CITY OF BERKELEY LAKE

4040 BERKELEY LAKE ROAD
BERKELEY LAKE, GA 30096-3016
PUBLIC HEARING & CITY COUNCIL MEETING
December 9,1999

Those in attendance for the City Council meeting and Public Hearing were as follows:

Mayor – Marguerite Cooke

Council Members: Tony Arakawa, Kelly Goff ,Tom Kitchens,Sherwin Levinson,Sherry Ruys

City Attorney – Richard Carothers

City Engineer – Earl Duckett

Police Coordinator – Ray Dunlap

Director of Roads and Public Works - Bob Flaherty

Citizens Present: 28 for Public Hearing

                          28 for City Council Meeting

Mayor Cooke explained that the property under consideration for rezoning is located at the southeastern corner of North Berkeley Lake Road and Peachtree Industrial Boulevard and the rezoning has been requested by Berkeley Lake Investments, the property owners. She further explained that a slight change was being made to the agenda; an alternative approach to the proposed rezoning would be presented; citizen comments would be heard and then a short recess would be taken.

Mayor Cooke opened the Public Hearing on rezoning to combination of O&I and Commercial at 7:10 p.m. at 4043 South Berkeley Lake Road.

Marcie Zielazienski (506 Lakeshore Drive) – Is a motel still listed in the agreement as one of the projects that could be built?

Mayor Cooke and City Attorney Carothers both stated yes.

Jane Hardwick (770 Lakeview Lane) – I totally object to extended stay motels, hotels, any type of temporary residence or any more apartments.

There being no further comments, Mayor Cooke closed the Public Hearing at 7:16 p.m., and called to order the Council Meeting.

Mr. Bill Brinegar, electrical engineer, retired corporate executive and strategic planning business consultant, gave the invocation.

Refreshments were provided by Mayor Marguerite Cooke.

AMENDMENT TO AUGUST 12, 1999 COUNCIL MEETING MINUTES

Mayor Cooke explained that due to a personnel change, a portion of the following motion was left out of the minutes, because of that oversight, this amendment was necessary. Mayor Cooke ascertained that Council believed this topic to have been placed on first read.

Councilmember Levinson moved in favor of a resolution amending the August 12, 1999 Berkeley Lake City Council Meeting minutes to read as follows: 

"Regarding Berkeley Lake Investments, Councilmember Levinson moved and Councilmember Kitchens seconded, to place the amendment to the Zoning Ordinance regarding the Berkeley Lake Investments property on first read and to give the City Attorney the authority to complete the agreement between the City of Berkeley Lake and Berkeley Lake Investments Corporation. Vote in favor was unanimous." Councilmember Arakawa seconded, approval was unanimous.

PRESENTATION BY SCOTT JACOBSON, ATTORNEY FOR BERKELEY LAKE INVESTMENTS -

"I am here representing Berkeley Lake Investments, LP, and James Andrews, administrator of the estate of Dorothy Bagwell. These are the owners of the 9+ acres located at Peachtree Ind. Blvd and N. Berkeley Lake Road. I am here to speak in favor of the proposed ordinance. This proposed ordinance is a compromise effort and is supported by the property owners.

(Mr. Jacobson then gave copies of two documents to all members of Council. They were, respectively titled, First Paper and Analysis in support of a property ordinance rezoning of an approximate 9.28 acre parcel located at the southeast corner of Peachtree Industrial Boulevard and North Berkeley Lake Road; Second Paper and Analysis in support of a property ordinance rezoning of an approximate 9.28 acre parcel located at the southeast corner of Peachtree Industrial Boulevard and North Berkeley Lake Road.)

The first document thoroughly covers all six of the factors that are listed in the City of Berkeley Lake Zoning Ordinance, section 39-1501.2. The second document sets forth certain concerns and constitutional challenges regarding the existing zoning of the property.

