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Home My WebLink About06-21-10 PacketPage 1 of 3 Milton City Hall City Council Chambers 13000 Deerfield Parkway, Suite E Milton, GA 30004 Persons needing special accommodations in order to participate in any City meeting should call 678-242-2500. CITY OF MILTON, GEORGIA Joe Lockwood, Mayor CITY COUNCIL Karen Thurman Julie Zahner Bailey Bill Lusk Burt Hewitt Joe Longoria Alan Tart Monday, June 21, 2010 Regular Council Meeting Agenda 6:00 PM INVOCATION – Reverend Brent White, Alpharetta First United Methodist Church CALL TO ORDER 1) ROLL CALL 2) PLEDGE OF ALLEGIANCE (Led by the Mayor) 3) APPROVAL OF MEETING AGENDA (Add or remove items from the agenda) (Agenda Item No. 10-1154) 4) PUBLIC COMMENT 5) CONSENT AGENDA 1. Approval of the May 17, 2010 Regular Meeting Minutes. (Agenda Item No. 10-1155) (Sudie Gordon, Interim City Clerk) 2. Approval of Financial Statements for Period Ending May, 2010. (Agenda Item No. 10-1156) (Stacey Inglis, Finance Director) 3. Approval of an Agreement between The City of Milton and Lowe Engineers, LLC for Professional Engineering Services. (Agenda Item No. 10-1157) (Carter Lucas, Public Works Director) 4. Approval of an Agreement between The City of Milton and Back On The Road, LLC for Vehicle Maintenance and Repairs. (Agenda Item No. 10-1158) (Deborah Harrell, Chief of Police) MILTON CITY COUNCIL REGULAR MEETING AGENDA JUNE 21, 2010 – 6:00 PM Page 2 of 3 Milton City Hall City Council Chambers 13000 Deerfield Parkway, Suite E Milton, GA 30004 Persons needing special accommodations in order to participate in any City meeting should call 678-242-2500. 5. Approval of an Amendment to Extend the Agreement Term between The City of Milton and Georgia Management Agency, Inc. (d/b/a Roadworx). (Agenda Item No. 10-1159) (Carter Lucas, Public Works Director) 6. Approval of an Amendment to Extend the Agreement Term between The City of Milton and Optech Monette, LLC. (Agenda Item No. 10-1160) (Carter Lucas, Public Works Director) 6) REPORTS AND PRESENTATIONS 1. Proclamation Honoring Rebecca McManus, Recipient of Girl Scout Gold Award. (Presented by Mayor Joe Lockwood) 2. Proclamation Honoring Former Principal Ronald Tesch in Recognition for His Service to Milton High School. (Presented by Mayor Joe Lockwood) 3. Presentation of Achievement Certificates to Citizens Police Academy Graduates. (Presented by Mayor Joe Lockwood) 7) FIRST PRESENTATION 1. Approval of An Ordinance to Replace Chapter 54, Regulating the Location, Placement and Leasing of Wireless Telecommunications Facilities. (Agenda Item No. 10-1161) (Previously Discussed at June 14, 2010 Council Work Session) (Lynn Tully, Community Development Director) 2. Approval of An Ordinance to Amend Chapter 60, Article 2, Tree Preservation of the Milton City Code. (Agenda Item No. 10-1162) (Previously Discussed at March 8, 2010 Council Work Session) (Lynn Tully, Community Development Director) 8) PUBLIC HEARINGS 1. Approval for the Removal of Billy Lovelace Hauling from the List of Approved Solid Waste Haulers for the City of Milton Due to Non-Compliance with the Ordinance. (Agenda Item No. 10-1140) (Deferred on May 17, 2010) (Matt Marietta, Fire Marshal) MILTON CITY COUNCIL REGULAR MEETING AGENDA JUNE 21, 2010 – 6:00 PM Page 3 of 3 Milton City Hall City Council Chambers 13000 Deerfield Parkway, Suite E Milton, GA 30004 Persons needing special accommodations in order to participate in any City meeting should call 678-242-2500. 2. Approval of Alcohol Beverage License for Manor Golf Development, LLC at 15952 Manor Club Drive, Milton, Georgia. The applicant is Riverfront Management, Inc. – Wine, Malt Beverages & Distilled Spirits. (Agenda Item No. 10-1149) (Deferred on June 7, 2010) (Stacey Inglis, Finance Director) 9) ZONING AGENDA 1. RZ09-04 - Approval of an Ordinance to Create Article 18 Of The City Of Milton Zoning Ordinance To Establish A Historic Preservation Commission In The City Of Milton To Provide For Designation Of Historic Properties; To Provide For Issuance Of Certificates Of Appropriateness; To Provide For An Appeals Procedure; To Repeal Conflicting Ordinances; And For Other Purposes. (Agenda Item No. 10-1078) (Previously Discussed at March 8, 2010 Work Session) (First Presentation on May 17, 2010 Regular Council Meeting) (Public Hearing on June 7, 2010) (Lynn Tully, Community Development Director) 10) UNFINISHED BUSINESS 1. Approval of an Ordinance to Amend Chapter 20, Environment, Article VI, Soil Erosion and Sedimentation Control, of the City of Milton Code of Ordinances. (Agenda Item No. 10-1139) (Previously Discussed at April 19, 2010 Work Session) (First Presentation on May 17, 2010 Regular Council Meeting) (Public Hearing on June 7, 2010) (Lynn Tully, Community Development Director) 11) NEW BUSINESS (None) 12) MAYOR AND COUNCIL REPORTS 13) STAFF REPORTS 14) EXECUTIVE SESSION (If needed) 15) ADJOURNMENT (Agenda Item No. 10-1163) The minutes will be Provided electronically City of Milton 13000 Deerfield Parkway Suite 107G Milton, Georgia 30004 1 To: Honorable Mayor and City Council Members From: Stacey Inglis, Finance Director Date: June 21, 2010 City Council Meeting Agenda Item: Financial Status Report for Period 8 – May 2010 OVERVIEW and FINANCIAL HIGHLIGHTS: General Fund Revenue collections for the General Fund totaling $13,294,938 are approximately 2.9% higher than anticipated for the eighth period of the fiscal year. Total expenditures to- date are $9,547,538 and are 7.8% less than expected. Capital Project Fund Expenditures within this fund continue to occur on a project-by-project basis. With a total project expenditure budget of $6,334,903, capital expenditures-to-date total $1,453,321. FINANCIAL OPERATIONS: Tree Replacement Fund: Balance: $12,800 Sidewalk Replacement Fund: Balance: $70,558 City of MiltonSTATEMENT OF REVENUES & EXPENDITURESGeneral FundFor the Period Ending May 2010Actual BudgetedVarianceover/(under)Actual BudgetedVarianceover/(under)Property Tax 15,480,295 99,978 0 99,978 8,165,428 8,115,295 50,133Motor Vehicle Tax 450,000 35,040 37,500 (2,460) 272,257 262,500 9,757Intangible Tax 190,000 14,270 15,833 (1,563) 92,895 110,833 (17,938)Real Estate Transfer Tax 35,000 4,626 2,917 1,709 23,285 20,417 2,869Franchise Fees 1,700,000 28,020 425,000 (396,980) 911,293 850,000 61,293Local Option Sales Tax 3,400,000 300,440 283,333 17,106 2,174,722 1,983,333 191,389Alcohol Beverage Excise Tax 277,000 25,273 23,083 2,189 158,547 161,583 (3,037)Business & Occupation Tax 575,000 5,230 28,750 (23,520) 541,799 575,000 (33,201)Insurance Premium Tax 850,000 0 0 0 0 0 0Financial Institution Tax 26,158 0 0 0 26,158 26,158 0Penalties & Interest 88,646 22,101 0 22,101 126,268 88,646 37,622Alcohol Beverage Licenses 128,700 22,500 0 22,500 151,200 128,700 22,500Other Non-Business Permits/Licenses 13,370 1,951 923 1,028 13,040 10,997 2,043Zoning & Land Disturbance Permits 34,500 364 2,875 (2,511) 10,989 23,000 (12,011)Building Permits 63,699 6,336 5,308 1,027 43,371 42,466 905Intergovernmental Revenue 0 0 0 0 0 0 0Other Charges for Service 299,360 33,893 22,472 11,422 196,077 199,573 (3,496)Municipal Court Fines 452,500 96,623 37,708 58,915 356,634 301,667 54,967Interest Earnings 20,000 8,980 1,667 7,313 21,784 13,333 8,451Contributions & Donations 2,370 0 198 (198) 2,370 1,580 790Other Revenue 38,437 59 0 59 6,821 423 6,397Other Financing Sources 7,000 0 0 0 0 0 0Total Revenue 24,132,035 705,682 887,567 (181,885) 13,294,938 12,915,505 379,433Current Month Year-to-DateAnnual BudgetRevenueCurrent Month Year-to-DateActual BudgetedVarianceover/(under)Actual BudgetedVarianceover/(under)Mayor and Council 167,614 17,783 12,957 4,826 89,744 102,341 (12,598)Clerk of the Council 378,757 3,459 17,905 (14,445) 265,197 301,445 (36,248)City Manager 307,514 20,896 23,270 (2,374) 170,972 202,947 (31,974)General Administration 518,215 53,240 43,185 10,055 353,290 345,477 7,814Finance 770,361 40,822 61,757 (20,935) 530,103 585,332 (55,229)Legal 240,000 26,079 20,000 6,079 129,374 120,000 9,374Information Technology 749,568 16,520 44,590 (28,070) 654,639 643,697 10,942Human Resources 231,545 16,236 15,978 258 135,952 162,020 (26,068)Risk Management 175,621 15,265 14,635 630 113,539 117,081 (3,542)General Government Buildings 0 0 0 0 0 0 0Public Information & Marketing 220,192 5,155 6,777 (1,621) 185,612 191,042 (5,430)Municipal Court 274,801 30,867 21,162 9,705 162,716 180,624 (17,909)Police 2,467,242 164,785 192,028 (27,244) 1,555,507 1,625,478 (69,970)Fire 4,084,003 271,706 316,893 (45,186) 2,525,147 2,689,287 (164,140)EMS Operations 132,250 11,021 11,021 (0) 88,167 88,167 (0)Public Works 1,994,230 135,088 164,233 (29,145) 1,149,378 1,461,019 (311,641)Parks & Recreation 142,435 9,909 11,191 (1,282) 81,369 94,600 (13,231)Community Development 901,269 54,036 41,431 12,605 633,754 718,501 (84,748)Debt Service - Capital Lease Payment 716,541 0 716,541 (716,541) 716,541 716,541 0Operating Transfers to Other Funds 2,466,757 0 0 0 6,536 6,536 0Operating Reserve 7,194,120 0 0 0 0 0 0Total expenditures 24,133,035 892,867 1,735,553 (842,687) 9,547,538 10,352,135 (804,596)Net Income/(Loss)(187,184) 3,747,400Operating Expenditures Annual BudgetCurrent MonthYear to Date6/14/2010 Original Budgeted Amounts Final Budgeted Amounts Current Period Actuals Year-to-Date Actuals Variance with Final Budget - Positive (Negative) REVENUES Contributions & Donations 5,000$ 5,000$ 1,000$ 3,800$ (1,200)$ Interest Revenues - - - - - Holiday Card Sales - - - - - T-shirt Sales - - - - - Mayor's Run - - 2,367 2,367 Total revenues 5,000$ 5,000$ 1,000$ 6,167$ 1,167$ EXPENDITURES Current: Special Events 45,000$ 45,000$ 4,399$ 32,402$ 12,598$ Total Expenditures 45,000$ 45,000$ 4,399$ 32,402$ 12,598$ OTHER FINANCING SOURCES (USES) Transfers in from Hotel/Motel Tax Fund 40,000$ 40,000$ 4,037$ 24,828$ (15,172)$ Total other financing sources and uses 40,000$ 40,000$ 4,037$ 24,828$ (15,172)$ Net change in fund balances -$ -$ (1,408)$ Fund balances - beginning 20,253 Fund balances - ending -$ -$ 18,845$ City of Milton Special Events Fund Statement of Revenues, Expenditures, and Changes in Fund Balances - Budget and Actual For the Period Ended May 31, 2010 Original Budgeted Amounts Final Budgeted Amounts Current Period Actuals Year-to-Date Actuals Variance with Final Budget - Positive (Negative) REVENUES Cash Confiscations $ - $ - $ - $ - $ - Interest Revenues - 85 7 57 (28) Budgeted Fund Balance - 43,810 (43,810) Total revenues $ - $ 43,895 $ 7 $ 57 $ (43,838) EXPENDITURES Current: Police $ - $ 43,895 $ - $ 4,487 $ 39,408 Total Expenditures $ - $ 43,895 $ - $ 4,487 $ 39,408 OTHER FINANCING SOURCES (USES) Transfers in from General Fund $ - $ - $ - $ - $ - Total other financing sources and uses $ - $ - $ - $ - $ - Net change in fund balances $ - $ - $ (4,430) Fund balances - beginning - - 43,810 Fund balances - ending $ - $ - $ 39,380 City of Milton Confiscated Assets Fund Statement of Revenues, Expenditures, and Changes in Fund Balances - Budget and Actual For the Period Ended May 31, 2010 Original Budgeted Amounts Final Budgeted Amounts Current Period Actuals Year-to-Date Actuals Variance with Final Budget - Positive (Negative) REVENUES Wireless 911 Fees 570,000$ 570,000$ 51,599$ 444,322$ (125,678)$ Total revenues 570,000$ 570,000$ 51,599$ 444,322$ (125,678)$ EXPENDITURES Current: Public Safety 554,000$ 554,000$ 1,740$ 467,369$ 86,631$ Total Expenditures 554,000$ 554,000$ 1,740$ 467,369$ 86,631$ OTHER FINANCING USES Unallocated 16,000$ 16,000$ -$ -$ (16,000)$ Total other financing sources and uses 16,000$ 16,000$ -$ -$ (16,000)$ Net change in fund balances -$ -$ (23,047)$ Fund balances - beginning - - 175,972 Fund balances - ending -$ -$ 152,925$ City of Milton E-911 Fund Statement of Revenues, Expenditures, and Changes in Fund Balances - Budget and Actual For the Period Ended May 31, 2010 Original Budgeted Amounts Final Budgeted Amounts Current Period Actuals Year-to-Date Actuals Variance with Final Budget - Positive (Negative) REVENUES Intergovernmental Revenues SAFER Grant 85,934$ 85,934$ 23,341$ 49,486$ (36,448)$ GEMA Grant - 40,348 - 40,348 (0) Crabapple Festival Grant - 1,016 - 1,016 (1) Total revenues 85,934$ 127,298$ 23,341$ 90,849$ (36,449)$ EXPENDITURES Current: General Administration -$ 1,016$ -$ -$ 1,016 Public Safety 118,530 118,530 - 32,682 85,848 Public Works - 40,348 - - 40,348 Community Development 20,000 - - - - Total Expenditures 138,530$ 159,894$ -$ 32,682$ 127,212$ Excess of revenues over expenditures (52,596) (32,596) 23,341 58,167 90,763 OTHER FINANCING SOURCES (USES) Transfers in from General Fund 52,596$ 32,596$ -$ 6,536$ (26,060)$ Total other financing sources and uses 52,596$ 32,596$ -$ 6,536$ (26,060)$ Net change in fund balances - - 64,704 Fund balances - beginning 3,164 Fdbl di $$67 868$ City of Milton Operating Grant Fund Statement of Revenues, Expenditures, and Changes in Fund Balances - Budget and Actual For the Period Ended May 31, 2010 Fund balances - ending -$ -$ 67,868$ Original Budgeted Amounts Final Budgeted Amounts Current Period Actuals Year-to-Date Actuals Variance with Final Budget - Positive (Negative) REVENUES Taxes Hotel/Motel Taxes 47,000$ 47,000$ 4,037$ 24,828$ (22,172)$ Total revenues 47,000$ 47,000$ 4,037$ 24,828$ (22,172)$ OTHER FINANCING SOURCES (USES) Transfers out to General Fund (7,000)$ (7,000)$ -$ -$ 7,000$ Transfers out to Special Events Fund (40,000) (40,000) (4,037) (24,828) 15,172 Total other financing sources and uses (47,000)$ (47,000)$ (4,037)$ (24,828)$ 22,172$ Net change in fund balances - - - Fund balances - beginning - - - Fund balances - ending -$ -$ -$ City of Milton Hotel/Motel Tax Fund Statement of Revenues, Expenditures, and Changes in Fund Balances - Budget and Actual For the Period Ended May 31, 2010 Original Budgeted Amounts Final Budgeted Amounts Current Period Actuals Year-to-Date Actuals Variance with Final Budget - Positive (Negative) REVENUES Charges for Service Infrastructure Maintenance Fee 65,000$ 65,000$ 1,931$ 33,388$ (31,612)$ Landfill Host Fees 185,000 185,000 - 97,405 (87,595) Tree Recompense 12,800 12,800 - - (12,800) HYA Fees - 57,650 8,142 13,142 (44,508) Interest Revenue 2,000 2,000 - - (2,000) Sidewalk Replacement Account 70,558 70,558 - - (70,558) Total revenues 335,358 393,008$ 10,073$ 143,934$ (249,074)$ EXPENDITURES Capital Outlay City Council 2,231$ 2,231$ 2,209$ 2,231$ 0$ General Admin - 27,300 - 12,300 15,000 Finance - 181,000 18,361 18,361 162,639 IT 35,000 31,325 - 31,325 - Police 148,577 529,798 - 101,328 428,470 Fire 182,479 522,129 - 29,580 492,549 Public Works 4,381,952 4,381,952 194,568 1,129,680 3,252,272 Parks & Recreation 1,198,514 1,856,164 - 10,710 1,845,454 Community Development 282,320 484,435 94,934 117,807 366,629 Total Capital Outlay 6,231,073$ 8,016,334$ 310,072$ 1,453,321$ 6,563,013$ Excess of revenues over expenditures (5,895,715) (7,623,326) (300,000) (1,309,387) (6,812,087) OTHER FINANCING SOURCES (USES) City of Milton Capital Project Fund Statement of Revenues, Expenditures, and Changes in Fund Balances - Budget and Actual For the Period Ended May 31, 2010 Transfers in from General Fund 1,085,400$ 2,376,511$ -$ -$ (2,376,511)$ Lease Proceeds - 446,500 - 20,500 (426,000) Budgeted Fund Balance 4,810,315 4,800,315 - - (4,800,315) Total other financing sources and uses 5,895,715 7,623,326 - 20,500 (7,602,826) Net change in fund balances - - (1,288,887) Fund balances - beginning 4,900,109 Fund balances - ending -$ -$ 3,611,222$ Original Budgeted Amounts Final Budgeted Amounts Current Period Actuals Year-to-Date Actuals Variance with Final Budget - Positive (Negative) REVENUES Intergovernmental Revenues Transportation Master Plan 348,048$ 121,741$ -$ 121,741$ (0)$ GDOT HPP Funds - 1,265,184 - 40,789 (1,224,395) Bathroom Renovation - - - - - Interest Revenues - - - - - Contributions & Donations - - - - - Total revenues 348,048$ 1,386,925$ -$ 162,530$ (1,224,395)$ EXPENDITURES Capital Outlay Public Works 1,828,578$ 1,629,013$ 43,129$ 159,523$ 1,469,490$ Total Capital Outlay 1,828,578$ 1,629,013$ 43,129$ 159,523$ 1,469,490$ Excess of revenues over expenditures (1,480,530) (242,088) (43,129) 3,007 245,095 OTHER FINANCING SOURCES (USES) Transfers in from General Fund 178,240$ -$ -$ -$ -$ Budgeted Fund Balance 1,302,290 242,088 - - (242,088)$ Total other financing sources and uses 1,480,530$ 242,088$ -$ -$ (242,088)$ Net change in fund balances - - 3,007 Fund balances - beginning 804,804 Fdbl di $$807 811$ City of Milton Capital Grant Fund Statement of Revenues, Expenditures, and Changes in Fund Balances - Budget and Actual For the Period Ended May 31, 2010 Fund balances - ending -$ -$ 807,811$ City of Milton 13000 Deerfield Parkway Suite 107C Milton, Georgia 30004 To: Honorable Mayor and City Council Members From: Carter Lucas, Principal Engineer Date: June 8, 2010 for the June 21, 2010 Council meeting Agenda Item: Approval of an Agreement between the City of Milton and Lowe Engineers, LLC for Professional Engineering Services Background: Sara Leaders has provided the city with Transportation Engineering and Planning Services since 2008 through Lowe Engineers, LLC. This professional services contract is to provide for a continuation of those services to the extent possible under our purchasing policy. Discussion: Our current purchasing policy provides for the acquisition of professional services on an as - needed basis provided those services do not exceed $30,000. This agreement will allow the city to continue to use the services of Lowe Engineers, LLC, and more specifically Sara Leaders, for Transportation Engineering and Planning services on hourly rate basis not to exceed the $30,000 threshold. Legal Review: Paul Higbee, Jarrard & Davis on 5-26-2010 Attachments: 1. Agreement with Lowe Engineers, LLC rcity of Milton ENGINEERING SERVICES AGREEMENT 'e—_ This Agreement made and entered into this 11�7 day of ,'_in the year 2010, by and between The City of Milton, Georgia (sometimes referred to herein as the "City"), having its principle place of business at 13000 Deerfield Parkway Suite 107G, Milton GA 30004 and Lowe Engineers, LLC ("Contractor") having its principle place of business at Six Concourse Parkway, Suite 100, Atlanta, GA 30328. WHEREAS, the City of Milton will require certain professional public works services beginning on June 1, 2010; and WHEREAS, the City's Purchasing Policy authorizes the procurement of professional services contracts of $30,000.00 or less; and WHEREAS, the City has determined that this Agreement constitutes such professional services; NOW THEREFORE, in consideration of the mutual covenant and promises contained herein, the parties agree as follows: 1.0 Scope of Work; Compensation The Contractor agrees to provide all Services specified in Exhibit "A," attached hereto and incorporated herein by reference, for the compensation described therein. No payments will be made for unauthorized work. Invoices should be submitted to Rick Pearce, 13000 Deerfield Parkway, Milton GA 30004, for approval. Payment will be sent to the designated address by U. S. Mail only; payment will not be hand -delivered. 2.0 Independent Contractor 2.1. The Contractor is an independent Contractor. The Contractor is not an employee, agent or representative of the City of Milton. The Contractor shall obtain and maintain, at the Contractor's expense, all permits, license or approvals that may be necessary for the performance of the services. 2.2 Inasmuch as the City of Mitton and the Contractor are entities independent of one another, neither has the authority to bind the other to any third person or otherwise to act in any way as the representative of the other, unless otherwise expressly agreed to in writing signed by both parities hereto. The Contractor agrees not to represent itself as the City's agent for any purpose to any party or to allow any employee of the Contractor to do so, unless specifically authorized, in advance and in writing, to do so, and then only for the limited purpose stated in such authorization. The Contractor shall assume full liability for any contracts or agreements the City of Mawn 7 Contractor enters into on behalf of the City of Milton without the express knowledge and prior written consent of the City. 3.0 Indemnification The Contractor covenants and agrees to take and assume all responsibility for the services rendered in connection with this Agreement. The Contractor shall bear all losses and damages directly or indirectly resulting to it on account of the performance or character of the services rendered pursuant to this Agreement. Contractor shall defend, indemnify and hold harmless the City, its officers, boards, commissions, elected and appointed officials, employees and agents from and against any and all claims, suits, actions, liability, judgments, damages, losses, and expenses, including but not limited to, attorney's fees, which may be the result of willful, negligent or tortuous conduct arising out of the Work, performance of contracted services, or operations by the Contractor, any subcontractor, anyone directly or indirectly employed by the Contractor or subcontractor or anyone for whose acts the Contractor or subcontractor may be liable, regardless of whether or not the offending act is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this provision. In any and all claims against the City or any of its agents or employees, by any employee of the Contractor, any subcontractor, anyone directly or indirectly employed by the Contractor or subcontractor or anyone for whose acts the Contractor or subcontractor may be liable, the indemnification obligation set forth in this provision shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or any subcontractor under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts. This obligation to indemnify and defend the City, its members, officers, agents, employees and volunteers shall survive termination of this Agreement. 4.0 Insurance (1) Requirements: The Contractor shall have and maintain in full force and effect for the duration of this Agreement, insurance insuring against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work by the Contractor, its agents, representatives, employees or subcontractors. All policies shall be subject to approval by the City Attorney to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. (2) Minimum Limits of Insurance: Contractor shall maintain limits no less than: (a) Comprehensive General Liability of $1,000,000 combined single limit per occurrence for bodily and personal injury, sickness, disease or death, injury to or destruction of property, including loss of use resulting there from. (b) Comprehensive Automobile Liability (owned, non -owned, hired) of $1,000,000 combined single limit per occurrence for bodily and personal injury, sickness, disease or death, injury to or destruction of property, including loss of use resulting there from. 2 A �� Cty of hkkan (c) Professional Liability of $1,000,000 limit for claims arising out of professional services caused by the Contractor's errors, omissions, or negligent acts. (d) Workers' Compensation limits as required by the State of Georgia and employers Liability limits of $1,000,000 per accident. (3) Deductibles and Self -Insured Retentions: Any deductibles or self-insured retentions must be declared to and approved by the City. (4) Other Insurance Provisions: The policy is to contain, or be endorsed to contain, the following provisions: (a) General Liability and Automobile Liability Coverage. (i) The City, its officials, employees, agents and volunteers are to be covered as insured as respects: liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the Contractor; premises owned, leased, or used by the Contractor; automobiles owned, leased, hired, or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officials, employees, agents or volunteers. (ii) The Contractor's insurance coverage shall be primary noncontributing insurance as respects to any other insurance or self-insurance available to the City, its officials, employees, agents or volunteers. Any insurance or self-insurance maintained by the City, its officials, employees or volunteers shall be excess of the Contractor's insurance and shall not contribute with it. (iii) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officials, employees, agents or volunteers. (iv) Coverage shall state that the Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. (v) Coverage shall be provided on a "pay on behalf' basis, with defense costs payable in addition to policy limits. There shall be no cross liability exclusion. (vi) The insurer agrees to waive all rights of subrogation against the City, its officials, employees, agents and volunteers for losses arising from work performed by the Contractor for the City. (vii) All endorsements to policies shall be executed by an authorized representative of the insurer. �� C+l y at Ati1Wn (b) Workers' Compensation Coverage. The insurer will agree to waive all rights of subrogation against the City, its officials, employees, agents and volunteers for losses arising from work performed by the Contractor for the City. (c) All Coverages. (i) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. (ii) Policies shall have concurrent starting and ending dates. (5) Acceptability of Insurers: Insurance is to be placed with insurers with an A.M. Bests' rating of no less than ANIL (6) Verification of Coverage: Contractor shall furnish the City with certificates of insurance and endorsements to the policies evidencing coverage required by this clause prior to the start of work. The certificates of insurance and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificate of insurance and endorsements shall be on a form utilized by Contractor's insurer in its normal course of business and shall be received and approved by the City prior to execution of this Agreement by the City. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. The Contractor shall provide proof that any expiring coverage has been renewed or replaced at least two (2) weeks prior to the expiration of the coverage. (7) Subcontractors: Contractor shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated in this Agreement, including but not limited to naming the parties as additional insured. (8) Claims -Made Policies: Contractor shall extend any claims -made insurance policy for at least six (6) years after termination or final payment under the Agreement, whichever is later_ (9) City as Additional Insured and Loss Payee: The City shall be named as an additional insured and loss payee on all policies required by this Agreement. 4 �rtcity of MilWn 5.0 Term; Termination The term of this Agreement shall be from June 1, 2010 until May 31, 2011. Except as otherwise provided for in Exhibit "A", the City may terminate this Agreement upon a breach of any provision of this Agreement by Contractor and Contractor's subsequent failure to cure such breach within fifteen (15) days of receipt from the City of a written notice of the breach. 6.0 Compliance with All Laws and Licenses The Contractor must obtain all necessary licenses and comply with local, state and federal requirements. The Contractor shall comply with all laws, rules and regulations of any governmental entity pertaining to its performance under this Agreement. 7.0 Assignment The Contractor shall not assign or subcontract the whole or any part of this Agreement without the City of Milton's prior written consent. 8.0 Amendments in Writing No amendments to this Agreement shall be effective unless it is in writing and signed by duly authorized representatives of the parties. 9.0 Expertise of Contractor Contractor accepts the relationship of trust and confidence established between it and the City, recognizing that the City's intention and purpose in entering into this Agreement is to engage an entity with the requisite capacity, experience, and professional skill and judgment to provide the services in pursuit of the timely and competent completion of the Work undertaken by Contractor under this Agreement. 10.0 Governing Law This Agreement shall be governed in all respects by the laws of the State of Georgia. 11.0 Interpretation of Documents In the event of a conflict in language between this Agreement and any exhibit to this Agreement, the provisions most favorable to the City shall govern. 12.0 Entire Agreement This Agreement constitutes the entire Agreement between the parties with respect to the subject matter contained herein; all prior agreements, representations, statements, negotiations, and undertakings are suspended hereby. Neither party has relied on any representation, promise, nor inducement not contained herein. 5 n 13.0 Waiver of Agreement The City's failure to enforce any provision of this Agreement or the waiver in a particular instance shall not be construed as a general waiver of any future breach or default. 14.0 Sovereign Immunity Nothing contained in this Agreement shall be construed to be a waiver of the City's sovereign immunity or any individual's qualified good faith or official immunities. 15.0 Notices All other notices, writings or correspondence as required by this Agreement shall be in writing and shall be deemed received, and shall be effective, when: (1) personally delivered, or (2) on the third day after the postmark date when mailed by certified mail, postage prepaid, return receipt requested, or (3) upon actual delivery when sent via national overnight commercial carrier to the Parties at the addresses given below, unless a substitute address shall first be furnished to the other Parties by written notice in accordance herewith: NOTICE TO THE CITY shall be sent to: City Manager City of Milton 13000 Deerfield Parkway, Suite 107F Milton, Georgia 30004 NOTICE TO THE CONTRACTOR shall be sent to: Jon Drysdale, PE Lowe Engineers, LLC Six Concourse Parkway, Suite 100 Atlanta, GA 30325 16.0 No Personal Liability No member, official or employee of the City shall be personally liable to the Contractor or any successor in interest in the event of any default or breach by the City or for any amount which may become due to the Contractor or successor or on any obligation under the terms of this Agreement. Likewise, Contractor's performance of services under this Agreement shall not subject Contractor's individual employees, officers or directors to any personal liability. The Parties agree that their sole and exclusive remedy, claim, demand or suit shall be directed and/or asserted only against Contractor or the City, respectively, and not against any employee, officer, director, or elected or appointed official. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized officers as of the day and year set forth next to each signature. Approved as to form: City Attorney 5 n + Gry ar na,n� SIG D, SEALED, AND DELIVERED iWtto presence of: Witness v �,'11- ok U-" ata blip [NOTARY SEAL] My Commission Expires: SIGNED, SEALED, AND DELIVERED in the presence of Notary Public [NOTARY SEAL] My Commission Expires: rctyofn LOWE ENG ERS, LLC: By: Member/Manager ,%%' j%jJ 11 ! fill,�. �p,N Co /y • r 43 ;'YirN A e= SEPTI t�' 2014 a� CITY OF MILTO By: Its: [CITY SEAL] 0 EXHIBIT "A" SCOPE OF WORK Provide professional transportation engineering and planning services to the City. This position administers projects, addressing engineering and administrative requirements, following established procedures, policies and practices. This position also collaborates with other tasks such as programmatic and comprehensive planning, development review, preparation and presentation of reports. RESPONSIBILITIES: • Develops and implements goals and objectives for assigned programs + Recommends and administers policies and procedures • Develops and directs the Short Range and Long Range Transportation Plan • Recommends projects for Grants and Capital Improvement Programs + Maintains the future projects lists for execution as directed • Indentifies new projects for consideration + Participates in the processing of major projects • Reviews development plans, studies and applications for Transportation related components • Reviews and recommends for approval final maps, plans, project documents, studies and related items • Monitors the implementation of the Zoning Ordinance and other development regulations • Prepares a City bike and pedestrian facility plans ■ Assists in execution of the capital improvement element of the budget • Coordination road privatization, dedication and abandonment applications + Oversees the development of the Transportation Component of the City Comprehensive Plan • Applies and enforces City ordinance, codes, policies, standards + Represents the City as staff member representatives to various transportation boards, commissions, agencies, etc., such as ARC, GDOT, GRTA and Fulton County. Provides liaison to other jurisdictions and agencies. + Provides periodic reports on program status to the City and Citizens • Provides for the maintenance and records of department activities in the City Transportation Planning area + Responds to public inquiries and complaints regarding transportation planning issues + Coordinates the design of public works projects Performs project management tasks for assigned projects • Performs other duties as assigned by the Public Works Director COMPENSATION: Services contemplated by this Agreement shall be performed -on Contractor's behalf exclusively by Sara Leaders, unless otherwise requested by the- city, on an hourly rate basis. The hourly rate for the term of this contract shall not exceed $75 per hour with- a maximum billing, including all expenses, not to exceed $30,000.00. In the event that, for any reason, Sara Leaders is unable to provide the services contemplated by this Agreement, the City may terminate this Agreement by providing thirty (30) days prior written notice of termination to Contractor. The Contractor shall immediately make available an alternative, suitable employee 8 n �� ' City of Won during the termination period. Compensation during this termination period shall not exceed the hourly rate established by this section. Invoices will be submitted to the City at the end of each month, and payment is requested within 30 days of the date of the invoice. Authorized expenses, including mileage at governmental rates, will be invoiced monthly with documentation and without a markup, and payment is requested within 30 days of the date of the invoice. 9 n �� ary olhfAon City of Milton 13000 Deerfield Parkway, Milton, Georgia 30004 1 To: Honorable Mayor and City Council Members From: Deborah Harrell, Chief of Police Date: Submitted on June 9, 2010 for the June 21, 2010 Regular Council Meeting Agenda Item: Approval for the Execution of a Contract with Back on The Road for Vehicle Maintenance of Police Fleet. City Manager’s Office Recommendation: Consent to the execution of a contract with Back on The Road for vehicle maintenance of the police fleet. Background: The agency must have a reliable place to take its police vehicle fleet. Discussion Three bids were solicited and received for this project, after a period of time and sustained satisfactory performance a multi-year contact has been initiated. The company is located in the City of Milton and has preformed excellent service on fleet vehicles. Based on the need for continuity of services and reliability for maintenance of police vehicles a multi-year contract with Back on The Road is the City’s best option. Experience with previous vendors was not satisfactory. We would like to secure the services of Back on The Road on a multi-year basis. Funding and Fiscal Impact: No increase to budget. Alternatives: Seek bids each year Concurrent Review: Chris Lagerbloom, City Manager City of Milton AGREEMENT FOR VEHICLE MAINTENANCE AND REPAIRS THIS AGREEMENT is effective as of this day of '2010, by and between the CITY OF MILTON, a municipal corporation of the State of Georgia, acting by and through its governing authority, the Mayor and Council of the City of Milton ("City"), and Back On The Road, LLC, ("Contractor"), collectively referred to as the "Parties." WITNESSETH THAT: WHEREAS, the City desires to retain Contractor to provide certain services generally described as maintenance and repair of City Police Department vehicles (the "Work); and WHEREAS, the City finds that specialized knowledge, skills, and training are necessary to perform the Work contemplated under this Agreement; and WHEREAS, the Contractor has represented that it is qualified by training and experience to perform the Work; and WHEREAS, the Contractor desires to perform the Work under the terms and conditions set forth in this Agreement; and WHEREAS, the public interest will be served by this Agreement. NOW, THEREFORE, the Parties hereto do mutually agree as follows: I. SCOPE OF SERVICES AND TERMINATION DATE A. Proiect Description This Agreement, which is non-exclusive, is for the maintenance and repair of City Police Department vehicles. B. The Work The Work to be completed under this Agreement (the "Work") shall consist of the vehicle maintenance items listed on Exhibit "A," attached hereto and incorporated herein by reference. C. Schedule, Completion Date, and Term of Aereement The term of this Agreement shall be from _ , 2010 until December 31, 2010, unless terminated earlier as provided for herein, provided that this Agreement shall automatically renew for additional consecutive one (1) year terms on January 1 following the expiration of each then -current term absent termination as provided for herein, and further provided that this Agreement shall terminate absolutely and without further obligation on the part of the City at the end of each calendar year. In no event shall this Agreement renew beyond December 31, 2012, at which time this Agreement shall terminate finally and without automatic renewal. Title to any supplies, materials, equipment, or other personal property shall remain in the Contractor until fully paid for by the City. II, WORK CHANGES A. The City reserves the right to order changes in the Work to be performed under this Agreement by altering, adding to, or deducting from the Work. All such changes shall be incorporated in written change orders executed by the Contractor and the City. Such change orders shall specify the changes ordered and any necessary adjustment of compensation and completion time. . B. Any work added to the scope of this Agreement by a change order shall be executed under all the applicable conditions of this Agreement. No claim for additional compensation or extension of time shall be recognized, unless contained in a written change order duly executed on behalf of the City and the Contractor. III. COMPENSATION AND METHOD OF PAYMENT Contractor shall be paid fees for services in accordance with the Vehicle Maintenance Price Schedule in Exhibit "A," provided that Contractor may increase such fees commensurate with increases in the cost actually incurred by Contractor for related goods supplied to the City upon the City and the Contractor mutually agreeing in writing to any such increase in price before charges are incurred.. The City shall make individual requests for services to Contractor in writing. In addition to the services described in Exhibit "A," the City from time to time may request in writing that Contractor perform services not described in Exhibit "A," and the compensation paid by the City to Contractor for such services shall be at the rate of $_$9_.00 per hour, plus retail less 10% and parts purchased from a vehicle manufacturer's dealership will not be discounted.. City agrees to pay the Contractor for City approved services performed and costs incurred by Contractor upon certification by the City that the services were actually performed and costs actually incurred in accordance with the Agreement. Compensation for services performed and reimbursement for costs incurred shall be paid to the Contractor upon receipt and approval by the City of invoices setting forth in detail the services performed and costs incurred. Invoices shall be submitted on a monthly basis, and such invoices shall reflect charges incurred versus charges budgeted. Any material deviations in tests or inspections performed, times or locations required to complete such tests or inspections and like deviations from the Work described in this Agreement shall be clearly communicated to the City before charges are incurred and shall be handle through change orders as described in Section II above. The City shall pay the Contractor within thirty (30) days after approval of the invoice by City staff. No payments will be made for unauthorized work. Invoices should be submitted monthly to City of Milton 13000 Deerfield Parkway Suite 107G Milton, GA, 30004 for approval. 2 Payment will be sent to the designated address by U. S. Mail only; payment will not be hand - delivered. IV. COVENANTS OF CONTRACTOR A. Expertise of Contractor Contractor accepts the relationship of trust and confidence established between it and the City, recognizing that the City's intention and purpose in entering into this Agreement is to engage an entity with the requisite capacity, experience, skill and judgment to provide the services in pursuit of the timely and competent completion of the Work undertaken by Contractor under this Agreement. B. Budgetary Limitations Contractor agrees and acknowledges that budgetary limitations are not a justification for breach of sound principals of Contractor's profession and industry. Contractor shall take no calculated risk in the performance of the Work. Specifically, Contractor agrees that, in the event it cannot perform the Work within the budgetary limitations established without disregarding sound principals of Contractor's profession and industry, Contractor will give written notice immediately to the City. C. City's Reliance on the Work The Contractor acknowledges and agrees that the City does not undertake to approve or pass upon matters of expertise of the Contractor and that, therefore, the City bears no responsibility for Contractor's services performed under this Agreement. The Contractor acknowledges and agrees that the acceptance of designs, plans, and specifications by the City is limited to the function of determining whether there has been compliance with what is required to be produced under this Agreement. The City will not, and need not, inquire into adequacy, fitness, suitability or correctness of Contractor's performance. Contractor further agrees that no approval of designs, plans, or specifications by any person, body or agency shall relieve Contractor of the responsibility for adequacy, fitness, suitability, and correctness of Contractor's professional and industry standards or for performing services under this Agreement in accordance with sound and accepted professional and industry principals. D. Contractor's Reliance of Submissions by the Ci Contractor must have timely information and input from the City in order to perform the services required under this Agreement. Contractor is entitled to rely upon information provided by the City, but Contractor shall be required to provide immediate written notice to the City if Contractor knows or reasonably should know that any information provided by the City is erroneous, inconsistent, or otherwise problematic. 9 E. Contractor's Representative Brad Meeks, Tim Price or Scott Mitcheltree shall be authorized to act on Contractor's behalf with respect to the Work as Contractor's designated representative. F. Assignment of Agreement The Contractor covenants and agrees not to assign or transfer any interest in, nor delegate or subcontract any duties of this Agreement, without the prior express written consent of the City. As to any approved subcontractors, the Contractor shall be solely responsible for reimbursing them and the City shall have no obligation to them. G. Responsibility of Contractor and Indemnification of Lily The Contractor covenants and agrees to take and assume all responsibility for the services rendered in connection with this Agreement. The Contractor shall bear all losses and damages directly or indirectly resulting to it on account of the performance or character of the services rendered pursuant to this Agreement. Contractor shall defend, indemnify and hold harmless the City, its officers, boards, commissions, elected officials, employees and agents from and against any and all claims, suits, actions, liability, judgments, damages, losses, and expenses, including but not limited to, attorney's fees, which may be the result of willful, negligent or tortious conduct arising out of the Work, performance of contracted services, or operations by the Contractor, any subcontractor, anyone directly or indirectly employed by the Contractor or subcontractor or anyone for whose acts the Contractor or subcontractor may be liable, regardless of whether or not the offending act is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this provision. In any and all claims against the City or any of its agents or employees, by any employee of the Contractor, any subcontractor, anyone directly or indirectly employed by the Contractor or subcontractor or anyone for whose acts the Contractor or subcontractor may be liable, the indemnification obligation set forth in this provision shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or any subcontractor under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts. This obligation to indemnify and defend the City, its members, officers, agents, employees and volunteers shall survive termination of this Agreement. H. Independent Contractor Contractor hereby covenants and declares that it is engaged in an independent business and agrees to perform the services as an independent contractor and not as the agent or employee of the City. The Contractor agrees to be solely responsible for its own matters relating to the time and place the services are performed; the instrumentalities, tools, supplies and/or materials necessary to complete the services; hiring of Contractors, agents or employees to complete the services; and the payment of employees, including compliance with Social Security, withholding and all other regulations governing such matters. The Contractor agrees to be solely responsible 4 for its own acts and those of its subordinates, employees, and subcontractors during the life of this Agreement. Any provisions of this Agreement that may appear to give the City the right to direct Contractor as to the details of the services to be performed by Contractor or to exercise a measure of control over such services will be deemed to mean that Contractor shall follow the directions of the City with regard to the results of such services only. I. Insurance (1) Requirements: The Contractor shall have and maintain in full force and effect for the duration of this Agreement, insurance insuring against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work by the Contractor, its agents, representatives, employees or subcontractors. All policies shall be subject to approval by the City Attorney to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. (2) Minimum Limits of Insurance: Contractor shall maintain limits no less than: (a) Comprehensive General Liability of $1,000,000 combined single limit per occurrence for bodily and personal injury, sickness, disease or death, injury to or destruction of property, including loss of use resulting therefrom. (b) Comprehensive Automobile Liability (owned, non -owned, hired) of $1,000,000 combined single limit per occurrence for bodily and personal injury, sickness, disease or death, injury to or destruction of property, including loss of use resulting therefrom. (c) Workers' Compensation limits as required by the State of Georgia and employers Liability limits of $1,000,000 per accident. (3) Deductibles and Self -Insured Retentions: Any deductibles or self-insured retentions must be declared to and approved by the City. (4) Other Insurance Provisions: The policy is to contain, or be endorsed to contain, the following provisions: (a) General Liability and Automobile Liability Coverage. 