CITY OF BERKELEY LAKE

4040 BERKELEY LAKE RD.
BERKELEY LAKE, GA 30136-3016
PUBLIC HEARING
CITY COUNCIL MEETING
February 3, 1998

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

Council Members: Anthony Arakawa, Kelly Goff, Tom Kitchens, Boulton Mohr, Sherry Ruys

City Attorney - Richard Carothers

Mayor - Marguerite Cooke

Zoning Enforcement Officer - Stanley Kelly

City Clerk - Marcie Zielazienski

CITIZENS - Approximately 10

PUBLIC HEARING

REZONING

Mayor Cooke opened the Public Hearing at 7:09 p.m. with a statement of the City’s position regarding rezoning the property, the 9.28 acres at the corner of N. Berkeley Lake Road and Peachtree Industrial Blvd. from R-100, which it is presently zoned, to O & I (Office and Institutional). She stated: It seems by the City to be in the best interest of the health, safety, and welfare of the citizens of Berkeley Lake to consider the rezoning of this property. The matter has gone before the Planning & Zoning Commission; it has been discussed there, and the Planning & Zoning Commission moved to recommend that the City Council rezone the property from R-100 to O & I.

Mayor Cooke then opened the meeting to any public comments. Both sides will be given an opportunity to speak if there are opposing views. However, no side will be allowed more than ten (10) minutes.

Charles Hardwick (770 Lakeview Lane): Does a change to O & I open the property up to the development of the shopping center the community protested previously Is the zoning entirely limited to an office park

Mayor Cooke: Office and Institutional does not include any commercial buildings. There are a number of different things that could be put in there - read the uses from the City Code as follows: cultural facilities; financial services/institutions (with or without drive-in or drive-thru facilities); professional and business offices; public offices; accessory parking garages and parking lots for these businesses; semi public institutions such as churches or clubs; and day care facilities.

Laura Rockers (3435 Kingsland Circle): Why is it recommended that the property be rezoned from R-100 to O & I

Mayor Cooke: As stated previously, the City feels the rezoning would be in the best interest of the health, safety, and welfare of the citizens of Berkeley Lake. There were five concerns in particular which the Planning and Zoning Commission discussed regarding the rezoning of this property:

1. That intersection is already very busy, and the Commission feels that a commer-

cial zoning would only aggravate the situation and would in addition draw more

traffic through the City, which would not be beneficial to the citizens of Berkeley

Lake;

2. Commercial zoning would create more asphalt which in turn could cause more

runoff into the lake. A large parking lot to accompany commercial businesses

could create more pollution to the City and to the lake, i.e., oil and gas.

3. Commercial zoning would increase lighting and noise in the area, particularly

during the night because a lot of things must be done between midnight and 6:00 a.m. There was a concern that this would disturb the residents.

4. Commercial zoning would not be beneficial for this property.

5. Office and Institutional would offer the owner the best use of this property

without harming the interest of the citizens of Berkeley Lake.

Laura Rockers (3435 Kingsland Circle): Is the City being forced to change it from R-100

Mr. Carothers: Think everyone in this room knows that this case is in litigation. The attorney for the property owners is present here. The proposal to change the current zoning to O & I is before the Council to determine whether or not it presents a balancing of interest between the owner and the City, and it may be a more appropriate use on Peachtree Industrial Boulevard than R-100. Those were the issues before the Planning Commission and now before Council.

Scott Jacobson: I am with the law firm of Holt, Ney, Zatcoff & Wasserman and have the privilege of representing the owners of this 9.28 acre tract. They have been the owners of this tract of land for quite a long time. It has been in the Parsons family and the Bagwell family, their descendants and heirs, for many, many years.

This zoning proposal has been initiated by the City Council - not by the owners - and the owners oppose this request. A Constitutional Challenge had been filed previously to this requested rezoning. (He distributed six (6) original copies of the challenge.)

The owners believe very respectfully that they cannot make a reasonable use of the property under the Office and Institutional zoning classification, nor can they under the

R-100 classification. We have studied the problem and have studied the ability to develop the property and believe that the O & I zoning classification is one that is angled and designed to solely improve the City’s position in litigation. It is not made in good faith. The owners believe that this is unfair - they are not being allowed proper use of the property. The owners believe that the application for the O & I classification to this property is an unconstitutional classification - that the property cannot be developed feasibly or reasonably. The City was not asked by the owners to initiate this rezoning of the property and prefers that the City not rezone it.

Ray Coker: (Addressed Mr. Jacobson) To clarify, you are saying that your clients do not approve of the proposed zoning nor do they feel they can benefit from the existing zoning What would the answer be

Scott Jacobson: Our clients, who have owned the property for a long time, put forth a proposal which they thought was a reasonable use of the property. That proposal was denied by the City, and the matter is in litigation at this time to determine whether or not the existing zoning is constitutional. If the zoning is changed, as the City proposes here today, we will forced to keep the matter in court. We do not believe that this is the answer to how this property is to be used. We would like to find a way to use it in a way that would satisfy the City and the owners so everybody could have a reasonable use. We do not think this classification is it.

