pro Tem Lnenicka recognized Mr. Josh Winter, representing Walton Communities (WC),
and Mr. Winter stated WC has some concerns about the vegetative buffer along the property line
between the properties of WC and PFI. Mr. Winter stated the interests of WC should be
safeguarded. Council Member Pritchett stated there is a tree plan for the proposed development.
Mayor Pro Tem Lnenicka recognized Mr. Marvin Bennett, residing at 2743 Bell Drive, and Mr.
Bennett expressed concerns about who will be living in the proposed facility and the impact of
this development on the value of his property. Mr. Bennett expressed concerns about the density
of the proposed development.
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Council Member Pritchett asked Messrs. du Mas and Brady if the special conditions and
applicable standard conditions of the rezoning are acceptable, and they answered in the
affirmative. Council Member Pritchett commented on the need for affordable senior housing in
Smyrna.
MOTION: Council Member Pritchett made a motion to approve Rezoning Request Z08-003
from General Commercial (GC) and R-15 to Mixed Use Conditional for a 5.31 acre tract at 2705,
2717 and 2733 Woodland Terrace and 2730 Cumberland Boulevard for The Paces Foundation,
Inc. subject to the following stipulations:
Standard Conditions
(Requirements #2, 3, 8, 16 and 17 from Section 1201 of the Zoning Code are not
applicable)
1. The composition of the homes in a residential subdivision shall include a mixture of
elements including; but not limited to: brick, stone, shake, hardy plank and stucco. No
elevation shall be comprised of 100% hardyplank siding. The residences whose lots abut
external roadways shall not be permitted to utilize hardy plank for any elevation facing
these roads.
2. The developer shall provide at least 200 square feet of common space per lot or unit. This
common space shall be developed with improvements for the residential subdivision such
as: gazebos, fountains, recreational/playground equipment or walking trails. The common
space shall be controlled and maintained by the Homeowners Association.
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3.
The detention pond shall be placed and screened appropriately to be unobtrusive to
homes inside and outside the development. The stormwater detention plan shall be
designed to create at least a 10% reduction in a 2-year to I OO-year storm event. The City
Engineer shall approve all plans.
4. All utilities within the development shall be underground.
5. The developer shall be responsible for any traffic improvements (including additional
right-of-way dedications) deemed necessary by either the City or the County during
construction plan review. Sidewalks shall be provided by the developer inside the
subdivision and outside the subdivision adjacent to any public right-of-way consistent
with City's requirements for the extent of the development. A grass buffer with a
minimum width of2' shall be provided between the back of curb and sidewalk. The grass
buffer may be waived if it is deemed unnecessary
by the City Engineer.
6. A strip of brick pavers or stamped concrete shall be installed on the street at the
subdivision entrance for a minimum distance of20 feet.
7. The development of any streets (including private) shall conform to the City's standards
for public right-of-ways.
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8.
No debris may be buried on any lot or common area.
9.
The developer will install decorative streetlights within the development, subject to
approval by the City Engineer. Utilization of low intensity, environmental type lighting,
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May 19.2008
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the illumination of which shall be confined within the perimeter of the subject property
through the use of "full-cutoff lighting".
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10.
The developer will comply with the City's current tree ordinance (unless note elsewhere).
All required tree protection measures shall be adhered to by the developer during
construction.
11. All landscape plans must be prepared, stamped, and signed by a Georgia Registered
Landscape Architect for any common areas or entrances.
12. All yards and common areas are to be sodded, and landscaped. Irrigate as appropriate.
Special Conditions
13.
The development shall maintain the following setbacks:
Multi-Family Building:
Minimum Front - 20'
Minimum Side - 15'
Minimum Rear - 40'
Commercial Building:
Minimum Front - 0'
Maximum Front - 20'
Minimum Side - 0'
Maximum Side - 20'
Minimum Rear - 20'
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14.
A 10' landscape strip shall be provided and maintained along the northern, western and
southern property lines.
15. A six-foot tall opaque fence shall be installed and maintained along the western property
line and the southern property line that adjoin the single-family property.
16. The appl icant shall provide a covered entrance way over the passenger drop off zone.
17. The trash dumpsters shall utilize rubber tops and be appropriately screened with a three
sided brick enclosure.
18. All construction traffic must enter and exit the site using Cumberland
Boulevard.
19. The proposed development shall conform in substantial compliance to the site plan dated
5-15-08. Slight deviations to the site plan may be approved by the Community
Development Director. Any significant changes to the site plan will require an
amendment to this rezoning.
The proposed development shall conform to the elevations submitted on 5-15-08 in the
rezoning application. Slight deviations to the elevations may be approved by the
Community Development Director. However, any significant changes to the elevations
will require an amendment to this rezoning.
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21.
Applicant agrees to work in cooperation with Walton Communities regarding protection
of the vegetative buffer along the property line shared by Walton Communities and The
Paces Foundation, Inc. at the subject location.
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22. Applicant agrees to record a land use restrictive covenant with the deed of the subject
property in perpetuity which will require that at least eighty percent of all residential units
in said development to have at least one of the occupants of each unit being fifty-five
years of age or older.
The motion was seconded by Council Member Wood. Council Member Newcomb reiterated his
concerns and indicated he will not support this motion. Council Member Smith commented on
the dearth of senior housing in the City and observed that it seems logical to place a development
such as the one proposed in the subject area. Council Member Smith stated the extensive tenant
screening measures to be applied and other considerations have persuaded him to support this
rezoning request. Mayor Pro Tem Lnenicka commented on the need for affordable senior
housing in Smyrna. Mayor Pro Tem Lnenicka expressed the view that all types of housing for
people in all types of circumstances should be available. Mayor Pro Tem Lnenicka stated he
supports this rezoning request. Motion was approved 4 - 1 with Council Member Newcomb in
opposition.
(B) Public Hearing - Variance Request V08-002 - Reduction of Rear Setback from 30' to IS' -
512 Cooper Lake Road - John R. Carmichael, Jr.
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Mr. Wright stated the subject tract is somewhat triangular in shape. Mr. Wright stated a
surveying error resulted in the structure being built within a previously reduced setback. Mr.
Wright stated this request is for further reduction of the rear setback to 15.' Mr. Wright stated
staff recommends approval of this variance request.
Mr. Suddreth provided additional details to those present concerning this variance request.
Mayor Pro Tem Lnenicka stated this is a public hearing and asked for public comment, and the
oath was administered to several persons by Mr. Cochran.
Council Member Wood recognized Mr. Richard Calhoun, an attorney representing Mr.
Carmichael, and Mr. Calhoun explained there was an error made in the marking of the property
boundary at the subject location. Mr. Calhoun stated there was an additional error made when
grading was done which resulted in an encroachment on adjoining property. Mr. Calhoun stated
this problem was not intentionally created. Mr. Calhoun stated Mr. Carmichael's house is
completed and he believes there is a hardship in this instance. Mr. Calhoun expressed the view
that approval of this variance request will not adversely affect neighboring properties. Mr.