5 (i} The City, its officials, employees, agents and volunteers are to be covered as insured as respects: liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the Contractor; premises owned, leased, or used by the Contractor; automobiles owned, leased, hired, or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officials, employees, agents or volunteers. (ii) The Contractor's insurance coverage shall be primary noncontributing insurance as respects to any other insurance or self-insurance available to the City, its officials, employees, agents or volunteers. Any insurance or self-insurance maintained by the City, its officials, employees or volunteers shall be excess of the Contractor's insurance and shall not contribute with it. (iii) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officials, employees, agents or volunteers. (iv) Coverage shall state that the Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. (v) Coverage shall be provided on a "pay on behalf' basis, with defense costs payable in addition to policy limits. There shall be no cross liability exclusion. (vi) The insurer agrees to waive all rights of subrogation against the City, its officials, employees, agents and volunteers for losses arising from work performed by the Contractor for the City. (vii) All endorsements to policies shall be executed by an authorized representative of the insurer. (b) Workers' Compensation Coverage. The insurer will agree to waive all rights of subrogation against the City, its officials, employees, agents and volunteers for losses arising from work performed by the Contractor for the City. (c) All Coverages. (i) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled, 0 reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. (ii) Policies shall have concurrent starting and ending dates. (5) Acceptability of Insurers: Insurance is to be placed with insurers with an A.M. Bests' rating of no less than ANIL (5) Verification of Coverage: Contractor shall furnish the City with certificates of insurance and endorsements to the policies evidencing coverage required by this clause prior to the start of work. The certificates of insurance and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificate of insurance and endorsements shall be on a form utilized by Contractor's insurer in its normal course of business and shall be received and approved by the City prior to execution of this Agreement by the City. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. The Contractor shall provide proof that any expiring coverage has been renewed or replaced at least two (2) weeks prior to the expiration of the coverage. (7) Subcontractors: Contractor shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated in this Agreement, including but not limited to naming the parties as additional insured. (8) Claims -Made Policies: Contractor shall extend any claims -made insurance policy for at least six (G) years after termination or final payment under the Agreement, whichever is later. (9) Ci as Additional Insured and Loss Pa ee: The City shall be named as an additional insured and loss payee on all policies required by this Agreement. J. Records, Reports„and Audits (1) Records: 7 (a) Records shall be established and maintained by the Contractor in accordance with requirements prescribed by the City with respect to all matters covered by this Agreement. Except as otherwise authorized, such records shall be maintained for a period of three years from the date that final payment is made under this Agreement. Furthermore, records that are the subject of audit findings shall be retained for three years or until such audit findings have been resolved, whichever is later. (b) All costs shall be supported by properly executed payrolls, time records, invoices, contracts, or vouchers, or other official documentation evidencing in proper detail the nature and propriety of the charges. All checks, payrolls, invoices, contracts, vouchers, orders or other accounting documents pertaining in whole or in part to this Agreement shall be clearly identified and readily accessible. (2) Reports and Information: Upon request, the Contractor shall furnish to the City any and all statements, records, reports, data and information related to matters covered by this Agreement in the form requested by the City. (3) Audits and Inspections: At any time during normal business hours and as often as the City may deem necessary, there shall be made available to the City for examination all records with respect to all matters covered by this Agreement. The Contractor will permit the City to audit, examine, and make excerpts or transcripts from such records, and to audit all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and or data relating to all matters covered by this Agreement. K. Conflicts of Interest Contractor agrees that it shall not engage in any activity or conduct that would result in a violation of the City of Milton Ethics Ordinance. L. Confidentiality Contractor acknowledges that it may receive confidential information of the City and that it will protect the confidentiality of any such confidential information and will require any of its subcontractors, Contractors, and/or staff to likewise protect such confidential information. The Contractor agrees that confidential information it receives or such reports, information, opinions or conclusions that Contractor creates under this Agreement shall not be made available to, or discussed with, any individual or organization, including the news media, without prior written approval of the City. The Contractor shall exercise reasonable precautions to prevent the unauthorized disclosure and use of City information whether specifically deemed confidential or 8 not. M. Licenses, Certifications and Permits . The Contractor covenants and declares that it has obtained all diplomas, certificates, licenses, permits or the like required of the Contractor by any and all national, state, regional, City, local boards, agencies, commissions, committees or other regulatory bodies in order to perform the services contracted for under this Agreement. All work performed by Contractor under this Agreement shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily expected of competent professionals. N. Subcontractors Contractor shall not subcontract with any third party for the performance of any portion of the Work without the prior written consent of the City. Contractor shall be solely responsible for any such subcontractors in terms of performance and compensation. O. Authority to Contract The Contractor covenants and declares that it has obtained all necessary approvals of its board of directors, stockholders, general partners, limited partners or similar authorities to simultaneously execute and bind Contractor to the terms of this Agreement, if applicable. P. Ownership of Work All reports, designs, drawings, plans, specifications, schedules, work product and other materials prepared or in the process of being prepared for the services to be performed by the Contractor ("materials") shall be the property of the City and the City shall be entitled to full access and copies of all such materials. Any such materials remaining in the hands of the Contractor or subcontractor upon completion or termination of the work shall be delivered immediately to the City. The Contractor assumes all risk of loss, damage or destruction of or to such materials. if any materials are lost, damaged or destroyed before final delivery to the City, the Contractor shall replace them at its own expense. Any and all copyrightable subject matter in all materials is hereby assigned to the City and the Contractor agrees to execute any additional documents that may be necessary to evidence such assignment. �. Warranty Except as may be otherwise specified or agreed, the Contractor shall repair all defects in materials, equipment, or workmanship appearing within one year from the date of Work. V. COVENANTS OF THE CITY A. Rip_ht of Entry_ The City shall provide for right of entry for Contractor and all necessary equipment to the 0 applicable City facilities, in order for Contractor to complete the Work. B. Ci 's Representative Jeanette Citta shall be authorized to act on the City's behalf with respect to the Work as the City's designated representative VI. TERMINATION A. Either party may terminate this Agreement for convenience by providing written notice thereof at least thirty (30) calendar days in advance of the termination date. B. Upon termination, City shall provide for payment to the Contractor for services rendered and expenses incurred prior to the termination date. C. Upon termination, the Contractor shall: (1) promptly discontinue all services affected, unless the notice directs otherwise; and (2) promptly deliver to the City all vehicles, data, drawings, reports, summaries, and such other information and materials as may have been generated or used by the Contractor in performing this Agreement, whether completed or in process, in the form specified by the City. D. The rights and remedies of the City and the Contractor provided in this Section are in addition to any other rights and remedies provided under this Agreement or at law or in equity. VII. NO PERSONAL LIABILITY No member, official or employee of the City shall be personally liable to the Contractor or any successor in interest in the event of any default or breach by the City or for any amount which may become due to the Contractor or successor or on any obligation under the terms of this Agreement. Likewise, Contractor's performance of services under this Agreement shall not subject Contractor's individual employees, officers or directors to any personal liability. The Parties agree that their sole and exclusive remedy, claim, demand or suit shall be directed and/or asserted only against Contractor or the City, respectively, and not against any employee, officer, director, or elected or appointed official. VIII. ENTIRE AGREEMENT This Agreement constitutes the complete agreement between the Parties and supersedes any and all other agreements, either oral or in writing, between the Parties with respect to the subject matter of this Agreement. No other agreement, statement or promise relating to the subject matter of this Agreement not contained in this Agreement shall be valid or binding. This Agreement may be modified or amended only by a written document signed by representatives of both Parties with appropriate authorization. IX. SUCCESSORS AND ASSIGNS 10 Subject to the provision of this Agreement regarding assignment, this Agreement shall be binding on the heirs, executors, administrators, successors and assigns of the respective Parties. X. APPLICABLE LAW If any action at law or in equity is brought to enforce or interpret the provisions of this Agreement, the rules, regulations, statutes and laws of the State of Georgia will control. XI. CAPTIONS AND SEVERABILITY The captions or headnotes on articles or sections of this Agreement are intended for convenience and reference purposes only and in no way define, limit or describe the scope or intent thereof, or of this Agreement nor in any way affect this Agreement. Should any article(s) or section(s), or any part thereof, later be deemed unenforceable by a court of competent jurisdiction, the offending portion of the Agreement should be severed and the remainder of this Agreement shall remain in full force and effect to the extent possible. XII. NOTICES A. Communications Relatinp_ to Daily Activities All comnitmications relating to the day-to-day activities of the Work shall be exchanged between Jeannette Citta for the City and Tim Price or Scott Mitcheltree for the Contractor. B. Official Notices All other notices, writings or correspondence as required by this Agreement shall be in writing and shall be deemed received, and shall be effective, when: (1) personally delivered, or (2) on the third day after the postmark date when mailed by certified mail, postage prepaid, return receipt requested, or (3) upon actual delivery when sent via national overnight commercial carrier to the Parties at the addresses given below, unless a substitute address shall first be furnished to the other Parties by written notice in accordance herewith: NOTICE TO THE CITY shall be sent to: Budget and Procurement Coordinator City of Milton 13000 Deerfield Parkway, Suite 1078 Milton, Georgia 30004 NOTICE TO THE CONTRACTOR shall be sent to: 2875 Bethany Bend Milton, Georgia 30004 XIII. WAIVER OF AGREEMENT The City's failure to enforce any provision of this Agreement or the waiver in a particular instance shall not be construed as a general waiver of any future breach or default. XIV. SOVEREIGN IMMUNITY Nothing contained in this Agreement shall be construed to be a waiver of the City's sovereign immunity or any individual's qualified good faith or official immunities. XV. FORCE MAJEURE Neither the City nor Contractor shall be liable for their respective non -negligent or non - willful failure to perform or shall be deemed in default with respect to the failure to perform (or cure a failure to perform) any of their respective duties or obligations under this Agreement or for any delay in such performance due to: (a) any cause beyond their respective reasonable control; (b) any act of God; (c) any change in applicable governmental rules or regulations rendering the performance of any portion of this Agreement legally impossible; (d) earthquake, fire, explosion or flood; (e) strike or labor dispute, excluding strikes or labor disputes by employees and/or agents of Contractor; (f) delay or failure to act by any governmental or military authority; or (g) any war, hostility, embargo, sabotage, civil disturbance, riot, insurrection or invasion. In such event, the time for performance shall be extended by an amount of time equal to the period of delay caused by such acts and all other obligations shall remain intact. IN WITNESS WHEREOF the City and the Contractor have executed this Agreement effective as of the date the City Manager executes this Agreement on behalf of the City. BACK ON THE ROAD, LLC: By: ember/Manager kAz 111&& [SIGNATURES CONTINUED ON THE FOLLOWING PAGE] 12 SIGNED, SEALED, AND DELIVERED in the presence of: .NNE D & 7W'ne s ' NOTARY'S Notary Public R_' 1L1C [NOTARY SEAL] My Com 'scion E pires: SIGNED, SEALED, AND DELIVERED in the presence of: Witness Notary Public [NOTARY SEAL] My Commission Expires: CITY OF MILTON By: Its: 13 [CITY SEAL] Exhibit A HIDDERS MUST RETURN THIS SHEET WITH BID RFSK)NSE Vendor X"' -z ell fXLtC Prov ided by. Vehicle Mainterian c Price Schedule.; 1. Oil Change ?. Tire Rotation 3. Multi -Point Inspection 4. Ian Belt% 5. Transmission Flush 6. Battery 7. Coolant Flush 8. Brake Fluid Flush 9. From Bake 10. Rear Brake 11. Front Find Alignment 12, Wiper Blades I T Air Filter I4. hwol Filter 15. FIcid I AIIIIP 16. ThcrniosIaIIC'wsket IT Goodyear Laglc RN -A P235 55R17 �) 18-Tire141 ountinujtial:ince 9 yI ..` 19. priority Service for On -Duty Unita? V' Yea Nu 20, Continemal C'ontitrac SUV � � w �• af~11ir{�;,c P 2651768 17 (Fund Lxped} 14 City of Milton 13000 Deerfield Parkway Suite 107C Milton, Georgia 30004 To: Honorable Mayor and City Council Members From: Carter Lucas, Public Works Director Date: June 14, 2010 for the June 21, 2010 Council meeting Agenda Item: Approval of an Amendment to Extend the Agreement Term between the City of Milton and Georgia Management Agency, Inc. (d/b/a Roadworx) and Optech-Monette, LLC Background: Since January 1, 2010 Georgia Municipal Agency (d/b/a Roadworx) and Optech-Monette, LLC have provided municipal field services in the form of right-of-way/general maintenance, mowing, traffic signs and traffic signal maintenance and repair. These transition contracts are set to expire on June 30, 2010. Discussion: The transition contracts were put in place to allow the city to prepare and formally bid the services currently being performed. Those contracts were formally bid and contract negotiations are currently underway but will not be completed in sufficient time to be placed on the June 21, 2010 agenda. The final contract recommendation will be brought before Council at the July 7, 2010 regular council meeting. The contract extensions provided herein will allow for a continuation of service between the original termination date of the existing contracts and the July 7, 2010 council meeting. Legal Review: Ken Jarrard, Jarrard & Davis on 6-14-2010 Attachments: 1. Agreement with Optech-Monette, LLC 2. Agreement with Georgia Municipal Agency, Inc. 1 AMENDMENT TO EXTEND AGREEMENT TERM This Amendment to Professional Services Agreement (hereinafter referred to as this "Amendment”) is made by and between GEORGIA MANAGEMENT AGENCY, INC. ("CONSULTANT") and the CITY OF MILTON, GEORGIA, (the "CITY"), and this Amendment is effective on the date all parties have signed the Amendment. W I T N E S S E T H: WHEREAS, CONSULTANT and the CITY entered into a certain Professional Services Agreement dated December 21, 2009 (the “Agreement”), a copy of which is attached hereto and incorporated herein by reference as Exhibit “A”; and WHEREAS, the parties desire to extend the term of the Agreement. FOR AND IN CONSIDERATION OF the above premises, the exchange of $10.00, and other good and valuable consideration described herein, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows: 1. Section I(C) of the Agreement is hereby modified to read as follows: “The term of this Agreement shall be from January 1, 2010 until July 7, 2010, unless terminated earlier as provided for herein.” 2. All other terms and conditions of the Agreement shall remain unmodified and of full force and effect. IN WITNESS WHEREOF, the parties have executed this Amendment. GEORGIA MANAGEMENT AGENCY, INC. By:______________________________________ Louis S. Ehrenhalt, President Date:____________________________________ CITY OF MILTON, GEORGIA By:______________________________________ Joe Lockwood, Mayor Date:____________________________________ EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" City of Milton 13000 Deerfield Parkway Suite 107C Milton, Georgia 30004 To: Honorable Mayor and City Council Members From: Carter Lucas, Public Works Director Date: June 14, 2010 for the June 21, 2010 Council meeting Agenda Item: Approval of an Amendment to Extend the Agreement Term between the City of Milton and Georgia Management Agency, Inc. (d/b/a Roadworx) and Optech-Monette, LLC Background: Since January 1, 2010 Georgia Municipal Agency (d/b/a Roadworx) and Optech-Monette, LLC have provided municipal field services in the form of right-of-way/general maintenance, mowing, traffic signs and traffic signal maintenance and repair. These transition contracts are set to expire on June 30, 2010. Discussion: The transition contracts were put in place to allow the city to prepare and formally bid the services currently being performed. Those contracts were formally bid and contract negotiations are currently underway but will not be completed in sufficient time to be placed on the June 21, 2010 agenda. The final contract recommendation will be brought before Council at the July 7, 2010 regular council meeting. The contract extensions provided herein will allow for a continuation of service between the original termination date of the existing contracts and the July 7, 2010 council meeting. Legal Review: Ken Jarrard, Jarrard & Davis on 6-14-2010 Attachments: 1. Agreement with Optech-Monette, LLC 2. Agreement with Georgia Municipal Agency, Inc. 1 AMENDMENT TO EXTEND AGREEMENT TERM This Amendment to Agreement (hereinafter referred to as this "Amendment”) is made by and between OPTECH MONETTE, LLC ("CONTRACTOR") and the CITY OF MILTON, GEORGIA, (the "CITY"), and this Amendment is effective on the date all parties have signed the Amendment. W I T N E S S E T H: WHEREAS, CONTRACTOR and the CITY entered into a certain Agreement dated December 21, 2009 (the “Agreement”), a copy of which is attached hereto and incorporated herein by reference as Exhibit “A”; and WHEREAS, the parties desire to extend the term of the Agreement. FOR AND IN CONSIDERATION OF the above premises, the exchange of $10.00, and other good and valuable consideration described herein, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows: 1. Section 4 of the Agreement is hereby modified to read as follows: “This Contract shall take effect on January 1, 2010 and shall terminate on July 7, 2010.” 2. All other terms and conditions of the Agreement shall remain unmodified and of full force and effect. IN WITNESS WHEREOF, the parties have executed this Amendment. OPTECH MONETTE, LLC By:______________________________________ Robert Monette, Manager Date:____________________________________ CITY OF MILTON, GEORGIA By:______________________________________ Joe Lockwood, Mayor Date:____________________________________ EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" EXHIBIT "A" Rebecca McManus WHEREAS, The City of Milton recognizes the importance of developing fine character and personal quality in our younger generations; and WHEREAS, The Girl Scouts of America have long been regarded as one of the pre- eminent organizations for fostering the best qualities in our young women; and WHEREAS, Within the Girl Scouts, the highest honor that one can achieve is the Gold Award, which is attainable only after a three-year process of earning standard awards, working toward 30 leadership hours and 40 career hours, and then a final project, which must have a lasting effect on the community, requiring a minimum of 65 hours of work; and WHEREAS, The recipient of this honor represents a collective hope for the bright future of this nation; and WHEREAS, Rebecca McManus has distinguished herself by being presented the Gold Award on May 3, 2010, Now, therefore, We, the Mayor and City Council of the City of Milton, hereby proclaim and applaud Gold Award winner Rebecca McManus as an exemplary member of the Milton community and of the State of Georgia, and do urge all citizens to join in this celebration. Given under our hand and seal of the City of Milton, Georgia on this 21st day of June, 2010. (Seal) _________________________________ Joe Lockwood, Mayor Principal Ron Tesch Day WHEREAS, Milton High School Principal Ron Tesch has helmed Milton High School for 12 years , capping off a brilliant 44-year career by choosing the end of the 2010 school year for his retirement, and; WHEREAS, During his career, Tesch has been principal of three United States Blue Ribbon Schools of Excellence, including Ann Arbor Huron High School in Michigan, Edina High School in Minnesota and Milton High School in Georgia, which was honored in 2008, and; WHEREAS, During his tenure at Milton, ACT and SAT scores have steadily risen, as have the number of students taking advanced placement and college level courses, and; WHEREAS, While under his leadership Milton has been known as a sports powerhouse as well, garnering state basketball, hockey, lacrosse, track and field, baseball and tennis championships, and; WHEREAS, Tesch was named a “Georgia High Performing Principal” by Gov. Sonny Purdue and was appointed to the Georgia Principal’s Advisory Council, where he worked closely with Secretary of Education Kathy Cox, and; WHEREAS, Tesch has since 1996 maintained membership in the prestigious Headmasters Association, one of the oldest professional educational leadership groups in the nation. Membership is limited to 100 private and public headmasters in the United States, and Tesch was recently named vice-president, and; WHEREAS, Tesch is the type of community-first resident we are proud to have as a resident in our community. NOW, THEREFORE, we, the Mayor and City Council of the City of Milton, hereby dedicate Monday, June 21, 2010 as PRINCIPAL RON TESCH DAY in the City of Milton, Georgia. Given under our hand and seal of the City of Milton, Georgia on this 21st Day of June, 2010. (Seal) _______________________ Joe Lockwood Mayor Milton Department Of Public Safety Citizens Academy Certificate of Completion Is presented to: Insert name here For the successful completion of the Citizens Public Safety Academy. Your dedication and commitment to the safety of the Milton Community is a commendable achievement and serves as a splendid example to all of our citizens. Given this____ day of ____, 2010. Joe Lockwood Deborah Harrell Mayor Chief of Police City of Milton Citizens Academy Graduates ANUSZKIEWICZ, KIMBERLY ANUSZKIEWICZ, MARK BURKE, KIERAN COGGINS, ANN COPSEY, JONATHAN CORLEY, LENWARD CORLEY, PATRECIA ENLOE, TIM GORDON, DAMIAN POWELL, JAY PUGLIESE, DONNA STANNARD, MICHAEL TROUSDALE, LAURA TUBACH, RAYMOND City of Milton 13000 Deerfield Parkway, Suite 107 Milton, GA 30004 1 To: Honorable Mayor and City Council Members From: Lynn Tully, AICP, Community Development Director Date: June 10, 2010, Submitted for the June 21, 2010, City Council Regular Meeting for First Presentation. Agenda Item: Text Amendment to replace in its entirety Chapter 54, Telecommunications of the City of Milton Code of Ordinances CMO (City Manager’s Office) Recommendation: The Mayor and City Council to hear and approve the attached text amendment, Chapter 54, Telecommunications of the City of Milton Code of Ordinances replacing the existing text in its entirety. Background: In late 2009, several requests for approval to site new telecommunications towers were received. During their review changes to the telecommunication towers section of the ordinance were processed. An emergency moratorium to new permits and applications for cell towers was enacted by the Mayor and City Council on March 15 for 60 days and a published moratorium was approved on May 14th for 60 days. Also during this period the City saw a need for additional specialized consultation from a firm with radio frequency engineering and local government expertise. Discussion: The City hired Georgia Regulatory Tax Solutions, recognizing their proficiency in matters regarding telecommunications facilities. They performed reviews not only on the cell tower applications that had been submitted in 2009, but also on our recently changed ordinance. Findings from this review require additional changes to our current ordinance to allow for new options to site towers, more detailed review and additional outside review of applications, local operating licensing and inspection of towers, as well as to require more aesthetic considerations in approvals. The ordinance has been reviewed in detail by GTRS, Community Development Staff and the City Attorney’s office. Attached is the proposed ordinance as recommended by all bodies. Alternatives: The Mayor and City Council may choose to approve, deny or defer the Text Amendment to replace in its entirety Chapter 54, Telecommunications of the City of Milton Code of Ordinances. City of Milton 13000 Deerfield Parkway, Suite 107 Milton, GA 30004 2 Concurrent Review: Chris Lagerbloom, City Manager Ken Jarrard, City Attorney [Memo Cell Tower Ord.Chap 54.061010] STATE OF GEORGIA COUNTY OF FULTON ORDINANCE NO. AN ORDINANCE TO AMEND CHAPTER 54, TELECOMMUNICATIONS, OF THE MILTON CITY CODE BE IT ORDAINED by the City Council of the City of Milton, GA while in a regularly called council meeting on July 7, 2010 at 6:00 p.m. as follows: SECTION 1. That the Ordinance relating to Amending Chapter 54, of the Milton City Code, as it relates to Telecommunications, is hereby adopted and approved, replacing existing Chapter 54 in its entirety; and is attached hereto as if fully set forth herein, and; SECTION 2. All ordinances, parts of ordinances, or regulations in conflict herewith are repealed. SECTION 3. That this Ordinance shall become effective upon its adoption. ORDAINED this the 7th day of July, 2010. ____________________________________ Joe Lockwood, Mayor Attest: ______________________________ Sudie AM Gordon, Interim City Clerk (Seal) Revised: May 12, 2010 CHAPTER 54: AN ORDINANCE REGULATING THE LOCATION, PLACEMENT AND LEASING OF WIRELESS TELECOMMUNICATIONS FACILITIES Section 1: Purpose and Intent. The purpose of this Ordinance is to establish guidelines for the siting of all wireless communications towers and antennas which will encourage the development of wireless communications while protecting the health, safety, and welfare of the public and maintaining the aesthetic integrity of the community. The goals of this ordinance are: (a) To protect residential areas and land uses from potential adverse impact of telecommunications towers, antenna support structures and wireless communications facilities; (b) To minimize the total number of towers and antennas within the community necessary to provide adequate personal wireless services to residents of Milton; (c) To locate telecommunications towers and antennas in areas where adverse impacts on the community are minimized; (d) To encourage the design and construction of towers and antennas to minimize adverse visual impacts; (e) To avoid potential damage to property caused by wireless communications facilities by insuring that such structures are soundly and carefully designed, constructed, modified, maintained, and removed when no longer used or when determined to be structurally unsound; (f) To preserve those areas of significant scenic or historic merit; (g) To facilitate implementation of a master siting Plan for the City of Milton; (h) To promote and encourage the joint use of new and existing tower sites among service providers; (i) To enhance the ability of the providers of wireless communications services to deliver such services to the community effectively and efficiently. (j) To supersede article 19.4.7 and 19.3.1Sections 64-1801, 64-1592, and 64-1594 of the City of Milton Zoning Ordinance. (j) To be consistent with all overlay districts within the City, to the extent practicable and to the extent not to conflict with this Ordinance. Section 2: Severability If any word, phrase, sentence, part, section, subsection, or other portion of this Ordinance or any application thereof to any person or circumstance is declared void, unconstitutional, or 2 invalid for any reason, then such word, phrase, sentence, part, section, subsection, or other portion, or the prescribed Application thereof, shall be severable, and the remaining provisions of this Ordinance, and all applications thereof, not having been declared void, unconstitutional, or invalid, shall remain in full force and effect. Section 3: Definitions For the purposes of this Ordinance, and where not inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations, and their derivations shall have the meaning given in this section. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number, and words in the singular number include the plural number. The word “shall” is always mandatory, and not merely directory. As used in this Ordinance, the following terms shall have the meanings ascribed below: Abandonment - The intent to abandon or discontinue operations as evidenced by voluntary conduct such as written notice to the City to stop using the facility or failure to use a wireless telecommunications facility for a period of six months or more. Accessory Facility or Structure - Means an accessory facility or structure serving or being used in conjunction with the wireless telecommunications facilities, and located on the same property or lot as the wireless telecommunications facilities, including but not limited to: utility or transmission equipment storage equipment storage sheds or cabinets. Accessory Use – A tower and/or antenna is considered a principal use if located on any lot or parcel of land as the sole or primary structure, and is considered an accessory use if located on a lot or parcel shared with a different existing primary use or existing structure. Alternative tower structure - Means man-made trees, clock towers, bell steeples, light poles and similar alternative-design structures, that in the opinion of the City Council, are compatible with the natural setting and surrounding structures, and effectively camouflage or conceal the presence of antennas or towers. Antenna - Means a system of electrical conductors that transmit and/or receive electromagnetic waves or radio frequency or other wireless signals. Such shall include, but not be limited to radio, television, cellular, paging, Personal Telecommunications Services (PSC), microwave telecommunications and services not licensed by the FCC, but not expressly exempt from the City’s siting, building and permitting authority. Antenna Array - means a single set or group of antennas and their associated mounting hardware, transmission lines or other appurtenances which share a common attachment device such as a mounting frame or mounting support. 3 Applicant - means a person or entity submitting an application for a wireless telecommunications facility, including the property owner, antenna support structure owner, and any proposed tenants for the facility. Attached Wireless Telecommunications Facility - means an antenna or antenna array that is secured to an existing building or structure (except an antenna support structure) with any accompanying pole or device which attaches it to the building or structure, together with transmission cables, and an equipment cabinet, which may be located either on the roof or inside/outside of the building or structure. An attached wireless telecommunications facility is considered to be an accessory use to the existing principal use on a site. Co-location - means a situation in which two or more wireless personal service providers place a wireless telecommunications antenna or antennas and feed lines on a common antenna support structure or other structure on which there is an existing antenna array. Concealed - means a wireless telecommunications facility that is disguised, hidden, part of an existing or proposed structure or placed within an existing or proposed structure, to include antennas, ancillary structures, and utilities. Coverage. The geographic area reached by an individual wireless telecommunications facility installation. Directional antenna - means an antenna or array of antennas designed to concentrate a radio signal in a particular area. Effective radio power (ERP) - The product of the antenna power input and the numerically equal antenna power gain. FAA - means the Federal Aviation Administration. FCC - means the Federal Communications Commission. Geographic Search Area (GSA). An area designated by a wireless provider or operator for a new base station, produced in accordance with generally accepted principles of wireless engineering. Guy tower - means a tower supported, in whole or in part, by guy wires and ground anchors. Height - See Structure Height Historic Structures - Structures in Milton which have been formally designated as a Historic Structure as designated by the City Historic Preservation Commission or Georgia Historic Preservation Division of the Department of Natural Resources or the United States Department of the Interior; have sufficient historic merit as determined by the City Council and the Historic Preservation Commission so as to require preservation. 4 Lattice tower - means a guyed or self-supporting, open frame structure that has three or four sides used to support telecommunications equipment. Low power mobile radio service telecommunications facility - means an unmanned facility which consists of equipment for the reception, switching and transmission of low power mobile radio service communications. Such facilities may be elevated, either building-mounted or ground mounted; transmitting and receiving antennas; low power mobile radio service base equipment; or interconnection equipment. The facility types include: roof and/or building mounted facilities, freestanding low power mobile radio service facilities, and micro-cell or repeater facilities. Low power telecommunications facility - means an unmanned facility consisting of equipment for the reception, switching and/or receiving of wireless telecommunications operating at 1,000 watts or less effective radiated power (ERP), including but limited to the following: a. Point-to-point microwave signals. b. Signals through FM radio transmitters. c. Signals through FM radio boosters under 10 watts ERP. d. Cellular, Enhanced Specialized Mobile Radio (ESMR), paging services and Personal Communications Networks (PCN). e. Private, low power mobile radio services which include industrial, land transportation, emergency public safety and government, automatic vehicle monitoring, personal mobile (CB’s) and HAM operators. Low power telecommunications facility accessory building - means an unmanned building used to house equipment related to a communications facility. Low power commercial radio mobile network - means a system of low power commercial telecommunications facilities which allows wireless conversation to occur from site to site. Master Siting Plan - refers to the siting map developed by staff and approved by City Council to identify appropriate sites for the location of wWireless transmission Telecommunications fFacilities as may be amended from time to time. Such map may be derived from propriety information submitted by wireless providers. (See Map 1) Micro-cell - means a low power mobile radio service telecommunications facility used to provide increased capacity in high call-demand areas or to improve coverage to weak areas. Micro-cells communicate with the primary low power mobile radio service facility in a coverage area via fiber optic cable or microwave. The typical coverage area for a micro-cell is a one-mile radius or less. Microwave antenna - means a dish-like antenna used to link communications sites by wireless transmission of voice or data. Monopole - means a cylindrical self-supporting i.e. not supported by guy wires, communications tower constructed of a single spire, used to support telecommunications equipment. 5 Omni-directional antenna - means an antenna that is equally effective in all directions, the size of which varies depending on the frequency and gain for which it is designed. Ordinary Maintenance. The normal repair and maintenance of a Telecommunications Facility without adding, removing or changing any components of a Telecommunications Facility. Maintenance includes inspections, testing and modifications that maintain functional use, aesthetic and structural integrity. Ordinary Maintenance includes replacing antennas and accessory equipment on a like-for-like basis within an existing Telecommunications Facility, strengthening the support structure’s foundation or of the support structure itself, and relocating the antennas of approved Telecommunications Facilities to different height levels on an existing monopole or tower upon which they are currently located. Planning and Zoning - See Community Development. Planning Commission - means the City of Milton Planning Commission. Preexisting Towers and Preexisting Antennae mean any tower or antenna for which a building permit or special use permit has been properly issued prior to the effective date of this ordinance, including permitted towers or antennas that have not yet been constructed so long as such approval is current and not expired. Radiofrequency Engineer. An engineer specializing in electrical or microwave engineering, especially the study of radio frequencies. Repeater - means a low power mobile radio service telecommunications facility used to extend coverage of cell areas to areas not covered by the originating facility. Roof and/or building-mounted telecommunications facility - means a low power mobile radio service wireless telecommunications facility in which antennas are supported entirely by a building other than a building accessory to a telecommunications facility and do not significantly change the profile of the existing structure and are not readily noticeable to the untrained eye. Existing structures include buildings, water tanks, towers, and utility poles. Such facilities may include micro-cell and/or repeater facilities. Scenic View - A wide angle or panoramic field of sight that may include natural and/or manmade structures and activities. A scenic view may be from a stationary viewpoint or be seen as one travels along a roadway, waterway, or path. A view may be to a far away object, such as a mountain, or a nearby object. Screening - The use of design, existing buildings and structures, existing buffers and proposed vegetation and color to obscure a wireless telecommunications facility. Separation - The vertical distance between one carrier’s antenna array and the antenna array of another carrier. Formatted: Highlight Formatted: Highlight 6 Sectorized panel antennas - means an array of antennas, usually rectangular in shape, used to transmit and receive telecommunications signals. Siting - The method and form of placement of a wireless telecommunications facility on a specific area of a property. Stealth Technology Installation Means man-made trees, clock towers, bell steeples, light poles and similar alternative-design structures, that in the opinion of the City Council, are compatible with the natural setting and surrounding structures, and effectively camouflage or conceal the presence of antennas or towers. - A telecommunications facility or wireless telecommunications facility that, when installed at or on an existing structure, does not significantly change the profile of the existing structure and is not readily noticeable to the untrained eye. EXAMPLES OF STEALTH TECHNOLOGY Flagpole Silo Pine Tree Structure Height - means the distance measured vertically from the average ground elevation adjacent to the structure being measured to the highest point when positioned for operation. The height of a tower includes the height of any antenna positioned for operation attached to the highest point on the tower. Technically Feasible and Viable means capable of being provided through technology which has been demonstrated in actual applications (not simply through tests or experiments) to operate in a workable manner. Telecommunications Facility - means a telecommunications tower, monopole tower, antenna or any and all buildings, structures, or other supporting equipment used in connection with a telecommunications tower, monopole tower, or antenna. Formatted: Highlight 7 Source: www.cdc.gov/niosh Tower - means any structure designed primarily for the purpose of supporting one or more antennas used for transmitting or receiving analog, digital, microwave, cellular, telephone, personal wireless service or similar forms of electronic communication, including self- supporting lattice towers, guy towers or monopole towers constructed as a free-standing structure or in association with a building or other permanent structure. Towers include radio and television transmission towers, microwave towers, common-carrier towers, cellular and digital telephone towers, alternative tower structures, and the like. Whip antenna - means an antenna that is cylindrical in shape. Whip antennas can be directional or omni-directional; size varies with the frequency and gain for which they are designed. Wireless Service Provider- Any private or public entity engaged in the transfer of information over a distance without the use of electrical conductors. Wireless Telecommunications Facility (WTF) - A staffed or unstaffed commercial facility for the transmission and/or reception of radio frequency signals, or other wireless communications, and usually consisting of an antenna or groups of antennas, transmission cables and equipment enclosures, and may include an antenna support structure. The following non-exclusive list shall be considered a wireless telecommunications facility: new and existing antenna support structures, replacement antenna support structures, collocations on existing antenna support structures, attached wireless telecommunications facilities and concealed wireless telecommunications facilities. Also see Telecommunications Facility 8 WTF - See Wireless Telecommunications Facility. Section 4: Applicability. All new wireless towers and antennas shall be subject to the regulations contained within this article except as provided in subsections a-c, inclusive: (a) Public Property. Towers or antennas on public property approved by the City Council. Nothing in this article shall be read to prohibit a government owned tower from being located at a specific site when the tower is required to protect the public welfare or safety. (b) Amateur Radio; Receive-Only Antennas. This ordinance shall not govern any amateur radio tower, or the installation of any antenna, that is under sixty (60) feet in height and is owned and operated by a federally-licensed amateur radio station operator or is used exclusively for receive only antennas. (c) Pre-Existing Towers and Antennas. Any tower or antenna for which a permit has been properly issued prior to the effective date of this ordinance shall not be required to meet the provisions of this ordinance, other than the requirements of Section 7. Any such towers or antennae shall be referred to in this ordinance as "preexisting towers” or “preexisting antennae.” However, in the event a preexisting tower or antennae ceases to function, then the subject tower, antennae and related equipment shall be removed from the subject property within ninety (90) days. Section 5: General Requirements. (a) An application for a Telecommunications Facility Permit shall be required for the construction or placement of all new wWireless Telecommunications transmission fFacilities and new co-location facilities, antennas or towers within the City limits. Telecommunications Facility Permits shall be reviewed by the Mayor and City Council in accordance with the standards set forth in this Chapter. Approval of any application for the construction of a tower or placement of an antenna shall be based on consideration of the following factors: (1) Demonstrated need for Pproximity to residential structures and residential district boundaries; (2) T Demonstrated need for the proposed height of the tower; (3) NMinimal impact on the ature of uses on of adjacent properties; (4) Surrounding topography, tree coverage and foliage that buffer the potential visual impact of the Telecommunications Facility; (5) Design of the facility, with particular reference to design characteristics which have the effect of reducing or eliminating visual obtrusiveness; 9 (6) Proposed ingress and egress; (7) Availability of suitable existing towers, other structures, or alternative/emerging technologies (microcells) not requiring the use of towers or structures. (8) Demonstrated need for the Ttelecommunications Ffacility at the specified site. (9) Utilization of Consistency with the City of Milton Master Siting Plan, as amended. (b) All applications submitted to the Community Development Department shall include a complete inventory of the applicant’s existing wWireless transmission Telecommunications fFacilities including towers and receivers/transmitters located within the City of Milton or and a one-half mile radius surrounding the Ccity limits, including each asset’s location (plane coordinates), height and co-location usage or capabilities, and any special design features. The City shall utilize such information, subject to any restrictions on disclosure requested by the applicant, to promote co-location alternatives for other applicants. (c) At the time of filing the application for construction or placement of a wWireless transmission Telecommunications fFacility or antenna, the applicant shall provide a site plan and information regarding tower or accessory structure location, neighboring uses and proposed landscaping as described below. Additional documentation to be submitted with the site plan and certified by an experienced radio frequency engineer shall delineate coverage and propagation zones, identify type of antenna and mounting location, specify type of band currently in use, and state co-location capabilities. (1) The scaled site plan shall clearly indicate the location, type and height of the proposed tower or accessory structure to be utilized, on-site land uses and zoning, adjacent land uses and zoning including proximity to historic or scenic view corridors, adjacent roadways, proposed means of access, setbacks from property lines, elevation drawings of the proposed tower, accessory structure and any other structures, topography, existing streams, wetlands and floodplains, parking, and other information deemed necessary by the Community Development Director to demonstrate the need for the proposed facility or assess compliance with this ordinance. (2) Legal description of the parent tract and leased parcel (if applicable). (3) A study including a definition of the area of coverage, capacity and radio frequency goals to be served by the antenna or tower and the extent to which such antenna or tower is needed for coverage and/or capacity. The study shall include all adjoining planned, proposed, in-service or existing sites owned by the applicant or others and a color propagation study demonstrating the existing coverage of all Wireless Telecommunications Facilities owned and proposed by the applicant within the GSA. The study shall also demonstrate that the proposed height is the minimum necessary to achieve the required coverage. The study 10 shall bear the signature and seal of a Professional Engineer licensed in GeorgiaA professional engineer stamp shall also be required for the study.If a capacity issue is involved, include an analysis of the current and projected usage in the service area. (4) The setback distance between the proposed wireless Telecommunications transmission fFacility and the nearest residential unit or residentially used structure. (5) When requesting a permit for a new Telecommunications Facility greater than one hundred (100) feet in height on property which is located adjacent to residentially zoned property, written certification and technical analysis of why a similar structure at a height of less than one hundred (100) feet cannot be used. Documentation shall include a propagation study of the proposed site with a Telecommunications Facility less than one hundred (100) feet. (65) Certification that the Wireless Telecommunications Facility, the foundation and all attachments are designed and will be constructed to meet all applicable and permissible local codes, ordinances, and regulations, including any and all applicable County, State and Federal Laws, rules, and regulations, including but not limited to the most recent editions of the National Electrical Safety Code and the National Electrical Code, as well as accepted and responsible workmanlike industry practices and recommended practices of the National Association of Tower Erectors. Structural integrity analysis shall be provided where antennas and equipment will be attached to an existing structure. Such certification and structural integrity analysis shall bear the signature and seal of a Professional Engineer licensed in the Georgia. (67) Landscaping shall be designed in such a way as to preserve existing mature growth and to provide in the determination of the City Design Review Board, a suitable buffer of plant materials that mitigates the view of the Ttelecommunications fFacility and accessory structures from surrounding property within 90 days. (8) Written documented, detailed analysis of the impact of the proposed Telecommunications Facility addressing the factors specified in Section 5(a). (9) Evidence of compliance with applicable FAA requirements under 14 C.F.R. s. 77, as amended, which may be a copy of the FAA Notice of Proposed Construction or a written statement prepared and signed by a professional airspace safety consultant; and (10) Copies of the National Environmental Policy Act (NEPA) and the State Historic Preservation Office (SHPO) reports for the proposed Telecommunications Facility. 