Since the time of the last application, the City enacted the O & I zoning classification - made it a part of the City ordinances. It was not a part of the ordinance before. There is no property in the City that is zoned O & I currently. Again, we believe the enactment of this particular classification and the effort to zone this property is really designed to enhance the City’s position in litigation, and the City doesn’t reasonably expect the owners to use the property this way. I believe everyone who sits at that table knows too that a reasonable use cannot be made of the property as it is zoned.

Mayor Cooke: Asked if there were any further comments. With none forthcoming, declared the public hearing be ended. The Council meeting will begin at 7:30 p.m.

CITY COUNCIL MEETING

INVOCATION BY BRITT COLLINS:

APPROVAL OF MINUTES:

Mr. Goff motioned for approval of the minutes of January 6, 1998. Mr. Kitchens seconded the motion, and vote for approval was unanimous.

Mayor Cooke clarified: The last paragraph on the first page refers to the City being charged $50 a year for the year for each of the City’s four website domain registrations. Actually, the City is only being charged for two of the four.

APPROVAL OF ZONING ENFORCEMENT OFFICER’S REPORT:

Mr. Kitchens motioned for approval of the Zoning Enforcement Officer’s report for January as submitted. Mr. Mohr seconded the motion, and vote for approval was unanimous.

APPROVAL OF FINANCIAL REPORT:

Mr. Arakawa inquired as to what charges had been applied to Contingency. Mayor Cooke pointed out that specific items are detailed on the transaction report included with the financial statement.

Mr. Mohr motioned for approval of the financial statement through January 31, 1998, as submitted. Mrs. Ruys seconded the motion, and vote for approval was unanimous.

PLANNING & ZONING COMMISSION REPORT:

Mayor Cooke asked if there were any questions or comments regarding the January minutes of the Planning & Zoning meeting or any other matters, which might be addressed to the chairman, George Sipe, who is present.

Mr. Mohr commented that he is delighted that Mr. Sipe and Mr. Bob Herb have re-enlisted for another term on the Planning Commission - have been of good service to the City and will continue to be.

COMMITTEE REPORTS:

Charter Review Committee - Mr. Mohr

Mr. Mohr, commented that the Charter is in a "shaky" state being barely readable. It is now being committed to a more readable state prior to taking the more important steps for revisions later on. Plan to submit the Charter to all the previous mayor’s, who have labored under it, for their comments and input as to how well they think it has worked or for whatever additions or deletions they think might be appropriate. Will also submit copies to the Council and present mayor, and will take it from there.

There are really two areas to be considered in the Charter. One is the procedural area as to how we conduct meetings, i.e., what constitutes a quorum, the role the mayor might play or not play in the legislation that is performed. The other is the possibility of staggering elections so the entire City government is not elected at one time. This last question might be put to the population at large to see how they feel about it, so once Council is ready to move forward, this can be discussed.

City Decorations Committee - Mrs. Ruys

Mrs. Ruys informed that it is too early for a report on this matter.

Council Procedures Committee - Mayor Cooke

Mayor Cooke referred the Council to her letter to the citizens of Berkeley Lake, in which was outlined the citizen comment protocol and the fact that there will be a box by the door for comments. Citizens were also informed that anyone who wants to be put on the agenda may do so by notifying the City Clerk or the Mayor at least six (6) days before the City Council meeting. Reviewed that this is a special committee, and hope after the next Council meeting, it will be deemed appropriate to dissolve it.

Financial Affairs Committee - Mr. Goff

Mr. Goff informed that there is now a full committee with himself as chairman. There are three CPA’s on the committee and an attorney. Plan to review the financial reports we have been given with an eye toward looking into the fact that the bulk of our money is in an uninsured account. The State of Georgia has various funds our money has been invested in through the Local Government Investment Pool (LGIP), an uninsured account.

Plan to find out where the City’s money can be placed to have it best protected. Does not think the City is in any position to gamble. This will be the first order of business.

Homeowner’s Association Advisory Board - Mayor Cooke

Mayor Cooke reported that she has been in contact with all the presidents of the various homeowners associations in the City. Has gotten feedback from all of them, with one exception, as to what day and time would be best to meet. The exception is the homeowners president for River Mansions, who was just elected last night, so nothing could be decided until that election was official.

Intend to have a meeting of the Advisory Board before the next City Council meeting and have a report for Council at that time.

Mr. Mohr inquired as to how frequently Mayor Cooke planned to hold these meetings. Mayor Cooke indicated that it would depend a lot on what is discussed at the first meeting. If the homeowners association presidents believe that once a month is necessary, then will do that. But, if every other month seems sufficient, then will do that.

Ordinance Enforcement Committee - Tom Kitchens

Mr. Kitchens reported that he plans to meet with the City’s police officer, Ray Dunlap, regarding several areas which have been brought to his attention in order to work out an appropriate process or set of procedures whereby violations of City ordinances can be addressed.

Mr. Kitchens said that ordinance violations should be presented to him immediately by personal phone call, fax, or e-mail. Plans to act on the violations as soon as notified but wants to make that sure he does not improperly use this position. Desire to encourage the citizens to obey the ordinances - they are there for a purpose and are in place.

