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HomeMy WebLinkAboutMinutes CC - 01/08/2018Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pm Pagel of 23 This summary is provided as a convenience and service to the public, media, and staff. It is not the intent to transcribe proceedings verbatim. Any reproduction of this summary must include this notice. Public comments are noted and heard by Council, but not quoted. This document includes limited presentation by Council and invited speakers in summary form. This is an official record of the Milton City Council Meeting proceedings. Official Meetings are audio and video recorded. The Regular Meeting of the Mayor and Council of the City of Milton was held on January 8, 2018 at 6:00 PM, Mayor Joe Lockwood presiding. INVOCATION Remco Brommet, Chaplain for the City of Milton Police and Fire CALL TO ORDER Mayor Joe Lockwood called the meeting to order. ADMINISTER OATH OF OFFICE TO ELECTED OFFICIALS (Sworn in by Chief Municipal Judge Brian Hansford) • Mayor Joe Lockwood • Councilmember-Elect Peyton Jamison • Councilmember-Elect Laura Bentley ELECTION OF THE MAYOR PRO TEM (Sworn in by Mayor Joe Lockwood) Motion and Vote: Councilmember Bentley moved to approve Councilmember Joe Longoria as Mayor Pro Tem. Councilmember Kunz seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. ROLL CALL Councilmembers Present: Councilmember Jamison, Councilmember Kunz, Councilmember Bentley, Councilmember Hewitt, Councilmember Mohrig. Councilmember Absent: Councilmember Longoria PLEDGE OF ALLEGIANCE (Led by Mayor Joe Lockwood) Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pm Page 2 of 23 APPROVAL OF MEETING AGENDA (Add or remove items from the agenda) (Agenda Item No. 18-001) Motion and Vote: Councilmember Kunz moved to approve the Meeting Agenda with the following changes: • Move Milton Steelers Proclamation to after Approval of Meeting Agenda. • Move Items # 1 through 46 under New Business (Nominations for City of Milton Boards/Committees) to after the Proclamation. Councilmember Mohrig seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. PUBLIC COMMENT CONSENT AGENDA 1. Approval of the December 14, 2017 Special Called City Council Meeting Minutes. (Agenda Item No. 18-002) (Sudie Gordon, City Clerk) 2. Approval of the December 18, 2017 Regular City Council Meeting Minutes. (Agenda Item No. 18-003) (Sudie Gordon, City Clerk) 3. Approval of the Financial Statements and Investment Report for the Period Ending November 2017. (Agenda Item No. 18-004) (Bernadette Harvill, Finance Director) 4. Approval of a Memorandum of Understanding between the City of Milton and the Cities of Roswell and Alpharetta for Inclusion of Procedures for Managing Shared Assets. (Agenda Item No. 18-005) (Rich Austin, Police Chiefi 5. Approval of the Agreement for Automobile Body Repair Services between the City of Milton and Premier Collision Center, Inc. (Agenda Item No. 18-006) (Bernadette Harvill, Finance Director) Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pm Page 3 of 23 6. Approval of a Consent Order Based Upon Mediated Settlement, Fulton County, Georgia, et al. Petitioners v. Drivetime Car Sales Company, LLC, et al., Respondents; Civil Action File No. 2017CV290578. (Agenda Item No. 18-007) (Ken Jarrard, City Attorney) Motion and Vote: Councilmember Kunz moved to approve the Consent Agenda Items. Councilmember Bentley seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. The following proelattuttioit was moved to after Approval of Meeting Agenda by Motion and Vote during Approval of Meeting Agenda. REPORTS AND PRESENTATIONS 1. Proclamation Recognizing the Milton Steelers Football Team. (Councilmember Matt Kunz) FIRST PRESENTATION Consideration of RZ17-09 Text Amendment to Article IX — Crabapple Form Based Code, 4.9 as it Relates to Parking. (Agenda Item No. 18-008) (Kathleen Field, Community Development Director) 2. Consideration of RZ17-10 Text Amendment to Article XX — Deerfield Form Based Code, 4.9 as it Relates to Parking. (Agenda Item No. 18-009) (Kathleen Field, Community Development Director) 3. Consideration of an Ordinance to Amend the Fiscal Year 2017 Budget to Address the Recognition of Property Tax Revenues and for Other Purposes. (Agenda Item No. 18-010) (Stacey Inglis, Assistant City Manager) 4. Consideration of an Ordinance to Amend the Fiscal Year 2018 Budget to Address the Recognition of Property Tax Revenues. (Agenda Item No. 18-011) (Stacey Inglis, Assistant City Manager) Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pm Page 4 of 23 Motion and Vote: Councilmember Kunz moved to approve the First Presentation Items. Councilmember Mohrig seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. PUBLIC HEARING (None) PUBLIC COMMENT Joshua Scoggins, Miles Hansford & Tallant, LLC, 202 Tribble Gap Road, Suite 200, Cumming, GA 30040 I represent Crescent Resources Inc. which owns two parcels in the T6 Transect Zone. One parcel is a 21 acre tract on Deerfield Parkway and the other is a 34 acre tract that splits Alpharetta and Milton along Morris Road. I noticed that attached to your agenda was a recommendation from a work session to change from prohibited to requiring a use permit in the T6 Transect Zone. I have one housekeeping recommendation that I think will actually help you retain more control over residential uses going forward. Rather than prohibit all of the residential uses besides apartments, if you change the use in your ordinance to require a use permit, I think you would actually be in the same position legally because use permits have the same legal standards as a rezoning but it would severely limit the ability for someone to throw out your whole form based code on a zoning challenge. My point is that if someone wanted to build duplexes or quads on a piece of property, before they could sue you to challenge your ordinance, they would have to come before you and ask you to change it; meaning they would have to file a rezoning application that would essentially take that property out of the Deerfield Form Based Code. I am not saying you would approve it; but that is what they would have to ask for. If they were to challenge the decision not to approve it and