11 (11) Copy of the FCC License applicable for the intended use of the facility. (d) Each application shall be accompanied by a fee in accordance with the fee schedule published by the Cityof one thousand dollars ($1000.00) to offset the costs associated with processing such application. In addition, applicants shall be responsible for independent engineering or consulting costs incurred by the City which exceed such fee up to an additional two seven thousand five hundred dollars ($27,5000.00), if requested by the City. The applicant shall be responsible for additional fees throughout the process as described further within this ordinance. All fees are subject to change as amended by the Mayor and City Council by resolution. (e) Landscaping plans and the design and placement of the Telecommunications wireless transmission fFacility on an approved site shall require review and approval of the City Design Review Board prior to issuance of a building permit to insure architectural and aesthetic compatibility with the surrounding area within 90 days. (f) Prior to issuance of a building permit, compliance with Section 106 of the National Historic Preservation Act, 16 U.S.C. § 461 et. seq. shall be demonstrated. (See Appendix 1) (g) In approving any application, the Director of Community Development, City Design Review Board, Planning Commission or Council may impose additional conditions to the extent determined necessary to minimize adverse effects on adjoining properties. Section 6: Development Requirements for Towers. (a) Towers may be located only in the following zoning districts subject to the restrictions and standards contained herein: O-I Office and Institutional District C-1 or C-2 Commercial District M-1, M-2 or M-1A Industrial District AG-1 Agricultural District A or AL Apartment District or Apartments Limited (b) No new wireless transmission Telecommunications fFacilities shall be located within 2 3,500 feet of any preexisting wireless transmission telecommunications site unless such new facility is concealed through use of alternative tower structures or is otherwise camouflaged, a Stealth Technology Installation and a concurrent variance is granted by the City of Milton Mayor and City Council. (c) All applicants seeking to erect a tower must demonstrate that no alternative location and no existing tower or structure can accommodate the proposed antenna(s). Evidence of an Formatted: Highlight 12 engineering nature shall be documented by the submission of a certification by an engineer registered in the state of Georgia. Such evidence may consist of the following: 1. No existing towers or structures are located within the geographic area required to meet applicant’s engineering requirements. 2. No existing structure is of sufficient height to meet the applicant’s engineering requirements. 3. No existing tower or structure has sufficient structural strength to support applicant’s proposed antenna(s) and related equipment. 4. Applicant’s proposed antenna(s) would cause electromagnetic interference with the antenna(s) on the existing tower or structure. 5. All alternative properties in the GSA for the construction of a new Telecommunications Facility that are potential alternatives to the proposed location are either unacceptable or infeasible due to technical or physical reasons. 56. Such other limiting factor(s) as may be demonstrated by the applicant and verified by an engineer of the City's choosing. (d) Setbacks: Setbacks for towers and above-ground transmission facilities shall be as follows: 1. All transmission Telecommunications fFacilities, including Stealth Technology Installations, except buried portions, shall be set back from all adjoining properties zoned non-residential a distance equal to the height of the proposed telecommunications tower. the underlying setback requirement in the applicable zoning district. 2. When a Telecommunications Facility or Stealth Technology Installation tower is adjacent to a residential use or residential zoning, the tower and entire transmission f facility must be set back from the nearest residential lot property line a distance equal to one and one-half times the height of the tower. 3. Roof and/or building-mounted telecommunications facilities are exempt from the setback standards of this subsection but are not exempt from the setbacks for the zoning districts in which they are located. (e) Unless otherwise specified by Community Development Staff and the City Design Review Board, towers and above ground equipment shelters shall be enclosed by a black vinyl clad chain link security fencing not less than 6 feet in height and shall be equipped with an appropriate anti - climbing device. Said fencing shall be surrounded by a minimum 20-foot wide landscape strip planted to buffer standards unless the City of Milton Arborist determines that existing plant materials are adequate. Formatted: Highlight Formatted: Highlight Formatted: Highlight Formatted: Highlight Formatted: Highlight Formatted: Highlight 13 (f) All new towers in excess of 100 feet which do not incorporate alternative design features must meet the following maximum heights and be designed and built in a manner that allows other entities to co-locate on the structure using the following guidelines: MAXIMUM TELECOMMUNICATIONS TOWER HEIGHTS Zoning District Two Users Three Users Four Users O-I 120’ 150’ 150’ C-1/C-2/M-1/M-1A/ M-2/A/AL/AG-1 120’ 150’ 150’ (g) All towers and their related structures shall maximize the use of building materials, colors, textures, screening and landscaping that, in the opinion of the City Design Review Board and Community Development Staff, effectively blend the tower facilities within the surrounding natural setting and built environment. Where appropriate, towers shall be painted so as to reduce their visual obtrusiveness, subject to any applicable standards of the Federal Aviation Administration (FAA). (h) Roof top antennas and associated structures shall not project more than 10 feet above roof lines. (i) The structure shall comply with applicable state and local statutes and ordinances, including, but not limited to, building and safety codes. Structures which have become unsafe or dilapidated shall be repaired or removed pursuant to applicable state and local statutes an d ordinances. (j) Telecommunications Facilities shall not be artificially lighted except to assure human safety or as required by the Federal Aviation Administration (FAA). (k) Structures shall be designed and constructed to ensure that the structural failure or collapse of the tower will not create a safety hazard to adjoining properties, according to applicable Federal Standards which may be amended from time to time. (l) Structures shall not be used for advertising purposes and shall not contain any signs for the purpose of advertising. Telecommunications Facilities or telecommunications support structures shall contain a sign no larger than four (4) square feet in order to provide adequate notification to persons in the immediate area of the presence of an antenna that has transmission capabilities and shall contain the name(s) of the owner(s) and operator(s) of the antenna(s) as well as emergency phone number(s). The sign shall be on the equipment shelter or cabinet of the facility and be visible from the access point of the site. The sign shall not be lighted, unless applicable law, rule or regulation requires lighting 14 (m) A telecommunication facility that ceases operation for a period of 12 consecutive months shall be determined to have terminated and shall be removed within 90 days of termination at the property owner’s expense. It shall be the duty of both the property owner and the tower owner to notify the city in writing of any intent to abandon the use of the tower. A more elaborate version of this subsection appears in Section 8, “Maintenance of Facilities,” subsection (d) (mn) Communication facilities shall not be located in 100-year flood plain or delineated wetlands. (no) All guy wires must be anchored on site and outside of right-of-way and outside minimum building setback. (op) Structures not requiring FAA painting/marking shall have either a galvanized finish or be painted a dull blue, green, gray, or black finish. (pq) Line-of-Sight Analysis. The applicant shall provide a line-of-sight analysis, including elevation views of the proposed facility. The analysis shall include a description of natural and man-made features that affect the buffering of the potential visual impact of the structure. (q) Photo Simulations. The applicant shall provide photo-simulated post-construction renderings of the completed proposed antenna support structure, equipment compound and/or equipment cabinets, ancillary structures, and landscaping. (1) The views shall incorporate before and after scenarios, a scaled color image of the proposed type of facility, an aerial map with the location of the selected views, and a description of the technical approach used to create the photo simulations. The simulations shall include a minimum of four vantage points (north, south, east, and west) from two hundred (200) feet away from the base location of the tower from the east, west, north, and south. (2) The Mayor and City Council and the City Design Review Board may require the Applicant to provide other pictorial representations from other viewpoints, including but not limited to the view from state highways and other major roads; state and local parks; other public lands; historic districts; preserves and historic sites normally open to the public; and from any other location where the site is visible to a large number of visitors, travelers or residents. (r) “Balloon Test.” The applicant shall hold a “balloon test” prior to the public hearing on the application meeting the following requirements: (1) The Applicant shall arrange to fly, or raise upon a temporary mast, a brightly colored balloon, which is a minimum of a three (3) foot in diameter and a minimum of a ten (10) foot in length at the maximum height of the proposed Telecommunications Facility. 15 (2) The dates, (including a second date, in case of poor visibility on the initial date) times and location of this balloon test shall be advertised by the Applicant seven (7) and fourteen (14) days in advance of the first test date in a newspaper with a general circulation in the City. The Applicant shall inform the Director, in writing at least fourteen (14) days in advance, of the dates and times of the test. In addition, property owners of properties located within 1,500 feet of the boundary of the property on which the monopole or tower is proposed to be located shall be notified two (2) weeks in advance of the balloon test. (3) The balloon shall be flown for at least four consecutive hours sometime between 7:00 am and 4:00 PM on the dates chosen. The primary date shall be on a weekend, but in case of poor weather on the primary date, the secondary date may be on a weekday. Pictures shall be taken of the balloon from approximately two hundred (200) feet away from the base location of the balloon from the east, west, north, and south. (s) Protection of scenic views. The Mayor and City Council and the City Design Review Board shall determine the likely visual impact of any proposed tTelecommunications fFacility or tower and may require balloon tests, photographs, simulations, and any other necessary, helpful and relevant information. Based on the information presented, the above mentioned entities may designate an alternative location for the facility or tower or may request a redesign in order to minimize the visual impact on the scenic character and beauty of the area. In determining whether or not a facility or tower would have an undue adverse visual impact and when setting conditions in the permit, they shall consider: 1. The period of time during which it would be viewed by persons traveling on roads and/or highways; 2. The frequency with which persons traveling on roads and/or highways will view the facility; 3. The degree to which it will be screened by existing vegetation , the topography of the land, and existing structures; 4. Background features that will either obscure it or make it more conspicuous; 5. Its distance from key vantage points and the proportion of it which will be visible above the skyline or tree line; 6. The number of members of the traveling public or residents who will be affected by the alteration of the scenic character and beauty of the area; 7. The sensitivity or unique value of the particular view affected by it; and 8. Significant disruption of a viewshedview shed that provides context to a historic structure or scenic view. Section 7: Approval Process. (a) Subject to certification by the Director of Community Development of compliance with the general requirements and standards enumerated herein and with the consent of Council, the following uses are subject to expedited approval, which shall be defin ed as approval within sixty 16 (60) days of receiving applications, supporting engineering certifications and lease approval, if any, without the necessity of public hearing: . 1. Installing a roof and/or building-mounted telecommunications facility an antenna on an existing structure, so long as said installation is considered to be a stealth technology installation that does not significantly change the profile of the existing structure and so that the installation is not readily noticeable to the untrained eye. Such installations including cables leading to the antennas shall be painted to match the paint and colors on the existing structure and shall not protrude from the existing structure in a noticeable fashion. 2. Co-location by installing an antenna on any existing tower or alternative tower structure. 3. Replacing an existing tower with a new tower designed to accommodate two or more users so long as such new tower does not exceed the he ight limitations of section 5 (f) above and setback requirements of this ordinance are met. After the replacement tower is built, only one tower shall remain on such site. Support equipment shall, where technically feasible, be located underground. 5. Locating any alternative tower structures provided accessory structures are located underground, where technically feasible, or otherwise incorporated into the alternative structure. If the City Council determines that any application does not meet the general application requirements, development requirements and/or standards enumerated herein, or such application conflicts with the Master Siting Plan, approval of the application shall be denied provided substantial evidence exists to support such denial. Any aggrieved party may appeal the denial to the Fulton County Superior Court. For purposes of this section, an aggrieved party is one who demonstrates that his or her property will suffer special damage as a result of the decision complained of rather than merely some damage that is common to all property owners and citizens similarly situated. (b) If the proposed tower or antenna is not included under the above described expedited approval uses, or the application does not on its face satisfy the development standards and other criteria specified herein, then a public hearing before the Mayor and Council and Planning Commission shall be required for the approval of the construction of a wireless transmission Telecommunications fFacility in all zoning districts. Applicants shall apply for two (2) public hearings, one before the Planning Commission and the Mayor and City Council through the Community Development Department and pay the Formatted: Highlight Formatted: Highlight Formatted: Highlight Formatted: Highlight 17 fee for such review in accordance with the fee schedule published by the City the required one thousand dollar ($1,000.00) fee at such time. The applications shall also go before the City Design Review Board for its review prior to the Planning Commission meeting. Applications, when complete, shall be placed on the next available agenda of the Planning Commission and Mayor and Council at which zoning matters are considered. At least thirty (30) days prior to any scheduled hearing, the Community Development Department shall cause a sign to be posted on the property and the publication of a public notice in a newspaper of general circulation. Said notice shall state the nature of the application, street location of the proposal and height of the proposed structure as well as the time, date and location of each hearing. The Community Development Department shall also give similar notice by regular mail to all property owners and/or current residents within five hundred feet (500’) of the subject property. Before approving an application, the governing authority may impose conditions to the extent necessary to buffer or otherwise minimize any adverse effect of the proposed tower on adjoining properties. The factors considered in granting such a permit include those enumerated in Sections 4 and 5 above. The Mayor and Council may waive one or more of these criteria, if, in their discretion doing so will advance the goals of this article as stated in Section 2 above. If the City Council determines that any application does not meet the general application requirements, development requirements and/or standards enumerated herein, or such application conflicts with the Master Siting Plan, approval of the application shall be denied provided substantial evidence exists to support such denial. Any aggrieved party may appeal the denial to the Fulton County Superior Court. For purposes of this section, an aggrieved party is one who demonstrates that his or her property will suffer special damage as a result of the decision complained of rather than merely some damage that is common to all property owners and citizens similarly situated. Approved applications shall be valid for expire one (1) year from the date of the approval by the Mayor and Council .unless the property owner makes substantial progress toward the completion of on-site construction depicted on the site plan. Substantial progress shall have been demonstrated when, within one year of the date of the issuance of the Telecommunications Facility Permit, the Director of Community Development Department determines that continuous, observable progress is being made to completion according to an approved construction schedule. Section 8: Maintenance of Facilities. (a) All wireless transmission Telecommunications fFacilities and related landscaping shall be maintained by the facility owner in good condition, order, and repair so that they shall not endanger the life or property of any person, nor shall they be a blight upon the property as determined by the Community Development Director. (b) All maintenance or construction on wireless transmission Telecommunications fFacilities shall be performed by persons employed by or under contract to the owner between the hours of Formatted: Highlight 18 8:30 a.m. and 5:30 p.m. Monday through Friday except in cases of emergency or when an after- hours permit is obtained pursuant to the City of Milton Noise Ordinance. Access to facilities on City owned property shall be determined on a case-by-case basis by the department responsible for such property. The hours of access to City sites shall not exceed those specified above. Persons may not be present on site unless performing construction or maintenance at such site. (c) (c) The owner or user of any new or existing tTelecommunications fFacility shall be required to register and obtain a “Telecommunications Operating License” from the Community Development Department on or before July 31 each calendar year.submit a “Facility in Use Certification” annually to the Community Development Department. The Telecommunications Operating License application shall be on such forms as may be prepared by the Community Development Department. No Telecommunications Operating License application shall be considered by the Community Development Department until it is complete and accompanied by all necessary documents, papers, proof of liability insurance, and other evidence of eligibility as may be set forth or otherwise required by the application. All telecommunications towers, each antenna located thereon, on a rooftop or other location, shall each obtain a separate license, paying a separate fee for each such license. A license is not transferable or assignable. (1) A Telecommunications Operating License or application therefor under this article may be denied, suspended or revoked only if one or more of the following exists: i. The applicant or licensee has failed to obtain any certificate, approval, or document necessary as may be required by any office, agency or department of the City, County, State or United States under authority of any law, ordinance or resolution of the City, County, State or United States. ii. The applicant or licensee has supplied false information to the operating permit officer or the governing authority. iii. The applicant or licensee has violated any City, County, State or Federal law, or any ordinance or resolution regulating the telecommunications tower and antenna. iv. The applicant or licensee has failed to pay any fee required under this article, has failed to make a return or pay a tax due to the Fulton County Tax Commissioner in connection with its business or any predecessor business (to include, without limitation, occupational tax or real or personal property ad valorem tax); provided, however, that a Telecommunications Operating License may not be denied, suspended or revoked under this article with respect to ad valorem taxes (whether real or personal property) (i) due in the current calendar year; (ii) presently the subject of lawful appeal; or (iii) not collectible by virtue of duly enacted statute, ordinance, or other law. For purposes of this subsection (c)(4), a predecessor business (whether a sole proprietorship, corporation, partnership, or other entity) shall be a business engaged in substantially the same or related business as the applicant and from whom the applicant acquired title to or possession of a substantial portion of its business property, either directly or indirectly, whether real or personal, and for which taxes are outstanding. 19 v. There are conditions on the premises or in the business operations conducted thereon that endanger public health or safety. vi. The Telecommunications Facility and/or property have not been adequately maintained according to the standards of this Chapter, including painting, landscaping, screening, and fencing. vii. The applicant or licensee fails to cooperate with any officer, agent or employee of the City who is authorized or directed to inspect the premises used for or in connection with a telecommunications tower or antenna. viii. A new owner of an existing Telecommunications Facility fails to submit a license application and license fee when any change of ownership. (c)(d) Any antenna or tower that is not operated for a continuous period of twelve (12) months or is not properly maintained shall be considered abandoned , and the owner of such antenna or tower shall remove same and any structures housing supporting equipment within ninety (90) days of receipt of notice from the governing authority of such abandonment. If such antenna or tower is not removed or returned to good condition within said ninety (90) days, the governing authority may remove such antenna or tower at the owner’s expense and a lien shall be placed upon the property. Section 9: Waiver of Requirements. No exception, waiver or variance to the conditions and requirements contained herein shall be granted unless expressly provided for in this ordinance, or the Mayor and Council find that the proposed tower or wireless transmission Telecommunications fFacility is necessary and essential to providing the wireless service. Section 10: Facilities Lease. The City Council may approve facilities leases for the location of wireless transmission Telecommunications fFacilities and other telecommunications facilities upon City owned property. Neither this section, nor any other provision of this article shall be construed to create an entitlement or vested right in any person or entity of any type. Section 11: Lease Application. Any person that desires to solicit the City's approval of a facilities lease purs uant to this Article shall file a lease proposal with the City’s Community Development Department which, in addition to the information required by Section 4, shall include the following: a. A description of the wireless transmission Telecommunications fFacilities or other equipment proposed to be located upon City property; Formatted: Highlight Formatted: Highlight 20 b. A description of the City property upon which the applicant proposes to locate wireless transmission Telecommunications fFacilities or other equipment; c. Preliminary plans and specifications in sufficient detail to identify: 1) The location(s) of existing wireless transmission or telecommunications facilities or other equipment upon the City property, whether publicly or privately owned. 2) The location and source of electric and other ut ilities required for the installation and operation of the proposed facilities. d. Accurate scaled conceptual drawings and diagrams of sufficient specificity to analyze the aesthetic impacts of the proposed wireless transmission Telecommunications fFacilities or other equipment; e. Whether the applicant intends to provide cable service, video dial tone service or other video programming service from the facility, and sufficient information to determine whether such service is subject to cable franchising; f. An accurate map showing the location of any wWireless transmission or Ttelecommunications fFacilities in the City that applicant intends to use or lease; g. A landscaping bond in an amount to be determined by the Ccity arborist; h. Such other and further information as may be requested by the City; and i. An application fee for lease negotiation in accordance with the fee schedule published by the Cityin the amount of $250.00. Section 12: Determination by the City. Recognizing that the City is under no obligation to grant a facilities lease for the use of City property, the City shall strive to consider and take action on applications for facilities leases within 60 days after receiving a complete application for such a lease. When such action is taken, the City shall issue a written determination granting or denying the lease in whole or in part, applying the standards set forth below, or any other such criteria as the Mayor and City Council may choose to apply. [We would recommend removal of this section] If the lease application is denied, the determination shall include the reason for denial following review of these factors: a. The capacity of the City property and public right-of-ways to accommodate the applicant's proposed facilities. Formatted: No bullets or numbering 21 b. The capacity of the City property and public right-of-ways to accommodate additional utility and wWireless transmission or tTelecommunications fFacilities if the lease is granted. c. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the lease is granted. d. The public interest in minimizing the cost and disruption of construction upon City property and within the public ways. e. The service that applicant will provide to the community and region. The effect, if any, on public health, safety, and welfare if the lease requested is approved. The availability of alternate locations for the proposed facilities. f. Whether the applicant is in compliance with applicable federal and state telecommunications laws, regulations and policies, including, but not limited to, the registration requirements administered by the Georgia Public Service Commission. g. The potential of radio frequency and other interference with existing public and private telecommunications or other facilities located upon the City property. h. The potential for radio frequency and other interference or impact upon residential, commercial, and other uses located within the vicinity of the City property. i. Recommendations of the Public Works Department with respect to maintenance and security of water towers. j. Such other factors, such as aesthetics, as those factors may impact the community. k. The maximization of co-location opportunities with other similar uses. Section 13: Agreement. No facilities lease shall be deemed to have been granted hereunder until the applicant and the City have executed a written agreement setting forth the particular terms and provisions under which the lessee has been granted the right to occupy and use the City property. Section 14: Nonexclusive Lease. No facilities lease granted under this Article shall confer any exclusive right, privilege, license, or franchise to occupy or use City property for delivery of telecommunications services or any other purposes nor shall approval of a lease entitle the applicant to a permit to construct or place a wWireless transmission Telecommunications facility. Section 15: Term of Facilities Lease. Formatted: No bullets or numbering Formatted: No bullets or numbering Formatted: No bullets or numbering Formatted: No bullets or numbering Formatted: Indent: Left: 0" Formatted: No bullets or numbering Formatted: No bullets or numbering Formatted: No bullets or numbering Formatted: No bullets or numbering Formatted: No bullets or numbering Formatted: No bullets or numbering 22 Unless otherwise specified in a lease agreement, a facilities lease granted hereunder shall be valid for a term of up to five (5) years, with the lessee granted a maximum of three (3) five (5) year renewal options which options shall also be subject to approval of Council. The term of any such agreement shall not exceed twenty (20) years. Section 16: Rights Granted. No facilities lease granted under this Article shall convey any right, title or interest in the City property, but shall be deemed a license only to use and occupy the City property for the limited purposes and term stated in the lease agreement. Further, no facilities lease shall be construed as any warranty of title. Section 17: Interference with Other Users. No facilities lease shall be granted under this Article unless it contains a provision which is substantially similar to the following: The City has previously entered into leases with other tenants for their equipment and wWireless transmission tTelecommunications fFacilities. Lessee acknowledges that the City is also leasing the City property for the purposes of transmitting and receiving telecommunication signals from the City property. The City, however, is not in any way responsible or liable for any interference with lessee's use of the City property which may be caused by the use and operation of any other tenant's equipment, even if caused by new technology. In the event that any other tenant's activities interfere with the lessee's use of the City property, and the lessee cannot work out this interference with the other tenants, the lessee may, upon 60 days notice to the City, terminate this lease and restore the City property to its original condition, reasonable wear and tear excepted. The lessee shall cooperate with all other tenants to identify the causes of and work towards the resolution of any electronic interference problem. In addition, the lessee agrees to eliminate any radio or television interference caused to City-owned facilities or surrounding residences at lessee's own expense and without installation of extra filters on City-owned equipment. Lessee further agrees to accept such interference as may be received from City operated telecommunications or other facilities located upon the City property subject to this lease. Section 18: Ownership and Removal of Improvements. No facilities lease shall be granted under this Article unless it contains a provision which states that all buildings, landscaping, and all other improvements, except telecommunications equipment, shall become the property of the City upon expiration or termination of the lease. In the event that the City requires removal of such improvements, such removal shall be accomplished at the sole expense of the lessee and completed within 90 days after receiving notice from the City requiring removal of the improvements. In the event that wWireless Ttelecommunications transmission fFacilities or other equipment are left upon City property after expiration or termination of the lease, they shall become the property of the City if not removed by the lessee upon 30 days written notice from the City. 23 Section 19: Compensation to the City. (a) Each facilities lease granted under this Article is subject to the City's right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the rights granted to the lessee; provided, nothing in these sections shall prohibit the City and a lessee from agreeing to the compensation to be paid. Such compensation shall be payable in advance of the effective date of the lease and on or before January 31 of each calendar year. Any payments received after the due date shall include a late payment penalty of 2% of the annual rental fee for each day or part thereof past the due date. The compensation shall be negotiated by the City Manager or designee, subject to the City Council’ s final approval, based on the following criteria: (1) Comparable lease rates for other public or private property; (2) In the case land is leased, an appraisal opinion upon which the land and air space is rented; (3) If structure of another user is involved, any amount needed to reimburse that user; in addition to the above; (4) A yearly escalator rate commonly used in comparable leases. (5) The additional rent such structure may generate if leased to additional users. (The City should be entitled to rent as a result of a sublease). (6) Additional fees or charges may be established by the City to cover actual costs of processing the application, including engineering review, inspection and appraisal cost, legal, administration of the agreement, providing on-site services, and/or other direct or indirect costs. Section 20: Amendment of Facilities Lease. Except as provided within an existing lease agreement, a new lease application and lease agreement shall be required of any telecommunications carrier or other entity that desires to expand, modify, or relocate its telecommunications facilities or other equipment located upon City property. If ordered by the City to locate or relocate its telecommunications facilities or other equipment on the City property, the City shall grant a lease amendment without further application. Such amendment must be approved by Council. Section 21: Renewal Application. A lessee that desires to exercise a renewal option in its facilities lease under this Article shall, not more than one hundred eighty (180) days nor less than one hundred twenty (120) days before expiration of the current facilities lease term, file an application with the City for renewal of its facilities lease which shall include the following: a. The information required pursuant to Section 12 of this Article; 24 b. Any information required pursuant to the facilities lease agreement between the City and the lessee; c. A report certified by a radio frequency engineer that the site is in compliance with current FCC radio emission standards. d. All deposits or charges required pursuant to this Article; and e. An application fee which shall be set by the City Council as referenced in this ordinance or as amended from time to time by resolution. Section 22: Renewal Determination. Recognizing that the City is under no obligation to grant a renewal of a facilities lease for the use of City property, the City shall strive to consider and take action on applications for renewal of such leases within 60 days after receiving a complete application for such a lease renewal. When such action is taken, the City shall issue a written determination granting or denying the lease renewal in whole or in part, applying the standards set forth below, or any other such criteria as the City Council may choose to apply. If the renewal application is denied, the written determination shall include the reason for denial; such denial may be made after review of these factors or on other grounds as determined by Mayor and Council: The financial and technical ability of the applicant. The legal ability of the applicant. The continuing capacity of the City property to accommodate the applicant's existing facilities. The applicant's compliance with the requirements of this Article and the lease agreement. Applicable federal, state and local telecommunications laws, rules and policies. Continued need for the facility in light of technological advances and current industry standards. Such other factors as may demonstrate that the continued grant to use the City property will serve the community interest. Section 23: Obligation to Cure as a Condition of Renewal. No facilities lease shall be renewed until any ongoing violations or defaults in the lessee's performance of the lease agreement, or of the requirements of these sections, have been cured, or a plan detailing the corrective action to be taken by the lessee has been approved by the City. In no event shall a facilities lease be renewed if lessee fails to cure. 25 MAP 1 – Master Siting MapAppendix 1 26 City of Milton 13000 Deerfield Parkway, Suite 107 Milton, GA 30004 1 To: Honorable Mayor and City Council Members From: Lynn Tully, AICP, Community Development Director Date: June 9, 2010, Submitted for the June 21, 2010, City Council Regular Meeting for First Reading. Agenda Item: Text Amendment to replace in its entirety Chapter 60, Vegetation, Article II., Tree Preservation of the City of Milton Code of Ordinances CMO (City Manager’s Office) Recommendation: The Mayor and City Council to hear and approve the attached text amendment, Chapter 60, Vegetation, Article II., Tree Preservation of the City of Milton Code of Ordinances replacing the existing text in its entirety. Background: In 2008, a committee was formed and charged to review the current Tree Protection Ordinance and to fashion recommendations necessary to ensure that the rural character and aesthetic nature of the City of Milton is maintained. This committee was appointed by the Mayor and the City Council to work along with staff to develop an ordinance to protect one of our most prominent natural resources – our trees. The committee received input from our local Georgia Forester and a local tree service company representative as well as comments from other municipal agents, both locally and from other regions. Many other municipalities have similar concerns and issues; however, there is no one template than can be applied from one city to the next. Creating a customized solution was more difficult than expected. There was much review and discussion regarding the ordinance currently in place, and what was working and what was not. One area of concern was the loss of trees not only via development but also thru private companies and individuals. At this present time, with a slow economy, developers are not doing as much work; therefore, little tree removal is occurring. On the same note, aggressive sales forces are becoming more creative in ways to solicit and perform tree removal jobs. One of the desires of this committee was not to prohibit companies from working, but to ensure that companies working in Milton do so with the highest standards and quality in relation to tree care and responsibility. The City of Milton is unique and presented many challenges in drafting an ordinance that applies equally to all within the City. Much of the city is zoned agricultural which is a little less restrictive regarding tree conservation. For this reason the committee wants to differentiate between agricultural zoning and agricultural use. This helps provide a more realistic balance amongst the majority of property owners and allows flexibility needed for a successful tree conservation program. City of Milton 13000 Deerfield Parkway, Suite 107 Milton, GA 30004 2 Discussion: The Tree Committee and Staff worked over several months to create the proposed Tree Conservation Ordinance. The Ordinance establishes the criteria and process for how to administer permits related to tree conservation, it further outlines the requirements for replacement and recompense as well as other landscape and buffer standards. The language and structure of the Ordinance is based in part on the original ordinance with a much cleaner administrative section. Please note that the ordinance is presented in two parts; the first being the regulatory portion of the ordinance and the second being the administrative guidelines. During the December 4th, 2009 work session, city council was presented with a draft of the ordinance for review and was asked to send comments or questions to the committee. Some questions were asked at that meeting and a few comments and questions followed in the next days to come. Council did request a courtesy review by both the Planning Commission and the Design Review Board at that time. Those courtesy reviews were held on January 6th and March 2nd respectively. The committee met again to discuss the comments from the Planning Commission, Design Review Board and City Council. Changes were made as the committee deemed appropriate. On March 8th the ordinance was again presented to the City Council for review. On May 17th, we received comments from the attorney in which staff addressed and making the necessary changes. Major additions to the ordinance are the requirements for a tree removal permit, the regulating of tree service companies, new maintenance requirements, and defining tree topping as an illegal activity. Please see the Chart Labeled “Quick View of Changes in the Tree Ordinance”. Overall the changes were reviewed and approved during the legal review; however, the attorney’s office expressed concern regarding the size and number limitations for allowed tree removal. Our proposed ordinance requires trees over 8 inches in DBH be required to be permitted as well as limits the removal of any more than 6 trees per year. The concern was stated that “Given the limited size of the Department of Community Development, this will require additional man hours spent ensuring that each tree removal for a tree greater than eight inches in diameter satisfies the City’s permitting requirements. By comparison, the City of Atlanta permits the removal of trees twelve inches or smaller in diameter. The City of Atlanta encompasses a larger geographical area for enforcement, the City of Milton maintains a smaller staff to enforce its ordinances, and arguably contains more vegetation and trees than the City of Atlanta. As such, the City of Milton Arborist will face a greater man-power challenge in enforcing the proposed Tree Conservation Ordinance if permit requirements remain at its current level.” In contrast to our ordinance, the City of Sandy Springs has added the permitting requirement for tree removal in which the trigger is 18” in diameter or greater. City staff has expressed similar concerns regarding the ability to monitor, enforce, and track tree removal activity in such quantities with the 8” requirement however the committee has approved the ordinance with the 8” requirement. In light of the attorney comments, staff would recommend considering increasing the size requirement of protected trees. When the Tree Preservation Ordinance is adopted, the next step will be to prepare a Tree Removal Permit application and other forms as necessary to administer that portion of the ordinance. In conjunction with that effort an educational and outreach program must be created and implemented in order to alert the public as to the need for these permits as good stewards of property within Milton. City of Milton 13000 Deerfield Parkway, Suite 107 Milton, GA 30004 3 Please note that the recommendation brought forward for hearing and approval is the final version approved by the tree Preservation Committee on March 22, 2010 with amendments as directed by the City Attorney’s office in consultation with the Community Development staff. The version presented includes the original committee proposal of required Tree Removal Permits for trees of 8” DBH. Alternatives: The Mayor and City Council may choose to approve, deny or defer the Text Amendment to replace in its entirety Chapter 60, Vegetation, Article II., Tree Preservation of the City of Milton Code of Ordinances. Concurrent Review: Chris Lagerbloom, City Manager Ken Jarrard, City Attorney [Memo Tree Pres.chap 60.060810] QUICK VIEW OF CHANGES IN THE TREE ORDINANCE OLD NEW Sec I Purpose Sec II Authority and Applicability Sec III Definitions Changes within these three sections were mostly minor changes in the wording, but not the content. Definitions were both added and removed Sec. IV Tree Removal Permit This section has been added and will add some teeth to the ordinance where it was needed. It is not the intent to prohibit companies from working, but to make sure those who do so, do it with the highest standards to protect both the city and its citizens. It further outlines the parameters for tree removal. Sec V Exemptions Explains which activities will be exempt from the regulations of this ordinance Sec VI Prohibited Acts Additional acts harmful to trees outside normal development and building operations Sec VII Inspections Sec VIII Notice of Violation Sec IX Stop Work Order Sec X Violations Sec XI Enforcement Minor changes from the existing ordinance Sec XII Fines and Penalties C. added “fines received for violations to provisions of this ordinance shall be deposited into the Reforestation Fund” Sec XIII Certificate of Occupancy Gives more ability to capture deficiencies or place additional requirements prior to release Sec XIV Protection and Care for City Trees This section is a requirement for Tree City USA Sec XV Sec XVI Sec XVII Little to no changes ADMINISTRATIVE GUIDELINES The existing ordinance had the guidelines broken down into three sections: Agricultural, Single Family, and Commercial. This has been narrowed down in to one section but capturing the content of all three OLD NEW Sec 1 A. Unrelated to Development Requires notification to city for removals of less than 8” dbh and a permit for removals for trees greater than 8” plus a tree for tree replacement B. Related to Development The tree removal permit will be in conjunction with a Land Disturbance Permit C. Improvements i.e. pools, garages, etc 3. If site does not meet density and no trees are removed, 1 tree per every 200 ft2 disturbed to be planted 4. If site does not meet density and trees are removed, 1 tree for every tree removed plus 1 for every disturbed 200 ft2 D. Timber Harvest 6. 