Mr. Mohr suggested that the City Attorney might be included at that meeting because some of the ordinances would properly be enforced by one method or group and some by another, i.e., zoning enforcement would be the responsibility of the ZEO while other ordinances would more properly be for the enforcement of Officer Dunlap.

Traffic Control Committee - Anthony Arakawa

Mr. Arakawa reported that he has met with members of the committee. He is now in possession of the very in-depth traffic surveys that were done last year; there was a good response and quite a broad range of issues that came out through them. Is still tabulating the various issues that were brought forth. Plans to complete this and get the committee together for another meeting by next week

One direction of the committee will be to work with the county to better understand what the City can do with all the streets in Berkeley Lake.

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Mayor Cooke thanked the City Council members for offering to chair the various committees they have volunteered for.

CITIZEN’S COMMENTS:

Mayor Cooke informed that the total time to be given to Citizens Comments will be one half hour. If it appears the comments are going to run longer than this, then the matter(s) being discussed should probably merit a separate hearing. Also, pointed out that there is a citizen comment box over by the door. Invited anyone who would rather submit a comment in writing to please feel free to do so. Plan to read those comments or suggestions and refer them to the appropriate people to act upon them.

Laura Rockers (3435 Kingsland Circle) - Referred to the financial report. Asked for clarification of the services performed by Davey’s Tree Service for which the City paid $2300.

The City Clerk informed that the new rules under the solid waste management program prohibit waste management companies from accepting any yard waste. This presents a real problem, so in response the City contracted with a company to go around the entire community to pickup and mulch yard debris which citizens placed at curbside.

Ms. Rockers asked about the tax check reimbursements. Ms. Zielazienski informed that these reimbursements were made because of double tax payments.

Jane Hardwick (770 Lakeview Lane) -

Suggested that the Council please consider reinstituting the allowing of citizens to burn some leaves and yard debris during the same schedule that the Gwinnett County allows it. Realizes that there are certain times when there should be no burning, but note on Lakeshore Drive that there have been huge piles of bags of leaves that have been filling one side of the street. It is terrible looking even though the mulching was offered. In the City’s ditches and curbside in front of some of the houses there is still a lot of debris. A lot of people have allergies, and a lot of people don’t like to smell smoke, but the well educated citizens certainly know to tend a small leave fire in their yards.

Some discussion ensued regarding the county’s burn ordinance. Mr. Goff is under the impression that no burning is allowed. Mayor Cooke asked Mr. Carothers to comment on the issue.

Mr. Carothers said the county and the state are now very restrictive on any form of open burning. This has created a lot of problems. Have been serving on the Board of Directors of Gwinnett Clean & Beautiful, and in working with the solid waste ordinance, which states that yard debris is not allowed in the land fills, the big question is what to do with it. There are proposals for several forms of disposal, recycling, etc., and any citizen who has any ideas should pass them on to the county. Bags of leaves are finding their way to the sides of roads and Christmas trees could be found all over the highways, but the remedy is not burning.

Jane Hardwick - Could the City write a letter to those who pile up their bags of leaves on the right-of-way and leave them there for months

Mr. Carothers - The City could write a letter if that is an ordinance violation.

Mr. Kitchens - Suggested that the services of a company such as the Davey Tree Company could be employed more often to get rid of the material.

Mayor Cooke - Invited Mr. Kitchens to address this matter under New Business and invited Ms. Hardwick to make a formal complaint to the City regarding concerns about yard waste that is being allowed to become an eye sore.

Mr. Kelly - Informed that he has been in contact with an offending homeowner, who has already arranged with a company to bring in a chipper and get the bags of leaves removed.

Laura Rockers - Inquired if Council has discussed the possible impact to the community regarding the enlargement of Berkeley Lake Elementary School. Is there a need for the City to be involved to protect our interest, as the School Board moves along in their planning and construction

Mayor Cooke - There have been a number of citizens who have expressed concerns regarding the matter, particularly those who have children attending the school Have checked into the matter rather extensively, and from everything learned conclude that this is totally out of our hands as a City. We have no control over what the School Board decides to do there, with their property and with the school building. They, in fact, have the right to do whatever they deem is necessary.

Mr. Arakawa - Sit on the advisory committee for the school. Am working closely with a number of parents that are going through the process of looking at the plans and trying to insure that they conform as closely as possible to minimizing the impact. It is going to be a two story addition with the chief concerns being parking and access in and out of the school without impacting the neighborhood. There are a number of those issues. They are all being addressed by committees set up to do so.

Mayor Cooke - Asked for additional citizens comments. With none forthcoming Council will setup for the working session. Any citizen desiring to leave at this point may do so. Those who would like to stay are welcome.

OLD BUSINESS

CITY HALL EXPANSION:

Mayor Cooke - Distributed to Council a proposed plan and introduced Mr. Bill Mayton, a local architect who drew the plan and who is in attendance. Mr. Mayton was invited to answer any questions or explain anything needing further explanation to the Council regarding the floor plans and elevations being presented for the proposed City Hall.

Mayor Cooke also presented a plan presented by a contractor, which gave a representation of what the building might look like from the outside.

