Call to Order: The meeting was called to order by George Sipe at 7:32 on December 10th, 2002 at City Hall.

Present: David Hanson, Skip Johnson

Guests Present: 8

Old Business: The Minutes from the September 24th meeting were unanimously approved with corrections noted.

New Business: Chairman Sipe stated that the agenda includes two sets of variances as well as the consideration of the rezoning of the Ferrier property and new text for the home occupation ordinance.

Chairman Sipe explained that when the P&Z considers a variance there are certain guidelines the Commission follows. These requirements are specified in Ordinance Chapter 39-1401 and read as follows:
For a Variance to be granted each one of the following should to be true: 1. There are extraordinary and exceptional conditions pertaining to the particular property in question because of its size, shape, or topography. 2. The application of the Ordinance to this particular piece of property would create an unnecessary hardship to the owner of the property. 3. Such conditions are peculiar to the piece of property involved and such 4. Such conditions are not the result of the individual property owner. 5. If granted, the Variance would not cause substantial detriment to the public nor impair the purposes or intent of this Ordinance. 6. If the variance is granted for the use of land or building a structure that is not prohibited by this Ordinance.
Chairman Sipe further stated that regardless of what decision is made by the Planning and Zoning Commission there is a 15 day period in which the decision can be appealed to the City Council.

Variance Requests:

1. 4285 Dove Point – Mr. Lowell Holliday requests a variance to construct a fence in a 60ft. Non-disturb buffer in which additional fencing is specifically named as prohibited.

A written presentation from Lowell and Julie Holliday is attached to these Minutes. Mr. Holliday presented pictures of the completed fence, which was built in 1999. He stated that he had approval to build the fence from the Miramont ARC and that the ARC didn’t have this restriction on the buffer in their drawings. {Mr. Sipe replied to this statement by stating the following: “Actually the Miramont ARC did have this knowledge they know full well that the “undisturbed buffer” is on the registered plat, which is available from the County and anyone can see it. They (Miramont ARC) did you a big disservice by not pointing out that there was a plat restriction.” Commissioner Hanson stated, “this plat should have also been part of your closing documents.”} Mr. Holliday stated that at closing he was given a poor copy of the plat and in truth he did not pay any attention to it. He stated that as time went on he did additional landscaping in the front and added trees to the front and sides so his copy of the plat had become marked up by drawings of these additions because the ARC requires it. He further stated that he had done a lot of work in preparing this area for his children and he has spent over $17,000 on the entire project. He owns child-care centers and understands what needs to be done in order to protect kids and he knows that he must have some type of fence. The style is a split rail fence with a wire backing. He further stated that he thought he was well within the requirements. He built a play set for his children, which is well within the buffer. The fence is the only thing that is in the 60ft. buffer area. Mr. Holliday stated that the two properties to the rear already have fences and he off set his fence for two reasons: One, he couldn’t find the property pin and he believes it could be behind the fence of the other property. Secondly, he had a dog he needed to contain and children he wanted to protect. There was much discussion and many questions asked by the commissioners as to the exact location of the fence in relation to the buffer. Mr. Holliday stated that he would like to keep the fence in place. It has been there since 1999 and everything has been approved by the Miramont ARC. A question was asked as to why this street is different from the rest of Miramont. Chairman Sipe stated that the City was involved in the creation of the plat and the specific text that is put on the