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HomeMy WebLinkAboutMinutes - BZA - 02-19-2008a MINUTES City of Milton Board of Zoning Appeals Regular Meeting February 19, 2008 7:00 PM A11 Board Members Were Present: Meeting Leader/City Staff: AGENDA ITEMS 1. Call to order 2. V07-022 13980 Freemanville Road Wernick & Associates 3. V08-001 15350 Thompson Road Jodi P. Martin 4. V08-002 12230 Birmingham Road David Flahardy 5. V08-003 15745 Hamby Road Roland and Carla Ebright Jr. 6. V08-004 2925 & 2935 Webb Road Ken Morton 7. V08-005 2905 & 2915 Webb Road Ken Morton 8. Other business 9. Adjournment PLEDGE OF ALLEGIANCE MEETING CALLED TO ORDER Chair Heidi Sowder called the meeting to order. Heidi Sowder Gary Willis Scott Kilgore Marcia Parsons Todd Chernik Walt Rekuc Sandy Jones Angela Rambeau, Community Development Mike Tuller, Community Development Mark Law, City Arborist Page 1 of 81 Board of Zoning Appeals Regular Meeting February 19, 2oo8 Chair Heidi Sowder: Read purpose and charge of the Board of Zoning Appeals and then called for the first Agenda Item. APPROVAL OF THE MEETING AGENDA: Chair Heidi Sowder moved to amend the meeting agenda. Motion and Second: Heidi Sowder made a motion to amend the meeting agenda and to move case V08-004 and V08-005 up to the number 2 and 3 spots on the agenda. Seconded by Todd Chernik. There was no discussion. Vote 7-0. Motion unanimously carried. APPROVAL OF THE MEETING MINUTES: Chair Heidi Sowder: The first order of business was to approve the January 15, 2008 meeting in inutes. Were there any corrections other than what were submitted to staff? There were none. Motion and Second: Heidi Sowder moved to approve the January 15, 2008 meeting minutes. Seconded by Sandy Jones. Vote: 6-0-1, with Todd Chernik abstaining. Motion carried. Chair Heidi Sowder: The next order of business is the consideration of application of variances. Chair Heidi Sowder: Read statement to attendees of meeting regarding time restrictions for presenting, rebuttal, and public comment. Chair Heidi Sowder: Will Staff present the first application, V08-004. Staff Angela Rambeau: Read aloud Petition V08-004, 2925 & 2935 Webb Road. Variance requested: (1) to encroach into the 75 feet impervious setback (Article 14.7.6.5.i) and (2) to encroach into the 50 feet undisturbed stream buffer (Article 14.7.6.5.ii). Staff requires applicant to comply with all GWSCC requirements. The hardship sited is site topography and overall narrow nature of the property, and that allowing the stream to be piped would be in harmony with the stream on the north side of Webb Road which is already piped and would not cause additional detriment to the public. Staff recommends the applicant adhere to all applicable state permitting conditions for piping a stream, based on current environmental compliance standards. Chair Heidi Sowder: Mr. Morton would you like to come forward with your presentation and state your name and address for the record. Ken Morton, 14732 Taylor Valley Way, Milton, GA: or Angela, do you have the presentation that was sent to you. Page 2 of 81 Board of Zoning Appeals Regular Meeting February 19, 2008 Staff Angela Rambeau: I do have it on my computer. [left meeting to get the presentation]. Applicant Ken Morton: Lesson learned. Never assume you will be 4th or 5th and be a few minutes late. I apologize for scrambling here. I will go ahead and get started. Walt Rekuc: Are you missing people to help you present this? Applicant Ken Morton: Yes sir, I am missing my engineer and the person that has my presentation to show you on the screen. We thought we would be 4th or 5th and assumed 7:30 would be more than adequate. Chair Heidi Sowder: Okay, then I would like to make a motion to move these back again. Have you contacted them? Applicant Ken Morton: Yes, they should be here in minutes. Chair Heidi Sowder: Okay, then we will go ahead with the original agenda. I will make a motion. Motion and Second: Heidi Sowder made a motion to amend the agenda again to move V08-004 and V08-005 back to the original place on the agenda. Seconded by Sandy Jones. Vote 6-0-1, with Todd Chernik in opposition. Chair Heidi Sowder: Mike, do you feel comfortable presenting V07-022 in Angela's absence? Staff Mike Tuller: Petition V07-022 was read aloud. It is located at 13980 Freemanville Road. The request is for Wernick & Associates to allow a concrete detention wall to encroach into the 50 ft. stream buffer. There are no staff comments. Location of the wall was chosen for topographic reasons which will minimize the amount of impact to the stream. Other locations would require a high degree of site grading with large amounts of parallel stormwater piping systems. Chair Heidi Sowder: Will the applicant please come forward. Page 3 of 81 Board of Zoning Appeals Regular Meeting February 19, 2008 Sam McCullough, 260 Autumn Saize Drive, Alpharetta, GA: I am the Vice -President of Development for Land Solutions. The proposal tonight we have accomplished several times in the past. We have an existing wall in the Triple Crown subdivision already. Basically, when the topography is so steep as is common in the valleys and low areas of the City of Milton, we have a problem sometimes getting a very flat area to slow the water. I wanted to point out that water quality is achieved. There are two other locations on the site that we are actually providing for water quality erosion control. The wall that we are proposing is really just to knock the velocity of the water to slow it down and back it up in the existing channel and then let it go out in an engineered rate. There are only 13 lots on these 20 acres and the lots kind of circle a very small stream that begins on our property. When it leaves our property it continues on through another person's property and then back through the edges of Triple Crown and so it is very important that we slow the water down as it leaves our property. One side of the property is fairly level and the tree cover is not so dense. We were able to put a major water quality pond that the entire street will actually be piped to. However, on the opposite side, the topo goes up - if you look at your exhibit - you will see how dense the contour lines are. For those few houses that are on that side of the stream, we would have to somehow or another go in there and provide a place for that storm detention. The only way the engineers really felt that we could achieve this, would be to strip out the trees and then pipe it backwards against the grade up the stream. About a year go, the city arborist, Mark Law, and I walked the stream and there is a significant amount of pretty mature Popular trees. Triple Crown unfortunately had been devastated by pine beetles, but this section there are really some nice trees. As developers in the North Fulton area for 25 years, that has really been one of our mottos to save and protect as many trees on lots as we possibly can, so when we went through this process and it is not an easy one to achieve this, because having to go through with state and federal approval and, of course, when we started this we really did not know how the City of Milton would handle these matters, so we got with staff in time and submitted our engineering plans. We own the property; we have totally engineered the tract of land. LC Engineers felt that this was the best civil design for hydrology for the site, we hired environmental services and they concurred. We had to wade through several alternatives and present those to the DNR and they all came back positive. In the past, the way that we go about actually in the field construction is that we try to limit the area that we go into the stream, we hire the largest concrete pump truck that you can actually buy and it actually pumps out about 100 feet in extension, and we actually pour from that platform. It is completely away from the stream bank. The wall width itself is only about a foot, but because of the height, the footing is about 15-16 feet. We just take that out and because we are able to move the wall up and down the stream just a little bit, often times we are able to save some significant trees when we put the wall in place using the pump. There is no heavy equipment except for the excavation of the footing and just enough clearing to get that wall in place. We have successfully done this in the past. The first one I did exactly like this was about 12 years ago in the Harrington Falls Subdivision. Today, you really cannot even see that wall back in there. The streams are good and intact. I walk these properties occasionally just to see how they last and the stream just runs through a bottom hole in the wall and when there is a secondary hole higher that drops into a box, the water flows into the box, it slides down the face of the wall, goes down into the bottom of the box and then out the hole. The force of the energy of the water has been reduced by the wall and is a very effective method. I think downstream the erosion and environmental of the development is much abated because the wall is in place. We paint the wall black, landscape them, and the date we actually pour the wall we are there matting the wall and because you are only disturbing so little of an area, there is very little runoff downstream from erosion. You are not driving vehicles down there, just merely pumping the concrete. Page 4 of 81 AM Board of Zoning Appeals Regular Meeting February 19, 2008 Chair Heidi Sowder: I have a question. You talk about the topography on the south side of the stream where the lines are a lot more dense. The lots that are not immediately adjacent to the road, but to the front of the site plan. Applicant Sam McCullough: If your site plan has numbers on it, it should be lots 10, 9, 8 and 7. That is where if we had to provide detention on that slope or worse a storm drain line trying to get a storm pipe back around the stream somehow, because of going against the grade, it is more difficult. The more you have to go against the grade, the more you have to clear because the deeper the pipes are going to have to be and that would be in the words of the engineer, would just devastate the forest we are trying to save. Chair Heidi Sowder: How steep is the grade on the land? We heard from staff that if it is 4-1 slope down you would need to put a fence around the detention area. Have you measured the steep slope? Applicant Sam McCullough: In the past what we have done is we do fence the ends of the walls to the point that they are in 6 feet of height. We adjust the edges of the walls. Chair Heidi Sowder: Because of the topography of the land, would it require fencing the area that you are making into a detention facility? Applicant Sam McCullough: No, we just fence the edge of the wall. The topography in this situation is completely different. It is so steep that the detention would be backing up in the creek itself. Walt Rekuc: On your state and federal permits, what permit do you get from the feds? Applicant Sam McCullough: In the letter of intent, the three things that we basically have is that we did the preconstruction notification 39, the NWP, the Department of Army Corps of Engineers nationwide permit, number 39 - that is what was approved by them, and then a letter from the Georgia DNR. DNR has very specific erosion control standards that you have to prescribe to which is adhered to very easily with this process that I described earlier. There is very little grading in the area. Page 5 of 81 Board of Zoning Appeals Regular Meeting February 19, 20o8 Chair Heidi Sowder: You will have to go in and build forms obviously for this wall, so how many trucks, and how much heavy equipment is going to have to go back in there and what type of disturbance are you talking about? Applicant Sam McCullough: To cut out the footing you do need a backhoe so you have about 15-20 that you are trying to get down there and he cuts out the wall. The same backhoe just lowers the panels for the footing and the footing is poured all at one time, the steel is tied and the rebar goes up into the wall and then the wall panels are set just much like a basement house and they are all poured. The entire process only takes about two weeks and you are in and out. Applicant Sam McCullough: So other than the backhoe there is not any other equipment? Applicant Sam McCullough: There are no cars or trucks running down there. Everything is brought in by the backhoe or the pump truck. Chair Heidi Sowder: 11%. ., You said that Mark Law walked the site with you about a year ago? Applicant Sam McCullough: Yes. Chair Heidi Sowder: My concern is that this is a free -running stream and you are going to turn it into a water feature or a detention facility, so I am assuming that at times when there is rain that the stream banks will come up and possibly some of the trees that are currently not standing in water will be standing in water. Do we have an actual tree count as to which trees might be affected or what types of trees that might withstand water? Arborist Mark Law: I am sure there probably will be, but as far as a count, we do not have that. When I initially did the site walk, I was not privy to the layout of the pond or anything at that time. We just did a site walk regarding the specimen trees and designated the stream, so I was not aware of where the pond was going to be placed at that time. Chair Heidi Sowder: Do you happen to have that information? Page 6 of 81 ce Board of Zoning Appeals Regular Meeting February 19, 2oo8 Applicant Sam McCullough: The engineers and the scientist take that into consideration and the hydrology study where really the water basically goes into the stream channel and is only there for a very short duration. During the entire time that the stream runs normally, it just goes right straight through the holes in the bottom of the dam. This is not a large body of water. We are talking about a flow of water that you could easily put into a 10 inch hole. Probably 75% of the storms it just fills up the stream channels for a little while and then lets it out. When I went back to look at some of the walls we had done in years past and looked at it to see if there had been any damage to it, you could not tell that the stream had eroded at all where the wall was. Where the head walls coming from storm pipes, there was more erosion that what the wall was creating, but the wall basically just knocks down the velocity and in their studies, it shows that it tends to just hold into the stream bank. Obviously in very big floods it can go up in there, but I did not see any erosion around roots or anything like that from the walls we have done in the past. We have not had any complaints. The one we did in Harrington, the downstream homeowner which owns a lake, he just loves it because it really did stop a lot of the erosion going down into his lake from the velocity because it is very steep on that particular one and then in Kingsley which is also on Birmingham. Depending on the proper engineering, and we think we have hired the best to do that, then I think your fears should be satisfied, but that is a good question. Chair Heidi Sowder: So if we say have another Hurricane like we did with Ivan and there is a significant amount of rain fall within a few days, how long with water be held in there? Like a 24 hour period and then everything gets out of there? Applicant Sam McCullough: Yes, and it is a little quicker than that. Again, we have the ability to hold some water back on site with water quality, but because of those last lots and the steep topo, the 10, 11, 12 and 13, we cannot control it where it exits our property. We can hold it back in other places and we are doing that. The big charge of water is being held in those two other ponds, but when it leaves the property, unless we put a pipe down there and shift it back upstream or build a pond on the side of that very steep wall, then there is no way to knock it down before it leaves that property. There are lots on both sides of this creek and in order to meet water quality and stormwater detention, you need clear map areas on both sides and it really becomes a really ugly eyesore if you had to do it that way. Todd Chernik: You mentioned prior incidents of you installing walls including Triple Crown. Once you complete this project, do you turn the responsibility for the maintenance over to the HOA of Triple Crown? Applicant Sam McCullough: Yes, it is in our covenants and I got to applaud the city on this. In our latest project at Kingsley and Vickery that we recorded - not only is it in our covenants spelled out that proper inspection of our stormwater detention must be done on a periodic basis by qualified personnel, and it is in our protective covenants and it will be and now it is a city requirement, so that really works well to notify the HOA of what their charge is to do and to hire the appropriate people to go out and look at it. Page 7 of 81 Board of Zoning Appeals Regular Meeting February i9, 2oo8 �01 Todd Chernik: And secondly, have you posted a bond to offset any potential fees with maintaining such detention? Applicant Sam McCullough: Not yet have we, because we have not yet built, but the stormwater features are a bondable amount that is put into your development agreement here in the city and those bonds will be running for about a year and a half. Chair Heidi Sowder: Downstream from where this wall will be is another lot and I assume is another homeowner. How far is the wall going to be from their home? Applicant Sam McCullough: The property immediately next door that is going downstream is current vacant. On your plan you will see that the property line and the wall there is still about 50 feet of undeveloped property, wooded area, that is still on our property. The neighbors in the existing part of the subdivision are much higher and the lots are really large so they would never see it. IL Chair Heidi Sowder: 0 Any other questions for the applicant? Sandy Jones: I would like to address some questions for clarification. As part of the land disturbance process, you do not have a LDP. Are you in this process? Applicant Sam McCullough: That is correct. We do not have an LDP currently. This would be part of the package that would go through the process and our full set of engineering plans are predicated on this use. We had to do it to be able to get this far so we are ready for a permit, but right now we do not have one. Sandy Jones: As part of that permit package, will there be a hydrologic analysis and study that shows the effectiveness? Staff Mike Tuller: As part of the permitting process we will be evaluating the hydrologic situation created by this impoundment situation. Page 8 of 81 Board of Zoning Appeals Regular Meeting February 19, 2oo8 Sandy Jones: I have a question to Mr. Law. You had mentioned that when you walked the site you did not have this site plan layout at that time. Now that we do have a site plan, is there anything that you would like to bring to the board's attention or anything that we should take into consideration at this time. Arborist Mark Law: He does have a good number of specimen trees located on the plan and he would be responsible for any recompense for any trees that would be removed or damaged through the construction of that wall, but those trees would be addressed. Chair Heidi Sowder: Okay, thank you Mr. McCullough. I would now like to open up the floor for public comment. If you would please come forward and state your name and address for the record. Michael Niekuch, 13990 Freemanville Road, Milton, GA: Good evening. My name is Mike Niekuch and I am here tonight with my wife, Dale. We are adjacent property owners of this project. We have been there for about 10 years and really enjoy living there. We have not received any information from Wernick & Associates about this development as far as where this concrete wall is going to be placed in relation to our property. Our property lines this whole development on the northern border and we have great concern as you can imagine regarding what type of influence and impact this is going to have on our property as far as drainage. This property does drain on our property now and we are concerned about the development and things that occur on this property and how this will affect us and whether it could flood us more. One other thing we are concerned about is what the wall is going to look like. As you can imagine as homeowners yourself, you surely do not want to drive up to your property every night that you have been enjoying for many years and have to look at a massive concrete wall. We do not know what it is going to look like and whether it is aesthetically going to be fixed in a way that is pleasantly pleasing or if it is going to retain water year round like a lake or if it is going to be a mosquito bed in the summertime when the summer rains hit. We have a lot of concerns and nobody has answered any of our concerns so that is why we are here tonight because we do not anything that will impact our property line and the equity that we have developed in our property over the last years since 1994. My main concern tonight is to find out what exactly is going to be happening and how it is going to affect us on the northern border. I have not seen any schematics on where the wall is going to be and we