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HomeMy WebLinkAboutMinutes CC - 07/14/2008 - MINS 07 14 08 SC (Migrated from Optiview)Special Called Meeting of the Milton City Council Monday, July 14, 2008, at 4:00 pm Page I of 21 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 includes limited presentation by Council and invited speakers in summaryform. This is an official record of the Milton City Council Meeting proceedings. Official Meetings are audio recorded. The Special Called Meeting of the Mayor and Council of the City of Milton was held on July 14, 2008 at 4:00 PM, Mayor Joe Lockwood presiding. CALL TO ORDER Mayor Lockwood called the meeting to order. ROLL CALL City Clerk Marchiafava called the roll and made general announcements. Council Members Present: Councilmember Karen Thurman, Councilmember Julie Zahner Bailey, Councilmember Bill Lusk, Councilmember Alan Tart Council Members Absent: Councilmember Tina D'Aversa, Councilmember Burt Hewitt City Manager Billy Beckett stated Councilmember Hewitt was ill and could not make it to the meeting and Councilmember D'Aversa was delayed in Chicago on her return flight. She was supposed to have returned from Japan last evening, but was delayed due to inclement weather. PLEDGE OF ALLEGIANCE City Clerk Marchiafava led the Pledge of Allegiance APPROVAL OF MEETING AGENDA Staff recommended the following change to the Meeting Agenda: 1. Add an Executive Session to discuss pending litigation. Motion and Vote: Councilmember Tart moved to approve the Meeting Agenda, as amended. Councilmember Zahner Bailey seconded the motion. There was no Council discussion. The motion passed unanimously (5-0). PUBLIC COMMENT There was no Public Comment. NEW BUSINESS City Clerk Marchiafava read Agenda Item 08-618: TO DISCUSS AND POSSIBLY RESOLVE ISSUES WITH PENDING PERMIT LIMITATIONS. City Attorney Ken Jarrard • His office has rendered a legal opinion with respect to availability of sewer within the City of Milton. • They communicated the opinion to Fulton County and it raised some issues with respect to how we will proceed with respect to sewer service in the City of Milton. • The last discussion was in context with the Sembler Development and giving staff direction with respect 00" to permitting. • Staff needs further direction with respect to a host of developments that are in various stages of the *moo permitting process. • There is no constitutional entitlement to sewer service from Fulton County. • Does staff continue to issue permits based upon developments that are based upon sewer service when it is now the position of Milton that sewer is unavailable. Special Called Meeting of the Milton City Council Monday, July 14, 2008, 4:00 PM Page 2 of 21 • When we dealt with the Sembler situation, we looked at various issues that were deemed to be important and one of the largest issues was the existence of a LDP. • There were other issues pertaining to what basin the development was in. • Whether or not the developer had extended funds and how much funds. • Whether the development was near completion. Mayor Lockwood • Thanked everyone for being at the meeting. • He knows that there is a lot of interest and concern in this situation. • Speaking to the development and business community, he appreciates the patience and working with the Council on this. • He wanted to let them know that this is not something the City has come up with to give them a hard time or make it more difficult for them. • As a simple analogy, it would be like driving down the road as a lawful and safe driver and for some reason pulling out the insurance card and realizing the insurance has lapsed and not having insurance. He relates this as the same type of thing. • We realized through legal opinions that we did not have these agreements in place. • We are trying to get the agreements and everything in order and not trying to give everyone a hard time. Community Development Director Alice Wakefield • Gave a power point presentation. • We tried to color code the projects. • Yellow being projects that have approved Land Disturbance Permits or are part of a larger Land Disturbance Permit and where there is actual construction that has taken place on the site. • The red are projects that have filed for permits but permits have not been issued. • The green means that they are currently within the bounds of the current IGA • Started with the yellow. • Windward Village is a commercial development and has an approved LDP; there is no building permit and it is in the Big Creek Service area. • Deerfield Green is a mixed use development consisting of retail, residential, 256 residential units, in the Deerfield area and is covered by the Big Creek service area. • CVS is adjacent to Deerfield Green and it is a retail drug store located off of Bethany Road and Highway 9 and it is in the Big Creek service area. • Vickery Crest is a 64 lot residential development located off of Hopewell Road and appears to be located in the area that Fulton County considers part of the Big Creek service area. • Haywood Commons is a residential development consisting of 68 lots located off of Highway 9 in the Big Creek service area. •. These are projects that have Building Permits, LDP(s) and active construction. • Kennewick is a residential development consisting of 115 lots of which 21 are located in Forsythe County; there is active construction and it is in the Big Creek service area. • Centennial Village is a residential development consisting of 29 units located off of Highway 9 and it is in the big Creek service area. • Bethany Bend Village is commercial retail, office and restaurant located in the Big Creek service area. • Hidden Forrest is residential development of 60 town homes located in the Deerfield area and service by Big Creek. rel • Deerfield Place Il is retail development within two buildings in the Big Creek service area. • Crabapple Mercantile Exchange is a project with active construction; it is a retail development in six buildings located in the Big Creek service area and also on the Crabapple master plan; it shows being serviced with sewer. Special Called Meeting of the Milton City Council Monday, July 14, 2008, 4:00 PM Page 3 of 21 +M• • Crabapple Crossroad in included in the Crabapple plan as being property that can be serviced by sewer to" and it appears to be in the Big Creek service area. • Milton Place is off of Hopewell Road and is residential consisting of 27 lots and appears from the Fulton County map to be located in the Big Creek service area. It appears to be on the boundary between Big Creek and the Etowah basin. There is active construction with a building permit. Councilmember Zahner Bailey • Referring to the map given Council, Milton Place appears to be within the orange line, which is the ridge line. Community Development Director Wakefield • The ridge line has not been verified by an engineer. • It is the best staff could determine through GIS to be the ridge line. • Tried to prepare the map to show what the current IGA map shows and what the County said has been the service area and what staff believes to be the ridge line. Councilmember Zahner Bailey • Asked to have the North Fulton Sub Basin defined. Community Development Director Wakefield • The North Fulton Sub Basin is what the County has presented on the previous map as being their Big Creek Service area. mom Councilmember Lusk y� • Asked the City Attorney if Council could assume that if they approve anything in the sub basin then they would have to approve everything in the sub basin. City Attorney Jarrard • Thinks the Council would have the ability to go through a case by case basis and talk about things like how far along each project is. • Everything is not going to fit into the Sembler mode. They all will not be having a Grand Opening a week away. • There are lines of demarcation that could be drawn. • It is a matter of how exacting the Council wants to be. • He would not say that if they approve one in the blue area of the map then they have to approve all in the blue area. Councilmember Lusk • Asked if they would be discriminating. • For example, if CVS is in the sub basin area and if they have a LDP and building Permit, but Bethany Bend Village which is right down the road but does not have a LDP and permit but it is still in the sub basin, then how could one be approved and not the other when it is in the same sub basin and within the IGA approved land lots. Councilmember Zahner Bailey .. • When you look at Milton Place and Vickery Creek, Vickery Creek in comparison to the CVS, the CVS is identified as one of the exceptions to the No Inter Basin Transfer Policy. e • The ones that are identified as yellow within the blue area and referenced as the North Fulton Basin are not identified as exceptions to the No Inter Basin Transfer Policy. 0 That is not just being exacting but making sure we look at the policies that exist. Special Called Meeting of the Milton City Council Monday, July 14, 2008, 4:00 PM Page 4 of 21 City Attorney Jarrard • A LDP versus if there is not a LDP, then it has to go the expectations of the individual. • Once they receive a LDP from the City then that carries with it entitlements. • They are likely to spend money based upon having received the LDP. • Before the LDP is issued Council and staff has a lot more discretion. • There is a compelling argument that after the LDP has been issued; -that is giving them allowance to proceed. Community Development Director Wakefield • Vickery Crest Amenities is shown as a yellow dot because it is part of a subdivision that is currently under construction and, according to the County's map, is in the Big Creek service area and it is north of the ridge line. • The Navy Federal Credit Union is an out parcel of the Wal-Mart development in Deerfield and while there is no LDP issued yet; it is part of a larger LDP for Wal-Mart. • The last item is Stonewalk at Windward, which is the site of the Fire of Brazil. • We have not yet issued the LDP for the individual site, but it is part of the larger LDP for the commercial development in the area and for what was Fires of Brazil. • The projects coded as red are projects on Fulton County Water and Sewer. • They have filed application and are waiting for the issuance of their permits or plats. • The Windward Village Offices is located off of Webb. It is a mixed development of office and day care and according the County's map is located in the Big Creek service area north of the ridge line. • Windward Village west is a retail development off of Webb and Cogburn and is in the Etowah service area. • North Valley was a subject of a modification at the last Council meeting. It is retail and office located off of Highway 9 and within the Big Creek service area and it is south of the ridge line. • Bethany Brook is residential located off of Cogburn Road is a retail development consisting of 68 lots and in the Etowah service area. • The Braeburn Subdivision is mixed use development consisting of single family homes and town homes with office and retail component in the Etowah service area and the Crabapple plan does not indicate this property would be sewered. • Crabapple Crossroad II and Crabapple Crossroad III are two additional phases of the overall mixed use development consisting of 32 town homes, mixed use of office, retail and residential and they are in the Big Creek service area and shown in the Crabapple plan as being sewered. • The Ken Morton project is retail and office located south of Webb Road off of Highway 9 and appears to be in the Etowah service area, but is also one of the land lots that is called out in the Inter Basin Transfer Policy. • The green dot projects fall within the Intergovernmental Agreement. • Montessori at Morris, Crabapple Crossing, Milton Village and Crabapple Station and with the exception of the private school they are mixed use retail and residential. • We also have 4 additional projects in the green category. • Davenport commercial which is retail and office. • Watercrest Village is retail and office. • Henderson Landing is a residential development of 32 units. • Deerfield Landing is a residential development of 93 town homes. • The Olde Place is a residential development of 5 lots. • That concluded the presentation. Mayor Lockwood 0 Asked the City Attorney to reconfirm his legal opinion on the projects with LDP(s). Special Called Meeting of the Milton City Council Monday, July 14, 2008, 4:00 PM Page 5 of 21 City Attorney Jarrard 4NOO • It depends on if the Council wants to draw a clear and easily ascertainable line of demarcation. • There have been concerns raised with respect to where they fall within the basins. • It might be helpful to look at the "yellow" list and see if there are any that "jump out at us". • The LDP is an easy issue of a line of demarcation. Councilmember Zahner Bailey • Asked if all of the LDP(s) were issued by Milton or if some were issued by Fulton County. Community Development Director Wakefield • The majority were issued by Fulton County. Councilmember Zahner Bailey • In the past if something was approved by a different jurisdiction and identified to be an error then that did not necessarily mean that the error was something that we were by law required to continue in error. City Attorney Jarrard • The position that we have taken is if a permit was issued based upon a factual error or a legal error based upon a contingency that did not exist then that does not necessarily vest rights. • If these were issued by Fulton County that would have been at a time probably before Milton existed and therefore we would not have been concerned about an IGA for sewer because Fulton County would not have needed one. • When Milton was created the issue of the IGA came up. Councilmember Thurman • There would not have been an error because Fulton County would be following their own policy which would have allowed it. City Attorney Jarrard • That is the conclusion that would be reached. Councilmember Zahner Bailey • That is to assume that Fulton County has never erred. • Just want to be careful as we go through each of these cases that we do not presume the facts were based on policies that were in place, but instead that there could have been some error in interpretation. • The reason we are here is to make good sound