Carmichael summarized the need for this variance for the present officials. Mr. Carmichael
stated this variance is needed in order to obtain a certificate of occupancy. Mr. Calhoun
presented various documents pertaining to this variance request to the present officials for
inclusion in the record. (Clerk's Note: referenced documentation is appended hereto as Exhibit
"A ")
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Mayor Pro Tem Lnenicka recognized Mr. Parks Huff, an attorney representing Mr. Kay, and Mr.
Huff expressed the view that the applicant's position in this matter seems to continue to be
changing. Mr. Huff stated he contacted the grading contractor who performed the work at the
subject location and was advised that the grading was done in accordance with the customer's
specifications. Mr. Huff stated he contacted Gaskins Surveying Company and was advised the
May 19,2008
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house was placed according to client specifications. Mr. Huff stated Mr. Carmichael did not plan
an adequate back yard for his house which resulted in a sizeable encroachment into his client's
property. Mr. Huff stated he has no affidavit from anyone acknowledging fault in this matter.
Mr. Huff stated City staff has changed its recommendation in this case. Mr. Huff stated he is
asking the City to table this variance request.
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Mr. Suddreth stated staff initially favored tabling this measure in order to give the affected parties
time to reach some resolution which may have obviated the need for a variance. Mr. Suddreth
stated that considerable time has passed without a solution and at this point it seems reasonable to
proceed with a public hearing regarding the variance.
Council Member Wood declared that action on this matter will be temporarily recessed to allow
the two parties to discuss possible terms.
PRIVILEGE LICENSE:
There were none.
FORMAL BUSINESS:
(A) Hospital Authority Reappointment for Ward 7
MOTION: Council Member Wood made a motion to reappoint Jane Ferguson to another term on
the Hospital Authority to expire on May I, 2012 The motion was seconded by Council Member
Smith. Motion was approved 5 - O.
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(B) Housing Authority Reappointment for Ward 6
MOTION: Council Member Smith made a motion to reappoint George Mercurius to another
term on the Housing Authority to expire on May 2, 2013. The motion was seconded by Council
Member Wood. Motion was approved 5 - O.
(C) Housing Authority Reappointment for Ward 7
MOTION: Council Member Wood made a motion to reappoint Miller Davis to another term on
the Housing Authority to expire on May 2,2013. The motion was seconded by Council Member
Smith. Motion was approved 5 - O.
COMMERCIAL BUILDING PERMITS:
There were none.
CONSENT AGENDA:
(A)
(B)
(C)
Approval of May 5, 2008 minutes
Approval for the City of Smyrna Tree Board to submit an application to participate in the
2008 Urban and Community Forestry Grant Program
Award bid RFP # 8-026 for NPDES Phase I Storm Water Audit Document and Plan to
Croy Engineering in the amount of $7,650.00 and authorize the Mayor to execute related
contract documents
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May 19, 2008
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(F)
Approval of the transfer of$6,449.96 from the City's contingency line item
(15650.57.9000) to the Community Development's computer equipment line item for
portable computers for building inspection staff (72100.54.2400)
Approval of transfer of $11 ,324 from the City's Contingency Fund Account (15650-
57.9000) to Parks Administration Regular Salary and FICA (61100-51.1100 and 512200)
to fund a park ranger position added this year
Approval of assignment of contract dated October 4, 1999 from American Transit
Display Systems, LLC to Signal Outdoor Advertising, LLC and authorize the Mayor to
execute all documents incident to such transfer
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(D)
(E)
MOTION: Council Member Wood made a motion to approve the consent agenda. The motion
was seconded by Council Member Smith. Motion was approved 5 - O.
COMMITTEE REPORTS:
Council Member Pritchett provided details to those concerning recent court services activities.
Council Member Pritchett stated she is proud that a new affordable senior housing complex
will be built in Ward I and thanked the City's leadership for their support of this proposal.
Council Member Newcomb recognized Mr. Suddreth, who provided details to those present
concerning recent construction permit activity in the City. Council Member Newcomb
commended Mr. Suddreth and his staff for their thorough work.
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Council Member Anulewicz thanked Ron Davis, Larry and Gus Jones, Matt Bennett, David
Whited and Lamar Waller for assisting one of their neighbors with the removal of an unwanted
accessory building on their property.
Council Member Smith recognized Mr. Seigler, and Mr. Seigler provided details to those present
concerning current and upcoming programs and events for the City Library.
Council Member Smith recognized Ms. Bennett, and Ms. Bennett provided details to those
present concerning recent and upcoming City events. Mayor Pro Tem Lnenicka provided details
to those present concerning the upcoming Memorial Day ceremony.
Council Member Smith stated Tolleson Pool will be open this Saturday.
Council Member Wood recognized Mr. Boyd, and Mr. Boyd provided details to those present
concerning the City's financial position and the budget process. Mr. Boyd provided details to
those present regarding the City's audit program for establishments which sell alcoholic
beverages to gauge receipt of tax proceeds.
Mayor Pro Tem Lnenicka recognized Chief Hook, who provided details to those present
concerning recent police operations.
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Mayor Pro Tem Lnenicka recognized Ms. Kirk, and Ms. Kirk provided details to those present
regarding volunteers from Cumberland Community Church who assisted with cleaning up Argyle
School and improving the landscaping there.
Mayor Pro Tem Lnenicka recognized Mr. Martin, and Mr. Martin provided details to those
present concerning current Public Works Department projects and the sanitation schedule for the
coming holiday.
Mav 19, 2008
8
Mayor Pro Tem Lnenicka commented favorably about the Atlanta Regional Military Affairs
Council luncheon held today. Mayor Pro Tem Lnenicka thanked Ms. Bennett for assisting with
this event. Mayor Pro Tem Lnenicka thanked the residents of the Collier Gate HOA for inviting
him to their annual community gathering. Mayor Pro Tem Lnenicka thanked the members of the
Vinings Glen Hoa for inviting him to their meeting.
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LAND ISSUES/ZONINGS/ANNEXATIONS (continued):
(B) Public Hearing - Variance Request V08-002 - Reduction of Rear Setback from 30' to 15'-
512 Cooper Lake Road - John R. Carmichael, Jr.
Messrs. Calhoun and Huff stated no agreement has been reached between their respective clients.
MOTION: Council Member Wood made a motion to approve Variance Request V08-002 for
reduction of rear setback from 30' to 15' at 512 Cooper Lake Road for John R. Carmichael, Jr.
The motion was seconded by Council Member Newcomb. Motion was approved 5 - O.
CITIZENS INPUT:
Mayor Pro Tem Lnenicka recognized Mr. Alex Backry, residing at 3459 Shawnee Trail, and Mr.
Backry expressed concerns about fees paid by the City to the principal legal advisor during 2007.