really would just like to get some information as a Milton homeowner what is going on. Todd Chernik: I have a question. Are you the yellow house on the right hand side of the property? Michael Niekuch: Yes. I am up on the hill. We have 10 acres up there and have been there since 1994. Page 9 of 81 Board of Zoning Appeals Regular Meeting February 19, 20o8 Chair Heidi Sowder: I do have a question for you. You mentioned that you currently have had some flooding issues? Michael Niekuch: The people who previously owned the property had a large front yard and that yard now grades down and when there are heavy rains it floods our driveway and the next house in front of us and goes north on Freemanville Road. That can be seen on any heavy rainy day. We are concerned about how this is going to impact us in the future and want to make sure that if this is going to be developed that this is not going to worsen. There is a dirt road there that people from Triple Crown are using to go in and out of the subdivision and it is the original driveway of the people who own the property. It has not been improved. It used to be a construction road and it has been a real pain for my wife and I and nothing still has been done about it. There was a high speed accident where a homeowner from Triple Crown crashed into my fence. That road floods significantly and is very dangerous and slippery and is full of potholes. We as homeowners would just like to know what is going on since we have a vested interest in our property that we have enjoyed and improved since 1994. Walt Rekuc: Could you show us on the map we have where your property is located in relationship to the map? Board Discussion with Applicant and his wife referencing site plan map. Chair Heidi Sowder: Is there any other public comment at this time? There was none. Chair Heidi Sowder: Mr. McCullough, would you like to come back up for rebuttal? You have 5 minutes Applicant Sam McCullough: Those are great concerns and we are going to make it aesthetically pleasing as possible with the landscaping and trees that will screen it. We are high on the hill and with the trees will make it where you will not see it. We are 400-500 feet away. The gravel road is a problem and if you will notice, our land plan shows a new road being built and the gravel road will be discontinued at that point. It will not be a daily use means of travel once the construction is done. Chair Heidi Sowder: I guess this is a question for staff, but is a gravel road that is not on the maps of the city allowed to just be used by residential traffic. My concern is right now they are allowed to continue to use that road. Page 10 of 81 ca Board of Zoning Appeals Regular Meeting February 19, 2008 Applicant Sam McCullough: It is a private drive, but as soon as we get the LDP and are finished, it will be discontinued. Right now it is for construction travel. Chair Heidi Sowder: Do you have the ability to barricade it off when you are not using it? Could the road be shut down right now after the workday? This is a concern of the neighborhood. Applicant Sam McCullough: That is not my call, as it is not my property, but as soon as the LDP goes in it would be. We would access that road for a very short time to get the equipment in. That is the only way to get in right now. It is still being used for some minor amounts. We did put in some speed bumps in to slow traffic down. I am not the property owner, so I can not make that decision. It will not be used later as a daily way of travel and would be fenced off or gated if our plan goes through. This is a totally different issue. Todd Chernik: Having discussed the topic of a bond, would you be willing to post a bond for a longer period of time for the HOA so they can fully assess the impact of the detention pond, say perhaps for a five year period versus a year and a half. Walt Rekuc: Let me answer that if I may. Under most bonding capacities, as I am on a bonding subcommittee with Gwinnett County, the longest you can possibly get a bond nowadays is for about 18 months to 2 years. You can renew bonds, but probably not for five years. Todd Chernik: Let me restated my question. Would you be willing to pursue a renewal bond for a period of up to 5 years for this project? Applicant Sam McCullough: For the wall itself? Todd Chernik: And the potential impact that the wall could create. To alleviate some speculation and concerns. Page I 1 of 81 Board of Zoning Appeals Regular Meeting February i9, 2oo8 Applicant Sam McCullough: I cannot commit to that today. Again, I am not the owner or the investors that are in the limited partnership that will develop this. The city bonding program that they have today is if in their inspection if they found a reason to say that there is a defect in the way that it is operating, they could require us to put up another bond. So in a way I am saying yes, we would do such a thing and get it repaired for 48 months and then renew for two years after if once they inspected they saw any problem whatsoever and then we would do that at that time routinely. I can answer your question that way that yes, we would do that. You have me in a little bit of a legal bind here because I am not the person who is the owner of the partnership. In working with your city and your staff, I am sure that your question would be resolved. These walls are built with structural engineers every step of the wall and they have to pull samples of the concrete and all that. Todd Chernik: I am not as concerned with the construction of the wall as I am about potential erosion upstream in the channel and the large specimen trees that may be affected by any upstream erosion affecting then the HOA down the road and we all know the expense that can create. Applicant Sam McCullough: If those problems were happening, yes we would put up another bond at that time. CWalt Rekuc: 14 Are you putting this in the same HOA as the subdivision? Applicant Sam McCullough: Yes. Walt Rekuc: Are you not funding that HOA to some degree? Applicant Sam McCullough: Actually we are built out just about so it is turned over to the association. Walt Rekuc: And at the same time, this wall is something that the city has to approve from a structural standpoint as well as Hydrologic. Is Mr. Sanders here? Page 12 of 81 A Board of Zoning Appeals Regular Meeting February 19, 2008 Staff Jimmy Sanders: It will be part of the LDP process. Before the wall gets built we have a separate permit with details on it. Walt Rekuc: What is the bonding requirement for detention pond walls in the city and what percentage of the construction costs is typically the maintenance bond? What period of time is that bond? Are they renewal or do they expire after the 18 months? If you do not release it, does it stay in effect? Staff Jimmy Sanders: Maintenance bond is generally 30 percent of the construction cost. Period of time is 18 months. If we had a trigger that would cause it to be extended, then it could be extended. Keep in mind that we are talking about a maintenance bond and we may be talking about a different type of bond. If we are talking about a bond for some other inherent problem that might result from the operation of the wall and not the wall itself - there is actually not a bond that we have for that type of purpose. In other words to mitigate any damage downstream or something that might happen upstream - that generally would be in a different category. Todd Chernik Are you telling me that this type of bond would not be administered through the city? Staff Jimmy Sanders: If we are talking about liability from the operation of it, it is different than the maintenance bond which has to do with repairing and operating the wall itself. Walt Rekuc: Under HOA requirements - and this is something you may have to to - that is talk with the HOA and get the insurance to cover that wall and cover the liability to make sure that is included in that policy. That is how I have done it in other HOAs that I have done. Todd Chernik Right, because that becomes an HOA liability. Chair Heidi Sowder: Since we have legal representation here this evening, I will take the opportunity to ask Mr. Jarrard what the options are for a bond to cover those possibilities. Page 13 of 81 Board of Zoning Appeals Regular Meeting February 19, 2oo8 © City Attorney Ken Jarrard I agree with Mr. Rekuc. I have always had difficulty getting folks to bond for more than a year and a half or two years for just a standard maintenance bond. It depends how serious the BZA wants to be about this. You can always ask for a revocable letter of credit if there is a concern out there. That is going to be a fairly significant undertaking by the applicant because obviously that ties up cash at their bank, but there are different ways to skin the cat is the point I am making. With respect to just a standard maintenance bond, unless you get it subject to repeated renewal, you are not going to get one much longer than 18 months to 2 years. Sandy Jones: And just for clarification, I do not think the maintenance bond addresses what the issue is that was brought up by Mr. Chernik, in that we are not looking at the structural integrity of the wall itself, but other possible problems. City Attorney Ken Jarrard: Then you are really into almost a risk management situation where you start talking about an insurance policy and you have to start thinking about asking the HOA to take out an insurance policy, because I think what you are talking about is will there be a pool of money available to someone if this thing begins to fail and the answer is right now, probably not and then you find yourself with an HOA that is not really equipped to handle the problem. Sandy Jones: And that is what we are trying to mitigate. City Attorney Ken Jarrard: And that issue is being dealt with in various ways by lots of jurisdictions and stormwater utilities is one of them to try to deal with that, but right now the only way I know to make a third party like the developer on the hook for basically a potential liability of an HOA is to ask for some type of a letter of credit and again, you may get some resistance from that. Sandy Jones: So right now there is no mechanism to say that for the maintenance bond, let us say for an 18 month period to ensure that the integrity of this system is working as designed? City Attorney Ken Jarrard: It is a matter of what somebody is going to underwrite and I am just telling you that I think they would have a difficult time getting a traditional bonding company to issue that. What you are talking about in my estimation is much more similar to an insurance policy and obviously we can ask them to go out and get an estimate and maybe talk to some folks to see if they would be willing to write that type of an insurance policy and bring you make a premium rate. That would be the only way I know. Page 14 of 81 11 Board of Zoning Appeals Regular Meeting February i9, 2oo8 Walt Rekuc: Like for a five year term. City Attorney Ken Jarrard: Right now I have no idea how much that would cost and who would right it. I do not even know what insurance companies would write that. I am not aware of any. Sam McCullough: One last thing, in the covenants we do, as Walter has indicated, lists this as part of the HOA. The declaration is basically the HOA for a set of time, remembering that there are many ponds on this whole site and there is a much greater liability in that there is a five acre lake with a state class type dam, so they have to be funding their responsibilities throughout. What I early said is what the city is requiring us to do and remembering that this is public information and every homeowner gets a copy of the Protective Covenants and it is listed in those Protective Covenants. We have not had that particular problem in the past and we have developed here for 22 years in the North Fulton area, so I have not had a situation where a facility was improperly constructed, but the legal mechanism to hold them accountable is going to be in the covenants and there has to be an inspection on an annual basis of the facility and the repair as a process of the covenant, so there is a way that everybody as a group can maintain these facilities. Sandy Jones: Regarding your construction that you did at Harrington Falls that has been in place for about ten years, what type of maintenance had to be done? Sam McCullough: The whole time I was there we never had any maintenance. I walked it just this past week or so and looked at it and it was doing very well. In fact, the vegetation had gone up quite a bit. Sandy Jones: Do you know if the HOA has had to pay anything? Sam McCullough: Never heard of anyone having to pay any extra on that. The water quality ponds take most of the trash from the pipes from the road. This is just to knock down velocity. Chair Heidi Sowder: Anyone else have any questions? Page 15 of 81 59 Board of Zoning Appeals Regular Meeting February i9, 2008 Chair Heidi Sowder: Okay, then I would like to make a motion to close public hearing. Motion and Second: Heidi Sowder made a motion to close public hearing. Seconded by Marcia Parsons. Vote: 7-0. Motion carried unanimously. Chair Heidi Sowder: I would like to open up the floor for a motion at this time. Walt Rekuc: I would like to make a motion for approval with a couple of conditions. (1) that if this wall is approved to be in harmony with the community and also limit the amount of trees that are cleared, that the wall that is put in place, both walls of this property shall be painted to a dark color to be obscured; (2) that the amount of clearing and disturbance to build these walls will be kept at a minimum as based on the City Arborist's recommendation; (3) that at the time that the LDP permit is issued that the gravel access road that goes through that property be closed to the subdivision. Chair Heidi Sowder: Restated the motion on the floor. Do we have a second to the motion? Scott Kilgore seconded the motion. Any discussion? Todd Chernik: Would you entertain an amendment for a renewable bond? Chair Heidi Sowder: You can make an amendment and do not need to ask for permission. We vote on the amendment as a separate motion. Todd Chernik: I am looking for your input as to how to address - given your experience - how to address the ongoing liability that potentially arises from this for the HOA. Walt Rekuc: I think it would be best if it could be shown that it was necessary to have the insurance from the HOA increased to cover the potential of these costs and liability for the HOA. Again, it does not become a liability until it is built, so perhaps at the time of final platting. That would be the ideal time for the insurance to go into effect to show that that was covered. I am just brainstorming, as I am not an insurance agent. This seems like the most reasonable way. The problem with bonds is whose name is on the bond. The city or the HOA? Somebody has to be liable for getting it repaired and the way the city's ordinance is structured, they may want the HOA to be the one that actually gets it repaired and then they would be liable for the repairs and not the city. Page 16 of 81 C Board of Zoning Appeals Regular Meeting February 19, 2008 Todd Chernik: Okay, I would like to raise a friendly amendment that at the time of final platting the applicant shall be required to work with the HOA an addendum to extend liability coverage to include the detention wall. Scott Kilgore: Just a question on order. Was this a motion? Chair Heidi Sowder: We have a motion for an amendment to the motion made by Walt Rekuc that is on the floor. Chair Heidi Sowder: Restated the motion for amendment. Chair Heidi Sowder: Do we have a second? Motion seconded by Sandy Jones. Vote: 5-2, with Walt Rekuc and Gary Willis being in opposition. Motion carried with a vote of 5-2. Chair Heidi Sowder: I would like to ask staff a really quick question regarding the tree recompense. Is that a part of the LDP process as well. Is that something we would need to add to this motion to make sure that the trees were recompensed? City Arborist Mark Law: That will be addressed when the LDP is issued. Chair Heidi Sowder: Okay, we will go back to the motion. We have an amended motion now to grant approval of the variance with both walls being painted a dark color, the land disturbance during construction to be kept to a minimum, at the time that the LDP permit is issued the road will be closed to the existing subdivision, and that at the time of final platting, the applicant shall be required to work with the HOA to seek an addendum to extend the liability coverage to include the concrete detention wall. Do we have a second? We still need a second because it is an amended motion. City Attorney Ken Jarrard: I do not think you need a second on an amended motion that has been approved by a majority, so you have a motion that is ready for action. Page 17 of 81 C; A Board of Zoning Appeals Regular Meeting February 19, 2oo8 Scott Kilgore: I would like to see wording and I am not sure how to word the amendment, but I would like to see wording added to this motion to justify why we are approving it. I believe we are going on the direction of harmony. With the intent of the ordinance we would need to state the intent of the ordinance and why we believe it is in harmony with that as part of the motion. Chair Heidi Sowder: I think the topography is the hardship. Walt Rekuc: Again, the reason that I have stated the recommendation for approval is to minimize the amount of disturbance within this whole 20 -acre site to allow the detention to occur in this drainage basin and therefore not require the great number of trees to be removed that would be necessary if it was located in another area. Secondly, I felt that the topography was such that the land where it could be placed would be a hardship hydrologically to get water from all that area to a single basin and would require multiple basins and clearing and multiple walls to do the same activity as it would for these two walls that are being shown, one of which we are granting a variance on. City Attorney Ken Jarrard: Would the potential amendment then be an amendment to site to Section 22.3.1(a) with respect to harmony and 22.3.1(b) with respect to topography as the basis for the granting of the variances? Walt Rekuc: That is correct. Marcia Parsons: Would like to add to the motion that in addition to the specifications that we put, I would also like to add landscaping, matting, and fencing along the edges of the wall and in accordance with BMT. Chair Heidi Sowder: BMT meaning best management practices. Chair Heidi Sowder: Restate the motion to amend. Chair Heidi Sowder: Seconded the motion to amend. I would like to open it up for discussion. The only question I would have would be for staff. Would that allow a lot of land disturbance to go in and then do landscaping along there? Page 18 of 81 Board of Zoning Appeals Regular Meeting February i9, 2oo8 City Arborist Mark Law: That is pretty standard when they are within the stream buffer, anywhere that there is disturbance they would have to come back and replant. Todd Chernik: As well as the fencing? Would that be included in the wall permit? City Arborist Mark Law: I would have to check with Jimmy about that. Staff Jimmy Sanders: No, the fencing would be separate. Typically, we fence detention ponds when the slope is steeper than 4-1. Actually I have not examined it to see if it is steeper than 4-1. If it is, it would require a fence. Now, the fencing to prevent somebody from actually accessing the top of the wall is standard. Chair Heidi Sowder: Okay, we have a motion to add landscaping, fencing and matting along the edges of the wall and using best management practices. I would like to go ahead now and take a vote: 3-4, with Walt Rekuc, Scott Kilgore and Marcia Parsons voting for and the remainder of the board voting in opposition. Chair Heidi Sowder: Okay, going back to the amended motion. The motion on the floor is to grant approval in that it can be made to be in harmony and then there also exists hardship on the site wherein a lot more land disturbance would happen if this detention facility would to be located elsewhere on this site, both walls shall b painted a dark color so that it is kind of obscure, the disturbance is to be kept to a minimum, at the time the LDP permit is issued, the gravel road will be closed to the existing section of Triple Crown Subdivision, and at the time of the final platting, the applicant shall be required to work with the HOA to seek an addendum to extend the liability coverage to include the concrete detention wall. Okay, I would like to go ahead and take a vote for all those in favor. Vote: 7-0. Motion unanimously carried. Chair Heidi Sowder: Okay, I would like to call the next item on the agenda, V08-001, being presented by Jodi Martin. Page 19 of 81 W Board of Zoning Appeals Regular Meeting February 19, 2008 Jodi Martin, 15350 Thompson Road, Milton, GA Jodi Martin: Presented her case to Board. The variance request is a result of remodeling at our current residence to permit a stair -less additional bedroom and bathroom for my father to reside with us on a permanent basis. This remodel was done using our old garage space. We want to rebuild a garage structure and we are limited to where the garage can