Several years ago, rezoning of this property was sought and denied. That decision was appealed to the Gwinnett County Superior Court. After much litigation, the case was remanded back to the City of Berkeley Lake for formal consideration of the rezoning ordinance. The resolution of the matter would involve a rezoning of the Office & Institutional property to a combination of Office & Institutional and Commercial zoning classifications, with a number of restrictions and limitations and a very limited list of commercial uses that would be permitted.

We are here in the context of trying to resolve a lawsuit, so we are working around the absence of a site plan, because this ordinance does a handful of things that are very protective, it:

• 1 – Limits the commercial uses to 4.5 acres of the 9.28;
• 2 – Seeks to endeavor to help place where those uses will be on the property;
• 3 – Dramatically limits the number of commercial uses; all uses are specifically delineated, if it is not shown on the list in the proposed ordinance, it is not allowed;
• 4 – Imposes conditions that will require an upscale commercial and office project;
• 5 – Requires that surface area of 4 acres of the property be diverted away from the City of Berkeley Lake and Berkeley Lake itself.

The essence of the proposed ordinance is to allow a mixed use of Office &Institutional and Commercial and to impose conditions that dramatically limit the impact of the use of the property. There are six factors in the proposed ordinance that we believe strongly favor your passage of the ordinance.

• 1 – The mixture of uses is particularly suitable, in light of the mixture of uses on adjacent properties. Under the proposed ordinance the property can be developed with a mixture of limited commercial uses, that are specifically delineated, and office/institution uses that are designed together in a comprehensive fashion, to overcome the difficult to develop topography and triangular shape of this property.
• 2 – The uses contemplated in the proposed ordinance will not adversely affect existing use or the usability of adjacent properties;
• 3 – The property does not have a reasonable economic use as currently zoned; despite extensive efforts by the owners. This limited commercial component is critical to allow development of the property.
• 4 – The proposed ordinance would not permit an excessive or burdensome use of existing streets, transportation facilities, utilities or schools;
• 5 – The uses contemplated in the proposed ordinance conform with the policy and intent of the land use plan currently used by the City of Berkeley Lake;
• 6 – The difficult topographic features of the property, its drainage features and its triangular shape; it has long road frontage and not great depths in certain areas of the property. The natural drainage of the property is to the south and southwest, into the City of Berkeley Lake’s stormwater facilities, including Berkeley Lake. As part of the compromise, the owners would be required to divert runoff from approximately four acres of the property, toward the east by substantial grading and the installation of a stormwater facility on the property; the cost and land needed to accomplish this diversion of the natural stormwataer flow dictates that the entire parcel be developed together, to spread the cost among the entirety of the property.

The owners are willing to accept this proposed ordinance, as it is currently written, as a binding resolution of the lawsuit. Thank you for your time and efforts to obtain a resolution of this matter."

Councilmember Kitchens introduced City Engineer Earl Duckett and Director of Roads and Public Works, Bob Flaherty. He explained that they would present an alternative method of diverting stormwater runoff of four acres of the property away from Berkeley Lake.

Mr. Flaherty stated that he had looked at the property and approximately three acres of stormwater from the property naturally flow away from Berkeley Lake, but ultimately, all water on the western side of North Berkeley Lake Road, will flow back into Berkeley Lake. He explained that the alternatives would be exactly how the water is controlled and filtered prior to leaving the property and that the Gwinnett County Stormwater Manual leaves the methods to the discretion of the designer.

Mr. Flaherty then introduced City Engineer, Earl Duckett. Mr. Duckett stated that Gwinnett County has developed an extensive stormwater design manual, he briefly explained the document and recommended that the proposed agreement be amended to require the developers to adhere to these policies.

City Attorney Carothers explained that if this policy was adopted, any developer would have to adhere to it once it was in place, just as they do any other ordinance.

Mayor Cooke asked if Council were to adopt the Gwinnett County Stormwater Design Manual, and it required more stormwater diversion than the current regulations, which would take precedence. City Attorney Carothers stated that the ordinance would have precedence. Councilmember Ruys asked Mr. Jacobson how their proposed agreement differed from the current regulations. He stated that he didn’t believe there was any difference. However, their engineering studies have determined that virtually all water from the property drains into Berkeley Lake, but the proposed agreement requires any developer to drain four acres away from the lake, through any means necessary.

