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HomeMy WebLinkAboutMinutes - BZA - 07-15-2008S X& 44 MINUTES City of Milton Board of Zoning Appeals Regular Meeting July 15, 2008 7:00 PM BOARD MEMBERS PRESENT: CITY STAFF: AGENDA: Chair Sandy Jones Gary Willis Scott Kilgore Marcia Parsons Walt Rekuc John McRae Todd Chernik Angela Rambeau, Community Development 1. Call to order and pledge 2. Approval of June BZA meeting minutes 3. Vo8-o18, 765 & 785 Broadwell Road, Sally Rich -Kolb 1. To reduce the number of required parking spaces (Article 18.2.1) DEFERRED 4. Vo8-oig, 120o Birmingham Road, Todd Rainwater 1. Boiling Springs Primitive Baptist Church 2. To allow an addition to be located more than 30' from the edge of the required landscape strip (Article 12H.3.5.C.2) 3. To allow an addition to have vinyl siding ( to match existing structure) (Article 12H.3.6.B.3) 4. To allow an addition to have a ratio of openings (windows & doors) to solids (walls), less than 30% (Article 12H.3.6.D.1) 5. Vo8-020.125 Canongate Kirk Circle, John Empoliti 1. To allow an accessory structure to encroach into the rear yard (Article 5.1.3.1) 6. Adjournment MEETING CALLED TO ORDER Chair Sandy Jones called the meeting to order. PLEDGE OF ALLEGIANCE Chair Sandy Jones: Called the first agenda item, approval of the June 17, 20o8 Board of Zoning Appeals meeting minutes. Motion and Second: Walt Rekuc made a motion to defer voting on the May loth meeting minutes until their next meeting in August due to some members still not having the opportunity to read the lengthy minutes. Marcia Parsons seconded the motion. There was no discussion. Vote: 7-0. Motion unanimously carried. City of Milton Board Zoning Appeals Minutes Regular Meeting July 15, 2008 STATEMENT OF THE BYLAWS OF THE BOARD OF ZONING APPEAL Read by the Chair Sandy Jones called the next agenda item, Vo8-oi8, 765 & 785 Broadwell Road, Sally Rich -Kolb, to reduce the number of required parking spaces (Article 18.2.1) Staff Angela Rambeau requested this case again be deferred until the next meeting, as applicant still needed additional time before presenting to the Board. Chair Sandy Jones stated Vo8-o18 would be deferred until the August meeting. Chair Sandy Jones called the next agenda item, Vo8-oi9, 12o Birmingham Road, Boiling Springs Primitive Baptist Church, Pat Gagen and Todd Rainwater Staff Angela Rambeau read the Petition, to allow an addition to be located more than 30' from the edge of the required landscape strip (Article 12H.3.5.C.2), to allow an addition to have vinyl siding (to match existing structure) (Article 12H.3.6.B.3), and to allow an addition to have a ratio of openings (windows & doors) to solids (walls), less than 30% (Article 12H.3.6.D.i). Stated the Boiling Springs Primitive Baptist Church is zoned AG -1 and located on 8 acres in the Northwest Fulton Overlay District. She said in March 2008 the church undertook construction of a 2000 sq. ft. addition to their existing fellowship hall. Ms. Rambeau advised that a stop work order was issued by the City of Milton a few months later due to the working commencing without a permit. The church is applying for 3 zoning variances relating to the new addition. Ms. Rambeau stated that Staff held a one stop focus meeting with other staff members on June 25, 2oo8. The Building Plan Review has requested the church obtain the required building permits and noted that with the exception of the overlay requirements; current construction standards have been met. The Site Plan Review had no issues, the arborist has requested that the church add foundation plantings to the south and west elevations which the church has agreed to do, and DOT Stormwater had no issues. She stated the Board had been presented with the City of Milton's Design Review Board comments and recommendations that reviewed this matter on July 1, 20o8. Ms. Rambeau stated the church had put a shed roof over the door that faces Birmingham Road and will add the black shutters with brackets to the new windows. Applicant states relief, if granted, would be in harmony with or could be made to be in harmony with the general purpose and intent of the zoning resolution and further states that Boiling Springs Primitive Church is a small church of limited means. Applicants further stated they had little guidance from Fulton County and at the time they started construction were not aware of the overlay requirements and in complying with the setback requirements and siding and openings would create an excessive economic hardship for the church. Staff s Recommendations: Should the Board grant the relief requested, Staff recommends the following conditions: 1) The applicant shall obtain all required building permits; and 2) the applicant shall add foundation plantings to the south and west elevations. Staff would also like to add the recommendation from the BZA to add the brackets to the shed roof and the black shutters to the windows. These comments were made after the Staff Report went out. Applicant Pat Gagen, 506o Burruss Mill Road, Cumming, GA: Told the Board they had tried to make the changes suggested by the Design Review Board and that they are anxious to move forward. Mr. Gagen apologized for starting the project without a permit and said that the church is very old, was built by the members and the church has very limited funds. He directed the Board to look at the pictures he provided showing the addition and what he would look like 2 City of Milton Board Zoning Appeals Minutes Regular Meeting July 15, 2008 from the road. He stated the fellowship building was 1o8 feet from the road and there were a lot of mature trees on the property. Mr. Gagen told the board the money for the new construction came from a collection from the church members and they have already gone beyond their budget. Applicant Todd Rainwater, 2207 Holly Court, Dunwoody, GA Applicant Pat Gagen: Told the Board that he had brought in some additional photographs for their review. [Applicant presented photos to the Board]. Applicant Pat Gagen: Stated most everyone in the community loves the little church and the way it is. The church was going to take a petition around stating they liked the church the way it is. He said he did not know if that would be appropriate to present. [Presented additional documentation to board]. Applicant Todd Rainwater: Advised the Board the addition was a 12 by 48 addition and was just to add a dining space to the fellowship hall. Chair Sandy Jones: Asked the Board if they had any questions for the applicants. Walt Rekuc: Asked the applicant what type of materials were used on the building across the street from the church and if he was planning on doing any landscaping anywhere in front of the t church or anywhere adjoining the church to either obscure it. 1i• Applicant Todd Rainwater: Stated he believed it had brick and vinyl siding. Applicant directed the Board to the photos he provided. Walt Rekuc: Asked about the house right next to the church. Applicant Todd Rainwater: Said that would be the house with the black fence and he thought it might be hardy board or vinyl siding, but it is sided as well. Walt Rekuc: Asked about the barn down below the church. Applicant Pat Gagen: Stated he believed the barn was wooden and then going toward Birmingham there was an old farm house with a pasture and then the house. Walt Rekuc: Asked applicant if they were okay with completing what the Design Review Board requested of them. Said it appeared they were still not compliant with the number of windows and the openings. Applicant Pat Gagen: Stated he was not clear on the windows. Explained that the two small windows shown are in the old existing building and were the pastor's office. Applicant said due to the age of the building, they did not want to remove those windows and also that would incur a lot of money. Mr. Gagen stated the rest of the request including the landscaping they could do, but they do not have thousands of additional dollars to spend. 3 City of Milton Board Zoning Appeals Minutes Regular Meeting July 15, 2008 Walt Rekuc: Stated one of their variances was requesting an addition to be located within more than 30 ft. from the edge of the landscape strip. He asked if the landscape strip was beside the side lot line. Staff Angela Rambeau: Said it was in the front and typically there would be a io ft. landscape strip but because it had been there so long there was no official landscape strip. Walt Rekuc: Asked Ms. Rambeau if she was saying that this is a distance from the front io ft. landscape strip and not the side. Staff Angela Rambeau: Reiterated that it was the front. Walt Rekuc: Told applicant since their building was 18o feet, they would have to read the Code, because it says it is supposed to be within 20 feet, but there is another section in the Code that says for all properties and lots located adjacent to public right-of-way and 400 or more feet beyond an intersection, buildings shall be set back no more than 30 feet from the edge of the required landscape strip. He stated he believed that is what they were referring to. He said it sounded like they were going away from the street. Applicant Pat Gagen: Stated to the side. He said as you are facing the street, they refer to that as the back of the building, but facing from the road it would actually be the side of the building. Walt Rekuc: Said so your point is that this church is an existing structure, that it has been at that location for many years and they are just continuing the existing structure and not trying to get it down towards the street where there are some topography issues, but just keep it where it is. Applicant Pat Gagen: Need the addition because when they have their fellowship meetings everyone can barely fit in the church. He said the new dining area will be 50% bigger. Marcia Parsons: Asked applicant where they are talking about the shed roof with the brackets over the door, what type of landing were they planning to put there. Asked if there would be a small sidewalk there or what is the church's plan. Applicant Pat Gagen: Stated that that doorway was put there just for a fire exit because the main entrance is on the other side of the building. He said there is a sidewalk coming down the side of the church, so they are just planning to leave that landing as it is with dirt. Staff Angela Rambeau: Stated there is no building code requirement that requires them to be in a stoop or sidewalk. They do have ADA access on the side. There is no requirement in the Overlay either. Walt Rekuc: Asked applicant to show on the site plan exactly where the addition was going to be and where the old building is. [Applicant approached the dais, and indicated the locations on the site plan for the Board]. 