be because of trees and the house is not parallel to the road as it is a little twisted. The variance requires that there not be a structure that would be deemed in the front yard. The property is nearly 7 acres and we are 300 feet back off of the road. I have photos showing where the garage is laid out and no neighbors' home is visible, nor will the garage structure be visible from the front of the house. Gary Willis: Do you have letters from the adjoining property owners giving you their permission for you to do this? Did you talk to the people across the street? Jodi Martin: I do not have letters from the adjoining property owners. Jodi Martin: The house across the street has been vacant for 12 months. The property owner for that house actually resides in Florida and the house has been for sale for the last 10 months. My neighbor directly to my east we have spoken to and he is aware of what we are doing and why we are requesting the variance and it is also posted on the front of our property as well as the neighbor behind us and then adjacent to us. It is a very small community of homes and they are all on significant parcels of acreage, and so all of the neighbors touching our property are aware of what is going on, but I do not have letters from them, but they have all received a letter because I was also informed by the City of Milton about this meeting and the request. Chair Heidi Sowder: Would you state for the record what your hardship is regarding this variance request? Jodi Martin: As far as one of the three items? Chair Heidi Sowder: Yes. Page 20 of 81 Board of Zoning Appeals Regular Meeting February 19, 2008 Jodi Martin: I believe it is in harmony with what the variance is intended to be. We are unable to attach a breezeway. We looked at several options when we were first meeting with the architect to attach a 35 foot breezeway which really serves no purpose other than to adjoin a roofline. One it is outside of the expense that we can bear to complete the remodel and to complete the building of the new garage. The estimates are over $20,000 to create a non-use breezeway or covered walkway. We are fortunate on the property that we have probably 100 plus year old oak streets that takes 2-3 people to get your arms around. By pushing the garage back, you will be into the root system of those trees and they may be affected. There are problems moving forward closer because of trees and if closer to the house there will not be enough swing room to actually get into the garage. I did speak with Melissa Henderson and we did talk about shortening the garage where we could move a staircase to the back of the garage and get an additional 6 feet, but we still would not be able to take additional space out or you would not be able to open the car doors. Todd Chernik: By modifying to the city's recommendations with the staircase you could move it such that it would be no further than 8 feet in front of the home? Jodi Martin: It would take an additional 6 feet for the staircase to be put to the rear of the garage and so it would shorten the distance in front of the house, but it would not eliminate it. Todd Chernik: But it would shorten it to no more than 8 feet in front of the home. Jodi Martin: Well it would be 14 ft. 10 in. minus 6 feet, so 8 feet, 10 inches. Chair Heidi Sowder: Does anyone else have any questions for the applicant or is there any public comment? There were none. Chair Heidi Sowder: Mark, did you make a trip out to the site to look at the specimen trees? City Arborist Mark Law: There were no specimen trees right behind the out building as that is a front structure so there was nothing in the front and was well away from where the construction would be. It does appear this could be done without jeopardizing any trees. Page 21 of 81 Board of Zoning Appeals Regular Meeting February 19, 2oo8 Jodi Martin: Presented photos to the Board. Advised Board she had a contractor with her if they had additional questions. Chair Heidi Sowder: I will go ahead if there is no more comment to close it. Motion and Second: Heidi Sowder made a motion to close public. Seconded by Gary Willis. Vote: 7-0. Motion unanimously carried. Walt Rekuc: I would like to ask staff regarding their recommendation to make it no more than 5 foot in front, but just looking at the pictures, it does not seem like 5 feet or 14 feet - I do not really know if I could tell the difference whether you would see that much difference because of the layout of the house in relation to the road. I am trying to just see why the request was made for keeping it at 5 foot versus the 14 foot. Staff Mike Tuller: I think you are correct with your summations. The original information we had when we made the staff recommendations was that the garage area was to be placed 10 feet from the front plain of the house and not 14 feet, so that was new information to us that may have come from a recent survey. Our thought was to compromise where 5 feet would be barely visible from the roadway. Walt Rekuc: What is the normal setback? 60 foot setback in this location? Staff Angela Rambeau: It is 60 feet. Walt Rekuc: In other words you are looking for a reduction of the front yard setback to 45 feet more or less. And this is AG -1, correct? Staff Angela Rambeau: Correct. Discussion with Board members about setback. Chair Heidi Sowder: Are there any other questions of staff? None? Okay, I would like to open up the floor for a motion. Page 22 of 81 Board of Zoning Appeals Regular Meeting February i9, 2oo8 Motion and Second: Scott Kilgore made a motion to approve V08-001 based upon harmony with the general purpose and intent of the ordinance. If I receive a second, I would like to read a statement in support of my motion and I have that written and will pass it out to everyone. Seconded by Sandy Jones. Scott Kilgore: Read along with me if you would like. Heidi Sowder: I would actually like to propose an amendment before we go into discussion Motion and Second: Heidi Sowder made a motion to amend the motion to state that we move the staircase to the rear of the garage as was an option that was discussed with staff in order to bring it back from the 14 ft. 10 in. back to 8 feet in front of the house. Walt Rekuc seconded the motion to amend for discussion. Discussion: Todd Chernik: I think the discussion on this is we should state what the amount of variance we are allowing in feet versus leaving it open-ended. I think this applies to the original motion as well as to the amendment. Whether the right answer is 14, 8, 5 or 0 feet, I think we need to state how much of a variance in feet we are allowing and not be as specific about moving staircases as an option or solution. Heidi Sowder: Okay, then let us go ahead and take a vote on the amendment that I have proposed. Walt Rekuc: Again, as far as whether it is 6 foot, 8 foot, 9 foot, 14 foot or 15 foot, I do not see this being not in harmony with the community. I do not think making it 5 feet or 10 feet or for that matter 15 feet would make that much of a difference. I think leaving the option to make it as easy as possible for the applicant to make her structure work for the family, especially due to their need to take care of their parents, I can understand that hardship personally having gone through that myself, so if we could consider it and make it greater, I think that would be better, but I think it is going to be hard for most folks to see it. I understand the reason, but I would feel better if we gave them more than less. Page 23 of 81 n Board of Zoning Appeals Regular Meeting February 19, 2Oo8 Heidi Sowder: I guess I will clarify my reasoning for proposing the amendment. If you have an exterior stairway in the front, we are already trying to do our best to make it in harmony I am assuming by this motion. If you put the stairway in the front it is going to be visible from the road. Scott Kilgore: I would seconded Walt Rekuc's statement and that was the reason I was moving to approve the request and I agree with Mr. Chernik's statement that I think we need to state an amount so it is clear. I felt that moving it forward or back 5 feet or in this case more like 9 feet, you are just not going to see a lot of difference from the road and it really is the view from the road that we are talking about when I read my statement. You are not going to be able to see it from the sides. I do not think that it makes a difference placing it forwards or back if it is more convenient for the homeowner to have the staircase interior, I was trying to work with that. Heidi Sowder: Okay, we still need to vote on the motion because it was seconded. My motion was to shorten the garage by moving the staircase to the rear of the garage. Vote: 7-0 in opposition. Motion failed. Okay, back to the original motion. I guess we are still discussing if that is appropriate. lfl, City Attorney Ken Jarrard: Or madam Chairman, you could just withdraw the second and refrain the motion if you would like as the amendment failed and there is just a brand new motion on the table which is where it is. I think you wanted to restate it is what I heard. Chair Heidi Sowder: Are we not allowed to withdraw once it is out on the floor? Are we not allowed to vote on it? City Attorney Ken Jarrard: Oh no, you can vote as long as the second agrees to allow the withdrawal. Sandy Jones: I will withdraw my second. Scott Kilgore: I withdraw my motion. Chair Heidi Sowder: I will open up the floor for a new motion. Page 24 of 81 Board of Zoning Appeals Regular Meeting February 19, 2oo8 Scott Kilgore: Motion and Second: Scott Kilgore made a motion to approve V08-001 based on harmony with the general purpose and intent of the ordinance and I would include a cap on the amount that the building can break a plain at the front of the house to be not more than 14 feet 10 inches. Seconded by Sandy Jones. Chair Heidi Sowder: Any discussion? Scott Kilgore: I would like to read a statement in support of my motion. Statement of Scott Kilgore: City of Milton Board of Zoning Appeals Motion Worksheet Scott Kilgore Variance #: V08-001 -� Description: To allow an accessory structure (garage) in the front yard. Motion: I move to approve V08-001 based upon harmony with the General Purpose and Intent of the ordinance. If I receive a second, I would like to read a statement in support of my motion. Supporting Statement: The applicable ordinance for this case is: Article 5.1.3, Section I, which requires accessory structures to be placed in the side or rear yard. I submit that the general purpose and intent of this requirement is as follows: • Accessory structures are typically unsightly and should be placed to the rear or side of a residence in order to maintain an appealing, un -cluttered appearance from the street. • Unsightly structures in the front yard may present an eyesore to neighbors and citizens, as well as negatively impact neighboring property values. • Accessory structures in the front yard also could impede fire and emergency personnel access to the residence. The garage proposed in V08-001 would be in harmony with the intent of the ordinance for the following reasons: • The appearance of the proposed garage is typical and in keeping with the character of the area. Page 25 of 81 Board of Zoning Appeals Regular Meeting February i9, 2oo8 • Viewed from the street the garage will appear to be positioned to the side of the residence. Only when viewed directly from the side would it be apparent that the garage breaks the plane of the front of the house. Since the majority of the garage is behind the plane, the overall balance of the design has a side yard feel. I would add too that it appears from the aerial photograph that the neighbors to either side will have little or no view of the garage due to heavy foliage. • The proposed improvement to the property will almost certainly increase the property value, and as such could only benefit neighboring property values as well. • The side placement of the garage should not in anyway impede fire and emergency personnel. For these reasons I move to approve V08-001. Chair Heidi Sowder: Are there any other comments? There were none. Okay, we will move on to taking a vote. Chair Heidi Sowder: Restated the motion. Vote: 7-0. Motion carried. Chair Heidi Sowder: At this time, I would like to make a motion to amend the agenda. Mr. Morton are all of your people here? Okay. Motion and Second: Heidi Sowder made a motion to amend the agenda to move V08-004 and V08- 005 up. Chair Heidi Sowder: I am going to withdraw that motion. I would like to make a motion to move up V08-003, V08-004 and V08-005. Seconded by Sandy Jones. Discussion: Reason is to facilitate having our lawyer being able to get back home to his family and Mr. Morton has his individuals here and I believe there is going to be lengthy discussion on V08-004 and V08- 005 so I thought I would make the motion to move them forward. Todd Chernik: To clarify, you want to move V08-004 and V08-005 ahead? Chair Heidi Sowder: Page 26 of 81 Board of Zoning Appeals Regular Meeting February i9, 2oo8 V08-003, V08-004 and V08-005. Any other discussion? Scott Kilgore: We have not done V8-002. Walt Rekuc: We can put that at the end. Chair Heidi Sowder: Okay, by a show of hands I would like to vote to amend the agenda. Vote: 7-0. Motion unanimously carried to amend the agenda. Chair Heidi Sowder: Okay, Angela, would you present V08-003 please. Staff Angela Rambeau: Read aloud Petition V08-003. Variances requested are (1) to build a guesthouse in the side yard of the property; (2) to exceed the maximum allowed heated floor space of a guesthouse. The subject site is located at 15745 Hamby Road. Ordinance states a guesthouse should be located in the rear of a property. Hardship stated is that guesthouse needs to be built as handicapped accessible for immediate members of their family. Current home does not support wheelchairs, walkers or other handicapped accessible features so they would have to rebuild their home to correct these problems. The increased heated floor space requested is to accommodate larger bedrooms, bathrooms, and closets to allow wheelchairs, walkers, and other required medical devices. Staff notes that applicant shall comply with the Flood Prevention Ordinance. Arborist notes that the applicant shall follow all required tree save fencing and the Stormwater Department notes the dam breach zone should be shown on site plan when applicant comes in to apply for a building permit. Staff recommends the following condition: (1) applicant shall comply with all applicable rules and regulations for building in a dam breached zone. Chair Heidi Sowder: Is the applicant present tonight? Would you please come forward? Applicant Roland Ebright, 15745 Hamby Road, Milton, GA: My wife has had several knee surgeries and several back injuries. It requires 8 steeps now to get into our house. We cannot get wheelchairs down the hall or into the bathrooms. My wife's mother is 81 years old and most like to come to live with us within the next few years. In addition to this, our daughter has advanced rheumatory arthritis and it is like that if a cure is not found she will also be coming to live with us. We want to build a home that is handicapped accessible so we can continue to live on our land and take care of ourselves and not have to go to a nursing home. This is the reason to have a guesthouse next to the one we have. If you look at the plan, the way the land is shaped I can only put it beside the existing house. The land in the back, the property lines are too close, and the *4W wells on the property prevent me to moving back there either for the septic fields or the house itself. I Page 27 of 81 Board of Zoning Appeals Regular Meeting February i9, 2oo8 cannot move much further down the hill or will get into some big specimen trees and my septic tank field lines would then be down in the flood plain itself. Regarding the additional square footage on the heating, you will notice on the plan there is what is called a metal shop there. That is 1500 square feet. We have tried out various plans for 3 bedrooms and it is too tight for me to live with 3 women that are handicapped in 1500 square feet. That is why we are asking for just a little bit more square footage. Our families have been in this area since the 1830s. We want to continue to live in this area and continue our family heritage and pass the property on down to the kids when they come on up. Chair Heidi Sowder: You mentioned something about a dam breach zone? Applicant Roland Ebright: The dam is about 600-900 feet north of the property that is part of The Manor. It is their dam. In 1990 one of the big hurricanes came through and caused that lake to overflow the dam and come through this field area, went down our property and the creek never overflowed. The dam was just recently rebuilt by The Manor and it is their primary access to the majority of The Manor and their clubhouse so I think it is in pretty good condition. Chair Heidi Sowder: Are there any specimen trees that you are going to have to cut down to build the house? Applicant Roland Ebright: Most of the specimen trees are outside of the land disturbance area, but there are some trees that will have to come out. The area that the house is sited in is a fairly bald area, but I would like the arborist to come out to see if it is possible to transplant some of the existing trees to align our driveway with. I do not know if they would survive the move or not. Scott Kilgore: What are you plans for the existing home? Applicant Roland Ebright: If our son moves back and finds a job in this area, he will move into that house and his plans are to stay there and assist us in our old age and take over the land when it gets to be his turn and continue with the family tradition. Chair Heidi Sowder: Any other questions of the applicant? Walt Rekuc: Have you gotten any letters from adjoining neighbors that would be opposed? Page 28 of 81 Board of Zoning Appeals Regular Meeting February i9, 2oo8 Applicant Roland Ebright: The city sent out a letter to the adjacent homeowners notifying them that this meeting was going to occur and I do not see any of my neighbors here tonight. The Manor is a gated community and they will not allow us back there so I do not even know who lives behind us. Marcia Parsons: Could you tell me if you have addressed the extension of your septic tank fields? Applicant Roland Ebright: Yes, we had a soil test study done and a percolation test done and the two septic fields are laid out as referenced on the plat you have been provided. A primary and an auxiliary for backup in case the primary even fails. My understanding is that if this gets approved I get my permit from Fulton County Health Department. Scott Kilgore: I have aerial photo of your property and it looks like there is fairly heavy foliage between you and The Manor. Is that true and are your neighbors to the rear going to have much view of the two structures? [discussion with Board and Applicant at the dais reviewing the aerial photo]. Chair Heidi Sowder: You mentioned that the topography of your lot precludes putting the guesthouse to the rear of your home? Applicant Roland Ebright: Yes. If you look at the plat, you will note that immediately behind the house is a swimming pool and off to the right there are two wells which is our water supply, so we cannot really build behind there. Cannot build down near the flood plain and also there are some specimen trees down there too. There is really only one place left to build this house. Gary Willis: How far is your house going to be from The Manor that backs up to? Applicant Roland Ebright: The closest house approximately 45 degrees off from the swimming pool will be 300-400 feet from this structure. Chair Heidi Sowder: IcAnyone else have any more questions of applicant or staff? Page 29 of 81 Board of Zoning Appeals Regular Meeting February i9, 2oo8 Walt Rekuc: Regarding the requirement about the dam failure flood zone - Jimmy, I do not know if that is something you have done, but I am going to put on my other hat. I am on the Fulton County Stormwater Conservation District that is or was a district lake or damn upstream. If I recall correctly, that is going to be required to be upgraded to a category 1. If that gets upgraded to a category 1, the chance of that failing once it is a category one, will probably be much less. The Manor did take over that dam and they own it now so they are going to be the ones that will be required to upgrade it and I am not 100%, but probably 95% sure that the state is evaluating that dam along with about 7 other of our dams in North Fulton and that is one that is going to be upgraded to a category 1. I know at that time they will do a dam failure flood analysis as required by law. Jimmy Sanders: I think you are right. It probably will be done by them at that time. But in looking at the lot, I am not sure that this is really a big issue here either because of where this house is situated and the elevation, so I really do not believe this is going to be an issue. All they probably need to do is take a look at the elevation of the height of the dam and extract it like that on the lot and then you will probably find that it does not affect it. Walt Rekuc: 1 do not think they need to do a long drawn out hydrology study