Mrs. Ruys - Inquired if a contractor proposed knocking the walls down and rebuilding to support a new roof.

DISCUSSION: It was pointed out that the walls are all cinderblock. There was some skepticism expressed as to whether these walls could offer the support which would be required. It was then suggested that a great deal of money could be saved by building out and leaving the walls and roof of the current building intact. There were then a number of concerns expressed regarding the close proximity to the street which would result from building out to add on. It was pointed out that, according to the zoning regulations, the building as it stands right now is a non-conforming structure. Building out closer to the street would make it more non-conforming.

Whether to use posts or beams, maybe trusses to support the roof was discussed. Ideas as to how to climate control the building was discussed. The question was raised as to whether the City Clerk would move into the renovated City Hall and what such a move would mean as far as the amount of time which could be devoted to this part-time job if it were located out of her home.

Mayor Cooke - Think one of the main reasons the renovation of City Hall was incorporated into my campaign agenda is in talking with Miss Marcie, she pointed out that she will not have this position forever, and that it is very likely that the next City Clerk will not have the room or the inclination to keep everything in his/her home, and that we would need to have a facility that everything could be put into. Asked Miss Marcie to comment.

Miss Marcie - Do not want to make this a personal issue. Think that what I want is what is best for the City. It is true that I won’t be City Clerk forever, and I do have an unusual situation. For the most part now, I live alone, and this gives me great opportunity to serve the public and my City from my home, and it works well too for many reasons. I work at some very odd hours.

Would like the citizens to understand some things about the City Clerk’s office, i.e., City records and things like that. If the City Clerk’s office was in City Hall and all the records were in this building, it still would not be proper for anyone to come in and look at them anytime. If I am your City Clerk in City Hall, the records would be locked unless I or another representative of the City was present to observe.

Also, in considering having a City Clerk in City Hall the expense must be addressed. Do not think the City Clerk’s job could be done part-time out of City Hall presently. Even now, there are many interruptions during the day with my office in my home where there is an inhibiting factor to having people drop in anytime. If the office were in City Hall there would be no control over who comes and goes; no control over the number of people who might come in simply to ask for directions, whatever is going on. Do not think I could do the job without full-time paid assistance, plus I would have to work full-time and would expect the comparable City Clerk’s salary, which is substantially more than is being paid now.

Mayor Cooke - Sounds as if there is some concern as to whether this is the best thing to do. Asked if Council might have a proposal.

Mr. Mohr - Suggested that it might be a good idea to take advantage of the situation that the City now has, where the City Clerk has, in effect, donated a major portion of her house to the City. She accesses it for City business at what normally would be considered very odd times of day in a business sense.

Some of the historic files could be moved, and there could be some improvements on City Hall with a partial expansion of the building. Do not think it is necessary to move in great haste to build offices as it does not appear that the City Clerk is on the edge of resigning. Suggest that Council move toward a more modest expansion of City Hall at this time with the consideration that it would be expandable when there is a new City Clerk that could not offer the services to the City which Miss Marcie now does.

Mayor Cooke - Sounds as if the community might benefit from a study of the feasibility and desire to do any kind of expansion at this time. Asked for a motion to refer the matter to committee.

Mr. Goff motioned to refer the matter of the City Hall expansion to committee. Mr. Mohr seconded the motion and vote for approval was unanimous.

Mayor Cooke will appoint a committee to carry out the direction of Council.

PEACHTREE LAKES:

Mr. Mohr - The trash collector, BFI, has been contacted and has agreed to alter their collection times to conform with the county’s noise ordinance, which means no more pickups in the "wee" hours. The offending dumpsters that sat across the flume have been moved - both of them behind an existing wall, and the county, as of a week ago gave the current occupant of a particular office building 30 days to enclose their dumpsters and to bring them into conformance with county ordinances.

The next step will be to ask for enforcement of the county’s buffer ordinance, which would seem to require the placement of a permanent buffer (evergreen trees) between the two dissimilar zonings there. That would have to be done at the expense of the property owners in the office park.

Mr. Arakawa - Understands that there is a concern about where the placement of those trees will be, that the feasibility of placement was on the owner’s property, and that he was not willing to incur the costs.

Mr. Mohr - Has the same understanding, but does not believe the owner was made aware of how the county’s buffer ordinance reads. Will request that the county planning people inform the owner as the City does not have rights there.

Mayor Cooke - Desires to clarify whether the committees listed are standing committees or special committees. (She sought confirmation from each of the committee chairman with the results as follows:)

- The Council Procedure Committee, chaired by herself, is a special committee;

- The City Charter/Code Revision Committee, chaired by Mr. Mohr, is a special

committee;

- The City Decorations Committee, chaired by Mrs. Ruys, is a standing committee;

- The Financial Affairs Committee, chaired by Mr. Goff, is a standing committee;

- The Homeowners Association Advisory Board, chaired by Mayor Cooke, will be

a standing committee;

- The Ordinance Enforcement Committee, chaired by Mr. Kitchens, will be a

standing committee;

- The Traffic Control Committee, chaired by Mr. Arakawa, will be a standing

committee.

