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HomeMy WebLinkAboutMinutes CC - 12/06/2007 - MINS 12 06 07 REG (Migrated from Optiview)Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 1 of 64 UNAPPROVED/DRAFT Disclaimer for minutes: This summary is provided as a convenience and service to the public, media, and staff. It is not the intent to transcribe proceedings verbatim. Any reproduction of this summary must include this notice. Public comments are noted and heard by Council, but not quoted. This document included limited presentation by Council and invited speakers in summary form. Official Meetings are recorded and available for review. The Regular Council meeting of the Mayor and Council of the City of Milton was held on December 6, 2007 at 7:00 PM, Mayor Joe Lockwood presiding. INVOCATION - Led by Officer Russ Woody with the Alpharetta Police Department. CALL TO ORDER Mayor Joe Lockwood called the regular meeting to order. ROLL CALL City Clerk Marchiafava called the roll. Councilmembers Present: Councilmembers Zahner Bailey, Councilmember Bill Lusk, Councilmember Tina D’Aversa and Councilmember Rick Mohrig were present. Councilmember Karen Thurman and Councilmember Neal O’Brien were not present at the time of roll call. PLEDGE OF ALLEGIANCE Mayor Lockwood led the Pledge of Allegiance. APPROVAL OF MEETING AGENDA City Clerk Marchiafava stated that staff would like to add an Executive Session to discuss pending litigation. Councilmember Mohrig requested that Agenda No. 07-444, A Resolution regarding reimbursement of legal fees for Councilmembers charged with ethics violations determined to be unfounded, be deferred that until next week’s meeting. Motion and Vote: Councilmember D’Aversa moved to approve the Meeting Agenda, as amended. Councilmember Mohrig seconded the motion. There was no Council discussion. The motion passed unanimously PUBLIC COMMENT City Clerk Jeanette Marchiafava stated there was no public comment. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 2 of 64 UNAPPROVED/DRAFT REPORTS AND PRESENTATIONS Presentation by the Muscular Dystrophy Association awarding the City of Milton Public Safety Department with the “Rookie of the Year” award for most money raised by a new department and the “Screaming Siren” award for must money raised in the metro area for 2007. Milton Firefighters raised more than $37,930 in their six day boot drive. Chris Lagerbloom, Interim City Manager, stated that this was really a good process that the Fire Department went through. They performed outstandingly and this is also a signal that the citizens of Milton are very generous with their firefighters feat out there. They finally know for certain that the Milton Fire Department raised more money than any agency in the metro Atlanta area as they were provided with two awards last week from Metropolitan Atlanta Fire Rescue Association at their meeting with the MDA. He asked Lt. Chris Coker, who spearheaded the program, to come to the podium and say just a couple of words and show the two trophies they received: the Screaming Siren Award, which is for the money raised in the Atlanta area, and the Rookie of the Year award. Lt. Coker stated that he would like to thank all of the guys for the efforts in standing out in the street collecting that money. Coker also thanked the citizens for being so generous to them. Mayor Lockwood added that he not only wanted to thank the firemen, but also the citizens of Milton because it was obviously a joint effort. INTRODUCTION OF POLICE OFFICER KIEL AND K-9 OFFICER DASILVA AKA “SILVA”. Charles Millican, Deputy Director of Public Safety, stated that there are a lot of milestones that they have accomplished since they formed and this is one of yet many. This is very significant. He has the distinct pleasure of being here this evening because of the support of the citizens, this body, and public safety staff. He officially presented the City’s first K-9 unit. Police Officer Kiel thanked everyone for the money that was donated by the City and individuals and he also thanked everyone for the training they have had. They have already had the chance to do a few call- outs, and also had a chance to work with the District Attorney. Silva has already paid for himself and has already been a great asset to the City. He will continue to serve into the future for 10 or 12 years. Deputy Director Millican stated they would like to provide the Council with a mock scenario. On the screen he will show a brief, mock scenario of their K-9 unit at work. Mayor Lockwood thanked Officer Kiel and K-9 Officer DaSilva and added his thanks to the Council and the citizens. He stated that there are also some key citizens or one individual in particular, Mr. Eddie Moore, who is not present this evening, but was very instrumental in raising the money. This dog was donated to the City of Milton. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 3 of 64 UNAPPROVED/DRAFT CONSENT AGENDA 1. Approval of the November 8, 2007 Work Session minutes. 2. Approval of the November 8, 2007 Special Called Meeting Minutes. Motion and Vote: Councilmember Lusk moved to approve the Consent Agenda. Councilmember Mohrig seconded the motion. The motion passed unanimously. ZONING AGENDA City Clerk Jeanette Marchiafava stated that she would also like to note at this time that the items under First Presentation that are on the agenda for first reading, they will only be read tonight. There is a public hearing on these items scheduled for this coming Thursday, December 13th at 7 p.m. There will not be any discussion or public hearing on those items. Zoning Rules At the second regularly scheduled meeting this item was deferred from November 15, 2007 and therefore the Council is hearing this evening. The Mayor and City Council considered a zoning agenda. Theses items included rezoning petitions, modifications of zoning use, permits and associated concurrent variances in addition to ordinances, resolutions and text amendments. The petition will be heard in the sequence listed on the posted agenda. I would like to acquaint you with some of the rules and procedures for this meeting. The applicant, and all those speaking in support of an application, will be allowed a total of ten (10) minutes to present the petition. The applicant may choose to save some of the time for rebuttal following the presentation by the opposition. The opposition will be allowed a total of ten (10) minutes to present its position. If time remains, the opposition will be allowed to rebut. Since the burden of proof is upon the applicant, the applicant will be allowed to make closing remarks, provided time remains with the allotted time. The City Clerk’s staff will be keeping track of time and will inform you periodically of the remaining time for your presentation. Those called to speak will be taken in the order that the speaker cards were received by the City Clerk’s staff prior to the beginning of tonight’s meeting. All speakers will identify themselves by name, address and organization, if applicable, before beginning their presentation. The Planning Commission heard the rezoning agenda items and recommendations have been forwarded to the Mayor and City Council for consideration and disposition. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 4 of 64 UNAPPROVED/DRAFT In addition, the applicant shall not submit material to the Council during the meeting, unless requested to do so. All material that you wish to be reviewed by the Council in consideration of your application should be submitted to the staff of the Department of Community Development, to be included in the normal distribution of packages to the Council. When an opponent of a rezoning action has made, within two years immediately preceding the filing of the rezoning action being opposed, campaign contributions aggregating $250.00 or more to a local government official of the local government which will consider the application, it shall be the duty of the opponent to file a disclosure with the governing authority of the respective local government at least five days prior to the Planning Commission meeting. A violation of the relevant state statute constitutes a misdemeanor. Therefore, if you have contributed $250 or more to a Councilmember and you have not filed a disclosure prior to the Planning Commission meeting, the City Attorney strongly suggests that you have someone else speak for your point of view. City Clerk Jeanette Marchiafava read Agenda Item No. 07-413. RZ07-007/VC07-005 and stated that this application is to rezone from A (Medium Density Apartments) & C-1 (Community Business) to C-1 (Community Business) to develop 141,511 square feet of retail, commercial, service, office, and accessory uses including fast food restaurants limited to bagel, bakery, coffee houses and ice cream parlors which shall not be freestanding and a gas station at a density of 8,805.43 square feet per acre. The applicant is also requesting a three-part concurrent variance: 1. To reduce the required buffer along the east property line from 100 feet to 25 feet and the 10- foot improvement setback. 2. To delete the 10-foot landscape strip along the south property line. 3. To allow a loading area within the front yard. Community Development Deputy Director Tuller stated that he would like to introduce Robyn MacDonald, who will actually present the case before the Mayor and City Council this evening. Senior Planner Robyn MacDonald stated that the clerk has sounded that this was an item that was held over from the November 15, 2007 meeting of the Mayor and City Council. After many meetings and discussions with the applicant, she would make the staff’s recommendation and then go through some of the conditions that are changed from the packet that was just distributed that she believes the Council received via email yesterday or the day before. For RZ07-007 staff recommends approval conditional. For VC07-005 part I to reduce the required buffer along the east property line from 100 feet to 25 feet the staff is recommending withdrawal. For part II of the variance, to delete the 10 foot landscape strip along the south property line the staff is recommending withdrawal. For part III of VC07-005 the staff is recommending approval to allow a loading area within the front yard. She asked the Council to turn over to the conditions starting on page 20 of the staff report. She wanted to make a couple of additions or changes. Within condition 1, she would like to add height for what would become 1b. It would read “Restrict the height to 30 feet from average grade with an additional five feet for a parapet.” On condition 3f, strike out the word delete and replace it with reduce. The condition would read “Reduce the required 10-foot landscape strip along the south property line to the extent necessary to allow Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 5 of 64 UNAPPROVED/DRAFT inter-parcel access and sidewalk connections from the adjacent property to the south.” Also strike out VC07-005 part II since they are recommending withdrawal. She stated that she believes that is all of the changes that staff has at this point in time. She distributed a private agreement and stated that staff is recommending the approval with these conditioned on the approval that these conditions be met for the Phase I, which is talked about in the private agreement that is before the Council. Mayor Lockwood asked if the applicant had a copy of this letter. Senior Planner Robyn MacDonald stated that she handed him the private agreement. Mayor Lockwood stated that at this time he would like to hear from the applicant and all of those speaking in favor of this application for a rezoning request. Attorney Pete Hendricks, 1268 Lake Forest Drive, Sandy Springs, Georgia, stated that he wanted to start out by saying that he was provided a copy of the private agreement about 10 minutes ago and there is no way…he can begin to enter into this. This in effect would be down zoning of their Phase I property. There are conditions of zoning in it that are applicable to their Phase II application. What he agreed that they would do would be to submit the letter where they would agree to putting the four board fence equestrian look and feel fence along the frontage of Webb Road and SR 9. And if they can document…if they can put a patterned sidewalk up along the Phase I property, those are the two issues that they have spoken and those are the few issues that they said they would be willing to put a letter in the file confirming that that they have taken the cost and expense of that. But they can’t begin to enter into this document. He stated that he would like to thank the City for the time and effort that has been applied on trying to get with them subsequent to the deferral last go-around. He thinks it is a set of conditions that are in front of the Council that are a lot closer than what they were trying to cobble together in the back room when the matter was being deferred last time. Brian Snelling is present to walk the Council through with specific City as to several issues that they have concerns about and feel that they need relief from. The preponderance of the conditions as formulated by the City staff and put in front of the Council by and large, are conditions that the he feels they are comfortable with. Brian Snelling, 1450 South Johnson Ferry Road, Atlanta, GA 30319, stated that to follow up on Hendricks’s comments earlier, the did have a meeting internally this morning and he would like to echo Mr. Hendricks’s sentiments that they do appreciate all of the effort everyone has made, staff and everyone, for the last couple of weeks trying to get to some resolution here. A couple of the items that they met with internally this morning and discussed were in here that he would like to bring up for discussion from the last round of recommended conditions that he has seen. These have to do with items 1b, the drive-through lanes for the proposed bank now that they have completely taken off the table the possibility of a gas station. He would hate to further restrict a drive-through lane to limit his possibilities of attracting some comparable banks to the area. He would like to request three teller lanes and an ATM pass through lane to be approved there. Item 4a concerns dedicating at no cost to Milton, prior approval of the land disturbance permit. This has to do with the right-of-way that they are going to have to dedicate along Deerfield Parkway to get in their decel lane for that driveway. He would like to have that lane hold up the LDP because they are trying to fast track that as he stated in his comments last time. He Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 6 of 64 UNAPPROVED/DRAFT does not mind it holding up CO but sometimes working with attorneys and others to try to get the legal documents drafted and recorded at Fulton County and back up here takes some time. He stated that he would like to bring up the stamping of the sidewalk back into play. He has had several discussions with staff and others. There are a lot of items in here that have been asked about along the way and they have kind of approved and agreed to do those and the list kept going at some point. He would prefer not doing the stamping on the sidewalk and tear that down. He has agreed to the four board fence and will be glad to agree to take that down into Phase I. Another item that he mentioned is item 7 in that list. It is the decorative mast arms for the Deerfield Park installation. This was discussed internally and his biggest concern is these are the decorative fluted mast arms. He received the spec sheet on Tuesday or Wednesday of this week. He has had conversations with his signal guy that has actually done the signals on Phase I. There is significant cost difference between just the standard mast arm and the decorative mast arm. The fact that all of the other intersections in the area, Webb and Deerfield, Windward and Cogburn, all along Windward Parkway, they all have the standard mast arms. Phase I has a standard mast arm and this would be the only one. He thinks it would look odd in Milton as being the only one that is different but they can talk about that. He has spoken with their traffic engineers and their designs to get their thoughts on the future widening of SR 9. They said that they can’t know for sure but with the widening that is proposed, whenever it does take place, there is the possibility that all of those mast arms would have to come down and they would have to go to span wire because of the width of the widening. Sometimes mast arms just can’t span that far. It all has to do with how GDOT designs that highway at the time. If there are bike lanes, auxiliary lanes, decel lanes, divided lanes or two drive through lanes depending on the median width and they do that across a four plus wide highway, there is a possibility that a mast arm simply cannot span that far side of almost eight feet. To have those in the City they could, all of sudden in 5-10 years have to take them down at some time. From what he is hearing, the maintenance on those is more expensive also but that would be another cost incurred by the City for ongoing maintenance. In Article 4a, 9e this has to do with the proposed bus shelters on Deerfield Parkway. In the future, if MARTA ever does design a route around the shopping center he would like for that to say that developer/owner shall install solid bus shelter on Deerfield Parkway property frontage within the right-of- way. He wants to make it clear that the bus shelter will stay in the right-of-way and not be on private property. The last item is item 5b. This has to do with the detention facility and the fence around the detention facility. He stated that he has had some discussions with others and this should not be visible. Personally, he does not understand the need to make it decorative. If they do end up making it decorative, the four- board equestrian style, non-climbable wire is kind of an open ended definition. He stated that he had been on the phone today with about three different fence contractors. The standard, and he actually has some pictures in the PowerPoint presentation, is called 2x4 welded wire. He would like to definitely like to define that as 2x4 welded wire so that he knows what he is going to with. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 7 of 64 UNAPPROVED/DRAFT He stated that those are the conditions that they have. He would say that in reference to Pete Hendricks’s comments on the prior agreement that he is not authorized to sign this anyway. He would have to get it back in front of their president. But it would definitely have to do with the fence and if the sidewalk stamping does come back into play, it would have to do with that. The other items they cannot agree to carry out to Phase I. He stated that he would like to say that he does appreciate all of the effort that everyone has given. He feels like he has put the Council through many rounds here and he is looking forward to discussing this tonight and getting approval and moving forward with building a shopping center that everyone in Milton can be proud of. As far as some of their presentations, if anyone wants to discuss it, he did bring his architect with the 3-D model that he showed last time. And he also has some slides on PowerPoint of the color site plans, some examples of that fencing that they talked about and some examples of some other things that he would be happy to share with the Council. He stated that he would like to reserve the remainder of his time for rebuttal. Mayor Lockwood called for comments from those who are in favor of or in opposition to the application. City Clerk Marchiafava stated that if the applicant wishes to reserve the remainder of his time, she has two comment cards from Robert Kirkland and Adam Orkin, but the applicant is requesting to reserve the time. She inquired if they should move to the opposition? Mayor Lockwood asked if there was anyone who would like to speak in opposition to the application. City Clerk Marchiafava asked Sara Allen if she wished to make comments. Sara Allen stated that she did not at this time. Mayor Lockwood asked for Council discussion. City Clerk Marchiafava asked if they wanted to have the applicant complete his time prior to the discussion. Mayor Lockwood stated that they could let him proceed with his presentation and then they can discuss it. It would be up to the applicant if he wants to. Attorney Pete Hendricks, the applicant, stated that just to go back with clarity on the private agreement that the Council was handed, one needs to understand…if he looks at it and reads it what it is doing is effectively down zoning or changing uses on this piece of property for really a rezoning that has not been advertised. It has not gone through any level of review by staff or Planning Commission. He thinks this is the first time it has been served up to the Council. The two items that they have been chatted to about is their willingness to continue the fence along SR 9 and along Webb. And, if what comes out of this is a requirement/agreement to do the stamped sidewalk that that will be carried forward along SR 9 and Webb. Those are the two items where there has been internal discussion with Sembler and there has been an Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 8 of 64 UNAPPROVED/DRAFT agreement that they will submit a letter to the file to go into both this file as well as the Phase I file confirming those financial undertakings. Mayor Lockwood stated that the he thinks the staff was anticipating a letter coming from Sembler. As of late this evening, it had not been sent. That is where that letter was generated from the staff. He asked if the applicant has a letter to submit to the Council as a letter of agreement. Attorney Pete Hendricks stated that they can submit a letter to the file and they will see what comes out. He would hope that there would be a general discussion generated over the stamped sidewalk thing. They have agreed to the fence, that is not an issue. Councilmember Zahner Bailey stated that she did not know if Mr. Hendricks had come forward this evening with a letter of agreement as they had anticipated. Pete Hendricks stated that what he has said he would do…what comes out of this is they will submit a letter to the file to go into this zoning file and also the Phase I file confirming those financial commitments. Mayor Lockwood stated that he was sure that they could get some kind of financial commitment on the record when it was decided upon. He asked the City attorney if they could get how they could get a ruling on that once something is decided upon. City Attorney Scott said there would be an approval contingent on the order being submitted. City Clerk Marchiafava stated that completes public comments. The public hearing is now closed. Mayor Lockwood asked for any Council discussion. Hearing none he called for a motion and a second. Councilmember Zahner Bailey asked Mark Scott as a point of clarification if it were better for the Council to have their discussion now or to have a motion and a second and then have further discussion. City Attorney Scott stated that he would say a motion and a second and then further discussion. Motion and Second: Councilmember Mohrig made a motion based on staff recommendations to open up for discussion. Councilmember Lusk seconded the motion. Councilmember D’Aversa said as a recommendation that the Council asks the applicant to agree to the letter of agreement that would extend the conditions of zoning from Phase I to Phase II for obvious reasons. She is sure the applicant and the entire community would like to see the consistency across both Phases. It is unfortunate that the two Phases have been separated in this whole process. What she would like to see is the patterned sidewalk to the faux brick pavers extend from Phase II, be a condition of zoning for Phase II extend through the letter of agreement from the applicant to the City through Phase I. The four board equestrian fence shall be extended as a condition of zoning in Phase II through the letter of agreement into Phase I. She stated she would also like to see the decorative mast arms be applied to both the intersections that are in Phase II as a condition of zoning as well as to the private letter, into Phase I at Deerfield and Webb Road. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 9 of 64 UNAPPROVED/DRAFT Public Works Director Dan Drake stated that the two intersections in Phase I are Windward Village Parkway at SR 9 and Webb at SR 9. That is for consistency. Councilmember D’Aversa said that while she understands that there are not decorative mast arms consistently throughout SR 9, there is evidence of decorative mast arms and that it is the City of Milton’s intention to have decorative mast arms throughout the City. She thinks they can work towards doing something that would be continued viable even with the widening of the road. She is certainly open to that from her perspective but she would like to see them be consistent throughout the City and consistent with what they have over in the interior of the City off of Freemanville and in the Crabapple area. For consistency sake as well as from a perspective of the City of Milton and from the areas within the City of Milton there are no mast arms. The only mast arms are mast arms that were put in by Fulton County recently on Cogburn Road and west and up on Bethany and west. They are working as a City now to try to rectify the fact that they are not decorative mast arms through painting those and putting skirting, etc. Things that they can do to the extent that this was done prior to Milton becoming a City. The other mast arms that are adjacent to the City or are closely adjacent to the City are at Windward Parkway and SR 9 where the Wal-mart/Eckerds cross section is. Those have been there for a while and those are primarily in Alpharetta adjacent to the City of Milton. So their intent and what they have heard verbalized from their citizens is that they would have decorative mast arms including SR 9, since it is a part of the City as well as throughout the rest of the City. The applicant already has as a condition of the zoning the three drive-throughs for the banks that would be extended. The Council hopes to have that be consistent from Phase II to Phase I as well. That is something that staff is recommending. The 30-foot is already included in there. She believes everything else is included that she had concerns with that were not able to be a condition of zoning and they would like to see in the applicant’s letter to Council. Based on that letter then…. Councilmember Zahner Bailey stated that it has been her understanding that the applicant was prepared to, in a letter of agreement, was prepared to discuss restricting certain uses or defining allowable uses in Phase I as well as some prohibited uses. She sees him now nodding his head. As a Council and Mayor discussion she is now letting it be known that it is her understanding that as part of the letter of agreement that some of the discussions had indicated that there would be some definition of uses. As a matter of this evening, if that is not going to be something that they pursue she would then need to see the allowable uses and prohibited uses that are part of the approved Phase I before she could agree to a final letter of agreement. She does not know if the applicant has those defined uses as prohibited use of that land and again nobody is intending to down zone at all but it is to appropriately define the uses. Because it has been a part of Phase II there have been some discussions about what could be extended to Phase I under a letter of agreement. She would just ask if either the staff has a copy of those allowable uses and prohibited uses that were approved as part of Phase I and if not the staff, if the applicant has that information it would be very helpful. Attorney Pete Hendricks stated that they could provide that. It will take a couple of minutes to… Councilmember Zahner Bailey stated that would be very helpful. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 10 of 64 UNAPPROVED/DRAFT Mayor Lockwood stated that he would be glad to look at them but it was his interpretation that these conditions were for Phase II. Phase I was already approved as far as the actual uses and all of that. Councilmember Zahner Bailey stated that in their review session as a matter of this executive discussion, their review session had indicated that there were uses that had been discussed that would be part of the letter of agreement which the Council had anticipated. Obviously, through the course of this week they haven’t received. In addition to items 1a, b and c to defined as uses, she would add that they would want to and would be happy to add the condition that Brian Snelling had mentioned to add to 9e the 2x4 welded wires. She is assuming that that is similar to what one sees at the crossroads whereby that is the interior of those side rail trusses. She thinks that if they add that clarification that would just be healthy additional detail. Councilmember Zahner Bailey stated she had one question of the applicant. In terms of the parapet she believes that at their last meeting it was mentioned that the parapet is going to be two feet. She asked if he could clarify on that one issue what the height of the parapet was. Attorney Pete Hendricks asked which parapet she was talking about. Councilmember Zahner Bailey stated that it was the one on the 87,000 square foot building. Attorney Pete Hendricks stated that he believes they said that on that particular design the tallest point was 30’8” or something like that. Councilmember Zahner Bailey stated that she thought it was less than an extra foot. Attorney Pete Hendricks stated that he remembered that and they did not discuss any overall height restrictions. Councilmember Zahner Bailey stated that she was asking about the parapet. Brian Snelling stated that he had a few questions about some of the conditions that were read in Robyn MacDonald’s presentation. Is it recommending the withdrawal of the variance request for the deletion of the 10-foot landscape strip? He stated that he believes it was. That was a withdrawal of the variance that would allow one to use to have inter-parcel access and put the sidewalks in and put the drives through there. However it comes to it, the applicant wants to make sure that it is clear that there is no way he could plant a 10-foot landscape strip in all of the places except for just those three driveways. If the Council looks at their site plan that was submitted, the one proposed building is up against Phase I line and there is a sidewalk and a building. So there is no landscape strip to be planted. Behind that is the enclosed pond and there will be landscaping there. If one looks at the inter-parcel access, which the applicant pointed out…if one looks at the Zone 4 site plan, which is a part of this package, he will see running parallel with that save line. The Phase line runs right up the sidewalk and right up beside the building. He can’t plant landscaping to the standards of a landscape strip. There will be grass on this island; there will be trees in every one of the parking lot islands. He will plant as much as he can in that area but he wants to be careful that he does not box himself in because obviously he can’t plant in that building right there and he can’t lose that building just to plant 10 feet of trees either. He can pull up the actual site plan that will show the Council Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 11 of 64 UNAPPROVED/DRAFT exactly where that save line is. He thinks it is the package. He wants to be careful that…he is willing to work with the Council and he thinks they have a very extensive landscape planting plan for the overall site. He believes it will be close to $1 million of landscaping on this property. He challenged the Council to find another piece of property this size that has that much. But he cannot live with that condition if it meant that it had to lose that building on Phase II. Mayor Lockwood stated that Tom Wilson was not present but maybe Robyn MacDonald could help them clarify that or tell them the variance. Senior Planner Robyn MacDonald stated that they have a condition that would basically on 3f would reduce the required 10-foot landscape strip or just basically being providing it along the south property line. She would reduce it in the sense of not the 10-foot but as far as allowing the other items that would normally be allowed in the landscape strip like inter-parcel access for vehicles and for pedestrians. That would be allowed anyway for a landscape strip. That is the reason for staff’s recommendation of withdrawal of that part. Mayor Lockwood stated that Mr. Brian Snelling was saying that part of the line was between the buildings there. He wondered if that would have some effect there. Senior Planner Robyn MacDonald stated that it does appear that within the two buildings right there where it is not in the parking lot main area it would appear that there would be need for a landscape strip between those parking bays, which they probably couldn’t set one. Brian Snelling stated that the Phase line is along the building. There is the proposed sidewalk along the building and the drive aisles to get behind the Phase I buildings to get to the loading. They would have the parking lot islands. As one can see they have the parking lot islands adjacent to the property line on Phase I. And then they have the parking lot island adjacent to the property line on Phase II. This landscape island is a wide island. There is a sidewalk running through it that would connect the buildings in the back with the buildings in the front and eventually to the street. It will all be planted with sod, shrubs and other things. The majority of it between there to be planted, there is green space one can see near building 900. What he has to be careful of and in the back actually he pointed out the drive aisle going to the back of this building and there is the pond and then 20+ feet of landscaping. He has got to be careful that he preserves the integrity of that proposed building design there. He is comfortable with re-wording it somehow if the withdrawal is recommended. He just has to be careful. Maybe it is tied to a similar site plan as this or something. He just wants to be real careful on his part that he doesn’t prohibit and then not be able to build that building. Mayor Lockwood stated that if that is the case and the applicant is not willing to do that they need to re- word that. Councilmember Zahner Bailey made a suggestion that she believes the intent in reducing it versus deleting it is the intent was to allow for inter-parcel connectivity and to still maintain some of that landscape strip. If they needed to say, and again this gives the staff the opportunity to work with the applicant subsequent to whatever approval or not, is approved this evening. But she believes that the intent was to allow flexibility of the applicant to not delete that landscape strip in its entirety. It would seem that if she recalls correctly that at one point, Tom Wilson, who is not here this evening, had talked about reducing the parking instead 4.65 per thousand through the consideration of four. It would seem that there may be Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 12 of 64 UNAPPROVED/DRAFT even some latitude even if it was one or two parking spots, in order to add a little bit more “green” because it is not really a green space. But the intent was not to restrict the applicant; it was simply to reduce that. She thinks they hear the applicant and they will consider that as they consider…. Mayor Lockwood stated that he just needed to clarify what that is saying. It would require landscaping along the south property line substantially in keeping with the landscaping on the site plan. Councilmember Zahner Bailey stated that she would not want to tie it to this site. She thinks they can discuss that and she thinks in spirit they are there. Mayor Lockwood stated that they should clarify that that is not saying that they need the buffer in between the buildings there. Councilmember Zahner Bailey stated that she would insert the consideration of staff if they would want to say instead, “reduce the required 10-foot landscape strip along the south property line to the extent necessary to allow inter-parcel access, the sidewalk connection and the building as shown”, but she wouldn’t want to indicate exactly the site plan for that 10 feet of space to be allowable where it would need to be. They might need to still look at it. But she thinks, again, that the intent is that they give the staff the opportunity to work with the applicant. But she would want to insert language somehow that talks about allowing inter-parcel access as well as those two buildings as reflected. Mayor Lockwood asked if there were any other issues or comments. If not he wanted to ask the City attorney for a Point of Order. Councilmember D’Aversa stated that she had a question for City Attorney Mark Scott. With the conditions of the zoning for Phase I, does that still allow for a gas station on Phase I? City Attorney Scott stated that he was not familiar with the conditions. Councilmember D’Aversa stated that obviously their intent would be to try to have the same types of conditions across both but specifically she knows that there has been a lot of communications about gas stations. City Attorney Scott stated that looking specifically at paragraph 1a; he could not say that that restricts gas stations. Councilmember Zahner Bailey extended her question to say that it also restricts billboards? City Attorney Scott stated that it does not. Councilmember Zahner Bailey inquired if it restricted adult book stores? City Attorney Scott stated that it does not. Councilmember Zahner Bailey asked if it restricts convenience stores. She believes it allows the retail/office and it has no restrictions at all. She would ask that this Council give serious consideration to some discussion, whether that can be achieved this evening or not, she is not sure. But as she understands it Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 13 of 64 UNAPPROVED/DRAFT if they don’t have a letter of agreement, that right now if they proceed without a letter of agreement with no discussion of uses, either allowable uses defined or some specific prohibited uses, Phase I of this 450,000 square feet could allow for things that this Council and the citizenry fully expected not to be allowed in Phase I and Phase II. Mayor Lockwood stated that also maybe with Target in Phase I, they also have some restrictions to be put on. Councilmember D’Aversa asked if there was anything the applicant had to share with the Council. City Attorney Scott stated that they are a matter of public order. The operation they have with the Target is recorded at Fulton County. Would the applicant be willing to make that a part of his letter of agreement with them for Phase II, would he be willing to have those conditions agreed to within their letter of agreement with the City as well? Brian Snelling stated that he will go back and they can pull certain sections out of their OEA, which is their agreement with Target. He wants to be careful not to open up rezoning of Phase I as that is not an option. They have their own restrictions and it is a Target shopping center. It is not going to have an adult bookstore, Sembler doesn’t build adult bookstores. It is something where they need to come to a level of trust. He totally understands where the Council is coming from but again, he will be willing to share with the Council the…the OEA is a matter of public record. He can add it. The agreement, speaking of this letter of agreement, that was somehow going to be presented just for the file, is in his mind and in all of his discussions, he was thinking the fence and the sidewalk, if they got it here, he would more than likely take it through Phase I because they want their own shopping center to look contiguous. He can agree to the mast arms, those have already been ordered and are actually on their way. They can go back and the he will be happy to present that after the fact. He does not want that to hold up any approvals here tonight. There will be no adult bookstores, adult stores, or any other use that was mentioned awhile ago that was along those lines. Right now, the way they have their Phase I designed and most of the leasing they have already taken care of on that there is not a gas station. They don’t have a building laid out that would apply to the gas station so that is not an issue on that piece. Councilmember Zahner Bailey stated that even if they need to take a few minutes, maybe it would be the pleasure of this Council, they would be happy to do that. Instead of talking about what is not in Phase I, if the applicant could take a few minutes and look at those things that are a part of the conditions of 1a, b and c and identify those things that already he has noted would be a prohibited use based on the agreement that he already has in place with Target and the agreement…and that way they are not having dialogue back and forth. She thinks public comment is now closed, but if the applicant could think about those things that they would automatically be prepared to discuss that would be helpful. Her second question would be if the applicant has a copy of what that was just mentioned that is filed in Fulton County that would give the Council the language that are part of those conditions in Phase l. Brian Snelling stated that he does not have it here. Mayor Lockwood stated that he thinks this deals with two separate Phases. Phase I has already been done. It was approved before Fulton County and they are very willing to work with the Council on Phase II and they are also willing to work with them to take the improvements that they have on Phase II in taking those Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 14 of 64 UNAPPROVED/DRAFT to Phase I. He thinks that when one looks at the quality of this development and the company and the tenants that they have, and he is sure that Target restricts the adult bookstores and those uses that none of them want to see in there and he is sure the applicant doesn’t want to either. He just does not know that they are getting to the point where they can go back and change everything in Phase I. He thinks the applicant is willing to give them some extras from Phase II to transfer to Phase I but it looks like they have gone too far to try and go back and change Phase I. Councilmember Zahner Bailey stated that with all due respect she did not want to change Phase I but she absolutely, in light of recent decisions this week at the Fulton County Board of Commissioners, she absolutely wants to restrict certain uses as a part of this condition. She could not support a letter of agreement that has no definition to it. Her request, if it is the pleasure of the Mayor and City Council is that they at least identify those things that Brian Snelling just mentioned into the record that aren’t anywhere but in conversation, would there be a consideration to not have gas stations, to not have convenience stores, to limit it to no liquor stores, to no adult book stores. Again, those things that perhaps are already part of those covenants with Phase I tenants. But again, as a matter of record, not just to have something for the file, but as a matter of this zoning and these variance requests. She, in good conscience representing the citizens and SR 9 could never agree to an agreement that has no definition this evening. Brian Snelling stated that he cannot submit to anything that would hold up the approval tonight. He can go back, because Target owns 14 acres of that property, he owns that property; he has partners in the deal. They have other major tenants that have lease restrictions and other things in that deal. So he has regroup with their presidents, their boards, their partners, their tenants and other property owners and try to work out what they are willing to include into something that is going to restrict their property without a doubt. In his mind, that property is not in play here. So that is all he can commit to the Council. He can go back and it does not hold up the approvals for Phase II zoning. It doesn’t have anything to do with the Phase II zoning. He understands the Council’s desire and the applicant is willing to work with everyone. He has a break down of the cost that he has already incurred from requests from the City of Milton and it is substantial and most of it he has agreed to do. At some point, and even in their meeting today, there is a limit to the dollar amount that they can just keep adding to this. There are a lot of things that he has already incurred cost on Phase I after the permitting was done. He didn’t have to do it. The fire captain and traffic has asked him to do things. They are trying to be good neighbors with the new City and the understanding that it was approved under Fulton County and that there are certain design standards that the City of Milton wants to see. They were trying to make that effort, but at some point he would like some return on that effort. But that is what he can commit to the Council. He will go back and approach those and try to work up some letter of agreement that everyone is comfortable with. He cannot promise them that it will have certain things in it. He can give them sidewalks because it sounds like that wants to stay in there. He can give them the four-board fence. He cannot give them the mast arms at Webb Road and the Windward Village signals. Those are already purchased and on their way. He doesn’t really want to go back and restrict that zoning because he does not think it can be done. But if all parties involved are comfortable with saying that there will not be adult book stores, it looks as though they already are, but he can provide the public document which is on record with Fulton County. He will be happy to work something up but he cannot let it hold things up here. Mayor Lockwood asked Brian Snelling if he knew off the top of his head if in his Target lease there are certain things that pop up that are restricted based on his leases. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 15 of 64 UNAPPROVED/DRAFT Brian Snelling stated that most of it is those types of businesses of those natures which one sees. They even go so far as to put limits on what size restaurants can be in certain buildings. They would pick Phase I apart and say that one can only do this here. He is restricted down into the square footage of certain uses and in certain places, but in general, Super Target shopping centers are top quality shopping centers whether the applicant does them or someone else. And there are not those kinds of businesses in there. He does not know all of them off the top of his head but the one’s the Council is concerned about, the adult bookstore types, those are definitely restricted. Any kind of those businesses along those lines. All of the shady type businesses are restricted. Everything is well thought out here and they have a top quality development. Mayor Lockwood inquired if he had anymore Council points of discussion? Councilmember Bill Lusk asked as a point of information for the City attorney, is the sexually oriented business ordinance retroactive? Would that apply to Phase I? City Attorney Scott stated that it was not retroactive but it would apply to Phase I because those businesses would need to get licenses and all. Councilmember Zahner Bailey stated that it was her recollection that they set up a time here to approve that. Whenever they had a rezoning that came before them they were going to be explicit in prohibiting that as a use as they would billboards if they were inappropriate uses. Mayor Lockwood stated that at this point he thinks they can do that on Phase II. City Attorney Scott stated that they certainly had that discussion and the Councilmember is right about that. He does believe, however, that with the distance restrictions that they impose that they only place that they could actually go is south of Webb Road. Councilmember Zahner Bailey inquired about the billboards as far as placement of the billboards. City Attorney Scott stated that he couldn’t say the same for the billboards. Councilmember Zahner Bailey restated that she thinks it is extremely important that they take an opportunity this evening as they look at Phase II to reach a letter of agreement. It was her understanding in the review session on Monday, which was part of their natural course of reviewing cases; it was her understanding that they were going to be able to receive from the applicant that did include certain things that are going to be a matter of record and were going to be presented as a part of this rezoning that included certain restrictions to certain uses. It had been her understanding that some of those might include things like gas stations, convenience stores, adult book stores, whether or not some people might have comfort that maybe if some other document that exists. Her comfort is not with the unknown. She much prefers with the rezoning to make sure that they have explicit language as part of that agreement. She is not trying to change the agreement; she is trying to leverage the approvals and the variances that the applicants were looking for as part of Phase II, with regards to Phase I. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 16 of 64 UNAPPROVED/DRAFT Councilmember Thurman stated that in that meeting Director Tom Wilson made it very clear that the agreement had to be something that they would agree upon and that they could not impose any kind of restrictions on them that they would not agree to for Phase I, which was already received its zoning. He made that very, very clear that they are not reopening up the zoning on Phase I, they are zoning Phase II. If they agree to things they can put them in the letter. But if they don’t, they can’t open up the zoning again. Councilmember Zahner Bailey agreed with the Councilmember Thurman and stated that what she was trying to arrive at were some things that would be agreeable and that means that there has to be a document that reflects those things that are agreeable. As of right now, they have no document that reflects agreed to uses. She does believe that there are probably some things that are prohibited uses that the applicant has agreed to as part of Phase I. Her point, for the record, is that they don’t tonight know what those are. She knows that their next meeting is December 13, 2007 and she knows they would like for the Council not to “hold up anything.” She does not think anyone is trying to hold up anything. She thinks folks have worked very hard to try to arrive at some agreement. She thinks the decision now is among the Council as to whether or not they have enough information to understand what uses specifically on Phase I. Mayor Lockwood stated that the point of order with the City attorney is any agreement that they have they could clarify and make sure that this is subject to a letter with the agreement that the applicant agrees upon tonight. City Attorney Scott stated that was correct if that is what the Council wishes. Mayor Lockwood stated that he can understand both sides on that as far as going back and trying to put limits on Phase I. He believes that internally they have limits; the City has limits with zoning ordinances and what-not. He is pleased with the issues that when this zoning came up and what most people and the citizens are concerned about is going from a 100 foot buffer to a 25 foot buffer, a gas station on the corner, a loading dock on the street and several other smaller settings. He feels very good that the applicant has addressed all of those and his belief is it is totally for the City’s benefit. They are also willing to take the improvements as individual improvements for the City of Milton, the sidewalks with the stamped concrete pavers, the four-board fence and the lights and include that in Phase I. He thinks that is a benefit for the City. Mayor Lockwood stated that if there are no other comments from Council he would like to ask for a point of order from the City attorney as to how they would move forward with this. They have had four or five, six, seven different things that Councilmembers have thrown out. He is not sure if they go down the list and ask the applicant if they are willing to do that or not. City Attorney Scott stated that he thought that was entirely appropriate. Mayor Lockwood asked that Council for any comments on that. Councilmember Zahner Bailey stated that she would like an extension on the point of order. They have a motion on the floor. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 17 of 64 UNAPPROVED/DRAFT Mayor Lockwood stated that he thinks they would have to amend that motion. City Attorney Scott stated that was correct. Mayor Lockwood stated that they would have to go through it to see what they are actually amending. Councilmember Mohrig stated that he would be willing to amend the motion, but they first need to find what it is that they are going to agree to. Mayor Lockwood stated that he would ask for the help of staff and Council as he reads through what he remembers has been discussed. Brian Snelling stated that it may make it easier, it sounds like they are jumping around a lot. He can go in the order they are listed here. He will say that what he is able to agree to tonight is they will issue a letter of agreement after the fact that the four-board fence and the stamped pavers will go down through Phase I. He will provide the Council with a copy of the OEA that is on record recorded at Fulton County that has all of those restrictions. That is all that he can do right now. He can guarantee that he can get that letter. He can’t get someone to sign it tonight. That can’t be a part of future zoning…just approval. He can get the Council that and that is all that he can get without going through many, many other discussions with several other people. Those are the two things as far as what the Council is looking for that he can commit to in a letter and get it here tomorrow and have them find a record version of that OEA and get it here tomorrow as well. Mayor Lockwood clarified that that was in relation to Phase I. They are going to put it in as conditional for Phase II that they are talking about as far as the zoning. Brian Snelling stated that it was those two things. He stated that the OEA, when it was drafted anticipated that if this future property was taken down, then those would fall into this agreement. There may eventually come an amendment to that agreement and that would also be recorded and the Council would have every right to have that. But the agreement he believes, if he is not mistaken, anticipates Phase II being added and that is his understanding. If this were to be added it would be added and all of those same restrictions could apply. Councilmember D’Aversa stated that she hates to prolong things but she is real concerned about the decorative mast arms and it has been something that has been a very big point from the citizens of their community. If the applicant is going to put non-decorative mast arms at one end of the development and put two sets of decorative mast arms within the next Phase of the development, how does the Council feel about that? Brian Snelling said as a point of clarification was that the two intersections that he ordered the standard mast arms and this Phase really has the one intersection, Deerfield and SR 9. That is where they are talking about…in here, they have requested decorative mast arms as part of this. He stated that if the Council wanted further clarification as to why he can’t go back and do that, he will be happy to do that. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 18 of 64 UNAPPROVED/DRAFT Councilmember D’Aversa stated that she understands that he has ordered them. She would give just about anything if there were some way to rectify that. Brian Snelling stated that if she could give him about $300,000+ he could probably rectify it. That is the bottom line that is what it is. He has construction schedules and he has to get those signals operational in the next few months in order to meet several commitments he has on Phase I. He started applying for those in July 2006. They were close to having approval in April 2007. There were some circumstances that caused about a three month delay on their closing of the land and start of their construction schedule that put them even further behind. It costs him about $200,000 on the front end and he is just out of time. He had to order those signals and they have been in the works for some time now. Mayor Lockwood stated that he agrees with D’Aversa. He would love to see the decorative mast arms. He thinks they have talked to their citizens about wanting to brand Milton and they want people to drive through and see that Milton is different. He would love to see them up there, but he also sees the practical side. The other mast arms were approved in the zoning, they have been ordered, they are moving forward. In his personal opinion is that the only thing they can do is ask that while they have control of Phase II they ask them to put the decorative mast arms. He would certainly love to have the decorative mast arms everywhere in Milton but he just does not think it is practical in this situation. Councilmember D’Aversa asked if there was any way to put skirts on those he has already ordered or paint them. There is going to be a lot of upkeep on them, she understands that. They have been through this with other developments and she is trying to get as close to something that is going to look like the decorative mast arms that will be in Phase II. Is there any way… Brian Snelling stated that the ones in Phase I are already blacked out. They are not the galvanized, they are mast arms but they are black powder coat. He did order those. He will talk to his signal contractor and see if there is some kind of skirt that they make. Councilmember D’Aversa stated that there was, the City has some of them. She wanted to impress upon Brian Snelling how important it has become even though it seems like it is something that is not as important. Brian Snelling stated that he will look into that. He thinks that anyone sitting on the staff that he has worked with will tell the Council that he will do everything that he can. He has a spreadsheet that shows the money he has already committed that they didn’t have to commit and it is getting substantial. He will go back and look. He will talk to his signal contractor. If he can find a good deal on them or if he can find some and it is not $300,000-400,000, he will do it. Councilmember D’Aversa stated that she thought it would be about $25,000 for four poles. $4000 a piece for the four poles and $5000 to paint them but if one gets them… Brian Snelling stated that he is getting them black powder coat from wherever they are coming from. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 19 of 64 UNAPPROVED/DRAFT Councilmember D’Aversa asked that they include in this agreement that Mr. Brian Snelling will look into that. Mayor Lockwood stated that out of good will the applicant could look into it and if it something reasonable that he might want to do for the City or for his center that makes it look better….get more shoppers in there. Mayor Lockwood asked that they move forward. He is going to ask staff and Council to help him as well as Brian Snelling as they go through it because they are going to have to amend this motion. They should formally make a list that they are talking about. He stated that they want to go through the recommended conditions on the drive through. They have asked for three, but the applicant has said that he would like four. Brian Snelling stated that the reason he would ask for four is and would envision that three would be drive-through teller lanes and the other would be an ATM lane. He does not want the three to be two drive- throughs and an ATM lane. Mayor Lockwood clarified that he wants three drive-throughs and then have an ATM and possibly it could be against the building the way some banks do. Mr. Brian Snelling could work with the tenant to do that. Brian Snelling stated that as long as…he does not have a tenant yet but he is required to have one pass- through lane anyway. He thinks a lot of banks put that ATM in the pass-through lane so that it is not an extended stop type deal. As long as he is allowed to put the ATM in that pass-through lane or somewhere else on the building or whatever, he has no guarantee that he can draw a bank to this site anyway. But if it were to be a bank, that is what he would ask for; three teller lanes and an augmented ATM lane. Mayor Lockwood stated that they have listed three drive-through lanes. He asked staff if that would cover it? Would that allow the applicant to put his ATM machine in a pass-through lane or…staff stated that should be appropriate. So they can leave that item out of their discussion. Mayor Lockwood asked Mr. Brian Snelling if he was okay with the 30 foot height plus the five feet per parapet. Councilmember Thurman stated that is what they added to restrict the height to 30 feet from average grade with an additional five feet per parapet. It would be 30 feet for the building plus an additional five feet. Typical retail is 35 feet. Brian Snelling stated that he thinks he would….it was stated before that their agreement already restricts that. He would have to confer with the property owner but he thinks there was some reservation of putting a building height limit and a blanket limit on the property. His agreement says 35 feet and there is a difference between the core agreement and sticking in a zoning condition that goes with the land. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 20 of 64 UNAPPROVED/DRAFT Councilmember Zahner Bailey stated that she would like to remind everyone that the Planning Commission had a, open SR 9 overlay update and the recommendation was, both from staff and the Planning Commission to restrict height to 30 feet and that was held simply because they were looking at the ARC issues and some other things when they were adopting the SR 9 overlay. This is an opportunity for the Council to be consistent with the other boards and other recommendations and many, many citizens’ commentary that they have all received via e-mail. She realizes that they are trying to give the benefit of the applicant for them to ask if he would like to agree or not. Her question is really as Mayor and City Council are they prepared to go, and on each one of these, ask what the will of the applicant is or are they going to help make some decisions that are a function of what their citizens and what their overlays and the direction they are headed as a Council. With that she would still support a 30 foot height limit and a very gracious five feet per parapet because there are many more overlays that don’t allow that type of exception. In fact, she would be more comfortable with a two-foot parapet because the applicant, at their last meeting indicated that the only parapet that they had designed was only another eight inches. She would actually be more comfortable with a 30-foot height limitation with a two-foot parapet with a review by the Design Review Board. Brian Snelling stated that he believes when Kohl’s was talking about their building height he thinks they said that as their building is designed their total height at the highest point was 30’ 8”. They did not mention how tall the parapet was. He is pretty sure they have a parapet that is taller than eight inches because one would have roof slopes and roof tops and the parapets are taller. He knows that Milton’s building ordinance says that staff can ask one to build a parapet taller than four feet or something like that to do certain things. Right now, none of their buildings are over 35 feet on Phase II. That is the commitment he can give the Council and that is part of the OEA that he provided. He thinks that the owner is apprehensive about restricting this to the land in this zoning case because if something happens and the buildings disappear and they want to rebuild something else, things change…he thinks that the owner of the property wants that flexibility to do whatever is going to be in the City’s ordinances at the time. Brian Snelling does not think that there is a restriction now; he may have deferred it at the last meeting until the comprehensive plan was further reviewed. He would object to putting it in as a 35-foot limit. But he can commit to the Council that once they receive that OEA they will see that building heights are restricted on this property as long as that agreement is in place for 35-feet. Councilmember Thurman stated that she had a question for point or order. She inquired if the applicant said that he no longer owns all of the property? She inquired if Target actually owns their own piece of property? Can they put conditions on a piece of property that is owned by another applicant? Mayor Lockwood stated that is in Phase II. City Attorney Scott stated as long as the applicant is here representing them… Mayor Lockwood stated that is in Phase I, but as a point of order also in Phase II is getting with Kohl’s what they are approving tonight is additional buildings that are not approved, would they come back through the Design Review Board or have purview there? Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 21 of 64 UNAPPROVED/DRAFT Senior Planner MacDonald stated that all building permits have to go through the Design Review Board. Mayor Lockwood asked if there is something that they don’t know about a building, could that be vented through that process. Senior Planner MacDonald stated it has to be before they can receive a building permit. Councilmember Zahner Bailey recommended that if they go ahead with the building height that is consistent with what their Planning Commission is recommending and what they have heard and what the citizens of SR 9 would like to see. If there is something in the future and this applicant was different, they could always come back for a modification and they could then look at that exception. She would much prefer to look at the exception in the future once they know what that is and go ahead and establish a building to building height that they know could be consistent with the largest building that is on this structure. As discussion among Mayor and City Council, she is concerned with them not limiting the height given that they have had a tremendous amount of discussion over a lot of meetings not just on this rezoning, but on height limitations. Councilmember Mohrig stated that he would like to ask for a clarification. What he understood was they had the motion to limit the area of the SR 9 overlay to no more than 30 feet. What he thinks they deferred, or they put off for further discussion was south of Webb Road is what he was told by Tom Wilson is north of Webb Road already has 30-foot restrictions, so by putting that in here he thinks that all they are doing is agreeing with what they have already said in the overlay. That was agreed to. He stated that as far Mr. Brian Snelling, to let him know as far as to go with the 30-foot height restriction, he thinks that is already in their overlay. He thinks the applicant already has that with the…. Brian Snelling stated that he did not think it was in the overlay now. He thinks it was part of the comprehensive plan. He stated that he could live with 35 feet if the Council wants to put it in as a zoning condition. He just wants 35 feet total, whether it is a 10-foot parapet or a six-inch parapet, 35 feet total height. Councilmember Zahner Bailey stated that she would agree with Councilman Mohrig’s comment. However, the intent of the overlay is to keep it to 30 feet in height, which is she thinks that hopefully the Council’s responsibility is to be true to that direction, which they have already discussed as a Council, which was to move toward SR 9 and that overlay north of Webb Road to a building height of 35 feet but a building height of 30-feet. She is confused why they are considering moving away from that when the pleasure of the Council had been 30-feet in height. Brian Snelling stated that he does not think that they are. He thinks they have had request that has come forward. Brian Snelling stated that they have actually discussed moving it. He thinks they set the building height; at least that is what his intent was when he talked to Mr. Tuller. He thinks that 30 feet was what they have in the overlay and that is what they are talking about holding to. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 22 of 64 UNAPPROVED/DRAFT Councilmember Zahner Bailey stated that she just wanted to make sure that she was clear on his input. Mayor Lockwood called for a Point of Order. He thinks he would be better off to list what he has noted that they have discussed that would be different and to actually try to clarify this motion or this change of a motion. He knows they talked about the sidewalk pavers, they talked about four-board fences, there doesn’t seem to be any question on that. They just discussed the drive-through and they have discussed the decorative mast arms. He thinks that the applicant is wiling to do the decorative mast arms at the intersection of Deerfield Parkway and SR 9 but he is not able to do them at the other end of Webb Road. Councilmember Mohrig stated that there was also something in 3f as far as the buffer between the two parcels. Mayor Lockwood stated that in the buffer…they need to re-word that. He stated that Mr. Brian Snelling had mentioned a little bit on the buffer. Brian Snelling stated that he wanted to make sure that they didn’t jump over something because he heard Councilmember Zahner Bailey mention earlier a parking ratio of four per thousand. That is not in his list. Councilmember Zahner Bailey stated that it was not. She was just using another example of a possible way to get more… Brian Snelling clarified that 4.65 is what is in there. Mayor Lockwood stated that was correct. He inquired if there was anything else that anyone, of those that he just mentioned that they haven’t come to some semblance of an agreement on? Councilmember Mohrig asked what their concern was with 4a as far as the land disturbance permit. Brian Snelling stated that he is going to have to dedicate the land on the Deerfield Place Parkway frontage because he has to put a decel lane in to the driveway. Along this property frontage he is going to have to dedicate some land to the City of Milton. Because of his schedules and trying to get this shopping center open by the end of next year. Last time staff committed, when they deferred, to try and help expedite LDPs and permit approval. He cannot guarantee that because actually next week he is going to submit an LDP permit on this because he is taking a chance on designing it for the most part now. He does not want to hold up an LDP on dedicating that property. In dedicating that property he can hold the COs eight months from now. He cannot guarantee that an attorney and a surveyor can get all of the documents together. They would have to go to Fulton County to record it and that could take three weeks to get. He stated that he wanted to strike LDP out of that center and leave for certificate of occupancy so no one can hold it until the City gets their property. Mayor Lockwood asked staff if they feel comfortable that they can in turn put a hold on the CO until this time but not hold up the LDP. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 23 of 64 UNAPPROVED/DRAFT Mayor Lockwood asked that something that they would need to list here as part of the agreement? Councilmember Mohrig sated if one is talking about just striking land disturbance permit prior to the issuance of a certificate of occupancy they would actually amend that as part of this agreement. Councilmember Zahner Bailey stated that he did not have any concerns with that item. Brian Snelling stated as far as the landscape issue he stated that he would like to delete it because there are a lot of definitions that go along with a landscape strip. What has to be in it, planting different distances and all of that and he might not be able to meet all of those. In his mind it is much cleaner if they delete it but then if one looks at his landscaping plan and the City and the arborist, Mark Law have worked well together on Phase I. Anywhere he would ask for another tree, Brian Snelling does not think there is an instance where he did give him one. If he feels like in that wide sidewalk there…there may be a buffer a little closer between those buildings. He does not know the exact width yet but one can kind of focus and see that it looks like it is going to be wider than the typical landscape island. So either side of that sidewalk, maybe if he needed to do a staggered tree pattern or something, he would be happy to work with Mark Law and get more plantings in there. But he thinks deleting it makes it much cleaner because it eliminates the ambiguity of what is defined in the landscape strip. He will plant whatever. Councilmember Zahner Bailey stated that another alternative would be to insert, because earlier she believes the applicant had some concerns about the two buildings. The suggestion she made was to stick with staff’s recommendations, which were to reduce the required 10-foot strip along the southern property line to the extent necessary to allow for inter-parcel connectivity. Insert something such as, and the buildings as reflected on that site plan. But at least that way they are not leaving it all to chance and everyone is committed to still having some of that landscape strip. If it would be the pleasure of this Council she would ask that they just insert that to accommodate the applicant’s point about those buildings. It still allows the flexibility to work with staff to accommodate that without deleting it completely. Mayor Lockwood stated that he was confused and asked the applicant to clarify. Brian Snelling asked what if he doesn’t build that building exactly to their configuration. What is their definition of that site plan? That is his problem. What if he finds a different tenant that wants to be 20 feet deeper? Councilmember Zahner Bailey stated that is exactly why she does not want to say that they delete it all together. She was content with the way that it was currently drafted, which was to reduce it and continue to work with staff and to allow that inter-parcel connectivity. And again, to his point because that site plan might change, that is all the more reason that she would not want to delete it all together. Because the point was that that allowed for some additional greenery, not green space necessarily, but some greenery that would still be a requirement of these specific conditions of zoning and that was that was discussed in that way a few weeks ago. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 24 of 64 UNAPPROVED/DRAFT Councilmember D’Aversa said back to it being reduced, it is not necessary to delete it. It is not tied to a building. Mayor Lockwood stated that he was not clear on this. Brian Snelling said there shouldn’t be a problem; they can work with the developer on this. Mayor Lockwood asked Brian Snelling if they were okay with working with staff on that. Councilmember Mohrig stated that what staff had recommended was just change instead of delete, reduce. Councilmember Zahner Bailey sated we will work with him to accommodate it depending on the site plan. Brian Snelling clarified that the condition would be to reduce the required property setback line to the extent necessary to allow inter-parcel access, sidewalk connections, building locations from adjacent property to the south, and building locations at the end of that. Is that for sidewalk connections? Reduce the required 10-foot landscape strip along the south property line to the extent necessary to allow inter- parcel access and sidewalk connections from the adjacent property to the south and building locations. Councilmember Zahner stated she would be fine with that. Mayor Lockwood stated that his prognosis from their conversation, he does not have any other items. He would ask again for a point of clarification on which direction they go and if anyone else has any other…he is asking for help in amending the motion. Councilmember Zahner Bailey asked that they also make sure that they include the 2x4 welded wire that the applicant has discussed. Mayor Lockwood added that they also talked about putting the bus kiosk in the right-of-way. Brian Snelling stated there is one that has to do with the mast arms that he would like to bring up. Not striking them, but he would because he cannot rely on GDOT; he cannot depend on when they are going to approve those signals. It took him over a year to get the first ones. What he does not want to do is tie that to a building CO. The way it is written right now, installation of the mast arms….prior to a CO being issued by the staff engineer. He would like for that to say for that it be a site CO for all site work because if he gets on site and he starts building his buildings, his biggest concern is Kohl’s. If they open another one in October and they are sitting their in December, if DOT does not approve those for another eight months because of their normal process, there is no way that he can get that signal in, in time for them to open. He does not want a building CO to hold up the…he wants the signal to be tied to the site CO because it is his understanding that a building can open for business prior to a site being signed off. And maybe make that signal the last condition of that. He does not want to all of a sudden hamstring his tenants, mainly Kohl’s, to try and open their store in October 2008 and he can’t get that signal turned on until December. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 25 of 64 UNAPPROVED/DRAFT Deputy Director of Community Development Tuller stated it is just an exceptional…if they can’t…the signal doesn’t necessarily have to be tied to the development. It is up to their discretion. They can work with them and make sure that this is concurrent with GDOT’s performance. Brian Snelling stated he just requested deleting the zoning condition in there…all he is asking for is…his recommendation was to add in there that prior to a site CO, as approved by transportation and engineering. Building COs will not be delayed by signal installation. Councilmember Zahner Bailey stated that to Brian Snelling’s point they do not know what that time frame would be from the safety perspective. Knowing the residents that live in that immediate area, she is a little concerned. Completely removing it with no time frame…and as the Mayor was just saying, perhaps there is a hardship that was identified by the public works department or by the community development department. She is just concerned. She knows that the intent of the applicant is to get it there. She just thinks so that they can be true to their citizens that have concerns about having a light. She wondered if they could even have a time frame associated with that and are no more than some sort of hardship definition that the staff would then be in those conversations and they don’t just leave it up per chance and then end up with two years with no light. She knows that would not be his intent. Brian Snelling stated that he has to get a site CO in certain time frames. He asked that they trust him, he has worked in the past with DOT and the have almost banned him from the building. Councilmember Zahner Bailey stated that is was not really a comment about his intent; she was just making sure that they have done… Mayor Lockwood stated that what he is seeing is if it is tied to the site, then they have to have a CO on the site. Councilmember Zahner Bailey asked what might be the longest time frame. Brian Snelling stated it was basically unknown but as soon as GDOT approves it. But like he said, and he has some commitments from his traffic engineers who have close ties with GDOT. But he can only push so far and they can go up the chain as much as they can but again they are a government entity that runs by their own rules. He will get in as soon as he can but what he can’t have happen is Kohl’s moves forward, they close the deal with them. They go out and spend however much money they spend on their building and they build a building and are ready to open for business with stock in the store. Come October, he does not have that signal operational because of a GDOT delay and all of the sudden they’re wasting millions of dollars trying to wait for that. Councilmember Zahner Bailey stated that she understood the delay. Mayor Lockwood stated that he was comfortable with the site if staff could work that out where it is tied in with the site CO. Obviously the applicant will have to have the site CO. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 26 of 64 UNAPPROVED/DRAFT Councilmember D’Aversa asked what was the longest time frame they might be seeing in getting the site CO. Deputy Director of Community Development Tuller stated as a worst case scenario they could have the developer come back for a modification to expedite the process to try to get a little bit stronger performance, which would take approximately a month to go through. Councilmember Mohrig stated that he did not know if Mr. Drake could comment but they had a meeting earlier talking about extending that intersection to see if there is a way they can work with Sumner so that they are not tied into lanes. He knows if they work property with GDOT and they get the SR 9 and that intersection improved, there shouldn’t be a hold up as long as they can get the equipment in. He asked drake to comment on where they are with that process in talking with GDOT. Public Works Director Drake stated that they talked with Brian Snelling’s engineers as well as Brian Snelling about both of them working together with GDOT to expedite this process as quickly as possible because of this signal. It is a very important signal. Councilmember Mohrig asked Mr. Drake to give them a time frame. Public Works Director Drake said when he says expedite… Councilmember Mohrig stated his concern is they went through this at a different intersection further up that Bethany Bend, so he understands what the other Council person is saying. He asked Mr. Drake to give the Council a feel on where they are in the process and how quickly they could get that approval separate from this whole development. Public Works Director Drake stated that he cannot but Mr. Brian Snelling might be able to because he has more information from his traffic engineers as to where they are in that process. Brian Snelling asked the Council to indulge him for a minute. He has submitted a preliminary set of traffic design plans to GDOT for their review. He is hoping to get comments from that set. That set does include all of the previous recommendations from the meetings they had per that signal. The hang up in the process is not the applicant and the City. As quick as the City fills out the application and puts it in. He stated that he would like to give a little background on what he went through on Phase I. Fulton County finally approved them but there was a little delay with then. They sent the plans to the GDOT district office. They have to do their deal and then they sent it down to their downtown office. Two or three months went by and he kept calling. All of a sudden they told him that they don’t know where those plans are and asked him to send them to him again. He had to go through the whole process again. The delay is not on his end. It sometimes happens on GDOT’s end. He is going to try to stay a little more focused on that this time than maybe last time because last time they just kind of took GDOT at what they said they would do or where they said it was. He is going to try to annoy them a little more this time than he did last time and work with them to try to make sure that these plans don’t get lost. If he has to personally take them down there he will just because he can’t afford the time. So the hang-up is not on the applicant’s end at all. They do it and GDOT does it. He gets his engineers committed concerning any comments they have allowed. They allow Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 27 of 64 UNAPPROVED/DRAFT a few days to a week to get them back into GDOT. From the Council’s concern the hang-up is always on GDOT’s end. One other point of clarification is they have already had a meeting with GDOT and the developer and themselves. They have preliminarily agreed upon all the sticky issues so this is just a matter of waiting on this approval where everyone can file that next set of papers. From the City, from public works, if they can make sure that they just continue to work and keep it on the front burner so maybe they can find leverage from the City’s standpoint because they have a vested interest. The developer will do his piece and they will see if they can actually have these plans approved before they are actually doing the intersection. He stated that that would help because they tend to listen to cities more than they do to him. Mayor Lockwood stated that he thinks they can work together on that. Mayor Lockwood stated that he was going back to a Point of Order. The Council will try to move forward here. He stated that Councilmember Mohrig would need to amend his motion. City Attorney Scott stated that he would simply have any of the Councilmembers make a motion listing the conditions and one would second it. Interim City Manager Lagerbloom stated that he had a list of conditions of what the Council just talked about. It they are okay with that, he could email it real quickly to Councilmember Mohrig so he could solidify them on his computer and see the notes that he has. City Attorney Scott said Councilmember Mohrig cannot technically make the motion to amend because it is his motion as of now. They have his motion open now. Somebody else needs to make the amendment. Councilmember Zahner Bailey stated that she would make the motion. City Attorney Scott stated that he could simply read the motion and someone could say “so moved”. Chris Lagerbloom could simply read the motion that the Council is going to consider. Councilmember Zahner Bailey said if it could be the Mayor’s pleasure she asked if the Council could discuss that last letter of agreement. She is still unclear where they left the letter of agreement. It is her understanding that a condition of this zoning is that they would have a letter of agreement that would be forthcoming and that the conditions that they are about to read would include a reference to a letter of agreement. She would ask, and she wants their City attorney to comment, that while she realizes that some of these things may be left until they get a copy of what is involved with Fulton County. There are some things that she would like for the Council to consider this evening and she thinks they may need to include at a minimum a prohibition for any billboards. She knows earlier that Mark Scott stated that he thought that was covered. Mayor Lockwood inquired if they can do that legally. Councilmember Zahner Bailey stated as a reference to a letter of agreement. City Attorney Scott stated that the applicant would need to accept that. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 28 of 64 UNAPPROVED/DRAFT Councilmember Zahner Bailey agreed that the applicant would have to accept that as part of the letter of agreement that they have agreed to come forth with, to agree that the applicant would not allow billboards on Phase I as a matter of a letter of agreement with this Council. Brian Snelling asked if they could define a billboard. City Attorney Scott stated that the City’s definition of a billboard is a sign that is 120 square feet in size. It would be a free-standing sign. Mayor Lockwood stated that billboard’s are a hot topic with the City. Brian Snelling stated that the free-standing signs that they have on Phase I along SR 9 are signs that were already approved and permitted to meet the SR 9 standards. City Attorney Scott said the City wanted Mr. Brian Snelling to understand that what they are concerned about is; especially if one looks up in Cumming, throughout the shopping centers…they know he is developing at Market Place Boulevard. If he would look at what is already going up on the already developed area on Market Place there are billboards literally going up in parking lots all over the place up there. The City of Milton is not looking for that in their City. The billboards are much larger than what the Milton sign ordinance allows. Brian Snelling stated that he would not allow them to have billboards in his shopping center. Councilmember Zahner Bailey asked if therefore as a matter of a condition… Brian Snelling stated that he would have to go back and talk to all of the parties involved that own that property. Target owns a piece of that parking lot. He thinks the agreement probably has something to that effect but, again, he would have to go back and talk with them. What he is willing to submit to the Council right now is a letter of intent stating that he will take the fence and the sidewalk down through Phase I and he will provide Council with the OEA. Councilmember Zahner Bailey stated that as a matter of discussion for this Council she is concerned if as part of their motion they don’t include that the letter of agreement that they are asking for would include a statement about no billboards. She thinks that that is legal. Mayor Lockwood stated that he did not know if Mr. Brian Snelling can’t make that decision, he does not know they could force him to put that in that letter. Councilmember Zahner Bailey asked if it could not…they are not forcing him. He needs the time to go back and yet, there is a difference. She would be happy for Mr. Brian Snelling to come back next Thursday and then they would know. But to leave that as an unknown given what they know this week… Mayor Lockwood stated that they have discussed this a little bit how, in Mr. Scott’s opinion, how their sign ordinance and billboards, what would that do to that Phase II? Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 29 of 64 UNAPPROVED/DRAFT City Attorney Scott stated that first of all their sign ordinance requires the fall zone and it requires distance from other signs. And certainly they can’t be bigger than 120 square feet and 12 feet in height. There is a limit to the number of signs one can have on his property. He stated that he can’t say that it would totally prohibit them from leasing that area for a billboard, but he can also tell them that it would make it very difficult. Councilmember Zahner Bailey stated that what she is asking for is for them to agree this evening, even if they need to make a phone call to ask if they could prohibit the introduction of billboards on Phase I as a matter of a letter of agreement as part of the conditions for agreeing to Phase II. She stated that if anyone has read the articles this week, the definition of billboards... Brian Snelling stated that he did not have any issue with billboards. He asked if the Council was concerned about them being on private property. Is that what he is getting at? He said is Council concerned about him putting a billboard in his parking lot. Would he not have to apply for a sign permit to do that? He asked if they could not deny his sign permit. City Attorney Scott said if it is in his parking lot they could but they may not be able to do that on the entire leased property. Brian Snelling stated that he understands that the City has an issue with billboards but to him, on this rezoning case it is a non-issue. He does not know of any intention ever of them going in and putting in a billboard. Councilmember Zahner Bailey stated that was exactly why she was asking for as a matter of agreement to agree that his intent is not to ever have a billboard. That is why she is asking for specific language that would agree to have no billboards as a letter of agreement on Phase I as part of that letter of agreement before they approve to Phase II. That would be consistent with the discussion they had about whether a letter of agreement could entail what they have agreed to. Mayor Lockwood asked Mark Scott to explain to the Council how if there were an application for a billboard what could and could not happen on Phase II? Brian Snelling asked if it were Phase I or II. Mayor Lockwood stated that Phase I, he does not think that legally they can go back and tell them… City Attorney Scott stated that they can’t but at the same time, if they were to chose to try to get a sign permit either piece, Phase I or II it would be the same process. They would come in and fill out an applicant with community development. In order for them to issue that permit they would have to meet the height and size restrictions as well as the distance from other sign restrictions. It couldn’t be in the parking lot because there is a fall zone requirement. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 30 of 64 UNAPPROVED/DRAFT Mayor Lockwood asked where on their site could it be. City Attorney Scott stated that he would have to look at the site plan. Councilmember Thurman stated that it couldn’t be in the right-of-way. It was stated that they could agree not to have any billboards in Phase II. They are not talking about Phase II. City Attorney Scott stated that if they are willing to agree to not do that on Phase I, ask them to do that. But they are not required. Councilmember Zahner Bailey stated that what she was asking and realized it is a matter of law. They cannot make it a condition of zoning of Phase II. She is asking because it was her understanding that they were going to have a letter of agreement and the letter of agreement could include, if the applicant so chose to include certain prohibited uses. She is asking that this Council and the applicant consider, because she just heard the applicant say that they have no intention of having billboards. Therefore, she would like a letter of agreement to include a prohibition of billboards. It is clear that this community does not want billboards on SR 9. And if the intent of the applicant is to have no billboard and it is the intent of this Council to have no billboards, she cannot quite understand why they are not willing to agree that the letter of agreement would include language that says no billboards. Mayor Lockwood called for a point of order. He will be glad to ask the applicant if he will be willing to consider limiting billboards in Phase I. Brian Snelling stated that he feels like they have answered that several times. He can commit to them right now what he can write in the letter and the sidewalk and he will commit to them that he will diligently pursue approvals from any ownership. City Attorney Scott stated that Mr. Brian Snelling is saying that he does not have the authority. Brian Snelling stated that was correct and what he is also saying is it can be tied to this approval and it can hold up tonight. He asked the Council to give him a little credit. Councilmember Zahner Bailey asked as a point of order if the Council would have the purview of…just as a matter of clarification, if they so chose as a Council, while she understands that the applicant would not want to hold this up, they would have the purview of waiting until they had a definitive letter of agreement to approve this. That would be an option, she is not suggesting that they would go that option, but as a matter of law she wanted to clarify for herself that because they don’t have a letter of agreement that specifies the prohibited uses, including an agreement that there would be no billboards, they do have the opportunity as a Council to defer until next Thursday when they would indeed have a definitive letter of agreement so that they didn’t have the open ended questions that they seem to have this evening as to what would or would not be agreed. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 31 of 64 UNAPPROVED/DRAFT Councilmember Zahner Bailey stated that she wished they had a letter of agreement in front of them that would make this much simpler. Mayor Lockwood inquired if they can agree to what that letter is going to say tonight. City Attorney Scott stated that was correct, they just can’t say that it is binding. Councilmember Zahner Bailey stated that she has heard the applicant say that he can agree to nothing except the four-board fence. Councilmember Mohrig sated they have the authority to agree to that tonight. Attorney Pete Hendricks sated they can agree to the stamped pavers for the sidewalk going along Highway 9 to Webb Road on Phase I. They have the authority to confirm tonight the four-board equestrian- look field fence going along SR 9 and along Webb Road. And that they will provide to the Council a full and complete executed copy of that recorded parking agreement. They also will give the Council the appropriate language that they shall act diligently and in good faith to secure from the ownership of the property in Phase I, a restriction against billboards. He said he is happy to put that in there. Councilmember Zahner Bailey inquired if they would also be willing to, as part of that, to include that they would diligently in good faith pursue other potential prohibited uses and realize that if they do that, he can agree tonight that the things that they talked about, that would be up for consideration would be no adult bookstores. She realizes that may or may not even be an option, but no adult bookstores, no gas stations, no convenience stores, and some of those other things that Brian Snelling had mentioned that were just unsavory. Like the check cashing, pawn shop, some of those other elements that are part of 1 a, b and c. She suspects that those perhaps are not things that some of those other anchor stores are looking for. She asked Pete Hendricks if he would be willing to pursue those other things in good faith as he would the no billboard condition. Attorney Pete Hendricks stated that as long as it is amended they are offering to do as much as they can. That is all he can say on that. He will say billboards and other restricted uses. It would be very helpful if they could fast-track a copy of these minutes from tonight where that discussion was on there. Councilmember Zahner Bailey stated that it was the first page of the agreement that was handed to the applicant by staff. It is items 1a, b and c. What she asked, probably an hour ago, was if the applicant could take a look and possibly identify those things that they think that in good faith they could probably pursue. So actually, tonight she had hoped that the applicant would leave with that first page of that letter of agreement that was drafted by staff because the request would be as many of those things, in good faith that the applicant would be wiling to pursue for Phase I is what she is asking. Attorney Pete Hendricks stated that he would do this about billboards and as many other noxious uses. Councilmember Zahner Bailey she stated that she thought it was a pretty reasonable request based on the items that they are looking at. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 32 of 64 UNAPPROVED/DRAFT Interim City Manager Lagerbloom mentioned he is going to need some words for that if they are going to add that. Mayor Lockwood stated that he is going to need some help. He thinks they are at the point now where someone was going to amend the motion. He asked if someone was ready to amend the motion. Councilmember Mohrig stated that as he begins to read these, there is one thing that he is not clear on, which one of the two he should read. He has two possible ones here which say to restrict the height from average grade with an additional five feet for parapets. He has a different one that says restrict the height including any parapet to 35 feet from average grade. He has heard both of those tonight and he does not know which one collectively as a group that he should… Mayor Lockwood stated that he believes the applicant agreed to the second one. Brian Snelling stated that was correct. Councilmember Zahner Bailey stated that she believes that Rick Mohrig has some pretty strong feelings on the 30 feet. Councilmember Mohrig stated that he does not believe on the building right now that they have with the parapet is 30’8” from what they reviewed at the last meeting. The applicant stated that that was only one of the buildings on the site. They have not designed these buildings yet, he does not have definite tenants for these buildings yet. Brian Snelling went back and looked through his SR 9 ordinance and said he did not see any 30-foot building heights. Councilmember Mohrig stated that he stands corrected. It is the overlay that they…how tall is the Target? Brian Snelling stated that he believes some of the buildings on Phase I, he believes maybe the Staples pop- up or the Pet Co pop-up or maybe there is one parapet on the Target that is in the 36-37 foot range. That is probably the highest. Actually he looked at those before he came and he does not remember exactly which building. He thinks that as he skims through his building plans he believes 37 was the tallest building that he has designed at this point on Phase I. Of course, that includes the parapet with some pop-up decorative element. Their Phase II, under their own agreement which the Council will get a copy of is restricted to 35 feet on this property. That is why he does not mind writing it in there; the property owner did not mind writing it in there. He would like to leave that at 35 feet since SR 9 does not restrict it Councilmember Mohrig stated that he would like to open the discussion to see what other Councilmembers would have to say. Mayor Lockwood stated that he certainly understands that they want to do everything they can to keep their City looking good. He knows the intent is to not have a big huge hi-rise building and what not. As he looks at that center. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 33 of 64 UNAPPROVED/DRAFT Brian Snelling stated that was not there any longer. Mayor Lockwood stated that as he thinks through the center, and if the applicant gets some that are 36 or 37 feet, the Kohl’s is 30. Sometimes architecturally, and he knows they want a good-looking architecture in the City of Milton. Sometimes one has to have a little bit of relief. As long as they are not talking about a 40-50-foot building… but sometimes if one has 30 feet all the way around it is just going to look like kind of a bland, ugly shopping center box, which he thinks they need a little bit of flexibility to be able to out some nice architecture in it and make the center look better. Councilmember D’Aversa stated with all due respect that is why they added the five-feet so that the building would be 30 feet but the five-foot would split it up. Councilmember Thurman stated she is fine with the 30 feet plus the five, 35 feet including the parapet. Brian Snelling stated that is consistent with Phase I within a foot or two. Councilmember Zahner Bailey stated that would amend the motion. She asked if they had resolved discussion between Councilmember Mohrig and Councilmember D’Aversa. Interim City Manager Lagerbloom stated that if Councilmember Zahner Bailey is making the motion, he will read whatever she tells him to read. Councilmember Zahner Bailey state that she was making the motion, but she is curious as to the input of her fellow Councilmembers. Councilmember D’Aversa stated that she would like to stay with 30 feet plus a five foot relief as stated earlier for the parapet. Councilmember Mohrig stated that on average it looks like they have buildings with an average parapet that does not go above 35 feet. He is okay with the flexibility to go with 35 feet. Councilmember Lusk stated that he will stay with the 35 feet and he agrees with the commentary on the fact that one does need some height variation in developments like this to distinguish…he thinks it is important that they have that flexibility. Councilmember Zahner Bailey stated that she would have preferred the 30 feet with the five feet on average. Councilmember Thurman stated that she is fine with the 35 feet overall. Councilmember Zahner Bailey stated Mr. Lagerbloom that he had his answer. Mayor Lockwood stated that he was okay with 35 feet overall. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 34 of 64 UNAPPROVED/DRAFT Interim City Manager Lagerbloom stated that he knows what he will read. That would be the staff recommendation with the following changes: 1. To add 1b, which would state “restrict the maximum height including any parapet to 35 feet from average grade”. 2. To change the word delete to the word reduce and add from the adjacent property to the south and building location in 3f. 3. Striking land disturbance permit in 4a. 4. Add the word site prior to the word CO in 4a.7. 5. Add the words “in the right-of-way” after the word “frontage” in 4.9e 6. Replacing the words “non-climbable” with “2x4 welded wire” in 5b. 7. The applicant shall act diligently and in good faith to secure from the owners of Phase I a restriction on billboards and other uses prohibited in Phase II to be extended to Phase I. Councilmember Zahner Bailey asked if she could put a motion forward that concurs with the statement just made for the record. City Attorney Scott said the easiest way to state it would be “so moved.” Councilmember Zahner Bailey stated “so moved.” Mayor Lockwood stated that he had an amended motion by Councilmember Zahner Bailey and a second by Councilmember D’Aversa. Interim City Manager Lagerbloom read the staff recommendations again for the record: 1. Adding 1b which would state “restrict the maximum including any parapet to 35 feet from average grade.” 2. Change delete to reduce and add “from the adjacent property to the south and building locations” in 3f. 3. Striking land disturbance permit in 4a. 4. Add the word site prior to the word CO in 4a.7. 5. Add the words “in the right-of-way” after the word “frontage” in 4.9e 6. Replacing the words “non-climbable” with “2x4 welded wire” in 5b. 7. The applicant shall act diligently and in good faith to secure from the owners of Phase I a restriction on billboards and other uses prohibited in Phase II to be extended to Phase I. Councilmember Zahner Bailey stated that the only thing she heard missing was that in the legal agreement there was a confirmed agreement that the four-board fence would extend to Phase I and the sidewalk, including the stamping, would extend from Phase II to Phase I. These were agreed to and were not just a good faith effort. They were concurred and the others would be diligently pursued. She thought she heard that the applicant would work on that as quickly as possible. Brian Snelling stated that there were a couple of minor clarifications. On 4a.7 he did add prior to a site CO approved by a conservation engineer. He wanted to make it clear that building COs will not be delayed by the signal installation. They may also want to remove “whichever comes first” in that paragraph. Building COs will not be delayed by signal installation. He is suggesting that they insert that sentence. That would Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 35 of 64 UNAPPROVED/DRAFT make it clear that he could get a building CO in case a year from now there is not a traffic signal in site and they issued their site CO. Site CO and building CO are the same thing. That way the owner could not sell, they could not turn the thing over. They would have to have a site CO. Lastly on the 2x4 welded wire, he would just say two-inch by four-inch welded wire. Councilmember D’Aversa asked Brian Snelling if he is willing to put the good faith effort into the mast arms and getting the skirt for the mast arms that he has already purchased for Phase I. Brian Snelling stated that he would add that in a good faith effort he would pursue that. Councilmember Zahner Bailey stated that the things that she heard that were clarified were the two-inch by four-inch welded wire. The have also added the language that the building CO would not be held up as a function of signal installation. And the third is that in the same good faith diligent effort, the applicant would pursue either mast arms if he found them at a deep discount or skirts or something of that nature that would enhance the mast arms currently being pursued for Phase I. Mayor Lockwood stated as a point of order that this was an amendment to the motion made by Rick Mohrig. Interim City Manager Lagerbloom asked if before he restated the amendment did he need words in there that extend the stamped sidewalk and the four-board fence through to Phase I. Councilmember Zahner Bailey stated that he does and she would ask that he look to the staff agreement that the applicant has. Expressly it is the second page of the draft letter of agreement put forward by Robyn MacDonald that reads: “No. 2 Provide a six foot wide sidewalk within the right-of-way along the property frontage where such sidewalk at a minimum of five feet from back of curb and no closer than two feet are feasible as approved by the director of community development. All new sidewalk installations along the right-of-way shall have a color stamped pattern to simulate a transverse double row brick pavers pattern every 50 feet to be approved by the City of Milton Design Review Board. That would be one of the elements that was already agreed to. Item no. 3, which in this list would become item no. 2, add a black four-board equestrian style fence adjacent to the sidewalk between the sidewalk and the development or as approved by the director of community development.” She stated that it was the same language out of Phase II it is just put into that letter of agreement in that same language. Brian Snelling stated that as long as the paragraph says that they reach a letter of agreement to carry those through Phase I. Councilmember Zahner Bailey stated that basically page 1, without items 1a, b, and c, which he is in good faith pursing. At the top it says “private agreement between the City of Milton Mayor and City Council and staff. It still says that this is a letter of agreement that would be entered into and those items are the items 2 and 3. She thinks that is exactly what they have agreed to this evening. And the only thing that is still being pursued is items 1a, b or c or some combination thereof and then item no. 4, but instead of installation of mast arms it says pursuit of good faith and diligence to pursue some sort of a skirt or similar mechanism to add to the mast arms already proposed for Phase I. Brian Snelling stated that as long as everything is in good faith except for items 2 and 3 they will commit to that agreement. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 36 of 64 UNAPPROVED/DRAFT Interim City Manager Lagerbloom stated for the record this would be Councilmember Zahner Bailey’s amendment to the motion crafted by Councilmember Rick Mohrig. It is an amendment to the original motion. It is the staff’s recommendation to add: 1. Add 1b, which would state to restrict the actual height including the parapets to 35 feet from average grade. 2. Change the word “delete” to “reduce” and add “from the adjacent property to the south and building location” in 3f. 3. Striking “land disturbance permit” in 4a. Add the word “site” prior to the word “CO” and add “building CO’s will not be delayed by signal installation in 4a.7. 4. Add the words “in the right-of-way” after the word “frontage” in 4.9e. 5. Replace the words “non-climbable” with “two-inch by four-inch welded wire” in 5b. 6. The applicant shall act diligently and in good faith to secure from the owners of Phase I a restriction on billboards and other uses prohibited in Phase II to be extended to Phase I. 7. The applicant shall act diligently and in good faith to accessorize the mast arms in Phase I to as closely resemble those installed in Phase II. 8. In a letter of agreement provide the following wording: Provide a six foot wide sidewalk within the right-of-way along the property frontage and on such sidewalk a minimum of five feet from back of curb and no closer than two feet where feasible as approved by the director of community development in Phase I. 9. All of the sidewalk installations along the rights-of-way shall have a color stamped pattern to simulate a transverse double row brick paver pattern every 50 feet to be approved by the City of Milton Design Review Board 10. Add a black four-board equestrian-style fence adjacent to the sidewalk between the sidewalks in the development or as approved by the director of community development in Phase I. Councilmember Zahner Bailey stated that the only clarification she has to make sure that the City attorney is in concurrence is that by having the first commentary about good faith they distinguish the other items. That those are not in good faith. Those are already agreed to. City Attorney Scott stated which items he has indicated are in a letter of agreement. Councilmember Zahner Bailey clarified that they were in a letter of agreement that is being pursued. Her only other question she has is in the first statement under the good faith and diligence that in addition to just being excluded or prohibited uses, the actual paragraph reads that the owners agreement, again in good faith if he could, that the use of the subject property is as follows and it would include not only the prohibited uses, it also included definitions of those retail and service and commercial items. She did not want the applicant in good faith only to look at the prohibited uses but also the definitions of what uses were allowable. Brian Snelling stated that he agreed to billboards and at least four other uses. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 37 of 64 UNAPPROVED/DRAFT Councilmember Zahner Bailey stated that it is not just exploring other prohibited uses but it is also exploring the definitions. Brian Snelling inquired if there were allowable uses? Councilmember Zahner Bailey stated that there were. It is not intended to be new, it is just that they are exploring it anyway and she is trying to clarify that he is exploring the definition of uses based on the agreements the applicant already has in place for Phase I. Brian Snelling agreed that they will act diligently and in good faith with the ownership of the property in Phase I to secure a restriction against billboards and such other uses as ownership should agree to. Offensive uses, obnoxious uses or however one wants to define it. But not to have this litany of stuff put in there that they are going to pursue all of this. Councilmember Zahner Bailey asked if the applicant’s current agreement with Target has definitions of certain uses. As an example, fast food and how those are defined. Those sorts of definitions in those agreements? Brian Snelling stated that he could not say off the top of his head. It is a particular document and he would have to go back and review it. Councilmember Zahner Bailey stated that all she was suggesting was that whether it is a prohibited use or a definition of a use that already exists that the language which is captured, which is good faith, which doesn’t hold him legally to anything other than good faith, is that he would look at those and where it is applicable that he would consider adding it to his agreement so they all know that there is nothing legally binding by that. She was trying to clarify the language that they had put forward. She stated that her question of Council would be would they want that language to include the definition of the allowable uses other than just the prohibited uses? That was her understanding when they were pursuing that. Mayor Lockwood stated that there was a motion on the floor and he asked for a second on the amended motion. Second: Councilmember D’Aversa seconded the motion. Mayor Lockwood stated that they would now vote on this amended motion. City Clerk Marchiafava asked for all of those in favor of the motion to please say “aye”. There was no opposition. The amendment is unanimous. Motion: Mayor Lockwood stated that now the Council would go back to Rick Mohrig’s motion as amended. There was no further discussion. City Clerk Marchiafava called for all of those in favor of the motion to say “aye”. The motion as amended was approved unanimously. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 38 of 64 UNAPPROVED/DRAFT Mayor Lockwood stated that a lot of people are in the audience because they have to be but he wanted to thank them for being here. He thanked Council, staff and the applicant. When this application came to the Council way back they had a lot of input from citizens. There were a lot of concerns about a gas station. The applicant wanted a 25 foot buffer versus a 100 foot. There was an issue with the loading dock facing Deerfield as well as a lot of other smaller things. He would like to say that he is really pleased and he thanks the applicant and everyone else because they had gotten to a point where they had eliminated the gas station, they rectified the loading dock and have agreed to put a wall and plant things there and then build another building so that is not an issue. They have gone from a question of a 25-foot buffer, which he did not think a lot of people realized if they had a smaller store, then they could go back to a 25-foot buffer, which doesn’t do the citizens that live behind there any good. They have been able to work out with the applicant a 100-foot buffer and they are also allowing them an access to go through there. He believes it is a quality development. They are putting the fence in, the sidewalk and it is going to be one of the nicest things in Milton. It is going to be an asset to the community. He has not heard any citizens complain about the tenants they have. They are looking forward to it. They are putting a traffic signal in giving them inter- parcel access and it will relieve traffic. The bottom line is he really wants to say he is really proud that they all have worked together and he thinks the citizens have won. Brian Snelling added in closing, that the Kohl’s coupons have made it under the wire. He added that he appreciates all of the help and all of the hard work that everyone has put into this. It has been long process but he thinks they will have a great outcome. Mayor Lockwood added that nobody wins 100 percent of everything but he thinks they did great to compromise and he certainly wishes the applicant well with their development business. (Note: This ends the verbatim minutes) Mayor Lockwood stated that the Council will take a 10-minute break. Mayor Lockwood called the meeting back to order. City Clerk Marchiafava read the First Presentation items: Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 39 of 64 UNAPPROVED/DRAFT FIRST PRESENTATION 1. Agenda Item No. 07-437, RZ07-011, To rezone from C-1 (Community Business) and O-I (Office Institutional ) to develop a 140,000 square foot office building with a maximum height of four stories. 2. Agenda Item No. 07-438, RZ07-1018/U07-009/VC07-010, To rezone from C-1 (Community Business) and O-I (Office Institutional) to C-1 (Community Business) to develop a 5,700 square foot retail commercial building and a Use Permit (Article 19.4.41(1)) for a three story (less than 60 feet) 110,000 square foot climate controlled self storage facility and a two-part concurrent variance to 1) To locate the refuse area adjacent to the street (Article 12G.4.B.4) and 2) To allow parking islands every 11th space instead of every 5th space (Article 4.23.2). 3. Agenda Item No. 07-439, RZ07-019/U07-010/VC07-011, to rezone from C-1 (Community Business) to O-1 (Office-Institutional) to develop 23,000 square feet of office. The applicant is also requesting a Use Permit to exceed the district height, Article 19.4.21, to allow the building to be constructed at a maximum height of 70 feet that includes an underground garage and three stories of office. To request a three-part concurrent variance to 1) to reduce the side setback form 20 feet to 15 feet along the north property line (Article 8.1.3.C); 2) To reduce the 25-foot non-impervious buffer, to allow approximately 6,010 square feet of encroachment to allow parking on pervious pavement (City Code Chapter 14, Section 6.5.(i); (3) To reduce the 50-foot undisturbed stream buffer to allow approximately 675 square feet of encroachment to allow parking on pervious pavement (City Code Chapter 14, Section 6.5 (ii)). 4. Agenda Item No. 07-440, U07-006/VC07-013, To request a Use Permit (Article 19.4.27) for a 1,890 square foot existing building for a landscape business and a three-part concurrent variance to 1) Reduce the 50-foot buffer setback to 40 feet along the east property line ( Article 5.1.3.D); 2) To reduce the 50-foot setback buffer and 10-foot improvement setback to a 10-foot landscape strip planted to buffer standards along the south property line. (Article 12.H.C.1). 5. Agenda Item No. 07-441, RZ07-017, Zoning Ordinance to delete 19.3.1 Alternative Antenna Support Structure to exceed the District Height. Amend Articles 19.3 and 19.4 to reflect the City of Milton. 6. Agenda Item No. 07-442, ZM07-007, To modify Condition 3.a (03Z-159) to reduce the perimeter building setback along the north property line for Lot 33, Phase 4-Unit 1 of Triple Crown subdivision from 50 feet to 36 feet. MOTION AND VOTE: Councilmember Mohrig moved to approve the First Presentation items. Councilmember Thurman seconded the motion. The motion passed unanimously. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 40 of 64 UNAPPROVED/DRAFT City Clerk Marchiafava read the next item under Unfinished Business: UNFINISHED BUSINESS 1. Agenda Item No. 07-426, Approval of Amendments to Chapter 7, Alcohol Beverage Licenses, of the Code or Ordinances for the City of Milton, Georgia Interim City Manager Lagerbloom stated that he had some changes to Chapter 7, which deals with alcohol beverages licenses. Some of the changes are clerical. 1. There is an addition of the advertisement requirements, which relates to signs and newspapers. 2. There is the removal of the License Review Board and that License Review Board becomes the Mayor and City Council. 3. There is no fingerprint requirement to a pouring permit process because they simply did not do anything with those fingerprints when they had them. 4. They deleted the reference to noise as since this ordinance was adopted they have subsequently adopted a noise ordinance and this was most appropriately dealt with in one particular place. 5. They added a section requiring a Pouring Permit or special events. Most of the special events would be approved as such by the community development department. 6. There is also a section that adds portability to have wine tasting. It is similar wording to that which Alpharetta and John’s Creek both have. 7. The wording in Section 3.5 as it exists today states that the holder of a wine only package store, they do have a store in the City of Milton that holds more than just a wine only license. And they actually have a wine license and a beer license. The recommendation there is to change that wording to a wine and beer only package store so that stores are not precluded. He does not think that there was any problem with that form the City attorney’s perspective; it is more of just a policy. 8. Milton’s ordinance says that they would have no more than one wine tasting for no longer than a period of two hours once a week. And the recommendation might be to allow that. But the Council is going to hear that the request is going to be to allow that to occur twice in one week for a period of two hours each and not more than four hours total. These are all of the recommended changes that staff would recommend that the Council approve. Mayor Lockwood asked if there was any public comment. Public Comment Tim Allen, 980 Birmingham Hwy, The Barn Bottle Shop spoke in favor of the changes to Chapter 7. City Clerk Marchiafava stated that that concludes public comments. City Clerk Marchiafava stated for the record, Councilmember Neal O’Brien has joined the meeting. Motion and second: Councilmember Mohrig moved to approve the amendments to Chapter 7, Alcohol Beverage Licenses. Councilmember Lusk seconded the motion. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 41 of 64 UNAPPROVED/DRAFT Councilmember Thurman asked if this was approving the once a week or twice a week? Interim City Manager Lagerbloom stated that he would need to clarify because if one makes a motion to approve it as it was presented in the first presentation it does not add the beer and it also stays at one time. Those are just decisions they need to make if they want to add the word “beer” and change it from one to two it will go through the amendment process again. Councilmember Thurman clarified that the beer was not actually for tasting of the beer, it is just so that people that sell beer. The amendment would definitely approve the fact that people who have a wine and beer license are allowed to do the wine tasting. Councilmember Thurman would also entertain whether or not they want to do it once or twice a week. Mayor Lockwood stated that he thinks twice a week is reasonable because it makes sense what Tim Allen was saying about if they did it on the weekend they might need to do one during the week. Motion to amend and Second: Councilmember Thurman moved to amend the motion to make both of those changes, one to allow places that have wine and beer licenses and also to allow it twice a week. Councilmember Lusk seconded the motion. Councilmember Zahner Bailey inquired in terms of the twice a week and other jurisdictions, she knows that some of the Council mentioned that Cherokee County has some…does the ordinance mean that staff needs to address this rather than the City attorney or the City Manager. Do those other jurisdictions even beyond Cherokee…when the staff look at this, did they look at other jurisdictions and what their standards were? Interim City Manager Lagerbloom stated that the jurisdictions that they looked at were John’s Creek and Alpharetta. They both have one time. He was made aware of two times by Cherokee County but he cannot say that they did an exhaustive search of other counties as to what their ordinance allowed for. Councilmember Zahner Bailey clarified that John’s Creek and Alpharetta’s time was one time a week for two hours. Interim City Manager Lagerbloom stated that was correct. Does Cherokee County have language…it is two times a week for five hours. But to keep it simple, two hours is more than enough time for that second day. Councilmember Zahner Bailey asked staff to clarify. She believes there was also a limitation to the amount per person. For the record she asked that that be clarified. Interim City Manager Lagerbloom stated that it was two ounces per serving, no more than eight per person. Councilmember Zahner Bailey clarified that that would apply whether it was one or two times a week. Interim City Manager Lagerbloom stated that was correct. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 42 of 64 UNAPPROVED/DRAFT Vote on Amendment: The motion passed unanimously. Vote on Original Motion as Amended: The motion passed unanimously. City Clerk Marchiafava read the next item under New Business: NEW BUSINESS 1. Agenda Item No. 07-443, Approval of a Resolution abandoning Black Oak Road in the City of Milton. City Attorney Scott presented the resolution. He stated that Lee Duncan recently telephoned him and asked if he would assist him in bringing to the Council road abandonment. This is for Black Oak Road, which is now completely surrounded by The Manor including their golf course as well as other properties. The Council reported that the map was not in their packets. City Attorney Scott stated that a picture being worth a thousand words he was going to ask if they could tack up the map. He stated that the history of the road, according to what Mr. Duncan has told him is that this was originally deeded to the County back in the 1950’s and it was meant as access to a lake in what is now The Manor subdivision area. The road has not been maintained by the County in a number of years. Mr. Duncan has provided photographs of what the road looks like today. The statute about road abandonment is certainly that if the same owner owns both sides of the road they can ask for abandonment. What concerns him about this is simply the fact that this has not been maintained. It appears to be a liability and that the City only just became aware that this road even existed. It is certainly up to the Council to decide whether to abandon the roadway or not and the question for consideration has been raised well previously. He is simply bringing this to the Council at Mr. Duncan’s request and he has prepared a resolution in the event that that is what they wish to do. Councilmember Zahner Bailey asked what public road is the road… City Attorney Scott stated that Black Oak Road diverts off of Hopewell. It is a road to nowhere at this point. Lee Duncan, 515 Rivercrest Road, Milton stated the information that he has been able to gather is that this property was deeded to Fulton County in 1955. The road that was put in here, Black Oak Road was deeded as a 60 foot right-of-way. It appears very clearly to him that this was intended to be an access road to the lake or dam that can be seen at the end of the cul-de-sac. The County was intending to maintain that dam and leave this roadway as their access for their equipment to get back there on a regular basis. The last time that he can tell that that occurred, it has probably not occurred in the last 20 or 30 years. It is overgrown at this point in time. What does occur is that road falls from Hopewell Road to his property and as a result there is a constant flow of rainwater whenever it is raining. One can see the ruts in the roadway. It has not been maintained by Fulton County and subsequently by Milton. At this point they have some temporary structures in there which hold back the sedimentation in these areas. It represents to the City of Milton a liability from a maintenance standpoint and he supposes that technically they are in violation of sedimentation and erosion control as well as their own development standards. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 43 of 64 UNAPPROVED/DRAFT Councilmember Lusk asked Mr. Duncan if that road was still accessible for the entire length of Hopewell Road. Is there a barricade? Lee Duncan stated that at the end there is. Councilmember Lusk clarified that the public cannot access the eastern end of the road into The Manor. Lee Duncan stated that they turn off Hopewell Road onto Black Oak Road and there are two or three houses down there. It is not the entire length of the road. They had to barricade it. They were concerned about the traffic and kids on four-wheelers and things such as that getting back there. Councilmember Zahner Bailey clarified that it is accessible from Hopewell Road. Lee Duncan stated that it was absolutely and the home site. He thinks there are three homes on that road which would continue to have access. Milton owns it and they will have to maintain it to the extent that they want it maintained. Councilmember Zahner Bailey inquired what the length and the width of this road was? Duncan stated that he thinks it is 950 feet and the right-of-way is 60 feet wide, about 1.1 acres. Mayor Lockwood asked Mr. Duncan what his time was and if there was any kind of hardship or whatever for why he needs this done now? Lee Duncan stated that he has plats that have been completed but not recorded yet where this road is compacted. They have two pending sales that need to be converted after the first of the year that they have to move on. He is staring a closing. In order to get to closing he has to give assurance to the purchasers that this will not be an imposition. Mayor Lockwood inquired how this road and right-of-way impact these lots. Lee Duncan stated that the roadway itself is adjacent to a couple of the lots that are in that particular plat that they are recording right now. He needs to free this up when he is recording the plat. So that when the title policy is run it does not show up as an issue in title policies. Mayor Lockwood asked what needs to be done to this road if that were to happen. Lee Duncan stated that what they would have to do is to come back with some drainage structures at the end of the cul-de-sac and start to get this drainage under control, which it is not right now. And get it to a point where they are in compliance with sedimentation and erosion control. There is going to have to be a drainage line that runs underneath the fairway and goes all the way across the other side of the fairway to retention pond. It is going to be a lot of work Mayor Lockwood asked Mark Scott what in his opinion is the liability to the City? Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 44 of 64 UNAPPROVED/DRAFT City Attorney Scott stated that there are several liabilities and one of the liabilities mentioned was the actual compliance with the state laws with the local ordinance. Alpharetta recently had to cite itself because it was watering. That is an example of something Milton might have to cite themselves for. Another issue is if anyone was hurt back there given these circumstances, given the condition of the road. One of the issues whenever one deals with municipal liability is that he can’t collect against a municipality unless he can show that they had actual constructive notice of a defect. Milton did not even know it had this road until Lee Duncan brought it to their attention or at least they didn’t even know they had this stretch of this road and they certainly didn’t know what its condition was. Now that they know what the condition is, what concerns Scott is if someone is hurt back there they now have actual notice of the condition. So, if they keep this road, they had better get out there and spend some money on it. Mayor Lockwood asked what value this road or this right-of-way has for the City of Milton, if any. City Attorney Scott stated that they could send an appraiser out there and appraise the actual land just as land. He cannot tell him what that land is worth. Mayor Lockwood stated that he understands about the monetary but what use does the City get out of this right now? City Attorney Scott stated that he doesn’t see that it gets any use whatsoever. What he would say though is it occurs to him that the cost of what they would have to do to maintain it would far exceed the value of that land. Mayor Lockwood stated that they did not want to just give up land if there is a valuable use that he would be using that road as. Councilmember D’Aversa asked if there was a policy or procedure that they go through for determining whether they would abandon a road. City Attorney Scott stated that certainly the State Act on Abandonment, which authorizes this, gives them some framework of policy. Further, the prohibition against gratuities also governs this. He stated that he had to make a determination and he and Mr. Duncan had some discussions about that as to whether or not this could be construed as a gratuity. They ultimately concluded that it would not be or he would not have brought it before Council as abandonment in exchange for nominal consideration. Certainly the Mayor and the City manager and he spoke today about the idea of putting into effect a permanent policy on abandonment. This is the second one that they have had now in a year. Certainly in terms of the way he has handled this is the request was made to him, he looked at the deed, he looked at the previous deed and he was able to determine that they just inherited this from Fulton County and that Fulton County appeared to not have had to pay any money for it either. At that point he was able to determine that it certainly wasn’t something that was going to represent a gratuity. He was also able to determine what is out there and what the condition is. He asked Lee Duncan to provide the Council with photos of the existing condition of the road. At that point the cost-benefit analysis idea of what was it costing the City, what would it cost them to keep this and what benefit would they receive by abandoning it and certainly he thinks they could receive some benefit from abandoning it because they wouldn’t have to maintain it any more or to be liable for something that could happen out there is someone went out there. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 45 of 64 UNAPPROVED/DRAFT Councilmember O’Brien stated there is access now and people are still using at least the end of it. Lee Duncan stated not all the way to end. They have a strong sense that at some point in time in the past there was probably a lot of parking out there but beyond that he can’t speak. There is not really any use beyond that. He said he and the Mayor spoke earlier today about alternative uses and since that conversation he has racked his brain to try to come up with an alternative use and he really can’t think of anything that it would be used for. It is certainly not suitable for a park. It is not suitable for a bike trail, it goes to nowhere. City Attorney Scott asked if the lake still exists and there is access to the lake through The Manor. Lee Duncan stated the lake still exists and they were taking care of the lake and the dam. City Attorney Scott asked Mr. Duncan if he holds the title to the lake and the dam. Lee Duncan stated that he does. But what they put in was a series of rows of mulch about as high as this wall which would act as a deterrent to keep that storm water, if you will, from infiltrating into the lake or infiltrating into other parts of the property. City Attorney Scott said technically, it is matter of Brooks Glen and whoever actually owns that property wanted to complain to the City about the condition of our property causing an erosion effect, they could have a problem. Councilmember Lusk stated we are, in fact, they are in violation of the MPDES regulations. City Attorney Scott stated that they were. Councilmember Mohrig inquired if they are being asked to abandon the entire road? City Attorney Scott stated just the 1.13 acres. Councilmember Mohrig assumed that the other part was still public access. Lee Duncan told Councilmember Mohrig that on the map he had circled that portion that indicates the area that is asked to be abandoned. It is just the end of the road. Councilmember Zahner Bailey stated that as they talk about possible uses it comes to her mind as she thinks about this is that they obviously do have a bike and pedestrian pathway committed. Her concern and she thinks she heard Tina D’Aversa ask about policy or approaches and they said that this was the second abandonment that they have been requested to make. She thinks in Milton, 1.13 acres probably has some monetary value. She agrees with Mark Scott’s point that cost-benefit is always something that they probably have are responsibility to evaluate She stated that the first time that she was made aware of this request was on Monday and the only thing that she has received are these photographs. She does feel the sense of responsibility about looking at what that cost-benefit is rather than just to make a presumption. She thinks there is probably also some value in terms of use as a pathway or even they talked about developments having peripheral alternative pathways. She would be remiss if they pursued abandonment Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 46 of 64 UNAPPROVED/DRAFT without at least some exploration of that. She thinks they can do that in short order. She would sure like to get the input of Mr. Drake this evening. She stated that she was not opposed to considering abandonment but she thinks as part of that they need to consider value to the citizens. There is underlying value to the dirt, it is 900+ feet by six feet and there is value to that. It is 1.13 acres. She thinks in today’s market 1.1.3 acres goes for about $100,000 an acre based on what the real estate market would say. Her request to staff and if it would be the pleasure of this Council would be at least that they get more data than just a few photographs. She thinks it would be important to have the staff take a look at it. She inquired if they had had any advertising of this abandonment to the people on Hopewell, the people on West Brook that may take their horses to this roadway? Councilmember Thurman asked if they can get down that roadway. Lee Duncan stated that he guessed that one could get down there on a horse. He does not know where one is going when he gets down there. Councilmember Zahner Bailey stated just walking down there and back. She is really not debating, she is just trying to understand it from a perspective of….her question was if they had had any advertisement of this abandonment. She knows she has heard as recently as a few months ago at the Crabapple meeting considerable concern from citizens that said when roads are abandoned in Milton, they should know about it. People complain that in Fulton County there were some roads abandoned that they didn’t even advertise. She would ask that they give consideration to advertisement and they give consideration to policy and the fact that they don’t really have one. She believes that the appropriate process would be to have this very discussion at a work session so they can work through those things. They could ask Mr. Duncan to bring his materials. She thinks it would be the responsible thing to maybe get a little bit more time. She understands Duncan’s sense of urgency. Councilmember Thurman stated that the road in Crabapple was a completely, totally different situation. The road in Crabapple was a cut-through road that people used on a regular basis; it was not a dead end road. It was a road that was used by many, many people on a regular basis. This is a road that takes one nowhere but into the middle of Mr. Duncan’s property. She agrees that the Council needs to look at these things, but comparing this to Crabapple, it is not a comparison. Councilmember Zahner Bailey stated for clarification that her comparison was not comparing the use of the road it was a comparison of policy that they heard. The abandonment of a road, not clarifying what type road, that the process of abandonment should have advertising associated with it. She does not know if this road gets used, but West Brook Road is primarily all across there. There are horse farms up and down there and folks are constantly looking for places to ride their horses. She thinks that there are some questions that they don’t have the answers to this evening. She thinks in good conscience it would be reasonable and it would be prudent of the Council to at least get some answers to some questions that have been posed. Councilmember O’Brien asked if there is any legitimate access now and a portion of that issue ends up on that property. So really, anyone who would accidentally or casually, or even in a friendly way end up on that road would end up on his property. So, in effect they would be trespassing. The other thing is the degree of advertising that they might entertain, which is perhaps a consideration. He stated that as the City attorney has pointed out, that merely invites on overt opportunity for the City to cite itself. He stated that an acre of land in Milton is worth a lot of money if it is a lot. An accumulate acre of a road perhaps does Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 47 of 64 UNAPPROVED/DRAFT not approach the same gravity. They are talking about a $1 million golf course lot. He is very concerned that the liability that they have discovered, it sounds as though for those casual users. He thinks they should be fairly honest about the liability of the City. As Mark Scott pointed out they might have to in effect cite themselves because they are not in compliance. Lee Duncan stated that first of all, this has been with the City since the Long Street application was originally provided. If one would recall, when Long Street was under consideration, Tom Wilson was bringing this forward at that time. So, the paperwork has been here for nearly a year. Councilmember O’Brien clarified that Mr. Duncan had already provided this to the Council. Lee Duncan told the Council that rather than complicate the actions that they were considering on Long Street, to separate the two for the time being. At that point in time there was discussion by this body about establishing policy regarding abandonment of right-of-way. Lee Duncan stated he does not know if anything has been done since then but they have been waiting for about a year for some type of reaction. Secondly, this road is not an active roadway except for those people that live in those three homes. Councilmember Zahner Bailey asked Mr. Duncan to comment on the three houses. Are those three houses owned within The Manor? Mr. Duncan stated that they were not, they are individual homes. Councilmember Zahner Bailey asked if those three homes that Mr. Duncan mentioned had immediate adjacency, are they adjacent to this road. Lee Duncan stated that they are. Councilmember Zahner Bailey stated that would be another reason that she would surely hope that they would reach out to the three homes. Lee Duncan stated that he can assure that these three houses, first of all want to be left alone and they would probably prefer just to kind of let things go. But in actual fairness to what Mark Scott and he have been working on, the way the regulations that they have been looking at read is that they provide notification to those properties that front on that right-of-way on an area that is to be abandoned. Since they own the frontage on the right-of-way to be abandoned, they have complied with the regulations. Councilmember Zahner Bailey asked Mark Scott if he had been in contact with those three land owners. City Attorney Scott stated that he had not. Councilmember Zahner Bailey stated that at a minimum he would have an obligation to notify them. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 48 of 64 UNAPPROVED/DRAFT Lee Duncan stated that they do not go down that part of the road. The stretch that is to be abandoned… Councilmember Zahner Bailey stated that she appreciates the comments but she does have valid concerns and she could not hear the speakers’ comments. Lee Duncan stated that the stretch of the road that is proposed to be abandoned is beyond those homes and does not affect those homes. Councilmember Zahner Bailey stated that it is their presumption that it does not affect their use. They do not know if they use that or not. She would compare it as an example if it were off of Phillips Circle or off of Wood Road and there was a house and maybe there was another road that would spur off of one of those roads. If they do not know that they have taken the proactive measure, she just would not want to presume whether or not those three homeowners might indeed…the Council does not know if they use it or not. And in going back to Neal O’Brien, she would agree that lots have a different value. Her point was that there is some value associated with 1.13 acres and her point was that they do not have any valuation to that. They are talking about liability, she understands the potential of liability but they have not assessed that nor have they assessed the value. She thinks in terms of due diligence it is reasonable…. Councilmember D’Aversa asked Mark Scott when they abandon the back end of this road, who is going to maintain the front end for the homeowners that abut it and currently use it? City Attorney Scott stated that he can only assume that that would be handled as the City has been handling that to date. Councilmember D’Aversa asked why, therefore is it an argument that they would abandon the back end of it because there is a liability and/or there is an expense of maintaining it? City Attorney Scott stated that he wanted Councilmember D’Aversa to understand initially that he is not advocating this. Councilmember D’Aversa stated that she just wanted to clarify because she sat here and listened to all of this discussion and first of all, they need a policy. She thinks they ought to stop at this point and go through that process which they need to do in a lot of ways within the City. They need to make sure that they have a thorough accounting of the types of roads that they have. They need to understand that they are a new City and their staff needs to get out and make sure that they have accountability. If they have known about it for a year then they actually did know that they have road. She thinks there are some very valid arguments. The liability is first and foremost and their City needs to get out there and take responsibility for the liability. Motion to defer: Councilmember D’Aversa moved to defer this pending further investigation by their staff and to ask that they pursue some sort of policy or procedural process for reviewing abandonment of property and roads. City Attorney Scott asked if he could clarify where he is coming from on this. Lee Duncan made the request to him that there is a statutory…he knows that there is out right requirement that when a request is made that he has the responsibility of bringing this to the Council and that is what he did. He is not Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 49 of 64 UNAPPROVED/DRAFT advocating this, it is totally a policy decision for the Council to make and he is simply giving them the pros and the cons. He stated that Councilmember Zahner Bailey was correct; there may be a value issue here. The other question was does value exceed the liability? He does not have a clear answer at this point. Councilmember Lusk stated that he agrees that they do need a policy for abandonment and he agrees with Councilmember Zahner Bailey about possibly posting notice prior to any road being