and all that. Jimmy Sanders: I do not think they need to do that either. I think they can take the elevation and extrapolate it around the lot and show that it is not in the dam breach zone. It is something that can be shown on the drawing. kATI[i tn' I would like to make sure that we work with him if we can. Chair Heidi Sowder: Are there any other questions or comments? Okay, then I will make a motion to close public comment. Motion and Second: Heidi Sowder made a motion to close the public hearing. Seconded by Marcia Parsons. Vote: 7-0. Motion unanimously carried. Chair Heidi Sowder: I would like to open up the floor for a motion. Scott Kilgore: I would like to make a motion. Page 30 of 81 Board of Zoning Appeals Regular Meeting February i9, 2oo8 Motion and Second: Scott Kilgore made a motion to approve V08-003 based upon harmony with the general purpose and intent of the ordinance. Chair Heidi Sowder: Would state what the actual zoning ordinances are? Do you have those? Scott Kilgore: I do in my supporting statement. Do you just want me to read the variance itself? Todd Chernik: It is two parts. Scott Kilgore: Okay, parts 1 and 2. Continuing with motion: One to approve a guesthouse in the side yard of the property and part 2 to exceed the maximum allowed heated floor space of the guesthouse. The applicable ordinance is Article 19.3.5(b)(5) and Article 19.3.5(b)(3). I'm sorry, is that what you are asking for? I said I moved based on harmony with the general purpose and intent of the ordinance. Walt Rekuc seconded the motion. Chair Heidi Sowder: Is there any discussion? Scott Kilgore: I would like to read a statement into the record in support of my motion. Statement of Scott Kilgore: City of Milton Board of Zoning Appeals Motion Worksheet Scott Kilgore Variance #: V08-003 Description: To build guest house in the side yard. To exceed maximum allowed square footage (1500) by 485 feet / 32% -- total 1985 square feet. Motion: I move to approve V08-003 based upon harmony with the General Purpose and Intent of the ordinance. If I receive a second, I would like to read a statement in support of my motion. Supporting Statement: Page 31 of 81 Board of Zoning Appeals Regular Meeting February i9, 2oo8 The applicable ordinances for this case are: Article 19.3.5, Section B3, which limits heated floor space to 1500 square feet, and Section B5, which requires guest houses to be placed in the rear yard. I submit that the general purpose and intent consists of two items: • The distinction between a residence and a guest house disappears when the size of a guest house approaches the size of a residence. If property owners were allowed to build two full- sized homes per parcel by simply calling the second structure a "guest house", the result would be circumvention of the 1 house per acre maximum density allowed by AG -1 zoning. The 1500 square foot maximum for a guest house closes this loophole. • A guest house, though smaller than the primary residence, nonetheless increases the visual density of the area. This detracts from the rural character of the area and potentially diminishes neighboring property values. Placement of the guest house behind the primary residence helps to mitigate these negative impacts. The guest house proposed in V08-003 would be in harmony with the intent of the ordinance for the following three reasons: 1. Viewed from the street the guest house will be barely visible or perhaps not visible at all, depending upon the season. This is so for several reasons: (1) The property is flag shaped, and the structure will be over 1200 feet from the road, (2) the rear of the property is heavily wooded, (3) neighboring property to the west is heavily wooded, (4) the neighboring property to the east appears to be in the hundreds of acres and is completely wooded, and (5) the closest neighbor to the north would be nearly 200 feet away with heavy woods between. Since both the primary residence, and the guest house will be barely visible from the road or from neighboring properties, the rural character of the area will not be negatively impacted. The houses in this area are quite large, so a guest house that is 1985 square feet would still appear small by comparison. That is, the perceived density would not be increased, since the structures will not give the appearance of two full-sized residential structures. Also, the front of the existing house is approximately 85 feet, whereas the front of the proposed guest house is approximately 50 feet. This too will accentuate the difference in the size of the two structures. 2. Finally, this is a large piece of property, so even if the guest house were considered as a full- sized residence, the physical density of the property will still be well within the I -house -per - acre AG -I standards. For these reasons I move to approve V08-003. Chair Heidi Sowder: Any other comments or discussion? Okay, I would like to propose an amendment just to request that the applicant also follows all of the recommendations that staff has suggested in the packet and that would be complying with the flood prevention ordinance, install required tree save fencing, and show the dam breach zone on the site plan. Seconded by Sandy Jones. Vote: 5-2, with Walt Rekuc and Todd Chernik voting in opposition. Motion carries. Page 32 of 81 �j Board of Zoning Appeals Regular Meeting February 19, 2008 Chair Heidi Sowder: Motion on the floor now is to approve V08-003, Part 1 to allow a guesthouse in the side yard of a property and Part 2 to exceed the maximum allowed heated floor space of the guesthouse as requested and to include that the applicant shall comply with the flood prevention ordinance, install required tree save fencing, and show the dam breach zone on the site plan. Vote: 7-0. Motion carries unanimously. Chair Heidi Sowder: I would like to take a five minute recess. Motion and Vote: Heidi Sowder made a motion to take a five minute recess. Seconded by Scott Kilgore. Vote: 7-0. Motion carries unanimously. Chair Heidi Sowder: Reconvened meeting at 9:35 p.m. Angela, would you present the next item, V08-004. Angela Rambeau: Read aloud Petition No. V08-004, 2925 and 2935 Webb Road. Requested variances are as follows: (1) to encroach into the 75 impervious setback and (2) to encroach into the 50 foot undisturbed stream buffer. Staff recommends that the applicant comply with GWSCC requirements for erosion control and stormwater standards. Applicant states the hardship for the stream includes the site topography and overall nature of the property. If the board approves this application, Staff recommends the that the applicant adhere to all applicable state permitting conditions regarding the stream based on current environmental compliance standards. Chair Heidi Sowder: Mr. Morton, would you come forward? Ken Morton, 14732 Taylor Valley Way, Milton, GA I do have a presentation and I have made copies to distribute to everyone to follow along. The first two pages will be for this variance and the second variance is shown on the third and fourth pages. the other folks that are here with me tonight are Mark Ballard who is with Ecological Solutions, the company that assisted me in obtaining the State and the Corps permits, Brad Riffel with AEC is my civil engineer and my parents Jack and Margie Morton who are the owners of the western portion of the property that will be discussed tonight. Our family has lived in North Fulton for a very long time - about 150 years to be exact and needless to say, we love our community and understand and accepted the tremendous growth years ago, but we like all of you want to see quality growth and smart quality growth and we thank you for your willingness as citizens of our city to ensure that this occurs. Our city has a very limited amount of commercial property to develop and it is imperative that we develop it correctly and we need your help tonight in ensuring that we are just able to do that. The stream buffer variance that we are requesting is located along Webb Road and Highway 9. The front parcel shown is 1.3 acres. It is zoned C-1 and has been for many years. [Discussion with Board referencing site map and presentation]. Also showed the Board from PowerPoint presentation where Page 33 of 81 Board of Zoning Appeals Regular Meeting February 19, 2008 the springhead starts and the beginning of the intermittent stream]. It runs toward Webb Road and it comes out in the right-of-way [Referencing site map]. Most all of the spring is in the right-of-way. The stream flow is only approximately 50 feet [Referencing site map]. Once the stream goes underneath Webb Road, it is piped under Webb and continues to be piped approximately 500 feet on the property across the street from us and then piped back underneath of Windward Village Parkway and enters behind the town homes. With the exception of the rainy season the spring is nearly dry with little or no evidence of any flowing water. We have obtained our State EPD and the Army Corps of Engineers permits. This past December we received City Council's approval for our rezoning to put a nice sit down restaurant on the corner and we are asking for your approval of this variance based on what the Corps and the State have deemed to be justified and obtain permits for. Our hardships are not self-imposed. We are dealing with a very site with the buffers taking up so much of the property and make it very difficult. We did go to all of our neighbors and got letters from each one of them in support of this particular parcel. I explained to each one of them what we were doing and they all agreed through their letters there would not be any impact on them that would be detrimental to their business or to their residence [copies of the letters will be provided to the Board]. Piping this stream is an absolute necessary to even be able to develop the piece of property. There is no other way around it. Walt Rekuc: I have a question for your father. When was Webb Road improved? It looked like it was improved at one time that basically filled that area that caused that area to get depressed. It does not look natural. Do you recall when that occurred? Jack Morton, 405 Tullamore Road, Milton, GA I bought the property in the early 1980s from one of the original owners of the property. Webb Road was just a surface paved road then. That was probably done in the 1960s or 1970s when that road was paved there. Walt Rekuc: It looks like someone filled a good bit right across the street from you because that land if I remember did have a little bit of a draw running through it. Is that how you remember it? Jack Morton: Across the road from our property Alan Carson developed that and filled all that in. There was a lakeside across the road when I was building in that area. I built houses along the road in that area. Walt Rekuc: I have a question now for Brad Riffel. Brad, up in the corner of State Route 9 it looks like there is a storm drain pipe that is draining there. Do you know just out of curiosity how much drainage is coming in off of that? Page 34 of 81 Board of Zoning Appeals Regular Meeting February 19, 2oo8 Brad Riffel, 490 Spring Road Drive, Roswell, GA: I do not know the exact acreage, but it is not very much. Most of which is probably Highway 9 and then the Remax. Walt Rekuc: Okay, and I have a question for Mark Ballard. Regarding your stream, what about the soils on the bottom of that creek. What are we looking at hydrolically. I went down there personally and walked around. I would like to understand a little bit more about the creek and the quality and how you came to get the Corps to approve it as well as the State to approve it. Mark Ballard, 630 Colonial Park Drive. I will talk first from a Corps perspective; there is not really a defined stream definition. I have been doing this for 14 years. We go out to the site and use our best professional judgment. We look at things like what is their separation of sand and silk and is there ground water infiltration coming in and we could obviously see that. The channels were not as big of a legal issue then as they are now given the recent Supreme Court ruling. We did actually take stream soil samples in the channel, which was not a common practice in 2006. Walt Rekuc: As far as getting the State approval for that stream buffer, explain the application process. I am going through one presently and was rather surprised by the number of questions. Mark Ballard: I think the State looks for a rested vegetation line. That is the key thing for the State. In this case we also have the local issuing authority. In this case it was Fulton County at the time that came out and looked and concurred. This went along with the application to the EPD. The EPD has its own set series of criteria you can apply (a -i) and we applied under criteria h., which means you have got the Army Corps of Engineers permit, but it is about a 3-4 page application form describing existing conditions from topography, the soil conditions, the map survey and the overall vegetative character. We just look at the potential detriment to water quality from impact from a stream like this and in this case EPD is really focused on using the term now treatment terrain of BMT or best management practices. Because there are documented conditions showing the project would not have a negative cumulative impact on water quality. Walt Rekuc: Maybe this question is for Brad, but are you saying that when this water from both offset as well as onsite comes into the detention/water quality system it is actually getting cleaned as it goes through. Page 35 of 81 Board of Zoning Appeals Regular Meeting February i9, 2oo8 Mark Ballard: We are basically replacing buffer functions and in this case I think improving those functions. Walt Rekuc: Can you tell me what the length of this proposed stream is? Mark Ballard: In this case, from the Corps jurisdiction I think 71.5 feet. Walt Rekuc: When do they get excited? What distance? Mark Ballard: 300 feet of flowing stream and in this case intermittent streams. 300 feet is a real magic number for the Corps as far as a determining issue. One thing to note is that March 18th that is documented on the Corps of Army Engineers permit that is a nationwide permit. It is now 50 permits that apply to a wide range of activities. Every five years the Corps of Engineers reissues those. Those expire in a certain time period. If you had a prior issuance, March 18 of 2007 was when the new permits came `il a out and you then have 12 months beyond that to complete those impacts or you go back and start all over again which would increase the permitting cost and timeframe. Walt Rekuc: In walking down there I did see a good bit of debris and tires. Would that be allowed to be touched if we did not approve it? What would have to be done if you do not do anything? Mark Ballard: Nine times out of ten nobody does anything about that if it is a restoration project and you would never touch a restoration project at 71 feet. You could do that without a permit and go in and pull the tires out as long as you do not have to get equipment in there. Walt Rekuc: Is there any mitigation being required on either of the two permits that you have gotten from the Corps of Engineers or the State? Mark Ballard: Not from the Corps. Under the rules that were in place then, 100 linear feet of stream was the magic number that kicked you in toward mitigation. From the State's standpoint when this permit was issued, the State had come out this past year with buffer mitigation guidelines - the EPD did. This permit predates those, but again I think the things that Brad Riffel and the folks at AEC have designed Page 36 of 81 Board of Zoning Appeals Regular Meeting February 19, 2008 in provides that buffer mitigation as far as filtering of the runoff as it comes into the buffer and those types of issues. Brad Riffel: There are going to be various methods. We are not sure yet how we are going to provide water quality for the front area. It may be a series of perimeter sand filters where we would drain the surface area through and then from there would go through the underground detention. The back portion would probably be taken of via a very large underground sand filter just given the nature and the depth. Again that would be another underground detention pond. Walt Rekuc: When you are putting the filters in place, what are you actually removing from the water? Brad Riffel: Under the Georgia Stormwater Management Manual, you are bound to remove 80% of the total suspended solids and that is what we will, of course, be applying for with the different methodology that we would work into the whole stormwater management facility of which Mr. Sanders would be reviewing and approving. Walt Rekuc: What about your oils and your carbon elements? Are any of those being removed or treated? Brad Riffel: The sand filters would do a portion of that. If we felt we needed to take care of some of the larger parking lot areas, we would probably introduce an inline oil grip separator, one of the various types that are out in the market. Walt Rekuc: What about the water coming off of Webb Road, would that water being going into this system or bypassing it? Brad Riffel: We have no intention of trying to collect and route Webb Road. Webb Road is draining as such where it is primarily going to be draining toward the large draw that is in the back and that was going to be fed into the pipe system that is already underneath Webb Road. Walt Rekuc: It looks like someone moved the driveway off of Webb Road further off of the intersection. It looks like one time under zoning case 2007-090 that the actual driveway for this location was actually going right over the piping. Page 37 of 81 Board of Zoning Appeals Regular Meeting February 19, 2oo8 Brad Riffel: It has probably changed because Mr. Carson now has a road that he has installed as a loop system that connects Webb to Highway 9 so we are, of course, bound to align with that one. Walt Rekuc: Is there anything else that would benefit us piping this creek or allowing this creek to be piped from your professional opinion besides the water quality being improved and perhaps cleaning out the existing creek and stream? Brad Riffel: Well, of course, all of the methodology that we are going to apply would certain be treating the water to the standards. Other then just allowing a rather prominent and extensive corner to be developed, that would be it. Mark Ballard: One thing to look at is routinely the Corps of Engineers would ask is the highest and best use of the land. In this case, we bought the highest and the best use is the proposed development. We can do better water quality treatment than what is there today. You could leave that today and walk away q._ and come back in 20 years and it will not look much different. The tires would still be there, the quality would be the same. Walt Rekuc: How can you say that? What are your credentials? Mark Ballard: I am a professional scientist. I am not an engineer, but I have done permitting with the Corps of Engineers for about 14 years and this is how I make my living, by trying to convince folks like yourself that these are viable projects and we can get them built. I am speaking on years of experience and being successful in doing that. We also do stream restoration. We are probably the biggest mitigation designer in the State of Georgia. There is a lot of science beyond what we do. Chair Heidi Sowder: Anybody else have any questions for the applicant? There were none. Okay, I will open it up for public comment. There was no public comment. Page 38 of 81 M Board of Zoning Appeals Regular Meeting February 19, 2008 Chair Heidi Sowder: Mr. Morton, do you have anything to add? Ken Morton No, I do not think so. I think these gentlemen have done a good job of presenting the water quality improvements and so forth versus leaving the stream in the condition that it is in right now, but only improve that and, of course, being able to build there and develop the property. Chair Heidi Sowder: I have a couple of questions for staff, so I will go ahead and make a motion to close public hearing. Motion and Second: Heidi Sowder made a motion to close public hearing. Seconded by Todd Chernik. Vote: 7-0. Motion carried unanimously and public hearing was closed. Chair Heidi Sowder: This property came forward for rezoning in December of last year, is that correct? The site plan at that time did not depict any streams on this particular parcel and no stream issues were presented to Council at that time, is this correct? Angela Rambeau: The site plan did not show the stream and the buffers, that is correct. Chair Heidi Sowder: Was an environmental site analysis done or did anyone actually go out and walk the site? City Arborist Mark Law That was done previously I think in 2005 and I did have my site visit notes showing the specimen tree locations and both springs on this project up in the corner and the larger one in the back. How that did not make it on the plan that went to Council I am not aware of that, but I think I did submit my initial site visit notes along with a more recent site visit notes confirming what was out there. Evidently, it appears the stream was overlook in that north corner. In talking with Mr. Morton and another one of his associates in the past when I