they were successful, I think that the order from the court would basically be something to the effect that the Form Based Code does not apply to this property. By making the applicant require a use permit, you still have the ability to approve or deny it just like you would a zoning item, but if they challenged it, the only challenge would be to the use not to all of the other aesthetic and architectural requirements in the Form Based Code. So, I am saying that requiring them to have a use permit, you would be in a better position going forward than you would be just to prohibit them outright. ZONING AGENDA Consideration of RZ17-11 Text Amendment to Article XX — Deerfield Form Based Code, Table 10: Specific Function and Use Regarding the T-6 Transect Zone. ORDINANCE NO. 18-01-332 (Agenda Item No. 17-323) (First Presentation at City Council Meeting on December 4, 2017) (Deferred at City Council Meeting on December 18, 2017) (Kathleen Field, Communit), Development Director) Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pm Page 5 of 23 Kathleen Field, Community Development Director As we discussed at the council work session on December 11, 2017, I relayed to you the fact that the city has a limited amount of land that is available for commercial and office use located within the Deerfield Form Based Code, specifically in the T6 Transect Zone. This zone has received a significant amount of interest from residential developers and we feel that this is our highest density zone within Deerfield. And, allows a height of up to 16 stories which give you a sense of the amount of density that is allowed. So, we had originally proposed that all residential uses in the T6 zone be prohibited. We felt that commercial and office was a much better use for this height allowance. However, we have since modified that request in that we would like to include apartments because as we look at high density mixed use developments in the area, many of them have apartments. By virtue of the fact that apartments are only allowed by a use permit, you would get a chance to review any proposed development on a case by case basis. We felt from an economic development prospective that we could give the ability for apartments but also requiring it to be a use permit as it is now would be a good means of moving forward. In fairness, I will say that we originally discussed this with the Planning Commission, without that modification of allowing the apartments, and all members of the Planning Commission supported the proposal without any residential. Subsequent to our work session, I had an opportunity to bring this issue back to the Planning Commission and relayed to them the idea of including the apartments within that and they unanimously felt that they wanted to deny the recommendation. I wanted you to be aware of that. From an economic development planning perspective, however, and the fact that a use permit is required, we felt that there is sufficient opportunity for review but allows someone if they want to include that type of use in a high density development to at least have the opportunity to bring it forward for consideration. Councilmember Kunz If there was a use permit for apartments, is there any stipulation that the base floor would have to be commercial? Kathleen Field Yes, the base floor has to be a non-residential use or 50% has to be non-residential; commercial or office. Councilmember Kunz So, that is regardless no matter what happens with a use permit they cannot get rid of the base floor and make it residential. Kathleen Field Yes, that is a requirement and then they would still have to come in with a use permit but those requirements are inherent in the use permit. _ Councilmember Jamison Was there any discussion on prohibiting apartments but allowing a use permit for townhomes if someone wanted to construct a mixed use development with townhomes and not apartments? Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pm Page 6 of 23 Kathleen Field No, there was not. Based on the amount of density that is allowed in the T6, we felt that townhomes would not be as dense of a use where with apartments you could construct a high-rise so the density would be reflected. Councilmember Bentley T6 can go up 16 stories and 50% of that can be apartments? Kathleen Field If apartments were part of that mix, only 50% could be apartments; the rest would have to be non - apartment uses such as commercial, office, or retail. Councilmember Bentley And, we have other T2 through T5; those are for residential? Kathleen Field Residential is allowed in those. Councilmember Bentley And, the T6 was specifically identified in the Comprehensive Plan as where we are going to have professional and commercial reserve that for it; is what I found in the Comp Plan. Kathleen Field Yes, a high density development is what we are looking at. So, what type of uses would reflect a high density development and that is clearly commercial and office but we think that apartments could be a part of that use, but again, you would be protected by the fact that it would have to come through a use permit. Mayor Lockwood There is not very much T6 in the city. Kathleen Field That is correct. Mayor Lockwood Do you know approximately how much T6 property is in the city? Kathleen Field No, not off the top of my head. I can tell you that it is located along Deerfield Parkway, Webb Road and Morris Road adjacent to GA 400. So, it is sort of in the areas where there is high density in terms of traffic access. Councilmember Jamison How many apartments could you fit on that piece of property; if you could just ballpark it for me. How many did the applicant come in for the first time? Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pm Page 7 of 23 Kathleen Field I wish Robyn was here. I want to say it was something like 50 or something along those lines but it was all apartments; there was no other use and that was a variance requires that came in as part of that use permit. Councilmember Kunz I just want to comment on the history of this. It was a long time ago when Crescent came in and the rezoning they requested was for all residential. At the time we were looking at it, we had actually just done some type of citizen engagement deal where it was zoned entirely commercial, however, there are some interesting developments that come up that have mixed use and are attractive to a lot of areas and some economic areas are looking at that. So, the form based code was good because it has flexibility of economics so we have commercial and residential depending on what the market bears so that can actually change back and forth. It is not always going to be one thing or another. It can come and go depending on what the use is. An apartment could be renovated to an office and vice versa down to the 50%. So, there is a flexibility that I appreciate because it allows for the form to look a certain way but the use can change based on the rules and parameters that we put into play. If that is the case, and we can maintain that, I think I would be okay with the use permit at 50% on that just because that is how the form based code is designed. I would prefer that it be entirely all commercial and it could if the market bears that but I want to make sure that we have some flexibility so that we don't have empty office spaces either if the market ever goes that route. So, I like the flexibility on that and I know you have worked a long time on this so I want you to know that I appreciate the hard work and just make those comments. Councilmember Bentley In commercial revenue, future commercial revenue, that is what the T6 zone has been set aside for, correct? Kathleen Field Yes, certainly, yes, we would look to grow that area in terms of high intensity commercial office type development with, again, the ability to insert some residences on a case by case basis. Councilmember Bentley And, just to make sure I understand this, so this went to the Planning Commission and did not have apartments. Kathleen Field Correct. Councilmember Bentley When they first voted to approve it (6-0) and then you just did an informal.... Kathleen Field I had an opportunity, subsequent to the council work session on the 11th, the Planning Commission met on December 13th, and so I did bring back to them the fact of what had transpired and my Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pm Page 8 of 23 recommendation to the council at that time and because I had not brought it up previously, I asked them what their thoughts were and at that time they unanimously voted against that recommendation. Councilmember Bentley And, just one more question. Was this a regular text amendment that traveled through the CZIM process? Why did it change after it reached the Planning Commission? Kathleen Field Well, we can always look along the way as it was a work session and so we felt that it was something that we wanted to bring forward. We always try to perfect things as it moves through the process and so we thought that this was certainly relevant and an important addition so we brought it through a work session. City Manager Krokoff I can add to that. Some of the current demand we are seeing out there is that mixed-use, the residential component, we are seeing built in some of the areas surrounding Milton, seems to be the demand. People want to live, work, and play in the same general area and we are seeing the demand going in that direction. That was part of what drove our decision to include some residential component to the T6. You are correct in stating that we are looking to maximize commercial revenues. We have limited T6 areas, in fact, part of our strategic plan is to maximize our commercial areas, but it appears the current development patterns and demands are dictating that there is some mixed component to that which includes residential. Councilmember Bentley Thank you. Mayor Lockwood A couple of things, and I just want to say just to clarify too with the City Manager. When we talk about maximizing our commercial areas, it is not necessarily for development sake, or tax basis, you know we have a limited area of commercial, a small amount of commercial areas, but it more for resources for our citizens. Sometimes people talk about traffic and all but if you can drive to your local restaurant or your store, businesses or office closer, that helps too. So, it is more lifestyle. So, it is certainly not, we are not trying to put in more commercial and spread the rest of Milton but these are just small areas that if you are looking for lifestyle choices for our citizens here. So, it is not necessarily about a revenue or anything like that. A question too, Ken, public comment that we got tonight, can you address that as it pertains to the use permit on duplexes, could you address that? Ken Jarrard, City Attorney So, the way this reads now, obviously, if you look in your agenda packet and look at the actual chart, you will see that there are a bunch of R's there that were allowed by right which have been stricken. So, that means not only could you not do it by use permit but it is not an available use at all whether the council wants it to be a use or not. So, I understand what the speaker was saying. The speaker was basically saying, why bind your hands that way, give yourself some more Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pm Page 9 of 23 flexibility to have a product that you may want and enjoy in that area. That you would, therefore, not be allowed to have by a matter of law and not able to adopt because your code has been changed and, therefore, an applicant cannot request something that is not in your code. However, as you heard the City Manager say, you have left open the apartment accommodation as a special use permit so, in other words, I agree with the speaker that is in the form of a zoning action so you have every right to exercise your discretion and grant apartments. With respect to the dispensability, I am comfortable with the dispensability of this as it is drafted. I will tell you that with respect to the comments that Ms. Field just made, I do agree, however, if you took residential off the table all together, you may, in fact, take away the opportunity for what might be the highest and best use commercial product that is in the nature of the mixed use that requires some component of residential. And, you