plat. The text was not originally there. The developer had the Miramont road cut closer to Lakeshore Drive and the houses were shifted back. The homeowners of the existing Berkeley Lake properties that bordered the area were concerned by this and requested that the developer shift the road so as to create a buffer. It was the developers’ proposal to put the buffer in place in order to address the concerns of the existing homeowners. These plats are carefully discussed and the process is complicated. The plats are reproduced and every homeowner has a copy of it along with the title to the property. The plat specifically states in development notes number 4 that lots numbered 55,56,57,58,59,60,61,62,63 (Mr. Holliday owns lot 55) will have 75 foot rear yard setbacks of which 60 feet will be undisturbed. No fencing will be allowed into this 60ft. undisturbed buffer. It is understood that these restrictions lower the flexibility of the homeowners and therefore possibly the value of the property. This is why it is on the deed and legally must to be disclosed at closing. Mr. Sipe further stated that the P&Z has never granted a variance to a non-disturb buffer because this is the strictest buffer that there is. There were many citizens’ comments in support of Mr. Holliday. There was much discussion and many questions asked about the buffer areas as well as the differences between the City Ordinances and the Miramont ARC. The question was asked if there is a possibility to change the restriction to accommodate the current homeowners. Chairman Sipe stated that the possibility exists that there could be a way to change the plat and that would not be unreasonable. He further stated that he would ask the City Attorney what process could be followed. However, the decision tonight must be made using the existing plat restrictions. He further stated that he hopes the Miramont ARC is not giving people permission to do things without referring them to the City. This is a requirement because a homeowner must get use permits and other permits depending on what type of construction is taking place.
Commissioner Hanson motioned to deny the variance. Commissioner Johnson seconded the motion.
Commissioner Hanson stated that this issue seems to be a situation where a Miramont homeowner had attempted to do the right thing by going to the Miramont ARC. Miramont is not the only area in the City that has restrictions. Many areas throughout the City have restrictions. It does not appear to be fair that on one side of a property line a six-foot fence can be built and just on the other side nothing can be built. It seems that the adjacent property owners are not so concerned about the view so why should it be a concern on the other side. Chairman Sipe agreed and stated that it would speak very strongly in favor of having this changed. Commissioner Johnson agreed that it did not seem fair but the intent of the plat was to keep the area free of any structure. Once we start changing things there is liable to be many things back in there because we opened the door and it should be up to the City to decide whether the door should be opened. It is not up to the P&Z to start the ball. Chairman Sipe agreed and stated that the City needs to look at this issue to see if there is action we can take to change it. There should be a clear standard that applies to everyone.
Approval of the motion to deny the variance was unanimous.
Chairman Sipe stated that he will do two things: He will ask the OEO not to do any enforcement because the City will be actively looking at changing this restriction and he will contact the City Attorney to ask what process the City would have to follow to have a recorded plat changed. Chairman Sipe stated that he hopes there is a reasonable process to follow and that we can come up with a proposal that will serve the people who have this buffer plus the people who the buffer is protecting and that they can agree what is the sensible and a fair thing to do. For purposes of the City Code this comes under Chapter 22-201-A which covers non disturb buffers.
Chairman Sipe stated that the variance request was not approved and that Mr. Holliday has 15 days to appeal the request to the City Council.