Mr. Backry stated he is concerned by what he considers to be overbuilding in the Smyrna area.
Mr. Backry expressed concerns about possible City budgetary restraints and reductions in force.
ADJOURNMENT:
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With no further business, the meeting was adjourned at 10:35 p.m.
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May 19, 2008
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SUSAN D. HIOTT, CITY CLERK
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TERI ANULEWICZ , WARD 3
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CHARLES PETE WOOD, WARD 7
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~ AR,nCLE XIV. ZONING VARIANCE
Page 1 0[2
ARTICLE XIV. ZONING VARIANCE
Sec. 1400. Variances.
All requests for a variance from the terms of the zoning code relating to setbacks, distance
requirements between buildings or other substantially similar dimensional regulations, parking, or
accessory structures, except when requested as part of a rezoning; or a variance from the terms of the
stream buffer ordinance, shall be heard by the license and variance board as established by city
ordinance. All other requests for variances from the Zoning Code shall be heard by the mayor and city
council.
(Ord. No. 2005-34, 8-1-05)
Sec. 1401. Variance petitions
(a) Filing of petition. Variance petitions to the board of adjustment may be filed by any person
aggrieved by the literal enforcement of the requirements of the zoning code. Upon receipt of
written petition and filing fee, the city administrator, or his designee, shall, within 30 days,
schedule a hearing to consider the petition and shall notify the petitioner of such hearing.
(b) Requirements of petition. The following information must be provided with each variance
petition:
(1) Location of property, to be identified by land lot number, street address, and present
zoning classification. Also, general descriptive information such as major streets or other
well-known landmarks.
(2) Zoning classification of all adjoining property.
(3) A comprehensive summary detailing the extraordinary and exceptional conditions
which will necessitate a nonconforming use.
(4) A copy of any existing plat of the property.
(5) Signature of the subject property owners or in the case of a corporation a duly
authorized officer.
(c) Filing fee. A filing fee, as determined by the governing body, must accompany each
request. A schedule of filing fees approved by the governing body shall be maintained by the
city administrator or his designee.
(d) Procedure. The petitioner shall bear the burden of demonstrating to the board that the
evidence on the record meets the standards outlined in section 1403.
(Ord. No. 2005-34, 8-1-05)
Sec. 1402. Notification required.
(a) The building inspector shall cause to have posted, in a place conspicuous to the nearest
public roadway on said property, one or more signs, each of which shall not be less than six
square feet in area, and each of which shall indicate that a variance petition has been filed and
shall contain the date and time and place of the public hearing. No such public hearing shall
take place until said signs have been posted for at least 15 days.
(b) The petitioner shall notify abutting property owners by delivering a copy of the variance
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5/19/2008
/' .AR\fICLE XIV. ZONING VARIANCE
Page 2 of2
petition by hand delivery or by certified mail with return receipt requested. Proof of such notice
shall be provided to the city administrator or his designee prior to the hearing. Proof that
certified mail was properly sent will be sufficient evidence of notification.
(Ord. No. 2005-34, 8-1-05)
Sec. 1403. Variance review standards.
In rendering its decisions, the license and variance board or mayor and city council shall
consider the following factors:
(1) Whether there are unique and special circumstances or extraordinary and
exceptional conditions applying to the property in question, or to the intended use of the
property, that do not apply generally to other properties in the same district.
(2) Whether any alleged hardship is self-created by any person having an interest in
the property nor is the result of mere disregard for or ignorance of the provisions from
which relief is sought.
(3) Whether strict application of the relevant provisions of the zoning code would
deprive the applicant of reasonable use of the property for which the variance is sought.
(4) Whether the variance proposed is the minimum variance, which makes possible the
reasonable use of the property.
(Ord. No. 2005-34, 8-1-05)
Sec. 1404. Conditions and limitations.
In authorizing any variance the license and variance board and the mayor and city council shall
include as a part of such variance, any condition, requirements or limitations which the board may
believe to be necessary and desirable to protect adjacent properties and the surrounding
neighborhood, and to carry out the spirit and purpose of the zoning code.
(Ord. No. 2005-34, 8-1-05)
Sec. 1405. Time limit.
Any variance granted shall expire whenever the nonconformity for which it has been granted is
discontinued or abandoned. If a variance is not acted upon within 12 months of its approval, it shall
expire.
(Ord. No. 2005-34, 8-1-05)
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5/19/2003
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BROCK CLAY
phone 1 770.422.1776
lax 1770.426.6155
www.brockclay.com
attorneys at law
Brock, Clay, Calhoun & Rogers, P.C.
49 Atlanta Street
Marietta, Georgia 30060
Community Leaders
Comprehensive Solutions
Richard W. Calhoun
E-mail: rcalhoun@brockclay.com
Direct Dial: 678.784.3502
May 15,2008
Ken Suddreth, Director
Community Development Department
The City of Smyrna
Smyrna, GA 30080
Re: Carmichael Variance
Dear Mr. Suddreth:
Pursuant to our conversation following the April 23, 2008 variance hearing in the above matter, I
am forwarding to you at this time, a letter from Gaskins Surveying and Engineering Company
("Gaskins") concerning the siting of Mr. Carmichael's proposed house upon his lot located on
Cooper Lake Road. Following are the reasons why we believe Mr. Carmichael's variance
request should be granted:
1. Unintentional siting errors caused by independent contractors are not disqualifications for
a vanance.
As you can see from the letter and enclosed site plans, Gaskins had drawn several site plans for
the lot with rear setbacks varying from 30 feet to 18.95 feet. It is important to note that all of the
plans showing less than a 30 foot rear setback, including the "Revision No.2 "A" mentioned in
Gaskins' May 14,2008 letter, also showed a 40 foot front yard setback, and that the only plan
that showed a 30 foot front yard setback was the "Revision No.2 "B." This is significant
because the variance Mr. Carmichael was granted on August 8, 2007 was for a 30 foot front yard
and a 30 foot rear yard setback. Therefore, the only site plan drawn by Gaskins which actually
utilized both variances which were obtained was the "Revision No.2 August 24,2007 "B" site
plan. Neither the "Revision No.2 August 24,2007 "A" plan utilized both variances, nor did the
"House Staked in Field" plan.
For reasons we have not been able to confirm, Plan A was staked, rather than Plan B. This
incorrect staking not only placed the house closer to the rear property line than 30 feet, it also
completely wasted the ten-foot front setback variance Mr. Carmichael had obtained from the
708636.1
Ken Suddreth
Page 2
May 15,2008
City. It is simply not logical that a homeowner who had just recently gone to the trouble and
expense of obtaining both afront and a rear setback variance would intentionally violate one
(the rear setback), and waste the other (the front setback) when making use of both variances
would place the house in its proper location.
Prior to having his lot cleared, Mr. Carmichael also personally marked the rear property line with
strings and surveyor's tape. Enclosed are pictures showing these markings in place prior to
construction.