50’ buffer around the perimeter 8. If violation occurs, no permit issued for up to five years. Note: Clear cutting will only be allowed in conjunction with a Land Disturbance Permit Sec 2 Density Standard No changes Sec 3 Density Calculations No changes Sec 4 Standards for Replacement/Recompense A. Tree Stock Standards Typical standards B. Responsibility Who is responsible C. Time of Replacement When will planting occur D. Longevity and Duration Should planting die Sec 5 Specimen Tree Standard Most of this section has remained the same … Size of specimen pine has been increased from 24” to 27”dbh Cont. Size of small native flowering tree has decreased from 10” to 8” dbh Sec 6 Specimen Removal and Calculations Size alone will determine whether a tree was of specimen quality if the tree was removed without proper approval and there is no evidence of its condition. If a tree has been removed illegally and the DBH cannot be determined, the DBH will be determined by the diameter of the existing stump. Sec 7 Alternatives to Replacement/Recompense Tree Banking / Tree Fund A.K.A. Reforestation Fund Sec 8 Methods Planning Consideration Protective Measures Typical comments Sec 9 Landscape Strip and Buffer No changes Sec 10 Maintenance Responsibility Inserted to ensure well and properly maintained landscapes Sec 11 Authority for review Sec 12 Standards for Approval STATE OF GEORGIA COUNTY OF FULTON ORDINANCE NO. AN ORDINANCE TO REPLACE CHAPTER 60, VEGETATION, ARTICLE II, TREE PRESERVATION OF THE CITY OF MILTON CODE OF ORDINANCES; TO ENCOURAGE TREE CONSERVATION; TO PROMOTE PRESERVATION, MAINTENANCE AND REPLACEMENT OF TREES; TO REPEAL CONFLICTING ORDINANCES; AND FOR OTHER PURPOSES. WHEREAS, in 2008, a group of residents were appointed to represent the Milton Community regarding the preservation of the Milton tree canopy to be known as the Milton Tree Committee; and WHEREAS, since that time, the Mayor and City Council having established a Tree Preservation Ordinance was committed to updating that ordinance along with Staff to preserve Milton’s trees and provide for their replacement; and WHEREAS, the Tree Preservation Committee worked alongside the City of Milton Planning Commission, Design Review Board and Staff to present the Tree Preservation Ordinance to the Mayor and City of Council to replace the City of Milton Code of Ordinances as Chapter 60, Vegetation, Article II, Tree Preservation. BE IT ORDAINED by the City Council of the City of Milton, GA while in a regularly called council meeting on ______________, 2010 at 6:00 p.m. as follows: SECTION 1. In support and furtherance of its findings and determination that trees provide an aesthetic natural resource to the City of Milton, Georgia and are among its most valued and important assets and that the preservation of Milton’s trees are essential to the promotion of the health, prosperity, and general welfare of the people, and; SECTION 2. In order to maintain the health and vitality of existing trees and to protect and enhance the streetscape along roads and within new development, and; SECTION 3. In order to provide for designation, protection, preservation, and replanting of trees and to participate in federal or state programs to do the same, and; SECTION 4. The Milton City Council, Milton, Georgia hereby declares it to be the purpose and intent of this Ordinance to establish a uniform procedure for use in providing for the identification, protection, enhancement, replacement and maintenance of significant trees, in accordance with the provisions of the Ordinance. SECTION 5. In the event the provisions of this Ordinance are in conflict with the provisions of any other City of Milton Ordinance, the provisions of this Ordinance shall prevail. SECTION 6. That this Ordinance will be known as “Tree Preservation” Article II, Chapter 60, of the City of Milton Zoning Ordinance hereby adopted and approved; and is attached hereto as if fully set forth herein; and, SECTION 7. This Ordinance is effective __________________; ORDAINED this the _____ day of __________, 2010. ______________________________ Joe Lockwood, Mayor Attest: _________________________________ Sudie AM Gordon, Interim City Clerk (Seal) 6-10-10 CITY OF MILTON TREE CONSERVATION ORDINANCE AND ADMINISTRATIVE GUIDELINES No Text TREE CONSERVATION ORDINANCE AND ADMINISTRATIVE GUIDELINES FOR ALL LAND USE IN THE CITY OF MILTON, GEORGIA Acknowledgements ACKNOWLEDGEMENTS Tree Preservation Revision Committee Cherilyn Allen Roger Festa Scott Gronholm David Holcomb Zach Middlebrooks Adam Orkin Diane Palmer Georgia Forestry Commission Joe Burgess Table of contents -- i TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................................................. i APPENDICES ............................................................................................................................................................... iv SECTION I. MILTON COUNTY TREE PRESERVATION ORDINANCE I. Purpose ........................................................................................................................................................... 1 II. Authority And Applicability ............................................................................................................................... 1 III. Definitions ........................................................................................................................................................ 2 IV. Tree Removals Permit .................................................................................................................................... 7 V. Exemptions ...................................................................................................................................................... 7 VI. Prohibited Acts ................................................................................................................................................. 8 VII. Inspections ....................................................................................................................................................... 8 VIII. Notice of Violation ............................................................................................................................................ 8 IX. Stop Work Order .............................................................................................................................................. 9 X. Violations ......................................................................................................................................................... 9 XI. Enforcement .................................................................................................................................................. 10 XII. Fines and Penalties ....................................................................................................................................... 10 XIII. Certificate of Occupancy ................................................................................................................................ 10 XIV Protection and Care for Public Trees XV. Bonding.......................................................................................................................................................... 10 XVI. Appeals .......................................................................................................................................................... 11 XVII. Validity ........................................................................................................................................................... 11 SECTION II. ADMINISTRATIVE GUIDELINES FOR AGRICULTURE DISTRICTS 1. Tree Removal………………………………………. A. Unrelated to Development B. Related to Development (Building Permti or LDP) C. Related to Improvements 2. Density Standards 3. Density Calculations 4. Standards for Replacement/Recompense Trees 5. Specimen Tree Standards 6. Specimen Removal and Recompense Calculations 7. Alternatives to Replacement and Recompense Plantings 8. Methods 9. Landscape Strip and Buffer Standards 10. Maintenance 11. Authority for Review 12. Standards for Approval -iv- APPENDICES CONSTRUCTION APPENDIX A. Protecting Trees During Construction APPENDIX B. Warning – Tree Protection Zone Signage APPENDIX C Tunneling Under Root Zones APPENDIX D Grade Change Guidelines APPENDIX E. Additional Illustrations MAINTENANCE APPENDIX F. Maintenance Guidelines APPENDIX G. Tree Pruning Crimes APPENDIX H. Pruning Cuts APPENDIX I. Don‟t Top Trees APPENDIX J. Correct Use of Mulch PLAN SUBMITTAL APPENDIX K. Tree Conservation Plan (Sample) APPENDIX L. Details Sheet APPENDIX M. Check List for Landscape Drawing and Tree Conservation Plan (commercial) APPENDIX N. Check List for Tree Protection Plan (residential) TREE LISTS APPENDIX O. 40 – 100 ft. Tree List APPENDIX P. 10 – 40 ft Tree List APPENDIX Q. Parking lot and street trees APPENDIX R. Evergreens for Undisturbed Buffers MISCELLANEOUS APPENDIX S. Extra Unit Value for Recompense Trees APPENDIX T. Multi Trunked Tee Calculator SECTION I. City of Milton Tree Conservation Ordinance Tree Preservation Ordinance -1- Section I. City of Milton Tree Conservation Ordinance I. PURPOSE A. The purpose of this ordinance is to cultivate and encourage a high level of tree conservation, to promote the general provisions within this ordinance, and to develop detailed provisions within the administrative guidelines in order to implement the regulations set forth to preserve, maintain, and replant trees within the City of Milton,Georgia. The intent of the Ordinance and Administrative Guidelines is to provide standards for the conservation of trees as part of the land development, building construction and tree removal activities. It is not the intent of this ordinance to regulate individual properties where activities do not require a land disturbance, building construction, or tree removal permit. It is, however, the intent to insure that individual properties retain the required tree densities, should they require a land development, building, or tree removal permit. B. Tree protection and tree planting provide the follwing benefits to the citizens of Milton: 1. Trees produce oxygen and absorb carbon dioxide, thereby reducing air pollution and improving air quality. 2. Trees filter out dust, particulate matter, and airborne pollutants, thereby improving air quality. 3. Tree roots hold the soil, thereby reducing soil erosion and sedimentation and improving water quality. 4. Trees intercept precipitation, thereby reducing storm water runoff and improving water quality. 5. Trees provide shade and cooling and provide windbreaks, thereby reducing energy usage and air conditioning and heating costs. 6. Trees enhance habitat for desirable wildlife, providing a haven for birds, which in turn, assist in control of insects. 7. Trees buffer different land uses to eliminate or minimize nuisances such as dust, litter, noise, glare, signs and unsightly building or parking areas. 8. Trees improve public health by reducing strees, encouraging exercise, calming traffic, decreasing illness recovery times, reducing crime, and improving concentration. 9. Trees attract residents, visitors, and commerce and increases the value and marketability for property. 10. Trees beautify the City and protect and enhance the quality of life. II. AUTHORITY AND APPLICABILITY The terms and provisions of this Ordinance shall apply to all activity which requires the issuance of a Land Disturbance Permit, Building Permit, or Tree Removal Permit on any property within the City of Milton. The terms and provisions of these regulations shall also apply to construction of new single family detached homes and duplex dwellings, including additions, renovations, and/or alterations to exisitng single family detached and duplex dwellings, and to include landowner tree removals. No clearing, grubbing, grading, or other removal of existing vegetation that may affect the health of existing tree coverage may occur until it is determined that the proposed development is in conformance with the provisions of this Ordinance. III. DEFINITIONS All words in these standards have their customary dictionary definitions except as specifically defined herein. The words “shall” and “must” are mandatory, and the words “may” and “should” are permissive. Tree Preservation Ordinance -2- 1. Administrtive Guidelines: Those certain guidelines, including appendices, existing or as future amended and incorporated into this Ordinance to provide standards for the protection , preservation, and replacement of trees, and which are regulated and enforced by the City Arborist in conjunction with the Community Development Department or its designated agent(s) through the development and construction permits and processes. 2. Agent(s), designated or authorized: an individual or entity authorized to administer and enforce the standards set forth in the City of Milton Tree Conservation Ordinance and Administrative Guidelines. 3. Agricultural Use: Any use on property zoned „AG-1 Agricultural‟ that is related to active farming, livestock, or ranching, including using land as pasture or in the production of crops, horticultural products, the keeping of livestock, including but not limited to poultry and hoofed animals such as cattle, horses, goats and sheep, for commercial purposes and the construction and maintenance of agricultural accessory buildings. 4. Buildable Area: The portion of a parcel of land where a building may be located and which shall contain enough square footage to meet the minimum required by the zoning district. That portion which is not located in the minimum setbacks, utility corridors, driveways, slopes to build streets, tree save areas, landscape strips, specimen tree areas, state water buffer, tributary buffers, zoning buffers, wetlands, storm water and sanitary sewer easements. 5. Buffer: a. State Waters Buffer: An area along the course of any State waters, as defined herein, to be maintained in an undisturbed and natural condition. b. Zoning Buffer: A natural undisturbed portion of a lot, except for approved access and utility crossings, which is set aside to achieve a visual barrier between the use on the lot and adjacent lots and/or uses. Buffer is achieved with natural vegetation and must be replanted subject to the approval of the Director of the Department of Community Development or his/her designated agent(s) when sparsely vegetated. Cleaning of undergrowth from a buffer is prohibited except when accomplished under the supervision of the Director of the Department of Community Development or his/her designated agent(s). 6. Caliper: The standard for trunk measurements for new plantings. Caliper of the trunk is the diameter Iin inches measured 6 inches above the ground level. 7. Clear Cutting: The removal of all trees from a property, whether by cutting or other means, excluding stream buffer requirements. Clear cutting shall follow the same requirements as timber harvest. 8. City Arborist: The agent(s) of the City of Milton assigned to the Community Development Department having the primary responsibilities of administration and enforcement of the Tree Conservation Ordinance. 9. Critical Root Zone: The area of tree roots within the crown dripline. This zone is generally defined as a circle with a radius extending from a tree‟s trunk to a point no less than the furthest crown dripline or, the area extending 1 foot per diameter inch, plus three (3) feet from the trunk of the tree, whichever is greater. Disturbances within this zone will directly affect a tree‟s chance for survival. 10. Crown Drip Line: A vertical line extending down to the ground from the end of a tree‟s longest branches. 11. D.B.H.: Diameter-at-breast-height is a standard measure of tree size, (for trees existing on site) and is a tree trunk diameter measured in inches at a height of 4 ½ feet above the ground. Tree Preservation Ordinance -3- 12. Density Factor for the Site (DFS): A unit of measure used to prescribe and calculate required tree coverage on a site. Unit measurements are based upon tree size. a.) Site acreage multiplied by (15) for Agricultural Use = DFS. b.) Site acreage multiplied by (20) for Single Family Residential = DFS. c.) Site acreage multiplied by (30) for Commercial and all other Non-Single Family = (DFS). 13. Erosion and Sedimentation Control Ordinance: The ordinance adopted by the City that regulates soil erosion and its transportation to the City‟s lakes, rivers, and streams (latest revision). 14. Improvement Setback: An area adjacent to a zoning buffer in which no improvements and/ or structures shall be constructed. No development activity such as tree removal, stump removal or grinding, land disturbance or grading is permitted without the approval of the Director of Community Development. 15. Land Disturbing Activity: Any activity which may result in soil erosion from water or wind and movement of sediments into state water or onto lands within the state, including, but not limited to, clearing, dredging, grading, excavating, transporting, and filling of land but not including agricultural practices as described in the City of Milton Soil Erosion and Sedimentation Control Ordinance. 16. Land Disturbance Permit: A permit issued by Community Development that authorizes the commencement of alteration or development of a given tract of land or the commencement of any land disturbing activity. 17. Landscape Plan: A plan that identifies areas of tree preservation and methods of tree protection within the protected zone, as well as all areas of replanting. Within replanting areas, the common and botanical names of the proposed species, the number of plants of each species, the size of all plant materials, the proposed location of all plant materials, and any unique features of the plant materials shall be indicated. 18. Landscape Strip: An area required by this ordinance, by the City of Milton Zoning Resolution or any condition of zoning, use permit or variance approval, which is reserved for the installation and/or maintenance of plant materials. 19. Minimum Setback: The minimum yards as specified in the regulations related to the zoning districts or use permit categories. A minimum required space between a property line and a structure. An area identified by a building setback line. 20. Protected Zone: Includes but is not limited to the following: 1. Critical root zone as defined herein. 2. All areas of a parcel required to remain in open space; 3. All areas required as landscape strips and/or buffers (including zoning buffers, and state water buffers); 4. Tree save areas according to provisions of the City of Milton Zoning Resolution, conditions of zoning, use permit or variance approval, and/or the Tree Conservation Ordinance and Administrative Guidelines. 21. Reforestation Fund: The fund established by the City for the purpose of implementaing the Tree Conservation goals and held in seperated account to be used for such goals. Tree Preservation Ordinance -4- 23. Revegetation: The replacement of trees and landscape plant materials to satisfy the minimum tree density and landscape requirements, as determined by the Zoning Resolution, condition of zoning, use permit or variance approval, or the Tree Conservation Ordinance and Administrative Guidelines. 23. Roots: Feeder Roots: A complex system of small annual roots growing outward and predominantly upward from the system of “transport roots”. These roots branch four or more times to form fans or mats of thousands of fine, short, non-woody tips. Many of these small roots and their multiple tips are 0.2 to 1 mm or less in diameter and less than 1 to 2 mm long. These roots constitute the major fraction of a tree‟s root system surface area and are the primary sites of absorption of water and nutrients. 24. Setback: A space between a property line and the line to which a building or specified structure may be constructed. 25. Soil Compaction: A change in soil physical properties which includes an increase in soilweight per unit volume and a decrease in soil pore space. Soil compaction is caused by repeated vibrations, frequent traffic and weight. As related to tree roots, compacted soil can cause physical root damage, a decrease in soil oxygen levels with an increase in toxic gasses, and can be impervious to new root development. 26. State Waters: Any and all rivers, streams, creeks, branches, lakes, reservoirs, ponds, springs, and other bodies of surface or subsurface water, requiring a buffer. as defined by the Georgia Departmernt of Natural Resources Environmental Protection Division. 27. Thinning: Selective cutting or removal of timber. The basal unit of (30) units per acre for Commercial Districts and all other non single family districts; (20) units per acre for Single Family Residential Districts; (15) units per acre for Agricultural Districts shall be maintained after selective cutting, or removal of timber has occurred. 28. Timber Harvesting: The felling of timber products (pulp wood, etc). The term “timber harvesting” may include both clear cutting and thinning of timber. 29. Tree: a. Tree: Any self supporting woody perennial plant which has a trunk diameter of 2 inches or more measured at a point 6 inches above the ground level and which normally obtains a height of at least 10 feet at maturity, usually with one main stem or trunk and many branches. b. Heritage Tree: A tree which is designated upon approval by the City Council to be of notable historical value or interest because of its age, size, or historical association. c. Protected Tree: Any tree equal to or over eight (8) inches DBH that is in fair or better condition and any tree required as a condition of zoning, variance or permit approval. d. Specimen Tree: Any tree which has been determined by the City Arborist to be of high value because of its type, size, age, or other professional criteria, and has been so designated according to administrative standards contained in this document. e. Stand of Specimen Trees: A contiguous grouping of trees which has been determined to be of value by the City Arborist (a.) A relatively mature even aged stand. (b.) A stand with purity of species composition or of a rare or unusual nature. (c.) A stand of historical significance. (d.) A stand with exceptional aesthetic quality. Tree Preservation Ordinance -5- 30. Tree Bank: A site such as a school or public park, where the owner/developer shall donate and plant the required trees when it is not feasible to plant the required trees within their site‟s project area. 31. Tree Conservation Ordinance: This Ordinance, approved and adopted by the City of Milton City Council to provide standards for the protection, preservation and replacement of trees regulated and enforced by the City Arborist in conjunction with Community Development or designated agent(s) through development and construction permits and processes 32. Tree Removal: Any act which causes a tree to die within three (2) years after commission of the act, including but not limited to damage inflicted upon the root system or trunk as a result of: 1. Improper use of machinery within the critical root zone of trees; 2. The storage of materials within the critical root zone around trees; 3. Soil compaction; 4 Altering the natural grade to expose the roots or to cover the tree root system with more than four inches (4”) of soil; 5. Pruning judged to be excessive by the City Arborist or not in accordance with the standards set forth by the International Society of Arboriculture. 6. Paving with concrete, asphalt, or other impervious surface with such proximity as to be harmful to the tree or the root system. 33. Tree Removal Permit: A permit as required pursuant to this Ordinance issued by the City of Milton Arborist for land disturbance or the removal of any trees with DBH of eight (8) inches or greater. 34. Tree Save Area: All areas designated for the purpose of meeting tree density requirements, saving specimen trees, and/or preserving natural buffers. 35. Tree Topping: The illegal practice of severe cutting back of limbs to stubs, larger than three (3) inches in diameter within the tree‟s crown to such a degree so as to remove the normal tree canopy and disfigure the tree, resulting in decay of the trunk and/or decline in main branch and sprout production. 37. Wetlands: Those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. 38. Zoning Regulations: The Zoning Resolution of as amended or such regulations subsequently adopted by the City of Milton inclusive of conditions of zoning, use permit or variance approval established pursuant thereto. 39. All other terms: All other words or phrases as appropriate to the context of their uses shall be interpreted as defined in the Zoning Regulations. IV TREE REMOVAL PERMIT A. Tree Removal Permits will only be issued to companies : 1 officially registered with the Georgia Secretary of State 2 provide proof of necessary insurance or licenses at time of application, 3 have an ISA certified Arborist on staff or as a consultant 4 current with requirements stated above and , 5 with no ouststanding issues with the city. Tree Preservation Ordinance -6- B. A Tree Removal Permit shall be obtained from the City Arborist or designated agents prior to: 1 Clearing / grading 2 Land Disturbance 3 Issuance of a Building permit 4 Removal of any tree 8 inches or greater (4 ½ ft above ground level) 5 Removal of more than six (6) trees within a twelve month period. Tree removal permit applicatrion procedures shall follow the standards in Section 1 of the Administrative Guidelines. V. EXEMPTIONS Exemptions to this section include: A. Emergency tree removal: Any hazard tree on private property that posses an immediate threat to life or property may be removed without first obtaining a permit approval. The party removing the tree shall contact the City Arborist within seven days of removal to provide evidence of threat for approval of exemption with pictures and/or written report from a certified arborist stating the hazards of said tree. If the City Arborist and Director of Community Development determines that the emergency removal was not warranted, an after-the-fact permit and fee shall be required and compensation may be required in accordance with specimen tree removal. B. Pruning or removing of trees within the right of way by utility companies for maintenance or utility wires or pipelines and the pruning of trees within sight easements C. Lands from which the removal of trees is shown to be necessary for bonafide agricultural purposes for the duration of use, provided that if the property use is that other than agricultural, the property shall adhere to current tree ordinance guidelines set forth herein. D. Commercial nurseries or tree farms: Trees which are planted and growing on the premises of a licensed retailer or wholesaler for sale to the general public are exempt from this chapter. Other trees on such premises shall remain subject to this and other subsequent chapters. E. Trees directed to be removed by municipal, county, state or federal authority pursuant to law. F. Trees that are determined by the City Arborist to be dead, diseased, or hazardous. A hazardous tree is one that is likely to fail, or portions are likely to fail, under mild environmental or man-made stress. VI. PROHIBITED ACTS The following acts shall be prohibited: A. No person shall fasten or attach to any tree any sign, poster, bill, notice or advertisement of any kind. B. No person or utility shall cause or purposefully permit any brine, oil, gasoline, or other substances deleterious to tree life to lie, leak, pour, flow or drip on or into the soil within the critical root zone of a tree. C. No trees shall be planted or allowed to grow on private or public lands within the limits of, or which will interfere with any drainage, sewer, water, or utility easement. D. Tree topping: It shall be unlawful, as a normal practice for any company or person for hire to top any street tree, park tree, any tree on public or private property, and any tree required as a condition of zoning or permitting. Trees severely damaged by storms or other obstructions, or where other pruning practices are impractical may be exempt at the determination of the City Arborist. VII. INSPECTIONS: A. The Community Development Department as the issuing authority, may cause inspection of compliance to be made periodically by its designated agent(s) during the course of the project and shall make a Tree Preservation Ordinance -7- final inspection following the completion of the work. Applicants shall cooperate with the issuing authority in conducting such inspections. B. The Community Development Department shall have the power to conduct such investigations as it may reasonably deem necessary to carry out its duties as prescribed in this ordinance, including but not limited to the power to enter at reasonable times upon any property, public or private, for the purpose of investigating and inspecting the sites of any land disturbing or tree removal activities. C. No person shall refuse entry or access to any authorized representative or agent who requests entry for the purpose of inspection and who presents appropriate identification, nor shall any person obstruct, hamper or interfere with any such representative while in the process of carrying out his official duties. VIII. NOTICE OF VIOLATION A If, through inspection, it is determined that a person, firm, or corporation has: 1 Engaged in land disturbing or other prohibited activities, which have resulted in the removal of trees without a permit, or 2 Failed to comply with the terms and conditions of a validly issued permit, then a written notice of violation shall be served upon the property owner or agent of record and/or person or company performing such work. B. Where a person, firm, or corporation has engaged in land disturbing or tree removal activities without first having secured a permit, therefore in violation of this Ordinance, notices under the provisions of this section may be served upon the person in charge or any person representing the person in charge on the site. C. All construction and land disturbing activities shall be discontinued until the necessary measur es to achieve compliance have been fulfilled. D. The notice shall set forth the measures necessary to achieve compliance with the permit and shall state the time within such measures must be completed. E. If the person, firm, or corporation engaged in land disturbing acitivitie fails to comply within the specified time, he or she shall be subject to a citation for violation of this ordinance. IX. STOP WORK ORDERS Upon notice from the Director of Community Development or his/her agent(s), work on any project that is being done contrary to the provisions of this ordinance shall be immediately stopped, until such time that the violation has been remedied to the satisfaction of the City Arborist. Prior to any remediation, a plan shall be submitted to and approved by the City Arborist. Such notice: A. Shall be in writing. B. Shall state specific violations. C. Shall be given to the applicant, owner, the authorized agent of either, or the person in charge, or any person representing the person in charge of the activity on the subject property. D. Shall state the conditions under which work may be resumed. E. Where an emergency exist, no written notice is required initially, but issuance shall be required within 24 hours. F. Shall allow only erosion control work to continue while stop work is in effect. X. VIOLATIONS Citations for any of the following violations, by authorized City of Milton Enforcement agents may constitute issuance of an immediate stop work order: A. Land disturbing and/or tree removal within state water or zoning buffer B. Land disturbance and/or tree removal within designated tree save areas C. Illegal removal or disturbance of specimen trees, heritage trees, or specimen stand of trees D. Improper installation and/or maintenance of tree protection fencing E. Other violations of any provisions of this ordinance established thereto, including the Appendices Tree Preservation Ordinance -8- XI. ENFORCEMENT A. It shall be the duty of the Department of Community Development and designated agent(s) to enforce this Ordinance and Administrative Guidelines. The Department of Community Development and designated agent(s) shall have the authority to modify, revoke, suspend, or void any Land Disturbance Permit and shall have the authority to suspend all work on a site or any portion thereof if a violation has occurred. B. Community Development and it‟s designated agent(s) is the issuing authority and shall have the power to withhold all permits, including, but not limited to, final certificates of occupancy, building permits and permits on the subject site until it is determined by the issuing authority that the site complies with this ordinance and the provisions of the formal plan approved by the City. XII. FINES AND PENALTIES A. Any person who violates any provisions of this ordinance may be liable of up to a maximum $1000.00 per violation per day. Each calendar day a violation exists shall be considered a separate offense. There are no maximum limitations to the acrural of fines. B. Fines assessed shall not exceed two time the amount of the payment required for recompense as stated in this ordinance and administrative guidelines. C. Fines received for violations to provisions of this ordinance shall be deposited into the Reforestation Fund. D. Each owner of property wherein a violation exists may be jointly responsible for said violation. Each offense will be tried in Milton Municipal Court. E. Recompense trees, density trees and/or other replacement trees may be required in addition to any fines or penalties imposed. XIII CERTIFICATE OF OCCUPANCY No Certificate of Occupancy (C.O.) shall be issued until: A. Applicant meets all Tree Conservation and Landscape requirements. Any civil penalties or other monetary obligations assessed for violations of this ordinance, and all replacement trees required being planted due to violations of this ordinance by the applicant shall be installed or appropriate payments have been made to the Reforestation Fund, and B. All plantings per approved Tree Conservation and Landscape Plans as prescribed herein and in City of Milton Zoning Conditions, variance conditions or conditions for approval have been installed. A temporary certificate of occupancy, (T.C.O.) may be granted before all trees have been installed if a Landscape Performance Bond has been issued and approved by the city arborist and/or the bond administrator. C. Bonds will be held for a minimum of two years. It shall be the responsibility of the applicant to request an inspection for the release of the bond. At this time the arborist may release the bond or may require outstanding issues to be addressed. XIV. PROTECTION AND CARE FOR PUBLIC TREES A. The City shall have the right to plant, maintain, prune and remove trees, shrubs and plants within the Tree Preservation Ordinance -9- rights of way of all city streets, roads, and highways, in parks, around city facilities, and on other city grounds as may be necessary or desirable to ensure public safety, to preserve tree health, and to maintain or increase tree canopy cover. B. The city may prune, remove or cause to be pruned or removed, any city tree or part thereof which is in an unsafe condition or which may by reason of its location or condition, is or may be injurious to sewer, water lines, electric power lines, gas lines or other public improvements, or is infested with any injurious fungus, insect, or other pests. C. All trees growing on city property shall be protected from damage to the crown, trunk, and roots. It shall be unlawful for any person to engage in any activity on private property that directly or indirectly adversely affects health, safety, or condition of a tree on city property. Furthermore, active tree protection measures, as described in this chapter, shall be undertaken by the person engaging in any such activity to protect each affected tree‟s roots, trunk, or crown, and critical root zone from damage. If a person damages, destroys, or fails to protect a city tree, the city may require the person responsible for the damage to pay a fine of up to $1,000.00 per tree damaged and/or the cost of restoring the site to its original condition or as near as possible to its original condition as determined by the city arborist. XV. Bonding A. The City of Milton will evaluate all development projects (excluding timber harvesting) requesting property clear cutting. If upon completion of the site evaluation, the Department of Community Development deems it appropriate to allow property clear cutting activities, a bond will be required. The bond will be required by The City of Milton as a mechanism to cover any potential cost associated with revegetation of the clear-cut property in the event of property abandonment. B. The required bond amount will be the total cost plus 25% for replanting trees to satisfy the density and/or recompense standards for the project site. A tree replacement cost obtained from a plant nursery will be provided to the City of Milto n with the clear-cut request and the bond amount will be based on the tree replacement cost. The City of Milton reserves the right to request additional replacement cost if deemed appropriate. The City of Milton will hold the bond until the proj ect activity, including tree replacement to satisfy the site density and/or recompense requirements is completed. If upon issuing the land disturbance permit, the property is clear cut and there are no construction or development activities conducted within six (6) months, the City of Milton will attempt to contact the property owner (via certified mail) for a project update. Should the property owner not respond within thirty (30) days of receipt of the status request, the bond will be used to revegetate the project site. XVI. Appeals A. Any person aggrieved or affected by any decision of the City Arborist relating to the application of these regulations may file an appeal within thirty (30) days of the decision with the Director of the Department of Community Development for relief or reconsideration. B. Any person aggrieved or affected by any decision of the Director of the Department Community Development relating to the application of these regulations may file an appeal within thirty (30) days of the decision with the Board of Zoning Appeals through the Director of Community Development. C. Appeals shall only be granted for errors of interpretation or where the unique natural features of the site are such that application of these regulations would create an undue hardship to the property owner, and in other instances where an undue hardship is created for the owner of the property. Tree Preservation Ordinance -10- XVII. Validity Should any section or provision of this Ordinance, or Administrative Guidelines promulgated hereunder, be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the Ordinance in whole or any part thereof other than the part so declared invalid. Administrative Guidelines – Agriculture District -11- SECTION II. ADMINISTRATIVE GUIDELINES This set of guidelines shall apply to all parcels of land and uses within the City of Milton unless specifically exempted. SECTION 1 TREE REMOVAL A. UNRELATED TO DEVELOPMENT 1. Notification Required Property owners will be required to notify the city arborist of any tree removal activity. A notification of tree removal activity must be submitted to the City Arborist indicating the number of trees to be removed, species, size, location and reason for removal. No permit fee will be collected. 2. Permit Required A Tree Removal Permit pursuant to this Section shall be issued only upon compliance with the following: a. Required Documentation In conjunction with an application pursuant to this section, the applicant shall submit to the City Arborist documentation (i.e. photographs, drawings, or similar documentation deemed acceptable by the City Arborist) showing the location of all existing trees on the property. Such documentation shall show the location, species, and approximate caliper size of all existing trees noting with specificity any Specimen Trees and Protected Trees which are proposed to be removed. b. Trees greater than 8” diameter, a Tree Removal Permit shall be obtained and any payment of necessary fees. It will be the responsibility of the person or company for hire to apply for the Tree Removal Permit. c. A tree for tree replacement shall be required for each tree removed greater than 8 inches DBH, not to include Specimen Trees Trees selected shall be from the Milton approved tree species list. d. For the removal or destruction of trees on sites that currently meet the minimum TDU requirements, and any removals will cause the site to fall below the minimum TDUs, the applicant shall provide mitigation to meet site density requirements by: 1. Replacing tree density through planting on the same property, or 2. Payment into the Milton Reforestation Fund for the lost density units as determined by the City Arborist. e. Notwithstanding any of the other requirements of this ordinance, it shall be unlawful to remove a specimen tree without a Tree Removal Permit issued by the City Arborist. Administrative standards have been established by the Director of Community Development for the identification, conservation and protection of specimen trees. Administrative Guidelines – Agriculture District -12- B. Related to Development (Building Permit or LDP) All building permits and land disturbance permits shall obtain a Tree Removal Permit prior to the removal of any trees. 1. An application for a Tree Removal Permit shall include a Site/Tree Conservation Plan or other documentation as required for review by the City Arborist for conformance to the provisions of these regulations and either approved, returned for revisions, or denied within 30 days of receipt. If denied or returned for revisions, the reasons for denial shall be annotated on the landscape plan or in writing. 2. Issuance of a valid Land Disturbance Permit shall indicate conformance to the provisions of these regulations. 3. Tree Removal is approved with an approved Land Disturbance Permit which must be visibly displayed on the site prior to and during any tree removal activities. 4. For issuance of any residential building permit, applicant must sign and agree to abide by the Residential Erosion and Sedimentation Control and Tree Conservation Agreement. This shall also apply to parcels upon which a land disturbance permit has been previously issued with a tree protection plan approved by the City Arborist. The Director of Community Development, City Arborist or designated agent(s) is authorized to execute such agreements on behalf of the City of Milton. C. Improvements to Parcels With Existing Structures Such as but not limited to pools, garages, decks etc. 1. If the site meets density requirements and no trees are removed, no replacement trees will be required. 2. If the site meets or exceeds density requirements and tree removal will cause site to fall below density requirements, additional plantings will be required to satisfy density requirements. 3.. If the site does not presently meet density requirements and no trees are removed, replacements will be required at the rate of one tree for every 200 sq.ft. of disturbed area up to, but not exceeding the density requirement for the site. 4. If the site does not presently meet density requirements and a tree or trees are removed, replacement will be required at the rate of one (1) tree for every tree removed plus (1) for every 200 sq.ft. of disturbed area up to but not exceeding the density requirement for the site. D. Timber Harvesting Requirements Agriculture (AG-1) Land Uses only Clear cutting or thinning for purposes of timber harvesting will require a Notice of Timber Harvesting Activity to be submitted to the City Arborist when more than 2 acres of land is clear cut or thinned. A permit will not be required, but the site tree density still has to be met. Clear cutting/timber harvesting is allowed on AG-1 zoned land only. Thinning is allowed in all zoning/land use categories. Clearing, thinning or disturbance is not allowed within state water or wetland buffers. Clear cutting is cutting trees down flush with the ground; stump removal is prohibited. Any portion of land clear cut or thinned under this provision is still required to meet the site density of 15 units per acre, which may require some planting of trees. Only properties zoned and used for bonafide agricultural activities will be granted approval for timber harvesting activities and shall comply with the following standards: 1. A Notice of Timber Harvest Activity form must be filled out in its entirety and submitted to the City Arborist. Administrative Guidelines – Agriculture District -13- 2. A note stating that no stump removal or grading is allowed. 3. Any portion of land clear cut or thinned under this provision is still required to meet the site density of 15 units per acre, not including the 50 foot buffer, upon completion of the authorized timber harvesting activities. 4. Erosion control measures as prescribed by the Soil Erosion and Sedimentation Control Ordinance. 5. Stream crossings as prescribed by the Soil Erosion and Sedimentation Control Ordinance. 6. A 50 foot undisturbed buffer shall be provided and maintained along the entire perimeter of the property, including road frontages, during the timber harvesting activity, except for authorized crossings. 7. No timber harvesting activities shall occur within the 50 foot State Waters buffer. All buffers measured from the top of the bank on both sides of a stream or creek. 8. Violations of the State Waters buffer , tree protection areas, clearing without proper documentation may result in NO other permits for said site to be issued for up to five (5) years. NOTE: Specimen trees will NOT be excluded and are to be protected with tree fence out to a distance of 3‟ beyond the edge of their root protection zone NOTE: Clear cutting will only be allowed in conjunction with a Land Disturbance Permit. SECTION 2 DENSITY STANDARDS The minimum tree density requirements for the site shall be maintained with existing trees or planting of additional replacement trees so as to produce a total site density factor for the required number of units for that particular zoning district. The required units for each district are shown in the table below: LAND USE UNITS REQUIRED “AG-1” Agricultural 15 units per acre Single Family Residential 20 units per acre Commercial and All Other Non-Single Family Residential 30 units per acre If it has been determined by the City Arborist or designated agent(s) during the initial site visit that the property in question is completely barren of trees and has been for a considerable length of time (ie, pasture land), then the units for replacement trees will be doubled. (NOTE: the terms unit and tree are NOT interchangeable). Procedures for determining the site density requirements and the subsequent tree replacement requirements are provided in the next section. At least 70% of replacement trees must be hardwoods of at least 4 different species. SECTION 3 DENSITY CALCULATIONS Procedure for Calculating the Required Tree Replacement Density Factor. (Using the Single Family District as an example). Step 1 Calculate the density factor for the site (DFS) by multiplying the number of site acres by 20. Administrative Guidelines – Agriculture District -14- EXAMPLE: A 2.2 acre site has a DFS of 2.2 x 20 = 44. Step 2 Calculate the existing density factor (EDF) of trees which will remain on site to be protected during construction. EDF is determined by converting the D.B.H. of individual existing trees to density factor units, using Table 1 These units are then totaled to determine the EDF for the site. EXAMPLE: A total of 8 trees will remain on the 2.2 acre site. When converted to density factor units we calculate the following: Quantity Size Species D.B.H. Units # Trees 2 12” Pine 12” 3.2 X 2 = 6.4 2 14” Pine 14” 3.6 X 2 = 7.2 2 18” Oak 18” 4.0 X 2 = 8.0 1 20” Hickory 20” 4.0 X 1 = 4.0 1 30” Oak 30” 14.7 X 1 = 14.7 EDF 40.3 The sum total of units, 40.3, is the existing density factor EDF. Step 3 Calculate the required replacement density factor (RDF) by subtracting the EDF (Step 2) from the DFS (Step 1) Example: DFS - EDF = RDF 44 - 40.3 = 3.70 Step 4 The RDF can be converted back to caliper inches using Table 2 Any number of combinations of transplantable size trees can be used so long as their total density factor will equal or exceed the RDF. Example: on the 2.2 acre site the following number and size trees will be planted: QTY. SIZE SPECIES DENSITY FACTOR UNITS DF x QTY. = TOTAL 3 4” Pine 0.7 3 x 0.7 2.0 2 2” Red Maple 0.5 2 x 0.5 1.0 1 6” Oak 1.00 1 x 1.00 1.0 Replacement density factor < or = to 4.10 4.10 is the sum of the replacement trees for the site. Because the sum of the replacement trees for the site is greater than the RDF, which is 3.70, the project‟s site density has been satisfied. TABLE 1 EXISTING TREES TO REMAIN Conversion from D.B.H. to density factor units for trees, remaining on site. D.B.H. UNITS D.B.H. UNITS D.B.H. UNITS 1-4 1.0 36 21.3 59 56.9 5-7 1.8 37 22.5 60 58.9 8-10 2.4 38 23.7 61 60.8 39 24.9 62 62.8 11-12 3.2 40 26.1 63 64.9 Administrative Guidelines – Agriculture District -15- 41 27.6 64 67.0 13-15 3.6 42 28.8 65 69.1 16-20 4.0 43 30.3 66 71.2 21 4.8 44 31.8 67 73.4 22 5.2 45 33.0 68 75.6 23 8.7 46 34.5 69 77.9 24 9.3 47 36.0 70 80.1 25 10.2 48 37.8 71 82.4 26 11.1 49 39.3 72 84.8 27 12.0 50 40.8 73 87.1 28 12.9 51 42.7 74 89.6 29 13.8 52 44.2 75 92.0 30 14.7 53 45.9 76 94.5 31 15.6 54 47.7 77 97.0 32 16.8 55 49.4 78 99.5 33 17.7 56 51.3 79 102.1 34 18.9 57 53.1 80 104.7 35 20.1 58 55.0 TABLE ( 2 ) REPLACEMENT TREES Conversion from caliper to density factor units for replacement trees. CALIPER UNITS CALIPER UNITS 1 0.40 8 1.30 2 0.50 9 1.50 3 0.60 10 1.70 4 0.70 11 1.90 5 0.90 12 2.10 6 1.00 13 2.30 7 1.20 14 2.50 NOTE: Tree relocation: Replacement units may be granted to trees relocated on site. Tree relocation is subject to the city arborist approval. SECTION 4 STANDARDS FOR REPLACEMENT/RECOMPENSE TREES In order to qualify for tree replacement density credits, all over story replacement trees shall be at least two (2) caliper inches. All understory trees shall be at least six (6) feet tall planted and a trunk measurement of at least 1 ½ caliper inches. A. TREE STOCK STANDARDS: Trees selected for planting must be free from injury, pests, disease or nutritional disorders. Trees selected for planting must be of good vigor. The determination of vigor is a subjective evaluation and depending upon species variability. The following criteria are generally uses for the determination of vigor: 1. Foliage should have a green or dark green color. Vigorous trees will have large leaves and dense foliage when compared to trees with poor vigor. 