11 City of Milton Board Zoning Appeals Minutes Regular Meeting July 15, 2oo8 Walt Rekuc: Stated so when you looked to expand the building, it will be expanded to the side, is that correct? Applicant Pat Gagen: Stated that was correct. Walt Rekuc: Started speaking to applicant and then paused. Chair Sandy Jones: Asked several of the board members to please not have a side bar discussion while a member was speaking. Walt Rekuc: Then you would not be expanding it to the front or adding a new building, but basically expanding what was there and going straight back away from Birmingham Highway. So the first part of the variance you are trying to get is really doing nothing more than expanding the building in width and the length is what is, plus you are adding a little more to the length, is that correct? Applicant Pat Gagen: Right. Applicant Todd Rainwater: Stated the width was 12 ft. and the length is 48 ft. Walt Rekuc: Stated that was a very important part in understanding the request for the variance. He said the second part is on the vinyl siding. He asked if there was any vinyl siding being left that was on the old portion of the building or was it all removed. Applicant Pat Gagen: Said the back siding came all the way around on the old building. It was just the front side that was removed because of the roof expansion. Walt Rekuc: Asked if the Design Review Board had a problem with the vinyl siding that was being proposed. Applicant Pat Gagen: Stated he thought the only problem the DRB had was with the windows and adding the shutters. Walt Rekuc: Stated he was reading the Design Review Board's recommendations that stated: The Board does not support the use of vinyl siding as is prohibited by the Overlay. He further stated that the Overlay goes on to talk about how they want buildings to conform with its adjoining neighbors and have diversity and everything. He said it was hard for him to understand how you could try to be like something, but then when you are expanding what you have, you cannot use the same material. He asked what the window opening ratios were currently. Applicant Todd Rainwater: Stated he believed 23%. Walt Rekuc: So it is a 7% reduction. He asked if adding a window would get you at that required percentage. Applicant Pat Gagen: Stated that the two windows are basically covering the office. 5 City of Milton Board Zoning Appeals Minutes Regular Meeting July 15, 2008 Walt Rekuc: Said he must have misunderstood the ordinance. He said he thought it applied to the whole building and not just for one side. He asked about adding a window or a false window that looks like a window. Staff Angela Rambeau: Said it was for the entire building. Applicant Pat Gagen: Said he was not of the calculations then, because the kitchen portion is windows all the way around. Chair Sandy Jones: Asked if applicants were saying that the 23% was based on the new addition and not for the current building and including the new addition openings. Applicant Pat Gagen: Stated that was correct. [Discussion about the calculations]. John McRae: Stated that in the packet it states that the current design provides a 23% ratio of windows to solids and he thought that meant existing plus the addition. Todd Chernik: Stated the requested variance is to allow an addition to have a ratio of openings of less than 30%. He said as he could see from the pictures, it appears there are only two windows in the addition. To add another window in the addition is really what would be required to be compliant with the ordinance. Chair Sandy Jones: Asked if anyone else had questions for the applicants. John McRae: Asked if they were able to find vinyl to match the old vinyl on the existing building. Applicant Pat Gagen: Stated from what he understood, the existing church building was built in the 192o's and then the bathrooms were added on in the 1950's, then the fellowship hall, the original portion was built in the early 1950's and added on to in the 196o's and again in the 1970's. He stated the siding was added on in the 198o's. He said he thought the vinyl siding was added on in the late 198o's. Applicant Todd Rainwater: Said he they were allowed to add the vinyl siding, it would all match. Applicant Pat Gagen: Stated one of the church members donated the original vinyl siding and he is donating the vinyl siding for the addition as well. This is why they want to use it, as they are getting a good deal. John McRae: Asked if the portion of construction that faces Birmingham Road, did they depend on natural light to filter through the windows shown on the photographs or could they screen that with trees or other plant life to make that portion less visible. 0 City of Milton Board Zoning Appeals Minutes Regular Meeting July 15, 2Oo8 Applicant Pat Gagen: Stated the pastor had curtains on those windows and he faces his office the other way. He stated the whole area is shaded already by the mature shade trees. He said they could put in small trees. Scott Kilgore: Asked what the feasibility would be in adding a window anywhere on the building to achieve the 30%. Applicant Pat Gagen: Stated the problem is when they built, they already put up that structure so they would have to tear a hole in the wall to put it in. Said he did not see any place a window could go in. The big area is where the bathrooms are and the heat and air- conditioning and storage. Walt Rekuc: Stated he thought they did have a great place to put a window. Where the new roof is that they created, if they could put a window up towards the top of that roof which could be vented and fanned, but you say it is a window. Said that it would not have to be a window that opened, but even just a facade. [Board showed applicant at the dais where on the site plan the location that the window could go in]. Marcia Parsons: Asked if they had priced the difference between the clapboard siding versus the vinyl siding budget. Applicant Todd Rainwater: Reiterated that the vinyl was donated. Applicant Pat Gagen: Stated one of the church's members was a builder and had a line of vinyl siding so they could put the same matching siding on the addition. Marcia Parsons: Asked applicant if he had seen the siding and whether it was a perfect match. Applicant Pat Gagen: Stated it looked the same to him. Chair Sandy Jones: Asked if there was any public comment. There was no public comment. Staff Angela Rambeau: Told the Board she wanted to clarify a few things and directed them to the last two pages. She stated on page 11, that picture was from June 16th and then on the last page, that picture was from June 29th, so that shows the view from Birmingham and what it looked like on the 29th. Todd Rainwater: Stated that one of the Design Review Board's recommendations was to put in a vented thing on the gable up there. They also suggested the roof over the door and shutters as well to break up that wall as shown. Chair Sandy Jones: Asked if the Board had any additional questions for staff. There were no additional questions. 7 EAD City of Milton Board Zoning Appeals Minutes Regular Meeting July 15, 2008 Chair Sandy Jones: Stated public comment was closed and called for a motion. Motion and Second: Walt Rekuc made a motion to approve the 3 requested variances with the understanding that this property is a unique existing building that is trying to be kept in harmony with the existing structure and building that was presently there, and that they be allowed to keep the building as is and be granted all 3 variances, and that shutters be added per the Design Review Board's recommendation, that brackets be added to the shed roof, and the applicant shall add foundation plantings to the south and west elevations, and the applicant shall obtain all required building permits. Seconded by Sandy Jones. Chair Sandy Jones: Called for discussion. Discussion: Walt Rekuc: Stated again they are looking at an existing building and not a new building or a new construction for a new church building separate and whole upon itself He said had that been the case, he would have looked at it much more assertively in saying that it had to follow the exact policies prescribed, but due to its distance away from the street that you would not be able to tell that it is vinyl at 18o feet and did not believe you could tell that there is a 7% difference in the number of windows again at 18o feet distance away from the street. He said lastly, that they are just again adding on to the building so that this was his reasoning for the granting of the variances. Scott Kilgore: Stated he wanted to speak in favor of Mr. Rekuc's motion. He said in the Overlay he thought the main purpose for the 30 feet in the Overlay is to enforce the interior parking in a commercial situation, which obviously is not applicable in this case. He said in this case the building is so far back from the street, that by virtue of its location, it would be in harmony with the intent of the ordinance. He stated as far as the materials, the purpose in the Overlay standards is to provide a consistent aesthetically pleasing presentation and this building is not commercial in nature and to require a different type of siding on the addition would be in disharmony because it would be an inconsistent look and the whole idea of the ordinance is to have a consistent look and feel. He questioned Mr. Rekuc about why he did not add a condition on adding a window. He said he knew the shutters would help, but he would like to try to get in harmony with that the intent of not having the large wall area. Asked what the other Board Members thought and then stated he would drop his line of questioning when he realized there was a vent area behind the trees which would achieve what they were looking for. Chair Sandy Jones: Stated with a motion and second on the table, they would go ahead and take a vote. Vote: 7-0. The motion unanimously carried. Chair Sandy Jones called the next agenda item, V08-020, 125 Canongate Kirk Circle, John Empoliti. Staff Angela Rambeau read the Petition for Vo8-020, 125 Canongate Kirk Circle. She stated the request was to allow an accessory structure, a gardening shed to encroach into the rear yard required in (Article 5.1.3.I). Ms. Rambeau stated the site was a single family residence located on a little over an acre within the Potterstone Subdivision and located in the Northwest Fulton ovftOverlay. She said the applicant's back yard consisted of two fenced areas, one a garden and the other a grassy area in back of the house. The minimum rear yard for AG -1 property is 50 feet, LV City of Milton Board Zoning Appeals Minutes Regular Meeting July 15, 2008 and Mr. Empoliti would like to place a 12 x 16 foot garden shed in the setback approximately 15 feet from the rear property line. She stated Mr. Empoliti believes the proposed location would pose the minimum impact on the surrounding neighbors and plans to have additional trees and shrubbery around the structure to further screen it. She said on June 25th there was a focus meeting and the Building Plan Review's comment was that the applicant obtain the required building permit. Site Plan Review had no issues, the arborist noted that no specimen trees appear to be affected by the request and DOT Stormwater had no issues. The applicant has stated that his lot is of such size and shape that he essentially has no rear or side yard and most of the yard is contained within the minimum rear setback. The zoning ordinance prohibits accessory structures in the minimum side or rear yard. Staffs Recommended Conditions: Should the Board chose to approve the application: 1) that the applicant obtain all required building permits; and 2) the applicant shall add additional landscaping, including Evergreens per approval of the city arborist in order to screen the shed from the rear neighbors. Staff Angela Rambeau: Advised the Board there were some letters and emails in their packet from some of the adjacent homeowners. She stated she also had some additional handouts that were not in their packet from some of the neighbors as well. Chair Sandy Jones: Asked if there were any questions for Staff. Applicant John Empoliti, 125 Canongate Kirk Circle, Milton, GA: presented his case and stated he was applying for a variance to the rear yard setback. He said he did not realize you needed a building permit to put a shed in your back yard or on your property. He said the location he proposed was the only location he could put one that would be level and not be visible from the street which is an HOA requirement. He stated he received