2. Property located at the corner of Peachtree Industrial Blvd. And the southeast corner of North Berkeley Lake Rd.
Three Variances – Request to reduce the 50ft. buffer bordering the south property line, abutting the Gwinnett Fire Station to 25ft. beginning at the southeast corner at North Berkeley Lake road, continuing due west for a distance of 450feet and then further reducing the required buffer to 15feet for a distance of 125 feet. Second variance request is to reduce the 50-foot buffer to 15 feet. The third request is to reduce the tree density from 32 units per acre to 18 units per acre.
Mr. Larry Smith presented drawings and plans along with pictures of the landscape plans proposed. He stated that there are only two issues remaining before they can get the grading permit. Those two issues were to provide a landscaping plan and second we needed to apply for a variance to the buffer that was called for between the O&I parcel of land and the M-2 Gwinnett County zoning and also the commercial and the M-2 zoning property. The first variance to address is the tree density. The exceptional condition is that due to the shape there is right-of-way frontage on a majority of the property, which gives us landscaping strips going all the way around. The second issue is that due to the zoning we needed to have four acres of the property to discharge away from Berkeley Lake to help with some of the run off. Currently we have about an acre that flows away from Berkeley Lake and the City has asked us to divert three more acres and send it to the MS – 4 municipal storm system that is currently running along Berkeley Lake Rd. To do that we will need a larger detention pond than normal to over detain the water because we are not allowed by state law to increase the run off from a basin. Trees can’t be planted in a detention pond. Mr. Smith also showed the commissioners what the site would look like if it were kept at the 32 units of trees. This requirement would ultimately require trees be planted where there is proposed parking and if trees are there, we will lose the buildings because we would have no place to park. The 32 units is extremely high for the current standards for commercial use. Gwinnett County currently requires 16 units per acre. Knowing that Berkeley Lake is very proud of the trees we are asking for 18 units per acre. At the 32 units per acre standard the City of Berkeley Lake is basically deeming the property incapable of development for commercial or office which it is currently zoned.
Chairman Sipe stated that all the restrictions on this property which are applicable existed when the property was purchased. Plus the special zoning which applies to this parcel hasn’t changed. This parcel was purchased with all the existing conditions already established. Mr. Smith stated that the landscape requirement has changed. Chairman Sipe stated that might be the case, however the other two buffers were in place. He further stated that there is no subdivision request from PIB & Associates. This is not in the context of a specific development. All this variance does is make the property more valuable by removing certain restrictions. The way the process normally works is that we do grant variances for developments such as this and this development will probably need some variances and I do not see that as an issue. But the variance is always in the context of what specifically is being developed. This request is just to remove some of the buffer requirements and the tree density requirements. There are no customers for each of the locations. You want to clear the trees so that you can create the tracks so that you can have someone buy the buildings that you are going to build. Mr. Smith stated that there is about 100,000 yards of dirt that needs to be taken off this property before anyone will look at it for potential office or commercial use. Chairman Sipe stated that this is really not whether you have tenants or not but whether you are asking for specific subdivision of the property. If you are willing to commit that this is the size of the parcels and this is the way things will be constructed, then we can look at it in the context of a development and it would make sense for us to consider. Mr. Evans stated that this has been done. Chairman Sipe stated that there is no commitment on Mr. Evans part that this is the exact plat. What could happen if we were to grant these variances is that you could clear the property to the maximum that these variances allow and then it becomes just like the property that is owned by Pete Maltese which is just a big flat dirt area. Mr. Evans stated that a year ago they were committed to start development immediately and not leave the property as a moonscape. “We do not want to leave ourselves open to erosion problems. In order for us to start development and build some small office buildings in the back and start some development on the retail in the front, we need to have these issues addressed because it can not be developed as it is right now. This is not a residential development; it is a commercial development and I deal with variances on buffers and these other issues all the time in other cities and all we are asking for is some variances so that when we go in, even though Berkeley Lake will still have ultimate control and we still have to submit a plan to be approved and we still have to submit a landscaping plan in order to get permits to build.” Chairman Sipe stated that by giving variances on the buffers we are reducing some of the benefit to the purposes of the buffers. Mr. Evans stated that buffers are always designed to protect the folks on the other side of the buffer. In this case we have buffers on our side to protect us from Peachtree Industrial. Chairman Sipe stated that there is always an interest in having dissimilar districts protected by a buffer regardless of who is being protected. It is not sensible zoning to allow these districts to be right against each other. He further stated that he does not believe that the requests for the variances are unreasonable things to request. However, we grant these things in a development as part of the plat so that any counter balancing considerations that are necessary are also included on the plat. Mr. Smith stated that this goes back to the problems the City was having several months ago. We submitted a preliminary plat to the City and this is it. Chairman Sipe stated that this plat is not dividing the property into parcels. Mr. Smith stated that yes there are three parcels on the plat. Chairman Sipe asked Mr. Smith if he would like to request that the City consider a subdivision request by breaking this down into the three parcels he is indicating? Mr. Smith stated that this is the preliminary plat that he submitted along with the construction documents to the City. “That goes back to the whole “who is reviewing what” issue that the City had. We were told that the engineer was reviewing this and in our conversations with him, he gave