NEW BUSINESS

REZONING OF THE 9.28 ACRES AT THE CORNER OF N. BERKELEY LAKE ROAD AND PEACHTREE INDUSTRIAL BOULEVARD FROM R-100 TO O & I:

Mr. Cohen, who was on the previous City Council, asked that this rezoning be put on a first read back in August of 1997. However, he cited that this would be a resolution, and the City Attorney has determined that it should have been described as an ordinance, and, therefore, has to brought up under new business for a first read of an ordinance. This would be an ordinance to amend the zoning ordinance of the city of Berkeley Lake to rezone certain property in the City from the R-100 classification to the Office-Institutional classification; to amend the City zoning map to reflect said classification; and for other purposes.

Mr. Mohr motioned to put on a first read that the zoning ordinance of the city of Berkeley Lake be and is hereby amended to rezone that certain tract of property in the city of Berkeley Lake comprising of approximately 9.2 acres at the corner of North Berkeley Lake Road and Peachtree Industrial Boulevard, Map Reference 6290-197 (6289-215), from the R-100 classification to the Office-Institutional classification; and that the zoning map of the city of Berkeley Lake be and is hereby amended to reflect the new zoning classification, on said property and the City Clerk is directed to make the appropriate notification thereon. Mr. Goff seconded the motion, and vote for approval was unanimous.

OUTGOING MAYOR’S GIFT:

Mayor Cooke reviewed that she was asked to authorize a gift for the outgoing mayor, Richard Schmidt, in accordance with tradition. Personally thought a gift certificate for he and his wife to a very fine dining facility in the area would be appropriate. Was told that would not be a substantial enough gift, that such gifts in the past were items such as a full set of golf clubs or a check in the amount of $400 or $500. Did not feel comfortable authorizing such a large expense for this particular item. Desire to lay this on the table for consideration of the entire Council and hopefully get some kind of ruling by the Council for present and future protocol on the matter.

Mr. Mohr told Council that it has been the custom, at least for the previous five mayor’s, prior to Mayor Schmidt, where a gift tailored to something they wanted has been presented at a cost of anywhere between $200 to $400. In light of that custom, proposed that the Council continue the custom with a cost not exceeding $400 for the most recent outgoing mayor, Rick Schmidt. Mr. Mohr motioned that Council authorize an expenditure for a special gift for the outgoing mayor, Rick Schmidt, at a cost not to exceed $400.

Mayor Cooke asked if this is to be, in particular, for the last mayor and not as a precedent or protocol for Council. Mr. Mohr indicated that he has not considered it as a precedent. Think it should be voted upon, as Council is now doing, or authorized by the succeeding mayor as part of his/her discretionary fund. Do not think this should necessarily be made part of the City Ordinance. It is a special gift and, therefore, it is something special that should be determined each time.

Mr. Goff seconded the motion.

DISCUSSION: It was noted by Mr. Mohr that this body has authorized such things for the previous five mayors. Think it would place this Council in a very awkward position to not acknowledge this particular mayor with a similar gift or favor. Mrs. Ruys expressed concern as to when such a precedent would end, whereby, Mr. Mohr indicated that he would have no objection to having it continue. Mr. Goff does not feel the amount is excessive for a gift of this type. It was clarified that by passage of this motion, the City Council would be authorizing this gift. Mr. Mohr volunteered to research and purchase the gift.

Mayor Cooke asked if there was an amendment to Mr. Mohr’s motion that he be authorized by the Council to approach Mrs. Schmidt and determine what Mr. Schmidt would like as a gift from the City.

Mr. Mohr amended his motion to same. Mr. Goff seconded. Mayor Cooke called for a vote on the amendment to the motion. Mr. Goff, Mr. Kitchens and Mr. Mohr voted "yea". Mr. Arakawa and Mrs. Ruys abstained.

Mayor Cooke then called for a vote on the original motion to authorize the expenditure of a gift for the outgoing mayor, Richard Schmidt, not to exceed $400. Mr. Mohr said that is what the Council just voted on - his amended motion. Mayor Cooke clarified that this vote would be to approve the original motion with the amendment.

Mr. Carothers also understood Council was voting on the amendment to the motion and now will vote on the motion as amended. Mr. Mohr disagreed - motion as amended was seconded, voted on and passed.

Mayor Cooke clarified that it is her understanding that the motion that Mr. Mohr originally presented is approved with the amendment that he added and that it is ascertained that the consensus of Council is to proceed.

BILL DOWNEY ADDRESS TO COUNCIL - WATER TESTING BILL:

Basically wanted to make a statement regarding the water testing bill from Analytical Services, Inc. (ASI). There seems to be some dispute over who should be paying this bill. Think it is unfortunate that the bill remains unpaid at this point.

The dispute appears to evolve around the word "authorize". He read a letter which he has prepared (attached herewith). After reading the letter he asked if there were any questions.

Mr. Goff - It is my understanding that the mayor of the city of Berkeley Lake only has authority to commit up to $1,000 without Council’s approval. (It was agreed that this was correct.) Was this expenditure ever brought up and officially voted on by Council (It was never brought up.) Understand the bill was originally to the Berkeley Lake Homeowners Association but was rebilled to the City. Feels it is very difficult for the City to pay the bill as such because it is not legal, not being authorized by the City Council, and the Mayor could only authorize an expenditure of $1,000.