decisions that can be upheld. • There may some examples within the pool of the "yellow dots" where we need to have conversation where there may be some reconciliation needed. City Attorney Jarrard • He was trying to emphasize that if Milton had issued the LDP then that would be different because we would have existed at that time and, therefore, the IGA would have become important. • If Fulton issued the LDP, it was before the City of Milton existed. Mayor Lockwood Ow"• Asked in regards of the property represented by the "yellow dots" if there was any question that they did not fall in the proper category as far as sewer. *A%lw Community Development Director Wakefield 0 Bethany Brook, which is off of Cogburn Road, falls in the Etowah. Special Called Meeting of the Milton City Council Monday, July 14, 2008, 4:00 PM Page 6 of 21 • Braeburn Subdivision is part of Crabapple and the Crabapple Plan did not anticipate this property to be sewered. • A portion of the Windward Village West and the Windward Village Office falls in the Etowah, but that property at one time was owned by one entity so it fell into that exception to face Highway 9. • That would be the same with the Ken Morton property that is located off of Highway 9. • There are none of the "yellow dots" that does not fall into the proper category. Councilmember Zahner Bailey • We have two conflicting pieces of data. • We have a ridge line and we also have a blue area that represents the sub basin. • Given some of the errors that have been identified with Fulton County's maps, we need to figure out a way to reconcile those that fall inside the Etowah, but are shown as part of the blue area. • There is a conflict in the way the map is represented. • Vickery Crest appears to be in the Etowah and it is not identified as an exception to the No Interbasin Policy. • Milton Place is not identified as an exception. • They are identified with yellow dots, but she is not certain that they can say with confidence that they know those to be in the Big Creek Basin. Community Development Director Wakefield • The ridge line was staff through GIS trying to show where there is some discrepancy across the board as to where the actual basin is. • The sewer service area as presented by the County shows the projects that are north of the ridge line: Vickery Crest, Vickery Crest amenities, Milton Place, Centennial Village, Hayward Commons, Bethany Bend Village, Crabapple Crossing and Crabapple Mercantile Exchange to be in north of what we believe to be the ridge line. • She is very cautious because it is not a line that has been sanctioned by anyone, but it was staff's attempt to try and figure where the ridge line would be. Councilmember Zahner Bailey • Based on where we believe the ridge line is Vickery Crest and Milton Place warrant some further discussion between us and Fulton County to try and reconcile the ridge line and the distinction between the Etowah and the other. City Manager Beckett • We have a map from Fulton County that has not been brought forward yet because it represents a fairly substantial expansion in the number of lot lines served. • The map depicts the actual location of sewer lines in the service area from their perspective. • He does not know of a map that identifies a ridge line without a survey or some accurate engineering information. Councilmember Zahner Bailey • Historically the distinction between basins by Fulton County had not been presented as guess work and was the basis by which decisions were made. Councilmember Thurman • It was her understanding Fulton County did not want to release the map because they did not feel it was accurate. wo • It was their best guess estimate. Special Called Meeting of the Milton City Council Monday, July 14,2008,4:00 PM Page 7 of 21 ,•M ir.r Councilmember Zahner Bailey • That is all the more reason we need to have a conversation with Fulton County and compare our best guess with their best guess. Councilmember Tart • He sees five and maybe six properties that there may be a conflict between the staffs ridge line delineation and Fulton County's blue map. • Vickery Crest, Vickery Crest Amenity, Milton Place, Crabapple Crossroads and Crabapple Crossroads III that would possibly be on the line. Mayor Lockwood • The projects we are talking about in this meeting are projects that have already been issued LDP(s) and are under construction. • Would like to clarify with the City Attorney that could be a line of demarcation and legally the City could stand behind. City Attorney Jarrard • That is correct. • If the Council was inclined to approve the "yellow dots" with LDP(s) that have ongoing construction may proceed with staff to issue all pertinent permits and CO(s) etcetera. • To the extent that Council wants to make a line of demarcation and say "if it happens to be in the Etowah, once again we are not carving out an exception that we are not going to allow sewer in the Etowah, we are only acknowledging the equities of the situation given the LDP(s) of issue for whatever reason." • For the ones identified by Councilmember Bailey and Councilmember Tart it might be interesting to know if they were permitted by Fulton County. • That would have been a permit based on their analysis of where the ridge line was and whether gravity flow into Big Creek or not - not Milton's and you may want to point that out. Motion: Councilmember Lusk moved to authorize Milton staff to issue all necessary permits and certificates of occupancy as to those developments depicted as "yellow dots" on the July 11, 2008 sewer map prepared by Milton staff in spite of there being no present constitutional authority for the development to be connected to Fulton County sewer based upon the following findings: 1. That the subject developments in Milton have been issued Land Disturbance Permits. 2. That since issuance of the Land Disturbance Permits, the developments have conducted development operations at significant cost to the developers; 3. That the subject developments are located in, or appear to be located within the Big Creek sewer basin based upon Fulton county sewer basin maps which is a basin where Fulton County has traditionally provided sewer service; 4. The subject developments do not appear to be located in the Etowah basin, which is a basin where Fulton County has traditionally not provided sewer service; 5. That based upon the above facts, the equities of the situation are such that in spite of the lack of authority for Fulton to provide sewer service, Milton believes it is in the best S.m interest of the health, welfare and safety of its citizens for the developments to proceed; and, 6. A statement shall be attached to any CO(s) or permits issued for these developments that states "issuance of this CO or permit should not be construed as a waiver by Milton of its right to seek strict compliance with all constitutional entitlements concerning the Special Called Meeting of the Milton City Council Monday, July 14, 2008, 4:00 PM Page 8 of 21 requirement that another jurisdiction may only provide new sewer service in Milton pursuant to an Intergovernmental Agreement. The issuance of this CO was the ,,,.a product of a fact specific inquiry and is to have no precedential effect with respect to any other development. Second: Councilmember Thurman seconded the motion. Discussion on the motion: Councilmember Thurman • Asked the City Attorney what the legal ramifications would be if they denied other permits or CO(s) to those that had previously been issued a LDP and has spent significant funds. City Attorney Jarrard • One legal ramification would be the developer would have no choice but to sue the City and it would be out of economic necessity. • There are some arguments that could be made on the City's behalf but he thinks they would have a difficult time convincing a judge to rule for a building to be torn down to allow for septic drain fields. Mayor Lockwood • Would like to open the floor to public comment. Councilmember Lusk • Withdrew the motion to allow for public comment. Councilmember Thurman • Withdrew the second to the motion. PUBLIC COMMENT Michael Miller, 200 Mansell Court Suite 400, Roswell, Georgia 30076 • Owner and developer of Kennewick Place Subdivision. • Stated before in this forum they meet every criteria which was the basis for issuing permits and CO(s) on Sembler. • With the further stipulation that the City has issued building permits and CO(s) within their project. • There are 50 to 60 homeowners living there already. • Asked that they be able to pick up permits tomorrow morning. Howard Carson, 3082 East Shadowlawn Avenue, Atlanta, Georgia 30305 • Wanted to have on record so that everyone understands; the pieces that he still has on Webb Road and at the corner of Webb Road and Cogbum were zoned by Fulton County; they permitted the extension of sewer to his two remaining pieces. X" • He has an agreement with Fulton County to send sewer to the lift station he built for the school and his properties. too • It is clear that was a part of that Ordinance that was approved by Fulton County. • He spent almost one million dollars building the lift station. Special Called Meeting of the Milton City Council Monday, July 14, 2008, 4:00 PM Page 9 of 21 • There is an agreement with Fulton County about how the sewer capacity within that lift station is dealt with. Ken Morton, 14732 Taylor Valley Way, Milton Georgia 3004 • In regards to his property, he had received grading permits for his property. • They had to pipe some streams. • He was issued those grading permits by the City of Milton earlier this year. • Considerable amount of monies have been spent in not only the zoning he received in December from the City of Milton to go ahead and zone his property and move forward but also with putting in the tens of thousands of dollars spent on piping those streams. • As a citizen of Milton he is amazed that we are having so many discussions about properties that common sense would say; we need these properties developed. • He does not want to pay higher taxes. • He wants the roads to be taken care of. • He wants parks for the kids to play in. • If we want these services we have to make sure we have the Firefighters in place. • Have to make sure we have the correct Police Officers. • We have commercially zoned properties that need sewer that have sewer like his property. • On three sides of it he gravities to the Big Creek Basin. • He can easily get to it. • There is a man hole across the street. • It is absurd to him as a citizen and a property owner that we are still debating these issues. • As a citizen; we need this commercial development. • It is smart growth. • So much time and money is being wasted on simple issues like this. • Asked to make sure they know all of the facts about all of the different properties and his in particular. Richard Wernick, 3396 Carverton Lane, Alpharetta Georgia • He is the developer of Vickery Crest. • The subdivision is developed and sewers are in and they are gravity flow to big creek. • They had a topographic survey before they developed the subdivision. • It delineated what could gravity flow and what could not. • That is what they based the sewer. • The sewer line was adjacent to their property. • There are lots in Vickery Crest that do not gravity flow. • Those that do not are one acre lots and have been evaluated for septic and will be built as septic. • He does not understand the confusion as to whether or not it is or is not in a basin, when you build it and gravity flow it and it goes to big creek. It should be in the Big Creek Basin. Kim Horne, 415 Wade Glen Court, Milton, Georgia 30004 • It is unfortunate that there might have been some mistakes that Fulton County has made. • It is now unfortunately the City's job to have to reconcile all of these possible mistakes. • Having public hearings are very important. • We cannot rush this even though there are CO(s) and other permits out there. Special Called Meeting of the Milton City Council Monday, July 14,2008,4:00 PM Page 10 of 21 • This is extremely important and needs to be done on an individual case by case basis. • If the parcel clearly falls within the land lots and the Etowah Basin that are part of the No Inter ..ar Basin Transfer Policy, there should not be an exception unless there are extreme hardship conditions that exist. • If there is nothing being developed on the property yet, then they should not be allowed to get a Land Disturbance Permit or any other permits if they fall within the No Inter Basin Transfer Policy. • She knows Council will make all of the right decisions. Curtis Mills, 16355 Birmingham Highway • His personal opinion is that sometimes sewer makes sense and sometimes it does not. • There are legal issues that would support that. • There were 3,000 responses to the surveys that there would be no sewer in Milton again. • Asked that Council recognize that came across loud and clear from the citizens. Rodney H. Reese, 13685 Highway 9, Alpharetta, Georgia 30004 • His property is not a part that is being discussed, but he thinks it will have a major impact on his property. • He bought 2 acres in the mid nineties. • He had it zoned commercial in Fulton County. • He has zoning for 24 thousand square feet of office. • He is presently operating out of an existing home that was there. • Sewer is adjacent to his property. • It is within 10 feet of his property line. • There is sewer easement that runs to his property. • He spent money to obtain a DOT permit. • He got a LDP in Fulton County. • Now he sees all of that time and money that he invested being snatched away from him. • If he is not allowed to tie to sewer some time in the future, then there is no way he can develop his property as it was zoned in Fulton County. • He went to a great deal of expense and the City of Milton taking any position other than allowing properties that can be served by gravity flow sewer to be excluded from the sewer extension. • Zoning densities should be controlled by zoning and not by sewer. • As a taxpayer, he has paid for extension of utilities. • He has paid taxes for the water system, the sewer system and to take that away from them now is uncompensated taking. • He wanted to express his very strong feelings concerning manipulating the sewer system to /control