visited the site again, I brought that to their attention and they were very aware that those streams were there so it was not a matter of them saying they were not there. Chair Heidi Sowder: Also, at the rezoning, the square footage per acre was increased from 8,654 sq. ft. up to 44,160 sq. ft. is that correct? This information was from the 2000 rezoning. I guess this parcel had some acreage added to it which brought the density up because of the additional storage facility. Page 39 of 81 Board of Zoning Appeals Regular Meeting February 19, 2oo8 Staff Angela Rambeau: I think you are reading a part that I have not seen yet, but I will not argue with those numbers. Staff Mike Tuller: Are we evaluating the first tract at Webb and Highway 9? Chair Heidi Sowder: Yes, not in total, just for V08-004. It is my understanding that this was the only parcel considered in the rezoning application. Staff Mike Tuller: I think you are correct. Chair Heidi Sowder: I guess I would request some help from legal then. If this rezoning came forward and the streams were not presented on the site plan, Council approved the rezoning that was given to them with no streams being presented and yet now, two months later, we are looking for a stream variance so I am a little concerned that as a board how do we address that or what concerns might legal have about that? City Attorney Ken Jarrard: Obviously, everyone benefits if the streams are identified at the zoning stage, both the developer wants that because that saves the developer or the wood -be developer from having to come back before the governing authority again later. It happens all of the time is the reality of it. Now we can get to motives if we want to, but I do not think that is where we are going tonight as to why they were omitted. Was it a mistake, were they purposely left off, and I can go on and draw these questions up, but a lot of times what will happen is that a zoning will get passed and perhaps the hydrology had been done a few years ago and perhaps there has been a lot more development around the property, and low and behold, guess what? EPD comes up and finds there are streams on there and there were not streams there previously. That happens all the time after the zoning, and when that occurs what that forces the developer to do is to come back before you guys and request a variance that they would have probably preferred to have gotten the first go around if they had known about it. For the developer it is an unfortunate occurrence as well. I do not know what happened on the previous rezoning and why that was omitted. I think I heard it was an oversight. I do not know why the plans were submitted or prepared the way they were, but clearly you are right. So now the question becomes did the Council make a decision based on incomplete information. I do not know the answer to that because I was not at those previous hearings. The bottom line is whether that resulted in a faulty determination the first time or not, you have the variance before you now and you have to make a decision based upon the facts that have been presented to you. I am mindful of your concern and I understand it as far as having to go back and saying were things not put on that previous site plan such that they were not able to make an informed decision, and I am just not able to speak as to why it Page 40 of 81 Board of Zoning Appeals Regular Meeting February 19, 2008 was omitted the first time. I just know what you have in front of you now and you have to act on that in some way. Chair Heidi Sowder: Okay, so the permits were filed with the EPD and the Georgia Stormwater Management back in March of 2007, is that correct? Ken Morton: In 2006. Chair Heidi Sowder: So back in 2006 you were aware that there were streams on this site? Ken Morton: 2005-06 and it was my mistake because I assumed that with state permits and EPD permits that this is what was necessary to pipe the stream and it was not an oversight on my part except for with those permits in place we would be able to move forward and then I was notified afterwards that you had to go apply for a variance. So it is very important for you to know that there was no intention on our part to mislead anyone in not recognizing those streams. That was the last thing that we wanted to do. We just assumed, and wrongly so, that with the state permits the Corps permit, that we were good to C go, and obviously that was not the case, so my apologies for that. As counsel said, it would have been so much easier to do this back in December and we would not have our stress in trying to get this done now. I am very sorry that it has come to your call to make tonight, as it should have been addressed earlier, but once again, it was my oversight in just assuming I was good to go to pipe those streams and I apologize for that. Chair Heidi Sowder: I actually do have one more question. The stormwater detention on this site as I understand it is going to be underground stormwater detention at the front corner and within the buffers. Walt Rekuc: I have a question for the arborist. On the trees that are in that area, are they considered substantial trees that are specimen trees in this area? City Arborist Mark Law: There are three specimen trees up in that corner that appear to be in good health and seem to have good structure. What happens here is once you eliminate the surrounding trees in the cavity of that tree sometimes that changes the structure of the tree as far as the aesthetics and everything. It does not change the fact that it is a specimen size tree, just may change the aesthetics, but the trees appear to be in good health. I did talk with Jim Seeba in transportation and he was concerned about the road widening and that was going to impact those trees if they get too close when they widen Webb Road. Page 41 of 81 Board of Zoning Appeals Regular Meeting February 19, 2008 Walt Rekuc: I would like to make a motion. Chair Heidi Sowder: Does anyone else have any questions for staff at this time? There were none. Motion and Vote: Walt Rekuc made a motion for approval to encroach within the 75 foot impervious setback based on Article 14.7.6.5.i and to also encroach into the 50 foot undisturbed stream setback, Article 14.7.6.5.ii. The reason is for the shape of the property and narrowness of the property that would be remaining had the stream buffer stayed in place and also would be in harmony with the property across the street where it was previously piped and in general that they would still have to comply with all the state and federal regulations involved with the stream buffers and what they are required to do. Seconded by Gary Willis. Chair Heidi Sowder: Is there any discussion? There was no discussion. Chair Heidi Sowder: Restated the motion to approve the two part variance. Vote: 5-2, with Scott Kilgore and Heidi Sowder voting in opposition. Motion carried. Chair Heidi Sowder: Angela would you present the next item? Staff Angela Rambeau: Petition V08-005 was read aloud in its entirety. The variances were for 2905 and 2915 Webb Road. Requested variances are as follows: Part 1, to encroach into the 75 foot impervious setback and Part 2, to encroach into the 50 ft. undisturbed stream buffer. Property is located at the southwest corner of Webb Road and Highway 9 and is in the State Route 9 Overlay District. The Georgia Department of Natural Resources has approved the piping the state water portion of the stream to the U.S. Water Springhead. The comments were that the applicant shall comply with GWSCC requirements. Should the board chose to approve this application, Staff recommends the following conditions: That the applicant adhere to all applicable state permitting conditions for piping the stream based on current environmental compliance standards. Ken Morton: I want to apology to you again. I think I gave the board my notes with the packet I gave to Mr. Kilgore to pass out. I may do better without them. This parcel is in the rear of the property that my folks have owned for nearly 30 years there. It has been undeveloped for that long or perhaps longer Page 42 of 81 Board of Zoning Appeals Regular Meeting February 19, 2oo8 ® than that. It is comprised of 2.8 acres and zoned O&I a few years ago with Fulton County. The proposed variance request is for our request to pipe 75 lineal feet of the state waters. [referencing the diagram where piping would be]. The total length of the stream is 320 feet. It comes up as a spring there on our property and then goes back down underground and then comes back up. It goes from south to north toward Webb Road is the flow there. As you can see from the picture on the left [referencing diagram] it does run dry. This portion that we are talking about with the exception of the rainy season is once again like the other one, a very dry stream. If you went out there now as many of you may have, you will see there was a wet portion up there with the rain that we have had, but this portion [referencing diagram] remains dry throughout most of the year. When we got our zoning back in 2005 as I said earlier, we had a 25 foot setback in place and we were ready to begin construction immediately to get started and we were simply waiting for a letter from Fulton County for sewer. You may know about this particular area, but it was very frustrating after two years of conversation with our friends down there, we finally received this past fall our letter of approval for sewer. Of course, if we would have started back then years ago, the buffers and so forth would not have been in place because we had the O&I, we had the office condominiums which are what we are intending to put here and zoned for, to put on the property. But during this time, the additional setbacks were increased and what we lost was nearly 1.4 acres of buildable property during that time. We are not asking to pipe more stream. Certainly as our engineer has talked about, typically you can pipe up to 300 feet and that is not our intention. We are just trying to pipe enough of the stream just so we are property can be properly built upon. We are only trying to pipe the 75 feet which is a minimum amount in order just to be able to build on the back portion of our property which makes up a good bit of it. [Discussion with Board referencing the diagram]. The density for our buildings are a lot less than what it was previously and with these buffers it really hurt us there, so we only want to G pipe the referenced portion of the spring. You can see from our site plan, we want to leave a good portion of the 75 feet as a green area. We do not plan on going in there and putting additional parking. If anything whether we cleared it or not, the minimal impact for me to get in there and put a headwall right there is very minimal and then I can leave this entire area [referencing diagram] either natural if that is the best use for that or maybe a picnic area or just leave it completely out for the park there, but the 75 feet is imperative. There are 2,884 square feet of buildable area that we would not be going into and would also be considered green space. We are excited about the park. We think it is going to be a beautiful office park with a lot of green space. We think our tenants will be excited about having something like this and we are just trying to have a minimal impact of 75 feet just so as I said earlier we can develop a large portion of our property which we will be unable to do because of the amount of buffers. Todd Chernik: I am a little confused from looking at this case and the last case regarding the site plans. What you have up there [referencing diagram] shows what appears to be a building on the upper right, but I do not see that on the plans. Ken Morton: It is actually between the two. That is exactly right. It is the climate storage building that goes towards Highway 9 and then you have the parcel of property that we talked about previously. Page 43 of 81 Board of Zoning Appeals Regular Meeting February 19, 2008 Todd Chernik: So is that unit on this parcel? Does it straddle both parcels? Ken Morton: It is in between the two. It is zoned C-1. This zone line is the newly created zoning line and I still have to go in front of City Council to do a site modification for our buildings that we are doing here in the office. Does that answer your question? Todd Chernik: No, I think I am still confused. Chair Heidi Sowder: So the site plan that we are looking at has not been approved yet, is that what you are saying? Ken Morton: Right. This site plan with the office buildings has not been approved by Milton City Council. There was a previous site plan for the office condominiums approved by Fulton County a few years ago in 2005. Chair Heidi Sowder: And that constituted how many acres? Ken Morton: It was right at 3 acres, but we moved the zoning line so I am sorry I could not answer the previous question correctly. Todd Chernik: Are there 2 parcels or 3 parcels from the last piece we just heard and this one. Do these parcels meet each other? Ken Morton: There is a parcel on the front that is zoned C-1 and then the parcel next to it is zoned C-1, which is the climate storage, and then you have this parcel which is the O&I property, so there are 3 parcels. Scott Kilgore: I am also confused. Did I hear you say you are going to be going before Council and when are you going before them? Page 44 of 81 C7 C Board of Zoning Appeals Regular Meeting February i9, 2oo8 Ken Morton: In March. I believe it is March 18th. Scott Kilgore: And was there a reason you split the two and then did not bring the concurrent variance as part of that request? I mean you brought this variance before us instead of it accompanying your rezoning request before Council as a concurrent variance. I am just curious why you did not do it all wrap up together with Council. Ken Morton: Because it was not advertised correctly. We were instructed by Staff to do it this way. We were scheduled to go in front of City Council tomorrow night originally, but it was not advertised correctly by the newspaper so they pushed it back 30 more days. And, of course, we had to have this in place and the clock was ticking for our permits from the Corps and State to get them in place in March so we could get the pipe in place. Chair Heidi Sowder: I guess I have a question of staff. There was some mention by Mr. Morton a number of times and by his engineers about the permits expiring. Is that a fact? Ken Morton: We can prove that right here, right now. We have the letter from the Corps that gives the expiration date. Chair Heidi Sowder: Are you allowed to request an extension? Ken Morton: You do but it is a $60,000-$70,000 extension and it brings with it a several month delay for any type of extension like that. Chair Heidi Sowder: We would like to see the letter. Mark Ballard: Actually, it would not be an extension, but you would be starting all over again. The way that I mentioned to you earlier, the nationwide permits are done in 5 -year increments. Page 45 of 81 Board of Zoning Appeals Regular Meeting February 19, 2oo8 0 Chair Heidi Sowder: Do you have a letter from them stating you are going to lose this in March? Todd Chernik: Does the project have to be completed by March 18th? Mark Ballard: The regular impact the Corps regulates needs to be executed by then. That would be the stream impacts need to be executed by that time. Todd Chernik: Even if you were to start today, you have crunch time here. Chair Heidi Sowder: What exactly would you have to have done by March to satisfy that? Ken Morton: Just get the two pipes in place and that is it. We do not have to do any clearing or grading; just get the two pipes in place by March 18th to satisfy what the Corps's permit is for. It is just a 2 -week construction process once we have the permit. We can get the headwall in there quickly. Gary Willis: Could you read us what it says regarding this? Mark Ballard: June 29, 2005, Army Corps of Engineers Permit Verification The Verification will be valid for a period of two years from the date of this letter, or until the Nationwide Permit is modified, reissued, or revoked, whichever occurs first. All of the Nationwide Permits are scheduled to expire on March 18, 2007. ... If you commence or are under contract to commence this activity before the date the Nationwide Permit is modified or revoked, you will have twelve months from the date of the modification or revocation to complete the activity under the present terms and conditions of this Nationwide Permit. Mark Ballard: So what that means is that while it expired on March 18th of last year, we were under contract to commence these activities, the Corps contract says you hired an engineered and a consultant to do this and you have 12 months from that expiration date, so March 18th of 2007 was the date it was published in the federal register as far as how it came to be there as the magic date. Page 46 of 81 Board of Zoning Appeals Regular Meeting February 19, 2008 Gary Willis: Can I have a copy of that? Mark Ballard: Sure I am one right here. Heidi Sowder: I have another question for Mr. Morton. Why did you wait so long if you knew since March 18th of last year you only had 12 months, why did you wait until the last minute? Ken Morton: That is a very good question. We were waiting on a sewer letter and we started the process last fall. Fulton County really jerked me around as far as giving us that letter so that we knew we could go forward with this project. We were not going to spend tens to thousands of dollars on engineers and doing all the things that we were doing civilly and have site plans and all of those things until we knew that we had our sewer in place. It would be foolish as the owner of this property to go forward until we had that. Once we had that, which was given to us in September or October of last year, then the wheels got in motion, so that is the reason. I would have liked to have started construction two years ago, but I could not do anything without Fulton County giving me that letter. Heidi Sowder: I guess I am just curious, but when you came forward for rezoning of the commercial parcel, why you did not bring forward the office parcel if you already had your letter for sewer. Ken Morton: We did not have the site plan and were still working with roof agents and site planners trying to come up with a site plan and we just recently had a site plan for doing the office. We had to change things and move things around and make sure that because we moved the rezoning line, the C-1 line into the O&I line and until we had approved in December, we did not for sure if we were going to get that approval, which we did get December 13th. Once we got that approval then we could get the wheels started with the planning of the office development which started happening in December. Does that answer your question? Heidi Sowder: I guess I am just confused because I have a copy that Staff provided of the site plan when it was rezoned in 2005, so you had a site plan. Ken Morton: But we did not. That was not a site plan that was accurate because the O&I line was moved, so we could not use that site plan. Page 47 of 81 o", Board of Zoning Appeals Regular Meeting February 19, 2008 Heidi Sowder: And you could engineer it around and do it all at once? Ken Morton: Not knowing for sure, I was not going to go and spend a bunch of money not knowing whether City Council was going to approve my climate storage in that line there. Once that was approved, then we could do that. Walt Rekuc: What about the stream buffers. Ken Morton: That plan that you are looking at there is for 25 foot buffers. That was done two years ago; everything was thrown out of the window when the 75 foot buffers came into play. Walt Rekuc: Okay, are you ready for some heavy punching? First of all, the 300 foot piping, are you getting a variance from the Corps to do mitigation? What is going on with the piping of that for that approval? Ken Morton: We are not piping anymore than the 75 feet. We are leaving the rest of the stream alone. Walt Rekuc: Okay. Secondly, it shows to me it appears there is a wall that is going perpendicular to the existing stream. Am I interpreting that plan correctly? I see a line on my plan [referencing diagram]. Perhaps this is a Brad question. Ken Morton: That is covering up the headwall. It is a big wall. I really do not know why it is so long. Heidi Sowder: How tall and wide is it? Brad Riffel: It is basically a wall that is about 12 feet from the actual U.S. Springhead so that we can construct the wall so we are not doing anything disturbing to the springhead. Obviously, that is the U.S. Waters Springhead and we can only have limited disturbance. If we move 12 feet back from that so we constructed this wall. The wall basically bridges the draw if you will. The draw being a "V" shape ' and the wall expands across that draw to a certain elevation and at the highest point I believe it may Page 48 of 81 Board of Zoning Appeals Regular Meeting February 19, 2008 be 7 or 8 feet and then, of course, it tapers to zero when it gets to the end. At the bottom of that wall will be the pipe that we then extend upstream to the state designated springhead at which point we would then stop it and collect the water and go to that point shown. Walt Rekuc: So