a formal response from the HOA's Architectural Review Committee which approved the location of the shed after considering other locations. He stated there was only 50 ft., 6 inches to the edge of his home, so he essentially has no use of his entire back yard for anything according to the ordinance. Mr. Empoliti stated the construction of the shed would match the construction of his home with hardy plank siding, wood -framed shingle roof that would match the shingles of his home. He said he had no problem with adding additional shrubbery to screen his neighbor, but there was quite a bit of foliage there already that screens his left neighbor and large trees in the back and some shrubbery that screen the two rear neighbors. Chair Sandy Jones: Asked if the Board had any questions for the Applicant. John McRae: Asked applicant if the shed was still in the same state as shown in their packet. Applicant John Empoliti: Stated the day he received concern from his neighbor he finished putting up the last two walls that he had framed and then he wrapped it in plastic the next day and contacted the city the next morning. John McRae: Asked applicant if he was doing the construction on his own and when did he begin building the shed. Applicant John Empoliti: Stated he was doing it alone and he began that week or shortly before that. I City of Milton Board Zoning Appeals Minutes Regular Meeting July 15, 20o8 John McRae: Asked if he had applied for any permits. Applicant John Empoliti: Stated he did not realize you needed a permit to put a shed up as it is not attached to the house. He thought since it was a structure primarily for storage, it would not require a permit. John McRae: Asked applicant when he contacted his homeowner's association. Applicant John Empoliti: Stated he submitted his original application in March, but there was no Architectural Review Committee at that time so he received by email approval from his homeowner's board. He said he submitted another formal request to the Architectural Review Committee after it was formed and got approval earlier in the week. John McRae: Stated it appeared the shed was sitting on wood blocks. Applicant John Empoliti: Said it was sitting on footings because there was some water runoff from the neighbor's property that runs down into his backyard. The footings go into the ground. Scott Kilgore: It appeared from the drawings there was an alternate location on the side yard and asked applicant to explain that. Applicant John Empoliti: Explained that the side of his house - there is a basement that has an exit there on the side that has a poured patio with French doors. There are two windows on the door that are ground level and then it begins a gradual slope. He said there is a grouping of trees to the right. He stated that was in plain view of his rear neighbor. [Applicant went to projections screen and showed the Board the location of the side yard area]. Chair Sandy Jones: Asked about the homeowner's association rule that any structure cannot be visible from the front. Applicant John Empoliti: Stated cannot be visible from the street, correct. Chair Sandy Jones: For clarification asked what the distance was from the back edge of applicant's home to his property line. Applicant John Empoliti: Stated fifty feet. Scott Kilgore: Asked if the HOA requirement of not being visible from the street, allowed for foliage screening to meet that requirement. Applicant John Empoliti: Stated since the screening was not discussed, he would have to defer to the Architectural Review Committee for that. Applicant John Empoliti: Thought he would have to screen the entire area because it would be visible from his rear neighbor. That was one of the issues from his rear neighbor was that they could see it from its location. 10 City of Milton Board Zoning Appeals Minutes Regular Meeting July 15, 2008 Walt Rekuc: Asked applicant why he chose the location he did for the shed rather than up against the house. Stated if he had placed it up closer to the house he may have not needed less of a variance and also could have been away from the ditch where the water runs off. Applicant John Empoliti: Stated the reason was there are no solid wall area, and that there were windows all along the back. Said it was 15 ft. from the fence and the water runs maybe half way through that. He stated he tried to aesthetically center it and considered the line of sight from the neighbors' houses. Walt Rekuc: Asked applicant if the shed was something he was concerned about that he had to keep it away from his house. Applicant John Empoliti: Reiterated the reason was primarily due to all the windows along that side of the house. He said there are window all along the entire area. Walt Rekuc: Asked what the reason was for building the shed. Applicant John Empoliti: Stated for his lawn mowers and gardening tools. He wanted to use it to grow his seedlings and for storage. Walt Rekuc: Asked how he was thinking of screening the area from his neighbors and what he would plant. Applicant John Empoliti: Stated some type of Evergreen or something that would grow quickly. He said the trees that are already there are 20 plus feet and already up on a hill, so would not be able to plant anything that would get that tall that would not take quite some time. [Additional discussion about plantings in the area and types of plants applicant might consider]. Chair Sandy Jones: Asked if there were any additional questions. Chair Sandy Jones: Call for public comment. William Vason, dei Calten Hill Court Milton, GA [Spoke in Opposition]. Mr. Vason stated he was the neighbor directly behind the shed in question and was in opposition for two reasons. He stated that nine years ago when they purchased their home they did consider the fact that their back yard and the neighbor's back yard were not very deep. They did not want a structure of this type to be built between the homes so they referenced the zoning ordinance that applied which was the Fulton County Zoning Ordinance that was adopted by the City of Milton, in addition to the neighborhood guidelines as well which called for the 50 ft. setback. He stated that as a result of the setback they knew they would not have a structure built between the both properties. The second reason for the objection was there is always a possibility if not this particular neighbor, but another neighbor that might not have the same green thumb could potentially decide to change a gardening shed into a poker shed. [Passed out to the Board an article about a man who built a structure with about the same dimensions and used it for a poker shed]. 11 t City of Milton Board Zoning Appeals Minutes Regular Meeting July 15, 2oo8 Mr. Vason continued stating that their master bedroom is up on a hill and if there were to be any congregation, conversation, or card game in this area, it would literally keep them up all night. He told the Board that there was no guarantee that this scenario could not potentially happen and that would adversely their quality of life. He stated the zoning ordinances are written specifically for this type of potential situation and to prevent this sort of thing from happening. He said he believes the zoning requirements in this case regarding the placement of the shed should comply with the zoning requirements of the city and for the neighborhood. Walt Rekuc: Asked the Mr. Vason to show from the projection screen where their home was located. [Applicant went to the projection screen and pointed out the location of his property]. William Vason stated from his perspective, the applicant should have checked the zoning ordinance before going forward with his project. Mark Homrich,_220 Shandwick Place, Milton, GA f SWportl. Mr. Homrich stated he was on the Potterstone Architectural Review Committee. He requested the variance be requested for applicant so the shed did not have to be placed on the side of their property. The homeowners would not want to set precedence for future homeowners. There is usually some opposition from neighbors whenever a situation arises. He stated their neighborhood has been good about working out the landscaping for buffering. He said it was the opinion of the ARC that this would be the best location for the Empoliti property for the placement of the shed. CScott Kilgore: Stated he looked over their HOA rules and regulations and saw something about the Milton Ordinance always being observed. He asked how this got approved in light of the fact it was in complete violation of the building ordinance that Milton has in place for the protection of the neighbors and why would the side be excluded, as that would make it in accordance with the Milton Ordinance. Mark Homrich: Stated that would be a question for the Board and that he was not on the Board, but just the Architectural Review Committee. He said the applicant submitted his application to the Board and at that time there was no ARC. The Board was serving both functions then. When it was approved and the neighbor raised by the neighbor, the Board put an ARC in place and that was when he got involved. Chair Sandy Jones: Asked if there was some sort of landscaping requirement as put of their conditions on the ARC and whether any attention was given to that regarding this application. Mark Homrich: Stated the two approval conditions for the Potterstone ARC. One is a zoning variance from the City of Milton and the second is the landscaping is done to provide a buffer. He said the landscaping is a requirement. Scott Kilgore: Asked if there was any requirement for soundproofing of the proposed structure. Mark Homrich: Stated there was nothing in his application that indicated he was running any utilities to his structure, so for the purposes the applicant described for storage and gardening, there was no concern about gatherings or parties to support a noise concern. 12 City of Milton Board Zoning Appeals Minutes Regular Meeting July 15, 2008 John McRae: Asked when the ARC considered this matter, was there room for neighbor comments. Mark Homrich: Stated a letter went out to the four bordering neighbors asking them for comments and he received comments back from two of those neighbors. Walt Rekuc: Asked if the ARC specified the type of landscaping or screening or made any recommendations regarding types of plantings. Mark Homrich: Said they did not get into specifics, but he said he could share what they feel might be appropriate like the Leyland Cypress, which grows the fastest and can be close enough to provide a pretty solid screen and be attractive to the yard. Chair Sandy Jones: Asked if there was any other public comment. William Vason: Stated the letter Mr. Homrich was referring to that they responded to happened after the cease and desist order was placed for the structure. He said they were not asked in advance about whether or not they objected to the structure. Scott Kilgore: Asked when the homeowners' association approved this project, was there a public notification to all neighbors. William Vason: Asked if there was any public meeting that they could have attended. Scott Kilgore: Said so this was pretty much a closed meeting. Beth Vason: Stated that Staff Angela Rambeau should have a letter that they sent to the homeowners' board and the ARC that should be in their packet showing that they wanted some type of explanation because they would have immediately voiced their concern and said it was too close to the setbacks. The applicant then would have had every opportunity to not start construction had there been any communication at all. They would have been more than happy to discuss the setback requirements with Mr. Empoliti. She said the only sheds they are aware of in the neighbor are two that sit on the lake and they do not have neighbors that look into their shed, so as far as harmony, there is no harmony regarding gardening sheds in their neighborhood. Applicant John Empoliti: Advised the Board he did have a copy of the Architectural Review Committee's response for them to review. [Applicant provided copies to the Board showing the line of sight]. John McRae: Asked about the types of trees that were shown in the drawing and if those trees would lose their leaves in the winter. Mark Homrich: There are several different types including pine trees. That is why they determined some additional landscaping would need to be planted. John McRae: Asked Mr. Homrich about the other similar structures in their neighborhood. 