zoning and also how it will impact many peoples lives in the future. S ott Reece, 846 Cowart Road, Dawsonville, Georgia 30534 • He is doing business at 13685 Highway 9, Milton Georgia. • Is a business and property owner in the City of Milton. • He is probably one of the few that can trace his roots there for many generations. • He is concerned about the newly formed City of Milton using sewer to control growth as opposed to every other municipality that he has studied that uses zoning. Special Called Meeting of the Milton City Council Monday, July 14,2008,4:00 PM Page 11 of 21 • He thought we elected officials and they set up zoning specification or districts and we control bow that growth by the zoning. • Historically, if sewer was available as a health issue, you are forced to tie to sewer not because of a zoning or growth issue but as a health issue. • He does not know that we are doing the environment any good be pumping water from the Big Creek Chattahoochee Basin, through our public water system and then dumping it into on site septic systems. • He sees that as an Inter Basin Transfer. • What he does not understand is if we take the water that we pump out of the Chattahoochee and gravity flow it back into the Chattahoochee through the treatment plants that would be considered an Inter Basin Transfer. • He does not typically understand that. • From a scientific point of view and with a health issue where sewer is available properties need to tie into it. • We need to control our growth with zoning. • If property is AG zoned and one acre minimums then it needs to be enforced as that. • If it is commercially zoned and development densities are set up in the Zoning Ordinances. We need to follow those Ordinances and not create tactics that put possible health risk in with sewer. Deborah Anthony, 5780 Windward Parkway, Suite 300, Alpharetta Georgia Pam • As a point of clarification on Bethany Brook, they got a red dot and have already spent a tremendous amount of money. bwo • They were zoned in Fulton. • They obtained a permit for sewer in Fulton. • The sewer lift station has already been built and is up and running. • Wanted to get that into the record. Francia Lindon, 14810 East Bluff Road, Milton, Georgia • She does not own a business or any property other than her residence in Milton. • Her concern is the City Council setting a precedent by doing a blank acceptance of a number of properties within a certain category. • If they are not evaluated parcel by parcel, you will open the City of Milton to having to except other properties down the road that meet the same criteria as the ones being accepted. • She thinks it would open the City of Milton to more denser development than the citizens had intended or wanted because they are setting a precedent based on a border rather than criteria that has to be met. Carol Lane, 14890 East Bluff Road, Milton Georgia • This is a tremendous issue. • We have an Ordinance that was established before these developers got their permits, land disturbance permits. t""" • There was another Ordinance that reiterated the No Inter Basin Transfers in 2006. • That existed before the land disturbance. • She is sorry about people spending money for the land disturbance, but we do have policies and they have been studied thoroughly. 9 The citizens of Milton have asked not to extend the sewer. Special Called Meeting of the Milton City Council Monday, July 14, 2008, 4:00 PM Page 12 of 21 Sewer does equal density. She would hope that Council would allow the citizens to more involved in the process. Sean Connelly, 605 Brandenburg Way, Roswell Georgia • He is one of the owners of Milton Place Subdivision. • They were just changing the street names of the subdivision and were told they may not be able to get COs. • They have some sales going right now and before they bought the property, they waited about ten or eleven months and hundreds of thousands dollars later and got the appropriate permits and got the final plat signed last September. • They paid very good money for the land and are hoping to get this resolved quickly. • They are part of the "yellow dots" and like the City Attorney said they do not want to file law suits or anything like that but at that point if they get held up then they will be forced. • There are millions and millions of dollars at stake. • Give it all of the appropriate discussion needed and come to a good resolution for us. J. T. Adams, 15090 Hopewell Road, Alpharetta Georgia • He is owner of the Crabapple Mercantile Exchange. • Wanted to clarify in the presentation it was indicated there was a Crabapple Crossroads III that is the same as Crabapple Mercantile. • Everyone has great points on both sides of the sewer issue. • He wants us to remember we have people at stake here. • We have families. • We have people that are dependent on these developments. • We tend to frame developers as multi millionaires who can afford to lose ten million dollars but that is not true in his case. • They also have real estate agents in his development. • They have people behind them trying to make a living. • A single Mother with three kids trying to sale those houses and she is highly dependent on this development. • He has steel workers and landscape people. • A lot of these people are citizens of Milton. • When we talk about all of the Intergovernmental Agreements and that type of thing; remember there are people that are dependent upon these developments. • We need to think about this town as a viable community and when we start to frame things, sewer or no sewer, everyone has to choose a side and that is a horrible way to live life. • He would hate to think it is just a coin flip. Bill Rowse, 1065 Mid Broadwell Road, Alpharetta Georgia • He is a civil engineer and one of the people that are affected by these decisions. • Fulton County has done a semi review and told us what we have done is correct. OR • To have a decision come up to say; even though you have gone through all of this time and effort we are going to pull the plug on your developing affects a lot of people. ■o • Those yellow dot areas should be grandfathered. That concluded public comment. Special Called Meeting of the Milton City Council Monday, July 14, 2008, 4:00 PM Page 13 of 21 Mayor Lockwood • He hears people talking about extending sewer and going against prior policies we have had with the county. • To his knowledge, the properties they are discussing ft in with the previous policies of the county. • Asked Community Development Director Wakefield if that was correct. Community Development Director Wakefield • Stated that was correct. Councilmember Thurman • Someone mentioned that the yellow dots were in conflict with the Fulton County policy and the Ordinance and the Inter Basin Transfer Policy. • She asked if any of the yellow dots were in violation of the Inter Basin Policy or any of the current policies that Fulton County had at the time they were granted the permits. Community Development Director Wakefield • Stated that to her knowledge they were consistent with the Fulton County Policy. No" Councilmember Zahner Bailey • Struggling with the inability to