we have a wall perpendicular to the creek and that wall is intercepting both the state stream buffer as well as the new city undisturbed buffer, is that correct? Brad Riffel: That is correct. Basically what is being created there by virtue of piping this portion is as soon as you pipe that portion of the stream you then can create a perpendicular disturbed area in nature as opposed to the continuous radial point around that springhead so again, by introducing that pipe, you have then removed that radial portion and it now becomes a perpendicular portion. Walt Rekuc: I also see another wall that looks like it is outside of the 50 foot city buffer, but it is inside of the 75 foot impervious buffer. [referencing from the diagram]. Brad Riffel: That is correct. When we did that originally we had not done a grading plan so we did not know the extent of the wall, but we have since done a grading plan and that wall is greatly reduced. Basically, the parking lot portion that is shown between the end of the buildings and Webb Road, which is a more current picture. That wall is basically to hold up the parking area. Walt Rekuc: Is the cross -hatched area shown for recompense? Brad Riffel: That is correct. It is a compensatory kind of limit to the area that we will be as an impervious area. Walt Rekuc: But there is a part of the parking lot that will go into the impervious area, is that still going to occur? Brad Riffel: A very little bit. We were just trying to get enough parking around that one particular office building, but yes, just a small amount that will penetrate that 75 foot impervious area. Walt Rekuc: What about the other wall shown? Page 49 of 81 Board of Zoning Appeals Regular Meeting February 19, 2oo8 Brad Riffel: Again, since we have done the grading plan, we now have no walls that are surrounding the buildings, which is what that was showing, so you might have an older site plan, but we now have no walls that are back behind the building between property line. Scott Kilgore: Do I understand then that this is not the final site plan that we have before us? Brad Riffel: It is the latest one that we have submitted, but since that submittal we have refined it by virtue of doing the grading plan and knowing more about how it is working. Scott Kilgore: I thought there was a point where a site plan was permitted and approved and finalized, is that not true? I am just concerned that we are being asked to rule on something and we are not looking at the final plan here. Staff Mike Tuller: Angela has stepped away, but I will ask the applicant if they submitted the one that does not show the retaining walls. Walt Rekuc: Let me mention something. Everything I mentioned about these walls, they are all in areas that are impervious setbacks so there is nothing against those walls going into that location. Scott Kilgore: So the wall is allowed in the impervious area? Staff Jimmy Sanders: It depends on your point of view. It does constitute some impervious surface. The walls are going to be made out of some type of impervious so it would be somewhat impervious. That could be part of this variance request to disturb in the 75 foot setback. As far as the site plan, we have seen the site plan. Typically, until the site plans are approved, we usually make comments, the engineer usually further refines it and we really do not get a final version of the site plan until we approve it. As long as it is somewhat consistent with what we have started with and what gets approved by the Boards, then generally that does not constitute some insurmountable issue. We have seen a site plan and it probably shows the walls on there, but if they bring in a site plan that reduces the walls, that is generally not an issue. Page 50 of 81 Board of Zoning Appeals Regular Meeting February i9, 2oo8 Walt Rekuc: I have a question for staff. This perpendicular wall that could be placed in this creek here, can trees and plants be planted in this area for re -vegetation? Staff Mark Law: We probably would not want to over plant it, but they can do some. Walt Rekuc: On the question on your state permit and Corps permit, do you have to do any recompense for doing any of this work for mitigation? Brad Riffel: I do not believe so. Mark Ballard: We are below the 100 foot mitigation threshold. Todd Chernik I have two questions and one is regarding the headwall, is there further permitting requirements with the city for this wall? Brad Riffel: We will have to go through a full LDP process, so yes, there will be a separate wall permit. All site walls will go through a separate wall permitting process. Todd Chernik: And from Staff s standpoint, what is the typical duration of that process? We are operating under the pretense that they are under the clock here for the next 30 days so if we had this permitting in there what is that typical cycle? Staff Jimmy Sanders: This is on rather a fast track. In other words we will probably issue a land disturbance permit only if approvals are granted and given that, once they install the pipe, the wall can be installed later. They have a variance to get into this area. The pipe is the issue so once the pipe is there they can build the wall at any time after that. Page 51 of 81 Board of Zoning Appeals Regular Meeting February 19, 2008 Todd Chernik: Okay, so what I am hearing from that is the permitting process should not stand in the way of these gentlemen meeting the Corps deadline of March 18th. Staff Jimmy Sanders: No, the wall should not impede that process. Todd Chernik: My second question is regarding the fact that this is not a final plan which will be reviewed by Council next month. It appears from the drawings that we have up here that some of these buildings are within setbacks and therefore Council may deny or request that those buildings move yet again, which could impact how much piping you install. Instead of 75 feet, you may go to 100 feet for example if they want to move these buildings forward or to the side. Ken Morton: I really will not have a choice. I am stuck at the length that I have gotten permitted from State and the EPD. I cannot increase the pipe length. I would not be able to do that. Todd Chernik: So what I am describing though is that it feels a bit like we are putting the cart before the horse in that we are trying to help you in understanding your circumstances, yet your circumstances could change yet again in front of Council based on their determination of the final plan and the variances you are seeking. Ken Morton: It would be a reduction of square footage or of the parking area if we had to go to lower parking to do that. What I am going for is typically C-1 to C-1 has a 10 foot landscape strip and I have O&I and C- 1 and I am asking for that 20 foot to be lowered to 10 foot because of the hardships of the narrowness of the property and the stream buffers and so on and so forth. So that is what I will go before Council on in March, but it should not change the actual placement of the pipe. If we can get this pipe in place, we can still make the project viable in going forward. Todd Chernik: Even if Council does not grant you what you are asking for. You are saying that you would then have to just reduce the building sizes and/or the parking spaces. I would be forced to which would be detrimental. Especially that one part of the building - most of my building there [referencing diagram]. Obviously we are outside of it there, but there we had to get into the 20 foot landscape strip there. The hardship over here [referencing the diagram] would be that you cannot eliminate a row of parking in front of your building. It is going to be hard to sell a building without any parking in front of it, so it could be certainly a challenge to go back to the drawing board and figure out how to move it around with those buffers, but to be able to pipe this 70 feet if critical to even think about for this project to be viable to even go forward, so I have to have the piping of the stream to even Page 52 of 81 Board of Zoning Appeals Regular Meeting February 19, 2008 consider somewhat of this layout here. Now obviously this big building here [referencing the diagram] would not change and a small portion of that building would change. [referencing from the diagram]. It would be this building right here [referencing from diagram] that we would have to figure out how we would have to adjust it. Todd Chernik: So my concern to address to the rest of the board is if we were to make a determination today allowing this piping that at least establishes a basis then that Council has to address in a month regarding the site plan and that creates a concern as Scott addressed earlier, had this been addressed as a concurrent variance we could have looked at the project in its entirety and Council could have done that in its entirety. Heidi Sowder: And I guess I would also then ask legal to address that issue here where we are being presented with a variance but the site plan is not the approved site plan. City Attorney Ken Jarrard: I think the board is all over this issue. I have heard it expressed a few different times here that it would have made sense at least from your perspective for this to have been done concurrently for the reasons that you all have articulated, in that it would have allowed to a holistic approach to this as opposed to a piecemeal approach. Having said that, we are where we are and it appears to be a method under the code that is allowed that you could have either brought it as a concurrent variance or you could bring it as a stand-alone. Now whether that makes sense is a topic for another day perhaps, but we are where we are. To me, the issue that stands out is that whatever the board wants to do this evening, you might want to -- let us just say for instance and no one has signaled this -- but let us just say that you want to approve tonight. Then you might, in fact, want to add for instance, some language that says that the board's approval of this should not be construed as the board's endorsement of this site plan because one thing you do not want to do is to be seen to be taking the action that is within your purview, is to be seen to be going over and blanketing into the Council's purview, so you might want to add that as a limitation that even though you are, in fact, granting, if you chose to grant the variance, you are not trying to signal your support for the site plan, because that is not, in fact, what is before you tonight and that is the Council's determination. Walt Rekuc: Let me ask one more question and maybe Ken you may have the answer or the applicant. To me, the critical point in all of this is to pipe the 75 feet. Ken Morton: Correct. Walt Rekuc: With or without these variances, that the critical thing, bar none, and it does not matter about the site plan, is just to pipe this creek, but putting that 75 feet in a pipe, that resolves a number of issues and Page 53 of 81 Board of Zoning Appeals Regular Meeting February 19, 2oo8 that changes your stream buffer point of measurement, that changes your state buffer, city buffer, impervious buffer, it changes all of those things. Ken Morton: It does, exactly and that is the critical point because I have been asked about the concurrent variances and we have done everything that Staff had instructed us on when, where and how to do these. I have not tried to vary and try to do it in a hodge-podge type of way. It has been direct instruction by Staff to do it this way and they are wonderful folks who have worked extremely hard in doing this and I know how hard they are working, but this is the protocol that we were given to do this. Walt Rekuc: And the advertising was not your fault. Ken Morton: No, the advertisement - the paper did not -- Walt Rekuc: I know, it has happened to me in my own business, but piping the creek to me seems to be the most critical issue tonight that this somehow has to be resolved and that has no time limit of waiting - that has to be done. These other things as far as the buildings getting into the impervious setback and some of the other setbacks, those are issues, but the most critical thing is getting the buffer resolved and then we can determine what the Council does later. I am just trying to talk out my thoughts and brainstorm a little bit, unless someone smarter than me can come up with something, I am trying to see what else we could do to help expedite getting the pipe in. Again, I do not personally have a problem with putting a retaining wall necessarily in these buffers, because I know that basically they are going to be supporting areas that are going to have growth and green in it, not necessarily buildings, except for that one area that is going to have a parking lot, but that is the only area. In general, I do not have a problem with approving it, but I just want to make sure that some of the other folks that are concerned about zoning, that what you are really doing is giving them an envelope in which they could create a site plan around and work with. For that matter possibly give some direction to Council at least what we are allowing to some degree to allow them to work with it and that is all. It is not saying that they can approve the zoning and it is not saying that they can approve the buffers or change setbacks or anything else, because that is up to the Mayor and Council, but it does state what area they can or cannot work in structuring the eventual approval or denial of this rezoning. Scott Kilgore: I would like to add to Walt's statement. If we were to approve just the piping and make the other approvals contingent on Mayor and Council's review, that way we would at least be moving as much of this decision to where I believe it should be, which is with Mayor and Council, and the only reason we cannot move it all to Mayor and Council is because of the deadline that they are faced with and that may be an option to consider. I am brainstorming as well. Page 54 of 81 Board of Zoning Appeals Regular Meeting February i9, 2008 Chair Heidi Sowder: I would ask legal. The matter before us is for the encroachment into the 75 feet impervious setback and the 50 foot undisturbed stream buffer. Are we allowed to not to even address that or defer that to Council, but allow encroachment into just to place the pipe. What can we do to modify it so we are not basically approving a site plan which is not our purview. Staff Angela Rambeau: Before he answers, I would like to add one thing. The request to encroach into the buffer has not been presented to Council and it has not been advertised so it is not part of their request, so at this point Council is not on the path to look at it first of all. Scott Kilgore: It could perhaps be added for another meeting. Staff Angela Rambeau: Yes, but they will not be looking at it in March. Sandy Jones: But they can still meet their Corps deadline then of being able to get the pipe installed. Staff Angela Rambeau: Only if you approve the variance. You could approve just to put the pipes in and I think that is really what they are asking for. Heidi Sowder: And I think Mr. Jarrard also said we can condition it to say that the approval does not give support of the site plan. Scott Kilgore: We could even condition it on Council's approval. City Attorney Ken Jarrard: Let me address that. There was a part of be that was going there as well until I heard the deadline. Scott Kilgore: I am not talking about the 75 feet. I am talking about everything else. We approve the 75 feet tonight, but we approve everything else conditional on Mayor and Council's approval of the zoning case and make that a condition of the other approval, so we would be approving them, but the condition would be that we are yielding to Mayor and Council and we could even add the statement Page 55 of 81 Board of Zoning Appeals Regular Meeting February 19, 2008 that you have suggested which is to specifically say we are not endorsing this, but we are only passing it along to Mayor and Council to have that portion of the request approved where we think it should be. PAI Tra *'n TM The wall that is being built perpendicular that would have the pipe going through it, it maybe necessary to build that wall at the same time the pipe is installed. I am not sure, but it may. Brad Riffel: We could design it to where we could just do the pipe itself. We could certainly do that without the wall. I also wanted to add that we did get our state or the stormwater conservation erosion approval today and we are going before the district board tomorrow. Sandy Jones: I have a clarification question. The land disturbance permit that you said was going to be fast tracked to allow them to meet their deadline, is that land disturbance permit for the whole site or a limited capacity just to install the pipe? Staff Jimmy Sanders: It would be limited to a minimum just to do what is requested just at this point. The rest of the project including any site revisions that the Mayor and Council might make would have to wait under later. That would be part of the LDP. What we would issue then would like a grading only permit to just do minimum land disturbance to install the pipe. At least that is all we have been requested to issue at this point and that is really all we would have the authority to issue at this point. We do not actually have an approved site plan yet so we could not approve the LDP to install those facilities until we had that. Heidi Sowder: Okay, does anybody else have any questions for Mr. Morton or for Staff? There were none. Okay, then I would like to make a motion to close the public hearing then. Motion and Second: Heidi Sowder made a motion to close to close the public hearing. Seconded by Sandy Jones. Vote: 7-0. Motion carried unanimously. Heidi Sowder: I would like to open up the floor to a motion. Page 56 of 81 Board of Zoning Appeals Regular Meeting February 19, 2oo8 Todd Chernik: This is going to be rather lengthy, so bear with me. Motion and Second: Todd Chernik made a motion on Variance V08-005. I move to approve the installation of the pipe and approve the setback encroachments identified as encroachment of the 75 foot impervious setback and encroachment into the 50 foot undisturbed stream buffer conditioned on Mayor and Council approval of the site plan. I would also request that the installation of this pipe minimize the disturbance to the site and specimen trees per the city arborist's direction and I also state the conditioned approval on the setbacks should not be construed as support of this site plan and should be the Mayor and Council's determination. Seconded by Scott Kilgore. Chair Heidi Sowder: Any discussion? Staff Angela Rambeau: I would just like to clarify your motion Todd. Is it like two parts to approve the installation of the pipe #1 and then #2 to approve the other encroachment per approval of Mayor and Council? Todd Chernik: Conditioned on, yes. Staff Angela Rambeau: Okay, because I just wanted to make sure we on clear that if we condition the installation of the pipe on the Council, that is going to mess them up. Todd Chernik: We are approving the installation of the pipe and the second part we are also approving the 75 foot encroachment and the 50 foot encroachment conditioned on Mayor and Council's approval of the site plan and then the other limitations of this site disturbance and the fact that our improvement of the encroachments should not be signaled support to the site plan. Chair Heidi Sowder: I guess my question would be if we are approving the encroachments, then we basically -- if we approve we either have to approve the encroachments or deny the encroachments. If we make the approval of the encroachments contingent upon Council's approval of the site plan, then we are still putting them off, because we have to allow encroachment to place the pipe, but then if you are making the encroachment contingent upon Council approval, then you really have not approved the placement of the pipe because you are saying that they can't -- I think I know what he is getting at and I am sorry if I am speaking out of order, but it is my understanding from the conversations, that they really only need to encroach into the 50 feet undisturbed stream buffer to place the pipe. Is this correct? Page 57 of 81 Board of Zoning Appeals Regular Meeting February i9, 2008 Walt Rekuc: And the wall. Chair Heidi Sowder: Do they need to place the wall at this time? Staff Angela Rambeau: To get to the 50 foot buffer you have to go through the 75 foot impervious. Chair Heidi Sowder: Can you walk through there? I mean how much heavy equipment goes into placing a pipe? Staff Angela Rambeau: I cannot tell you that, but any disturbance technically -- Chair Heidi Sowder: Could stormwater comment on that? Sorry Mr. Sanders. Jimmy Sanders: Well the only equipment that needs to get in there would be a backhoe to install the pipe and then they would have to place some fill material on top of the pipes, so it would have to be compacted, so there would be some equipment in there to actually do that. They would not have to install the wall at this point. They could install that with the development because they will already have a variance to get it in if you approve the variance to get into the buffer area. Once we give them a variance they can do that any point. It is the pipe