won't even be able to consider that because you took away the ability to even have a modest amount of apartment by way of a CUP. You do retain your legislative discretion with respect to that special use permit apartment product, so I am comfortable with it as presented to you from a defensibility standpoint. Councilmember Hewitt Is the 50% number, is that set in stone? Kathleen Field Yes, it is part of the use permit criteria for apartments. You can always change it through a text amendment. Councilmember Hewitt So, if we were to approve this tonight, it would be 50% and then we would have to go in and do another text amendment to reduce it. Kathleen Field That is correct, but don't forget, it is 50% or the first floor of the buildings have to be non- residential. There is a choice; one or the other. Mayor Lockwood Clarify that; first floor or, you know, if you had, I am just making up, ten stories, which is 10% so are you saying that if the first floor was commercial then 90% of the building... Kathleen Field That is the way it is written right now. Non-residential use on the first floor or 50% or less for the apartments. Mayor Lockwood Separate buildings for the 50%? _ Kathleen Field Yes, it could be, it depends on how it is built. For some buildings there is a mixed-use vertically, as you know. It would have to total 50%. The commercial and office would have to be at least 50% of the total square footage of the development. Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pm Page 10 of 23 Mayor Lockwood That is a question too. There may be a building that on the first floor you do commercial and the other floors are residential but overall it is still a 50%? Kathleen Field No, it is not. It is one or the other. City Attorney Jarrard Again, that would be, under this modification, with a use permit. Which means, of course, it is up to you to make that determination. That would not be a right. Councilmember Hewitt So, this gives people the right to ask for a special use permit. City Attorney Jarrard That's correct. Councilmember Mohrig Just so I understand, because the 50% is a little bit confusing. We could in fact, that is in the text today, if we approve this, but when we look at the use permit we could make different stipulations or are we locked into what it is that is written? Let's say we don't want it to be just the first floor and the next ten floors are going to be residential, can we change that component? — City Attorney Jarrard Right, you are going to have a lot of flexibility, because think of a use permit just as a zoning if I can, just for your way of thinking. But, what you are not going to be able to do, you are not going to be able to do basically ad hoc text amendments by way of your decision making. So, you are going to have to make decisions within the confines of the performance tables of your code. But, within the performance standards of your code, you are going to be able to make and have a lot of flexibility. I don't think, in other words, if someone comes in and makes an application requesting a product that is consistent with the code as drafted, then you need to consider it consistent with the code as drafted. You can deny it, obviously, under a use permit or you can modify that request in some degree, but again, you can't do text amendments by way of your zoning process. Councilmember Mohrig So, we could still deny it, if someone came in and it met the exact terms of what is in the text, if we pass this, we could still say when we consider that property, that location, we don't have to grant that as a use permit even if they meet the requirements of that use permit. City Attorney Jarrard That is exactly the criteria, though, a special use permit by its legal definition are uses that may not be appropriate in the area where they are applied for. So, they may be appreciate in some areas but not all and that is why the council gets to exercise its discretion and make that determination. So, yes. Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pm Page I 1 of 23 Councilmember Jamison I sat on the Planning Commission when it was originally presented and I support the original plan and I would be open to use permits on other residential besides apartments. Mayor Lockwood Obviously, there is approve, deny or defer if there is more tweaking that someone might have some interest in. City Attorney Jarrard Mayor, can I go back to Councilmember Mohrig's question? I want to make sure I am not adding more confusion. Always, the council, if they get a request for perhaps a certain density in an area, you would have the ability to perhaps lower that density. In other words, if the council decides, and it is in like determination, that there may be an opportunity for residential because it makes sense consistent with what Ms. Field says but you would have the ability to lower that. What you couldn't do is expand it beyond the density that the code otherwise allows. So, you can't do text amendments which is what I am trying to get at. I don't want to confuse you. You will have a great deal of flexibility to act within the confines of the code but you are not going to be able to do what the code specifically prohibits. Councilmember Mohrig Okay, so a standard T6, if it is commercial, if they want to do a residential component, we still have flexibility to deny if someone comes forward and they say I want to do a three story and I want the first story to be commercial and want the other two stories to be residential or apartments; something that is rentable. City Attorney Jarrard So, they would come in for a use permit under this variation of the code and then you could look at it and, of course, as in most zoning decisions there is some give and take or negotiation with the various councilmembers who want to make the product fit if you think it can fit and that might, in fact, mean lessening the amount of density, the amount of residential that is appropriate there. My only point is that you couldn't, for instance, turn the code on its head and say, you can put all your residential on the first floor because that is specifically not allowed by your ordinance. That is the point I was trying to make. Councilmember Mohrig Could you go the other direction? Let's say you think that you want to have more commercial component than just the first floor. Is that within our rights to do that? City Attorney Jarrard Absolutely. Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pm Page 12 of 23 Councilmember Mohrig My concern is that I don't want to get locked into where it looks like we are going to have a legal challenge if someone comes in and they meet the letter of what is in the use permit and we say, no, we don't think it is a good fit. I want to make sure we have flexibility if we approve this to actually deny it or negotiate to get more commercial on that space. City Attorney Jarrard You are going to have that flexibility. Councilmember Hewitt I am still a little confused on the 50% and/or the first floor. So, you are saying, we will go back again to the ten story building. If they do the entire first floor as commercial, then the other nine floors could be all apartments? Kathleen Field They could come in with their application reflecting that, yes, and that would make the criteria for the special permit. However, as our city attorney was saying, you can say that is not enough, you don't have to accept that. And, so you could ask for more or you can deny the petition. That is your purview that you would have under the use permit. Councilmember Hewitt Or, if it is a mix of uses on the first floor, then the ten story building can only be five stories, to use simple math, apartments, which would be 50%. Councilmember Mohrig Or, we could change it anywhere between there if we thought it was not appropriate. Kathleen Field That's right, because the residential mix is in there so you have the purview of looking at it on a case by case. Councilmember Hewitt Can we just deny it because we don't like it? Let's just cut to the chase; a special use permit. City Attorney Jarrard There are a variety of factors that governments can legitimately employ to deny and one of them is aesthetics. You can legitimately deny something for aesthetics. You can legitimately deny something for infrastructure concerns. Those of the sort of case by case specific evaluations on property that we would work together with you on and make a determination if it makes sense for the City of Milton. There would probably be a reason you did not like it. I would want to work through with the council on what specifically it is. Is it too dense? Is it too intense? Is the residential too much? You know the nine stories that someone came up with, with the one floor of commercial and the nine stories of residential. I could very easily see that not making it past the council because the reality is that there wasn't a variation too far different than that which is what got Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pm Page 13 of 23 Crescent denied the first time. The answer is that you are going to have the legislation discretion to deny it and with respect to why we are going to enter into that denial, if we ever get there, I will work with the council on that, but you are going to have a lot of flexibility. Councilmember Hewitt And, Kathy, why apartments versus condo type ownership? Kathleen Field Because we don't distinguish between apartment rentals or condominium ownership. We just talk about the unit and we call that unit an apartment. But, the ownership can be either. City Attorney Jarrard Which I endorse that way of thinking. Councilmember Hewitt I understand that the economic development component of it but I also understand a far-fetched nine stories of apartments. That kind of gives me a little heartburn. Councilmember Mohrig And, that is what my question was. Do we have the flexibility if we say, we don't think this is a right mix, you can still, in fact, deny that. I think that is the concern I am hearing. I know we can't just say no we don't like that. We have to consider it and hear it. As long as we have in our minds we have a legitimate reason to say no, we don't think that it is a good fit for this location; we don't think that is the right mix. City Attorney Jarrard The best answer I can give you is that as long as you are working within the four corners of the ordinance, you have the right to deny it and you have the right to lessen it to a product that is still consistent with your ordinance. So, yes, that is right. The only point I was making is that I don't want to confuse you. You don't have the right to give them something that is outside the contours of what your code allows. Within the contours; absolutely. If it is too intense, it is too intense. Many governments deal everyday with developments that meet the performance standards of the code that are still too intense for that area. It happens every day. Mayor Lockwood Someone was commenting about the ten stories or nine stories and that is why I brought up that example because that goes from 50% to all of a sudden 90% residential with just a small change. So, 90% is pretty close to 100%. City Attorney Jarrard Mr. Mayor, I have one more question if I may. Kathy, is it your understanding and forgive me for not knowing this off the top of my head, but is it your understanding that if the council approves this this evening then the moratorium expires as a matter of law? Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pm Page 14 of 23 Kathleen Field Yes. City Attorney Jarrard That was my understanding as well and I thought that was the case and I just wanted to bring that to your attention. Councilmember Kunz I am trying to think of the place in Alpharetta on Northpoint Parkway. They have a place that has first floor commercial with apartments as well. I just looked at that, I don't know the name of it, but it has some qualities to it that has some mixed use that is pretty vibrant. The apartments were not dilapidated in any way. They were actually pretty upscale. There were fancy restaurants down below with people walking around. I am not for a lot of apartments but I like the flexibility of having that option and that is really my only thinking and there are some examples around here. Maybe you could pick out an example around here that has something like this nearby. We have seen them before. We have seen these designs through GMA courses that we have taken and they are really becoming more popular in Savannah, for example, as well. So, those are the questions, with the flexibility of the form -based code. It is something to consider. I like having that flexibility. We can always so no and I am glad to say no and the requestor I said no to and there was a reason for that so I don't want to limit us as a council either if a good idea comes around. Councilmember Mohrig I think as an example, Matt, what I have seen is in Avalon, you have first floor and then you have two additional stories of high end condos or whatever, and I know downtown Alpharetta is doing the same thing. Getting back to the question to Ken, we still have the flexibility to say, yes, it meets the guidelines of a potential use permit but if we think it is not the right location or the right use or the right mix, we still can deny that component. City Attorney Jarrard That is a very articulate way of saying it. Let me just offer up one more thing to the council and again, we may have some retreats on this or otherwise some of you are very adept at zoning law. The state of zoning laws are in flux right now and I don't guess I have to tell all of you that but the supreme court has issued a series of rulings that have certainly made zoning challenges right now very interesting. But, I will say, in the common vernacular, what I used to call it, the garden variety zoning lawsuit, remember, the issue in a garden variety zoning issue is not the zoning that was requested that was denied, it was the zoning they have. That is what is at issue in a zoning lawsuit. So, to your question, let's say that an applicant comes in for a special use permit and proposes something that is generally consistent with the CUP or a special use permit and you like the product generally but there is too much of it, well, you may decide that you are not going to grant what was requested but you may grant a variation on that that is, in fact, consistent with what you believe is appropriate for the area and consistent with a special use permit. Now, that may not be what the applicant wanted but it is what you like. That would be fine too and then my job or whoever is representing you in the defense if we get sued would be to assert and hopefully defend the council by saying that it is constitutional. Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pm Page 15 of 23 Councilmember Mohrig So, with Joe and Burt's example of the ten stories if they came in with the first floor and then nine and we said, you know what for that location we really think it should be more 50% commercial, we have flexibility to do that. City Attorney Jarrard As long as we are acting in the contours of what our code authorizes us then yes, we might limit the extent of the residential and go ahead and grant that, approve it, they would then sue us and claim that it is unconstitutional that the zoning is unconstitutional and we will argue that it is lawful. Now, it does, in fact, return an economically viable return on their property and investment and they will say it won't. That is the way most of these zoning lawsuits work. Councilmember Bentley I am still going back to that we have T2 through T5 reserve that has residential included in it and we set aside T6, I just want to make sure I understand this for this use, I understand that we want to have flexibility but if we set aside this potential for future commercial development, we don't have much commercial land in Milton, correct? Kathleen Field The form based code allows the height up to 16 stories. It allows a significant amount of density but in terms of allowable uses currently it allows right down to single family homes. It allows T6 and the more we looked at it, we realized that it is probably not the type of density that we want to see in these very valuable T6 zoned areas. Our comprehensive plan and our zoning code, we had really looked at these as being much more intensely developed. And, by allowing those type of residential, low intensity uses, whether it be townhomes or quads or triplexes or single family. That is really never going to develop this area with the intensity that we had envisioned. So, that is why our proposal is to take out all those residential uses but at the same time leave apartments because apartments can be developed at a high density but with a use permit so it gives you the opportunity on a case by case to review those applications. So, that was the thinking behind that. Mayor Lockwood I would just like to make the statement that number one, as I asked earlier this is T6 and very limited. If this was coming forward to us and was considered to be allowed in all our commercial areas, I would be 100% against it. Sometimes, in a small limited area, I would certainly consider it in order to have the flexibility because what you see in a changing market, we all hear that people who live in Milton they may want different options and have to move out of Milton because of it. They may want to downsize, they may be condos or whatever, and again there are cities between us and Sandy Springs that are really having a hard time now because they haven't adapted to some of the newer things that people want and their citizens are moving out. I like the ability to have a little bit of flexibility but we want to make sure it is very limited so it just affects a small percentage of our area so it doesn't sprawl. Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pm Page 16 of 23 Councilmember Kunz You are a dividend investor, right? So, a form based code is kind of like a dividend stock; you make money with the payments of the dividends as well as maybe appreciation, depending on what happens. So, that is the way if the market changes; it allows for that flexibility. I think that is the reason we were looking at it. Mayor Lockwood I will open it up for a motion and it can certainly be approved, not approved, or deferred. I will open up the floor. Councilmember Kunz I make a motion to approve Agenda Item No. 17-323 as is. Councilmember Mohrig Second. Mayor Lockwood I have a motion for approval from Councilmember Kunz and a second from Councilmember Mohrig. Any discussion? Councilmember Hewitt I have another question for Kathy. So, what would it take if we agreed up here as a council that we wanted to have that flexibility, however, we wanted to then maybe change that number lower than 50%. Would we have to direct you to..... Kathleen Field Sure, it is a text amendment. Councilmember Hewitt Then, how could we procedurally, if we agreed we wanted to do that and look at a different number, obviously we couldn't tie a condition to this but how could we make sure that we followed-up if we were in agreement to do that? City Attorney Jarrard I want to make sure I am hearing the right question. If you are simply asking that you want to make sure that the text amendment gets done, my experience with Milton has been that if the council generally shows a consensus even without a formal vote that staff can put it in action. So, I am not the least bit worried about that. Councilmember Hewitt With my colleagues up here and in the spirit of supporting this for the economic and trying to get something from woods turned into something that is doing something, would we be willing to direct staff to look at another text amendment and change the percentage of apartments down from 50%? Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pin Page 17 of 23 City Attorney Jarrard If I may, Mr. Mayor, very quickly procedurally, we have a motion that is pending. All I am asking council here, it is perfectly appropriate what you are asking, please no votes on this because we have a main motion. Councilmember Hewitt This is going to affect how I vote on it. Mayor Lockwood So, explain to me that process. City Attorney Jarrard I think what Councilmember Hewitt is looking for is an informal head nod and I am perfectly fine with that. Mayor Lockwood I get that but if this passes as written down do we go back and do another text amendment? Change this text amendment? Councilmember Hewitt I don't think we can change this to less than 50%. City Attorney Jarrard That is another section of the code. That is my understanding so it is just going to have to start another process to change that section of the code. Mayon- Lockwood So, if this were to pass then the other process could occur. Councilmember Bentley So, what happens between the time this passes and we are working on the other? Applications can come in? City Attorney Jarrard That is correct. Councilmember Jamison And, I am okay with flexibility but my level of flexibility is not nine stories of apartments. That is just my opinion and I will not support the motion and I am okay with townhomes and other types of mixed uses but not.. ,.I was on the Planning Commission and it was presented to us differently and we all supported it. Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pm Page 18 of 23 Mayor Lockwood Going back to the nine stories, that is why I brought it up. It is an example of what could happen. Is that something that we could deny within reason? We have talked about it but just for some comfort here. City Attorney Jarrard Well, a couple of things have to happen. An applicant has to come forward and spend the money to present an application for a use permit consistent with the action you take this evening, I think anybody who knows the council knows that a nine story residential apartment complex over one story of commercial is not going to be well received by the city council. But, I think, if they are foolish enough to make that application, then the council will have its legislative discretion whether that makes sense. That could be either to deny it outright or work with a developer to come up with a product that makes sense or to approve what they asked for. So, you would have all of those options. Councilmember Jamison We are all not going to be sitting here twenty years from now so I want to protect the future council. Mayor Lockwood And, we are talking about possibly moving into the next phase to tweak that. Okay, do I have a motion and a second? Is there any more discussion? Motion and Vote: Councilmember Kunz Councilmember Mohrig seconded the motion. and Councilmember Bentley were opposed. meeting. UNFINISHED BUSINESS moved to approve Agenda Item No. 17-323. The motion passed (4-2). Councilmember Jamison Councilmember Longoria was absent from the 1. Consideration of Amendments to Chapter 20, Soil Erosion, Sedimentation and Pollution Control, Article VI, Soil Erosion within the City of Milton Code of Ordinances. ORDINANCE NO. 18-01-333 (Agenda Item No. 17-321) (First Presentation at City Council Meeting on December 18, 2017) (Carter Lucas, Assistant City Manager) Carter Lucas, Assistant City Manager Periodically, we are notified by the State that changes need to be made to our Erosion and Sediment Control Ordinance to remain in compliance with the minimum State standards established by the model ordinance. In this case, we were notified that there was some language regarding the definition of the final stabilization of the site that needed to be modified. That is what this change does. So, the only change in this ordinance is the mandatory change to the definition of final stabilization. Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pm Page 19 of 23 Motion and Vote: Councilmember Mohrig moved to approve Agenda Item No. 17-321. Councilmember Kunz seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. Tlie following New Business Items #1 through #6 were moved to after Approval of 111eeting Agenda by Motion and Vote during Approval of Meeting Agenda. NEW BUSINESS 1. Consideration of a Resolution Appointing or Reappointing Members to the City of Milton Board of Zoning Appeals by Appointing a Board Member At -Large and for District 1/Post 1, District 2/Post 1, District 3/Post 1 and District 1/Post 2. RESOLUTION NO. 18-01-456 (Agenda Item No. 18-012) (Mayor Joe Lockwood) Motion and Vote: Councilmember Hewitt moved to approve the re -appointment of KEN SISSON to the Board of Zoning Appeals At -Large member. Councilmember Kunz seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. Motion and Vote: Councilmember Kunz moved to approve the appointment of RICH JOHNSON to the Board of Zoning Appeals District 1/Post 1 member. Councilmember Bentley seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. Motion and Vote: Councilmember Jamison moved to approve the re -appointment of TODD CHERNIK to the Board of Zoning Appeals District 2/Post 1 member. Councilmember Mohrig seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. Motion and Vote: Councilmember Bentley moved to approve the re -appointment of KIM KELLER to the Board of Zoning Appeals District 3/Post 1 member. Councilmember Kunz seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pm Page 20 of 23 Motion and Vote: Councilmember Kunz moved to approve the re -appointment of HODGE PATEL to the Board of Zoning Appeals District 1/Post 2 member. Councilmember Mohrig seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. 