Councilmember Kitchens asked Mr. Jacobson if the property was actively marketed as it is currently zoned and that no buyers came forward. Mr. Jacobson stated yes. Councilmember Kitchens then asked Mr. Jacobson if, through their studies of possible developments, none would adversely affect this community. Mr. Jacobson stated yes.

Councilmember Kitchens then moved to adjourn into a concurrent working session to discuss the Berkeley Lake Investments property presentations immediately following the citizen comment period, but prior to Council vote, Councilmember Levinson seconded, approval was unanimous.

CITIZEN QUESTIONS – PROPERTY REZONING

George Kaffazakis (490 Lakeshore Drive) – Asked Mr. Jacobson, what is the definition of "upscale"? Mr. Jacobson stated that currently the end user is not known, however, the intention is for a top-notch commercial development; something that would be nice for the City.

Liz Branstead (350 Lakeshore Drive)representing the Berkeley Lake Homeowners Association – Asked Mr. Jacobson, where will the water go, both that which is directed toward the lake, and that which is directed away from the lake. Mr. Jacobson responded by saying that currently all the water drains into Berkeley Lake and their engineers believe the water will continue to drain the same way.

Laura Rockers (3435 Kingsland Circle) – If we approve this proposed agreement and adjacent property owners oppose it, is there legal action they can take to make the agreement null and void. City Attorney Carothers stated the chance is remote.

B.J. Barrett (13 Lakeshore Drive) – I need clarification, will there be more water or not. Mr. Jacobson stated that any development causes elimination of areas for water to seep into the ground thereby causing more runoff which will be an issue for any developer. A typical diversion of large amounts of water is a retention/detention pond, so that the water flows at the same quality and quantity as prior to the development. Mr. Duckett explained the difference in quantity and rate; regulations prohibit an increase in rate of flow, but you will still get the same amount of water, because it will flow at that rate for a longer period of time. This is the purpose of detention/retention ponds, they provide a storage area for the excess water and they are designed to release water at the rate of the undeveloped property.

Dave Meliander (736 Lakeshore Drive) - Does the 4.5 acres allotted for commercial purposes include parking for the development or just the footprint of the property and what about greenspace associated with development. Mr. Duckett explained that all aspects of the project would be included in the proposed acreage, the property would be developed based on all these requirements.

Dave Meilander (736 Lakeshore Drive) – Asking Mr. Carothers if some of the specific uses outlined in the proposed agreement could be eliminated. Mr. Carothers stated that the uses were negotiated over a long period of time, they do not include fast food establishments or gas stations, if you have a specific use, then you should direct it toward the applicant.

Fay Harwell (381 Lakeshore Drive) – Asking Mr. Duckett; detention ponds would control the rate of water, would anything control the quality of water? Mr. Duckett explained that no controls are currently in place.

Bill Brinegar (458 Lakeshore Drive – What are the obstacles in the way of getting this ordinance (Gwinnett County Stormwater Manual) passed? Councilmember Kitchens stated that if the developers follow these guidelines, then he has no problems, but he wants to make sure everyone is comfortable with the agreement. 

Bob Flaherty (112 Ridge Road) – Asking Mr. Jacobson about paragraph 7D, "the property shall be deemed to be one lot", and 7B "the district area to be one acre", what is district area? The property doesn’t meet commercial requirements of 10 acres, that’s why the district area was included, it is being treated as one lot because of the two uses on the property, so that requirements don’t have to be met for two different types of zoning.

Liz Branstead (350 Lakeshore Drive) – Asking Mr. Jacobson when the sculpting of the land be decided. Mr. Jacobson stated that the current proposal provides for four acres to be drained away from Berkeley Lake. Councilmember Levinson stated that a land disturbance permit must be approved prior to any development plan being approved, this agreement does not change our regulations in any way.