definitively say that some of these parcels are indeed consistent 61" with those historic policies. • The map shows a ridge line that is different and distinct. • She is not challenging that we have given our best guess. • They have had different maps presented where some of the ridge lines are not consistent with what is appearing in some of the sub -basin. • Asked how we would frame a motion that would not set in motion a blanket decision on some. • They may not have all of the data that is needed. Mayor Lockwood • He again wants to clarify that they are not formulating or reconfirming the sewer policy. • They are dealing with some immediate issues at hand based on legal opinion that have LDP(s) and are ongoing in construction. • At this point; this decision is not a broad sewer policy, but is just for these items that need immediate attention. Motion: Councilmember Lusk moved to authorize Milton staff to issue all necessary permits and certificates of occupancy as to those developments depicted as "yellow dots" on the July 11, 2008 sewer map prepared by Milton staff in spite of there being no present constitutional authority for the development to be connected to Fulton County sewer, based upon the following findings: ..�, 1. That the subject developments in Milton have been issued Land Disturbance Permits. 2. That since issuance of the Land Disturbance Permits, the developments have conducted development operations at significant cost to the developers; Special Called Meeting of the Milton City Council Monday, July 14, 2008, 4:00 PM Page 14 of 21 3. That the subject developments are located in, or appear to be located within the Big Creek sewer basin based upon Fulton county sewer basin maps which is a basin where Fulton County has traditionally provided sewer service; 4. The subject developments do not appear to be located in the Etowah basin, which is a basin where Fulton County has traditionally not provided sewer service; 5. That based upon the above facts, the equities of the situation are such that in spite of the lack of authority for Fulton to provide sewer service, Milton believes it is in the best interest of the health, welfare and safety of its citizens for the developments to proceed; and, 6. A statement shall be attached to any CO(s) or permits issued for these developments that states "issuance of this CO or permit should not be construed as a waiver by Milton of its right to seek strict compliance with all constitutional entitlements concerning the requirement that another jurisdiction may only provide new sewer service in Milton pursuant to an Intergovernmental Agreement. The issuance of this CO was the product of a fact specific inquiry and is to have no precedential effect with respect to any other development. Second: Councilmember Thurman seconded the motion. Discussion on the motion: Councilmember Thurman • The last part of the motion was because of the fact that the current IGA with Fulton County may preclude us from having them provide sewer to this property. • Asked the City Attorney if that was correct. City Attorney Jarrard • That is correct. Councilmember Zahner Bailey • Last week, we had a motion that was similarly prepared and it reference the fact the issuance of a CO would not be a promise to the provision of sewer. • She wonders how that comparison contrast to this based on items number 3 and 4 where we say that it appears not to be. • She asked if it would be reasonable to include as part of the motion something along the lines of what had been read into the record in regards to the Inland group. • We do not have the authority based on the current IGA to promise the provision of sewer. City Attorney Jarrard • The language was issuance of any CO or permit shall not be deemed as a guarantee of sewer by the City of Milton. Councilmember Zahner Bailey • That is pertinent to this discussion and she asked if he agreed that would be consistent with what they have now done. City Attorney Jarrard • Thinks that would be fine. • We are not the entity that provides sewer. r"7 Special Called Meeting of the Milton City Council Monday, July 14, 2008, 4:00 PM Page 15 of 21 • That would be Fulton County so we cannot guarantee something that Fulton County has to provide. Amended Motion #1: Councilmember Lusk moved to include the following sentence to his main motion; "Any issuance of any CO or permit shall not be deemed as a guaranty of sewer by the City of Milton." Second: Councilmember Thurman seconded the amended motion. Discussion on the amended motion: Councilmember Zahner Bailey • In terms of the do not appear is there language that would further solidify that this is based on data that was provided to us by Fulton County. • Would like to see that strengthened so that it is clear that Milton is relying on data provided by Fulton County which is the entity that has authority to provide sewer. City Attorney Jarrard • This motion was modified from the Sembler motion. • The Sembler motion did not contain the language "appear to be located". • He added that because there is some concern that we are not as precise as we want to be but it signals the Council's belief that they acted because of the information they had in front of them. • He also added that it was based upon the Fulton County sewer basin maps. Councilmember Zahner Bailey • It was mentioned that Vickery Crest is on the ridge line. • So that development is split between two basins. • Asked how we could add another element to the motion to take into effect those yellow dots where parcels are split between truly being in the Big Creek and those that might be gravity fed to the Big Creek. • She thinks we need some exacting language as it relates to these so we do not set some unintentional precedents going forward. Councilmember Lusk • If it is natural gravity flow to one basin or the other that is the ultimate conclusive point that needs to be made. Councilmember Tart • Maybe it needs to say that availability of sewer is contingent upon said parcel or lots being able to be gravity fed into the Big Creek Basin without a pumping station. Councilmember Zahner Bailey • Hopefully everyone in the audience understands that the predicament we are in is not one we Woo have put ourselves in or put them in. • It is the fact that we have a legal interpretation that indicates that there is not constitutional iwwo authority for Fulton County to provide sewer under our Intergovernmental Agreement. Mayor Lockwood Special Called Meeting of the Milton City Council Monday, July 14, 2008, 4:00 PM Page 16 of 21 W" • Asked the City Attorney if that was a concern or if it would be handled in the future as they put together the comprehensive policy. so" City Attorney Jarrard • The map Council has before them has guided a lot of the decision making that is being made now. • Within the motion that Councilmember Lusk made, we referenced the map as being the guide post by which Council is acting on. • If Council wanted to add language that said in the event that there is uncertainty as to respect to which basin a parcel falls in on the map that the Council has chosen for purposes of this motion to err on the side of