2. Consideration of a Resolution Appointing a Member to the City of Milton Cultural Arts Committee for District 1/Post 1. RESOLUTION NO. 18-01-457 (Agenda Item No. 18-013) (Mayor Joe Lockwood) Motion and Vote: Councilmember Bentley moved to approve the appointment of KEVIN SWAN to the Cultural Arts Committee District 1/Post 1 member. Councilmember Hewitt seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. 3. Consideration of a Resolution Appointing or Reappointing Members to the City of Milton Design Review Board by Appointing a Board Member for District 1/Post 1, District 2/Post 1, District 3/Post 1 and District 1/Post 2. RESOLUTION NO. 18-01-458 (Agenda Item No. 18-014) (Mayor Joe Lockwood) Motion and Vote: Councilmember Kunz moved to approve the re -appointment of MARTY LITTLETON to the Design Review Board District 1/Post 1 member. Councilmember Bentley seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. Motion and Vote: Councilmember Hewitt moved to approve the appointment of BENIQUEZ PALMER to the Design Review Board District 2/Post 1 member. Councilmember Mohrig seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. Motion and Vote: Councilmember Kunz moved to approve the re -appointment of LAURA WYSONG to the Design Review Board District 3/Post 1 member. Councilmember Bentley seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pm Page 21 of 23 Motion and Vote: Councilmember Jamison moved to approve the appointment of REID CASEY to the Design Review Board District 1/Post 2 member. Councilmember Bentley seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. 4. Consideration of a Resolution Appointing or Reappointing Members to the City of Milton Equestrian Committee by Appointing a Board Member At -Large and for District 1/Post 1, District 2/Post 1 and District 3/Post 1. RESOLUTION NO. 18-01-459 (Agenda Item No. 18-015) (Mayor Joe Lockwood) Motion and Vote: Councilmember Bentley moved to approve the re -appointment of JULIE SHANNON to the Equestrian Committee At -Large member. Councilmember Mohrig seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. Motion and Vote: Councilmember Hewitt moved to approve the re -appointment of CAROL COOKERLY to the Equestrian Committee District 1/Post 1 member. Councilmember Mohrig seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. Motion and Vote: Councilmember Kunz moved to approve the re -appointment of LIZ DREVET to the Equestrian Committee District 2/Post 1 member. Councilmember Jamison seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. Motion and Vote: Councilmember Mohrig moved to approve the appointment of TONY RICH to the Equestrian Committee District 3/Post 1 member. Councilmember Hewitt seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. 5. Consideration of a Resolution Appointing or Reappointing Members to the City of Milton Parks and Recreation Advisory Board by Appointing a Board Member At -Large and for District 1/Post 1, District 2/Post 1 and District 3/Post 1. RESOLUTION NO. 18-01-460 (Agenda Item No. 18-016) (Mayor Joe Lockwood) Motion and Vote: Councilmember Bentley moved to approve the re -appointment of DAVID SHANNON to the Parks and Recreation Advisory Board At -Large member. Councilmember Kunz seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pm Page 22 of 23 Motion and Vote: Councilmember Kunz moved to approve the appointment of TODD TOWNES to the Parks and Recreation Advisory Board District 1/Post 1 member. Councilmember Mohrig seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. Motion and Vote: Councilmember Hewitt moved to approve the appointment of JASON ALBERICI to the Parks and Recreation Advisory Board District 2/Post 1 member. Councilmember Jamison seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. Motion and Vote: Councilmember Mohrig moved to approve the re -appointment of SCOTT STACHOWSKI to the Parks and Recreation Advisory Board District 3/Post 1 member. Councilmember Kunz seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. 6. Consideration of a Resolution Appointing or Reappointing Members to the City of Milton Planning Commission by Appointing a Board Member At -Large and for District 1/Post 1, District 2/Post 1 and District 3/Post 1. RESOLUTION NO. 18-01-461 (Agenda Item No. 18-017) (Mayor Joe Lockwood) Motion and Vote: Councilmember Bentley moved to approve the re -appointment of PAUL MOORE to the Planning Commission At -Large member. Councilmember Jamison seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. Motion and Vote: Councilmember Kunz moved to approve the appointment of HEATHER SPARKES to the Planning Commission District 1/Post 1 member. Councilmember Mohrig seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. Motion and Vote: Councilmember Mohrig moved to approve the appointment of RON GILBERT to the Planning Commission District 2/Post 1 member. Councilmember Hewitt seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. Regular Meeting of the Milton City Council Monday, January 8, 2018 at 6:00 pm Page 23 of 23 MAYOR AND COUNCIL REPORTS EXECUTIVE SESSION (if needed) ADJOURNMENT (Agenda Item No. 18-018) Motion and Vote: Councilmember Kunz moved to adjourn the Regular Meeting at 8:00 p.m. Councilmember Mohrig seconded the motion. The motion passed (6-0). Councilmember Longoria was absent from the meeting. Date Approved: January 29, 2018 i Sudie AM Gordon, City erk Joe Lockwood, Mafor