Unfortunately, not only was the house staked in the wrong location, but in addition, the grading
contractor Mr. Carmichael hired disregarded both the stakes and the rear property line markings.
These errors resulted in the shifting ofthe house even closer to the rear property line, (and the
clearing of an approximately 3,500 square foot area of the adjoining property).
As evidence that the setback from the property line was disregarded by the grading contractor,
rather than by Mr. Carmichael, I also enclose pictures showing the remains of these strings and
tape which were discovered later in the construction process by Mr. Carmichael's plumber who
was digging trenches for plumbing lines. Hopefully, all of these circumstances are sufficient to
prove the point that the variance now requested by Mr. Carmichael was not the result of any
intentional, or even negligent, act on his part, but rather, that Mr. Carmichael took ordinary
measures to see that the house was sited properly outside of the 30-foot setback which he was
granted. 1
In this regard, the City's ordinance provides only that "the hardship may not be self created by
any person having an interest in the property, nor be the result of mere disregardfor, or
ignorance of the provisions from which relief is sought." In the present situation, the only
person who has an interest in the property is John Carmichael (not his grading contractor and not
his surveyors), and it is clear that Mr. Carmichael took prudent measures to insure that his
construction remained outside the setback line. The fact that his contractor and surveyors
apparently erred and did not conform to variance and property lines is regrettable, however under
the language of the ordinance, these errors are simply not chargeable to Mr. Carmichael, because
neither ofthese contractors had any interest in the property, and as independent contractors, Mr.
Carmichael is not chargeable with their errors. Sorrow v. Hadawav, 269 Ga. App. 446 (2004)
IMost homeowners (and even some professional builders) do not go to the trouble and
expense of having an engineer prepare a site plan prior to construction, or to having an engineer
stake the location of the house. That Mr. Carmichael took these two steps alone, negates any
inference of intent or negligence on his part.
708636.1
Ken Suddreth
Page 3
May 15,2008
(Summary Judgment to landowner affirmed where independent contractor had cleared adjacent
property past marked property lines).
II. A property line encroachment is not a factor to be considered in granting or denying a
varIance.
The City's zoning ordinance lists four "variance review standards" to be considered in granting
or denying a variance, however none of these standards state or suggest that the resolution of a
civil property dispute between adjoining owners should be a prerequisite to the granting of a
variance. Although such a requirement is certainly the preferable solution in this and all such
cases, given the attempts that have been made over the past three months to resolve this matter, it
does not appear that such a resolution is likely to occur soon.2 3 To condition a variance to which
Mr. Carmichael might otherwise be entitled on the resolution of a dispute with a neighbor is to
give unfair advantage to the neighbor in a civil dispute that has no bearing upon where Mr.
Carmichael's house is sited upon his lot.
III. The variance sought by Mr. Carmichael would be needed whether an encroachment had
occurred or not.
The situation would be different if Mr. Carmichael's house actually encroached over the property
line, (instead of coming to within 15 feet of it), since the City could not legally grant a variance
for the use of an adjoining owner's property without that owner's consent. Fortunately, those are
not the facts we are dealing with here. The issue before the City is whether, under the terms of
the ordinance, Mr. Carmichael is entitled to a rear yard setback variance. If there had been no
encroachment, Mr. Carmichael's house would still be sitting where it is, within the 30-foot
setback line, but still on his property. Conversely, if there had been an encroachment of 1000
feet, Mr. Carmichael's house would still be positioned within the rear setback line, and still upon
his own property. Simply put, the need for the variance exists regardless of whether or not the
2Mr. Carmichael first offered to restore the Kays' property by plantings, however Mr. Kay
rejected this solution and instead suggested that Mr. Carmichael purchase a considerably larger
area of his property for:l: $36,000. Mr. Carmichael countered with an offer of $1 0,000 for the
disturbed area and Mr. Kay's response has regrettably devolved into an unpleasant attack upon
Mr. Carmichael's character (see attached letters of February 6,2008, February 12,2008, April
28, 2008 and May 8, 2008).
3 According to tax assessor's records, the approximate area of encroachment (:I: 3,500
square feet is worth $2.76 per square foot or a total of $9,660, and according to Mr. Kay's
brochure, the value placed on the same area is $11,060 calculated at $3.16 per square foot.
708636.1
Ken Suddreth
Page 4
May 15,2008
encroachment ever occurred. If the encroachment dispute cannot be settled between Mr.
Carmichael and his neighbor, then a court may have to decide it, but a variance proceeding is not
the appropriate forum for arbitration of a civil dispute that would exist whether there had been a
variance requested or not.
If Mr. Carmichael's neighbor were allowed to hold this variance (and certificate of occupancy)
hostage for months or years, while demanding ransom to resolve an unrelated property dispute,
then the City would be setting a dangerous precedent by allowing property owners to use the
City's zoning processes for the unintended purpose of extracting concessions from others
whenever the need for a variance arises. By setting forth in its ordinance the four specific
standards by which a variance request is to be evaluated and decided, the City has properly
rejected consideration of extraneous factors such as whether adjoining owners are able to
voluntarily resolve property disputes. Conversely, whether or not Mr. Carmichael is granted a
variance, Mr. Kay still has the ability to continue to attempt to settle his claim, (or to take it to
court if necessary). All that Mr. Kay will lose if the variance is granted is the temporary leverage
he enjoys from jeopardizing Mr. Carmichael's variance request in order to gain an advantage in
a property dispute.
IV. The evidence also satisfies the City's remaining variance review standards.
(a) Extraordinary and exceptional conditions.
The extraordinary and exceptional conditions applicable to Mr. Carmichael's property in
this matter are its shape, topography and size. It is triangular in shape, rises fairly sharply
from the road, and is relatively narrow insofar as front to rear dimensions are concerned.
The multiple site plans generated in order to locate the house upon the lot are testament to
this fact. Moreover, granting a variance to allow Mr. Carmichael's house to remain
where it is (only another 15 feet closer to the rear property line) will not cause any
measurable impact upon his neighbors. Both homes behind Mr. Carmichael are on
heavily wooded lots, with Mr. Kay's home being over 350 feet from his rear property
line. The photographs which we have presented in this matter show that the difference
between siting Mr. Carmichael's house 30 feet from his rear lot line, versus 15 feet is
minuscule when compared with the ample amount of existing separation from the homes
on the adjoining 10ts.4
4Attached is a real estate listing promotional brochure for Mr. Kay's house which
described the Kays' back yard as "a wonderful back yard with flat play area and tons of privacy,"
and a "total private yard." The pictures provided with this listing brochure also include a view in
the direction of Mr. Carmichael's property, yet Mr. Carmichael's property is not even visible in
708636. )
Ken Suddreth
Page 5
May 15, 2008
(b) Only the minimum variance has been requested.