inclusion into the Big Creek Basin. Councilmember Lusk • If we are relying on a map such as we have in front of us then that is the best available information that we have. • We are not committing to every square inch of whether it is in one basin or the other. • We have vetted this whole issue for almost two years and nothing is ever perfect. • We have to move ahead on this and get on with the program of living together and working together and developing smart projects here. • The motion we have set forth and with the information based on this map is the best we can do at this point. • We can deal with the exceptions down the road but we will not make this 100% perfect. • Would like to call the question. Councilmember Zahner Bailey • Given the gravity of this she asked the Mayor's consideration of another question or two for our City Attorney. Mayor Lockwood • Would like to move forward. • Councilmember Tart had a question and then he would like to move forward. Councilmember Thurman • She would withdraw her second if we could wrap up a few questions. Mayor Lockwood • With that we will allow some final questions. Councilmember Tart • One of the speakers during public comment talked about Bethany Brook and she had already been issued a permit for sewer from Fulton County and would like her dot to be yellow versus red. X" • Asked what staff has to say to that. • Noted that is in the Etowah service area. 410 Special Called Meeting of the Milton City Council Monday, July 14, 2008, 4:00 PM Page 17 of 21 %00 Community Development Director Wakefield • Staff looked at all of the projects and tried to evaluate how far advanced they were. • Although the project has an approved LDP and have done some road and utility improvement no plat has been issued. • That was the key for staff. • If there was no plat then it was designated as red because they were not as far along as those who had actual buildings. Councilmember Thurman We are not saying that those that are red will never finish. We are just saying those are not up for discussion at this meeting. Community Development Director Wakefield • That is correct. Councilmember Tart • Wanted to ask a very clear question to the City Attorney. • We keep referencing this map and we can make the best determination possible on this map, but this map has contradictory information on it. • We have an orange ridge line that our staff has given and we have the blue area which Fulton County has given us. • Despite the fact that we put in the motion a statement that says if we are wrong about this area; that does not set a precedent. • In his experience putting a provision in this saying if we made a mistake it does not set a precedent; is that not a weak legal basis for us to stand on going forward and if so would we not in effect be making as sewer policy based on the blue areas. • Do we have case law where jurisdictions have put a provision in there that said basically whatever we do does not set a precedent and has that been upheld in a higher court? City Attorney Jarrard • He is comfortable that if the City Council articulates a motion that says we do not intend to use this motion as a precedent; that is going to have impact in a court of law. • By articulating the motion the way the Council has done it has made it fact specific. • What you have in front of you is the universe of situations that are going to be impacted by the next couple of weeks as we try to work out these permits. • He does not think there are going to be a lot more things that are un -anticipated. • This is not a sewer policy but direction to staff. • These are fact patterns that Council did not assist in the creation of. • You are simply cleaning them up. • With respect to the map; every jurisdiction he represents deals with the information that staff own give it. • It is not a situation that the City thinks it is wrong, but they are going to act anyway. But rather a *900 situation where the City is manifesting its belief that staff has done correctly and they are taking action on that belief. Special Called Meeting of the Milton City Council Monday, July 14, 2008, 4:00 PM Page 18 of 21 • If there was will by Council to do some additional study to try and identify exactly what this basin is his experience has been in dealing with Fulton County is that their methodology to +.■w determine the basin he is not sure can be duplicated again. • He does not want the Council to believe that we are saying we do not know what the answer is, we will just go forward. • Staff has yielded the best result they can. City Manager Beckett • A map is a graphic representation of what is on the land. • He is not sure that it is accurate down to the meter but he is confident that it is a much better representation of the ridge line and boundary than anything Council had before them. • The only way of accurately determining the ridge line is to conduct a survey much as Georgia is trying to do on the Tennessee River. • If Council wants a specific scientifically referenced boundary of what the basin is that is which water flows when it falls on top of the mountain then we will have to do a field survey and he does not believe we have the kind of funding available to do that type of precise scientific study. • At some point, we have to rely on the information we have. • Fulton County issued permits on the basis of some boundary document that they had and all we can do at this point is make our best representation. • Councilmember Lusk's motion captured it about as well as it can be. • He asked the City Attorney if he felt comfortable defending that in a court of law. City Attorney Jarrard • Stated he does. • Councilmember Tart's question about precedent is a fair question. • Precedent is policy that evolves over time. • The City of Milton is grappling over the issue of establishing the sewer policy and when we are able to come up with that policy then that will trump what we at this meeting. Mayor Lockwood • It is not perfect and it is not 100% right, but hopefully it is 99% there and the biggest mistake we can make is by not addressing it and making a decision. • He feels pretty comfortable with the staff's work and all they have put into it. Councilmember Thurman • It is her understanding that if the correct map had been attached to the IGA at the time it was signed a map that represented Fulton County's board policy at that time then all of the parcels they are discussing with the yellow dots, would have been allowed to proceed with sewer. City Attorney Jarrard • Fulton County representatives have told him that. Councilmember Zahner Bailey • The reason we questioned the map earlier was because it was stated that the ridge line that we OuN were not certain. • What allowed the origination of this depiction of the ridge line? Special Called Meeting of the Milton City Council Monday, July 14, 2008, 4:00 PM Page 19 of 21 Community Development Director Wakefield • It came from the topo map. • We determined based on the topo lines where the ridge was and she had the GIS staff to graphically depict that. Councilmember Zahner Bailey • She would ask that we get back in touch with Fulton County and see what