13 City of Milton Board Zoning Appeals Minutes Regular Meeting July 15, 2oo8 Mark Homrich: Stated he knows of two and they may be others, but if there have not been any concerns raised, then we would not hear about them. Scott Kilgore: Asked Mr. Homrich if he was speaking this evening on behalf of the Board and if there had been a vote taken. Mark Homrich: Stated he was speaking on behalf of the ARC, and that there had been a vote taken and it was unanimous. There are three ARC members. He stated the sequence of events was in the beginning of the year, Mr. Empoliti submitted his application, it went to the Board, the Board approved it, the construction began, a neighbor raised an objection and in that process it was highlighted that there was not an ARC that provided the approval. He said right around that same time period the stop work order was issued and everything came to a halt. Then the ARC was implemented, a new application was submitted to the ARC and that was solicited for feedback from the neighbors and that was reviewed, discussed, and then a formal response went back to Mr. Empoliti. The ARC at the request of the President of the HOA a request went out to residents for three of them to serve on the ARC and three people accepted. He said he was one of those three individuals. He said when the whole process started he was not involved with the Board or the ARC. Scott Kilgore: Asked who the neighbor was that the applicant stated assisted in the construction of the shed. Mark Homrich: Stated that he was the person assisting in the construction. Scott Kilgore: Asked Mr. Homrich if he recused himself from voting on this project. Mark Homrich: Stated he did not recuse himself and that he had absolutely no vested interested in the project. He said if the Board did not approve the zoning variance or if Mr. Empoliti were to accept an alternate location and if that were to be refused, he had no vested interest in the outcome either way. He said he was not getting paid or there was no bartering for other services. Chair Sandy Jones: Asked if there were any other questions. Walt Rekuc: Wanted to ask addition questions, but was advised by the Chair that the discussion was for the applicant and rebuttal. Chair Sandy Jones: Asked if there were additional questions for Staff. There were none. Public hearing was then closed. Chair Sandy Jones: Called for a motion. Motion and Second: John McRae moved to deny the variance request based on the condition that it cannot be made in harmony with the spirit of the existing ordinance. Seconded by Scott Kilgore. Chair Sandy Jones: Called for discussion. 14 NO City of Milton Board Zoning Appeals Minutes Regular Meeting July 15, 2oo8 DISCUSSION• Todd Chernik: Stated the reason for the application was due to the size, shape and topography of the property and further stated the hardship he stated would cause no detriment or harm to the public. He said based on what he heard from his rear neighbor tonight, that is not the case and there would be detriment caused to the public if this variance were approved. He stated furthermore, the purpose of the 50 foot setback required in the ordinance was for situations just as this. Scott Kilgore: Stated it had not been shown that this would be the only location the shed could be built. He said it could be built on the side yard and be completely within the Milton Ordinance which is their main focus, so he did not believe there were extraordinary and exceptional conditions that force it be where it is so did not see the hardship and was not in harmony with the intent of the ordinance. He stated he believed they would be remiss in their duties if they did not uphold the ordinance in this case. Chair Sandy Jones: Called for any additional discussion. There was no further discussion. Vote: 7-0. The motion unanimously carried for denial of V08-020. Chair Sandy Jones: Called the next agenda item, Other Business. [Lengthy Board Discussion about modifications to the Board of Zoning Appeals By-laws to make some administrative changes, some of which had never been implemented]. SEE ATTACHMENT i PROPOSED CHANGES TO THE MILTON BOARD OF ZONING APPEALS BYLAWS CD'S OF THE PORTION OF THE LAST AGENDA ITEM, OTHER BUSINESS, CONTAINING BOARD DISCUSSION REGARDING SUGGESTED CHANGES TO THE CITY OF MILTON BOARD OF ZONING APPEALS BYLAWS TO BE PROVIDED TO BOARD MEMBERS UPON REQUEST. 15 City of Milton Board Zoning Appeals Minutes Regular Meeting July 15, 2oo8 ADJOURNMENT Motion and Second: Chair Sandy Jones moved to adjourn the Board of Zoning Appeals meeting. Seconded by Marcia Parsons. There was no discussion. Vote: 7-0. Motion unanimously carried. Meeting adjourned at 9:20 pm Date Approved: I�A r M �401 City Clerk's Office A,. 1,,/4AmW' andy Jone Chi Board of Z ing peals 16 ORDINANCE NO. 2008 - STATE OF GEORGIA COUNTY OF FULTON CITY OF MILTON ETHICS ORDINANCE AN ORDINANCE TO AMEND THE CODE OF ORDINANCES OF THE CITY OF MILTON, TO ESTABLISH THE CODE OF ETHICS FOR THE CITY OF MILTON; TO FURTHER AND INCORPORATE THE POLICIES AND LAWS OF THE STATE OF GEORGIA RELATING TO ETHICAL STANDARDS; TO CREATE THE BOARD OF ETHICS AND PROVIDE FOR POARD MEMBERSHIP, DUTIES, AND RESPONSIBILITIES; TO PROVIDE FOR THE ,pISPOSITION OF ETHICS COMPLAINTS; TO ENSURE COMPLIANCE WITH ETHICAL STANDARDS; TO REPEAL CONFLICTING PROVISIONS; TO PROVIDE FOR SEVERABILITY; TO PROVIDE FOR AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. WHEREAS, the Constitution of the State of Georgia, approved by the voters of the State in November of 1982, and effective July 1, 1983, provides in Article IX, Section Il, Paragraph II thereof, that the General Assembly may provide by law for the self-government of municipalities; WHEREAS, O.C.G.A. § 36-35-3(a) authorizes cities to enact clearly reasonable ordinances, resolutions, or regulations relating to its property, affairs, and local government; Q WHEREAS, the governing authority of the City of Milton, to wit, the Milton City Council, desires to exercise its authority in adopting this Ordinance; WHEREAS, it is essential to the proper operation of republican government that public officials be independent and impartial, that governmental decisions and policy be made in the proper channels of the governmental structure, that public office not be used for private gain other than the remuneration provided by law, and that there be public confidence in the integrity of government; WHEREAS, the attainment of one or more of these ends is impaired whenever there exists a conflict between the private interests of a City Official or an Employee and his duties as such; WHEREAS, the public interest, therefore, requires that the law protect against such conflicts of interest and establish appropriate ethical standards with respect to the conduct of City Officials and Employees in situations where conflicts exist; !A Deleted: ITS Deleted: INVESTIGATION WHEREAS, it is also essential to the proper operation of government that those best qualified be encouraged to serve the government. Accordingly, legal safeguards against conflicts of interest must be designed so as Xo not unnecessarily or Deleted not unreasonably impede the recruitment and retention by the government of those men and women who are best qualified to serve it; WHEREAS, an essential principle underlying the staffing of our government structure is that its City Officials and Employees should not be denied the opportunity, available to all other citizens, to acquire and retain private economic interests and other interests, except where conflicts with the responsibility of such City Officials and Employees to the public cannot be avoided; WHEREAS, the purposes behind this Ordinance are shared by all republican governments — to insure that public officials be independent, impartial, and responsible to the people they represent, that governmental decisions and policies be made within the proper channels of the governmental structure, that public office not be used for personal gain, and, especially, that the public have confidence in the integrity of its government and its officials. WHEREAS, in recognition of these goals and principles, it is the policy of the Milton City Council to institute, establish, promote, and to ensure compliance with the standards of ethical conduct for all of the City of Milton's officers and employees; and WHEREAS, it is a further policy of the City Council that the proper administration of the City of Milton's government and the promotion and compliance with the standards of ethical conduct for the City of Milton's officers and employees would be best served by the creation of a Board of Ethics; NOW, THEREFORE, BE IT ORDAINED AND RESOLVED BY THE CITY COUNCIL OF MILTON, GEORGIA AS FOLLOWS: ARTICLE ONE: GENERAL PROVISIONS Section One. Short Title. This Ordinance shall be known as "The City of Milton Ethics Ordinance," and may be cited and referred to as such. Section Two. Definitions. For the purposes of this Ordinance, the following terms, phrases, words, and their derivations shall have the meaning provided herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. (A) "Agency" means the City Council and all other agencies, authorities, boards, commissions, committees, departments, and offices of the City, without exception. (B) "Board of Ethics" means the City of Milton Board of Ethics as formed and described herein. (C) "Business Entity" means any business of whatever nature regardless of how designated or formed, whether a sole proprietorship, partnership, joint venture, association, trust, corporation, limited liability company, or any other type of business enterprise, and whether a person acting on behalf of, or as a representative or agent of, the business entity. (D) "City Official' means the Mayor of the City of Milton, the Milton City Council, any member of a board, commission, or authority appointed by the Council, the City Manager, and any other elected or appointed officer of the City of Milton. (E) "Confidential Information" means any information that, by law or practice, is not reasonably available to the public. (F) "Council' means the Milton City Council, which includes any person who is elected to the Council and the Mayor. (G) "Employee" means all those persons employed on a regular or part-time basis by the City, as well as those persons whose services are retained to fill positions within the City government under the terms of a contract with the City. (H) "Family" means the spouse, parents, children, brothers and sisters, related by OPW blood or marriage, cousins, aunts, and uncles of a City Official or Employee. (1) "Government or City" shall be construed to mean the City of Milton, Georgia government. (J) "Governing Authority" or "member of the Governing Authority" means the Mayor or any Councilmember of the City. (K) "Interest" means direct or indirect pecuniary or material benefit accruing to a City Official or Employee as a result of a contract or transaction which is or may be the subject of an official act or action by or with the City, except for such contracts or transactions which, by their terms and by the substance of their provisions, confer the opportunity and right to realize the accrual of similar benefits to all other persons and/or property similarly situated. The term "interest' shall not include any remote interest. 