The variance requested (15 feet) is the absolute minimum amount which would still allow
Mr. Carmichael's house to remain where it is, without having to be tom down.
(c) Denial of the requested variance will require Mr. Carmichael to tear down a new
home solely to move it fifteen feet from a rear property line.
With regard to whether a denial of the requested variance would work a hardship upon
Mr. Carmichael by depriving him of reasonable use of his property, we believe such a
hardship is undeniable, given the fact that without a variance Mr. Carmichael has spent
substantial amounts of money to build a house for his family, and that until he is able to
obtain a variance and certificate of occupancy, he will not be able to occupy his new
home.
For the foregoing reasons, therefore, we respectfully request that the staff rescind its earlier
recommendation that the grant of a variance to Mr. Carmichael be conditioned upon the
resolution ofMr. Kay's encroachment claim. Rather, we request that the City confine its
consideration ofMr. Carmichael's request to the criteria set forth in its ordinance, recognizing
that the errors which necessitated this request were not those of the owner, but rather, of
independent contractors, and that the City grant the requested fifteen foot setback variance.
Thank you for your consideration in this matter.
Sincerely,
BROCK, CLAY, CALHOUN & ROGERS, P.C.
, W~
Richard W. Calhoun
For the Firm
RWC:mgc
the picture. There is clearly no impact upon Mr. Kay's property as the result of the 15 foot siting
error involving Mr. Carmichael's house.
708636.1
Ken Suddreth
Page 6
May 15,2008
Enclosure
cc: John Carmichael
Mayor and Council Members
Scott Cochran, Esq.
Parks Huff, Esq.
708636.1
Gaskins Engineering
Site Plans
709192.1
lJaskins
J 166 POWD1::u SPRiNGS ROAD
iV[APJt:rr.4., GA 30064-
PHONE: (770)42-1-7/68
FAX: (770) 424-7593
WWW.C;SCSURVEY.COM
E:orCtNEERllS'G . SVRVRYINC . LA:orn Pl.A.:SNrNC . a.NV''('RONMEN1'....L
May 14, 2008
To Mr. John Cannichael:
In August of 2007, Gaskins was contracted by John Carmichael to do a house location plan at,..512
Cooper Lake Road. The house was placed based on the clients specifications, but the location of the
proposed pool was in question and two separate site plans were produced showing the hvo different
location of the pool. Later, revision #1, Gaskins revised the site plan using a different house plan and
showed two different rendering of the proposed house and pool based on two different setbacks from
the property lines. Later, revision #2, Gaskins again revised the site plan using a different house plan
and showed two different rendering of the proposed house and pool based on two different setback
from the property lines. On August 27, 2007, Gaskins placed wooden stakes at 512 Cooper Lake Road
at the proposed house corners and pool corners based on Revision #2, option A.
~~
Christopher A. Evans, GA. RLS #2784
Survey Manager
G'd
6 ~00-699-9L9
SUr>jSBO AUULjOr
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30 Foot Front Setback
Variance/30 Foot Rear
Setback Variance
709192.1
Ma~ 14 08 11:56a
J.R. Carmichael, Jr.
(770] 432-9482
p.2
3180 Atlanta Road 1 P.O. Box 1226. Smyrna, Georgia 300811 (770) 319-5387
City of Smyrna
Department of Community Development
Variance Request Decision
Dear Mrs. Carmichael:
This letter is to certify that your application for a variance request was received on June
21,2007. The variaq.ce request was heard on August 8, 2007 at the License and Variance
Board meeting. You as the applicant requested the following variances for 512 Copper
Lake Road:
(1) Variance Case: V07-048 - Reduction of the Minimum Front Setback from 40' to
30',
(2) Variance Case: V07-049 - Reduction of the Minimum Rear Setback from 35' to
30'.
The License and Variance Board approved the requested variances by a vote of 3-0, If
you have any questions regarding the variances please contact Rusty Martin at (678) 631-
5354.
Date: August 8, 2007
eJ1d~
Russell Martin
City of Smyrna, Planner - I
CITY COUNCIL WARD 1 WARD 2
MELLENY PRITCHETT RON NEWCOMll
CITY ADMlt\'ISTRATOR
WAYNE P. WRIGHT
MAYOR
A. MAX AACOI'<
WARD 3 WARD ~ WARD .> WARD 6 WARD 7
Jill.l. SCOCCI'JS ,',,1IKE MlCNABB JIMMY SMITH WADE LNENICKA CHARLES "PETE" WOOD
CITY CLERK CITY ATTORl\:fY ,\'1UNIClPAI. COURT JUDGE
SUSAN D. HIOTT. c.."tC SCOTT A. COCl-IRAN L ALTON CURTIS, )R.
Property Line Markings
709J92. J
. \' .
Property Line Stakes
709192.1
Cobb GIS Information
709192.1
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Sales Brochure,
Kay Property
709192.1
State: County:
GEORGIA COBB
Yr Built: Age Desc:
2000 Resale
Lake: NONEWaterfront: 0
Stories: 2 Elem:
Stories NICKAJACK
Style: Middle:
Traditional GRIFFIN
High:
CAMPBELL
Directions: 285 TO EXIT #15 (S COBB), GO OUTSIDE PERIM.
TURN LEFT ON EASTIWEST CONN. LEFT ONTO COOPER
LAKE RD, LEFT INTO VININGS ESTATES. RT ON VININGS
ESTATES DR, HOME ON RT.
. B,uyer Full Report
Residential
#:3704459
Broker:
Active CBRB02
695 VININGS
ESTATES DRIVE
City: MABLETON
Subdivision: VININGS ESTATES
Lvls Bdrms Baths Hlf Bth
Upper 4 3 0
Main 1 1 0
Lower 1 1 0
Total 6 5 0
Page 1 of 1
Area: 72
$ 584,900
Map: 784E8
Media: iiJ3
lt1 -
'{jrtl,l aJ
Tow
Zip: 30126
Public Remarks ....--....................-.................... ....... .... ..
AMAZING JOHN WEILAND COVENTRY FLRPLN FEAT 6BR/5BA W/FULL FIN BSMT & 3-CAR GAR. WONDERFUL BKYD
W/FLAT PLAY AREA & TONS OF PRVCY. HUGE MSTR BR W/SITTING & PRVT RETREAT OFF MSTR BA. BEDRM ON
MAIN PERFECT FOR GUESTS. THIS ONE WON'T LAST!
Feat u res" ...... -...-..... ............".-.................... ....--...... ........ .--.....-.......................................................... ...... ....