2. Shoot growth for most vigorous trees will be at least 1 foot per year. At least ½ of the branches should arise from points on the lower 2/3 of a trunk. Administrative Guidelines – Agriculture District -16- 3. Bark texture can denote vigor. Smooth or shiny bark on the trunk and branches of young trees usually signifies good vigor; conversely, rough and dull bark could indicate poor vigor. 4. Trunk taper: Trees with reverse tapers or no taper should be avoided. 5. Root color: young roots of most trees will be light in color. 6. Trees selected for planting must be free of root defects. Two types of root defects generally occur: a. Kinked roots, in which taproots, major branch roots, or both are, bent more than 90 degrees with less than 20% of the root system originating above the kink. A tree with such roots will probably bend at the soil line when released from a supporting stake. b. Circling or girdling roots which circle 80% or more of the root system by degrees or more. A tree with such roots would ultimately have less than 20 percent of its root system available for support. B. RESPONSIBILITY FOR REPLACING PROTECTED TREE: The city arborist may determine the time of replacement, and the location of the replacement trees and approve the agents responsible for replacing a wrongfully removed protected tree. The requirement to replace trees shall be binding upon the person subject to such an order or the record title owner. In the event of a sale, assignment, or transfer of property, the person subject to such order may either obtain the consent of the person to whom the property was sold, assigned or transferred to permit the replacement on such property, or may make payment into the Reforestation Fund as provided in this Ordinance. C. TIME OF REPLACEMENT: Any replacement trees required to be planted must be planted no later than ninety (90) days after the order of the city arborist, or within thirty (30) days of the date of any appeal from such order becomes final, provided, however, that the city arborist may require a deferral of the planting of replacement trees up to an additional one hundred eighty (180) days based outside planting season, and further provided that the city arborist may, upon request of the person subject to the requirement approve delaying the planting of replacement trees up to an additional one hundred eighty (180) days if the person subject to the ordinance provides the city with a surety bond in an amount equal to the cost of purchasing and planting such trees or pay this amount into the Reforestation Fund within the earlier of the following (1) within 180 days of the last date approved for such delayed planting, (2) the date of issuance of the first certificate of occupancy on any portion of the subject property, or (3) other date as agreed by the city arborist in an approved Tree Preservation Plan. The surety bond must be issued by company licensed to do business in the State of Georgia and shall be authorized by and approved by the City Attorney. D. LONGEVITY AND DURATION: If a replacement tree dies within two years from the date it was planted, the person subject to the requirement to plant the replacement tree must replace the dead tree with another replacement tree within ninety (90) days of the order of the city arborist ordering such replanting. The requirement to replace such replacement trees shall be binding upon the person subject to such order or the record title owner. In the event of a sale, assignment, or transfer of property, the person subject to such order may either obtain the consent of the person to whom the property was sold, assigned, or transferred, to permit the replacement on such property, or make payment to the Reforestation Fund as provided in the Ordinance. SECTION 5 SPECIMEN TREE STANDARDS Some trees on a site warrant special consideration and encouragement for preservation. These trees are referred to as “Specimen Trees”. Trees unique due to age, size, species or historic relevance are to be identified during the survey process and special consideration shall be made to work around them. Cost effective building, site, Administrative Guidelines – Agriculture District -17- hardscape and landscape designs will be strongly encouraged to conserve such specimen trees. These trees are to be identified and highlighted on the Tree Protection Plan. Design of buildings, hardscapes and utilities are to be developed with consideration to preserving and featuring specimen trees. Tree density unit credits are given for existing trees that are saved during the site development process, with greater credits given to specimen trees saved. In order to encourage the preservation of specimen trees and the incorporation of these trees into the design of projects, additional density credit will be given for specimen trees which are successfully saved by a design feature specifically designated for such purpose. Credit for any specimen tree thus saved for such purpose would be two (2) times the assigned unit value. Specimen tree is any tree which equals or exceeds the following diameter sizes: TREE TYPE TREE DIAMETER SIZE EXAMPLES Large hardwoods 27” d.b.h. Oak, Hickory, Poplar, Sweetgum, etc. Large hardwood 24” d.b.h. Beech Large softwood 27” d.b.h. Pine Small native flowering 8” d.b.h. Dogwood, Redbud, Sourwood …and a tree in fair or better condition must meet the following minimum standards: A life expectancy of greater than 10 years A relatively sound and solid trunk with no extensive decay or hollow, and less than 20% radial trunk dieback No more than one major and several minor dead limbs (hardwoods only). No major insect or pathological problem. A lesser sized tree can be considered a specimen if it is a rare or unusual species, of exceptional quality, or of historical significance. A lesser sized tree can be considered a specimen if it is specifically used by a builder, developer, or design professional as a focal point in a project or landscape. Specimen tree stands: A contiguous grouping of trees which has been determined to be of value by the city arborist. Determination is based upon any one or more of the following criteria: A relatively mature, even-aged stand. A stand with purity of species composition or of a rare or unusual nature. A stand of historical significance. A stand with exceptional aesthetic quality. SECTION 6 SPECIMEN REMOVAL AND RECOMPENSE CALCULATIONS Any and all healthy specimen trees that the city arborist allows a developer/builder/homeowner to remove must be compensated for. Specimen hardwood trees shall be compensated for with a mix of 2” and 4” caliper trees. (6” caliper trees may be required at city arborist discretion). Specimen evergreen trees shall be compensated for with 4” caliper (and/or 6” caliper at city arborist discretion) evergreen trees. Specimen native flowering shall be compensated for with either 2” or 4” caliper hardwood trees. Four (4) different species (minimum) of recompense trees shall be use if the number of recompense trees required is forty (40) or greater. For purposes of recompense trees ONLY, the unit value of a 2” caliper recompense tree will be .35 units, not its usual .5 unit value. Any and all specimen trees slated for removal must have their recompense trees bonded off prior to issuance of the Land Disturbance or Tree Removal Permit. If a specimen tree or trees are removed or their root protection zones disturbed without permission, the unit value of the specimen tree will be doubled and that becomes the unit value that must be recompensed. For example: a 30” DBH tree is normally worth 14.7 units. If it is removed or its root protection zone disturbed without permission, its unit value will double to 29.4 units. Thus 29.4 units must be replaced at the project site. Recompense trees cannot be used to satisfy any other landscape requirement such as parking lot shade trees, landscape strips, undisturbed Administrative Guidelines – Agriculture District -18- buffers or detention pond buffers/landscape strip. Two inch caliper shade trees shall only be counted as .35 units per tree. (SIZE ALONE WILL DETERMINE WHETHER A TREE WAS OF SPECIMEN QUALITY IF THE TREE WAS REMOVED WITHOUT PROPER APPROVAL AND THERE IS NO EVIDENCE OF ITS CONDITION. IF A TREE HAS BEEN REMOVED ILLEGALLY AND DIAMETER CANNOT BE DETERMINED, THE DBH WILL BE DETERMINED BY THE DIAMETER AT THE EXISITNG STUMP). SECTION 7 ALTERNATIVES TO REPLACEMENT/RECOMPENSE PLANTINGS A. TREE BANKING: Arrangements must be made through the city arborist if the Tree Bank alternative is to be utilized for the development. Tree Banking will be considered after design alternatives which could save more existing trees have been evaluated and reasonably rejected. All tree bank trees are to be guaranteed for 2 full years after planting by the developer. Any trees that die within this time period must be replaced by the developer. B. STANDARDS FOR REPLACEMENT STOCK: (See Section 5) C. LOCATION: Trees that cannot be planted on the project site as required may, with approval from the city arborist, choose from the follwing altenatives. 1 Replacement on public property 2 Replacement on other private property within the City of Milton, with the approval from owners of both the property from which the tree was removed and the property on which the replacement is to occur, shall agree, in writing, to maintain the replacement tree(s) to the standards established in this Ordinance. 3 Payment to the Reforestation Fund as provided below. D. REFORESTATION FUND: The Reforestation Fund is another alternative to help applicant meet the tree density or tree recompense requirements. All payments into the Reforestation Fund shall be used for the purchase, installation and maintenance of trees on private property when approved by the city arborist and the Director of Community Development, on public property, and for the acquiring of wooded property which shall remain in a naturalistic state. Funds must be tracked so they can be identified for their intended use. In addition, these funds shall be reserved so that at the end of each fiscal year, any unspent funds will be considered Reserved Funds and will be available in the subsequent years for their intended purpose. 1. Tree replacement cost estimates obtained from three (3) landscape contractors must be provided to the Milton city arborist for approval and the tree replacement cost will be based on an average of the three estimates. 2. The required replacement fee will be 125 percent (%) of the total cost to plant and establishment/maintenance costs for the balance of trees that were unable to be planted to satisfy the site density requirement or recompense tree requirements. 3. Species selected for quote estimate must be grad “A” quality, healthy trees. SECTION 8 METHODS A. PLANNING CONSIDERATION Administrative Guidelines – Agriculture District -19- Root space is the most critical factor in tree protection throughout the development process. The root system of trees easily goes beyond the drip line of the tree canopy. Disturbance within the root zone can directly affect a tree‟s chance of survival. To protect the root zone, the following standards shall apply: 1. The use of tree save islands is encouraged rather than the protection of individual trees (non-specimen) scattered throughout the site. This will facilitate overall site organization as related to tree protection. 2. The root protection zone of specimen trees, heritage trees, undisturbed buffers, stands of trees or otherwise designated tree save areas shall include no less than the area of a circle with a radius that extends one foot out for every inch of trunk diameter, or the area of a circle with a radius extending from a tree‟s trunk to a point no less than the end of a tree‟s longest branch, plus 3 feet, WHICHEVER IS GREATER. In some instances, the city arborist or authorized agent(s) may require an additional area of non-disturbance up to 10 feet outside the root protection zone. 3. Tree preservation and grading requirements are two design constraints, which are most often in conflict. A grade change of a few inches can be detrimental to a tree, yet most sites require extensive cut and fill in order to manage drainage. The use of berms or retaining walls, instead of cutting, to provide detention can be used to preserve significant trees. Detention ponds can be designed around significant trees by adding depth to minimize width where possible. Retaining walls can also be used to mitigate cut and fills. 4. Underground water and wastewater lines, storm sewers, irrigation lines, both underground and overhead electric and telephone lines can have a considerate impact on trees. The layout of the project site utility plans should accommodate the required tree protection zones. Utilities should be placed along corridors between tree protection zones. Developers shall coordinate the location of utility lines, including irrigation and electric lighting, with the utility companies in order to prevent root damage within the critical root zones of protected trees and to minimize damage to trees located in protected zones. 5. Sidewalks can often appear innocuous on plans, but can be very detrimental to trees due to grading requirements. Considerations should be given to move sidewalks as far from tree trunks as possible and provide a finished grade above the existing grade for sidewalks required in close proximity to a tree trunk. Drainage can be routed under sidewalks where an elevated grade is required. B. PROTECTIVE MEASURES The root system within the drip line is generally considered to be the critical root zone. Most trees can tolerate only a small percentage of critical root zone loss. To protect these critical root zones, a tree protection area shall be established around each tree or group of trees to be retained. The following section describes ways to help control unnecessary encroachment on existing trees. These methods and guidelines will be followed for tree protection throughout all phases of construction. These guidelines are designed to reduce damage to critical root zones and wounds to expose roots, trunks, and limbs by chemical, mechanical, or other means. Tree protection areas shall be delineated on the Tree Preservation Plan and methods shall be clearly noted and detailed. 1. ACTIVE PROTECTIVE BARRIERS - Barriers shall be installed along the outer edge of and completely around the critical root zone of all specimen trees or stands of trees, or otherwise designated tree protection areas, prior to any land disturbance. Deviations from this must be approved on an individual basis by the city arborist. Barriers shall be minimum four (4) feet high, orange polyethylene laminar safety fencing. All tree protection zones shall be designated as such with “Tree Save Area” signage posted visibly throughout the site. All tree fencing shall be maintained throughout all land disturbance Administrative Guidelines – Agriculture District -20- and building construction, and should not be removed until all construction and landscaping is complete. 2. SIGNAGE – All tree protection fencing must be accompanied by “STAY OUT –TREE SAVE “signage. Tree protection signs may be purchased at the City of Milton Community Development Department. 3. BORING – Non open trenching will be allowed within the protected zone as defined by the protective barricades. All underground utilities to be installed within this protection zone shall be installed by boring underneath the root zone. Any exceptions must be approved by the city arborist. Utilities may be tunneled in the root zone at a thirty-six (36) inch minimum depth providing that plans are approved showing the location and method. 4. FILLING /CLEARING WITHIN ROOT ZONE –Fill dirt no deeper than two (2) inches may be allowed within the drip line of the tree. No grubbing is permitted in the root zone. In the protected root zone, any stumps, dead trees and shrub growth to be removed shall be cut flush or ground out. Stump grinding will be accomplished with equipment and methods acceptable in normal arboricultural operations. All holes will be backfilled completely the same day of the operation. 5. SOIL COMAPCTION- Where compaction might occur due to traffic or materials storage, the tree protection zone must be mulched with a minimum four (4) inch layer of shredded hardwood mulch. 6. CLEARING ACTIVITIES – Roots often fuse and tangle amongst trees. The removal of trees adjacent to a tree save area can cause inadvertent damage to protected trees. Wherever possible, it is advisable to cut minimum two (2) foot trenches (e.g. with a ditch witch) along the limits of land disturbance, so as to cut, rather than tear the roots. Trenching may be required for the protection of specimen trees. The cutting down and then grinding the stump of the adjacent removed trees, as opposed to bulldozing them and ripping their roots, can also aid the protected trees. 7. TREE REMOVAL – To minimize potential root loss from soil disturbance in an overlapping root situation, all roots attached to a tree inside a tree save area that extends outside the tree save area shall be cut by hand if the soil is to be disturbed. The removal of any tree adjacent to a tree within a tree save area shall not be removed by heavy equipment. Cutting the roots by hand or with a ditch witch is acceptable. SECTION 9 LANDSCAPE STRIP AND BUFFER STANDARDS A. Landscape Strips 1. The width of landscape strips must, as a minimum, conform with the requirements of the conditions of zoning or the requirements of the Zoning Resolution,. The width is measured from the newly dedicated right-of-way, or from the property lines of contiguous parcels, as applicable. 2. No permanent structures are permitted within landscape strips. This includes, retaining walls, curbing, dumpsters, detention facilities, etc. Monument signs, fences,drainage structures, and sidewalks may be allowed with pre-approval. 3. Curb stops must be used to prevent vehicle overhang into required landscape strips and parking lot landscape islands. One curb stop per parking stall is required. 4. Signs within required landscape strips are subject to the approval of the Department of Community Development or designated agent(s). These signs may only be located in areas of turf or groundcover and must not conflict with the growth potential of trees and shrubs. Signs are not permitted within required undisturbed buffers. Administrative Guidelines – Agriculture District -21- 5. The deposition of storm water runoff into drainage swales through landscape strips is generally not permitted. Exceptions will be considered only if this standard will create an undue hardship to the property owner. Unless approved by the City Arborist the width of a drainage easement through a landscape strip shall not exceed the width of the strip. 6. Parking lot landscape islands must, at a minimum, conform to the requirements of the Zoning Resolution. These islands must be planted with at least one 2 inch caliper (minimum) shade tree. Stormwater runoff into parking lot landscape islands may be permitted upon approval by the city arborist. 7. When fencing is required as a condition of rezoning, the finished surface of the fence must face externally to the project. The exact location for fence placement within the landscape strip will be determined on a case by case basis by the city arborist or designated agent(s). 8. All species within required landscape strips must be ecologically compatible with the intended growing site. If ornamental trees are used to satisfy landscape strip requirements, they will not count for satisfying tree density requirements. All plant materials are subject to Department of Community Development or designated agent(s) approval. 9. Trees within required landscape strips shall be provided as follows: a. Landscape strips 25 feet wide or less; a minimum of one tree f or every 30 linear feet of landscape strip. b. Landscape strips 25 feet wide or more; a minimum of one tree for every 20 linear feet of landscape strip . c. Clumping is permitted. All required landscape strips must be designed with at least 60% coverage in trees and shrubs, with no more than 40% coverage in grass or ground cover. Landscape strip coverage will be calculated as follows: a. Calculate the total spati al area of the landscape strip. b. Count the number of trees within the landscape strip and multiply by 100 square feet for trees less than 6” caliper and 200 square feet for trees 6” or greater (This will allow some credit for the spati al coverage of the tree canopy) c. . Calculate the coverage provided by the shrubs planted on center: ON CENTER Equals COVERAGE PER SHRUB *3 feet = 9 square feet *4 feet = 16 square feet *5 feet = 25 square feet *At maturity, shrubs must attain this width. Shrub spe cies and spacing is subject to arborist‟s approval. d. Grass or ground cover may not exceed 40 % coverage within the strip. Administrative Guidelines – Agriculture District -22- PLANTINGS IN RIGHT-OF-WAY Approval from Community Development, Public Works and the Department of Transportation (D.O.T.), where applicable, is required, as planting is generally not permitted in the right-of-way. Where approval is received, the following conditions must be met: 1. Indemnification and maintenance agreements must be recorded with the Fulton Superior Court Clerk prior to permitting irrigation or planting in the right-of-way. The City shall be held harmless if damage to irrigations systems or vegetation should occur within the right-of-way. 2. These agreements must be recorded in the name of a homeowner‟s association (along with documentation attesting to that association‟s existence), for subdivisions. 3. These agreements must be recorded in the property owner‟s name for all other types of projects. 4. Trees planted within right-of-way will not be counted toward the density requirement for a site unless approved by the city arborist and Public Works. 5. Prior to planting trees in right-of-way, a typical cross-section must be provided indicating the placement of the trees in relation to the curb, and underground utilities. Placement and species are subject to the approval of the city arborist and Director of Public Works. 6. Drawings for irrigation system within right-of-way must indicate the location of lines, heads, sprays radius, shut off valves, timers and a 24 hour emergency contact phone number. 7. The city shall have the right to plant, maintain, prune, and remove trees, shrubs, and plants within the right of way of all city streets, roads, and highways, in parks, around city facilities, and on other city grounds, as may be necessary or desirable to ensure public safety, to preserve tree health, and to maintain and increase tree canopy. 8. It shall be unlawful for any person to engage in any activity on private property that directly or indirectly adversely affects the health or condition of a tree on city property. If a person damages, destroys, or fails to protect a city tree, the city may require replacement and/or payment of a fine up to $1,000.00. C. BUFFERS 1. Required undisturbed buffers must remain undisturbed and actively protected for the duration of such permitted use for the site. Buffers must be replanted where sparsely vegetated or where disturbed for approved access and utility crossings. The buffers should be replanted to meet the following standards: c. Must provide a visual barrier. To accomplish this screening, the plant materials must be a minimum 5 feet in height at time of planting, moderately slow growing evergreen and have branching all the way to the ground. All buffer plant materials are subject to the city arborist or designated agent(s) approval. d. The number of planting rows for tree replacement in buffers is determined by the buffer width: Administrative Guidelines – Agriculture District -23- BUFFER WIDTH MINIMUM PLANTING ROWS < 20‟ 2 20‟ TO 30‟ 3 31‟ TO 50‟ 4 >50‟ 4 plus 1 row for each additional 15 feet e. Drainage within or through buffers is subject to the approval of the Community Development Department. f. Encroachment into buffers for the construction of retaining walls, footings, or wall supports, is not permitted unless otherwise specified in the conditions of rezoning. Encroachments into buffers shall require zoning modifications or variances as applicable. g. All buffers require a 10 foot improvement setback interior to the buffer. No grading is allowed in this improvement setback unless permission is obtained from the Director of Community Development. (Contact the city arborist for details). D. STATE WATER BUFFERS 1. The City of Milton Stream Protection Ordinance was adopted by the Milton City Council, requires that streams in all watersheds within the City of Milton shall require a minimum 50 foot undisturbed buffer on each side of the stream as measured from the top of bank. No disturbance within the 50 ft. buffer is allowed without a city issued variance. 2. An additional 25 foot non-impervious buffer setback shall be maintained adjacent to the undisturbed state water buffer in which all impervious surfaces shall be prohibited. No disturbance within the 25 ft. buffer is allowed without a state issued variance. 3. Land Disturbance within State Water Buffers is only permitted if a variance is granted. For information about how to apply for a variance, contact the Department of Community Development at 678-242- 2500. SECTION 10 MAINTENANCE RESPONSIBILITY A. The owner of the property and/or their agents, shall be responsible for the installation, preservation, and maintenance of all planting and physical features (installed or vegetated natural areas) required by Zoning Resolution, conditions of zoning, variance, or permitting and the Milton Tree Conservation Ordinance. All plant material shall be maintained in a healthy and growing condition. . B. Any dead, unhealthy, or missing trees, or trees disfigured by severe or excessive pruning, shall be replaced with vegetation that conforms to the standards of this ordinance and the approved site and /or subdivision plan. In the case of removal of existing original trees from required vegetation protection areas, the replacement requirements will be that which was shown on the approved plan. If no plan exists, area of disturbance must conform to requirements of this Ordinance or the Zoning Resolution. C. All required buffers, streetscapes, vehicular use areas, and other landscape areas shall be properly maintained to encourage good health and vigor Administrative Guidelines – Agriculture District -24- SECTION 11 Authority for Review The city arborist shall be responsible for reviewing all requests for tree permits submitted in accordance with the requirements specified herein. The city arborist shall have no obligation to review an application for a tree permit until all required information has been submitted and the applicable fee, if any has been paid. If any required fee or information has been omitted, the city Arborist shall notify the applicant of that fact. SECTION 12 STANDARDS FOR APPROVAL The city arborist shall review each application for a tree removal permit application for completeness in accordance with the procedures in the Tree Conservation Ordinance. The city arborist may approve, conditionally approve or deny any application for a tree removal permit in accordance with the criteria in the Tree Conservation Ordinance. When a complete application is filed, the city Arborist shall grant a tree permit with regard to a particular protected tree if any of the following is true: 1. The tree must be altered in order to install or maintain a utility line or utility service line; 2. The tree is located in a heavily wooded area and selective thinning is necessary to increase the likelihood of survival of the remaining trees; 3. The tree is diseased, damaged, or hazardous; 4. The tree, if left, is reasonably likely to impair the structural integrity of existing structures or improvements; 5. The tree is required to be removed by federal, state or local law, including an applicable regulation adopted by a federal, state, or local government agency. When a complete application is filed, the city arborist shall grant a tree permit if all required tree protection and replacement procedures have been followed and the application conforms to the Tree Preservation Plan. Notwithstanding any of the other requirements of these regulations, it shall be unlawful to remove a specimen tree without the express written permission of the city arborist or authorized agent(s). Administrative Standards have been established for the identification, preservation and protection of specimen trees. Administrative Guidelines – Agriculture District -25- APPENDICES Administrative Guidelines – Agriculture District -26- CONSTRUCTION APPENDIX A. Protecting Trees During Construction APPENDIX B. Warning – Tree Protection Zone Signage APPENDIX C Tunneling Under Root Zones APPENDIX D Grade Change Guidelines APPENDIX E. Additional Illustrations Administrative Guidelines – Agriculture District -27- Administrative Guidelines – Agriculture District -28- Administrative Guidelines – Agriculture District -29- Administrative Guidelines – Agriculture District -30- Administrative Guidelines – Agriculture District -31- Administrative Guidelines – Agriculture District -32- MAINTENANCE APPENDIX F. Maintenance Guidelines APPENDIX G. Tree Pruning Crimes APPENDIX H. Pruning Cuts APPENDIX I. Don‟t Top Trees APPENDIX J. Correct Use of Mulch Administrative Guidelines – Agriculture District -33- Administrative Guidelines – Agriculture District -34- Administrative Guidelines – Agriculture District -35- Administrative Guidelines – Agriculture District -36- Administrative Guidelines – Agriculture District -37- Administrative Guidelines – Agriculture District -38- PLAN SUBMITTAL APPENDIX K. Tree Conservation Plan (Sample) APPENDIX L. Details Sheet APPENDIX M. Check List for Landscape Drawing and Tree Conservation Plan (commercial) APPENDIX N. Check List for Tree Protection Plan (residential) Administrative Guidelines – Agriculture District -39- Administrative Guidelines – Agriculture District -40- Administrative Guidelines – Agriculture District -41- Administrative Guidelines – Agriculture District -42- Administrative Guidelines – Agriculture District -43- Administrative Guidelines – Agriculture District -44- Administrative Guidelines – Agriculture District -45- TREE LISTS APPENDIX O. 40 – 100 ft. Tree List APPENDIX P. 10 – 40 ft Tree List APPENDIX Q. Parking lot and street trees APPENDIX R. Evergreens for Undisturbed Buffers Administrative Guidelines – Agriculture District -46- Administrative Guidelines – Agriculture District -47- Administrative Guidelines – Agriculture District -48- Administrative Guidelines – Agriculture District -49- MISCELLANEOUS APPENDIX S. Extra Unit Value for Recompense Trees APPENDIX T. Multi Trunked Tree Calculator Administrative Guidelines – Agriculture District -50- Administrative Guidelines – Agriculture District -51- City of Milton 13000 Deerfield Parkway, Milton, Georgia 30004 1 To: Honorable Mayor and City Council Members From: Matt Marietta Date: Submitted on April 29, 2010 for the June 21st, 2010 Regular Council Meeting Agenda Item: Approval for the Removal of Billy Lovelace Hauling from the List of Approved Solid Waste Haulers for the City of Milton Due to Non-Compliance with the Ordinance City Manager’s Office Recommendation Approve the revocation of the non-exclusive solid waste management contract with Billy Lovelace Hauling due to repeated infractions of the solid waste ordinance, and continued non- compliance with its requirements despite notification from code enforcement and the police department. Discussion Billy Lovelace Hauling is currently on our approved haulers list. However, a review of our records indicate that the company has not paid the required infrastructure maintenance fee since June 2008. Additionally, code enforcement has received numerous complaints of shoddy equipment (improperly covered beds, etc) and vehicles/trailers abandoned at various places around the City. In addition, citizens have filed police reports regarding the professionalism and improper storage of hauling-related property at improper places and times (09-01845). The cumulative case of a less than professional operation as noted by citizen complaints and city observations constitute breach of the ordinance sufficient for removal from the list. The fact that Lovelace has not paid the infrastructure fee in nearly two years further solidifies the need for this action. In January 2010, I contacted all of the approved solid waste haulers, reiterated the need for compliance with the ordinance, and provided them with a copy of it (or advised them of the link from the City website). Although the phone call was made to the telephone number Lovelace was the only company that did not respond to my calls. Additionally, code enforcement provided a notice of violation in February 10, 2010 to their address of record. They have not responded to this either. Funding and Fiscal Impact Since they haven’t been paying the required fee anyway, there will be no financial impact. Concurrent Review Chris Lagerbloom, City Manager RESOULTION NO. STATE OF GEORGIA COUNTY OF FULTON A RESOLUTION REMOVING BILLY LOVELACE HAULING FROM THE LIST OF APPROVED HAULERS PURSUANT TO THE MILTON SOLID WASTE MANAGEMENT ORDINANCE The Mayor and Council of the city of Milton hereby resolves: SECTION 1. That the City of Milton has properly enacted an ordinance to regulate solid waste management within its corporate boundaries. SECTION 2. Billy Lovelace Hauling, one of the approved haulers, is in breach of several requirements of this ordinance. SECTION 3. Specifically, Billy Lovelace Hauling has failed in the following particulars: Failure to pay the required infrastructure maintenance fee since June 2008 (Section 46-70), Failure to coordinate with the city with respect to issues related to or affecting the company’s operation (Section 46-93.2.c), including three specific mailings and numerous telephone calls to the listed business number. SECTION 4. That in accord with the Milton Solid Waste Ordinance, Billy Lovelace Hauling has been provided written notice of these infractions and has been provided no less than 30 days to cure. SECTION 5. That Billy Lovelace Hauling has not cured the infractions within the requisite 30 day period. SECTION 6.That Billy Lovelace Hauling was provided no less than 20 days advance notice of this Council meeting, and was provided an opportunity to explain to the Council why the infractions occurred and why they were not promptly remedied. SECTION 7. That in spite of this opportunity to explain the infractions, no adequate explanation has been forthcoming and therefore the Council concludes that Billy Lovelace Hauling is responsible for the infractions and that at all times Billy Lovelace Hauling had the power, control and authority to prevent or cure the infractions. SECTION 3. It is thereby concluded that Billy Lovelace Hauling is removed from the list of approved haulers in the City of Milton and is no longer allowed to provide solid waste service within Milton’s corporate limits. BE IT RESOLVED, on this 21st day of June, 2010 at 6:00 pm by the Mayor and Council of the City of Milton, Georgia. _______________________________ Joe Lockwood, Mayor Attest: _______________________________ Sudie AM Gordon, Interim City Clerk (Seal) City of Milton 13000 Deerfield Parkway, Suite 107, Milton, Georgia 30004 1 To: Honorable Mayor and City Council Members From: Stacey Inglis, Finance Manager Date: Submitted on May 27, 2010 for June 21, 2010 City Council Meeting Agenda Item: Approval of the Issuance of an Alcohol Beverage License to Manor Golf Development, LLC City Manager’s Office Recommendation: Approve the issuance of an Alcohol Beverage License to Manor Golf Development, LLC for consumption of premises of wine, malt beverages, and distilled spirits. Background: City of Milton Ordinance Chapter 7 allows for the issuance of Alcohol Beverage Licenses to businesses that properly submit application for and meet all the legal requirements to hold such license. Discussion: Staff has processed the application for the following business and recommends issuance of the applicable license: Business Name: Manor Golf Development, LLC Owner(s) Name: Riverfront Management, Inc Business Address: 15952 Manor Club Dr Type of License to be Issued: Consumption on Premises – Wine, Malt Beverages, & Distilled Spirits Concurrent Review: Chris Lagerbloom, City Manager Deb Harrell, Chief of Police Lynn Tully, Director of Community Development City of Milton 13000 Deerfield Parkway, Suite 107 Milton, GA 30004 1 To: Honorable Mayor and City Council Members From: Lynn Tully, AICP, Community Development Director Date: May 5, 2010, Submitted for the June 21, 2010, City Council Regular Meeting for Public Hearing and Consideration of Adoption. Agenda Item: Text Amendment to add Article 18, “Historic Preservation” to the City of Milton Zoning Ordinance, RZ09-04 CMO (City Manager’s Office) Recommendation: The Mayor and City Council to hear and approve the attached text amendment, Article 18, “Historic Preservation” of the City of Milton Zoning Ordinance. Background: In 2007, a passionate group of residents presented to the Community Development Department a draft ordinance for the creation of a Historic Preservation Commission (HPC) to help preserve the sites catalogued by the Georgia Department of Natural Resources and Fulton County in a 1996 survey. The Mayor and City Council established the Historic Preservation Committee in December of 2008 to develop an ordinance, along with Staff, to preserve Milton‟s historic resources. After review by the City Attorney, Staff presented the Ordinance to the Mayor and City Council at the August 10, 2009 Work Session. At the meeting, there was extensive discussion about the Prior Use Incentive and how it would affect the potential sites and adjacent property‟s future land use. The majority of the Mayor and City Council requested that the Ordinance be reviewed by the Design Review Board and go before the Planning Commission for their review prior to the Mayor and City Council‟s vote on September 21, 2009. The Mayor and City Council deferred the item at the September 21st and October 19th meetings. The Planning Commission discussed the draft Ordinance, and made recommendations at two meetings-- on September 22 and a special called meeting on September 29. The discussions and recommendations occurred with four of the HPC members present at both meetings. Staff notes that the Planning Commission had specific legal questions for the City Attorney review; these were addressed. The Planning Commission reviewed the Ordinance on October 27th, and again on November 18th. The Planning Commission recommended that the Ordinance be forwarded to the Mayor and Council for the December 21st meeting. The item was administratively withdrawn from the agenda prior to the Council meeting to allow the HPC to review the Planning Commission changes. The HPC met on January 12, 2010, and discussed the changes suggested by the Planning Commission. The members indentified six areas of concern. They felt that these items should City of Milton 13000 Deerfield Parkway, Suite 107 Milton, GA 30004 2 be brought before the HPC for a vote to decide whether or not they should be revised or re- inserted into the final draft. Comments on the areas in question included the following: 1. Incentives/rewards—The Ordinance does not offer anything in the way of incentives. Members agreed that actual incentives should be created by the City Council. They suggested adding language to indicate that the HPC‟s powers would include making recommendations to the City Council for incentives, as necessary. 2. Penalties—Members did not like the tone of the Ordinance as revised. Penalties (with no incentives) make up a large portion of the revised Ordinance. Members agreed to leave the Penalties section, as suggested by the Planning Commission, unchanged. 3. Historic District—Members felt that including provisions for a Historic District is an important element of the Ordinance. Once enough structures in a certain area have been declared historic, the City should have the option of incorporating a Historic District. Members wanted to change language back to what was originally agreed to by the HPC. 4. Appointment/Terms—Members felt that part of this section is redundant. The following should be removed: “HPC members and ex-officio members shall serve terms as appointed by the Mayor and City Council.” 5. Property owner‟s approval—Members felt that the City Council should have the ability to nominate a property as Historic without the property owner‟s approval. This ability is supported by the State model. In particular, this language will provide protection for structures that the City feels should not be demolished. This language will be added back to the Ordinance, as written in the State Model Ordinance. Language about the appeals process and undue hardship for the property owner will also be added. Also, some of the HPC members were concerned that the language regarding the limitations on use in the Prior Use Incentive section was not strong enough. There was concern that this allowance would create spot zoning and open a property up for unlimited commercial uses. Members present felt that the City Council should at least have the option of considering this incentive. Unfortunately, a quorum was not present for this meeting, and the Committee was unable to vote on the changes. The HPC met again on the 9th of February, and reviewed the changes as incorporated by Staff. The HPC removed the Prior Use section and replaced it with a proposal for rezoning to a new „Historic‟ zoning district for properties that meet specific criteria. This rezoning option would follow the standard process for rezoning, as set forth in the City of Milton Zoning Ordinance. At the March 3rd meeting, the Historic Preservation Committee reviewed Staff‟s changes, and approved the final draft of the Ordinance. City of Milton 13000 Deerfield Parkway, Suite 107 Milton, GA 30004 3 Discussion: The HPC and Staff worked over several months to create the Historic Preservation Ordinance, which is a based on the State model ordinance. The Ordinance establishes the criteria and process for how a property and/or district may be designated as historic. The language and structure of the Ordinance is established by the Georgia Historic Preservation Act and regulated by the Georgia Historic Preservation Division. Once this Historic Preservation Ordinance is adopted, a local Historic Preservation Commission may be created by the Mayor and City Council. Originally, the HPC recommended including a Prior Use Incentive section, which was not included in the state model ordinance. The purpose of the Prior Use Incentive is to increase the potential for use of historic properties in the AG-1 zoning district that previously had a non- residential use, provided the historic structure was lawful during its prior operation. The benefit of this Prior Use Incentive was to make preservation more attractive to owners of a historic property because it provides flexibility and economic opportunities. At their meetings, the Design Review Board and the Planning Commission recommended the deletion of the Prior Use Incentive. (See the Planning Commission Version Approved and Minutes of 09/29/09 attached.) The HPC has since removed this section, and replaced it with an option for rezoning to a new „Historic‟ zoning district. The Ordinance will alter the authority of the existing Design Review Board (DRB) in the following manner: 1) Apply new historical design guidelines to ALL contributory structures including single-family residential. 2) Place authority to regulate contributory structures under jurisdiction of HPC which will be comprised of experts and enthusiasts. 3) The DRB will continue to review plans for non-contributory structures in the Overlay Districts. The Planning Commission recommended that one member of the DRB be selected by the DRB to serve as one of the three ex-officio members of the Historic Planning Commission. It was the Planning Commission‟s opinion that by having a DRB member involved it will provide additional support to the Historic Planning Commission. The HPC has adopted this suggestion. When the Historic Preservation Ordinance is adopted, the next step is for the Historic Preservation Commission to be appointed by the Mayor and City Council and for staff to prepare a new Historic Zoning District for amendment into the current Zoning Ordinance. Once the Historic Preservation Commission is created, they would develop the Historic District Design Guidelines, and conduct a public hearing for comments on the design guidelines. The Mayor and City Council would then approve the Design Guidelines and at that time the Historic Preservation Commission would begin the process of nominating properties/districts for historic designation. Please note that the recommendation brought forward for hearing and approval is the final version approved by the HPC on March 3, 2010 with amendments as directed by the City Attorney in consultation with the Community Development Director. The version recommended by the Planning Commission at its November 18, 2009 meeting is included in your materials along with the minutes from that meeting for your information and use. City of Milton 13000 Deerfield Parkway, Suite 107 Milton, GA 30004 4 Some minor amendments based on the comments heard at the last meeting have also been included in the recommended ordinance to alleviate any future issues with eligibility for state and federal grant funds. Alternatives: The Mayor and City Council may choose to approve, deny or defer the Text Amendment to add Article 18, “Historic Preservation” to the City of Milton Zoning Ordinance. Concurrent Review: Chris Lagerbloom, City Manager Ken Jarrard, City Attorney [Memo Historic Pres Art 18.060810] 1 ORDINANCE AN ORDINANCE TO CREATE ARTICLE 18 OF THE MILTON ZONING CODE; TO ESTABLISH A HISTORIC PRESERVATION COMMISSION IN THE CITY OF MILTON TO PROVIDE FOR DESIGNATION OF HISTORIC PROPERTIES; TO PROVIDE FOR ISSUANCE OF CERTIFICATES OF APPROPRIATENESS; TO PROVIDE FOR AN APPEALS PROCEDURE; TO REPEAL CONFLICTING ORDINANCES; AND FOR OTHER PURPOSES. BE IT ORDAINED BY THE MILTON CITY COUNCIL, OF MILTON, GEORGIA. Section I Purpose In support and furtherance of its findings and determination that the historical, cultural, and aesthetic heritage of the City of Milton, Georgia is among its most valued and important assets and that the preservation of this heritage is essential to the promotion of the health, prosperity, and general welfare of the people; In order to maintain historic structures and to protect and enhance local historical and aesthetic attractions to residents and tourists and thereby promote and stimulate business; In order to enhance the opportunities for federal or state tax benefits under relevant provisions of federal or state law; and In order to provide for designation, protection, preservation, and rehabilitation of historic properties and to participate in federal or state programs to do the same; The Milton City Council, Milton, Georgia hereby declares it to be the purpose and intent of this Ordinance to establish a uniform procedure for use in providing for the identification, protection, enhancement, perpetuation, and use of places, properties, sites, buildings, structures, objects, and landscape features having special historical, cultural, archeological, or aesthetic interest or value, in accordance with the provisions of the Ordinance. Section II Definitions A. “Application for Designation” – A formal request in writing in a form specified by the Historic Preservation Commission that the Historic Preservation Commission consider a property for possible designation as a historic property or historic district. 