Dave Meilander (736 Lakeshore Drive) – Some of the proposed uses are assembly hall/club/lodge, could alcohol be served at any of these facilities. City Carothers stated that the City of Berkeley Lake does not have an ordinance in place to sell alcohol in any way, however, if the building were rented out for private parties, then alcohol consumption would be a possibility.

Cynthia Colgan (4072 S. Berkeley Lake Road) – Are there no required buffers between the two mixed uses and would you have any objections to adding buffers. Mr. Duckett stated no buffers are required between commercial zonings, they are usually used to buffer a residential area from a commercial development and to require buffers in commercial developments, regulations would have to be changed.

Councilmember Levinson moved to modify the agenda to take up a matter of new business related to this issue. Mayor Cooke ascertained that Council had no objections. Councilmember Levinson moved to place an ordinance adopting the latest version of the Gwinnett County Stormwater Design Manual, in its entirety, on first read. Councilmember Kitchens seconded, approval was unanimous.

CITIZEN COMMENTS – PROPERTY REZONING AND OTHER MATTERS

George Kaffazakis (490 Lakeshore Drive) – Would not like to see a hotel, motel or extended stay facility be a part of this rezoning.

Liz Branstead (350 Lakeshore Drive) – I am very concerned about the quality and rate of water that will flow in and we will do everything we can to preserve the environment in our community.

Dave Meilander (736 Lakeshore Drive) – Would like to reiterate the concern about hotel, motel, and extended stay facilities; would like a change made to the agreement not allowing these facilities.

Jane Hardwick ( 770 Lakeview Lane) - I also object to all three facilities.

Bill Brinegar (458 Lakeshore Drive) - Save time if we get a show of hands from those residents opposed to these three facilities.

Mayor Cooke surveyed the audience – a total of 17 citizens were opposed to the hotel, motel, extended stay portion of the proposed agreement.

Margo Petrovsky (105 Ridge Road) – Opposed to quite a few of the proposed commercial developments because of the traffic they will generate.

George Kaffazakis (490 Lakeshore Drive) – Would like to mandate a maximum sign height and maximum amount of signage on this piece of property.

Marcie Zielazienski (506 Lakeshore Drive) – If we could get a hotel like the Hilton, that would be fine, otherwise I am opposed.

PUBLIC REFRESHMENTS & CONCURRENT WORKING SESSION FOR COUNCIL

Mayor Cooke called the Council Meeting back to order at 8:40 p.m.

Mayor Cooke explained that if the Council did not vote or voted against this rezoning, it would be remanded back into court and a judge would make the decision, there will also be no requirement placed by the judge on diverting stormwater from a certain number of acres away from the lake.

Property Rezoning Ordinance

Councilmember Levinson moved to approve the property rezoning ordinance as submitted, seconded by Councilmember Goff. Voting in favor were: Councilmembers Levinson, Goff, Arakawa and Ruys. Those opposed, Councilmember Kitchens. Ordinance was passed.

APPROVAL OF MINUTES

The November 11, 1999 City Council meeting minutes were approved unanimously with three corrections, 1) pages 5 & 6, regarding increasing Police coverage, should read "and Saturday evenings from 4 p.m. until 8 p.m. and 9 p.m. until 1 a.m.", 2) page 6 should read "Gwinnett Open Land Trust", 3) page 6, Contracted Services, should read "Dennis Billew". Approval was unanimous.

APPROVAL OF FINANCIAL REPORT

Councilmember Levinson questioned the amount of money that had been received from utilities franchises. Councilmember Goff explained that the money should be in by the end of the year. Approval of November 11, 1999 Financial Report was unanimous.

ACKNOWLEDGEMENT OF STAFF, COMMISSION AND COMMITTEE REPORTS

The Mayor and Council have received the following reports: Roads and Public Works report; Police report; Zoning Enforcement Officer report; Conservation Commission report; Emergency Management Task Force, Early Warning System and Greenspace Reforestation Committee report from Councilmember Kitchens; Traffic Control Committee, Waste Management and Grants Committee report from Councilmember Arakawa. Councilmember Kitchens reported that the BLEMA meeting will be held on Saturday, December 11, 1999 at 9:30 a.m. at Fire Station #19 on N. Berkeley Lake Road. Councilmember Ruys reported that the Conservation Commission meeting will be held on Wednesday, December 16, 1999 at Berkeley Lake City Hall. Councilmember Arakawa reported that there were 73 violations this month and he thanked Officer Dunlap.