Master Bath: Double Vanity, Sep Tub/Shower, Vaulted
Ceilings, Whirlpool Tub
Kitchen: Breakfast Area, Cabinets Stain, Island, Pantry, View To Fmly Dining: Seats 12+, Separate Setting: Other
Rm, Counter Top - Solid Surface Dng Rm
Canst: Brick 3 Sides House Faces: Unknown Tennis on Prop: No Pool: None
Parking: 3 Car Garage, Attached, Kitchen Level, Side/Rear Entry Road: None # FP: 1
Rooms: Computer, Exercise Room, Family Room, Library/Office, Media Room, Nursery, Separate Lvng Rm
Basement: Bath, Daylight, Exterior Entry, Finished, Full, Interior Entry NHOmet' wbal rranty:
ego la e
Lot Dimensions: SEE
AGENT
Other Descriptive Information........-..................--.......-.........
Nbrhd .. Club House Appl - Smoke/Fire Alarm Int. Trey Ceilings
Nbrhd - Homeowners Assoc Appl - Sec System Owned Int. Walk-In Closet(s)
Nbrhd - Playground Appl - Gas Water Heater Int - Wall/Wall Carpet
Nbrhd - Swimming Pool Int - 10 ft+ Ceil Main Ext - Deck
Nbrhd - Street Lights Int - 2-Story Foyer Ext .. Prof Landscaping
Nbrhd - Tennis Lighted Int - Double Vnty Other Ext -Irrigation System
Nbrhd - Undergrnd Utils Int - Disp Attic Stairs Hcap - None
Appl .. Dishwasher Int - DSL Available Fplc -In Great/Fam Room
Appl - Garbage Disposal Int - Entrance Foyer Heat - Gas
Appl - Elec Ovn/Rng/Ctop Int - His & Her Closets Heat - Zoned
Appl - Microwave Int - Hardwood Floors Cool - Ceiling Fans
Appl .. Self-Clean Oven Int - Skylights Cool - Central Electric
Legal, Financial & Tax Information-.---.-..---....-..--------...----...-.............-........-...... ........ ......
Tax 10: 17-0392-0-016-0 LandLot: 0 District: 17 Section: 0 Lot: 13Block: C
Plat Book/Page: % TaxlTax Yr: $5328/2007 Swim/Tennis: $O/None Annl Assoc Fee: $525/ Required
Special: None CPHB: Owner Finance: N Assumable: No
Sol d Info rma tio n.....-.....-....-.-........ .......-.........-..~--....._.........................-......_........................ .........~...._......__.._m..._......
Sale Price: $ Terms: Closing Date:
Original List Price: $ 584,900 Prop Closing Date:
SP/OLP %: 0% Costs Paid by Seller:
Sell Agent 10: Sell Agent:
Bedroom: Bdrm On Main Lev
Lot Size: 3/4 Up To 1 Acre
Lot Desc: Private Backyard, Wooded
Wed, May 14, 2008
10:40 AM
Information herein is provided by Seller and is, therefore, not
guaranteed. @ FMLS 2002-2008
Cool - Zoned
Enrgy - Clock Thermostat
Enrgy - High Eff System
Enrgy - Thermal Pane Wdws
Water - Public Water
Sewer - Pub Swr Connectd
Laundry. Laundry Room
Dock - None
Pending Date:
Sell Office:
Requested By: ,LQ~f'..P..H
SJ;tiNJ;IT
http://fin1s1istings.marketlinx. com/SearchDetail/Scripts/PrtBuyFu1/PrtB uy Ful. asp? email G... 5/14/2008
. Media Display
Page 1 of2
Media
#1 - Virtual Tour
MLS#: 3704459
Type
Link
Description (if available)
Beautiful, serene brick home in John Wieland's
Vinings Estates.
Level rear yard, perfect for children and pets.
Total private yard!
View from the house
'\10' .
3 sided brick home with hardiplank siding on the
rear.
Play area, included with the house!
http://fmlslistings.marketlinx.com/Search/Scripts/MediaDisplay . asp ?Uid= 177 4409&mlsnu... 511412008
.
Correspondence Concerning
Encroachment
709192.1
Feb'21 08 OS:23p
J.R. ~armichael, Jr.
(770) 432 -9482
p. 1
~JL/
JOHN R. CARMICHAEL. JR.
February 6,2008
Mr. Larry Kay
4384 Oakdale Road
Smyrna, Georgia 30080
F E 8 2 2 2008
Greetings Mr. Kay,
First and foremost, please accept my most sincere apology for the disturbance to your
property located at 695 Vinin~s Estates Drive. It was never my intention to cause you any
inconvenience or to intention~lIy disturb your land. As I have discussed with you before, my
primary goal is to return your! disturbed land, as close as possible, back to its original
condition prior to the disturbance. I am respectfully requesting that you pleas.e inform me of
what you would like to see d~ne to your disturbed land. As a preventative measure, I have
installed some silt fence on the disturbed area in an effort to control any possible erosion until
you and I can settle this matt~r. Please inform me of your desires at your convenience.
Again Mr. Kay, please accept my most sincere apology for the trouble I have caused you.
Respectfully,
John R. Carmichael, Jr.
,t1T~:
(2 i (~o-vd
erA ( hOUJl
2600 MATHE\VS STREET
S~1YRNA, GEORGIA 30080
(770) 432..9911 (678) 410-6414
Feb' 1 4 08 06: 1 1 P
J. R. Carmichael,
Jr.
(770) 432-9482 p.l
't:;~ oi tic} ,.1"::>"':'.) l.:-J~ L-)7C,.
~,-;i f. 1\ ~L
DUPL\ C!~, t.
Mr. John R. Carmichael, Jr.
2600 Mathews Street
Smyrna, Georgia 30080
~,,'.I'-~ - ,':~'- . . \
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- I I \ ~
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FE B 1 4 2008 i I I!
-.- 1
February 12, 2008
I l
Re: 695 Vinings Estate Drive, Mableton, Georgia 30126
\. . "-,,,..~ - ~~. ......~ ~...".... . <-'-"'-'"
Dear John,
Thank you for your letter dated February 6, 2008. Of course, I accept your
apology and your explanation for the encroachment on my property at 695
Vinings Estate Drive. With sincere apologies such as yours, I am certain we can
resolve this matter.
I have inspected the property and had my surveyor review the extent of
the damage. Unfortunately, the damage appears to be quite extensive. As you
know, there was a substantial mature stand of trees at the rear of my property,
which your contractors have clear-cut and removed. According to my surveyor,
the encroachment appears to be between 41.2 and 43.5 feet from the back of my
property line. To keep costs to a minimum at this point, I asked my surveyor only
to rough out the approximate lines of encroachment on the attached plat. I have
enclosed a copy of a portion of the plat that indicates the encroachment in rough
terms. Naturally, if we need, we can get him or your surveyor to produce a
formal survey later. However, at this time, I thought the enclosed would be
sufficient for discussion purposes.
One of the things I always particularly liked about my property was the
mature stand of trees, which are now gone. They not only enhanced privacy,
they added a large measure of green curb-appeal. I hope you can understand
that planting seedlings, as you have offered, or even saplings at the rear of my
property would not restore it to its previous condition. It would take many years
for new trees to reach the beauty, height and substance that were there before. I
have made some informal inquiries into the cost and availability of replanting
mature trees. I have discovered that the results are not guaranteed (some of the
replanted trees may not survive the replanting), and that it is cost prohibitive.