2 B. “Building” - Any structure with a roof, designed or built for the support, enclosure, shelter, or protection of persons, animals, chattels, or property of any kind. C. “Certificate of Appropriateness” – A document evidencing approval by the Historic Preservation Commission of an application to make a material change in the appearance of a designated historic property or of a property located within a designated historic district. D. “Designation” – A decision by the City of Milton to designate a property as a “historic property” or as a “historic district” and thereafter prohibit all material change in appearance of such property or within such district prior to the issuance of a certificate of appropriateness by the Historic Preservation Commission of the City of Milton. E. “Exterior Architectural Features” – The architectural style, general design, and general arrangement of the exterior of a building, structure, or object, including but not limited to the kind or texture of the building material and the type and style of all windows, doors, signs, and other appurtenant architectural fixtures, features, details, or elements relative to the foregoing. F. “Exterior Environmental Features” – All aspects of the landscape or the development or appearance of a site which affect the historical character of the property. G. “Historic District” – A geographically definable area, urban or rural, possessing a significant concentration, linkage, or continuity of sites, buildings, structures, works of art, or objects, or a combination thereof, which (1) have special character or special historical or esthetic intere st or value; (2) represent one or more periods or styles or architecture typical of one or more eras in the history of Milton, Fulton County, Georgia, or the Nation; and (3) cause such area, by reason of such factors, to constitute a visibly perceptible section of the city of Milton. A district may also comprise individual elements separated geographically but linked by association or history. A Historic District shall further mean an area designated by the Milton City Council as a Historic District pursuant to the criteria established in Section IV (B) of this Ordinance. H. “Historic Property” – An individual building, structure, site, or object designated by the Milton City Council as a Historic Property pursuant to the criteria established in Section IV (C) of this Ordinance. I. “Material Change in Appearance” – A change that will affect the exterior architectural or environmental features of a historic property or any building, structure, site, object, or landscape feature within a historic district, such as: 3 1. A reconstruction or alteration of the size, shape, or façade of a historic property, including but not limited to, relocation of any doors or windows or removal or alteration of any architectural features, details, or elements; 2. Demolition or relocation of a historic structure; 3. Commencement of excavation for construction purposes; 4. A change in the location or removal of advertising visible from the public right-of-way; or 5. The erection, alteration, restoration, or removal of any building or structure within a historic property or district, including but not limited to walls, fences, steps and pavements, or other appurtenant features, except exterior paint alterations. J. “Object” – A material thing of functional, aesthetic, cultural, historical, or scientific value that may be, by nature or design, movable yet related to a specific setting or environment. K. “Site” – The location of a significant event, a prehistoric or historical occupation or activity, or a building or structure, whether standing, ruined, or vanished where the location itself maintains historical or archeological value regardless of the value of any existing structure. L. “Structure” – A work of interdependent and inter-related parts in a definite pattern of organization. A man-made object; it may be large or small in scale. Section III Creation of a Historic Preservation Commission A. Creation of the Historic Preservation Commission. There is hereby created a commission whose title shall be “M ilton Historic Preservation Commission” (hereinafter (“HPC”). B. HPC Members: Numbers, Appointment, Terms, and Compensation. The HPC shall consist of seven (7) members appointed by the Milton City Council with each appointing one member whose term will be three (3) years, but shall be subject to reappointment for concurrent terms. All members shall be residents of the City of Milton and shall be persons who have demonstrated special interest, experience, or education in history, architectural history, or the preservation of historic resources. Each 4 appointee shall reside anywhere within the city and not be bound to a Councilperson‟s respective council district. One member of the Milton Design Review Board (“DRB”), as designated by the DRB, shall serve as an ex-officio member of the HPC. In addition, two (2) ex-officio members may be appointed to the HPC by majority vote of the HPC and will serve at the discretion of the HPC. These additional ex-officio members are not required to own property in the City limits, and do not need to be residents of the City of Milton, but have expressed interest in the surrounding communities and are regarded as valuable sources of information by consensus of the official members of the HPC. Ex-officio members of the HPC shall not have voting rights and shall not be counted for the purpose of determining whether a quorum of HPC members exists at any HPC meeting. To the extent an individual is available and willing to serve in the City of Milton, at least one (1) official, voting HPC member shall be appointed from among professionals in the disciplines of architecture, history, architectural history, planning, archeology, building construction, real property appraisal, or related professions. HPC members shall not receive a salary, although they may be reimbursed for expenses with the prior approval of the City Manager. C. Statement of the HPC‟s Powers. The HPC shall be authorized to: 1. Prepare and maintain an inventory of all property within the City of Milton having the potential for designation as historic; 2. Recommend to the Milton City Council specific districts, sites, buildings, structures, or objects to be designated by ordinance as a historic property or a historic district; 3. Consider for approval proposals/recommendations for possible rezoning of property to the Historic (“H”) zoning designation as provided for in Section IV(D)(2)(a), based on historic value to the community and otherwise in accord with the requirements of the Historic (“H”) zoning designation in the Milton Zoning Code. 4. Review applications for Certificates of Appropriateness, and grant or deny same in accordance with the provisions of this Ordinance; 5. Recommend to the Milton City Council that any designation of a historic property or historic district be revoked or removed; 5 6. Restore or preserve any historic properties acquired by the City of Milton, subject to funding availability and with the prior approval of the Milton City Council; 7. Promote the acquisition by the City of Milton of façade easements and conservation easements as appropriate, in accordance with the provisions of the Georgia Uniform Conservation Easement Act of 1992 (O.C.G.A. § 44-10.1 through 5); 8. Conduct educational programs on historic properties located within the City of Milton and on general historic preservation activities; 9. Make such investigations and studies of matters relating to historic preservation including consultation with historic preservation experts, as the Milton City Council or the HPC itself may, from time to time, deem necessary or appropriate for the purposes of preserving historic resources; 10. Research local, state, federal, or private funds for historic preservation, and make recommendations to the Milton City Council concerning the most appropriate use of any funds acquired; 11. Recommend to the Milton City Council possible historic resource incentive programs for their review; 12. Submit to the Historic Preservation Division of the Georgia Department of Natural Resources a list of designated historic properties or historic districts; 13. Perform historic preservation activities as the official agency of the Milton historic preservation program; 14. Retain persons with professional expertise to carry out specific tasks, as needed, subject to funding availability and prior approval by the Milton City Council; 15. Receive donations, grants, funds, or gifts of historic property and acquire and sell historic properties provided the Milton City Council has provided prior consent to do so and all State and local laws regarding local government property disposition are followed . The receipt of donations, grants, funds, or gifts shall be accepted only if such acceptance does not violate the City of Milton Code of Ethics ; 16. Review and make comments to the Historic Preservation Division of the Georgia Department of Natural Resources concerning the nomination of properties within its jurisdiction to the National Register of Historic Places; 6 17. Participate in private, state, and federal historic preservation programs and with the approval of the Milton City Council enter into contractual agreements to do the same; and 18. Recommend to the Milton City Council such sites, buildings, structures, or objects that shall be considered a “Historical Site of Interest” and by Milton City Council resolution shall adopt such designation. The Milton City Council will provide and appropriate historical marker to be displayed at the designated site. D. HPC‟s Power to Adopt Rules and Standards. The HPC shall adopt rules and standards for the transaction of business and for consideration of applications for designations and Certificates of Appropriateness, such as By-Laws and design guidelines not inconsistent with this Ordinance. The HPC shall have the flexibility to adopt such rules and standards without amendment to this Ordinance. The HPC shall provide for the time and place of regular meetings and a method for the calling of special meetings, consistent with the Georgia Open Meetings Act. The HPC shall select such officers as it deems appropriate from among its members. A quorum shall consist of a majority of voting members. All rules shall be ratified by the Milton City Council before becoming effective. E. Conflict of Interest. The HPC shall be subject to all conflict of interest laws set forth in the Georgia statutes and in the City of Milton Charter. F. HPC‟s Authority to Receive Funding from Various Sources. The HPC shall have the authority to accept donations and shall ensure that these funds do not displace ap propriated governmental funds. The HPC shall be subject to and comply with the Milton Ethics Code. G. Records of HPC Meetings. A public record shall be kept of the HPC‟s resolutions, proceedings, and actions. Reports to the Milton City Council will also be made on a regular and timely basis. Section IV Recommendation and Designation of Historic Properties A. Preliminary Research by HPC. 1. HPC‟s Mandate to Conduct a Survey of Local Historical Resources: The HPC shall compile and collect information on historic resources 7 with the City of Milton. Records shall be stored in the City of Milto n storage area. 2. HPC‟s Power to Recommend Districts and Buildings to the Milton City Council for Designation: The HPC shall present to the Milton City Council recommendations for historic districts and properties. The HPC shall consider for approval proposals/recommendations for possible rezoning of property to the Historic (“H”) zoning designation as provided for in Section IV(D)(2)(a), based on historic value to the community and otherwise in accord with the requirements of the Historic (“H”) zoning designation in the Milton Zoning Code. 3. HPC‟s Documentation of Proposed Designation: Prior to the HPC‟s recommendation to the Milton City Council of a property or district for historic designation, the HPC shall prepare a Report for Nomination consisting of: a. A detailed physical description of the proposed historic property or historic district; and, b. A statement of the historical, cultural, architectural, and/or aesthetic significance of the proposed historic property or historic district; and c. A map showing district boundaries and classification (i.e., contributing, non-contributing) of individual properties therein, or showing boundaries of individual properties; and d. A statement justifying the boundaries of the proposed property or district; and e. Representative photographs of the proposed property or district. B. Designation of Historic District. 1. Criteria for Selection of Historic Districts: A historic district is a geographically definable area, urban or rural, possessing a significant concentration, linkage, or continuity of sites, buildings, structures, works of art, or objects, or a combination thereof, which (1) have special character or special historical or esthetic interest or value; (2) represent one or more periods or styles or architecture typical of one or more eras in the history of Milton, the State of Georgia, or the Nation; and (3) cause such area, by reason of such factors, to constitute a visibly perceptible section of the city of Milton. A district may also comprise individual elements separated geographically but linked by association or history. A Historic District is deemed worthy of preservation by reason of value to the Nation, the State of Georgia, or the City of Milton for one or more of the following reasons: 8 a. It possesses an outstanding example of structures representative of its era; or b. It contains the few remaining examples of a past architectural style or type over fifty (50) years old; or c. It is a place associated with an event or persons of historic or cultural significance to the City of Milton, State of Georgia, or the region; or d. It is the site of natural, archeological, or aesthetic interest that contributes to the cultural or historical development and heritage of the municipality, county, State, or region. 2. Boundaries of a Historic District: Boundaries of a Historic District shall be included in the separate ordinances designating such districts and shall be shown on the Official Zoning Map of the City of Milton, Georgia. 3. Evaluation of Properties with Historic Districts: Individual properties within historic districts shall be classified as: a. Contributing (contributes to the district); or b. Non-Contributing (Does not contribute to the district as provided for in IV (B)(1) of this Ordinance). C. Designation of Historic Property. 1. Criteria for Selection of Historic Properties: An individual building, structure, site or object deemed worthy of preservation by reason of value to the Nation, the State of Georgia, or the City of M ilton for one or more of the following reasons: a. It is an outstanding example of a structure representative of its era; or b. It is one of the few remaining examples of a past architectural style or type over fifty (50) years old; or c. It is a place associated with an event or persons of historic or cultural significance to the City of Milton, State of Georgia, or the region; or d. It is the site of natural, archeological, or aesthetic interest that contributes to the cultural or historical development and heritage of the municipality, county, State, or region. 2. No building, structure, site or object shall be eligible to be designated as a Historic Property unless it existed on the same property since the incorporation of the City of Milton. 9 D. „Historic‟ (H) Zoning Designation 1. Purpose: This base zoning designation allows for a historic property to be used, protected, renovated and preserved. It may allow a specific, previous use to continue in a structure where that use would be considered non - conforming as defined in the Milton Zoning Code. Creation of the Historic (“H”) zoning designation shall be in accord with the ordinary procedures and processes for zoning district creation in the City of Milton, and the final decision regarding the components and uses authorized by and in the Historic (“H”) zoning district shall remain exclusively with the Milton City Council. 2. Approval process: a. Designation is proposed per Section IV (E)(1) followed by formal approval of the HPC, except that when the proposal originates in the HPC or the Milton City Council no additional HPC approval shall be required prior to commencement of the formal zoning process; b. The property owner shall follow the process for rezoning as established by Article 28 of the Zoning Ordinance. E. Requirement for Adopting an Ordinance for the Designation of Historic Districts, Historic Properties, and Historic Zoning. 1. Application for Designation of Historic Districts, Properties or Historic Zoning – Designations may be proposed by the Milton City Council, via majority vote, or by the HPC via a majority of that Commission, or: a. for Historic Districts – a historical society, neighborhood association, or the owners of a group of properties; b. for Historic Properties – a historical society, neighborhood association, or the property owner; c. for a Historic Zoning Designation – a historical society, neighborhood association, or the property owner. 2. Required Components of a Designation Ordinance: Any ordinance designating any property or district as historic shall: a. list each property in a proposed historic district or describe the proposed individual historic property; b. set forth the name(s) of the owner(s) of the designated property or properties; c. require that a Certificate of Appropriateness be obtained from the HPC prior to any material change in appearance of the designated property; and 10 d. require that the property or district be shown on the Official Zoning Map of the City of Milton, Georgia and kept as a public record to provide notice of such designation. 3. Require Public Hearings: The HPC and the Milton City Council shall hold a joint public hearing at a special or regular HPC meeting on any proposed ordinance for the designation of any historic district or property. Notice of the hearing shall be published in at least three (3) consecutive issues of the newspaper utilized by Milton as the legal organ, and written notice of the hearing shall be mailed not less than ten (10) or more than twenty (20) days prior to the da te set for the public hearing. A notice sent via the United States mail to the last-known owner of the property shown on the City of Milton tax digest and a notice sent via attention of the occupant shall constitute legal notification to the owner and occu pant under this Ordinance. 4. Notification of Historic Preservation Division: No less than thirty (30) days prior to making a recommendation on any ordinance designating a property or district as historic, the HPC must submit the report, required in Section IV (A)(3), to the Historic Preservation Division of the Department of Natural Resources. 5. Recommendations on Proposed Designations: A recommendation to affirm, modify or withdraw the proposed Ordinance for Designation shall be made by the HPC within fifteen (15) days following the joint Public Hearing and shall be in the form of a resolution to the Milton City Council. 6. Milton City Council Action on the HPC‟s Recommendation: Following receipt of the HPC recommendation, the Milton City Council may adopt the Ordinance for Designation as proposed, may adopt the ordinance with any amendments it deems necessary, or reject the ordinance. 7. Notification of Adoption of Ordinance for Designation: Within thirty (30) days following the adoption of the Ordinance for Designation by the Milton City Council, the owners and occupants of each designated historic property, and the owner(s) and occupants of each building, structure, or site located within a designated historic district, shall be given written notification of such designation by the Milton City Council, which notice shall apprise said owners and occupants of the necessity of obtaining a Certificate of Appropriateness prior to undertaking any material change in appearance of the historic property designated or within the historic district designated. A notice sent via the United States mail to the last-known owner of the property shown on the City of Milton tax digest and a notice sent via United States mail to the address of the 11 property to the attention of the occupant shall constitute legal notification to the owner and occupant under this Ordinance. 8. Notification of Other Agencies Regarding Designation: The HPC shall notify all necessary agencies within the City of Milton of the Ordinance for Designation. 9. Moratorium on Applications for Alteration or Demolition While Ordinance for Designation is pending: If an Ordinance for Designation is being considered, the HPC shall notify the permitting division of the Community Development Department. No permit of any kind shall be issued for work which would constitute a material change in the appearance of a structure, site, or landscaping within the designated area until the proposed Ordinance is enacted or rejected by the City Council. The HPC must recommend via resolution an Ordinance for Designation to the City Council within 60 days of the permitting division denying a building permit based on the moratorium. Section V Application to HPC for Certificate of Appropriateness A. Approval of Material Change in Appearance Involving Historic Properties. After the designation by ordinance of a historic property or of a historic district, no material change in the appearance of such historic property, or of a contributing or non-contributing building, structure, site or object within such historic district shall occur or be permitted to be made by the owner or occupant thereof unless or until the application and approval of a Certificate of Appropriateness. Certificates of Appropriateness for material changes in historic properties and material changes to contributing buildings, structures, sites, or objects in historic districts shall be issued by the HPC in accord with the process set forth below. A Certificate of Appropriateness for non-contributing buildings, structures, sites or objects within a historic district shall be considered by the DRB after a public hearing and otherwise in accord with ordinary and normal DRB processes and procedures. A Building Permit shall not be issued without a Certificate of Appropriateness. A Certificate of Appropriateness shall be required before construction can begin even in cases where a building permit is not required. B. Submission of Plans to HPC. An Application for a Certificate of Appropriateness shall be accompanied by drawings, photographs, plans and documentation required by the HPC. C. Interior Alterations. 12 In its review of applications for Certificates of Appropriateness the HPC shall not consider interior arrangement or use having no effect on exte rior architectural features. D. Technical Advice. The HPC shall have the power to seek technical advice from outside its members on any application. E. Public Hearings on Applications for Certificates of Appropriateness , Notices, and Right to be Heard. The HPC shall hold a public hearing at which each proposed Certificate of Appropriateness is discussed. Notice of the hearing shall be published in the newspaper utilized by Milton as the legal organ and written notice of the hearing shall be made by th e HPC to all owners and occupants of the subject property. The written and published notice shall be provided in the same manner and time frame as notices as required by the Georgia Zoning Procedures Law. The HPC shall provide the property owner and/or applicant an opportunity to be heard at the Certificate of Appropriateness hearing. F. Acceptable HPC Response to Applications for Certificates of Appropriateness. HPC Action: The HPC may (i) approve the application for a Certificate of Appropriateness as proposed; (ii) approve the Certificate of Appropriateness with any modifications it deems necessary ; or (iii) reject it. 1. The HPC shall approve the application and issue a Certificate of Appropriateness if it finds that the proposed material change(s) in the appearance would not have a substantial adverse effect on the aesthetic, historic, or architectural significance and value of the historic property or the historic district. In making this determination, the HPC shall consider, in addition to any oth er pertinent factors, the following criteria: a. Reconstruction, Alteration, New Construction or Renovation: Whether the proposed actions conform in design, scale, building material, setback and site features and to the United States Secretary of the Interior‟s Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings. b. Relocation: 1. The historic character and aesthetic interest of the building, structure, or object contributes to its present setting; 13 2. Whether there are definite plans for the area to be vacated and what the effect of those plans on the character of the surrounding area will be; 3. Whether the building, structure, or object can be moved without significant damage to its physical integrity; 4. Whether the proposed relocation area is compatible with the historical and architectural character of the building, structure, site, or object. c. Demolition: 1. The historic, scenic, or architectural significance of the building, structure, site, or object; 2. The importance of the building, structure, site, or object to the ambiance of the area; 3. The difficulty or impossibility of reproducing such a building, structure, site, or object because of its design, texture, material, detail, or unique location; 4. Whether the building, structure, site, or object is one of the last remaining examples of its kind in the neighborhood or the City; 5. Whether there are definite plans for use of the property if the proposed demolition is carried out, and what the effect of those plans on the character of the surrounding area would be; 6. Whether reasonable measures can be taken to save the building, structure, site, or object from collapse; 7. Whether the building, structure, site, or object is capable of earning reasonable economic return on its value. G. Undue Hardship. When, by reason of unusual circumstances, the strict application of any provision of the Ordinance would result in the exceptional practical difficulty or undue economic hardship upon any owner of a specific property, the Commission, in passing upon applications, shall have the power to vary or modify strict provisions, so as to relieve such difficulty or hardship; provided such variances, modifications, interpretations shall remain in harmony with the general purpose and intent of said provisions, so that the architectural or historical integrity, or character of the property, shall be conserved and substantial justice done. In granting variances, the commission may impose such reasonable and additional stipulations and conditions as will, in its 14 judgment, best fulfill the purpose of this Ordinance. An undue hardship shall not be a situation of the person‟s own making. H. Deadline for Approval or Rejection of Application for Certificate of Appropriateness. 1. The HPC shall approve or reject an application for a Certificate of Appropriateness within forty-five (45) days after the filing thereof by the owner or occupant of a historic property, building, structure or site. Evidence of approval shall be by a Certificate of Appropriateness issued by the HPC. Notice of the issuance or denial of a Certificate of Appropriateness shall be sent by United States certified mail to the applicant and all other persons who have requested such notice in writing filed with the HPC. 2. Should the HPC fail to approve or reject an Application for Certificate of Appropriateness within forty-five (45) days the application shall be deemed automatically approved. I. Necessary Action to be Taken by HPC upon Rejection of Application for Certificate of Appropriateness. 1. In the event the HPC rejects an application, it shall state its reasons for doing so, and shall transmit a record of such actions and reasons, in writing, to the applicant. The HPC may suggest alternative courses of action it thinks proper if it disapproves of the application submitted. The applicant, if he or she so desires, may make modifications to the plans and may resubmit the application at any time after making said modifications. 2. In cases where the application covers a material change in the appearance of a structure which would require the issuance of a building permit, the rejection of the application for a Certificate of Appropriateness by the HPC shall be binding upon the building inspector or other administrative officer charged with issuing building permits and, in such a case, no building permit shall be issued. J. Requirement of Conformance with Certificate of Appropriateness. 1. All work performed pursuant to an issued Certificate of Appropriateness shall conform to the requirements of such certificate. In the event work is performed not in accordance with such certificate, the HPC may request that the City obtain a cease and desist order from the appropriate tribunal and all work shall cease. 2. The Milton City Council may, of its own initiative or at the request of the HPC, initiate any appropriate action or proceeding in a court of competent jurisdiction to prevent any material change in appearance of a designated historic property, except those changes 15 made in compliance with the provisions of this ordinance or to prevent any illegal act or conduct with respect to such historic property. K. Certificate of Appropriateness Void if Construction not Commenced . 1. A Certificate of Appropriateness shall become void unless construction has commenced within six (6) months of date of issuance. 2. A Certificate of Appropriateness shall expire after eighteen (18) months unless said Certificate is renewed. A Certificate may be renewed for a single eighteen (18) month period. A renewal must be sought prior to the expiration of the original Certificate. L. Recording an Application for Certificate of Appropriateness. The HPC shall keep a public record of all applications for Certificate of Appropriateness, and of all the HPC‟s proceedings in connection with said application. These records shall be maintained at City Hall. M. Acquisition of Property. The HPC may, where such action is authorized by the Milton City Council and is reasonably necessary or appropriate for the preservation of a historic property, enter into negotiations with the owner for the acquisition by gift, purchase, exchange, or otherwise, to the property or any interest therein. If property is conveyed based upon the efforts of the HPC, the property interest shall be conveyed in the name of the City of Milton, Georgia. N. Appeals. Any person adversely affected by any determination made by the HPC relative to the issuance or denial of a Certificate of Appropriateness may appeal such determination to the Milton City Council. Any such appeal must be filed with the Milton City Council within fifteen (15) days after the issuance of the determination pursuant to Section V (G)(1) of this Ordinance. The Milton City Council may approve, modify, or reject the determination made by the HPC, if the governing body finds that the HPC abused its discretion in reaching its decision. Appeals from decisions of the Milton City Council may be taken to the Superior Court of Fulton County via a writ of certiorari. Section VI Maintenance of Historic Properties and Building and Zoning Code Provision 16 A. Ordinary Maintenance or Repair. Ordinary maintenance or repair of any exterior architectural or environmental feature in or on a historic property to correct deterioration, decay, or to sustain the existing form, and that does not involve a material change in design, material, or outer appearance thereof, does not require a Certificate of Appropriateness. B. Failure to Provide Ordinary Maintenance or Repair. Property owners of historic properties or properties within historic districts shall not allow their buildings to deteriorate by failing to provide ordinary maintenance or repair. The HPC shall be charged with the following responsibilities regarding deterioration by neglect: 1. The HPC shall monitor the condition of historic properties and existing buildings in historic districts to determine if they are being allowed to deteriorate by-neglect. Such conditions as broken windows, doors and openings which allow the elements and vermin to enter, and the deterioration of a building‟s structural system shall constitute failure to provide ordinary maintenance or repair. 2. In the event the HPC determines a failure to provide ordinary maintenance or repair, the HPC will notify the owner of the property and set forth the steps which need to be taken to remedy the situation. The owner of such property will have thirty (30) days in which to do this. A building permit may be required to accomplish the necessary remedial measures 3. In the event that the condition is not remedied in thirty (30) days, the owner shall be sanctioned as provided in Section VII of this Ordinance and, upon approval of the Milton City Council, the HPC may perform such maintenance or repair as is necessary to prevent deterioration by neglect. The owner of the property shall be liable for the cost of such maintenance and repair performed by the HPC and shall reimburse the City of Milton for same. In the event reimbursement does not occur, the Milton City Council shall have the right to recover same using all available legal means, including the placement of liens on the property in accordance with law. C. Affirmation of Existing Building and Zoning Codes. Nothing in this Ordinance shall be construed as to exempt property owners from complying with existing City or County building and zoning codes . Section VII Penalty Provisions 17 A person, firm, corporation or other entity commits an offense if he/she/it violates this Ordinance. Each day the offense continues constitutes a separate offense. The following penalties, which are nonexclusive, and the exercise of one or more of which shall not preclude exercise of the others, shall be imposed on those persons or entities found to have violated this ordinance: A. The same penalties as set forth in the Zoning Ordinance of the City for all violations of requirements set forth in the said Zoning Ordinance; or B. The penalties set forth in Chapter 12 of the Code of Ordinances of the City for non-zoning violations. C. Restrictions on future development. If a historic property is demolished or relocated without a Certificate of Appropriateness, or in the event the plans are changed for the property from which the resource was removed without approval of the changed plans by the HPC, then the following restrictions , in addition to any other penalties or remedies set forth in this Ordinance, shall be applicable to the site where the structure or property was formerly located: 1. No building or other permits will be issued for construction on the site, with the exception of a permit to restore such structure or property after obtaining a Certificate of Appropriateness, for a period of five (5) years after the date of such demolition or removal. 2. No permits shall be issued by the City for any curb cuts on the site for a period of five (5) years from and after the date of such demolition or removal. 3. No parking lot for vehicles shall be operated whether for remuneration or not on the site for a period of five (5) years from and after the date of such demolition and removal. 4. The owner of the site shall maintain the site in a clean and orderly state and shall properly maintain all existing trees and landscaping on the site. When these restrictions become applicable to a particular site, the building official shall cause to be filed a verified notice thereof in the Real Property Records of Fulton County and such restrictions shall then be binding on future owners of the property. D. Civil Action. As an additional remedy in addition to the penalties stated above, the City Attorney for the City of Milton or his or her designee shall have the power to take all necessary civil action to enforce the provisions hereof and to request appropriate legal or equitable remedies or relief. Section VIII Severability 18 In the event that any section, subsection, sentence, clause, or phrase of this Ordinance shall be declared or adjudged invalid or unconstitutional, such adjudication shall in no manner affect the other sections, sentences, clauses, or phrases of this Ordinance, which shall remain in full force and effect, as if the section, subsection, sentence, clause, or phrase so declared or adjudged invalid or unconstitutional were not originally a part thereof. 19 Section IX Repealer In the event the provisions of this Ordinance are in conflict with the provisions of any other City of Milton Ordinance, the provisions of this Ordinance shall prevail. Section X Effective Date This Ordinance shall become effective on _____________. THEREFORE BE IT RESOLVED, that the Milton City Council does hereby ordain, resolve and enact the foregoing Ordinance for the City of Milton, Georgia , the public health, safety and welfare demanding it. Adopted this __________________. Implementation: ____________________. APPROVED: MILTON CITY COUNCIL BY: _____________________ MAYOR ATTEST: ______________ [HPC - FINAL.legal & PH comments.060910] City of Milton Deerfield Professional Centre 13000 Deerfield Parkway Building 100, Suite 107 C Milton, GA 30004 1 PLANNING COMMISSION ACTION MINUTES Wednesday, November 18, 2009, 7:00 pm 1. Invocation - Suspended 2. Pledge of Allegiance – Led by Mykola Melnykov from Boy Scout Troup #580 3. Call to Order – The meeting was called to order at 7:08 Members Present: Paul Moore Fred Edwards Jennifer Fletcher Joe Creamer George Ragsdale Members Absent: Curtis Mills Cary Schlenke 4. Public Comment – There was no Public Comment. A motion was made by Fred Edwards and seconded by Joe Creamer to close Public Comment. The motion passed unanimously 5-0. 5. Approval of Action Minutes – September 22, 2009 Meeting A motion was made by George Ragsdale and seconded by Fred Edwards to APPROVE the Action Minutes of September 22, 2009 based on the change to include the hand vote to delete references to the Prior Use Recognition. The motion passed unanimously 5-0. 6. Approval of Action Minutes – September 29, 2009 Special Called Meeting A motion was made by George Ragsdale and seconded by Joe Creamer to DEFER the item based on the fact that Jennifer Fletcher and Fred Edwards were not in attendance for the September 29, 2009 meeting. The motion passed unanimously 5-0. 7. Approval of Action Minutes – October 27, 2009 Meeting A motion was made by George Ragsdale and seconded by Joe Creamer to DEFER the item based on the fact that Jennifer Fletcher, Joe Creamer and George Ragsdale were not in attendance for the October 27, 2009 meeting. The motion passed unanimously 5-0. City of Milton Deerfield Professional Centre 13000 Deerfield Parkway Building 100, Suite 107 C Milton, GA 30004 2 8. RZ09-04 – Text Amendment to the Zoning Ordinance – To add Article 13, Historic Preservation – This item was deferred by the Planning Commission on August 25, 2009, Deferred by the Mayor and City Council at the September 21, 2009 and October 19, 2009 to allow the Planning Commission to continue the review. It is scheduled to go back to the Mayor and City Council on December 21, 2009. The Planning Commission reviewed the document and had minor corrections and changes. There was further discussion regarding Section VII, Penalty Provisions whether the penalties were significant enough to deter violations to the Ordinance. It was decided that the present regulations would be a significant penalty for violations. Paul Moore stated that after the Historic Preservation Commission is established, it should find ways to incentivize property owners t o participate in the designation of their property. A motion was made by George Ragsdale and seconded by Paul Moore to forward the Historic Preservation Ordinance to the Mayor and City Council as recommended by the Planning Commission. The motion passed unanimously 5-0. 9. Courtesy review of an Ordinance Regulating the location, placement, and leasing of wireless telecommunications facilities. A motion was made by George Ragsdale and seconded by Paul Moore to recommend to the City Council that the regulation, location, placement and leasing of wireless telecommunications facilities remain in the Zoning Ordinance and not be removed from the purview of the Planning Commission, Board of Zoning Appeals and the City Design Review Board. The motion passed unanimously 5-0. 10. Adjourn A motion was made by George Ragsdale and seconded by Joe Creamer to adjourn the meeting. The motion passed unanimously 5-0. Time of adjournment was 8:37 p.m. ______________________________________ Date Approved ______________________________________ Paul Moore, Chairperson City of Milton Deerfield Professional Centre 13000 Deerfield Parkway Building 100, Suite 107 C Milton, GA 30004 1 SPECIAL CALLED MEETING PLANNING COMMISSION ACTION MINUTES Tuesday, September 29, 2009, 7:00 pm City Council Chambers 13000 Deerfield Parkway Building 100 1. Pledge of Allegiance 2. Call to Order The meeting was called to order at 7:08 p.m. Members Present: Joe Creamer Curtis Mills – Left prior to the adjournment Cary Schlenke Paul Moore – Chairperson George Ragsdale Members Absent: Jennifer Fletcher Fred Edwards 3. RZ09-04 – Text Amendment to the Zoning Ordinance – To add Article 13, Historic Preservation – Continue to review and make a recommendation to the Mayor and City Council . The Planning Commission reviewed the document and recommended various changes and edits. It was concluded that there were sections of the ordinance that still needed work and questions for the City Attorney. The Planning Commission decided to forward the document with the edits to the Council Work Session on October 12, 2009. 