However, because this is a new administration and because we do not really know the who, what, and where at the time, the work was performed, do not want to see anyone hurt, so think some sort of cost sharing between the people who performed the testing and the City could be worked out.

Mayor Cooke - Pointed out that there is in the budget now for 1998 a $2,000 item for lake water testing.

Mr. Mohr - Added that same amount was in the 1997 budget of which only $760 dollars was spend, which would leave a balance of $1,240, and since this was contracted for in 1997 do not think it would be improper to consider applying that amount toward a City commitment at this time.

DISCUSSION: The owner of the business, Mr. Robert Owens, Jr., President of Analytical Services, Inc., was asked to comment. He informed that Mr. Walter Anderson, Mr. Bill Downey, and Mayor Schmidt came to his office. There was a concern that some of the industry in the watershed was polluting the lake. Informed that this type of testing could get expensive. The problem was that nobody had any real specifics on what might be getting into the water. Mr. Downey indicated that the Homeowners Association did not have a large amount of money, so Mayor Schmidt said the City would pay for the testing - cost estimate of $6,000 was presented. There was nothing said about approval or authorization.

A broad spectrum analysis was done. ASI was booked at that point, and people had to be moved around to do the job. ASI still was able to cut $1,000 off the estimate.

Mayor Cooke asked Mr. Owens if the remaining fee could be reduced in any way. He explained that the instrument time needed for these analysis is very expensive. These are $100,000 instruments, and the people who use them are very qualified and demand a good salary. He further explained the procedures used for testing.

Mr. Arakawa asked Mr. Owens if he typically, in day to day business, accepted verbal agreements from his clients or expect that they will follow-up with some sort of acknowlegement. Mr. Owens said his company has accepted a commitment of up to $150,000 on a verbal.

It was noted that the only thing that was detected in the lake water was a reading of zinc. Ms. Branstead, the current president of the BLHA, has spoken with the Environmental Protection Agency about this and they do not feel it is at a level yet to do any harm.

Mr. Walter Anderson addressed the Council to point out the need for a baseline testing to insure in the future that there would be a legally useful piece of information to use to compare what the difference was - that the pollution is here now, but it was not here then.

Mr. Mohr is concerned that the analysis does not contain any conclusions even though there are reams of information regarding the test results. Mr. Owens informed that ASI is an analytical laboratory and does not attempt to enroach on the authority of consulting engineers. That can get very ugly. Most of the clients of ASI are consulting engineers who take the data provided by ASI and explain it for a fee. They also research the state regulations to see if there is a violation. If ASI starts handing out reports saying this is what this means, then this company is getting into consulting. The only thing we are paid for is the analysis.

Mr. Downey was asked if the Homeowners Association would have been prepared to contribute any monies to the testing. He said the Association was not. The 1997 budget was pretty well spent, and any expenditure of $2,500 has to be approved by the membership. Mr. Schmidt was very specifically asked at the meeting at ASI if the Council was going to approve this. He had every opportunity to say this expenditure had to be brought before Council.

Mr. Carothers said Mr. Schmidt’s feelings on this are similar to those expressed in Mr. Downey’s letter. He basically said he would secure any necessary approvals from the City Council. His opinion was that he expected to get the necessary approvals from City Council, and for whatever reason did not do that. As a matter of municipal law, had he written out that he authorized the work in the amount of $5,000 and handed this to Mr. Owens, that would not have been sufficient to bind the city of Berkeley Lake. For instance, if Mayor Cooke came in and said she had authorized the construction for the renovation of City Hall, that would not be valid. The laws in municipal law are to protect the citizens and to protect their tax dollars from being spent in other than the ways that are set out by the Code and Charter. Mr. Schmidt only has the authority of $1,000. Council must authorize any funds that are going to be paid towards this account.

Mr. Carothers further stated that the work has been done, costs have been incurred, and there is a bill to be paid, but there is no authorization yet by the City. The City is within its rights to decline to pay this bill. The decision is for the Council to make. It is a difficult situation with a lot of misunderstandings.

Mr. Mohr was interested if the City could justify an expense of this nature under the responsibility to protect public health and safety.

Mr. Carothers advised that, not withstanding that the lake is privately owned, the pollutants in the lake and the level of pollutants coming into the lake are the responsibility of the City under the storm water protection system. There are storm water regulations; the City has contracted with the county. Personally met Janet Vick, who is with the Gwinnett County Department of Transportation and who is in charge of this program. She indicates that such data would be valuable for the City to have in the event that there was an increase in a heavy metal or other pollutant.

There is a question as to often this should be done. Mr. Carothers could not answer

that. However, the next time it is done, if there is a noticeable increase in a pollutant noted, the City has an obligation under the storm water program to attempt to discern where it is coming from. The water from this lake flows through the spillway and then into the Chattahoochee River. The data itself could be valuable. Think all the authority and authorizations aside that this is what Mayor Schmidt was thinking at the time.