3 ti For purposes of this Ordinance, a City Official or Employee shall be deemed to have an interest in the affairs of: (1) His or her family; (2) Any business entity in which the City Official or Employee is a member, officer, director, employee, or prospective employee; (3) Any business entity as to which the stock, legal ownership, or beneficial ownership of a City Official or Employee is in excess of five percent (5%) of the total stock or total legal and beneficial ownership, or which is controlled or owned directly or indirectly by the City Official or Employee. (L) "Official Act' or "Official Duties" means any legislative, administrative, appointive, or discretionary act of any City Official or Employee of the City or any agency, board, authority, or commission thereof. (M) "Remote interest' means an interest of a person or entity, including a City Official or Employee, who would be affected in the same way as the general public. For example, the interest of a council member in the property tax rate, general city fees, city utility charges, or a comprehensive zoning ordinance or similar decisions is deemed remote to the extent that the council member would be affected in common with the general public. (N) "Volunteer" means a nonpaid person engaging in official City business with the approval of the governing authority. ARTICLE TWO: CODE OF ETHICS FOR MUNICIPAL SERVICE GENERALLY This Article Two is intended to adopt and incorporate herein for local enforcement the ethical standards of O.C.G.A. § 45-10-1, as it may be amended from time to time. Any person in City service shall.- Section hall: Section One. Put loyalty to the highest moral principles and to country above loyalty to persons, party, or government department. Section Two. Uphold the Constitution, laws, and legal regulations of the United States and the State of Georgia and of all governments therein and never be a party to their evasion. 4 13 Section Three. Give a full day's labor for a full day's pay and give to the performance of his duties his earnest effort and best thought. Section Four. Seek to find and employ more efficient and economical ways of getting tasks accomplished. Section Five. Never discriminate unfairly by the dispensing of special favors or privileges to anyone, whether for remuneration or not, and never accept, for himself or his family, favors or benefits under circumstances which might be construed by reasonable persons as influencing the performance of his governmental duties. Section Six. Make no private promises of any kind binding upon the duties of office, since an employee has no private word that can be binding on public duty. Section Seven. Engage in no business with the government, either directly or indirectly, which is inconsistent with the conscientious performance of his governmental duties. Section Eight. AO& Never use any information coming to him confidentially in the performance of governmental duties as a means for making private profit. Section Nine. Expose corruption wherever discovered. Section Ten. Uphold these principles, ever conscious that public office is a public trust. I ARTICLE THREE: CODE OF ETHICS FOR CITY OFFICIALS AND DEPARTMENT DIRECTORS 10 This Article Three is intended to adopt and incorporate herein for local enforcement the ethical standards of O.C.G.A. § 45-10-3, as it may be amended from time to time. All City Officials and Department Directors shall: Section One. Uphold the Constitution, laws, and regulations of the United States, the State of Georgia, the City of Milton, and all governments therein and never be a party to their evasion. Section Two. Never discriminate by the dispensing of special favors or privileges to anyone, whether or not for remuneration. Section Three. Not engage in any business with the government, either directly or indirectly, which is inconsistent with the conscientious performance of his governmental duties. Section Four. Never use any information coming to him confidentially in the performance of governmental duties as a means for making private profit. Section Five. Expose corruption wherever discovered. Section Six. Never solicit, accept, or agree to accept gifts, loans, gratuities, discounts, favors, hospitality, or services from any person, association or corporation under circumstances from which it could reasonably be inferred that a major purpose of the donor is to influence the performance of the member's official duties. Section Seven. Never accept any economic opportunity under circumstances where he knows or should know that there is a substantial possibility that the opportunity is being afforded him with intent to influence his conduct in the performance of his official duties. Section Eight. Never engage in other conduct which is unbecoming to a member or which constitutes a breach of public trust. Section Nine. Never take any official action with regard to any matter under circumstances in which he knows or should know that he has a direct or indirect monetary interest in the subject matter of such matter or in the outcome of such official action. ARTICLE FOUR: SPECIFIC PROVISIONS RELATED TO CONFLICT OF INTEREST TRANSACTIONS AND DISCLOSURES The following provisions related to conflict of interest transactions and disclosures are intended to supplement and elaborate upon the Code of Ethics set forth in Articles Two and Three above, as well as Section 2.15 of the Milton City Charter, and all such provisions shall be read and interpreted in accordance therewith. Section One. Compliance with Applicable Law. No City Official or Employee shall engage in any activity or transaction that is prohibited by law, now existing or hereafter enacted, which is applicable to him or her by virtue of his or her office or employment. Other provisions of law or regulations shall apply when any provisions of this Ordinance shall conflict with the laws of the State of Georgia or the United States, except to the extent that this Ordinance permissibly sets forth a more stringent standard of conduct. The laws of the State of Georgia or the United States shall apply when this Ordinance is silent. Section Two. Conflict of Interest Transactions. (A) No City Official or Employee shall engage in any business or transaction or have a financial or other monetary interest, direct or indirect, which is incompatible with the proper discharge of official duties or which would tend to impair the independence of his or her judgment or action in the performance of official duties, except consistent with the disclosure and abstention provisions set forth herein. Additionally, no City Official or Employee shall vote or otherwise participate in the negotiation or in the making of any contract with any business or entity in which he or she has a financial interest. (B) The City of Milton shall not enter into any contract involving services or property with a City Official or Employee or with a business entity in which the City Official or an Employee has an interest. Provided that the C disclosure and abstention provisions set forth herein are followed, this paragraph shall not apply to the following: (1) The designation of a bank or trust company as a depository for City funds; (2) The borrowing of funds from any bank or lending institution which offers competitive rates for such loans; (3) Contracts entered into with a business which employs a consultant, provided that the consultant's employment with the business is not incompatible with this Ordinance; (4) Contracts for services entered into with a business which is the only available source for such goods or services; and (5) Contracts entered into under circumstances that constitute an emergency situation, provided that a record explaining the emergency is prepared by the Council and submitted to the City Manager (or his/her equivalent) to be kept on file. Section Three. Financial Disclosures. Financial disclosures shall be governed by federal and state law as it may be amended from time to time, and this Ordinance shall not require any additional financial disclosure reports to be filed other than those required by federal and state law. Section Four. Zoning Application Disclosures. All disclosures with regard to zoning applications shall be governed in their entirety by the Conflict of Interest in Zoning Actions provisions contained in O.C.G.A. § 36-67A-1, et seg., as it may be amended from time to time. Section Five. Disclosures Related to Submission of Bids or Proposals for County Work or Contract. Persons submitting bids or proposals for City work who have contributed $250.00 or more to a City Official must disclose on their bid or proposal the name of the City Official(s) to whom the contribution was made and the amount contributed. Such a disclosure must also be made prior to a request for any change order or extension of any contract awarded to the person who submitted the successful bid or proposal. Section Six. Withholding of Information: Confidential Information. No City Official or Employee shall knowingly withhold any information that would impair the proper decision making of the Council or any of the City's boards, agencies, authorities, or departments. No City Official or Employee shall disclose confidential information concerning the property, government, or affairs of the governmental body by which engaged without proper legal authorization or use such information to advance the financial or other private interest of himself or herself or others. Section Seven. Incompatible Service. No City Official or Employee shall engage in or accept private or public employment or render service for any private or public entity, when such employment or service is incompatible with the proper discharge of his or her official duties or would tend to impair his or her independence of judgment or action in the performance of his or her official duties, unless otherwise permitted by law and unless public disclosure is made. Except as authorized by law, no member of the City Council shall hold any other elective office or other City employment during the term for which he or she is elected. Section Eight. Unauthorized Use of Public Property. No City Official or Employee shall request or permit the unauthorized use of City - owned facilities, vehicles and equipment, including but not limited to, computers, pagers, and cellular telephones for personal benefit, convenience or profit, except in accordance with policies promulgated by the City Council and except to the extent such are lawfully available to the public. Section Nine. Political Recrimination and Activit (A) No City Official or Employee, whether elected or appointed, shall either cause the dismissal or threaten the dismissal from any City position as a reward or punishment for any political activity. No City Official or Employee shall direct any person employed by the City to undertake political activity on behalf of such City Official or Employee, any other City Official or Employee, or any other individual, political party, group, or business organization, during such time that the Employee is required to conduct City business. This section does not prohibit