that is the issue. Walt Rekuc: Are we going to have a problem with the pipe being 75 feet and the rip rap being an extra 7 times the length of the pipe, or are we going to get into any of those types of issues or how is that being addressed? Does it need to be 60 feet with the other 15 feet of rip rap? Jimmy Sanders: I think it would be assumed that the encroachment would be 75 feet of pipe and it is the presumption that we are going to install an amount of rip rap suitable that meets the manual's intent, so there is going to be 3 times the diameter of the pipe and rip rap out there at least. Walt Rekuc: I just want to make sure that if we do not approve something and it is said we approved 75 foot of pipe and not rip rap. Page 58 of 81 Board of Zoning Appeals Regular Meeting February i9, 2oo8 Jimmy Sanders: No, it is going to need some rip rap. We probably will not need a lot because there is not a lot of water that is going to come out of that and it is not going to increase with the rain, but stay pretty constant. Sandy Jones: Won't that be addressed when you issue a final land disturbance permit and you have a final hydrology study that shows exactly what the final grade will be and how everything is going to run. That will be addressed at that point when you design the rip rap portion. Jimmy Sanders: We will have all of that information at the LDP stage. Before we issue the LDP we will have full hydrology and the site plan will be fully developed and we will know all of that information at that point. It really will not change a whole lot, just maybe some minor changes. Brad Riffel: That is why we pulled 12 feet back from the U.S. waters, so the rip rap -- Walt Rekuc: I was hoping that is what was happening that is why thee 75 feet disturbance to allow the piping and rip raping of the springhead and it is probably better to say that. Scott Kilgore: Should we have a motion to amend? Walt Rekuc: I guess we need a motion to amend the first statement. Chair Heidi Sowder: Well I would still like to have discussion first. Walt Rekuc: The other issue is on the motion you made of tying it to a site plan I think would be important. And saying that based on site plan submitted by AEC dated such and such date and the name of the project would help clarify what you are approving in those buffer encroachments. Page 59 of 81 Board of Zoning Appeals Regular Meeting February 19, 2008 Chair Heidi Sowder: But that is now our purview to approve site plans just as a point of order. Walt Rekuc: But just trying to tell Council what we are actually allowing to be disturbed and that is the whole reason I mentioned this. Chair Heidi Sowder: Okay, and I guess it is a conceptual site plan. Walt Rekuc: Correct and it could be less, but it cannot be more. What I am trying to do is quantify to some degree. Chair Heidi Sowder: Another question of legal is can we condition it so that we are approving the encroachments only for the placement of the pipe? City Attorney Ken Jarrard: That is what I thought was inferred by the motion, is that it was in fact an encroachment for the placement of the pipe and then the secondary part of the motion was a conditional encroachment upon approval of the site plan by Council. Chair Heidi Sowder: Is that what you meant? Todd Chernik: That's right. City Attorney Ken Jarrard: When question I did have though madam chairman if I could just ask, and that is if we do the conditional approval, does that mean that we are conditionally approving these additional features as they are presented here tonight. For instance, just to give you an example, let us say that the Council really reworks this thing and let us say that reconfigures in totality where these retaining walls go. I do not know if that will really happen, but let us assume it could. Do they have permission based upon this motion then to encroach for that purpose? Page 60 of 81 Board of Zoning Appeals Regular Meeting February i9, 2oo8 Scott Kilgore: All they have is permission to encroach. That is all that has been requested. City Attorney Ken Jarrard: Not if they change it. What they have asked for and what you are about to approve are different and I think it is limited and it may very well the board's intent to so limit it, but I just wanted to make you aware that may pop up later if the placement of these walls is modified. Your staff may say, well the Board of Appeals only approved encroachment pursuant to these plans. I wanted to raise this point to you so if you want correct it in real time. Walt Rekuc: I was hoping to just help the Council but if they want to approve it greater, or whatever, it is up to them. Chair Heidi Sowder: I think the original approve it for encroachment to place the pipe, but then make the encroachment contingent upon Council's approval of the site plan. Sandy Jones: So if we say something to the effect that encroachment into the 75 foot impervious setback would only be to the extent required to get access for the installation of the pipe and make it clear we are not here to sign off on a site plan so we do have to limit the access we give. I think we are all in agreement that there is an issue with the pipe and they are under a time deadline, so we are trying to accommodate them until Council has had the privy of reviewing the site plan and having the applicant come before them, but we really cannot make any motion about the rest. City Attorney Ken Jarrard: Can I offer one more statement and then I promise I will be quiet. If you were interested in flexibility, the Council might even appreciate if the conditional variance was as flexible as possible because what might come up at the Council meeting is a quagmire of now we have to go back to the Board of Zoning Appeals and work on this variance again. You might want to give them maximum flexibility on these retention walls and that would Council room to navigate when they get the site plan. Does that make sense as far as being able to have maximum flexibility? If they are going to modify it that will allow them a lot more discretion than if you have limited them to these walls that are depicted right here [referencing the diagram] then you would have boxed the Council in. Scott Kilgore: I do not think the motion that was stated does that, does it? I think the motion is pretty open-ended right now. Page 61 of 81 Board of Zoning Appeals Regular Meeting February 19, 2oo8 City Attorney Ken Jarrard: Okay. Chair Heidi Sowder: Todd, would you mind stating the motion again. I wrote as fast as I good, but -- Todd Chernik: Can I restate? Can we withdraw the second motion so that I can restate. City Attorney Ken Jarrard: If the second would withdraw the second so 1 could restate and add to it. Scott Kilgore: I withdraw my second. Todd Chernik: In reference to V08-005, this board recommends approval of the encroachment to construct and install the installation of 75 foot of pipe and associated rip rap as referenced in the stream buffer plan dated 8/6/07 and approve Part 1 of the variance to encroach into the 75 foot impervious setback and Part 2 to encroach into the 50 foot undisturbed stream buffer, conditioned on Mayor and Council approval of the site plan. Approval is also conditioned on the applicant minimizing the disturbance to the site and specimen trees per the arborist's direction and it should also be noted that our condition approvals should not be construed as support of the site plan by Mayor and Council. Seconded by Scott Kilgore. Chair Heidi Sowder: Okay, open for discussion Sandy Jones: Do we want to limit it to say specific length and height, or do we want to address specifically a disturbance area? Scott Kilgore: The applicant requested 75 feet of pipe. Maybe we need to clarify with the applicant. Todd Chernik: And I referenced the site plan to give some guidance to that as well. Page 62 of 81 Board of Zoning Appeals Regular Meeting February i9, 2oo8 Sandy Jones: The pipe is not depicted on this site plan. Chair Heidi Sowder: I think the applicant is limited to 75 feet with their permit, is that correct? Ken Morton: That's it. Sandy Jones: Plus in addition to that pipe you will next an extra number of feet for -- Brad Riffel: In essence there are 75 linear feet between the designated state springhead and the U.S. springhead, so between those two points is the 75 feet. That is the 75 feet in which we wish to place the pipe. 12-15 feet of that of which will be rip rap at the bottom end and the walls and however we collect it coming in and however we discharge it going out. Sandy Jones: That basically gives you your limits of work the 75 feet for whatever you need to do. Brad Riffel: That is correct. Todd Chernik: And I also noted in this they should limit the site disturbance based on the City Arborist's direction to try to give some boundaries to the encroachment for the pipe installation. Chair Heidi Sowder: Okay, so let me get this straight. We recommend approval of the variance to allow encroachment to erect and install 75 feet of pipe and rip rap as designated on the site plan date 8/6/2007? Todd Chernik: That is correct. A Page 63 of 81 Board of Zoning Appeals Regular Meeting February 19, 2008 Chair Heidi Sowder: Encroachment in Part I and Part 2 is conditioned upon Council's approval of the site plan. The Board's approval of the variance shall not be construed as support of the site plan. [Lengthy Board Discussion Amongst Themselves About What They Were Approving]. Chair Heidi Sowder: I am getting confused about the wording of this. It needs to be worded that we grant approval to the encroachments in Part 1 and Part 2 limited to the installation of 75 foot of pipe. The encroachment in Part 1 and Part 2 is conditioned upon Council's approval of the site plan? I am really thinking that we as a board only want to approve this encroachment only for the placement of the pipe. We do not want to approve this encroachment for building or to have it construed that we are okay for the site plan, because it is not really a conceptual site plan, as that is not our purview. Angela Rambeau: Okay, so you have a two part motion. You are approving the encroachment in the50 foot buffer and the 75 foot impervious setback specifically to put the pipe in - that is Part 1 and then you are approving the encroachment in the 50 foot buffer and the 75 impervious setback contingent upon Council approving this site plan. You are approving the encroachment in both cases, but the second one is specifically limited to the placement of the pipe. The first one is limited specifically for the placement of the pipe and the second one is everything else per the approval of review of Council. I think that is what he was getting at. So you just want to state that you are approving the encroachment in both cases because that is the request. Either one it is an encroachment. Scott Kilgore: So it is an approval with conditions - it makes it similar to a denial in that respect. We are really denying everything but the pipe in terms of us passing the approval on to another body. If it is contingent upon them, then we are okay. City Attorney Ken Jarrard: You are almost converting it to a concurrent variance the. Scott Kilgore: That is what we are intending to do. Chair Heidi Sowder: Do we need to withdraw again and restate the motion again? Page 64 of 81 Board of Zoning Appeals Regular Meeting February 19, 2008 Scott Kilgore: I think we have stated it properly. Chair Heidi Sowder: Okay, and it has been seconded. I will go ahead and restate it for the record, or Angela you restate it for the record since you did such a wonderful job. Angela Rambeau: Okay, for Part 1, we have a motion to approve an encroachment into the 50 foot stream bank buffer and the 75 foot impervious setback to place the 75 feet of pipe and required rip rap for the plans dated 8/6/07 and Part 2 for approval to encroach into the 50 foot stream buffer and 75 foot impervious setback, conditioned upon the approval of the City Council along with the condition of minimizing disturbance to the site during installation, for the city arborist, and with the condition that this does not construe approval of this site plan by the board of zoning appeals. Chair Heidi Sowder: Okay, I think we are ready to take a vote. Vote: 7-0. Motion unanimously carried. Thank you very much. City Attorney Ken Jarrard: It is after bath time for my kids. Chair Heidi Sowder: Thanks everybody we appreciate it. Chair Heidi Sowder: Okay, the next item is V08-002. Angela would go ahead and read the petition. Staff Angela Rambeau: Read Petition V08-002. Applicant is proposing one 10 foot monument sign and 4 6 foot tall columns not located at entrances. Applicant is proposing the monument sign of 50.41 sq. ft. and that each of the columns will have 8 sq. ft. Staff has requested that the signs comply with the site triangle requirement. Staff recommends that if the board does approve the application, that the applicant be allowed a 6 ft. tall, 32 sq. ft. sign in the median of the Birmingham Highway entrance. Page 65 of 81 Board of Zoning Appeals Regular Meeting February 19, 20o8 ® Chair Heidi Sowder: Would the applicant come forward? Steven Henry, 3334 Dunn Street SE, Smyrna, GA: I am with John Wieland Homes & Neighborhoods. We are requesting two variances. Do you want to hear them together or separately? Chair Heidi Sowder: Iq Separately, and I actually have a 3 -part variance. Angela Rambeau: He broke it up. Applicant Steven Henry: There are two sub -parcels. Regarding the Birmingham Highway entrance just north of the intersection of Birmingham and Crabapple, we are requesting an increase of the height and the size of the signage to increase the safety for traffic and pedestrians and also to provide a greater means of communication for the subdivision. The sign will be roughly 60 feet behind the southbound lane of Birmingham Highway and also 3 feet below the grade of Birmingham Highway. Increasing the signage will help us with the visibility of the neighborhood as well as the safety of the traffic on Birmingham Highway. As this is our only storefront for the neighborhood and the fact that we have 3 different product types in the neighborhood, this is really our chance to make our presence known to our customer, which is really important to the viability of this project. The height of this sign being 10 feet to the top of the post on the side of the sign, that is 10 feet to the top of the sign and 7.6, so we are actually lower to the top of the sign then the total 10 feet. The 32 sq. ft. is on each side of the sign, as it is a double faced sign and then we have open space that surrounds the entire sign so I believe this also lessens the impact of the overall monument that we have at the front. For the sub -parcels, which there are two, due to the interconnectivity of the neighborhood with the adjacent parcels, we really want to create another presence and identification for our place as you enter through the other neighborhood and you can spend 15 minutes on the site to know that the interconnectivity is already working and it is successful, so we are going to have a lot of traffic coming through our neighborhood and we want to make sure that again people know where they are. As far as the height of the signage, the height is actually lower than the 6 feet. The total height for the column is 6 feet and the signage is right around 3 feet high and is about a square foot and a half, so it is a very small plaque that is identifying that entrance, so it is a fairly low impact. We are requesting that you approve the full square footage based on these hardships. Page 66 of 81 V Board of Zoning Appeals Regular Meeting February 19, 2oo8 Walt Rekuc: On your interior signs within the project, what distance are those signs being proposed and columns being proposed in location to the curb? Applicant Steven Henry: Outside of the right-of-way, so our right-of-way is about 7-8 feet away from curb. It is outside of the right-of-way. Walt Rekuc: Of course the problem you are going to have is utilities are 8 ft. behind that curb, so you are placing your columns in the center line and right on top of your power line and I know they will probably go in before you put your stuff in. David Flahardy, 1950 Sullivan Road, Atlanta, GA: It is going to be just on the other side, I would say 7-8 feet approximately. It is after we kind of start setting the infrastructure of the sidewalks and where the inner -parcel connectivity is going to be. We will be a couple of feet so that the landscape as Steven has drawn for our inner -parcels. There will be landscaping and all the kind of stuff, so it is an approximation of about 8 feet. Angela Rambeau: The sign ordinance does require that any signs be a minimum of 10 feet back from the right-of-way. Walt Rekuc: So you are saying that these signs would be potentially as much as 20 foot back from pavement, so that is not want you want - you are asking for a variance for that as well. Applicant Steven Henry: My understanding is 10 foot from the total right-of-way. Walt Rekuc: Are these public streets or private streets? David Flahardy: Public. Honestly 10-20 feet is going to be acceptable to us to have that threshold there. As Steven had mentioned, we are trying to achieve two things with the columns and the landscaping and the lighting that we are proposing here. One, sense of 11:04 for our future customers and two, a landmark identification to let people know where they are. Page 67 of 81 Board of Zoning Appeals Regular Meeting February 19, 20o8 © Walt Rekuc: I understand. The sign is going on which side? David Flahardy: Both sides, the columns and the signs. [NJ Walt Rekuc: But the sign itself as you are going into the subdivision, are you putting it as you are going into it on the right hand side and as you are exiting -- I see a total of 4 columns -- David Flahardy: Signs on both sides. It is on both sides of the columns so it is a four sign total, two per column. Steven Henry: Let me clarify that. It is just as you enter into our parcel because we do not want to confuse them as they are existing saying that Braeburn's on the other side, so two per entrance on both sides of the road. So it is the same monument copied 4 times. David Flahardy: Are you attempting to keep your center median as the common area so therefore that sign is not in the right-of-way? David Flahardy: Yes, that is the common area. Walt Rekuc: So are they going to have problems with that sign being so close to the right-of-way within that island because they are not going to be 20 foot off the edge of the right-of-way in that island? Staff Angela Rambeau: No, in this case the 10 feet is not going to apply and I do not think there are any setbacks specifically for islands. It does not basically apply in this case. Marcia Parsons: Could you state what the hardship is in asking for this variance? Page 68 of 81 Board of Zoning Appeals Regular Meeting February 19, 20o8 ® Applicant Steve Henry: Iq The hardship is visibility from the street, both topo and distance setbacks from the street. Again the southbound lane on Birmingham Highway, we are 60 feet to the nose of that median and that is roughly the depth of this room, so that is quite a distance, and then we are 3 feet below the elevation of Birmingham Highway. It is just an opportunity to get us a little more visibility out there on Birmingham Highway. Todd Chernik: And can you reconfirm the amount of square footage on the monument entrance sign? Applicant Steve Henry: 32 square feet per sign face and that is double -sided for a total of 64. Todd Chernik: And what we are seeing in this packet is a total of 50.41 unless I am reading it wrong. [Discussion with Board and Staff about calculations] Todd Chernik: Just for clarification, you are requesting for the monument sign to be double faced, 32 sq. ft. of signage on each face, and then the columns within the inner -parcels have a combined square foot of per column? Applicant Steve Henry: That is correct. Per column is going to be one and half square feet, so per sub -parcel entrance we are looking at 5 sq. feet total for all the sub -parcels. Well let me check to confirm, I want to make sure it is 32. So, one and a half that is 6 sq. feet, 3 per entrance. Scott Kilgore: I have a question for staff. Angela, when you talk about a sq. footage of a two-sided sign is the sq. footage added to it. I thought you were talking about the sq. footage of the board and if there is sign of both sides -- Angela Rambeau: It is the board and if it is back to back, then typically if it is 32 sq. feet on one side then it is a 32 sq. ft. sign. It does not count as a 64 ft. sign. Page 69 of 81 Board of Zoning Appeals Regular Meeting February 19, 2oo8 Scott Kilgore: I would just state that I had looked up these ordinances and my understanding that 4.a caps the height at 6 ft. 4.b says you can have a maximum of 2 12 ft. sq. signs or one 16 sq. foot sign, so what they are asking for is they want more signs because this only allows them 2 and not for the inner -parcels but for the one in the front they are asking to go above the 6 feet and exceed the 16 sq. ft. maximum. It is a 2 -sided sign, but it is 16 sq. ft. on both sides. That would meet the sign ordinance which says a 16 sq. feet. sign. They are stating their hardship based upon visibility. Applicant Steve Henry: Visibility from Birmingham Highway and also the topo going into the development. Scott Kilgore: Is there any foliage blocking the visibility because of the sign, because that is another way we can approve, based on foliage. Applicant Steve Henry: The only foliage that would be blocking it is the street trees that we are going to be putting in along Birmingham. Scott Kilgore: Well that would be self-imposed and would not count. Are you saying that the topography of the entrance to this subdivision is extraordinary and exceptional and unique unlike any other entrance to any other subdivision in the area? Applicant Steve Henry: Driving around the Crabapple Crossroads area, most of them are on grade and are pulled real close up to the street. Scott Kilgore: I have seen many subdivisions where it does not go straight in, but goes downhill. Applicant Steve Henry: Right, and some of those developments have built the grade up in those medians, built planter walls and then they measure from that original grad up to the top of the sign and that again gives them a little more visibility and gets them over that 6 foot regulation. I am not saying that there is one just right around the corner, but that is what I have seen in other areas. [Board Discussion about what has been done in area] Page 70 of 81 r� Board of Zoning Appeals Regular Meeting February 19, 2oo8 Scott Kilgore: I am just concerned with the Milton Ordinance. Applicant Steve Henry: I would like to add something. If we need raise the wall up and put the signage on top, we may arrive at the same height anyway and then you have that solid low new wall and then probably another low new wall as we have drawn it and then the sign above that. I think this way you get that low new wall down and then you have the empty space around the sign. I think it would be less impactful that way. Scott Kilgore: It is more impactful against the Milton Sign Ordinance because the Milton Sign Ordinance does not allow you to do what you want to do. Marcia Parsons: Scott, since you have read the Milton Sign Ordinance recently, what was the intent of limiting the height of the signs and the sq. footage. Was it for aesthetics? Scott Kilgore: I think primarily for aesthetics in trying to keep our rural area instead of having large signs being put in. Chair Heidi Sowder: And I think for uniformity around the city. Scott Kilgore: In fact there is a whole preamble to the sign ordinance. Todd Chernik: Can staff comment on the neighboring inner -parcels and what their sign sq. ft. looks like and if it is subject to the Milton Sign Ordinance or are they also going to be granted exceptions? David Flahardy: You know I drove through there today and I do not think that have put in their permanent signage just yet. They still have sales signage up at the front of their property, so I cannot comment directly on what they plan to do in the future. Page 71 of 81 Board of Zoning Appeals Regular Meeting February i9, 2oo8 Todd Chernik: Does staff have any indication? Angela Rambeau: Crabapple Crossroads has a plaque for a sign I believe which is standard. Do one else has applied for a variance at this point. Todd Chernik: To your point, Mr. Chernik, my understanding from studying is that the inner -parcel column signs would actually meet the requirements of the Milton Sign Ordinance as proposed. The only reason they have to ask for a variance is because there are too many signs for their subdivision. The sign itself is definitely in harmony with the ordinance. The only that is not is the front one. Gary Willis: How much extra are they asking for? Scott Kilgore: The columns I think were a couple of sq. feet and they can go up to 12 or actually 16. 12 if you count the two. So they are well within 12 or 16. They are plenty small enough, there are just too many of 4r them, otherwise the columns are perfectly in harmony with the ordinance. Chair Heidi Sowder: Anybody else have questions? Scott Kilgore: I do have one question for staff. The lights that they are proposing on the columns, do those meet the requirements of the ordinance? Do we know? Has it been checked before this is approved I guess is my only concern. Do we need to condition that or not worry about it? Angela Rambeau The building review people will check once they apply for the sign permit. Walt Rekuc: The reason I asked the question about the columns is that you are going to be putting these columns fairly close to a site wall and they are going to make wonderful targets for kids that go by. Applicant Steve Henry: We don't have any kids like that in Milton, do we? Page 72 of 81 Board of Zoning Appeals Regular Meeting February 19, 2oo8 Walt Rekuc: Maybe they come from outside of the area and party in our city. I put columns like that it, I built White Columns, but they were not next to a site wall. David Flahardy: I just wanted to add that the 64 sq. ft. request for the Birmingham it is a Crabapple Crossroads deal. If we were in Milton outside of the Crabapple Crossroads in a mixed use zoning, we would be able to do the 64 sq. feet because you are mixed use. We have commercial, single family and townhomes in there. We wanted the storefront as Steve mentioned to be basically the same size it would be for mixed use. Scott Kilgore: The Crossroads is trying to maintain a consistency and you would not be consistent with that larger sign and I think that is what the ordinance was crafted for. David Flahardy: And that is what my hardship is for in the document. I have to deal with the sixty feet at Crabapple Station and I have a sixty foot gap between the toe and Birmingham and I am losing 3 feet of ground as I go from Birmingham coming down to the toe of this, so before I get the sign I have lost 31/2 feet of visible space. Applicant Steve Henry: If I would ask one question. There is a flower shop right around the corner and they have a stone wall that runs the length of their frontage and their sign is up on top of that. While it meets the 6 ft. height requirement, you have 4 foot of wall. Is there a difference between what we are asking for and what was approved there and installed? Angela Rambeau: Honestly, it is probably just an issue of it being grandfathered in, but just to clarify the height of the sign is measured from grade to the highest part of the sign so it does not stop at the panel, but the top of the structure. Scott Kilgore: The sign ordinance is pretty recent. Chair Heidi Sowder: Are there any more questions? Page 73 of 81 Board of Zoning Appeals Regular Meeting February 19, 2008 Walt Rekuc: If we allow these 4 columns, do we need to specify that they can be placed 10 feet behind the curb or are you going to require to be 20 if we do not say some other dimension? Staff Angela Rambeau: I am going to require them to be 10 feet from the right-of-way and 20 feet from pavement. Scott Kilgore: Do we need to condition that if we approve this? Staff Angela Rambeau: I am not going to issue the permit unless it is 10 feet. If you want something other than the 10 feet - if you want less than 10 feet, you would need to state that. Walt Rekuc: Putting it 20 ft. behind the curb is pushing it into somebody's yard and these houses are going to get so close to the curb it is going to start getting lost in that area. You want that thing up as close as you can. There are also going to be street trees and I believe will be pretty close to back of curb. Are they allowed to put street trees in the right-of-way? City Arborist Mark Law: I had talked to Abbie Jones about that one time and I believe in this particular situation it was. Walt Rekuc: That would be my reason for asking that those columns be moved up. Staff Angela Rambeau: My only concern with that is it was not part of the request and was not advertised. Walt Rekuc: But I think that is how it is shown in this diagram they show the back of curb. [Board discussion with applicant and staff referencing the diagram]. Applicant Steve Henry: The face of the column is on the right-of-way. As Scott identified, we are going for a variance of just having these monuments there because it is not part of the code regulations, so as far as it being within that 10 foot of the right-of-way we are going for a variance for the whole thing so we did not Page 74 of 81 Board of Zoning Appeals Regular Meeting February 19, 2008 ® identify that part of it and for that we apologize, but that is part of what we are going for on this, having those columns up on the right-of-way again to create the streetscape. Scott Kilgore: I do not think that is anything we can approve. No one, it is not part of the variance that was requested, so we grant the other things I do not think, can we? It was not advertised and the public would be upset if they did not get a say about that. Walt Rekuc: In my view, we do have the latitude to grant things beyond what the code allows and in fact with this case if we are allowing it, then we are saying that this is where that sign could be. Angela Rambeau: I guess you could make it site specific per these plans. [Joint Board Discussion about how to tailor a motion] Scott Kilgore: They are talking about beautifying that area and make those entrances more like external entrances. To be that is what makes those in harmony with the sign ordinance. That is how we can justify approving that. Therefore, we have to condition the design to say what is being presented to us. If they just go out and stick the columns up and do not landscape or stick a piece of cardboard on it, it is not what we intended. What we intended was the beautification that they are proposing that make this to be in harmony with the intent of the ordinance. That is why I think we need to reference a plan, but also need to leave some flexibility for staff to impose whatever rules need to be imposed. I do not how we would achieve that, but that is what I was hoping to do. [Joint Discussion with Board and Applicant referencing site plan]. Scott Kilgore: If they need an additional setback variance, we cannot grant that tonight. We can only grant what is before us tonight. Chair Heidi Sowder: Okay, are there any other questions for staff or the applicant? Okay then I will make a motion to close public hearing. Motion and Second: Heidi Sowder made a motion to close public comment. Marcia Parsons seconded the motion. Vote: 7-0. Motion unanimously carried. Page 75 of 81 Board of Zoning Appeals Regular Meeting February i9, 2008 Chair Heidi Sowder: Okay, I will open the floor for a motion at this time. Scott Kilgore: Based on the information I have heard here tonight and I did do a lot of pre -work on this and I have put together a motion that I think is still applicable based on what I have heard here tonight. Motion and Second: Scott Kilgore made a motion to approve V08-002 with conditions based upon the harmony and general purpose and intent of the purpose and upon hardship imposed by extraordinary and exceptional topography. The conditions are attached to the motion are as follows: (1) Monument sign at the main entrance shall comply with the Milton Sign Ordinance with respect to Article 26.2.a.4.b which requires a maximum of 16 square feet; (2) The sign shall not exceed a height of 6 feet and shall not exceed an area of 16 square feet; the columns and signs at the inner -parcel entrances are approved as requested and the columns shall not exceed a height of 6 feet and the sign on each column shall not exceed an area of 8 square feet which is what has been requested of the applicant; (3) that the inner -parcel entrances, columns and signs shall be constructed as shown in the site plan elevation submitted with V08-002, or should the applicant wish to make substantive design changes to these entrances, the landscape design, the columns or the signage, such changes shall be submitted to and reviewed by the Design Review Board. Scott Kilgore: And this goes to what I was saying earlier. I would like to see some enforcement of why we are approving this with the Design Review Board and also need to be as equally effective at achieving the character of an external entrance. I do not want to include in my motion by statement, but if I get a second, I would like to read the statement as to why I believe this meets the hardship. Heidi Sowder: Just for clarification, when you state your motion to approve, you are approving Part 1 ? Scott Kilgore: Parts 1, 2, and 3. Heidi Sowder: But I think you are denying Part 2. Approve Part 1, deny Part 2, approve Part 3? Scott Kilgore: I guess that is true because I am denying exceeding the maximum height. Thank you. Page 76 of 81 Board of Zoning Appeals Regular Meeting February i9, 2008 Heidi Sowder: Okay, there is a motion on the floor to approve V08-002 to approve Part 1 of V08-002, to deny Part 2 of V08-002 and to approve Part 3 of V08-002 Scott Kilgore: Actually Part 3 is exceeding the maximum square footage which I am also denying. Heidi Sowder: Okay, I apologize. Motion is seconded by Sandy Jones. Heidi Sowder: Okay, I just have one question. For Part 3 to allow a residential development to exceed the maximum allowed square footage for signage. If we denied that Part 3, then is that in anyway affecting Part 1? Todd Chernik: No, he is saying that he is going to give him 16 and then 6 which is 22. The maximum allowable is 24. Scott Kilgore: The column signs do not violate the ordinance in any way; it is just the number of signs. There is really nothing in the ordinance about total square footage. It just says you can have two 12's or one 16. We are really allowing the total allowed which are 24. Angela Rambeau: I do have one comment about one of your conditions. The Design Review Board does not review sign permits. Scott Kilgore: Oh, they do not? I was tying to leave them the flexibility to change their design around if they want. Angela Rambeau: Well when they come in later for their permit and I see something that does not meet the ordinance, I am going to make them fix it. Scott Kilgore: So I guess we can put that on you as a condition that you understand the intent of our condition which is to keep the beautification that the applicant has offered and keep that entrance in the character of an external entrance even though technically it is an internal entrance. I guess we could modify it. Page 77 of 81 Board of Zoning Appeals Regular Meeting February ig, 2008 C Marcia Parsons: In Staffs recommendations, they recommend 6 ft. and 32 sq. feet. You did 16 on each side? Scott Kilgore: 16 sq. feet is the intent of the ordinance and I will read why I do not believe there is a hardship at the front. The reason I am saying that is I do not see a hardship at the entrance. The entrance is the entrance to a subdivision and there is nothing extraordinary and exceptional about that entrance. They presented arguments to say we have a grade issue or whatever, but I just do not see that and that is for each board member to agree with or disagree with and we can discuss that as well, but my interpretation of that entrance I went and looked at and based on what they have presented to us, does not show that that entrance is exceptional or extraordinary that is worthy of a hardship and I would like to see them meet the Milton Sign Ordinance. We worked long and hard on this Milton Sign Ordinance and unless there is just a clear hardship, I do not want to see that sign ordinance chipped away at. That is my reasoning. What I was trying to do was to keep the monument sign to be within the requirements of the ordinance. Walt Rekuc: On the height of the sign, are they measuring then from the ground to the top of the sign is that where they are getting the 10 foot Sandy Jones: Yes, to the top of the posts. Angela Rambeau: To the highest point of the structure. The ordinance says the distance from the base of the sign structure normal grades to the top of the highest attached component. They had to count the base in their total height. Scott Kilgore: Is the reason you are asking about the size is because you are trying to decide if the sign ordinance is appropriate? Because that is not for us to decide, that is for Mayor and Council to decide. Walt Rekuc: It is for us to decide from a standpoint of harmony. Scott Kilgore: If there is a hardship. If you are trying to make a case for hardship I can understand that. I know when they developed the Milton Sign Ordinance they were really looking at square footages and they thought long and hard about the square footages that were placed in the ordinance. It was not something that they just guessed at. Page 78 of 81 Board of Zoning Appeals Regular Meeting February i9, 2oo8 Scott Kilgore: I guess I would need to move to amend my motion. Motion and Second: Scott Kilgore moved to amend his motion and to strike in the motion the words "Design Review Board" and replace that with the word "Staff." Seconded by Heidi Sowder to amend. Vote: 6-0. Motion carried to allow Scott Kilgore to amend his motion with Walt Rekuc in opposition. Heidi Sowder: Okay, back to the original motion. [Brief Discussion with Board and David Flahardy-referencing site plan and discussion about what constitutes hardship]. Walt Rekuc: It makes to hard for the developer to market their property because you create an inferior object to look at compared to other communities outside of the Milton area and that becomes an economical hardship to the developer. That is who they are competing with, but all the other areas. Scott Kilgore: I guess I would recommend that we try to get the sign ordinance changed then if that is true. Because really every sign that comes to us if that is a valid argument - then every sign that comes to us we could say it is a hardship and you got it, and then we have taken it upon ourselves to do away with the Milton Sign Ordinance and I do not think that is within our purview. Okay, we are digressing. Heidi Sowder: Okay, the motion on the floor is to approve Part 1 of V08-002, to deny Part 2 of V08-002 and deny Part 3 of V08-002. Scott Kilgore: There were conditions. Heidi Sowder: Okay, with the following conditions: I am not going state number 1 because that number 1 is already implied by denying it. I am not going to state number 2 because that is the same thing; we said okay, so -- Scott Kilgore: Although we are restricting their height. Page 79 of 81 Board of Zoning Appeals Regular Meeting February 19, 20o8 Heidi Sowder: With the condition that the inner -parcel access entrances and the inner -parcel columns and signs shall be constructed as shown in the site plan submitted with V08-002 or should the applicant wish to make design changes to these entrances, the landscape design, the columns or the signage, such changes shall be submitted to and reviewed by Staff and deemed to be in harmony with the design submitted with V08-002 as well as equally effective at achieving the character of an external entrance. That is the motion on the floor. Vote: 6-1, with Walt Rekuc in opposition. Motion carried. NEW BUSINESS: Heidi Sowder: I will risk the question, but is there any new business anyone would like to address? I know it is really late and if we want to put this off until next months discussion I totally understand because I will probably get booed, but I really would like to propose that on the months that we have more than 3 cases, that we have our briefing the week prior to the meeting when the packets go out and then just skip the briefing the evening of the meeting because this is really difficult and if we have any questions of staff for new documentation, it makes it very difficult for staff to provide us with information. That would only be at times that we have more than 3 cases. I think we can handle 3 cases, but over three cases, it makes for a very, very long evening. Scott Kilgore: © I just do not think there is such a thing is a quick and easy case. 0. Gary Willis: I do not think coming in a week early is going to help us either. It is almost impossible for all of us to even get here on one night let alone making it two. I am 100% against it, I really am. Todd Chernik: To use tonight as an example, we had a large number of cases that were complicated. We got through our briefing in an hour because we time -boxed ourselves to that and I do not think we could have shortened tonight. Walt Rekuc: I think there are some cases we could shorten and just say, sir I think we have heard -- Gary Willis: I do not think they are the problem. Those people out there are not the problem - the problem is right here. Page 80 of 81 Board of Zoning Appeals Regular Meeting February i9, 2oo8 Heidi Sowder: I think sometimes we get off -- I mean we have to have a motion on the floor in order to call the vote and many times our discussion goes on and there is no motion on the floor. Todd Chernik: I think we had good staff and legal representation. Heidi Sowder: I agree. Okay, is there any other new business? Walt Rekuc: I passed out some information regarding stream buffers. Just talk a look at that and it kind of gives the overview of what the state law is and what determines stream buffers. ADJOURNMENT Motion and Second: Heidi Sowder made a motion to adjourn the meeting. Gary Willis seconded the motion to adjourn. Vote: 7-0. Motion unanimously carried. Meeting adjourned at 12:42 a.m. City Clerk's Office C f N \-A-�LA Sa y Jones, Vice it Bard of ZoILning als Page 81 of 81