Mr. Kitchens stated that he is of the opinion that Rick Schmidt knowingly authorized something for which he did not have the authority to do so and should be held responsible for anything over $1,000.

Mayor Cooke said that question is not in order at this time. What is on the table is Mr. Downey’s request that the City pay for the water testing bill.

Mr. Goff motioned that the City Council take $2,000 that is in the budget for this year and apply it towards the bill and try to work with the Homeowners Association to see what they would be willing to work out with the people who did the work to bring this to a conclusion. There was no second to the motion.

Mr. Arakawa commented that this was a city official, who, in all probability was working for the best of the community and the citizens of Berkeley Lake. Do not think he approved the expenditure to spend our money arbitrarily or was thinking that he was doing something wrong. Think he was doing something to preserve and call forward what it is his duties as a mayor were. He definitely did not go through the proper procedure and deal with the proper protocol, but he did act on behalf of the City and the intent and goodwill and health and welfare of the community. Suggested that the City Council approve payment of the entire bill and move on. Mr. Arakawa motioned that the City pay the bill in its entirety in the best interest of the community and the Homeowners Association. Mr. Kitchens seconded.

Mrs. Ruys expressed concern that approval of this expenditure might establish a precedent, whereby, Mr. Carothers said that a similar expenditure would have to be handled the same as this one. Council could agree to pay none of it, part of it, or all of it - would be handled on a case by case basis. This is an extremely common situation; where a contractor outside government assumes someone has the authority they do not have.

Mr. Mohr asked Mr. Kitchens if he is still a member of the Board of Directors of the Berkeley Lake Homeowners Association. Mr. Kitchens said he is. Mr. Mohr requested he excuse himself from any further comment and certainly the vote on this particular motion due to a possible conflict of interest.

Mr. Carothers is of the opinion that this is a conflict which will come up occasionally. This particular issue frames the problem just about as directly as can be framed. With there being a question as to which organization is to pay, Mr. Kitchens should probably abstain from the vote. Do not think his contributions to the discussion impact the vote because he is stating what others have stated. Connection of government officials with any of these organizations raises little conflict issues which will come back and haunt Council from time to time. We should be aware of them and deal with them as they come up, in a straight forward manner.

Mr. Mohr is concerned that the Council might authorize an expenditure of $5,000 for something that is "Greek". Would like to see some explanation and conclusion from the Berkeley Lake Homeowners Association or someone that can be provided for us, so that if the vote is affirmative, Council will know what the vote was for.

Mr. Downey suggested that the current president should be consulted, but again stressed that the Homeowners Association does not have the money in its current budget to go out and hire a consulting engineer to study all these results. Think the best solution is to see if we can’t get something from the Environmental Protection Agency. Walter Anderson suggested that there were some contacts at the University of Georgia who might be willing to give some sort of feedback on the nature of what these results mean. These people have been quite helpful in the past on helping us understand the nature of the chemistry of the lake and give direction as to how to deal with it. Mr. Anderson agreed to follow through on that.

Mr. Owens informed that what the attorney has stated regarding a baseline is correct. If the matter goes to court, then the validity of the data and everything else is going to be called into question. If an industry pollutes this lake, then ASI will have to defend this data. Assure you that the offending company will probably get another lab to fight our results, and it will get ugly.

Mayor Cooke called for a vote on the motion that the City pay the bill that has been presented by Analytical Services, Inc. in the amount of $5010 in its entirety. Mr. Arakawa, Mr. Mohr, and Mrs. Ruys voted "yea". Mr. Goff voted "ney". Mr. Kitchens abstained.

CITY COUNCIL MEMBER AND HOMEOWNER AFFILIATION:

Mr. Mohr - Have a difficult time sitting on City Council and trying to figure out those sitting on Council with me that are either officers of or members of the board of directors of the various homeowners associations within the City. Probably what has transpired in the last half hour expresses it quite eloquently. Everybody sitting her, all members of the City Council, have been voted into their positions by the people of the City of Berkeley Lake, the voting body of the community.

If you are sitting in an executive position with any of the city councils within the City, then you have been placed there by a segment of Berkeley Lake. Can’t address the Miramont, Berkeley Walk, Miramont, or Berkeley Field but can address the Berkeley Lake Homeowners Association, and generally speaking, if not always, the slate is provided so that the directors of the associations aren’t even voted into office. Technically speaking, a member has a blank space to fill in a name. One is not even voted into office by the Homeowners Association. This is probably similar in the other associations.

Basically, a Council member is voted into this office city wide, so think if any kind of any issue comes up that conflicts, such as the issue we have seen here, one cannot fully represent the citizens of Berkeley Lake. A member of City Council was not able to vote just a while ago on an important issue regarding a $5,000 expense. This member was voted into office to make decisions like this but had to sit silent. Mr. Mohr stated this as a recommendation. Asked Mr. Carothers if this could be stated as a motion.

Mr. Carothers - It is not a bar to be on the board of directors of a homeowners association and be elected to be a council person for the city of Berkeley Lake. However, the more involvement one has with the homeowners association, whether president or on the board of directors, it is simply going to determine the numbers and intensity of the conflict that one will run into. Will look into whether this can be a motion. It may be something that should be handled by ordinance, but can probably best be handled in the revision of the City Charter.