The cost would almost certainly exceed the value of the affected land.
I wanted to provide an alternative for your consideration. We had
discussed the possibility of your purchasing the affected land. On the attached
plat, I have marked two existing and established points "A" and "B." I propose I
sell you the land that abuts your property up to the line between "A" and "B,"
This addition to your property would greatly enlarge your back yard and
significantly enhance the value of your property. I would accept it as full
Page 1 of 2
Lawrence P. Kay 4384 Oakdale Road Smyrna, GA 30080 770435-0332
Feb.14 08 06:11p
J.R. Carmichael, Jr.
(770) 432-9482
compensation for the encroachment and destruction of my tree stand. Since this
would additionally require me getting the permission of my lender and a new
closing, I request that you pick up the closing costs (including the surveyor) in
connection with the transaction. In viewing the parcel I described, (which is
approximately 8,893 sq. ft) and utilizing your earlier offer to purchase my property
at $4.05 per square foot, I think $36,000 (plus c10singlbank fees and survey) is a
fair and reasonable price. Upon reaching a mutual agreement and approval by
our lender, we can proceed with drawing up the appropriate contracts secured by
a non refundable earnest money deposit of $10,000.00. The only issue that I
request to be changed on your variance is that you return to the original code
required 40' rear set back line and that you do not clear any more trees, both of
which can easily be achieved.
Again, I thank you for your letter and appreciate your apology. I sincerely
desire a resolution that is fair to us both. I look forward to hearing back from you.
Best regards,
Pag e 2 of 2
Lawrence P. Kay 4384 Oakdale Road Smyrna. GA 30080 770435-0332
p.2
. Fe~.14 08 06:11p
J.R. Carmichael, Jr.
(770] 432-9482
p.3
MAGNETIC
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#512 COOPER
LAKE ROAD
TAX PARCEL
17033000240
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TAX PARCEL
17039200160
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THIS SURVEY WAS PERFORMED WITHOUT THE BENEFIT
OF A CURRENT nru= COMMITMENT. tJ./IS PROPERTY
MA Y BE SUBJECT TO EASEME:NTS, CLAIMS, 'PRESCRIPTIONS,
SUBSURFACE CONDITIONS. OR OTHER MATTERS OF TITLE
WHICH ARE NOT VISIBLE. RECORDED, OR DISCLOSED. .
b
40 0
L...-_-..J
SCALE IN FEET
40
I
IN MY OPINION THIS PLAT IS A CORRECT
REPRESENT A TION OF THE LAND PLATTED
AND HAS BEEN PREPARED IN CONFORMITY
WITH THE MINIMUM STANDARDS AND
REQUIREMENTS OF THE LAW,
SURVEY FOR:
LOCATED IN
LAND L01S 391, 392
17th OISlRlCT
. 2nd SECllOO
Cc:ElB COUNTY.
err Of
GEORGIA
LARRY P. KAY
695 VININGS ESTATES DR.
LOT 13. VININGS ESTATES UNIT IV, PHASE I
SUR'EYS PLUs, IHe.
J565 SOUTH COBB OR.. 5.E. Q
SUl'RNA. GE:ORCIA 30080 *
PHONE: (770) 444-9736 ~ ~
FAX: (770) .U4-9739 ~ "=\/"
ALl l'Y'P('S t#' SUtI€'I1 JifM ~ AMJ ttRS1IrJI:1ION IlANAfDDIT
JOB NO. 04-217
ORA~ BY, SG
CHEO<EO BY: OF
om 2/04/08
SCALE 1"=40'
fiELD DATE 1 .31 08
RE\IlSlONS
DATE
.
.
BROCK CLAY
phone 1770.422.1776
fax 1770.426.6155
www.brockclay.com
attorneys at law
Brock, Clay, Calhoun 8. Rogers, P.C.
49 Atlanta Street
Marietta. Georgia 30060
Community Leaders
Comprehensive Solutions
April 28, 2001
Richard W. Calhoun
E-mail: rcalhoun@brockclay.com
Direct Dial: 678.784.3502
Parks F. Huff, Esq.
Sams, Larkin & Huff
Suite 100
376 Powder Springs Street
Marietta, GA 30064
Re: John Carmichael variance/Larry and Marilyn Kay property
Dear Parks:
Please accept this letter as an offer on behalf of my client, John Carmichael, to compromise
all claims which Larry and/or Marilyn Kay may have for the accidental clearing, by Mr.
Carmichael's grading contractor, WF Black, Inc. of an approximate 5,000 sq. ft. area at the rear
of the Kays' property at 695 Vinings Estates Drive.
Contingent upon the following conditions, Mr. Carmichael will pay Mr. and Mrs. Kay $10,000
for unencumbered fee simple title to the portion of property shown in the crosshatched area of the
enclosed February 4, 2008 survey:
(1) A complete release in favor of Mr. Carmichael for all claims for damage arising
from the accidental clearing of Mr. and Mrs. Kay's property;
(2) A complete release from Mr. Steve Crawford (and all other owners of the lot at
4908 Vinings Ridge Trail for any damages to the Crawford property; and
(3) Final approval by the City of Smyrna of all variances necessary for the issuance of
a certificate of occupancy for Mr. Carmichael's house presently under
construction.
As I mentioned, (and as the City acknowledges) the rear setback variance being sought by Mr.
Carmichael would be required whether or not there had been any encroaehment on the Kay's
property, or whether or not an agreement is reached with the Kays, because Mr. Carmichael's
house is also located less than 30 feet from another owner's (Crawford) property line, and a
702595.1
..
.
Parks F. Huff, Esq.
Page 2
April 28, 2008
purchase of a portion of the Kay's lot would not entirely eliminate the need for a setback
variance. \
Insofar as the amount of our offer is concerned, we believe it is critical to recognize that the
errors which resulted in the clearing of Mr. and Mrs. Kay's lot were committed by an
independent contractor, after the house location was properly staked by Gaskins Engineering
Company and the property lines were marked, and that under these circumstances Mr.
Carmichael is not legally responsible for the grading contractor's error. Sorrow v. Hadawav, 269
Ga. App. 446 (2004). (Summary judgment to landowner affirmed where independent contractor
had cleared adjacent property past marked property lines.)
Also, considering the fact that the Kay's property is leased to a third party who presumably has
possessory rights to it during the term of the lease, and further, that the overall configuration and
size of the lot suggest that the affected area is essentially "excess land,"2 3, we believe the amount
ofthis offer is fair and reasonable.
Please advise ifthe above offer is acceptable to your clients.
This correspondence contains statements made with a view to compromise of a disputed matter
and shall not be admissible in evidence to charge Mr. Carmichael with liability or damages in
any manner.