us comments on our plat that needed to be addressed and as far as my conversations with the Mayor we are good to go except for these two variances.” Chairman Sipe stated that we would make the variances conditional on the plat. They would happen at the same time that the property is legally subdivided. So as the parcels are created the variances would apply. We will do what we are directed to do by the City Council but we can more easily consider the variance request and condition it on that specific plat. But we don’t have that specific plat. We don’t have the detail. We don’t have a development plan. Mr. Evans stated that the City Council wouldn’t approve the plat until we get the variances worked out. “So we have been bouncing back and forth for the last year and a half and paying $10,000 a month interest. We are trying to work with you but each one says talk to the other.” Chairman Sipe stated that we just don’t know what unforeseen repercussions there could be if we don’t have the full plat to view. What you have is a big undeveloped parcel with no specific commitment to a particular subdivision or use of it. We would be considering a large variance on the over all parcel without any particulars.
The commissioners asked many detailed questions about the nature of the requests. There was much discussion.
Chairman Sipe explained to the commissioners that by denying the variance request the P&Z is moving the decision of the variances to the Council. The reason we would be denying the request is because we do not have the entire plat and we are not able to make the decision in a complete context. The reason they could overturn the denial is that the variance makes sense to them as they know the plat to exist. “The only thing request that seems reasonable to me that we could do is to grant a variance minimized to only address what is required to accomplish the grading to achieve the detention pond if it could be done no other way. That would be different. That part alone stands separate from the development plan.”
Commissioner Hanson motioned to approve the variance request in its entirety to reduce the 50 foot buffer to 25 feet beginning at the southeast corner at North Berkeley Lake road, continuing due west for a distance of 450 feet, then further reducing the required buffer to 15 feet, for a distance of 125 feet, terminating at the Peachtree Industrial property line on the southwest corner. Commissioner Johnson seconded the motion.
Chairman Sipe stated that he feels this would be a big mistake to legally grant the variance without specifically tying in to a specific plat. “This request is not unusual but they are requesting this with incomplete information and they know it. Whereas you know that if the request is reasonable the City Council, in the context of the complete development will then approve it. You are saying that you will approve it in advance even without complete information and I just believe that is dangerous.”
Mr. Evans asked Chairman Sipe why he is concerned about granting this request. “Regardless of what is built on the property, the buffer needs to be reduced so that we can put a detention pond there.” Chairman Sipe stated that the request was not just for a detention pond and the motion was not just the approval of the buffer in that area but instead for the length of 450 feet and for even a larger amount no where near the detention pond. I am not saying that this is unreasonable for a specific development. You are seeing this as how you would develop it, we can only see it in terms of how it will be graded. Mr. Evans stated that this is the way they are forced to develop it. The median space on Peachtree Industrial Blvd. Was put there so that people could turn left into this property and what you are doing is basically cutting of that entrance right there because we can not put a road in there because the grade is too steep. If you keep a 50 foot buffer we can not have access. It does affect the retail value of the property. Chairman Sipe stated that if he were the City Council he would be looking at this in light of the plat and he would be able to see that the plans are to have an entrance there and how it would all fit in. “Another way to view what I am proposing is that by denial of the variance requests we would be turning our piece of this decision over to the City Council. Once we rule and deny the variance requests, the right to appeal exists. The ball is in the City Council’s court and they can’t send you back to us. They have the entire package. They have the variance requests as well as the plat.”
Mr. Evans stated that the Council is telling us to come to you and now you are telling us to go to them. “If you deny the variance request, Council will look at your recommendation. We are in the middle between the City Council and the P&Z and we are sitting here paying an enormous amount for a property we bought. We are being put in a very awkward position by being put in the middle of two factions that can’t get their act together. The P&Z should not vote on this request. You should give it to the City Council without a vote because you don’t have the proper information. They will look at the denial and take it to heart.” Chairman Sipe stated that he will go on record to say that is not the intent of the Commission. The intent is to put the entire decision in the hands of the people who have the plat.
Commissioner Hanson withdrew the motion to approve the variance request. Commissioner Johnson seconded the motion. A new motion was stated as follows: Whereas the P&Z does not have sufficient information to look at the totality of this development and whereas we don’t want to prejudice the City Council for a decision one way or the other, therefore I move to disapprove both variance requests. Commissioner Johnson seconded the motion. Chairman Sipe stated that the reason for the denial of the variance request is because of insufficient information. This denial is without prejudice.

Ferrier Property Rezoning
Commissioner Hanson motioned to rezone the Ferrier property commensurate with the adjacent property which is R-100. Commissioner Johnson seconded the motion and approval was unanimous. The motion was unanimously approved.

Home Occupation Ordinance
Chairman Sipe explained that Council has asked the P&Z to review the ordinance to specifically spell out what kinds of home business activities would be acceptable. I have researched this extensively with other cities around the country and use some of their ides. I did not take all of the ideas from any of them but I did take some ideas from all of them to fashion together what I believe to best represent what Berkeley Lake needs. This goes in Chapter 39 extending Article 8. The commissioners asked many questions and there was much discussion.
Commissioner Johnson motioned to approve the ordinance as written unchanged. The motion was seconded by Commissioner Hanson. Approval was unanimous.

There being no further business the meeting adjourned at 9:50 PM.