maps they have or which maps the County Attorney is willing to provide. • She would like to compare and contrast it to this. • She does not want to ignore the data that they have relied on relative to these LDPs. • She would also like to ask that we get a cost of what it would take to survey. • She would ask the Councilmember Lusk to consider as part of the motion the clarification as it relates to those parcels that are perhaps on this map not reconciled with regards to the Big Creek versus gravity fed to Big Creek. • She asked that if it be their pleasure that the City Attorney help to language that. • She asked if there was anything in the motion with regards to the yellow dots that would let a legal precedence in that as it relates to the other dots that are not before us this evening. City Attorney Jarrard • In the red dots there are some that does not have LDPs issued so they automatically come off the top. • There are some that have red dots that have LDPs, but they have only road improvements and utilities installed with no plats so one of the elements of the motion was the expenditure of money and the significant activity that had been undertaken since the issuance of the LDP and if that needs to be a point of demarcation when we begin to deal with the red dots, it could be because of the amount of expenditures based upon the issuance of an LDP. • Once you get away from the LDP the analysis gets a lot more complex from a stand point of a case by case. Councilmember Zahner Bailey • Stated to City Manager Beckett that as a take away from this meeting and separate from the motion would be with the City Attorney's help that we evaluate relative to the No Inter Basin Transfer. Some of the red dots deserve more attention relative to the No Inter Basin Transfer. City Manager Beckett • If it is the pleasure of the Council for us to go that direction and expend that effort then they certainly will do that. Amended Motion #2: Councilmember Lusk moved to include language in paragraph 3 of the main motion so paragraph 3 will read as follows: "That the subject developments are located, or appear to be located within the Big Creek sewer basin based upon Fulton county sewer basin maps either by location within the basin or via gravity flow to the basin, which is a basin where Fulton County has traditionally provided sewer service." Second: Councilmember Thurman seconded the amended motion. Special Called Meeting of the Milton City Council Monday, July 14,2008,4:00 PM Page 20 of 21 Discussion on the amended motion: Councilmember Zahner Bailey • Can we clarify the motion also indicates that this map does not indicate that they are in conflict with the No Inter Basin Transfer Policy nor are they in conflict with the Etowah Basin. • Would it be reasonable and consistent with what we did with Sembler. City Attorney Jarrard • It would provide that what you are doing at this meeting does not conflict with the July 2006 Inter Basin Transfer Resolution by Fulton County. Amended Motion #3: Councilmember Lusk moved to include the following sentence to his main motion; "The adoption of this motion shall in no way depart or reflect a change in policy from that reflected in the July 2006 Interbasin Transfer Resolution by Fulton County." Second: Councilmember Thurman seconded the amended motion. There was no further Council discussion. Vote: The motion passed unanimously (5-0). City Clerk Marchiafava read agenda item 08-619. Authorization to execute a cooperation agreement for Fulton County Community Development Block Grant known as the CDBG and home programs. City Manager Beckett • We conveyed to Council the cooperative agreement from Fulton County. • Fulton County receives discretionary grant funds from the US Department of Housing and Urban Development and because we are a municipality within Fulton County we have a choice to compete for that money as an entitlement community. • Those funds are used for low to moderate income individuals. • The second category of funding is called discretionary funding. • Discretionary funds are awarded to each state by the Department of Housing and Urban Development. • It is a fairly limited pool of money and any community that is not an entitlement community can compete for those funds and they are awarded on a discretionary basis. • It assumes that projects have been identified that meet the criteria for the various HUD programs. • It assumes that there is the administrative will and desire to administer the complex regulations of streams associated with those funds. • It is staff's recommendation that the City of Milton continue to participate with Fulton County. • We have a better chance of getting a larger share of funding, if any funding, from Fulton County than we do in competition with a large number of communities across the state. • We have not identified any specific projects at this particular point in time nor do we have the staff expertise at this point in time to undertake the administration of that type of complex grant program. • We ask that Council approve the cooperative agreement with Fulton County. • It is for a period of three years. • Within that period we will have adequate opportunity to observe whether or not those funds will fill our �.rW particular needs and whether we can identify a segment of the population where the expenditure of those funds would be warranted. Special Called Meeting of the Milton City Council Monday, July 14, 2008, 4:00 PM Page 21 of 21 Motion and Second: Councilmember Thurman moved to approve authorization to execute a cooperation agreement for Fulton County Community Development Block Grant known as the CDBG and home programs. Councilmember Lusk seconded the motion. Discussion on the motion: Councilmember Zahner Bailey • Asked City Manager Beckett if it committed us to any particular type of project and if we would be penalized if we decided that we do not have projects or the land use. City Manager Beckett There is no commitment on our part other than within that three year period of time. If we find a project that interests Council then we would go through Fulton County to compete for the funds rather than through the state but there is no obligation to compete for the funds. There was no further Council discussion. Vote: The motion passed unanimously (5-0). (Added by motion and vote) EXECUTIVE SESSION Executive Session to discuss pending litigation. Motion and Vote: Councilmember Lusk moved to adjourn into Executive Session at 6:08 p.m. Councilmember Zahner Bailey seconded the motion. There was no Council discussion. The motion passed unanimously (5-0). v" RECONVENE Motion and Vote: Councilmember Thurman moved to reconvene the Special Called Meeting. Mayor Lockwood seconded the motion. There was no Council discussion. The motion passed unanimously (5-0). ADJOURN After no further business, the meeting adjourned at 7:02 PM. Motion and Vote: Councilmember Thurman moved to adjourn the Special Called Meeting. Councilmember Tart seconded the motion. There was no Council discussion. The motion passed unanimously (5-0). Date Approved: August 4, 2008 AUA C!!91te R. Marchiafava, City Clerk Joe Lockwo ayor 0