DISCUSSION: The question was raised as to whether there would be a conflict if one was serving on the Board of Commissioners of Gwinnett County. Mr. Carothers said that most of the commissioners remove themselves from as many of those organizations as possible. However, the potential for conflict is much smaller because Gwinnett County is so large.

Mr. Mohr would rather not make a motion on the matter, would like to see the City Council members withdraw voluntarily, because the question is going to come up again and again in the course of our meetings. We will all have to look around to see who might not be eligible to vote on a given subject, and this could drag meetings on to some extent.

Mrs. Ruys suggested that there might be some circumstances where Mr. Mohr would have to abstain because his wife is involved with City government. Mr. Mohr agreed that this could happen if a vote should arise on such things as compensation. Did abstain when the vote was taken to put her into her present position.

Mr. Arakawa said he never looked at his position as President of the Miramont Homeowners Association as having power influence, never looked at it as someone who had a bit too much going in the community. Looked at the position as being a thread between the school, the subdivision, the Berkeley Lake Homeowners and the City Council. There will be some conflicts, but where does the most value come from Is it those people who really want to serve and try to make it happen in a synergistic way Where do you draw the line between the true intent and looking at an issue to determine if there is a "gray line" Because of the perception of individuals in the community that it wasn’t in the best interest of someone serving on the City Council, came to the conclusion that perhaps, overall, his best impact would be on the City Council. (resigned from the Miramont Homeowners Association).

ROADS AND PUBLIC WORKS - DIRECTOR’S POSITION:

Mayor Cooke informed that there are a few people who have stated an interest in serving on a roads and public works committee. Think it would be appropriate for the director, if Council should desire to hire one, be the chairman of that committee and report directly to Council every month as Mr. Kelly does and that they work in tandem on a lot of the issues and concerns regarding the roads and public works. Public works would include storm water management, among other things. Asked Council to move to establish such a committee and establish a position of director. Propose that the director be paid, perhaps $20 per hour.

DISCUSSION: Council desires to have a job description before voting on the matter. Mayor Cooke will provide this. Some thought $20 an hour was a bit high, so Mayor Cooke will investigate this while researching the job description.

GREENSPACE REFERENDUM:

Mayor Cooke informed that the preference of the citizens was overwhelmingly in favor of leaving the greenspace intact with over 300 votes. To put in a natural walking trail through the area received approximately 150 votes. Asked for approval of Council to proceed with the construction of a natural walking trail. Has had a number of citizens comments that they cannot enjoy the greenspace that they are now paying triple their taxes for. They do not even know how to get in there, let along go see the water fall or whatever else is in there.

Mr. Kelly feels the vote from the figures given shows a huge disparity from one preference to the other. Suggested another vote be taken with just those two options.

Mayor Cooke reviewed that the referendum was set up so people could vote for as many options as they wished, and except for those two just mentioned, the votes were very low.

DISCUSSION: Mr. Mohr pointed out that during the election campaign, a candidate said that he hikes through the area quite often and has noted that citizens hike through with little regard for various banks and contours of the land causing some erosion. The concern has been raised that there are some very irresponsible people going into the area and disturbing the ecology which "flys in the face of what the voters want". While the Council might not approve a formal path, it might be good for the ecology of the area to at least put stakes out or something in an informal way. Would not be voiding the majority and would be saving the land.

Mrs. Ruys stressed that the vote was quite a sizable consensus as taken. There is no question of a few votes between the top vote and the second. It was a difference of 150 votes. There was a large majority who voted to leave the land alone.

Mayor Cooke offered to investigate and have a report back for Council for the making of some kind of natural trail. The unanimous consensus of Council was to leave the greenspace as it is. No further action was forthcoming.

PURCHASE OF A CERTIFICATE OF DEPOSIT:

On the request of the City Clerk to move some operating funds into an interest bearing account, Mr. Goff motioned to move $100,000 into a six month CD as long as it is an approved investment for City governments. Suggested contacting the Georgia Municipal Association for a list of approved investments. Mrs. Ruys seconded the motion, and vote for approval was unanimous.

SOLID WASTE HANDLING COMMITTEE:

Mr. Kitchens motioned to form a committee to study and determine if it would be appropriate to do the gathering and mulching of limbs and leaves more frequently. Mr. Goff seconded them motion, and vote for approval was unanimous. Mr. Kitchens volunteered to chair the committee.

EXECUTIVE SESSION:

Mr. Goff motioned to go into Executive Session to discuss pending litigation. Mrs. Ruys seconded, and motion passed by unanimous vote. After the Executive Session the meeting was called back to order. No citizens were present.

THERE BEING NO FURTHER BUSINESS, MR. ARAKAWA MOTIONED FOR ADJOURNMENT. MR. MOHR SECONDED, AND VOTE WAS UNANIMOUS.

THE NEXT COUNCIL MEETING WAS SCHEDULED FOR MAR. 3 AT 7:00 P.M.

Respectfully submitted,

Marcie E. Zielazienski

City Clerk/Treasurer