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SPECIAL CALLED COUNCIL MEETING
CITY OF BERKELEY LAKE
4040 BERKELEY LAKE ROAD
BERKELEY LAKE, GEORGIA 30096
Full Minutes for October 5th 2006
Those in attendance for the Council Meeting were as follows:
Mayor: Lois Salter
Council Members:
Bernie Cohen, Walter Anderson, Debbie Guthrie, Tom Kitchens and George Sipe
City Clerk- Jackie Wall
City Attorney- Ron Bennett
City Engineer- Rich Edinger
Citizens Present- 4
CALL TO ORDER
Salter opened the meeting at 7:30 pm at 4043 South Berkeley Lake Road.
I. APPROVAL OF OR CHANGES TO THE AGENDA
Guthrie motioned to accept the agenda, Anderson seconded the motion and all were in favor. The motion passed.
II. MINUTES
Anderson motioned to accept the minutes from the September 21 2006 meeting with the change noted. Kitchen seconded the motion and Anderson, Kitchens, Guthrie and Sipe were in favor. Cohen abstained as he was not at the meeting
III OLD BUSINESS
a) Condemnation proceedings (for easements for stormwater infrastructure)
Salter said that 4 of the 30 easements had not been signed. She described those that were left:
-Hilbers 120/127 Lakeshore Drive- Salter said that Mrs Hilbers was in her nineties and in Alabama with her son. Her son had called today and she described their conversation. After a consultation with the engineer, it was hoped a signed easement would be sent by fax the next day. (Note: The signed easement arrived by fax during the meeting).
-Belt 566 Lakeshore Drive- Salter described the situation, and said that further discussions had continued yesterday. There had been some misunderstandings between Mr. Belt and the engineer about the change in flow of water and hydrology in the last meeting and possible impact of the new infrastructure. The engineer reiterated that the hydrology or flow of water would not change and described the project. There was also discussion with the homeowner about whether the width of the right of way was correct on the survey. The engineer agreed later to go back and confirm that the survey was correct as soon as possible. There was discussion about the stream buffer too. The city attorney confirmed that if the city did the work, it would be to the homeowner’s advantage, as the City would be held responsible for that area and its water flow within the easement in the future. There was much discussion with the homeowner as to whether his objections could be resolved.
-Updegraff- 510 Lakeshore Drive. Salter said that originally the city survey had been incorrect and this had been resolved. However; since then, the homeowners had asked for compensation for the easement based on their previous experiences with other properties outside of Berkeley Lake. Salter said that no one else had asked for this and there was a question as to whether it was fair to pay some homeowners and not others.
Salter went on to describe a similar situation with Mr. Voyles, the new owner of 186 Lakeshore Drive. This property was the biggest concern for the city as a failure has already started and is progressing. Mr. Voyles is not concerned with the project itself, but he had asked the city for compensation in the form of construction of a waterfall on the property, but has since asked for some boulders instead which he would build the waterfall with. Salter explained that could be difficult to quantify to the homeowner's expectations.
Salter described the options available to the city if the easements were not granted: (1) that the homeowners would have to do the project themselves at their own expense to current stormwater development regulations designed by a professional engineer and approved by the city; (2) that the city agrees to the compensation requests by the homeowners in order to get signed easements allowing the city to do the work; or (3) a condemnation could be filed in which case the court would decide how much compensation would be awarded to each homeowner and would grant the city the right to access the property for the purpose of doing the project work. She clarified that the city attorney had told her that the city is not actually taking the property but 'renting' it for a limited expectation of a few days- time enough to do the project and the future maintenance. Therefore, court-ordered compensation would probably be quite small.
Mr. Voyles explained that he would like to be compensated in seven dump truck loads of boulders which he estimated would be approximately $7000-8000. The city engineer said that he would recommend that the city make a payment for compensation, if they chose to, rather than compensate in boulders because of the clarity that would provide. Mr. Voyles described the project he would like to do.
The engineer said that if the property were condemned, both the homeowner and the city could get an appraisal and the values would be argued in court if the homeowner chose to dispute the valuation. The city engineer said he felt the compensation would be less than the amount Mr. Voyles was requesting.
Mr. Updegraff was concerned that the easement area not be minimally valued and was concerned that the easement would substantially decrease the value of his side lot which he may like to build on in the future. It was explained to Mr. Updegraff that that city's side and front set back regulations would not allow him to build in that area without a variance, which may be unlikely to get approved for that area. The city engineer also suggested that the homeowner could request a decrease in property taxes for that area too once the easement was granted. The trees would also be protected in the area as marked and if a tree dies, then the contractor would be responsible for it.
It was clarified again that the city is currently responsible for the infrastructure in the right of way, but the remainder which is on private property is the responsibility of the homeowners The city needs the easements in order to relieve the homeowners of this responsibility, and to accomplish the whole project in a coordinated, cost effective fashion.