incidental telephone calls, emails, letters, and other forms of communication made for the purpose of scheduling a City Official's daily City business. (B) City Officials and Employees of the City are encouraged to exercise their right to vote, but no City Official or Employee shall make use of government time or equipment to aid a political candidate, party, or cause. No Employee shall be hired, promoted, favored, or discriminated against with respect to employment because of his or her political opinions or affiliations. (1) Seeking elective office. An Employee seeking elective office within the City may, upon declaring candidacy, either resign or submit a request in writing to the City Manager (or his/her equivalent) for a i�& leave of absence without pay from the date of his or her announcement through the duration of the campaign or Q announcement of the election results. In the alternative, the Employee seeking elective office within the City may continue to work for the City, provided, however, that the Employee shall not engage in election activities during his or her City working hours or with use of City equipment. If elected to office, the Employee shall immediately, upon the date of election, be separated from employment with the City upon written request and approval of the City Manager (or his/her equivalent). (2) Political campaign involvement. An Employee or City Official (except for Elected Officials) may not be involved in any political activity in his or her official capacity that would constitute a conflict of interest, including active participation in any aspect of any political campaign for any office in City of Milton Government. Nothing in this paragraph shall be construed to limit any Elected Official from supporting any candidate in an election in his/her official capacity, provided that the Elected Official does not utilize City equipment, property, or funds in support of such candidate. (3) Solicitation of contributions. An Employee or City Official (except for Elected Officials) may not knowingly solicit, accept, or receive political contributions from any person, to be used in support of or opposition to any candidate for office in the City. Section Ten. Appearance Before City Entities. No City Official or Employee shall appear on behalf of any private person other "it than himself or herself, his or her spouse, or his or her minor children, before any City agency, commission, authority or board. However, a member of the City Council may appear before such groups on behalf of his constituents in the course of his duties as a representative of the electorate or in the performance of public or civic obligations, provided that such member of the City Council shall comply with all internal operating rules and regulations of the particular group and shall not interfere with or delay the activities of the group. Section Eleven. Timely Payment of Debts to the City and Fiscal Responsibility. All City Officials and Employees shall pay and settle, in a timely and prompt fashion, all accounts between them and the City of Milton, including the prompt payment of all taxes and shall otherwise demonstrate personal fiscal responsibility. Section Twelve. Solicitation or Acceptance of Gifts Q (A) City Officials and Employees shall not accept gifts, gratuities, or loans from organizations, business concerns, or individuals with whom he or she has official relationships based upon business of the City government or with whom the City Official or Employee has knowledge that the organization, business concern, or individual is interested, directly or indirectly in any manner whatsoever, in business dealings with the City. These limitations are not intended to prohibit the acceptance of articles of negligible value which are distributed generally, nor to prohibit employees from accepting social courtesies which promote good public relations, or to prohibit employees from obtaining loans from regular lending institutions. It is particularly important that inspectors, contracting officers, and enforcement officers guard against relationships which might be construed as evidence of favoritism, coercion, unfair advantage, or collusion. (B) Consistent with the provisions set forth in Articles Two and Three and Section 12(A) above, there shall be no violation of this Ordinance in the following circumstances: (1) Meals and beverages given in the usual course of entertaining associated with normal and customary business or social functions. (2) An occasional gift from a single source of $101.00 or less in any calendar year. (3) Ceremonial gifts or awards. (4) Gifts of advertising value only or promotional items generally distributed to public officials. (5) Awards presented in recognition of public service (6) Reasonable expenses of food, travel, lodging and scheduled entertainment for a meeting that is given in return for participation in a panel or speaking engagement at the meeting. (7) Gifts from relatives or members of the City Official or Employee's household. (8) Awards for professional achievement unrelated to City business. mil (9) Monetary fees or honorariums from a single source of $101.00 or less for any speaking engagement, participation in a seminar, Q discussion panel, or other activity which directly relates to the official duties of the City Official or Employee. (10) Courtesy tickets or free admission to educational seminars, educational or information conventions, or other similar events. Section Thirteen. Disclosure of Interest. Any member of the Council who has a financial or personal interest in any proposed legislation or action before the Council shall immediately disclose publicly the nature and extent of such interest. Any other City Official or Employee who has a financial or personal interest in any proposed legislation or action before the Council and who participates in discussion with or gives an official opinion or recommendation to the Council in connection with such proposed legislation or action shall immediately disclose publicly the nature and extent of such interest. Section Fourteen. Exemptions. This Ordinance shall not be construed to require the filing of any information relating to any person's connection with, or interest in, any professional society, labor union, or any charitable, religious, social, fraternal, educational, recreational, public service, civil or political organization, or any similar organization not conducted as a business enterprise or governmental agency, and which is not engaged in the ownership or conduct of a business enterprise or governmental agency. Section Fifteen. Abstention to Avoid Conflicts of Interest. (A) Except as otherwise provided by law, no City Official or Employee shall participate in the discussion, debate, deliberation, vote, or otherwise take part in the decision-making process on any item before him in which the City Official or Employee has a conflict of interest as set forth above. In addition, a City Official or Employee who serves as a corporate officer or member of the board of directors of a nonprofit entity may not participate in a vote or decision regarding funding by or through the City of the entity. Where the interest of a City Official or Employee in the subject matter of a vote or decision is a Remote Interest, the City Official or Employee may participate in the vote or decision and need not disclose the interest. (B) To avoid the appearance of impropriety, if any City Official or Employee has a conflict of interest or has an interest that he or she has reason to believe either violates this Ordinance or may affect his or her official acts or actions in any matter, the City Official or Employee shall immediately 12 leave the meeting room, except that if the matter is being considered at a public meeting, the City Official or Employee may remain in the meeting room. (C) In the event of a conflict of interest, the City Official or Employee shall announce his or her intent to abstain prior to the beginning of the discussion, debate, deliberation, or vote on the item, shall not participate in any way, and shall abstain from casting a vote. ARTICLE FIVE: THE BOARD OF ETHICS Section One. Composition of the Board of Ethics. There is created a Board of Ethics consisting of seven members. Each member of the Board of Ethics shall have been a resident of the City for at least one (1) year immediately preceding the date of taking office and shall remain a resident of the City while serving as a member of the Board of Ethics. Section Two. Qualifications of Members of the Board of Ethics. A person is eligible to be appointed as a member of the Board of Ethics if the person, while serving: (A) Resides in the City and is a registered voter; (B) Is not an Employee or City Official and has not been an Employee or City Official during the three (3) months immediately preceding his or her appointment, or be the spouse, parent, child, or sibling of an Employee or City Official; Section Three. Appointment Procedures. Deleted (C) . Does not hold any elected or full-time appointed office and is not a candidate for office of the The membership of the Board of Ethics shall be appointed as follows: United States, this State, or the city, and has not held any elected or full - i time appointed office during the three (A) Each Councilmember shall appoint one member who resides in his/her (3) months preceding his or her respective district; appointme"'.¶ (B) The Mayor shall appoint one member who resides in the City at large; and (C) The City Council and Mayor shall ratify the appointments so made at a public meeting. 13 .MW Irl Section Four. Terms of Service. (A) Board of Ethics members shall serve terms consistent with the term of the elected official who appointed them to the Board of Ethics. Upon the expiration of a term, the expiring member shall hold office until a successor is appointed and ratified as required in Section Three. (B) No person may serve more than two (2) consecutive terms as a Board of Ethics member. (C) All appointments following the expiration of the term and all appointments made in the cases of vacancies created during a particular term shall be made by the respective Councilmember or Mayor in the same manner as provided for in Section Three within forty-five (45) days of the creation of the vacancy. If the appointing Councilmember has not made an appointment to fill a vacancy within forty-five (45) days, the Mayor shall appoint an individual from that respective district to fill the vacancy. Section Five. Organization and Internal Operating Regulations. (A) The Board of Ethics shall elect a chairperson and vice chairperson to serve for a term of one year, or until a successor is elected. (B) Members of the Board of Ethics are volunteers and shall serve without compensation. (C) The City Council shall provide meeting space for the Board of Ethics. Subject to budgetary procedures and requirements of the City, the City shall provide the Board of Ethics with such supplies and equipment as may be reasonably necessary to perform its duties and responsibilities. The City Clerk shall serve as Recording Secretary to the Board of Ethics. (D) Subject to budgetary procedures and requirements of the City, the City Attorney shall be available to assist the Board of Ethics in carrying out its responsibilities or to act as a hearing administrator, whose duties shall be limited to conducting the hearing as directed by the Board of Ethics. In the event the City Attorney has a conflict of interest in acting as a hearing administrator on a particular case, the Board of Ethics may petition the City Council for appointment of counsel