GWMA MEETING REPORT

Mayor Cooke reported that the next meeting will be on Thursday, December 17, 1999 and reservations are required.

OLD BUSINESS 

Revised Conservation Commission Ordinance – 2^nd Read

Councilmember Levinson moved to approve the revised Conservation Commission Ordinance, Councilmember Goff seconded. Mayor Cooke asked for discussion. Mayor Cooke stated that she thought the wording "by resolution" should be stricken. City Attorney Carothers stated those words had been deleted. Mayor Cooke ascertained consensus of Council was to strike the wording. Councilmember Ruys stated that the districts had been changed from North to East. Approval was unanimous.

Appropriations by the Mayor Ordinance – 2^nd Read

Councilmember Levinson moved to approve the Appropriations by the Mayor Ordinance, Councilmember Goff seconded. Approval was unanimous.

NEW BUSINESS

Confirmation of Official City Auditors for 1999

Mayor Cooke explained that the firm of Simmons and Jamieson would like an official motion from Council appointing them to again do the City audit. Councilmember Kitchens moved to appoint the firm of Simmons & Jamieson as official City Auditors for the year 1999, Councilmember Levinson seconded. Approval was unanimous.

Determination of Wetlands – Councilmember Kitchens

Councilmember Kitchens explained that an appraiser was required to evaluate the 9.73 acres that the City is considering purchasing as a possible Corps of Engineers approved wetlands area. Councilmember Kitchens moved in favor of a resolution authorizing the Mayor to expend funds, not to exceed $500.00, to hire an independent appraiser to evaluate the wetlands on the Ferrier property, Councilmember Levinson seconded. Councilmember Ruys asked if the City was required to have permission to allow the appraiser to go on the property. Councilmember Goff will get permission from the property owners. Approval was unanimous.

Reimbursement Authorization for Gwinnett County

Mayor Cooke explained that she had received a letter from Steve North, Assistant Gwinnett County Administrator, asking for authorization to reimburse Berkeley Lake residents for storm damage. Councilmember Goff asked if the City or the citizens would be reimbursed, Councilmember Levinson and Marcie Zielazienski stated it would be the residents. Councilmember Levinson moved to authorize the Mayor to sign the letter authorizing Gwinnett County to seek reimbursement from FEMA and GEMA for Berkeley Lake residents, Councilmember Ruys seconded. Approval was unanimous.

THERE BEING NO FURTHER BUSINESS, COUNCILMEMBER LEVINSON MOVED TO GO INTO EXECUTIVE SESSION AND COUNCILMEMBER RUYS SECONDED FOR THE PURPOSE OF DISCUSSING LAND ACQUISITION AND PENDING AND POTENTIAL LITIGATION. THE VOTE IN FAVOR WAS UNANIMOUS. THE REGULAR COUNCIL MEETING WAS ADJOURNED AT 9:02 P.M.

After Executive Session, there were six citizens present.

Emergency Management Supplies

Councilmember Kitchens moved to approve the purchase of eight (8) two-way radios, at a cost of approximately $200.00 each and twenty (20) reflective vests at a cost of approximately $20.00 each, for members of the Berkeley Lake Emergency Management Agency, Councilmember Levinson seconded. There was brief discussion and the motion was approved unanimously. 

AT 10:03 P.M. COUNCILMEMBER LEVINSON MOVED TO ADJOURN, COUNCILMEMBER RUYS SECONDED. APPROVAL WAS UNANIMOUS.

THE NEXT REGULARLY SCHEDULED COUNCIL MEETING WILL BE ON JANUARY 13, 2000 AT 7:00 P.M.

Respectfully Submitted,

Audrey Turner

Acting City Clerk Assistant