Sincerely,
OUN & ROGERS, P.c.
lAlthough the City seems to be inclined to condition the grant of any variance to Mr.
Carmichael upon a "resolution" of the encroachment issue which we have been trying to resolve
for several months now, I am hopeful that the City will reexamine its apparent position and
confine its consideration of Mr. Carmichael's variance request to the criteria set out in its
ordinance.
2The Kay's lot is over one-acre in size in a subdivision ofR-I5 lots. The Kay's house is
located:l: 300-350 feet from the affected area, and is separated from it by a fence and numerous
other trees.
3Mr. Kay admitted to Dennis Young that he didn't even know his land went back that far,
which is an acknowledgment on his part that this is simply "excess land."
702595.\
..
Parks F. Huff, Esq.
Page 3
April 28, 2008
RWC:mgc
Enclosure
cc: John Carmichael
702595.1
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Feb 14 08 06t 11F
J.R. Carmlcnael, ,)1.
THIS SURVEY WAS P[RFORM~O WTHOUT me BENEFIT
OF A CURR~/VT tm.t: COMMlTM~NT. THTS PROP~RT't
MA Y Be SU8JF:CT TO fAst:MrNTS. CLAIMS.' PRE:SCRIP170NS,
SUBSURFACe CONDmONS. OR OTHER MA TTE:RS OF n1!.C:
WHICH ARE Hor "ITS/BLf. RECORDED, OR DISCLOSeD. .
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TAX PARCEL
17033000240
TAX PARCeL
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IN MY OPlNl0N THIS PLAT IS A CORRECT
REPRESENTATION OF THE LAND PlAHEO
AND HAS BEEN PREPARED IN CONFORMITY
WITH THE MINIMUM STANDARDS ANO
Rta1JIREMENTS or THE LAW.
695 VlN1NGS ESTATES DR.
LOT 13, VIN1NGS ESTATES UNIT IV, PHASE I
I.OCAn:O IN
Lm> LOTS 391, 392
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SURVEYS PLUS; INe.
J56S S()fj7H COBB DR.. $.E. Q
SJJ'11<NA, G.ORGlA JO(MO *
PHONE! (770) 44<1-97J6 2-J.~
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JOe NO. 4217
DRA'ifl l!r: 5G
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REVlS10NS
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SAMS, LARKIN & HUFF
A LIMITED LIABILITY PARTNERSHIP
MAY - 9 2008
ATTORNEYS AT LAw
SUITE 100
376 POWDER SPRINGS STREET
MARIETTA, GEORGIA 30064-3448
GARVIS L. SAMS, JR.
JOEL L. LARKIN
PARKS F. HUFF
JAMES A. BALLI"
MELISSA P. HAISTEN
JUSTIN H. MEEKS
770.422.7016
TELEPHONE
770'426.6583
FACSIMILE
SAMSLARKINHUFRCOM
*ALSO LICENSED TO PRACTICE
IN ALABAMA
May 8, 2008
Mr. Richard W. Calhoun
Brock, Clay, Calhoun & Rogers, P. C.
49 Atlanta Street
Marietta, GA 30060
Re: John Carmichael Variance
Dear Richard:
I am in receipt ot-your lett~r dated April 28, 200S: I believ;e-tllat soi~eof the facts you
represent in your letter are inaccurate and need to be challenged at tb.is time,
First, you state that the house was properly staked by Gaskins Engineering Company.
However, your client previously stated in a letter to my client that the error was a staking error
by his surveyor. The facts as presented by your client have shifted over time on this critical point.
Your client now squarely places the blame on W. F. Black Grading, his grading
contractor. I discussed this issue with Mr. Black and he unequivocally stated that he graded
within the line that was established by your client Mr. Carmichael. He also unequivocally stated
that the foundation was dug where it was staked by a third party. Mr. Black was very clear that
the grading he did was at the direction of your client and in the location that your client directed
him to.
It is an interesting set of facts that your client had a very limited backyard based upon the
placement of his home. Then, coincidentally, he graded beyond his property line to create an
inappropriate backyard. Now your client would like to say it wasn't his fault it was everyone
else's fault, but he would like to buy an appropriate backYard for $10,000,00.
. - . . .
. "..
Your client likes to point out that the property that Zv~stfespassed o~~'sits a far distarice
from my clie,nt's house and is therefore not very valuable to my client. I would like to point out
that the value of a leveled and clear backyard is in excess of $1 0,000.00 to your client.
~
,..
SAMS, LARKIN & HUFF
A LIMITED LIABILITY PARTNERSHIP
Mr. Richard W. Calhoun
Brock, Clay, Calhoun & Rogers, P. C.
May 8, 2008
Page 2
Your client wants Mr. and Mrs. Kay to accept the facts as he presents it but he has zero
credibility. His excuses have changed over time and his statements are contradicted by other
witnesses. In the end, your client seems to be trying to bullying himself a backyard.
Sincerely,
rks F. Huff
phufI(ZUsamslarkinhuff.com
PFH/brl
cc: Mr. Larry Kay
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Feb 14 08 06:11p
J.R. CarmlcnaeJ., v,.
THIS SURVEY WAS PERFORMED WITHOUT THE 8ENfF7T
OF A CURRENT tm.E COMMITMENT. THIS PROPERTY
MA Y e, SU8.JECT TO EASEMENTS. CLAIMS.' PRESCRIPTIONS.
SUBSURFACE CONDITIONS, OR OTHER MATTERS OF TITLE
WHICH ARE: NOT VISIBLE:. RE.CORDED. OR DISCLOSED.'
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MAGNETIC
#512 COOPER
LAKE ROAD
TAX PARCEL
17033000240
TAX PARCEL
17039200160
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IN MY OPINION THIS PLAT IS A CORRECT
REPRESENTATION OF THE LAND PLATTED
AND HAS BEEN PREPARED IN CONFORMITY
WITH THE MINIMUM STANDARDS AND
REQUIREMENTS OF THE LAW.
SURVEY FOR:
LOCATED IN
loo lOTS 391. 392
17lh l)IS1lllCT
2nd SECTlCtI
CCElI COJNTY.
crr or
G(~QA
LARRY P. KAY
695 VlNINGS ESTATES DR.
LOT 13. VININGS ESTATES UNIT IV. PHASE I
CATE
SURVEYS PW5, INC.
J565 SOUTH COBB DR.. S.l. Q
SMYRNA. GEORGIA 30080 *
PHONE: (770) 444-9736 ~"",.r
FAX' (770) 444-9739 ~ "'=\/
All I'tf1('S ty SUfft'r1 Al& ~..., a:NSP/lJCIIOI MA/lltAQ1tII:'N'
JOB NO. 4217
ORA'M'I BY: SG
CHEOCf:D Bl: OP
OAT! 2/001/08
SCALE ,.. = 40'
fiELD DAlE 1 31 08
REVISION S