4. Adjourn A motion was made by Joe Creamer and seconded by Cary Schlenke to adjourn the meeting. The motion passed unanimously 4-0. Time of adjournment was 10:10 p.m. __________________________ Date Approved __________________________ Paul Moore, Chairperson PLANNING COMMISSION APPROVED VERSION NOVEMBER 18, 2009 1 RZ09-04 – PC Appoved November 18, 2009 ARTICLE 13 HISTORIC PRESERVATION Section I Purpose In support and furtherance of its findings and determination that the historical, cultural, and aesthetic heritage of the City of Milton, Georgia is among its most valued and important assets and that the preservation of this heritage is essential to the promotion of the health, prosperity, and general welfare of the people; In order to maintain historic structures and to protect and enhance local historical and aesthetic attractions to residents and tourists and thereby promote and stimulate business; In order to enhance the opportunities for federal or state tax benefits under relevant provisions of federal or state law; and In order to provide for designation, protection, preservation, and rehabilitatio n of historic properties and to participate in federal or state programs to do the same; The Milton City Council, Milton, Georgia hereby declares it to be the purpose and intent of this Ordinance to establish a uniform procedure for use in providing for th e identification, protection, enhancement, perpetuation, and use of places, properties, sites, buildings, structures, objects, and landscape features having special historical, cultural, archeological, or aesthetic interest or value, in accordance with the provisions of the Ordinance. Section II Definitions A. “Application for Designation” – A formal request in writing in a form specified by the Historic Preservation Commission that the Historic Preservation Commission consider a property for possible designation as a historic property. B. “Building” - Any structure with a roof, designed or built for the support, enclosure, shelter, or protection of persons, animals, chattels, or property of any kind. C. “Certificate of Appropriateness” – A document evidencing approval by the Historic Preservation Commission of an application to make a material change in the appearance of a designated historic property. D. “Designation” – A decision by the City of Milton to designate a property as a “historic property” and thereafter prohibit all material change in appearance of such property prior to the issuance of a Certificate of Appropriateness by the Historic Preservation Commission of the City of Milton. PLANNING COMMISSION APPROVED VERSION NOVEMBER 18, 2009 2 RZ09-04 – PC Appoved November 18, 2009 E. “Exterior Architectural Features” – The architectural style, general design, and general arrangement of the exterior of a building, structure, or object, including but not limited to the kind or texture of the building material and the type and style of all windows, doors, signs, and other appurtenant architectural fixtures, features, details, or elements relative to the foregoing. F. “Exterior Environmental Features” – All aspects of the landscape or the development of a site which affect the historical character of the property. G. “Historic Property” – An individual building, structure, site, or object designated by the Milton City Council as a Historic Property pursuant to the criteria established in Section IV B 1. of this Ordinance. H. “Material Change in Appearance” – A change that will affect the exterior architectural or environmental features of any building, structure, site, object, or landscape feature such as: 1. A reconstruction or alteration of the size, shape, or façade of a historic property, including but not limited to, relocation of any doors or windows or removal or alteration of any architectural features, details, or elements; 2. Demolition or relocation of a historic structure; 3. Commencement of excavation for construction or renovation purposes as well as the destruction or alteration of any landscape features; 4. A change in the location or removal of advertising ; or 5. The erection, alteration, restoration, or removal of any building or structure including, but not limited to, walls, fences, steps and pavements, or other appurtenant features. I. “Object” – A material thing of functional, aesthetic, cultural, historical, or scientific value that may be, by nature or design, movable yet related to a specific setting or environment. J. “Site” – The location of a significant event, a prehistoric or historical occupation or activity, or a building or structure, whether standing, ruined, or vanished where the location itself maintains historical or archeological value regardless of the value of any existing structure. K. “Structure” – A work made up of interdependent and inter-related parts in a definite pattern of organization. A work constructed by man, it may be large or small in scale. PLANNING COMMISSION APPROVED VERSION NOVEMBER 18, 2009 3 RZ09-04 – PC Appoved November 18, 2009 Section III Creation of a Historic Preservation Commission A. Creation of the Historic Preservation Commission. There is hereby created a commission whose title shall be “Milton Historic Preservation Commission” (hereinafter (“HPC”). B. HPC Members: Numbers, Appointment, Terms, and Compensation. The HPC shall consist of seven (7) members appointed by the Mayor and City Council with each appointing one member whose term will be concurrent with the appointing Council member’s term. All members shall be residents of the City of Milton and shall be persons who have demonstrated special interest, experience, or education in history, architectural history, or the preservation of historic resources. Each appointee shall reside anywhere within the city and not be bound to a Councilperson’s respective council district. In addition, two (2) ex-officio members may be recommended by the HPC and, if ratified by the City Council, would thereafter serve at the discretion of the HPC. These ex-officio members do not need to own property in the city limits, and do not need to be residents of the City of Milton, but have expressed interest in the surrounding communities and are regarded as valuable sources of information by consensus of the official members of the HPC. An additional ex-officio member of the HPC shall be a member of the City Design Review Board and shall be appointed to the HPC by the City Design Review Board. Ex-officio members of the HPC shall not have voting rights, shall not hold office in the HPC, and shall not be counted for the purpose of determining whether a quorum of HPC members exists at any HPC meeting. To the extent available in the City of Milton, at least one (1) HPC member shall be appointed from among professionals in the disciplines of architecture, history, architectural history, planning, archeology, building construction, real property appraisal, or related professions. HPC members and ex-officio members shall serve terms as appointed by the Mayor and City Council. HPC members shall not receive a salary, although they may be reimbursed for expenses with the prior-approval of the Milton City Council. C. Statement of the HPC’s Powers. The HPC shall be authorized to: 1. Prepare and maintain an inventory of all property within the City of Milton having the potential for designation as historic property; 2. Recommend to the Milton City Council specific sites, buildings, structures, or objects to be designated by ordinance as a historic property; PLANNING COMMISSION APPROVED VERSION NOVEMBER 18, 2009 4 RZ09-04 – PC Appoved November 18, 2009 3. Review applications for Certificates of Appropriateness, and grant or deny same in accordance with the provisions of this Ordinance; 4. Recommend to the Milton City Council that the designation of any site, building, structure, or object as a historic property be revoked or removed; 5. Restore or preserve any historic properties acquired by the City of Milton; 6. Encourage the acquisition by the City of Milton of façade easements and conservation easements as appropriate, in accordance with the provisions of the Georgia Uniform Conservation Easement Act of 1992 (O.C.G.A. § 44-10.1 through 5); 7. Conduct educational programs on historic properties located within the City of Milton and on general historic preservation activities; 8. Make such investigations and studies of matters relating to historic preservation, including consultation with historic preservation experts, as the Milton City Council or the HPC itself may, from time to time, deem necessary or appropriate for the purposes of preserving historic resources; 9. Seek local, state, federal, or private funds for historic preservation, and make recommendations to the Milton City Council concerning the most appropriate use of any funds acquired; 10. Submit to the Historic Preservation Division of the Georgia Department of Natural Resources a list of historic properties designated; 11. Perform historic preservation activities as the official agency of the Milton historic preservation program; 12. Receive donations, grants, funds, or gifts of historic property and acquire and sell historic properties provided such acceptance does not violate the City of Milton Code of Ethics and the Mayor and City Council have previously consented to do so; 13. Review and make comments to the Historic Preservation Division of the Georgia Department of Natural Resources concerning the nomination of properties within its jurisdiction to the National Register of Historic Places; 14. Participate in private, state, and federal historic preservation programs and, with the consent of the Milton City Council, enter into agreements to do the same; and 15. Recommend to the Milton City Council such sites, buildings, structures, or objects that shall be considered a “Historical Site of Interest” and by Milton PLANNING COMMISSION APPROVED VERSION NOVEMBER 18, 2009 5 RZ09-04 – PC Appoved November 18, 2009 City Council resolution shall adopt such designation. The Milton City Council will provide and appropriate historical marker to be displayed at the designated site. D. HPC’s Power to Adopt Rules and Standards. The HPC shall adopt rules and standards for the transaction of business and for consideration of applications for designations and Certificates of Appropriateness, such as By-Laws not inconsistent with this Ordinance. The HPC shall have the flexibility to adopt such rules and standards without amendment to this Ordinance. The HPC shall provide for the time and place of regular meetings and a method for the calling of special meetings. The HPC shall select such officers as it deems appropriate from among its members. A quorum shall consist of a majority of these members. All rules shall be approved by the Milton City Council before going into use. E. Conflict of Interest. The HPC shall be subject to all conflict of interest laws set forth in the Georgia statutes and in the City of Milton Charter. F. HPC’s Authority to Receive Funding from Various Sources. The HPC shall have the authority to accept donations and shall ensure that these funds do not displace appropriated governmental funds. G. Records of HPC Meetings. A public record shall be kept of the HPC’s resolutions, proceedings, and actions. Reports to the Milton City Council will also be made on a regular and timely basis. Section IV Recommendation and Designation of Historic Properties A. Preliminary Research by HPC. 1. HPC’s Mandate to Conduct a Survey of Local Historical Resources: The HPC shall compile and collect information of historic resources with the City of Milton. Records shall be stored in the City of Milton storage area. 2. HPC’s Power to Recommend Properties to the Milton City Council for Designation: The HPC shall present to the Milton City Council recommendations for historic properties. 3. HPC’s Documentation of Proposed Designation: Prior to the HPC’s recommendation of a historic property to the Milton City Cou ncil for designation, the HPC shall prepare a Report for Nomination consisting of: a. A detailed physical description of the proposed historic property; PLANNING COMMISSION APPROVED VERSION NOVEMBER 18, 2009 6 RZ09-04 – PC Appoved November 18, 2009 b. A statement of the historical, cultural, architectural, and/or aesthetic significance of the proposed historic property; c. A map showing boundaries of individual historic properties; d. A statement justifying individual boundaries; and e. Representative photographs. B. Designation of Historic Property. 1. Criteria for Selection of Historic Properties: An individual building, structure, site, or object deemed worthy of preservation by reason of value to the Nation, the State of Georgia, or the City of Milton for the following reasons: a. It is an outstanding example of a structure representative of its era; or b. It is one of the few remaining examples of a past architectural style or type over fifty (50) years old; or c. It is a place or structure associated with an event or persons of historic or cultural significance to the City of Milton, Sta te of Georgia, or the region; or d. It is the site of natural, archeological, or aesthetic interest that is continuing to contribute to the cultural or historical development and heritage of the municipality, county, state, or region. 2. No building, structure, site or object shall be eligible to be designated as a Historic Property unless it existed on the same property since the incorporation of the City of Milton. C. Requirement for Adopting an Ordinance for the Designation of Historic Properties. 1. Application for Designation of Historic Properties: a. Designations may be proposed by an individual property owner, the Milton City Council, the HPC or a historical society, neighborhood association, or group of the owners of particular historic properties; b. An application from any group seeking designation for a property that does not include the property owner must include a sworn affidavit that the property owner consents to the application for such designation. 2. Required Components of a Designation Ordinance: Any ordinance designating any property as historic shall: a. describe each proposed individual historic property; PLANNING COMMISSION APPROVED VERSION NOVEMBER 18, 2009 7 RZ09-04 – PC Appoved November 18, 2009 b. set forth the name(s) of the owner(s) of the designated property or properties; c. require that a Certificate of Appropriateness be obtained from the HPC prior to any material change in appearance of the designated property; and d. require that the property be shown on the Official Zoning Map of the City of Milton, Georgia and kept as a public record to provide notice of such designation. 3. Require Public Hearings: The HPC and the Milton City Council shall hold a public hearing on any proposed ordinance for the designation of any historic property. Notice of the hearing shall be published in at least three (3) issues of the principal newspaper of local circulation, and written notice of the hearing shall be mailed not less than ten (10) or more than twenty (20) days prior to the date set for the public hearing. A notice sent via the United States mail to the last-known owner of the property shown on the City of Milton tax digest and a notice sent via attention of the occupant shall constitute legal notification to the owner and occupant under this ordinance. 4. Notification of Historic Preservation Division: No less than thirty (30) days prior to making a recommendation on any ordinance designating a property as historic, the HPC must submit the report, required in Section IV A 3, to the Historic Preservation Division of the Department of Natural Resources. 5. Recommendations on Proposed Designations: A recommendation to affirm, modify or withdraw the proposed ordinance for designation shall be made by the HPC within fifteen (15) days following the Public Hearing and shall be in the form of a resolution to the Milton City Council. 6. Milton City Council Action on the HPC’s Recommendation: Following receipt of the HPC recommendation, the Milton City Council may adopt the ordinance as proposed, may adopt the ordinance with any amendments it deems necessary, or reject the ordinance. 7. Notification of Adoption of Ordinance for Designation: Within thirty (30) days following the adoption of the Ordinance for designation by the Milton City Council, the owners and occupants of each designated historic property shall be given written notification of such designation by the Milton City Council, which notice shall apprise said owners and occupants of the necessity of obtaining a Certificate of Appropriateness prior to undertaking any material change in appearance of the historic proper ty designated. A notice sent via the United States mail to the last -known owner of the property shown on the City of Milton tax digest and a notice sent via United States mail to the address of the property to the attention PLANNING COMMISSION APPROVED VERSION NOVEMBER 18, 2009 8 RZ09-04 – PC Appoved November 18, 2009 of the occupant shall constitute legal notification to the owner and occupant under this ordinance. 8. Notification of Other Agencies Regarding Designation: The HPC shall notify all necessary agencies within the City of Milton of the ordinance designation. 9. Moratorium on Applications for Alteration or Demolition While Ordinance for Designation is pending: If an ordinance for designation is being considered, the HPC shall notify the permitting division of the Community Development Department. No permit of any kind shall be issued for work which would constitute a material change in the appearance of a structure, site, or landscaping within the designated area until the proposed Ordinance is enacted or rejected by the City Council. The HPC must propose an Ordinance of designation to the City Council no more than 60 days after the permitting division denies a building permit based on the moratorium. Section V Application to HPC for Certificate of Appropriateness A. Approval of Material Change in Appearance Involving Historic Properties. After the designation by ordinance of a historic property, no material change in the appearance of such historic property, building, structure, site or object shall be made or be permitted to be made by the owner or occupant thereof unless or until the application for a Certificate of Appropriateness has been submitted to and approved by the HPC. A Building Permit shall not be issued without a Certificate of Appropriateness. B. Submission of Plans to HPC. An Application for a Certificate of Appropriateness shall be accompanied by drawings, photographs, plans and documentation required by the HPC. C. Interior Alterations. In its review of applications for Certificates of Appropriateness the HPC shall not consider interior arrangement or use having no effect on exterior architectural features. D. Technical Advice. The HPC shall have the power to seek technical advice from outside its members on any application. E. Public Hearings on Applications for Certificates of Appropriateness , Notices, and Right to be Heard. PLANNING COMMISSION APPROVED VERSION NOVEMBER 18, 2009 9 RZ09-04 – PC Appoved November 18, 2009 The HPC shall hold a public hearing at which time each proposed Certificate of Appropriateness is discussed. Notice of the hearing shall be published in the principal newspaper of local circulation in the City and written notice of the hearing shall be made by the HPC to all owners and occupants of the subject property. The written and published notice shall be provided in the same manner and time frame as notices are provided before a Public Hearing for Rezoning. The HPC shall give the property owner and/or applicant an opportunity to be heard at the Certificate of Appropriateness hearing. F. Acceptable HPC Reaction to the Applications for Certificates of Appropriateness. HPC Action: The HPC may (i) approve the application for a Certificate of Appropriateness as proposed; or (ii) reject it. The HPC shall approve the application and issue a Certificate of Appropriateness if it finds that the proposed material change(s) in the appearance would not have a substantial adverse effect on the aesthetic, historic, or architectural significance and value of the historic property. In making this determination, the HPC shall consider, in addition to any other pertinent factors, the following criteria /acts: 1. For a Certificate of Appropriateness in the case of Reconstruction, Alteration, New Construction or Renovation: The HPC shall consider whether the proposed actions conform in design, scale, building material, setback and site features and to the United States Secretary of the Interior’s Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings. 2. A Certificate of Appropriateness in the case of Relocation of a building, structure, or object shall be guided by: a. The historic character and aesthetic interest of the building, structure, or object as it contributes to its present setting; b. Whether there are definite plans for the area to be vacated and what the effect of those plans on the character of the surrounding area will be; c. Whether the building, structure, or object can be moved without significant damage to its physical integrity; d. Whether the proposed relocation area is compatible with the historical and architectural character of the building, structure, site, or object. 3. In the case of Demolition: PLANNING COMMISSION APPROVED VERSION NOVEMBER 18, 2009 10 RZ09-04 – PC Appoved November 18, 2009 A decision by the HPC approving or denying a Certificate of Appropriateness for the demolition of buildings, structures, sites, or objects shall be guided by: a. The historic, scenic, or architectural significance of the building, structure, site, or object; b. The importance of the building, structure, site, or object to the ambiance of the area; c. The difficulty or impossibility of reproducing such a building, structure, site, or object because of its design, texture, material, detail, or unique location; d. Whether the building, structure, site, or object is one of the last remaining examples of its kind in the neighborhood or the city; e. Whether there are definite plans for use of the property if the proposed demolition is carried out, and wh at the effect of those plans on the character of the surrounding area would be; f. Whether reasonable measures can be taken to save the building, structure, site, or object from collapse; g. Whether the building, structure, site, or object is capable of earning reasonable economic return on its value. G. Deadline for Approval or Rejection of Application for Certificate of Appropriateness. 1. The HPC shall approve or reject an application for a Certificate of Appropriateness within sixty (60) days after the filing thereof by the owner or occupant of a historic property, building, structure or site. Evidence of approval shall be by a Certificate of Appropriateness issued by the HPC. Notice of the issuance or denial of a Certificate of Appropriateness shall be sent by United States certified mail to the applicant and all other persons who have requested such notice in writing filed with the HPC. 2. Should the HPC fail to approve or reject an Application for Certificate of Appropriateness within said sixty (60) days the application for will be sent to the Milton City Council for a vote without comment by the HPC. H. Necessary Action to be Taken by HPC upon Rejection of Application for Certificate of Appropriateness. 1. In the event the HPC rejects an application, it shall state its reasons for doing so, and shall transmit a record of such actions and reasons, in writing, to the applicant. The HPC may suggest alternative courses of action it thinks proper if it disapproves of the application submitted. The applicant may make modifications to the plans and may resubmit the application at any time after making said modifications. PLANNING COMMISSION APPROVED VERSION NOVEMBER 18, 2009 11 RZ09-04 – PC Appoved November 18, 2009 2. In cases where the application covers a material change in the appearance of a structure which would require the issuance of a bu ilding permit, the rejection of the application for a Certificate of Appropriateness by the HPC shall be binding upon the building official or other administrative officer charged with issuing building permits and, in such a case, no building permit shall be issued. I. Requirement of Conformance with Certificate of Appropriateness . 1. All work performed pursuant to an issued Certificate of Appropriateness shall conform to the requirements of such certificate. In the event work is performed not in accordance with such certificate, the HPC may request that the City obtain a cease and desist order from the Superior Court of Fulton County and all work shall cease. 2. The Milton City Council may, of its own initiative or at the request of the HPC, initiate any appropriate action or proceeding in a court of competent jurisdiction to prevent any material change in appearance of a designated historic property, except those changes made in compliance with the provisions of this ordinance or to prevent any illegal a ct or conduct with respect to such historic property. J. Certificate of Appropriateness Void if Construction not Commenced . 1. A Certificate of Appropriateness shall become void unless construction has commenced within six (6) months of date of issuance. 2. A Certificate of Appropriateness shall be issued for a period of eighteen (18) months, after which time it shall become void unless renewed . 3. If construction has not been completed within 18 months, the applicant may apply to renew the Certificate of Appropriateness. The renewal process shall be identical to the initial Certificate of Appropriateness procedure. K. Recording an Application for Certificate of Appropriateness. The HPC shall keep a public record of all applications for Certificate of Appropriateness, and of all the HPC’s proceedings in connection with said application. These records shall be maintained at City Hall. L. Acquisition of Property. The HPC may, where such action is authorized by the Milton City Council and is reasonably necessary or appropriate for the preservation of a historic property, enter into negotiations with the owner for the acquisition by gift, purchase, exchange, or otherwise, to the property or any interest therein. M. Appeals. Any person adversely affected by any determination made by the HPC relative to the issuance or denial of a Certificate of Appropriateness may appeal such determination to the Milton City Council. Any such appeal must be filed with the PLANNING COMMISSION APPROVED VERSION NOVEMBER 18, 2009 12 RZ09-04 – PC Appoved November 18, 2009 Milton City Council within fifteen (15) days after the issuance of the determination pursuant to Section V. G 1 of this Ordinance. The Milton City Council may approve, modify, or reject the determination made by the HPC. Appeals from decisions of the Milton City Council may be taken to the Superior Court o f Fulton County in the manner provided by law for appeals from conviction for the City of Milton ordinance violations. Section VI Maintenance of Historic Properties and Building and Zoning Code Provision A. Ordinary Maintenance or Repair. Ordinary maintenance or repair of any exterior architectural or environmental feature in or on a historic property to correct deterioration, decay, or to sustain the existing form, and that does not involve a material change in design, material, or outer appearance thereof, does not require a Certificate of Appropriateness. B. Failure to Provide Ordinary Maintenance or Repair. Property owners of historic properties shall not allow their buildings to deteriorate by failing to provide ordinary maintenance or repair. The HPC shall be charged with the following responsibilities regarding deterioration by neglect: 1. The HPC shall monitor the condition of historic properties to determine if they are being allowed to deteriorate by-neglect. Such conditions as broken windows, doors and openings which allow the elements and vermin to enter, and the deterioration of a building’s structural system shall constitute failure to provide ordinary maintenance or repair. 2. In the event the HPC determines a failure to provide ordinary maintenance or repair, the HPC will notify the owner of the property and set forth the steps which need to be taken to remedy the situation. The owner of such property will have thirty (30) days in which to do this. A building permit may be required. 3. In the event that the condition is not remedied in thirty (30) days, the owner shall be punished as provided in Section VII of this Ordinance and, at the direction of the Milton City Council; the HPC may perform such maintenance or repair as is necessary to prevent deterioration by neglect. The owner of the property shall be liable for the cost of such maintenance and repair performed by the HPC. C. Affirmation of Existing Building and Zoning Codes. Nothing in this Ordinance shall be construed as to exempt property owners from complying with existing City or County building and zoning codes . PLANNING COMMISSION APPROVED VERSION NOVEMBER 18, 2009 13 RZ09-04 – PC Appoved November 18, 2009 Section VII Penalty Provisions Violation of this Ordinance by any person, firm, corporation or other entity constitutes an offense. Each day the offense continues constitutes a separate offense. The following penalties, which are nonexclusive, and the exercise of one or more of which shall not preclude exercise of the others, shall be imposed on those persons or entities found to have violated this ordinance: A. The same penalties as set forth in the Zoning Ordinance of the City for all violations of requirements set forth in the said Zoning Ordinance; or B. The penalties set forth in Chapter 12 of the Code of Ordinances of the City for non-zoning violations. C. Restrictions on future development. If a Historic Property is demolished or relocated without a Certificate of Appropriateness, or in the event the plans are changed for the property from which the resource was removed without approval of the changed plans by the HPC, then the following restrictions, in addition to any other penalties or remedies set forth in this ordinance, shall be applicable to the site where the structure or property was formerly located: 1. No building or other permits will be issued for construction on the site, with the exception of a permit to restore such structure or property after obtaining a Certificate of Appropriateness, for a period of five (5) years after the date of such demolition or removal. 2. No permits shall be issued by the City for any curb cuts on the site for a period of five (5) years from and after the date of such demolition or removal. 3. No parking lot for vehicles shall be operated whether for remuneration or not on the site for a period of five (5) years from and after the date of such demolition and removal. 4. The owner of the site shall maintain the site in a clean and orderly state and shall properly maintain all existing trees and landscaping on the site. When these restrictions become applicable to a par ticular site, the building official shall cause to be filed a verified notice thereof in the Real Property Records of Fulton County and such restrictions shall then be binding on future owners of the property. D. Civil Action. As an additional remedy in addition to the penalties stated above, the City Attorney for the City of Milton or his or her designee shall have the power to take all necessary civil action to enforce the provisions hereof and to request appropriate legal or equitable remedies or relief . PLANNING COMMISSION APPROVED VERSION NOVEMBER 18, 2009 14 RZ09-04 – PC Appoved November 18, 2009 Section VIII Severability In the event that any section, subsection, sentence, clause, or phrase of this Ordinance shall be declared or adjudged invalid or unconstitutional, such adjudication shall in no manner affect the other sections, sentences, clauses, or phrases of this Ordinance, which shall remain in full force and effect, as if the section, subsection, sentence, clause, or phrase so declared or adjudged invalid or unconstitutional were not originally a part thereof. Section IX Repealer In the event the provisions of this Ordinance are in conflict with the provisions of any other City of Milton Ordinance, the provisions of this Ordinance shall prevail. City of Milton 13000 Deerfield Parkway, Suite 107 Milton, GA 30004 To: Honorable Mayor and City Council Members From: Lynn Tully, AICP, Community Development Director Date: June 11, 2010, for Submission onto the June 21, 2010, City Council Meeting (First Read May 17, 2010; Public Hearing June 7, 2010) Agenda Item: Amendments to Chapter 20, Article VI. Soil Erosion, Sedimentation and Pollution Control, of the City of Milton Code of Ordinances. CMO (City Manager’s Office) Recommendation: To approve and hold public hearing on amendments to the existing Soil Erosion, Sedimentation and Pollution Control ordinance for compliance with state requirements and continuance of local issuing authority status. Background: At the April 19, 2010 work session staff presented proposed changes to the Soil Erosion Control ordinance. Staff notes that compliance with the model ordinance is required by the state EPD to retain Local Issuing Authority status. Their deadline for adoption of the changes is July 1, 2010. Discussion: The majority of the changes included in the proposal are to conform to the state model ESC ordinance. During the work session Council requested that staff look for opportunities to clean up any other discrepancies or issues within the text. Those other minor clarifications have been included in the version presented for hearing. This ordinance amendment has been reviewed by the legal department and those edits have also been included in this version. Alternatives: The Mayor and City Council may choose to approve, deny or defer this text amendment. Concurrent Review: Chris Lagerbloom, City Manager Ken Jarrard, City Attorney [Council Memo.051710] STATE OF GEORGIA COUNTY OF FULTON ORDINANCE NO. AN ORDINANCE TO AMEND CHAPTER 20, ARTICLE VI. SOIL EROSION, SEDIMENTATION AND POLLUTION CONTROL, OF THE MILTON CITY CODE BE IT ORDAINED by the City Council of the City of Milton, GA while in a regularly called council meeting on June 21, 2010 at 6:00 p.m. as follows: SECTION 1. That the Ordinance relating to Amending Chapter 20, Article VI. of the Milton City Code, as it relates to Soil Erosion, Sedimentation and Pollution Control, is hereby adopted and approved, replacing existing Chapter 20, Article VI in its entirety; and is attached hereto as if fully set forth herein, and; SECTION 2. All ordinances, parts of ordinances, or regulations in conflict herewith are repealed. SECTION 3. That this Ordinance shall become effective upon its adoption. ORDAINED this the 21st day of June, 2010. ________________________________ Joe Lockwood, Mayor Attest: ___________________________ Sudie Gordon, Interim City Clerk (Seal) CHAPTER- 20 ENVIRONMENT State law reference—Conservation and natural resources, O.C.G.A. § 12-1-1 et seq.; water resources, O.C.G.A. § 12-5-1 et seq.; control of soil erosion and sedimentation, O.C.G.A. § 12-7-1 et seq.; control of water pollution and surface water use, O.C.G.A. § 12-5-20. Article VI. Soil Erosion, sedimentation and pollution control - DIVISION 1. GENERALLY Sec. 20-490. - Definitions. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 100-year floodplain means land in the floodplain subject to a one percent or greater statistical occurrence probability of flooding in any given year. Best management practices (BMPs) means sound conservation and engineering practices to prevent and minimize erosion and resultant sedimentation, which are consistent with, and no less stringent than, those practices contained in the "Manual for Erosion and Sediment Control in Georgia" published by the Commission as of January 1 of the year in which the land -disturbing activity was permitted. Board means the Georgia Board of Natural Resources. Buffer means the area of land immediately adjacent to the banks of state waters in its natural state of vegetation that facilitates the protection of water quality and aquatic habitat. Certified Personnel means a person who has successfully completed the appropriate certification course approved by the Georgia Soil and Water Conservation Commission. Commission means the Georgia Soil and Water Conservation Commission (GSWCC). Construction Board of Appeals means the board appointed by the city council that hears appeals of stop work orders. CPESC means Certified Professional in Erosion and Sediment control with current certification by Certified Professional in Erosion and Sediment Control Inc., a corporation registered in North Carolina which is also referred to as CPESC or CPESC, Inc. Cut means a portion of land surface or area from which earth has been removed or will be removed by excavation (the depth below the original ground surface to the excavated surface also known as excavation). Department means the Georgia Department of Natural Resources (DNR). Design Professional means a professional licensed by the State of Georgia in the field of: engineering, architecture, landscape architecture, forestry, geology or land surveying; or a person that is a Certified Professional in Erosion and Sediment Control (CPESC) with a current certification by Certified Professional in Erosion and Sediment Control Inc. Director means the director of the Environmental Protection Division or his or her designee. Director DPW means the director of the department of public works or his or her designee. District means the Fulton County Soil and Water Conservation District. Division means the Environmental Protection Division (EPD) of the Department of Natural Resources. Drainage structure means a device composed of a virtually nonerodible material such as concrete, steel, plastic, or other such material that conveys water from one place to another by intercepting the flow and carrying it to a release point for stormwater management, drainage control, or flood control purposes. Erosion means the process by which land surface is worn away by the action of wind, water, ice or gravity. Erosion, sedimentation and pollution control plan means a plan required by the Erosion and Sedimentation Act, O.C.G.A. Chapter 12-7, that includes, as a minimum protections at least as stringent as the State General Permit, best management practices, and requirements in section 20-567 and 568 of this article. Erosion and sedimentation control manual means a field manual produced by the Georgia Soil and Water Conservation Commission that illustrates vegetative and structural best management practices (BMPs), and their use for land disturbing activities. Fill means a portion of land surface to which soil or other solid material has been added ; the depth above the original ground surface or an excavation. Final Stabilization means all soil disturbing activities at the site have been completed, and that for unpaved areas and areas not covered by permanent structures and areas locate d outside the waste disposal limits of a landfill cell that has been certified by EPD for waste disposal, 100% of the soil surface is uniformly covered in permanent vegetation with a density of 70% or greater, or equivalent permanent stabilization measures (such as the use of rip rap, gabions, permanent mulches or geotextiles) have been used. Permanent vegetation shall consist of: planted trees, shrubs, perennial vines; a crop of perennial vegetation appropriate for the time of year and region; or a crop of annual vegetation and a seeding of target crop perennials appropriate for the region. Final stabilization applies to each phase of construction. Finished grade means the final elevation and contour of the ground after cutting or filling and conforming to the proposed design. Grading means altering the shape of ground surfaces. The term "grading" includes: (1) Stripping; (2) Cutting; (3) Filling; (4) Stockpiling; (5) Shaping or any combination thereof; and (6) The land in its cut or filled condition. Ground elevation means the original elevation of the ground surface prior to cutting or filling. Land disturbing activity means any activity which may result in soil erosion from water or wind and the movement of sediments into state waters or onto lands within the state; (1) The term "land disturbing activity" includes, but is not limited to: a. Clearing, dredging or grading; and b. Excavating, transporting or the filling of land. (2) The term "land disturbing activity" does not include agricultural prac tices as described in section 20- 493(5). Larger common plan of development or sale means a contiguous area where multiple separate and distinct construction activities are occurring under one plan of development or sale. For the purpose of this definition, the term "plan" means: (1) An announcement; (2) Piece of documentation such as a sign, public notice or hearing, sales pitch, advertisement, drawing, permit application, zoning request, or computer design; or (3) Physical demarcation such as boundary signs, lot stakes, or survey marking, indicating that construction activities will occur on a specific plot. Local issuing authority means the governing authority of any county or municipality which is certified pursuant to O.C.G.A. § 12-7-8(a). Metropolitan River Protection Act (MRPA) means a state law referenced as O.C.G.A. § 12- 5-440 et seq., which addresses environmental and developmental matters in certain metropolitan river corridors and their drainage basins. Natural ground surface means the ground surface in its original state before any grading, excavation or filling. Nephelometric turbidity units (NTU) means numerical units of measure based upon photometric analytical techniques for measuring the light scattered by finely divided particles of a substance in suspension. This technique is used to estimate the extent of turbidity in water in which colloidally dispersed or suspended particles are present. NOI means a Notice of Intent form provided by EPD for coverage under the State General Permit. NOT means a Notice of Termination form provided by EPD to terminate coverage under the State General Permit. Notice to comply means enforcement action based on noncompliance through failure to either properly install or maintain BMPs, where sediments remain within the boundaries of the property. This enforcement action provides the violator five days to achieve compliance. Official notice means a posting of a notice to comply or stop work order on a property that is noncompliant or in violation. Operator means the party or parties that have: (1) Operational control of construction project plans and specifications, including the ability t o make modifications to those plans and specifications; or (2) Day-to-day operational control of those activities that there are necessary to ensure compliance with a stormwater pollution prevention plan for the site or other permit conditions, such as a person authorized to direct workers at a site to carry out activities required by the stormwater pollution prevention plan or to comply with other permit conditions. Outfall means the location where storm water in a discernible, confined and discrete conveyance, leaves a facility or site or, if there is a receiving water on site, becomes a point source discharging into that receiving water. Permit means the authorization necessary to conduct a land disturbing activity under the provisions of this article. Person means any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, state agency, municipality or other political subdivision of the State of Georgia, any interstate body or any other legal entity. Phase or Phased means sub-parts or segments of construction projects where the sub-part or segment is constructed and stabilized prior to completing construction activities on the entire construction site. Project means the entire proposed development project, regardless of the size of the area of land to be disturbed. Properly Designed means designed in accordance with the design requirements and specifications contained in the “Manual for Erosion and Sediment Control in Georgia” (Manual) published by the Georgia Soil and Water Conservation Commission as of January 1 of the year in which the land-disturbing activity was permitted and amendments to the Manual as approved by the Commission up until the date of NOI submittal. Reinspection fee means a fee assessed to the developer/owner/operator or responsible party for reinspecting the project if requested by the developer/owner/operator or responsible party prior to the end of the compliance period; provided that upon that reinspection the project remains out of compliance. Roadway drainage structure means a device such as a bridge, catch basin, culvert, or ditch, composed of a virtually nonerodible material such as concrete, steel, plastic, or other such material that conveys water under a roadway by intercepting the flow on one side of a traveled way (public or private) consisting of one or more defined lanes, with or without shoulder areas, and carrying water to a release point on the other side. Sediment means solid material, both organic and inorganic, that is in suspension, is being transported, or has been moved from its site of origin by air, water, ice, or gravity as a product of erosion. Sedimentation means the process by which eroded material is transported and deposited by the action of water, wind, ice, or gravity. Soil and water conservation district approved plan means an erosion and sedimentation control plan approved in writing by the Fulton County Soil and Water Conservation District. Stabilization means the process of establishing an enduring soil cover by the installation of temporary or permanent structures or vegetation for the purpose of reducing to a minimum the erosion process and the resultant transport of sediment by wind, water, ice, or gravity. State general permit means the National Pollution Discharge Elimination System (NPDES) general permit for stormwater runoff from construction activities as is now in effect or as may be amended or reissued in the future pursuant to the state's authority to implement the same through federal delegation under the Federal Water Pollution Control Act, 33 USC 1251 et seq., and O.C.G.A. § 12-5-30(f). State waters means any and all rivers, streams, creeks, branches, lakes, ditches, reservoirs, ponds, drainage systems, springs, wells, and other bodies of surface or subsurface water, natural or artificial, lying within or forming a part of the boundaries of the state which are not entirely confined and retained completely upon the property of a single individual, partnership, or corporation. Stop work order means enforcement action that ceases all work on-site or a portion of the site. Structural erosion and sedimentation control measures means practices for the stabilizing of erodible or sediment-producing areas by utilizing the mechanical properties of matter for the purpose of either changing the surface of the land or storing, regulating, or disposing of runoff to prevent sediment loss. Examples of structural erosion and sediment control practices are riprap, sediment basins, dikes, level spreaders, waterways, outlets, diversions, grade stabilization structures, sediment traps, and sediment barriers, and land grading. Such practices can be found in the publication "Manual for Erosion and Sediment Control in Georgia." Trout streams means all streams or portions of streams within the watershed as designated by the Wildlife Resources Division of the Georgia Department of Natural Resources under the provisions of the Georgia Water Quality Control Act, O.C.G.A. § 12-5-20, et seq., in the rules and regulations for Water Quality Control, Chapter 391-3-6 at www.gaepd.org. Streams designated as primary trout waters are defined as water supporting a self-sustaining population of rainbow, brown, or brook trout. Streams designated as secondary trout waters are those in which there is no evidence of natural trout reproduction, but are capable of supporting trout throughout the year. First order trout waters are streams into which no other streams flow except springs. Vegetative erosion and sedimentation control measures means measures for the stabilization of erodible or sediment-producing areas by covering the soil with: (1) Permanent seeding, sprigging, or planting, producing long-term vegetative cover; (2) Temporary seeding, producing short-term vegetative cover; or (3) Sodding, covering areas with a turf of perennial sod-forming grass. Such measures can be found in the publication Manual for Erosion and Sediment Control in Georgia. Watercourse means any natural or artificial watercourse, stream, river, creek, channel, ditch, canal, conduit, culvert, drain, waterway, gully, ravine, or wash in which water flows either continuously or intermittently and which has a definite channel, bed, and banks , and including any area adjacent thereto subject to inundation by reason of overflow or floodwater. Wetlands means those areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. The term "wetlands" includes: (1) Swamps; (2) Marshes; (3) Bogs; and (4) Similar areas. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 3), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 3), 11-17-2008) State law reference—Similar provisions, O.C.G.A. § 12-7-3. Sec. 20-491. - Authority and title. This article is adopted pursuant to the authority and mandate of the Georgia Erosion and Sedimentation Act of 1975 (O.C.G.A. § 12-7-1 et seq.), as amended. Certification by EPD authorizes the city as a local issuing authority. As a local issuing authority, the city is certified to provide and maintain an erosion control program which includes, but is not limited to, development plan review, permitting and erosion control enforcement. This article will be known as "The Milton Soil Erosion, and Sedimentation and Pollution Control Ordinance of 2006." (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 1), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 1), 11-17-2008) Sec. 20-492. - Intent. It is the intent of this article to establish soil erosion, and sedimentation and pollution control minimum requirements, standards, and enforcement procedures for land disturbance activities in order to conserve and protect the environment, public health, and the general welfare of the city's citizens. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 2), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 2), 11-17-2008) Sec. 20-493. - Exemptions. This article shall apply to any land disturbing activity undertaken by any person on any land except for the following: (1) Surface mining, as the same is defined in O.C.G.A. § 12-4-72, "The Georgia Surface Mining Act of 1968". (2) Granite quarrying and land clearing for such quarrying; (3) Such minor land disturbing activities as home gardens and individual home landscaping, repairs, maintenance work, fences and other related activities which result in minor soil erosion; (4) The construction of single-family residences when such construction disturbs less than one acre and is not a part of a larger common plan of development or sale with a planned disturbance of equal to or greater than one acre and not otherwise exempted under this section; provided, however, that construction of any such residence shall conform to the minimum requirements as set forth in O.C.G.A. 12-7-6 and this subsection and division 3 of this article. For single-family residence construction covered by provisions of this subsection, there shall be a buffer zone between the residence and any state waters classified as trout streams pursuant to Article 2 of Chapter 5 of the Georgia Water Quality Control Act (O.C.G.A. § 12-5-20 et seq.). In any such buffer, no land disturbing activity shall be constructed between the residence and the point where vegetation has been wrested by normal stream flow or wave action from the banks of the following trout waters: a. For primary trout waters, the buffer zone shall be at least 50 horizontal feet, and no variance to a smaller buffer shall be granted; b. For secondary trout waters, the buffer zone shall be at least 50 horizontal feet, but the EPD director may grant variances to no less than 25 feet; c. Regardless of whether a trout stream is primary or secondary, for first order trout waters, which are streams into which no other streams flow except for springs, the buffer shall be at least 25 horizontal feet, and no variance to smaller buffer shall be granted. The minimum requirements of subsection (b) of O.C.G.A. 12-7-6, division 3 of this article and the buffer zones provided by this section shall be enforced by the issuing authority; (5) Agricultural operations, as defined in O.C.G.A. § 1-3-3, “definitions” include: a. The raising, harvesting, or storing of products of the field or orchard; b. Feeding, breeding, or managing livestock or poultry; c. Producing or storing feed for use in the production of livestock including, but not limited to, cattle, calves, swine, hogs, goats, sheep, and rabbits; d. The production of poultry including, but not limited to, chickens, hens and turkeys; e. Producing plants, trees, fowl, or animals; f. The production of aquaculture, horticultural, dairy, livestock, poultry, eggs, and apiarian products; and farm buildings and farm ponds; (6) Forestry land management practices, including harvesting; provided, however, that when such exempt forestry practices cause or result in land disturbing or other activities otherwise prohibited in a buffer, as established in section 20-568(a)(16) and (17), no other land disturbing activities, except for normal forest management practices, shall be allowed on the entire property upon which the forestry practices were conducted for a period of three years after completion of such forestry practices; (7) Any project carried out under the technical supervision of the Natural Resource Conservation Service of the United States Department of Agriculture; (8) Any project involving disturbance of one tenth acre 5000 sf or less; provided, however, that this exemption shall not apply to any land disturbing activity within a larger common plan of development or sale with a planned disturbance equal to or greater than one acre or within 200 feet of the bank of any state waters, and for purposes of this subsection, state waters exclude channels and drainageways which have water in them only during and immediately after rainfall events and intermittent streams which do not have water in them year round; provided, however, that any person responsible for a project which involves one tenth acre 5000 sf or less, which involves land disturbing activity, and which is within 200 feet of any such excluded channel or drainageway, must prevent sediment from moving beyond the boundaries of the property on which such project is located and provided, further, tha t nothing herein shall prevent the local issuing authority from regulating any such project which is not specifically exempted by subsection (1) through (7), (9), (10) or (11) of this section; (9) Construction or maintenance projects, or both, undertaken or financed, in whole or in part, or both, by the department of transportation, the Georgia Highway Authority, or the state road and tollway authority; or any road construction or maintenance project, or both, undertaken by any county or municipality; provided, however, that construction or maintenance projects of the department of transportation or state road and tollway authority which disturb one or more contiguous acres of land shall be subject to the provisions of O.C.G.A. § 12-7-7.1; except where the department of transportation, the Georgia Highway Authority, or the state road and tollway authority is a secondary permittee for a project located within a larger common plan of development or sale under the state general permit, in which case a copy of a notice of intent under the state general permit shall be submitted to the City of Milton. The City of Milton shall enforce compliance with the minimum requirements set forth in O.C.G.A. § 12-7-6, and division 3 of this article as if a permit had been issued, and violations shall be subject to the same penalties as violations by permit holders (10) Any land disturbing activities conducted by any electric membership corporation or municipal electrical system or any public utility under the regulatory jurisdiction of the public service commission, any utility under the regulatory jurisdiction of the Federal Energy Regulatory Commission, any cable television system as defined in O.C.G.A. § 36-18-1, or any agency or instrumentality of the United States engaged in the generation, transmission, or distribution of power, except where an electric membership corporation or municipal electric system or any public utility under the regulatory jurisdiction of the public service commission, any utility under the regulatory jurisdiction of the Federal Energy Regulatory Commission, any cable television system as defined in O.C.G.A. § 36-18-1, or any agency or instrumentality of the United States engaged in the generation, transmission, or distribution of power is a secondary permittee for a project located within a larger common plan of development or sale under the state general permit, in which case the city shall enforce compliance with the minimum requirements set forth in O.C.G.A. § 12- 7-6 and division 3 of this article as if a permit had been issued and violations shall be subject to the same penalties as violations by permit holders; and (11) Any public water system reservoir. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 4), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 4), 11-17-2008) State law reference—Exemptions, O.C.G.A. § 12-7-17. Secs. 20-494—20-512. - Reserved. - DIVISION 2.-INSPECTION AND ENFORCEMENT Subdivision 1- In General Sec. 20-513. - Authority. (a) Community development director. The community development director or designee will periodically inspect the sites of land disturbing activities for which permits have been issued to determine if the activities are being conducted in accordance with the approved plan, permit and this article and to determine if the measures required in the plan are effective in controlling soil erosion and sedimentation. (b) Primary, and secondary and tertiary permittees regulated. The city shall regulate both primary, secondary and tertiary permittees as such terms are defined in the state general permit. (1) Primary permittees shall be responsible for the installation and maintenance of best management practices where the primary permittee is conducting land disturbing activities. (2) Secondary permittees shall be responsible for the installation and maintenance of best management practices where the secondary permittee is conducting land disturbing activities. (3) Tertiary permittees shall be responsible for installation and maintenance where the tertiary permittee is conducting land-disturbing activities. (c) Notice; contents. If, through inspection, it is deemed that a person engaged in land disturbing activities as defined herein has failed to comply with the approved plan, with permit conditions, or with the provisions of this article, a written notice to comply shall be ser ved upon that person, except for working without a permit, disturbing a stream buffer, allowing sediment to enter state waters by failure to properly design, install or maintain best management practices, or working under a stop work order, which conditions warrant immediate citation. The notice shall set forth the measures necessary to achieve compliance and shall state the time within which such measures must be completed. (d) Noncompliance. If the person engaged in the land disturbing activity fails to comply with the corrective measures specified in the official notice within the time specified, he or she shall be deemed in violation of this article, and the community development director m ay take such additional enforcement actions as he or she deems appropriate. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 10(a)), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 10(a)), 11-17-2008) Sec. 20-514. - Authority to investigate; right of entry. The community development director shall have the power to conduct such investigation as the community development director may deem reasonably necessary to carry out the duties prescribed in this article, and for this purpose shall have the power to enter at reasonable times upon any property, public or private, for the purposes of investigation and inspection of the sites of land disturbance or building activities. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 10(b)), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 10(b)), 11-17-2008) Sec. 20-515. - Unlawful to refuse entry or obstruct, hamper or interfere with inspection. No person shall refuse entry or access to any authorized representative or agent of the city, the commission, the district, or division who requests entry for the purposes of inspection, and who presents appropriate credentials. Nor shall any person obstruct, hamper, or interfere with any such representative while in the process of carrying out his or her official duties (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 10(c)), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 10(c)), 11-17-2008) Sec. 20-516. - Display of plan on site required. A copy of a current approved plan shall be kept on site until project completion or issuance of certificate of occupancy. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 10(d)), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 10(d)), 11-17-2008) Sec. 20-517. - Periodic review by district or commission. (a) The District or the Commission, or both, shall semi-annually review the actions of counties and municipalities which have been certified as local issuing authorities pursuant to O.C.G.A. § 12-7-8(a). (b) The District or the Commission, or both, may provide technical assistance to any county or municipality for the purpose of improving the effectiveness of the counties or municipality's erosion, sedimentation and pollution control program. (c) The District or the Commission shall notify the Division and request an investigation by the Division if any deficient or ineffective legal program is found. (d) The local Issuing Authority must amend its ordinances to the extent appropriate within (12) months of any amendments to the Erosion and Sediment Act of 1975. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 10(e)), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 10(e)), 11-17-2008) Sec. 20-518. - Divisional review for compliance with state regulations. (a) The division may periodically review the actions of counties and municipalities which have been certified as local issuing authorities pursuant to O.C.G.A. § 12-7-8(a). (b) Such review may include, but not be limited to, review of the administration and enforcement of a governing authority's ordinance and review of conformance with an agreement, if any, between the district and the governing authority. (c) If such review indicates that the governing authority of any county or municipality certified pursuant to O.C.G.A. § 12-7-8(a) has not administered or enforced its ordinances or has not conducted the program in accordance with any agreement entered into pursuant to O.C.G.A. § 12-7-7(e), the division shall notify the governing authority of the county or municipality in writing. (d) The governing authority of any county or municipality so notified shall have 90 days within which to take the necessary corrective action to retain certification as a local issuing authority. (e) If the county or municipality does not take the necessary corrective action within 90 days after notification by the division, the division may revoke the certification of the county or municipality as a local issuing authority. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 10(f)), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 10(f)), 11-17-2008) Secs. 20-519—20-537. - Reserved. Subdivision 2- Penalties and Incentives Sec. 20-538. - Failure to obtain a permit for land-disturbing activity; citation. If any person commences any land disturbing activity requiring a land disturbing permit, as prescribed in this article, without first obtaining said permit, the person shall be subject to the revocation of his or her business license, work permit, or other authorization to conduct any business and associated work activities within the city's jurisdictional boundaries. The failure to comply may result in a citation being issued to appear in municipal court which may result in monetary fines. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 11(a)), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 11(a)), 11-17-2008) Sec. 20-539. - Stop work orders; notice to comply. (a) First and second violations; notice. For the first and second violations of the provisions of this article, the community development director or designee shall issue a written warning to the violator. The violator shall have five days to correct the violation. If the violation is not corrected within five days, the community development director or designee shall issue a stop work order requiring the land disturbance activity to be stopped until necessary corrective action or mitigation has occurred; provided, however, that, if the violation presents an imminent threat to public health or waters of the state or if the land disturbing activities are conducted without obtaining the necessary permit, the community development director or designee shall issue an immediate stop work order in lieu of a warning. (b) Three or more violations. For the third and each subsequent violation, the community development director or designee shall issue an immediate stop work order. (c) Stop work orders remain in effect until violation cured. All stop work orders shall be in effect immediately upon issuance and shall remain in effect until the necessary corrective action or mitigation has occurred. (d) Posted notices; removal prohibited. It shall be unlawful for any representative of the owner to remove an official notice to comply or stop work posting. (1) Upon the issuance of a stop work order, the community development director or his or her representative shall post official notices at such locations on the project site as deemed appropri ate. (2) Such posted official notices shall be prominently displayed on the owner's property until the stop work order is rescinded by the community development director or designee, at which time said posted notices will be removed by the community development director or designee or his or her representative. (3) When a violation in the form of taking action without a permit, failure to maintain a stream buffer, or significant amounts of sediment, as determined by the community development director or his or her designee, have been or are being discharged into state waters and where best management practices have not been properly designed, installed, and maintained, a stop work order shall be issued by the manager community development director or his or her designee. (4) All such stop work orders shall be effective immediately upon issuance and shall be in effect until the necessary corrective action or mitigation has occurred. (5) Such stop work orders shall apply to all land disturbing activity on the site with the exception of the installation and maintenance of temporary or permanent erosion, and sediment and pollution controls. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 11(b)), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 11(b)), 11-17-2008) Sec. 20-540. - Reinspection fee. The community development director shall assess a minimum $50.00 reinspection fee to a project if a reinspection is requested prior to the end of a compliance period and the site is found to remain out of compliance upon that inspection. Such fees to cover administrative, field inspections, and transportation costs must be satisfied prior to the issuance of a final erosion inspection or a certificate of occupancy. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 11(c)), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 11(c)), 11-17-2008) Sec. 20-541. - Bond forfeiture. (a) Posting; notice; contents. If, through inspection, it is determined that a person engaged in land disturbing activities has failed to comply with the approved plan and permit, written notice to comply shall be served upon that person. The notice shall set forth the measures necessary to achieve compliance with the plan and shall state the time within which such measures must be completed. (b) Failure to comply. If the person engaged in the land disturbing activity fails to comply within the time specified, he or she shall be deemed in violation of this article and, in addition to other penalties, shall be deemed to have forfeited his or her performance bond, if required to post one under the provisions of section 20-591(g). The city may call the bond or any part thereof to be forfeited and may use the proceeds to hire a contractor to stabilize the site and bring it into compliance. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 11(d)), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 11(d)), 11-17-2008) Sec. 20-543. - Monetary penalties. (a) Any person who violates any provision of this article, or any permit condition or limitation established pursuant to this article or who negligently or intentionally fails or refuses to comply with any final or emergency order of the City director of Community Development issued as provided in this article shall be liable for a civil penalty not to exceed $2,500.00 per day for each violation . For the purpose of enforcing the provisions of this article, notwithstanding any provisions in the City Charter to the contrary, municipal courts shall be authorized to impose penalty not to exceed $2,500.00 for each violation . Notwithstanding any limitation of law as to penalties which can be assessed for violations of city ordinances, any magistrate court or any other court of competent jurisdiction trying cases brought as violations of this article under City ordinance approved under this article shall be authorized to impose penalties for such violations not to exceed $2,500.00 for each violation. Each day during which a violation or failure or refusal to comply continues shall be a separate violation. (b) Upon violation of the provisions of this article, the city shall be entitled to take such remedial action as the community development director deems necessary to ensure compliance, and the violator shall reimburse the city for any cost or expense associated with such compliance efforts and the city shall be entitled to place a lien on the property to secure payment and reimbursement for these expenses. (c) The city community development director has the primary responsibility for the enforcement of this article. (d) Persons designated by the community development director are hereby authorized to issue official notices, citations, and summons charging violations under this article, returnable to the state or city municipal court, or any other court of competent jurisdiction. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 11(f)), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 11(f)), 11-17-2008) Sec. 20-544. - Education and certification. (a) Persons involved in land development design, review, permitting, construction, monitoring, or inspection or any land-disturbing activity shall meet the education and training certification requirements, dependent on their level of involvement with the process, as developed by the commission in consultation with the division and the stakeholder advisory board created pursuant to O.C.G.A. 12 -7-20. (b) For each site on which land-disturbing activity occurs, each entity or person acting as either a primary, secondary, or tertiary permittee, as defined in the state general permit, shall have as a minimum one person who is in responsible charge of erosion and sedimentation control activities on be half of said entity or person and meets the applicable education or training certification requirements developed by the Commission present on site whenever land-disturbing activities are conducted on that site. A project site shall herein be defined as any land-disturbance site or multiple sites within a larger common plan of development or sale permitted by an owner or operator for compliance with the state general permit. (c) Persons or entities involved in projects not requiring a state general permit but otherwise requiring certified personnel on site may contract with certified persons to meet the requirements of this article. (d) If a state general permittee who has operational control of land-disturbing activities for a site has met the certification requirements of paragraph (1) of subsection (b) of O.C.G.A. 12-7-19, then any person or entity involved in land-disturbing activity at that site and operating in a subcontractor capacity for such permittee shall meet those educational requirements specified in paragraph (4) of subsection (b) of O.C.G.A 12-7-19 and shall not be required to meet any educational requirements that exceed those specified in said paragraph. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 12), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 12), 11-17-2008) Sec. 20-545. - Appeals. (a) Construction Board of Appeals; hearing. The suspension, revocation, modification, or grant with condition of a permit by the city upon finding that the holder is not in compliance with the approved erosion sediment and pollution control plan; or that the holder is in violation of permit conditions; or that the holder is in violation of any provision of this article shall entitle the person submitting the plan or holding the permit to a hearing before the city construction board of appeals within 45 days after receipt by the City director of Community Development of written request for appeal. (b) Fulton County Superior Court. Any person aggrieved by a decision or order of the city, after exhausting his or her administrative remedies, shall have the right to appeal de novo to the Superior Court of Fulton County. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 13), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 13), 11-17-2008) Sec. 20-546. - Liability. (a) Neither the approval of a plan under the provisions of this article, nor the compliance with provisions of this article, shall relieve any person from responsibility for damage to any person or property otherwise imposed by law nor impose any liability upon the city, the district or their officers, employees or agents for damage to any person or property. (b) The fact that a land disturbing activity for which a permit has been issued results in injury to the property of another shall neither constitute proof of nor create a presumption of a violation of the standards provided for in this article or the terms of the permit. (c) No provision of this article shall permit any person to violate the Georgia Erosion and Sedimentation Act of 1975, the Georgia Water Quality Control Act or the rules and regulations promulgated and approved thereunder or pollute any state waters as defined thereby. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 14(c)), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 14(c)), 11-17-2008) Secs. 20-547—20-565. - Reserved. - DIVISION 3.-MINIMUM REQUIREMENTS FOR EROSION, SEDIMENTATION AND POLLUTION CONTROL USING BEST MANAGEMENT PRACTICES (BMP) Sec. 20-566. - General provisions. (a) Excessive soil erosion and resulting sedimentation can take place during land disturbing activities if the requirements of the article and the NPDES General Permit are not met. Therefore, plans for those land disturbing activities which are not exempted by this article shall contain provisions for an application of soil erosion, and sedimentation and pollution control measures and practices. The provisions shall be incorporated into the erosion, and sedimentation and pollution control plans. (b) Soil erosion and sedimentation control measures and practices shall conform to the minimum requirements of sections 20-567 and 20-568. (c) The application of measures and practices shall apply to all features of the site, including street and utility installations, drainage facilities and other temporary and permanent improvements. (d) Measures shall be installed to prevent or control erosion sedimentation and pollution during all stages of any land disturbing activity in accordance with requirements of this article and the NPDES General Permit. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 5(a)), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 5(a)), 11-17-2008) Sec. 20-567. - Minimum requirements (BMP). (a) Properly designed defined. Best management practices as set forth in this section and section 20-568 shall be required for all land disturbing activities. Proper design, installation, and maintenance of BMPs shall constitute a complete defense to any action by the Director or to any other allegation of noncompliance with subsection (b) of this section or any substantially similar terms contained in a permit for the discharge of stormwater issued pursuant to O.C.G.A. § 12-5-30(f) of the "Georgia Water Quality Control Act." As used in this subsection, the terms "proper design" and "properly designed" mean designed in accordance with the hydraulic design specifications contained in the "Manual for Erosion and Sediment Control in Georgia" specified in O.C.G.A. § 12-7-6(b). (b) Violations. Each discharge of stormwater runoff from disturbed areas where BMPs have not been properly designed, installed, and maintained shall constitute a separate violation of any land disturbing permit issued by the City of Milton or of any state general permit issued by the division, pursuant to O.C.G.A. § 12-5-30(f), the "Georgia Water Quality Control Act," for each day on which such discharge results and the turbidity of receiving waters being increased by more than 25 nephelometric turbidity units for waters supporting warm water fisheries or by more than ten nephelometric turbidity units for waters classified as trout waters. The turbidity of the receiving waters shall be measured in accordance with guidelines issued by the Director. This subsection shall not apply to any land disturbance associated with the construction of single-family homes which are not part of a larger common plan of development or sale unless the planned disturbance for such construction is equal to or greater than five acres. (c) Failure to properly design, install, or maintain BMPs shall constitute a violation of any land disturbing permit issued by the City of Milton or of any state general permit issued by the division pursuant to O.C.G.A. § 12-5-30(f), the "Georgia Water Quality Control Act," for each day on which such failure occurs. (d) The Director may require, in accordance with regulations adopted by the board, reasonable and prudent monitoring of the turbidity level of receiving waters into which discharges from lan d disturbing activities occur. (e) The City of Milton may set more stringent buffer requirements than stated in section 20 -568 (a), (16) and (17) in light of O.C.G. A. 12-7-6 (c). (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 5(b)), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 5(b)), 11-17-2008) Sec. 20-568. - To comply with state general permit. (a) The rules and regulations, ordinances, or resolutions adopted pursuant to O.C.G.A. 12-7-1 et. Seq. for the purpose of governing land disturbing activities shall require, as a minimum, protections at least as stringent as the state general permit; and best management practices (BMPs), including sound conservation and engineering practices to prevent and minimize erosion and resultant sedimentation, which are consistent with, and no less stringent than, those practices contained in the "Manual for Erosion and Sediment Control in Georgia," published by the Georgia Soil and Water Conservation Commission as of January 1 of the year in which the land disturbing activity was permitted, as well as the following: (1) Proper erosion control measures must be installed along site boundaries prior to the stripping of vegetation, re-grading, and other development activities as deemed by the community development director to minimize erosion. (2) Cut-fill operations must be kept to a minimum. (3) Development plans must conform to the topography and soil type so as to minimize erosion potential. (4) Whenever feasible, natural vegetation shall be retained, protected and supplemented. (5) The disturbed area and duration of exposure to erosive elements shall be kept to a practicable minimum. (6) Disturbed soil shall be stabilized as quickly as practicable. ( 7) Temporary vegetation or mulching shall be employed to protect all exposed areas during development. (8) Permanent vegetation and structural erosion control measures shall be installed as soon as practicable. (9) Sediment in runoff water must be trapped by the use of debris basins, sediment basins, sediment barriers, construction exits or similar BMPs as outlined in the erosion and sediment control manual until the disturbed area is stabilized. As used in this subsection (a), a disturbed area is stabilized when it is brought to a condition of continuous compliance with the requirements of this section and O.C.G.A. § 12- 7-1 et seq. (10) Adequate provisions must be provided to minimize damage from surface water to the cut face of excavations or the sloping surface of fills. Cuts and fills must not endanger adjoining properties. (11) Sound engineering practices or methods shall be employed to protect (i.e. cuts and fills may not endanger) adjoining properties. (12) Fills may not encroach upon natural watercourses or constructed channels in a manner so as to adversely affect other property owners. (13) Migrated soil materials or soil materials displaced by mechanical means from land disturbing sites to adjacent watercourses, such as lakes, ponds, streams and creeks etc. must be remediated The remedial work shall be conducted as per a remedial plan approved by the City of Milton. (14) Grading equipment must cross flowing streams by means of temporary or permanent bridges or culverts except when such methods are not feasible; provided, in any case, that such crossings are kept to a minimum. (15) Land disturbing activity plans for erosion sedimentation and pollution control shall include provisions for treatment or control of any source of sediments and adequate sedimentation control facilities to retain sediments on site or preclude sedimentation of adjacent waters beyond the levels specified in section 20 - 567(b). (16) Except as provided in subsection (a)(17) of this section, there is established a 25-foot buffer along the banks of all state waters, as measured horizontally from the point where vegetation has been wrested by normal stream flow or wave action, except where the Director determines to allow a variance that is at least as protective of natural resources and the environment where otherwise allowed by the Director, pursuant to O.C.G.A. § 12-2-8, or where a drainage structure or a roadway drainage structure must be constructed; provided that adequate erosion control measures are incorporated in the project plans and specifications are implemented; or along any ephemeral stream. As used in this provision, the term „ephemeral stream‟ means a stream: that under normal circumstances has water flowing only during and for a short duration after precipitation events; that has the channel located above the ground -water table year round; for which ground water is not a source of water; and for which runoff from precipitation is the primary source of water flow, unless exempted as along on ephemeral stream, the buffers of at least 25 feet established pursuant to part 6 of Article 5, Chapter 5 of Title 12, the “Georgia Water Quality Control Act”, shall remain in force unless a variance is granted by the Director as provided in this paragraph. The following requirements shall apply to any such buffer. a. No land disturbance activities shall be conducted within a buffer and a buffer shall remain in its natural, undisturbed state of vegetation until all land disturbing activities on the construction site are completed, except as otherwise provided by this subsection. b. Once the final stabilization of the site is achieved, a buffer may be thinned or trimmed of vegetation as long as a protective vegetative cover remains to protect water quality and aquatic habitat and a natural canopy is left in sufficient quantity to keep shade on the stream bed; provided, however, that any person constructing a single-family residence, when such residence is constructed by or under contract with the owner for his or her own occupancy, may thin or trim underbrush in a buffer at any time as long as protective vegetative cover remains to protect water quality and aquatic habitat and a natural canopy is left in sufficient quantity to keep shade on the stream bed; and c. The buffer shall not apply to the following land disturbing activities; provided that they occur at an angle, as measured from the point of crossing, within 25 degrees of perpendicular to the stream; cause a width of disturbance of not more than 50 feet within the buffer; and adequate erosion control measures are incorporated into the project plans and specifications and are implemented: 1. Stream crossings for water lines; or 2. Stream crossings for sewer lines. (17) There is established a 50-foot buffer as measured horizontally from the point where vegetation has been wrested by normal stream flow or wave action, along the banks of any state waters classified as "trout streams" pursuant to Article 2 of Chapter 5 of Title 12, of ” the "Georgia Water Quality Control Act," except where a roadway drainage structure must be constructed; provided, however, that small springs and streams classified as trout streams which discharge an average annual flow of 25 gallons per minute or less shall have a 25-foot buffer or they may be piped, at the discretion of the landowner, pursuant to the terms of a rule providing for a general variance promulgated by the Board, so long as any such pipe stops short of the downstream landowner's property and the landowner complies with the buffer requirement for any adjacent trout streams. The Director may grant a variance from such buffer to land- disturbing activity, provided that adequate erosion control measures are incorporated in the project plans and specifications and are implemented. The following requirements shall apply to such buffer ; a. No land disturbance activities shall be conducted within a buffer and a buffer shall remain in its natural, undisturbed state of vegetation until all land disturbing activities on the construction site are completed. Once the final stabilization of the site is achieved, a buffer may be thinned or trimmed of vegetation as long as a protective vegetative cover remains to protect water quality and aquatic habitat and a natural canopy is left in sufficient quantity to keep shade on the stream bed; provided, however, that any person constructing a single-family residence, when such residence is constructed by or under contract with the owner for his or her own occupancy, may thin or trim vegetation in a buffer at any time as long as protective vegetation cover remains to protect water quality and aquatic habitat and natural canopy is left in sufficient quality to keep shade on the stream bed; and b. The buffer shall not apply to the following land-disturbing activities; provided that they occur at an angle, as measured from the point of crossing, within 25 degrees of perpendicular to the stream; cause a width of disturbance of not more than 50 feet within the buffer; and adequate erosion control measures are incorporated into the project plans and specifications and are implemented: (i) Stream crossings for water lines; or (ii) Stream crossings for sewer lines. c. Nothing contained in O.C.G.A. 12-7-1 et. Seq. shall prevent any local issuing authority from adopting rules and regulations, ordinances, or resolutions which contain stream buffer requirements that exceed the minimum requirements in sections 20-567 and this section. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 5(c), (d)), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 5(c), (d)), 11-17-2008) Sec. 20-569. - No presumption of violation. The fact that land disturbing activity for which a permit has been issued results in injury to the property of another shall neither constitute proof of nor create a presumption of a violation of the standards provided in this article or the terms of the permit. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 5(e)), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 5(e)), 11-17-2008) Sec. 20-570. - Additional requirements. Where the Director or the City director of Community Development finds, through inspection, that property owners have been adversely affected due to violations clearly identified by the Director or the City director of Community Development, or that the approved current plans do not adequately address the features of the site, the Director or the City director of Community Development can require additional BMPs, drawings, and revisions to comply with the minimum requirements as outlined in this division. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 5(f)), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 5(f)), 11-17-2008) Secs. 20-571—20-589. - Reserved. - DIVISION 4.-APPLICATION/ PERMIT PROCESS Sec. 20-590. - General provisions. (a) The property owner, developer, and designated planners and engineers shall design and review the general development plans before submittal: (1) The city shall review the tract to be developed and the area surrounding it. (2) The City shall consult the zoning ordinance, stormwater management ordinance, subdivision ordinance, flood damage prevention resolution, this article, and other ordinances which regulate the development of land within the jurisdictional boundaries of the city. (b) However, the property owner and/or operator are the only parties who may obtain a permit. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 6(a)), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 6(a)), 11-17-2008) Sec. 20-591. - Application requirements. (a) Prior to any land disturbing activity, the property in question must be part of an approved and recorded legal lot of record (including, but not limited to, exemption plat, minor plat, or final plat). Additionally, no land disturbing activity, including grading, excavating, filling, and foundation work, shall be conducted within the city, until a land disturbance permit or a building permit (for those projects not requiring a land disturbance permit under this article) shall have been issued by the community development director allowing such activity, pursuant to the provisions herein provided. If a project is to be developed in phases, then a separate land disturbance permit or building permit is required for each phase not to exceed 25-acre increments and the development sequence should be followed on all projects issued a land disturbance permit. (b) No person shall conduct any land disturbing activity within the city's jurisdictional boundaries without first obtaining a permit from the city community development department or its successor to perform such activity and provide a copy of Notice of Intent submitted to EPD if applicable. (c) All developments, construction, improvements, utilities, and demolitions that occur within the boundaries of the incorporated city limits that disturb more than 5,000 square feet of land shall be required to submit an application for a land disturbance permit. (d) The application for a permit shall be submitted to the community development department and must include the applicant's erosion and sedimentation control plan with supporting data, as necessary. Said plans shall include, as a minimum, the data specified in section 20-592. Soil erosion sedimentation and pollution control plans, together with supporting data must demonstrate affirmatively that the land disturbing activity proposed shall conform to the provisions of this section and section 20-592. Applications for a permit will not be accepted unless accompanied by three copies of the applicant's soil erosion, sedimentation and pollution control plans and a physical address of the property owner (post office box not acceptable). All applications shall contain a certification stating that the plan preparer or the designee thereof visited the site prior to the creation of the plan in accordance with EPD Rule 391-3-7-10. (e) A minimum fee, as set by the city council, shall be charged for each acre, or fraction thereof, of the project area. (f) In addition to the city's permitting fees, fees also will be assessed pursuant to O.C.G.A. § 12-5-23(a)(5); provided that such fees shall not exceed $80.00 per acre of land disturbing activity and these fees shall be calculated and paid by the primary permittee as defined in the state general perm it for each acre of land disturbing activity included in the planned development or each phase of development. All applicable fees shall be paid prior to issuance of the land disturbance permit. Half of such fees levied shall be submitted to the division; except that any and all fees due from an entity which is required to give notice pursuant to O.C.G.A. § 12-7-17(9) or (10) shall be submitted in full to the division, regardless of the existence of a local issuing authority in the jurisdiction. (g) The permit applicant shall be required to post a bond (surety) in the form of cash prior to issuing the permit. The bond amount shall be determined as established by the community development department, but not exceeding $3,000.00 per acre or fraction thereof of the proposed land disturbing activity. Surety bonds shall be: 1) on the bond form provided by the City; 2) properly executed by the permit applicant and surety; and 3) issued by a surety company determined to be: a) in good standing with the office of the Georgia Insurance and Fire Safety Commissioner; and b) listed in Circular 570 (Federal Register Vol. 62, No. 126) among companies holding certificates of authority as acceptable sureties on Federal bonds and as acceptable reinsuring companies. (1) If the applicant does not comply with this article or with the conditions of the permit after issuance, the city may call the bond or any part thereof to be forfeited and may use the proceeds to hire a contractor to stabilize the site of the land disturbing activity and bring it into compliance. (2) If a permit applicant has had two or more outstanding violations of previous permits, this article, or the Erosion and Sedimentation Act of 1975 (O.C.G.A. § 12 -7-1 et seq.), as amended, within three years prior to the date of filing of the application under consideration, the city may deny the permit application. (h) If applicable, immediately upon receipt of an application and plan for a permit, the city shall refer the application and plan to the, district for its review and approval or disapproval concerning the adequacy of the erosion sedimentation and pollution control plan. The district shall approve or disapprove a plan within 35 days of receipt. Failure of the district to act within 35 days shall be consi dered an approval of the pending plan. The results of the district review shall be forwarded to the city. No permit will be issued unless the plan has been approved by the district, and any variances required by section 20-568 (a) (16) and (17), and bonding, if required as per subsection (g) of this section, have been obtained. Such review will not be required if the city and the district have entered into an agreement which allows the city to conduct such review and approval of the plan without referring the application and plan to the district. The Local Issuing Authority with plan review authority shall approve or disapprove a revised plan submittal within 35 days of receipt. Failure of the Local Issuing Authority with plan review authority to act within 35 days shall be considered an approval of the revised Plan submittal. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 6(b)), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 6(b)), 11-17-2008) Sec. 20-592. - Plan requirements. (a) Plans must be prepared to meet the minimum requirements as contained in sections 20-567 and 20-568 of this article or through the use of more stringent, alternate design criteria which conform to sound conservation and engineering practices. The Manual for Erosion and Sedimentation Control in Georgia is hereby incorporated by reference into this article. The plan for the land disturbing activity shall consider: (1) The interrelationship of the soil types; (2) Geological and hydrological characteristics; (3) Topography; (4) Watershed; (5) Vegetation; (6) Proposed permanent structures including roadways, constructed waterways, sediment control and stormwater management facilities; and (7) Local ordinances and state laws. (b) Data required for site plan. (1) All the information required from the appropriate Erosion, Sedimentation and Pollution Control Plan Review Checklist established by the Commission as of January 1 of the year in which the land disturbing activity was permitted (c) Maps, drawings, and supportive computations shall bear the signature/seal of a registered or certified design After December 31, 2006, all persons involved in land development design, review, permitting, construction, monitoring, or inspection or any land disturbing activity shall meet the education and training certification requirements, dependent on his or her level of involvement with the process, as developed by the commission and in consultation with the Division and the Stakeholder Advisory Board cre ated pursuant to O.C.G.A. § 12-7-20. (Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 6(c)), 11-17-2008) Sec. 20-593. - Permits (a) Permits shall be issued or denied as soon as practicable but, in any event, not later than 45 days after receipt by the city of a completed application; providing variances and bonding are obtained ,where necessary and all applicable fees have been paid prior to permit issuance. The permit shall include any conditions under which the activity may be undertaken. (b) No permit shall be issued by the city unless the erosion sedimentation and pollution control plan has been approved by the district or by the city, and unless the city has affirmatively determined that the plan is in compliance with this article, any variances required by section 20-568(a)(1416) and (1517) are obtained, bonding requirements, if necessary, as per section 20-591(g), are met and all ordinances and rules and regulations in effect within the jurisdictional boundaries of the unincorporated city are met. If the permit is denied, the reason for denial shall be furnished to the applicant. (c) If the tract is to be developed in phases, then a separate permit shall be required for each p hase to include the development sequence. (d) The permit may be suspended, revoked, or modified by the city, as to all or any portion of the land affected by the plan, upon finding that the holder or his or her successor in title is not in compliance with the approved erosion and sedimentation control plan or that the holder or his or her successor in title is in violation of this article. A holder of a permit shall notify any successor in title to him or her of the conditions contained in the permit as to all or any portion of the land affected by the approved plan. (e) The city may reject a permit application if the applicant has had two or more violations of previous permits or the Erosion and Sedimentation Act permit requirements within three years prior to the date of the application, in light of O.C.G.A. 12-7-7 (f) (1). (f) It shall constitute noncompliance with this article to engage in land disturbance activity involving clearing, grading, timber harvesting, or grubbing without a permit, which activity may immediately warrant citation. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 6(d)), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 6(d)), 11-17-2008) State law reference—Permits for land disturbing activities, O.C.G.A. §§ 12-7-7, 12-7-9. Sec. 20-594. - City or county construction; compliance with article. All engineering and construction involving land disturbance performed by or on behalf of the city and under the direction of the public works department or any other city entity, whether such engineering or construction is being accomplished on existing and proposed public land or on public easement, shall comply with the requirements of this article and any other ordinances relating to land disturbance, as are applied to private persons and the division shall enforce such requirements upon the City. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 7), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 7), 11-17-2008) Secs. 20-595—20-613. - Reserved. Secs. 20-617—20-635. - Reserved. - DIVISION 5.- DESIGN PROFESSIONAL INSPECTION Sec. 20-636. - Required; exception. The design professional referenced in the state general permit (except when the primary permittee has requested in writing and EPD has agreed to an altern ative design professional) must inspect the installation of BMPs which the design professional designed within seven days after the initial construction activities commenced. The design professional shall determine if these BMPs have been installed and are being maintained as designed. The design professional shall report the results of the inspection to the primary permittee within seven days and the primary permittee must correct all deficiencies within two business days of receipt of the inspection repor t from the design professional unless weather related site conditions are such that additional time is required. The community development director shall withhold the occupancy permit until full compliance has been achieved. (Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 9(a)), 11-17-2008) Sec. 20-637. - Additional reporting requirements. Applicants/owners/operators shall provide the community development director with a copy of any monitoring results submitted to EPD regarding the National Pollutant Discharge Elimination System (NPDES). Reports shall be in a format as prescribed by EPD. A copy of the notice of intent which has been sent to EPD in compliance with the permit requirements must be presented to the community developm ent director prior to the issuance of any land-disturbance permit. (Ord. No. 06-12-72, § 1(ch. 14, art. 7, § 9(b)), 12-7-2006; Ord. No. 08-11-29, § 1(ch. 14, art. 7, § 9(b)), 11-17-2008) Secs. 20-638—20-656. - Reserved.