on a case-by-case basis. Any such appointed counsel shall be approved by the City Council, shall perform services at an approved hourly rate, and shall serve at the joint pleasure of the Board of Ethics and the City Council. (E) The Board of Ethics shall conduct at least one meeting per quarter, which shall be on the fourth (4th) Monday of January, April, July, and October, respectively. Additionally, as deemed necessary upon call of the 14 Deleted ¶ Chairperson or a majority of the Board of Ethics, the Board of Ethics may call a special hearing. All meetings of the Board of Ethics shall be conducted in public, shall be duly publicized, and shall be otherwise conducted in accordance with the Open Meetings requirements under state law. The dates and times of the meetings as set forth herein may be altered by a majority vote of the Board of Ethics. (F) Four members of the Board of Ethics shall constitute a quorum for the transaction of business. The Chairperson shall be entitled to the same voting rights as the other members of the Board of Ethics. Section Six. Removal of Members. The City Council may remove a member of the Board of Ethics on grounds of neglect of duty or misconduct in office. Before initiating the removal of a member from the Board of Ethics, the City Council shall give the member written notice of the reason for the intended action, and the member shall have the opportunity to reply. Thereafter, the City Council shall afford such member an opportunity for a hearing before the City Council. Section Seven. Resignation of Member If a member of the Board of Ethics decides to resign during his/her term, the member's resignation shall be submitted in writing to the City Clerk who shall forward the resignation to the City Council, Mayor, and other members of the Board of Ethics. A resignation shall be deemed effective upon submission to the City Clerk and cannot be revoked. Section Eight. Duties and Powers. The Board of Ethics shall have the following duties and powers: (A) To establish any procedures, rules, and regulations governing its internal organization and conduct of its affairs, provided that such procedures, rules, and regulations do not conflict with any provision contained herein. (B) To receive and hear complaints of violations of standards required by this Ordinance. (C) To take such action as provided in this Ordinance as deemed appropriate because of any violation of this Ordinance. (D) To perform any other function authorized by this Ordinance. (E) To issue advisory opinions as provided in this Ordinance. 15 (F) To make recommendations to the City Council and Mayor with respect to an educational program for Employees and City Officials subject to this Ordinance, new Board of Ethics members, and the public about their rights and duties hereunder. (G) To make recommendations to the City Council and Mayor for legislative or administrative actions regarding the City's policies and practices, which the Board believes could enhance the ethical environment in which public servants work. Section Nine. Custodian of Records. The City Clerk shall serve as legal custodian of the Board of Ethics' records, and accept, file, maintain, and administer, in accordance with all applicable laws, any information related to the purposes of this Ordinance. Section Ten. Limitation of Liability. No member of the Board of Ethics, or any person acting on behalf of the Board of Ethics, shall be liable to any person for any damages arising out of the enforcement or operation of this Ethics Ordinance, except in the case of willful or wanton misconduct. This limitation of liability shall apply to the City, the members of the Board of Ethics, the employees of the Board of Ethics, and any person acting under the direction of the Board of Ethics. Section Eleven. Advisory Opinion. The Board of Ethics shall render an advisory opinion based on a real or hypothetical set of circumstances when requested to do so in writing by a City Official or Employee related to that City Official's or Employee's conduct or transaction of business. Such advisory opinions shall be rendered pursuant only to a written request, fully setting forth the circumstances to be reviewed by the Board of Ethics. The proceedings of the Board of Ethics pursuant to this section shall be held in public, and the opinions of the Board of Ethics shall be made available to the public. Section Twelve. Complaints. The Board of Ethics shall be responsible for hearing and deciding any complaints filed regarding alleged violations of this Ordinance by any person. The following procedures shall be followed when filing a complaint: (A) Any person may file a complaint alleging a violation of any of the provisions of this Ordinance by submitting it to the City Clerk. 16 AW (B) The complaint must be submitted on the Ethics Complaint Form adopted by the Board of Ethics. The complaint must, at a minimum, identify the specific provisions of the Ordinance alleged to be violated, must be supported by affidavits based on personal knowledge, and must show affirmatively that the affiant is competent to testify to the matters stated therein. All documents referred to in an affidavit(s) should be attached to the affidavit(s). Every ethics complaint must be signed and notarized, and shall contain the following statement: "l have read the complaint and aver that the facts contained therein are true to the best of my knowledge and belief and / am aware that the Ethics Ordinance that created the Board of Ethics authorizes the Board to impose penalties against me for filing a frivolous complaint, including without limitation, dismissal of the complaint, payment of costs and attorney's fees associated with the handling, ,processing, and defense of the complaint, and/or all other penalties applicable under the law. " (C) A complaint must be filed within six (6) months of the date the alleged violation is said to have occurred, or in case of concealment or nondisclosure, within six (6) months of the date the alleged violation should have been discovered after due diligence. (D) Upon receipt of a complaint, the City Clerk shall immediately deliver the complaint to the Chair of the Board of Ethics or his/her designee for purposes of the Chair determining whether the complaint on its face satisfies the requirements of Section 12(B) and (C) above. The Chair must make such determination within five (5) business days of his/her receipt of the complaint. If the complaint does not meet the requirements set forth in Section 12(B) and (C) above, the Chair or his/her designee shall so notify the complainant in writing of the defect(s) via certified mail, return receipt requested; Thereafter, the complainant shall be afforded five (5) business days from receipt of the notification of defect to cure any defects that may be cured and re -submit the complaint. If a complaint is not re -submitted within the allotted time period, the Board of Ethics shall take no further action on the complaint. (E) Upon the determination by the Chair or his/her designee that the complaint meets the requirements of Section 12(B) and (C) above, the City Clerk shall immediately forward the complaint by pertified mail, return receipt requested to the City Official or Employee against whom the complaint was filed. The City Official or Employee against whom the complaint was filed shall respond to the complaint within thirty (30) days after receipt of the complaint, unless such time for response is extended by the Board of Ethics upon good cause shown. The response of the City Official or Employee must be supported by affidavits based on personal knowledge, must set forth such facts as would be admissible in evidence, 17 Deleted: and Formatted: No underline Formatted: No underline Deleted: registered and must show affirmatively that the affiant is competent to testify to the matters stated therein. All documents referred to in an affidavit(s) should be attached to the affidavit(s). The respondent shall verify the response by his or her signature thereon, which shall be notarized. ,(F) Within sixty (60) days of the determination by the Chair that the complaint meets the requirements of Section 12(B) and (C) above, unless such time is extended by the Board of Ethics upon good cause shown, the Board of Ethics shall convene a meeting to conduct an initial review to determine whether specific substantiated evidence from a credible source(s) exists to support a reasonable belief that there has been a violation of this Ordinance. (G) If after reviewing the complaint and response the Board of Ethics by vote determines that no specific, substantiated evidence from a credible source(s) exists to support a reasonable belief that there has been a violation of this Ordinance or determines that no violation occurred as a matter of applying the facts alleged and accepted as true to the terms of the Ordinance, the Board of Ethics may dismiss the complaint without further proceedings. In the event a complaint is dismissed pursuant to this Paragraph, the complaint may not be re -filed. (H) If the Board of Ethics determines that specific, substantiated evidence from a credible source(s) exists to support a reasonable belief that there has been a violation of this Ordinance, written notice of a hearing, containing the time, date, and place of such hearing, shall be sent to each party by the Board of Ethics by certified mail, return receipt requested, and a formal public hearing shall be conducted and both parties afforded an opportunity to be heard. (1) Any formal public hearing shall be conducted in accordance with the requirements of due process. The Board of Ethics is authorized to administer oaths and to issue subpoenas when requested to do so by the parties to the complaint. (J) Subpoenas. Any request for a subpoena made by a party to the Board of Ethics shall be made at least five (5) business days prior to the hearing date, and shall state the names and addresses for whom the subpoenas are to be issued and the date and time for the witnesses to appear. Any party requesting a subpoena shall also notify the opposing party in writing as to whom the subpoenas will be issued. A failure to provide such notification or to timely request a subpoena under this Paragraph may result in a waiver of the right to subpoena such witness M Deleted: " VERSION ONE "¶ 11 Deleted: certified Deleted: given Deleted: 11 " VERSION TWO"¶ T - (F) . Within sixty (60) days of a receipt of the determination by the Chair or his/her designee that the complaint meets the requirements of Section 12(B) and (C) above, the Chair shall then conduct a review of the complaint to determine whether specific substantiated evidence from a credible source(s) exists to support a reasonable belief that there has been a violation of this Ordinance.¶ (G) . If after reviewing the complaint, the Chair or his/her designee determines that no specific, substantiated evidence from a credible source(s) exists to support a reasonable belief that there has been a violation of this Ordinance or determines that no violation occurred as a matter of applying the facts alleged and accepted as true to the terms of the Ordinance, the Chair or his/her designee may dismiss the complaint without further proceedings. In the event a complaint is dismissed pursuant to this Paragraph, the complaint may not be re -filed.¶ 11 (H) . If the Chair or his/her designee determines that specific, substantiated evidence from a credible source(s) exists to support a reasonable belief that there has been a violation of this Ordinance, certified written notice of a hearing, containing the time, date, and place of such hearing, shall be given to each party by the Board of Ethics, and a formal public hearing shall be conducted and both parties afforded an opportunity to be heard.