There was discussion as to whether just having a temporary easement would be a viable option. The city attorney was of the opinion that this option would constitute improving private property with public funds and would therefore be considered a 'gratuity' with which he would be legally uncomfortable. The city engineer agreed with this opinion and stated there would be a large value to the improvement of the property.
Another option discussed was for the city to complete the project up to the point of right of way, and then force the homeowners to complete the repairs or impose fines up to $500 per day if they did not. If the homeowner paid for their infrastructure, they would also have to maintain it. Additionally, a temporary easement may be needed for the City to access private property for inspection to ascertain that such a private stormwater facility was properly operating. The city attorney said that there was disadvantage to not having access to inspect or maintain the infrastructure, and it would also be more expensive in the long term. The city engineer agreed as permanent easements also establish the city's obligations to maintain the pipe. It was agreed that the city has the responsibility to maintain the infrastructure.
It was suggested that the homeowners may request condemnation in order to get compensation for the easement if they wished. Mr. Bennett described the process of condemnation.
There was still consensus that it would not be fair to compensate one homeowner and not offer the same to everyone else who had signed.
Kitchens motioned to condemn the easements for the three properties, Guthrie seconded. Kitchens and Guthrie in favor. Anderson, Cohen and Sipe opposed. Motion failed.
Anderson motioned to allow the homeowners until noon on Monday to consult with property co-owners and let the city know whether they would prefer condemnation, to do the repair themselves at their own expense or to sign the easement. Sipe seconded motion.
There was further discussion regarding whether the option to allow the homeowners to do the repair themselves would only complicate the matter further, and delay the process. It was acknowledged that both the city attorney and the city engineer had advised against this option.
Anderson motioned to amend his motion to include that if there were no response from the homeowners by the deadline on Monday then the city would move forward with the condemnation process. Sipe seconded the motion.
It was noted that these options would still give the homeowner the choice to make the decision to take on the responsibility for repairs themselves or to be condemned, and for the city to not take the required property rights against the homeowners' will.
It was noted that condemnation is a hard decision to have to make in order to make infrastructure repairs for the good of the City, but that it is the council’s responsibility to make that decision.
There was further discussion with the homeowners as to whether they may take the city up on the option to do the project themselves. There was concern about setting a time limit to get the project completed, as well as whether the projects could be started at all without the homeowners’ easement. None of the homeowners present said that they would consider doing the project themselves on their property as they would have no idea how much the project would cost and that cost would probably exceed the compensation a court may offer. It was further noted by the city engineer that sectioning the overall project and coordinating with homeowners who chose to do the work themselves on their property would be very likely to increase the city's costs (rather than reduce them) and that the likelihood was that the project would be more difficult to administer.
Randy Kirkus, Chair of the Public Works committee, said it was the homeowners' responsibility to maintain the infrastructure now and that council should take the responsibility and make the decision to simply condemn the property if the homeowner does not sign the easement. That way the project could move forward and the city would have the responsibility to maintain the infrastructure as it should have been doing for years.
Anderson motioned to amend the motion again to give the homeowners until noon on Monday to consult with spouses and to sign the easements or the city would move forward with condemnation. Sipe withdrew his second to the motion. Guthrie therefore seconded the motion.
It was noted that this option would be mean that some of the homeowners private property rights are being taken by the city. It was also noted that property is not actually being taken from the homeowners, but that the easement allows the city to have access to a portion of the property for repairs and maintenance. It was also noted that the proposed easement would somewhat restrict the use by the homeowner of the property included in the easement.
Anderson and Guthrie were in favor of the motion. Cohen, Kitchens and Sipe opposed. The motion failed.
After further clarification, the motion was restated with a modification being made to the deadline.
Anderson motioned to give the three outstanding homeowners until Tuesday at close of business at 4 pm to provide the city clerk with signed and executed easements or the City would move forward with condemnation. Guthrie seconded the motion. Kitchens, Guthrie and Anderson were in favor. Sipe and Cohen opposed. The motion passed.
IV. CITIZEN COMMENTS
Belt commended the city clerk for the manner in which she had dealt with this issue.
Updegraff noted that condemnation may be the best option.
V. EXECUTIVE SESSION
Kitchens motioned to enter into executive session in order to discuss personnel issues. Anderson seconded the motion. All were in favor, and the motion passed.
Kitchens motioned to exit the executive session. Anderson seconded the motion. All were in favor, and the motion passed.
THERE BEING NO FURTHER BUSINESS, KITCHENS MOTIONED TO ADJOURN THE MEETING AT APPROXIMATELY 10:05 PM. ANDERSON SECONDED THE MOTION, AND ALL WERE IN FAVOR. THE MOTION PASSED.
Respectfully submitted by Jackie Wall. Approved by Council November 2nd, 2006.
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