abandoned. However, he thinks their greatest issue is their public liability. They are in violation of MPDS and somebody has to take care of that whether it is Lee Duncan or the City. They have liability for people going on this property and injuring themselves. If they are going to defer this, he would recommend that they spend enough money to fence this road in and take care of the drainage issue immediately before they get cited by the feds for polluting the lake down here. It may seem outrageous but they have known about this issue for a year and it is now time that somebody took care of that. If they do not take care of it, Mr. Duncan needs to take care of it. If he is going to take care of it he thinks the City needs to abandon the road and get that liability off of their books as soon as they can. He thinks this case here is a little clearer cut than the abandonment of Crabapple Circle. It is obviously not used. This doesn’t even compare to the condition of the Appalachian Trail. He would be afraid to take a horse down through there. They do have a liability here and now the whole world knows about it, it is out there in front of all of them and he is sure Al is going to write an article about it tomorrow. Councilmember Thurman stated that she agrees with Councilmember Lusk. She thinks if they defer this for one day then they have got to defer it with the understanding that they are going to have to spend some money to make sure that they put a fence up all the way across it so no one can get there or they are going to have to go ahead and take care of the erosion control, whatever it costs them to do. She has no idea of how much all of that is going to cost the City. But if they know that they are in violation of any kind of EPD ordinances and they know that they have a liability that someone could get hurt, she thinks they are in real trouble if they do not take care of those things if this gets deferred today now that they know that it is before them. Mayor Lockwood stated that he agrees with everyone here. Councilmember Zahner Bailey’s comments about value…he thinks that Councilmember O’Brien said that if one has a 60 foot strip in between Mr. Duncan’s property on both sides, it is not the same value as an acre of land because if it goes to nowhere and it is not big enough to build anything, the only person that would have value is the person that owns the land on either side. He thinks they need a policy as Tina D’Aversa stated. He has asked the City Manager to look forward on that so that if something like this, which it will eventually, comes up again. He stated that he also agrees with Bill Lusk and Karen Thurman that there is a liability. Being what he said about the value it is probably a low value because of the fact that it is in between someone else’s property and it would be of no value to anyone else that purchases it. He understands Councilmember Zahner Bailey’s side that if there are people that live there they could ride horses or walk or whatever. In his opinion the liability may be a lot more than what the value of the land is. Councilmember O’Brien stated that he appreciates the summation. He thinks what they have gotten to is they have to make a decision. They have to either obligate funds to immediately secure this liability for the City or they need to abandon it. He is more worried about the liability than information that they may not have. Although it would be nice in every situation to inform people nearby or adjoining or whatever if any petitioner or applicant or whatever Lee Duncan is in this case, if he has complied with their procedure then it is hard for the Council… he is shocked that it has been a year. If he complies with the guidelines that Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 50 of 64 UNAPPROVED/DRAFT exist today then that is something that they need to be cognizant of. He inquired if they have a policy on horses on public roads in Milton? Councilmember Zahner Bailey stated that she knows that they ride on Wood Road all of the time but Westbrook Road and Summit Road, Nix Road… Councilmember O’Brien stated that was kind of a staff question. Do they have a policy anyway? He is prepared to vote one way or the other. Either they obligate funds to immediately secure this road or they should abandon it. He thinks that is the Council’s obligation as a body tonight. They have no other choice at this point. Councilmember Zahner Bailey stated when it came up she thinks that Tina D’Aversa asked about what is the latter portion of this road. What is the full length of the road? If they did not abandon it they would have a dirt road or in theory a gravel road that would go from the edge of Hopewell Road interior, how long? Do they know what the full length of that road is that would be a City of Milton road? Lee Duncan stated that he was going to make an educated guess just having paced it. He suspects that from Hopewell Road to the point of abandonment is about twice the length of the area that is supposed to abandon. He thinks it is roughly 2000 feet from Hopewell Road in to… Councilmember Zahner Bailey clarified that it was a total of 3000 feet. They do not really know. Lee Duncan stated that one little bit more of information that he thinks will help the Council in framing their discussions is that Mark Scott asked him to go ahead and have some preliminary, conceptual design and cost estimates done for the work that would need to be put into play on this particular road to get it to a point where it is brought to some level of standards that would control the run off situation that is currently occurring out there. That number came somewhere close to about $60,000 to $65,000 and that is an immediate cost right now. That is not in long-term maintenance or anything like that that would be involved. That only deals with a 950 foot stretch because that is primarily where it starts to head downhill. For what it is worth, it is preliminary, it’s conceptual. Their engineering groups are usually pretty reliable and they are not going to be off by much; probably 10 percent one way or another. Councilmember Zahner Bailey asked if those numbers were the same as Tami Hamlin looked at. Was he involved in that amount? Has staff been involved in assessing that cost? Operations Director Hamlin stated that they have not. Councilmember Zahner Bailey stated that they heard a lot about liability tonight and she would agree that decisions are important and that is why she thinks that having something come forward when they throw around words like liability without an assessment of what that is. She stated that it was said that it has been sitting out there for a year. She believed that Mark Scott mentioned that he had just had a telephone conversation. The first she has heard about this was last Monday. She asked Chris Lagerbloom if this was something that has been on their docket for a year. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 51 of 64 UNAPPROVED/DRAFT Interim City Manager Lagerbloom stated that he had not noticed and to be honest, but he has not been in this position for a year. Councilmember Zahner Bailey asked Mark Scott if he was aware that this has been on the Council docket for a year. City Attorney Scott stated that he has a vague recollection that there might have been something else that Mr. Duncan had asked them to do at the time they initially began the Long Street discussion. He apparently left it with community development and it was not on his radar screen from that point until now. Councilmember Zahner Bailey stated that she became aware of this on this past Monday. In all fairness to Tom Wilson, she does not know that they know that this has been with… Lee Duncan stated that the truth of the matter is that he did not push it very hard with Mr. Wilson. But now that this plat has been finalized and now they have a couple of people ready to move with them. That is going to pay their employees. Councilmember Zahner Bailey inquired in terms of the value, in terms of why Mr. Duncan needs this land separate from the perceived liability that they may have, etc. When he goes to close these plats a portion of the lots encompass this 1.1 acre. Portions of three lots that he is selling are being sold, including this land. Is that accurate? Lee Duncan stated that it was not. The lots that he is selling…this plat involves about 85 lots and the lots that they actually have contracts on (he hopes) are on the south end of the plat. This is actually on the north end of the plat but it is an encumbrance and will show up as a cloud on the title. Councilmember Zahner Bailey inquired if there was value is completing that potential encumbrance so that he can sell three lots and those lots are selling…. Lee Duncan stated that an estimated cost of the lot is approximately $200,000 a piece. Councilmember Zahner Bailey stated that her thought when she thinks back to the City budget and she thinks about a $10,000 tract that Hopewell-Bill Memorial wants or some other things that they need like lights being paid for, she gets back to the issue of value. She understands liability and she also understands value. She thinks that there is some dollar value to this and again, she would ask that the Council at least consider asking for some value and consideration for abandonment as opposed to giving nothing to their citizen’s vis-à-vis abandonment. She does not know if they have had any public comment. Councilmember Zahner Bailey stated that she wanted to understand the premise that the applicant has set. Not getting this decided is holding up the sale of three lots and if the sale of three lots was going to be the sale off…they are taking in $600,000 in theory but there is value to the development to cure this and to seek that abandonment so that they can complete those sales. Her point is that there is underlying dirt that is owned by citizens. Whether or not any one member of us might find value in that, there is probably some dollar value associated with the transaction of abandoning land to allow a sale. She believes that they are Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 52 of 64 UNAPPROVED/DRAFT giving up the opportunity to exchange abandonment for some value to the citizens. She thinks that is part of their fiduciary responsibility. Lee Duncan stated that they have gone from a company of about 80 employees down to about 15 employees. They are trying desperately every Friday just to make a payroll. They are working intensely to try to be good citizens in the City of Milton. He is trying to demonstrate to the Council that they are responsible in the way they handle their business. He thinks they have done a good job of that. If the City of Milton needs help, just as they have done in every other community and every other part of the City where they work…if they will subtract what they are needing help with, if it is a fire truck they need help with, if they are trying to raise money to build a fire station all they need to do is give him a call and they will be their shoulder to shoulder with each and every one of the Councilmembers and they will meet their obligations as a civic member of this community. Councilmember Zahner Bailey stated that she appreciated that. Her statement was really about valuation of land as it relates to a policy and the fact that they are looking to abandon a portion of land that she thinks has some value associated with it. She absolutely appreciates Mr. Duncan’s civic obligation as folks who are business owners in the community. Councilmember O’Brien stated with all due respect that he was sensing that they are mixing metaphors because there is, as he understands it, no intrinsic value to this crew with their abandonment. As he understands it the Council has an understanding to any either maintain this property or abandon it and in so doing prevent a cloud on a title. Councilmember Zahner Bailey stated that it allows for the completion of that transaction. Councilmember O’Brien stated that he was just concerned that if they are shifting into consciously manipulating the destiny of a transaction of someone’s home. Councilmember Zahner Bailey stated that there was no manipulation. It is an issue that would be very clear. She thinks that there is some value that citizens deserve as citizens of Milton. When they abandon land whether it is land, whether it is a road, whether it is a park, whatever it is, she thinks that there is valuation that goes with that dirt. That is her point and it is complicated statement. Karen Thurman stated fair market value for a willing buyer would be able to reside from a willing seller at an arm’s length transaction. A narrow road that can be used for absolutely nothing else is of no value to anybody but the Manor. No one else would have any value whatsoever for it because they could not do a thing with the road because it goes nowhere. The cost of the City maintaining it is more than it could possibly be worth. So it may have a small value to them but they are the only ones that would be the willing buyer of the whole thing. If they do not allow the abandonment it is going to cost the City up to $60,000 immediately and how do they know how much it is going to cost over the next few years to maintain it? The fact that it does not look real good for the City to be violated the EPD on their roads themselves; obviously it is in horrible condition. They can squeeze and squeeze and squeeze people as much as they want but the truth of the matter is this piece of property has very little value. Councilmember Lusk stated that he would assume that the City is not deriving any taxes on this length of road right now. If it were to be abandoned and transferred to The Manor he would assume that that piece of land would go on the tax rolls. So there is benefit to the City. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 53 of 64 UNAPPROVED/DRAFT Lee Duncan stated that he has no doubt in his mind that they would be assessed a higher value as a part of a lot that at some point in the future would be a benefit to the City of Milton. Councilmember Mohrig stated that they have talked a lot about repair and liability. The question he has is if they are in violation of EPD laws, what is their timing, liabilities right now? How quickly can they get this fixed if they are going to hold onto it? Interim City Manager Lagerbloom stated that he has heard that quite a few times tonight and he does not know that they have any study that says that they have a firm violation of any EPD laws. No one has been out there for City staff or that they are aware of from the state or federal level for that matter. It looks on paper that there are some erosion issues that they probably need to address but he is not comfortable sitting here tonight and telling them that they are in violation of any EPD laws. Councilmember Zahner Bailey added that she thinks since the newspaper is here in the audience that is a pretty important thing to clarify. She thanked Mr. Lagerbloom for his input. Mayor Lockwood asked for public comment. Paul Moore, 15290 Lake Collins Drive, Milton stated that he appreciates all of the comments this evening but he would also confess his dismay in the fact that they have really absolutely created a violation of what has been the standard process in terms of hearing from opposition. The extent of the discussion that the Council has gone through this evening is at the benefit of the opposition until this point in time. He thinks it is just a bit out of order the way it is going. That being said, Mr. Moore would like to say that his opposition this evening is only in the fact that there is process that has not had a chance to unfold here. The City does not have a process for assessing abandonment. They are a City that is supposed to be about the rural preservation of this area and along with that comes dirt roads. They are an equestrian community that whether this road is currently being used or not as such with repairs that are being done there could potentially be some consideration for those uses. To Lee Duncan’s point it sounds like he has mitigated some of the risks that this has already installed by putting those berms there. To suggest that there is an immediate sense of urgency to that, by his owns words tonight, he has said that he has not seen anyone on that road for a great length of time. He does not know that they are at risk of anybody walking down that road tomorrow to make a difference. He stated that it sounds like the road was usable at one point. He understands completely that there is going to be some need for repair. But the Council has not taken the time or has had the time to make those assessments to at this point award that to Mr. Duncan without any consideration for fair market value, for process, for assessment for values to the road, to the trail way system, to the bike and path way system. He thinks it is completely without regard for what the citizens have told the Council time and time again has value here. He asked that the Council take whatever time is appropriate and not to suggest that it is a week, or 10 days or 30 days but some time within their schedule as best permitted to take that step by step process. It sounds him that Mr. Duncan is intending to repair the road for some use of some kind. So, if Mr. Duncan sees some value to it, he is not sure the Council should be rushing to give it away so quickly without those considerations that are appropriate to this. They have not had any discussion on presentation from the immediate land owners who may have a value assessed to it. There are a number of things that are still left to be discussed. He asked that the Council consider all that is before them and make a decision this evening to abandon. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 54 of 64 UNAPPROVED/DRAFT Mayor Lockwood asked Lee Duncan what was the use if they were to abandon this property? What would his use be? What would his plans immediately be? Lee Duncan stated immediately it would be to go ahead and get the storm water collection structures in place and to comply with what they understand to be the regulations. He can assure the Council that if he owned this road right now and one of the City inspectors came out there, he would be getting citations tomorrow, if not tonight. At some point in time this would be folded in to another lot or mixed in with other lots or become a sliver of property that gets added to another lot. But they have to get in there and get this thing under control and get the mess that they have down there cleaned up. Councilmember Lusk stated that as a holder of a class level I-A certified inspector for erosion control in this state he guaranteed Duncan that this is in violation. Councilmember O’Brien stated that he always appreciates Paul Moore’s comments and he agrees that the process is helpful but he feels that the process is a tool. It is not a goal. He pauses when he hears Mr. Moore say that what has gone on here in these last few minutes is an abomination of process. But he is struck by the irony that in the next breath he said that no process exists. He fears that Milton is establishing a reputation. He is just concerned that at this some level this has been floating around in the City and this type of thing is giving Milton a little bit of a bad reputation. He agrees that if they have not seen what is obligated they should. If Mr. Duncan has not complied or his group has not complied with what is required, they should. On the other hand, if they have complied with what is required it is pretty capricious to again and again ask people to come back and do more than what they have actually have established. He agrees that if they did have an abandonment policy and have a structure to evaluate these… Mayor Lockwood stated that he agrees that they need a policy. He does not know if they were to defer this until next week’s meeting if there is any information that staff could… Interim City Manager Lagerbloom stated that if they need to work on policy they could put it on the workshop agenda on January 17, 2008 and this would likely come forth in February. Mayor Lockwood stated that he wanted to recommend that they do a policy immediately. Is there any information within the next week before their next meeting that staff could come up with some of these questions they have had that is any different than what they have right now. City Attorney Scott stated that they could certainly order an appraisal of the property but it probably would not be back within a week either. Councilmember Zahner Bailey asked if they have staff go look at this piece of property and assess the condition and have Dan Drake and public works…. Public Works Director Drake stated that tomorrow he will make sure that erosion control and he get out there and inspect the site. He is not well aware of the road but he has not heard any complaints or anything about the conditions out there. He will make sure that someone with a badge does go out there tomorrow and look at the site. They do have requirements they have to follow to make sure that they are in compliance and they are required to do as such. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 55 of 64 UNAPPROVED/DRAFT Councilmember Zahner Bailey asked if they could ask for an expedited real estate appraisal at some level by someone with knowledge that would have at least a cursory….could they ask the chairman of the bike and pedestrian pathway or their committee to take a cursory look. She stated that she does not mean a valuation, she meant to say from the bike and pedestrian pathway perspective, from a planning perspective would be one of the pathways that they would want to have as part of their connectivity. When one talks about pathways and bike paths and equestrian pathways they have potentially 3,000+ square feet that in theory could be part of the connectivity that they have been spending months saying that is important and that they have received money from the state legislature to put in place some connectivity for pathways. She could see that that might be one other option in the next few days. Councilmember Thurman inquired if they would be issuing the City a citation or a warning or whatever if they are not in compliance? If it is a violation, just as they would anybody else. She is so very worried about liability… Mayor Lockwood opened the floor for a motion and a second. Councilmember D’Aversa stated that there is a motion on the floor to defer this and have the staff review and other issues reviewed. Councilmember Zahner Bailey inquired if there were a time frame associated with the motion? Councilmember D’Aversa stated that we will have to defer to the staff because the Council is not receiving information solidly enough that they can….if they can give them information on Monday she could come in Monday and review things if that information could be provided to us as she is sure everybody else can. They have a meeting anyway. Interim City Manager Lagerbloom stated that he was certainly fine with doing some additional work on this. What he would need to do is really find out what would be of value to the Council so that they focus their efforts, the small time that they have in the next seven days, to potentially bring them something better than what they have tonight. He does not want to embark on five or six different projects and none of them return successful. If the Council wants extra work, he would like to go through a process that they identify what is their top three priority items so that they make sure that when staff goes out…whether they want an appraisal, if that is the first priority item or whether they want an environmental evaluation. Whatever they want. Councilmember D’Aversa said with the liability the Council would want to do a proper assessment in general which would encompass valuation, liability and talking with the adjacent homeowners. As well as we are still going to be maintaining more than half of this road but some of the arguments for the abandonment concern her. Interim City Manager Lagerbloom stated that he was not comfortable saying that they can do that in seven days. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 56 of 64 UNAPPROVED/DRAFT Councilmember Zahner Bailey asked if at a minimum they could have somebody from staff go to this property. Could Mark Law go to the property or Tami Hamlin and physically go to the road, and he is certified, and at least give them a report. Right now all she has is a photograph from the person who wants the abandoned land. She does not have anyone from staff that has even set foot on this property that could even tell the Council what their professional opinion is. That, at a minimum would be very helpful. Interim City Manager Lagerbloom stated that he could certainly have a staff member visit the site. Councilmember Zahner Bailey stated that she would be happy to contact real estate companies that do valuations and find out if there is a way to get it expedited. If is like pursuing abandonment without any valuation, they can not say that they ever had somebody take a look at it. But if they make a phone call and she is happy to make one or two to see if they can get someone just to go out and give them an assessment. Councilmember Thurman stated that she is sure that will cost them some money too so they need to make sure that they understand that there is going to be some cost to the City associated with… Councilmember Zahner Bailey stated that there probably is a few hundred dollars that it would cost to get an appraisal. She thinks a few hundred bucks is probably worth a decision about abandoning a thousand square feet of roadway. Mayor Lockwood asked that Councilmember D’Aversa’s motion that if it were deferred and he is not sure if she was talking about deferring it until the next meeting and trying to get some preliminary information. Councilmember D’Aversa stated that she would like the staff’s recommendation. Who is the most appropriate person to give them a recommendation as to what needs to be done here for the Council to make a more educated, informed decision? It would be more than one person, they would need to talk with Jim Seeba, who is the storm water expert, and they need to talk to community development. Interim City Manager Lagerbloom stated that he was not comfortable telling the Council that he can have a product for them on the 13th. He had rather under promise and over deliver. They can have an update and tell them that they have done one, two, three and four. He just does not know that they will necessarily be to a level that they are satisfied with. He just wanted to throw it out there that they would do the best that they can after a couple of days of formal working hours with this issue at least in the forefront. Councilmember Lusk stated that he is not sure what they are trying to prove or disprove. It was stated just to have a recommendation from staff. He asked what kind of a recommendation they are trying to get from staff. Mayor Lockwood stated whether to abandon the property or not or... Interim City Manager Lagerbloom stated that he was interpreting that they want some kind of condition report. If he was to put a couple of words to it that is what he thinks he is hearing that they wanted a condition report. Is that a fair assessment? Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 57 of 64 UNAPPROVED/DRAFT Councilmember Thurman asked what staff would be doing in the meantime to make sure that they do not have somebody get hurt by going down that road or anything. Councilmember Zahner Bailey stated that he thinks the road is already roped off. Councilmember Thurman stated that they could take the barrier down tomorrow. Mayor Lockwood stated that they could keep talking about or Council person D’Aversa can finish her motion and they will see if either passes or fails. Motion and second: Councilmember D’Aversa moved to defer this item until staff can obtain additional information brought forth at the December 13th meeting so that Council can make a more comfortable, better informed decision. Councilmember Mohrig seconded the motion. Councilmember Lusk stated that he would like to define in this motion exactly what the field research is going to do and what kind of conclusions they are going to reach or try to draw from whatever research they are going to perform. He asked that they be a little more specific about this. He does not want to come here in another week and say “well, did you look at this, or did you look at that”? Councilmember Zahner Bailey stated that she would be happy to throw up some suggestions. She would like to know the condition of the road. She would like to know the length of the road including from Hopewell to the point of suggested abandonment and then the additional length from the point of abandonment on. Also whether or not they believe in their professional opinion are we or are we not as a City, in violation of any things that are out there with regards to storm water. She would like to have somebody take a look at it from a valuation perspective. What is that value? She would also like for them to put a phone call in to Dr. Maloney as the chair of the bike and pedestrian pathway committee and if nothing else, ask if he could take a courtesy look at it. Councilmember Thurman stated that she would like to know what the City is going to do to make sure that they minimize their liability in the meantime. It was stated that a horse could get around the barrier and go down the road. Interim City Manager Lagerbloom stated that he has heard a couple of people say tonight that they want to put a fence up around it. Is that something that they want to pursue tomorrow? Councilmember Thurman stated that it depends on whether they feel like they need to minimize their liability. Councilmember Zahner Bailey stated that the comparison she would have is that the 200 acre Birmingham Park has a gate. People walk back on that road every day. If they are this concerned about 3000 square feet then she hopes they have staff out at their 200-acre park tomorrow with postings and making sure that nobody accesses that park because they all know that people access that park. They need to be realistic. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 58 of 64 UNAPPROVED/DRAFT Councilmember Mohrig stated that there is a no trespassing sign. Councilmember Zahner Bailey suggested they post a no trespassing sign at a minimum. She asked if that would meet the City attorney’s requirements. City Attorney Scott stated that he thought that would do a lot from a liability perspective. It is a public road; can they put up no-trespassing sign on a public road? He would like to clarify whether or not it is in fact barricaded. Lee Duncan stated that there are temporary barricades that have been set up, some barrels and poles. It does not restrict any pedestrian access and does not restrict any type of equestrian access, bicycles or anything like that. City Attorney suggested that what they do at a minimum is to put up a GDOT approved road closed sign as well. Mayor Lockwood stated that there was a motion on the floor by Tina D’Aversa seconded by Rick Mohrig. He asked if anyone wanted to amend the motion. Councilmember Lusk stated we need a date and he suggested we make an amendment was made to seven days from today and to include all items that tend to come back to this Council on that date with a recommendation to abandon or not to abandon. Councilmember Thurman asked to include in his amendment that the proper signs are to be posted reflecting the road closed tomorrow morning. Interim City Manager Lagerbloom stated that he was uncomfortable that in seven days he could have this for the Council. Mayor Lockwood asked Mr. Lagerbloom if staff will have information that may or may not be able to give recommendation to abandon or not. Interim City Manager Lagerbloom stated that would be the Council’s policy decision. The staff is not going to come with a recommendation of whether to abandon or not. But they will come with a status report based on the questions that were asked. Councilmember Zahner Bailey asked that as part of a recommendation whatever portion of a recommendation they come forward with it would be abandon, not abandon or possibly abandon with a consideration of some value. Interim City Manager Lagerbloom stated that he does not know if he is going to come back with a recommendation to abandon or not. He thinks he will come back with a status report that says that Council has asked these six questions, here are their six answers. And if in fact they have the time to do an appraisal or valuation in the next seven days, if they can find somebody to do that, he will tell then what that number is and then the Council as a governing body can decide if it is the right thing to abandon. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 59 of 64 UNAPPROVED/DRAFT Mayor Lockwood stated that staff can between engineering, between Mark Law, between legal, even if there is a call to a qualified real estate person just to get some general assumptions, there should be a lot more information than what they have right now. Lee Duncan told Mayor Lockwood that he would make all of his resources available to the staff and make sure they see everything that is out there. This is extremely important to this company and he would hope that by the 13th the information that they feel is essential to make this decision… Mayor Lockwood stated that he certainly understands where Mr. Duncan is coming from and his company is coming from. He just truly believes that in order to have a comfort level from the City, they would to have a little bit more information. Lee Duncan stated that back to the comments from the gentleman about the process. They may not necessarily agree on the end results but frankly, he does subscribe that there has to be a process. Mayor Lockwood stated that he totally agrees. Lee Duncan stated that this is so frustrating for him and their positions here. He has been here since 7 p.m., it is now 11 p.m. They have essentially had two items on the agenda and this item here, in every other municipality he has worked in, he has been doing this for 45 years, and this would be a 10-minute item. It would be done and beyond it. And they have managed to drag this out into at two-hour session. Mayor Lockwood stated that they have an amendment to defer until next week, next Thursday night. They want to amend that motion specifying what they plan on achieving. They talked about engineering, Mark Law, legal, talking to a real estate appraiser, obviously they could not get a real estate appraisal but they would talk to someone in the real estate business that is impartial to it and be given the scenario. Councilmember O’Brien stated that having been licensed he is struggling to think of a vast field of expertise that a road appraisal…. Councilmember Lusk stated that Lee Duncan volunteered to take him up on that and possibly a rough estimate on bringing the road up to acceptable county and standards. Mayor Lockwood also recommended that everyone make a quick visit out there, too at some point this week. Interim City Manager Lagerbloom stated the amendment includes the following: a report that will include the condition, the length of the road, whether or not it violates the storm water evaluation. To contact Dr. Maloney for a courtesy look. Ways to minimize liability and repair estimate. To include posted “road closed” sign in the morning. Councilmember Zahner Bailey inquired if there would be any benefit to at a minimum contacting the land owners that they say potentially have access to that now? To make them aware that this is being pursued for abandonment, they live right next to it; they may or may no know. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 60 of 64 UNAPPROVED/DRAFT Mayor Lockwood asked Lee Duncan if he knows if the residents of the three homes know or have any interest in this. Lee Duncan stated that he does not think that they know but he is also very confident that they really have no strong feelings one way or another. The City is welcome to go talk to them if they want. Councilmember Zahner Bailey asked if they were citizens of Milton. Lee Duncan stated that he does not know where they come from. Councilmember Zahner Bailey stated that she meant that some of The Manor is in Cherokee County, some of it…she is assuming that…. Lee Duncan stated that this is in Fulton County that is the reason… Councilmember Zahner Bailey stated this is a portion of the land that is definitively in Fulton County; therefore they are citizens of Milton. Motion to Amend and Vote: Councilmember Lusk moved to amend the motion to state that the item will be to deferred until the Council meeting on December 13th and as part of that the report will include the condition, the length of the road, whether or not there are violations of storm water, valuation, contact Dr. Maloney for a courtesy look, ways to minimize liability to include putting a GDOT approved road closed sign, a repair estimate and to contact people who may be affected by the abandonment. Councilmember Mohrig seconded the motion. The motion to amend passed unanimously. City Clerk Marchiafava stated that they were now voting on the original motion as amended. Vote on original motion: The motion passed unanimously. Lee Duncan stated that he will not be available on the 13th. He is having a minor medical procedure. He will probably have to have Mr. Watson, their attorney that will be sitting in on this. He stated that he would try to brief him and make sure that he is fully informed. He asked staff if he could possibly get a copy of the written motion that was approved so that he can brief Watson properly. Interim City Manager Lagerbloom stated that he can get that from the clerk’s office. City Clerk Marchiafava told Mr. Duncan that she could e-mail that to him tomorrow. Mayor Lockwood stated that he would also be available if Mr. Duncan needs to call him with any questions about it or come by and visit with staff. He stated that all of their attention should be on getting all of the information that they can to make a quick decision next week. Councilmember Zahner Bailey thanked Mr. Duncan for his point about the necessity for a process. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 61 of 64 UNAPPROVED/DRAFT Lee Duncan stated that the thinks it is going to make life easier for the Council and for the citizens that live here. City Clerk Marchiafava read the next agenda item: 2. AGENDA ITEM No. 07-444, A Resolution regarding reimbursement of legal fees for Councilmembers charged with ethics violations determined to be unfounded. City Clerk Marchiafava stated that this item was deferred by motion and vote to the December 13, 2007 meeting. MAYOR AND COUNCIL REPORTS Councilmember Zahner Bailey stated that she had some things to go over on the Fulton County budget. She asked if it was better to go over them now or wait and see what the agenda is going to be like on the 13th. Interim City Manager Lagerbloom stated that it would be longer than tonight by a lot. 1. Councilmember Zahner Bailey gave an update on her meeting with Commissioner Lynn Riley to review the Fulton County budget. Those items which are specific to Milton: • It allows for the staffing/leasing of the office space in north Fulton at the tax commissioner’s office. She asked about this so citizens can have their property tax appeals heard in the north Fulton office. She was very, very receptive toward that. • There is money in the tax assessor’s office for continued reassessment of all commercial property. They expect the final assessment of commercial property to be complete in 2008. Fulton County is expecting next year $13.7 million based on the reassessment so evidently they are expecting to reassess. • There is some funding for a gender equity study. • The money for Providence Park is in the budget. They have it coming out of Milton’s special service district fund. The way it is going to work is it depends on what has been paid out by the time the special service district fund is legislated and gets turned over to the City. If it doesn’t get paid out prior to it, then the special service district fund will just come to the City as it is and this additional amount of up to $750,000 will be paid for out of risk management rather than being paid for out of the special service district. So they want to access the money as soon as they can because if not it could be $750,000 less for Providence Park. • One good thing to note in here is that the budget did not reflect any additional insurance premium tax revenue for John’s Creek or the City of Milton for last year. • They did have in the budget the emergency communications and 9-1-1 for the whole year for Milton. They are looking at working with Alpharetta on that. But they did have that included in the budget for both ways so once that is finalized they will need to let them know that. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 62 of 64 UNAPPROVED/DRAFT • They are also notified that there could be some problems with the revenue numbers due to some things like the tax liens that were supposed to have been sold have not so revenue could be down significantly which would affect the tax Millage rate and cause it to go up more than the amount that it is currently proposed for. • The budget is going to be coming before them shortly. Milton just needs to be prepared that if it goes through as it is, it will be a tax increase and she knows that it will be a Fulton County tax increase but the City will have to answer to the citizens as well. 2. Councilmember D’Aversa stated that she emailed her report to the Council. It was just the Disability Awareness Committee has been meeting and have moved forward on a number of things. She will wait until they have a little bit larger session. They would like to come before Council again. 3. Interim City Manager Lagerbloom stated that Council will have an email that indicates that there is an update on the comprehensive plan Monday at 5 p.m. That will be at City hall in the executive conference room. That is being advertised as an open meeting. 4. Interim City Manager Lagerbloom said he they are in the process of finalizing the annual report. It will go out in a calendar format. STAFF REPORTS 1. City Arborist Mark law gave an update of Local Issuing Authority Status from Environmental Protection Division (EPD) • On November 7, 2007 the Georgia Department of Natural Resources Environmental Protection Division informed the City of Milton that they have been approved as a local issuing authority, also know as an LIA. • The City of Milton has shown that they have qualified personnel in place and that they have adopted a soil and erosion and sedimentation control ordinance. In becoming an LIA it allows Milton to form a partnership with Georgia Soil and Water Conservation District, the Georgia Soil and Water Conservation Commission, Georgia Environmental Protection Division and the Natural Resources Conservation Service. • This relationship ensures that Milton will have the technical resources necessary to conduct and improve its oversight of land disturbance activities within the City. Responsibility of the Local Issuing Authority includes processing land disturbance applications and permits, inspections, enforcement and complaint investigations. • Some benefits of being an LIA are that they have greater control over the permitting; the ability to review projects for additional requirements and the LIA in the City of Milton receives half of the $80 per acre MPDES fee in addition to regular land disturbance fees. • The City’s next goal is to be classified as Local Issuing Authority with the Memorandum of Agreement. This allows for faster turn around of reviewing and permitting plans as they will no longer have to forward application packages to additional agencies for approval. Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 63 of 64 UNAPPROVED/DRAFT EXECUTIVE SESSION City Clerk Marchiafava stated that Executive Session was added by motion and vote and the purpose of the Executive Session is to discuss pending litigation. Motion and Vote: Councilmember Zahner Bailey moved to adjourn to Executive Session. Councilmember Mohrig seconded the motion. The motion passed unanimously. Mayor Lockwood reconvened the Regular Meeting. Mayor Lockwood stated that the would like to amend the meeting agenda and add a resolution authorizing the City Attorney to commence litigation in a meeting styled as K.H Outdoor Advertising vs. Fulton County; Granite State Outdoor Advertising vs. Fulton County and Action Outdoor Adverting vs. Fulton County. Motion and Vote: Councilmember Lusk moved to amend the meeting agenda. Councilmember O’Brien seconded the motion. The motion passed unanimously. City Clerk Marchiafava stated that the Council will now discuss the resolution which was added by amending the meeting agenda with. City Attorney Scott stated that he is asking the Council to authorize as well as pass a resolution authorizing him to commence litigation in the litigation styled as K.H. Outdoor Advertising vs. Fulton County, Granite State Outdoor Advertising vs. Fulton County and Action Outdoor Advertising vs. Fulton County in the Superior Court of Fulton County. One thing Scott asked the Council to do is they are also going to add one additional whereas paragraph above the seconded to the last and that he would read the resolution: “The Council of the City of Milton hereby resolves while in regular session on the 6th day December, 2007 starting at 7 o’clock p.m. Whereas the Mayor and City Council as the governing authority of the City of Milton and whereas the City of Milton was created by House Bill 1470 passed in the 2006 session of the Georgia General Assembly and whereas the Mayor and Council are charged with the protection of the health, safety and welfare of the citizens of Milton and whereas the City of Milton Mayor and Council have been briefed by the City attorney on the resolution to the Fulton County Commissioners to enter into a global settlement of billboard litigation to include the above styled lawsuits, And, whereas the City of Milton Mayor and Council believe that Fulton County has failed to comply with the laws of the state of Georgia in approving a legal settlement which would result in the illegal issuance of retroactive permits in the corporate limits of the City of Milton and the only remaining remedy available is through the power of the court system and whereas, in the event that Fulton County issues said permits it is the belief of the City of Milton that the plaintiffs in the above styled law suits may immediately begin the erection of billboard signs within the corporate limits of the City of Milton in violation of City law and ordinance and that the health, safety and welfare of the City and its citizens would me in peril thereby and whereas the cities of Sandy Springs, John’s Creek and Alpharetta have all taken similar action and the City of Milton intends to cooperate with them to the fullest extent, and whereas the City of Milton Mayor and Council hereby authorize the City attorney to commence litigation intervening in the above styled lawsuits seeking temporary restraining orders and permanent injunction against the issuance of said permits as well as Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 64 of 64 UNAPPROVED/DRAFT declaratory judgment that Fulton County is without legal authority to issue permits within the corporate limits of the City of Milton. Now, therefore be it resolved by this Council of the City of Milton, Georgia and it is resolved by the authority of said Council by passage of this resolution, City of Milton Mayor and Council have provided official notification that the City attorney authorized in the intervention in the three lawsuits as indicated above resolved this 6th day of December 2007.” Motion and Second: Councilmember D’Aversa moved to accept the amendment to the resolution. Councilmember Thurman seconded the motion. Councilmember Zahner Bailey stated that she had one question. In the last whereas, it said to issue permits… City Attorney Scott stated that he has taken out the word “sign” in all of those cases as he read it. Mayor Lockwood stated that there is a motion and a second to approve the resolution authorizing the City attorney to commence litigation intervening the litigation styled as K.H Outdoor Advertising vs. Fulton County, Granite State Outdoor Advertising vs. Fulton County and Action Outdoor Advertising vs. Fulton County. Vote: The motion passed unanimously. ADJOURNMENT The regular meeting of the Milton City Council was adjourned at 12:01 a.m. ____________________________ _________________________ Jeanette R. Marchiafava, City Clerk Joe Lockwood, Mayor (Seal) Regular Meeting of the Milton City Council Thursday, December 6, 2007 Page 64 of 64 and it is resolved by the authority of said Council by passage of this resolution, City of Milton Mayor and Council have provided official notification that the City attorney authorized in the intervention in the three lawsuits as indicated above resolved this 6th day of December 2407." Motion and Second: Councilmember D'Aversa moved to accept the amendment to the resolution. Councilmember Thurman seconded the motion. Councilmember Zahner Bailey stated that she had one question. In the last whereas, it said to issue pen -nits... City Attorney Scott stated that he has taken out the word "sign" in all of those cases as he read it. Mayor Lockwood stated that there is a motion and a second to approve the resolution authorizing the City attorney to commence litigation intervening the litigation styled as K.H Outdoor Advertising vs. Fulton County, Granite State Outdoor Advertising vs. Fulton County and Action Outdoor Advertising vs. Fulton County. Vote: The motion passed unanimously. ADJOURNMENT The regular meeting of the Milton City Council was adjourned at 12:01 a.m. Approved February 4, 2008 §Jee't—t'el. Marchiafava, City Clerk Joe Lockwo, , ay or (Seal)