¶ I "'VERSION THREE"¶ 11 (F) . Within sixty (60) days of receipt of the determination by the Chair or his/her designee that the compl ... rll The Board of Ethics adopts O.C.G.A. § 45-20-9 (c), which specifies as follows: "Subpoenas shall be issued without discrimination between public and private parties. When a subpoena is disobeyed, any party may apply to the superior court of the county where the hearing is being held for an order requiring obedience. Failure to comply with such order shall be cause for punishment as for contempt of court. The costs of securing the attendance of witnesses, including fees and mileage, shall be computed and assessed in the same manner as prescribed by law in civil cases in the superior court. Once issued a subpoena may be quashed by the Board of Ethics or an administrative law judge if it appears that the subpoena was used primarily as a means of harassment, that the testimony or documents sought are cumulative, that the testimony or documents sought are not relevant, that the testimony or documents sought are not material, that to respond to the subpoena would be unduly burdensome, or that for other good reasons basic fairness dictates that the subpoena should not be enforced." Each party shall be individually responsible for the costs of securing the attendance of the subpoenaed witness, including the costs of fees and mileage as applicable, and shall be individually responsible for service of the subpoena. It is intended that O.C.G.A. § 24-10-24 shall apply to require twenty-five dollars ($25.00) per diem as a witness fee for any witnesses who are not City Employees. City Employees shall not be entitled to receive a witness fee during hours in which they are being paid by the City for performance of job duties. Additionally, if a witness resides outside the City, O.C.G.A. § 24-10-24 will apply to require the twenty-five dollars ($25.00) per diem witness fee and twenty cents ($.20) per mile for travel expenses as a condition for appearance. Consistent with O.C.G.A. § 24-10-24, any subpoenas issued on behalf of the City will not require payment of the above -states fees. If applicable, O.C.G.A. § 12-10-27 shall govern issuance of subpoenas to off-duty law enforcement officers. (K) Any final determination resulting from the hearing shall include written findings of fact and conclusions of law. The Board of Ethics shall determine if clear and convincing evidence shows any violation of this Ordinance. 19 Section Thirteen. Disciplinary Action. (A) Upon a determination that an Employee has violated this Ordinance, the Board of Ethics may recommend the following penalties and actions: (1) Written warning or reprimand; (2) Suspension without pay; (3) Termination of employment; and (4) Repayment to the City of any unjust enrichment. (B) Upon a determination that a City Official has violated this Ordinance, the Board of Ethics may recommend to the Mayor and City Council the following penalties and actions: (1) Written warning, censure, or reprimand; (2) Removal from office to the extent provided by Georgia law; and (3) Repayment to the City of any unjust enrichment. (C) In addition to any other remedy provided herein, upon determination of a violation of this Ordinance, the Board of Ethics may recommend to the City Council in writing that any contract, bid, or change order that was the subject of the violation should be cancelled or rescinded. The City Council, however, shall retain the discretion to determine whether such a cancellation or rescission would be in the best interest of the City and shall not be bound in any way by a recommendation of the Board of Ethics. (D) The Board of Ethics may also forward its findings of fact and conclusions of law to the Fulton County District Attorney's Office and/or the Office of the Governor for appropriate action. Section Fourteen. Judicial Review. (A) Any party against whom a decision of the Board of Ethics is rendered may obtain judicial review of the decision by writ of certiorari to the Superior Court of Fulton County. The application for the writ must be filed within thirty (30) days from the date of the written decision. Judicial review shall be based upon the record. No party shall be entitled to a de novo appeal. (B) Upon failure to timely request judicial review of the decision by writ of certiorari as provided in this section, the decision shall be binding and final upon all parties. 20 ....................... __—_... --- ..__......_.._. Deleted: $ _ . ___ .......... _... ............. --- -..J Section Fifteen. Ex Parte Communications. (A) After a complaint has been filed and during the pendency of a complaint before the Board of Ethics, no member of the Board of Ethics may communicate directly or indirectly with any party or other person about any issue of fact or laws regarding the complaint, except as follows: (1) The members of the Board of Ethics may obtain legal advice from the City Attorney and may discuss the complaint with any staff provided to the Board of Ethics by the City Council; and (2) The members of the Board of Ethics may discuss the complaint at a lawfully conducted meeting; and (3) If any person attempts to communicate with a Board of Ethics member regarding the pending complaint, the Board of Ethics member shall report the substance of the communication to the Board of Ethics on the public record at the next meeting or hearing of the Board of Ethics. (B) No Board of Ethics member shall undertake an independent investigation of any complaint or matter before the Board of Ethics. Section Sixteen. Confidentiality of Board of Ethics Information. No member of the Board of Ethics, nor any public servant who has access to any confidential information related to the functions or activities of the Board of Ethics, shall divulge that information to any person not authorized to have it. Section Seventeen. Wrongful Use of the Board of Ethics. The purpose of the Board of Ethics is to endeavor to maintain a high standard of ethical behavior by City Officials and Employees. This will be most effective when City Officials, Employees, and citizens work together to set and maintain high ethical standards. Complaints directed to the Board of Ethics must be based on fact and have the intent to improve the ethical climate of the City. Individuals directing unfounded, frivolous, false, or politically motivated complaints to the Board of Ethics may be subject to penalties including, but not limited to, dismissal of the complaint, public reprimand, criminal prosecution for perjury, and/or payment of costs and attorney's fees associated with the handling and processing of the Complaint. Other penalties may be imposed by the Board of Ethics for the wrongful use of the Ethics Ordinance. `AI Section Eiahteen. Wronqful Use of the Ethics Ordinance (A) A wrongful use of the Ethics Ordinance shall occur if and when a frivolous or false complaint is filed in a negligent, reckless, or purposeful manner without a basis in law or fact and for purpose other than reporting a violation of this Ordinance. A person has not filed a frivolous complaint if he/she reasonably believes that facts exist to support the claim and either reasonably believes that under those facts the complaint is valid under this Ordinance or acts upon the advice of counsel sought in good faith and given after full disclosure of all relevant facts within his/her knowledge and information. (B) In deciding if a complaint is a "Wrongful Use of the Code of Ethics," the Board of Ethics shall also consider the following, without limitation: (1) The timing of the complaint with respect to when the facts supporting the alleged violation became known or should have become known to the complainant, and with respect to the date of any pending election in which the respondent is a candidate or is involved with a candidacy, if any; (2) The nature and type of any publicity surrounding the filing of the complaint, and the degree of participation by the complainant in publicizing the fact that a complaint was filed with the Board of Ethics; (3) The existence and nature of any relationship between the respondent and the complainant before the complaint was filed; (4) If respondent is a candidate for election to office, the existence and nature of any relationship between the complainant and any candidate or group opposing the respondent. (5) Any evidence that the complainant knew or reasonably should have known that the allegations in the complaint were groundless; and (6) Any evidence of the complainant's motives in filing the complaint. ARTICLE SIX: MISCELLANEOUS Section One. Severability. If any provision of this Ordinance is found by a court of competent jurisdiction to be invalid or unconstitutional, or if the application of this Ordinance to any person or circumstances is found to be invalid or unconstitutional, such invalidity or 22 unconstitutionality shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid or unconstitutional provision or application. Section Two. Repealer. All Ordinances or parts of ordinances in conflict herewith are held repealed, including without limitation, the previously existing City of Milton Ethics Ordinance. Section Three. Effective Date. This Ordinance shall become effective immediately upon its passage by the Mayor and Council of the City of Milton. [SIGNATURES ON FOLLOWING PAGE] 23 Attest: This day of 2008. Milton City Clerk 24 MILTON CITY COUNCIL Mayor Joe Lockwood Councilwoman Karen Thurman Councilwoman Julie Zahner Bailey Councilman William C. Lusk Councilman Burt Hewitt Councilwoman Tina D'Aversa Councilman Alan Tart Page 18: [1] Deleted klamoureux 7/22/2008 11:56:00 AM ** VERSION TWO** (F) Within sixty (60) days of a receipt of the determination by the Chair or his/her designee that the complaint meets the requirements of Section 12(B) and (C) above, the Chair shall then conduct a review of the complaint to determine whether specific substantiated evidence from a credible source(s) exists to support a reasonable belief that there has been a violation of this Ordinance. (G) If after reviewing the complaint, the Chair or his/her designee determines that no specific, substantiated evidence from a credible source(s) exists to support a reasonable belief that there has been a violation of this Ordinance or determines that no violation occurred as a matter of applying the facts alleged and accepted as true to the terms of the Ordinance, the Chair or his/her designee may dismiss the complaint without further proceedings. In the event a complaint is dismissed pursuant to this Paragraph, the complaint may not be re -filed. (H) If the Chair or his/her designee determines that specific, substantiated evidence from a credible source(s) exists to support a reasonable belief that there has been a violation of this Ordinance, certified written notice of a hearing, containing the time, date, and place of such hearing, shall be given to each party by the Board of Ethics, and a formal public hearing shall be conducted and both parties afforded an opportunity to be heard. **VERSION THREE** (F) Within sixty (60) days of receipt of the determination by the Chair or his/her designee that the complaint meets the requirements of Section 12(B) and (C) above, certified written notice of a hearing, containing the time, date, and place of such hearing, shall be given to each party by the Board of Ethics, and a formal public hearing shall be conducted and both parties afforded an opportunity to be heard.