Those in attendance at the meeting were as follows:

Chairman: Bob Herb
Commissioners:  Craig Belt, Rodney Hammond, Dan Huntington and Frank Lombardi
City Administrator and P&Z Secretary: Leigh Threadgill
Citizens Present/Guests: Walter Anderson, Julia Distlehurst, Kathryn Robsinson, Linda Craigg, Jim Gilpatrick, Lydia Gilpatrick, Eric Johansen, and Fred Victor

I. CALL TO ORDER:
Herb opened the meeting at 6:35 on October 8th, 2007, at 4040 South Berkeley Lake Road.

II. OLD BUSINESS:

a.) Minutes of the August 14th, 2007 P&Z meeting

Lombardi motioned to approve the August 14th minutes. Hammond seconded the motion. All were in favor. The motion passed.
 
III. NEW BUSINESS:

a.) Consideration of Proposed Berkeley Village Preliminary Plat condition revision pertaining to hours of operation

Eric Johansen of Crescent Development introduced this project. He stated that he is the developer of Berkeley Village at the corner of Peachtree Industrial Boulevard and North Berkeley Lake Rd, which is currently under development. There has been a request from Snap Fitness, a potential tenant, to change one of the preliminary plat conditions regarding hours of operation. The request is limited to retail uses.  Snap Fitness has set hours of operation and after those business hours the business is self-sufficient and would allow clients to have key card access and everything in the building would be automated. It isn’t manned during a 24-hour period, but is available for use for a 24-hour period.

Johansen introduced Fred Victor from Lavista Associates who represents the landlord that brought the tenant to the development. Johansen went on to say that he estimates less than 5% of the people that utilize this facility will utilize it during these odd hours, but this is Snap Fitness’s business model. It is a new concept coming to Georgia, and Johansen believes they would be an attribute in this location.  He stated that he had worked with the City Attorney to draft the proposed language and is now submitting it for consideration by P&Z.  He directed the attention of the commissioners to the amended language on the preliminary plat.

Herb stated that the purpose of zoning is to regulate land uses. Theoretically, it is used to segregate some uses from others and it ends up being used as a permitting system in practice to prevent new development or development changes from harming residents and surrounding citizens.

Herb gave the background of the preliminary plat condition regarding hours of operation and stated that there were specific businesses legislated to be permitted in this development. Originally, the hours of operation were limited to 6a.m. to 12 midnight. It was meant to prevent all-night drinking facilities and uses of that nature. The proposed Snap Fitness use was never envisioned when the original condition was applied

Herb read the wording of the amended condition into the record. “The normal hours of business operation shall be limited from 6 a.m. to midnight for all retail uses with the exception of an automated fitness facility. The automated fitness facility shall be allowed to operate as a 24-hour business provided the staff hours of operation do not exceed the normal hours of operation previously approved for the development.”

Hammond asked about security when there is no attendant. Victor stated that he does not represent Snap Fitness but represents the landlord for the property. He went on to say that access will be limited, and a key card will be used. In addition, there will be sufficient exterior lighting and a security system on the premises. All of those are thought to be sufficient for the landlord’s purpose. Johansen added that there are cameras that can be accessed remotely showing who is using the facility. The onus is on the owner to be sure that security is tight because that will ensure continued use of the facility. Johansen stated that he can not answer a question about what happens in the parking lot. He stated that he would let Gwinnett police know about the use. Huntington added that it may help keep suspicious activity from occurring in the parking lot if adults are going up to use the facility.

Huntington asked if there are any concerns. Herb responded that he doesn’t see anything wrong with it. He doesn’t think that it will harm any of the citizens that were meant to be protected by the original conditions. From a noise, light, and traffic impact, it doesn’t seem to have any further impact than what was originally intended. 

Huntington asked do we even need the clause that we will not allow them to staff it from 12 a.m. to 6 a.m.  Johansen stated it was worded that way to avoid opening a can of worms so that other users wouldn’t have the argument that they deserve a 24-hour operation.

Lombardi stated that he has a concern that other businesses may want extended hours to their facility if we amend this condition. 

Herb noted that it would be up to P&Z to approve each one on an individual basis. Lombardi stated that there is nothing to say that it stops here and the original intent of limiting the hours was serving some need, some purpose, some concern. Herb added that that was to reduce noise, traffic and light. Lombardi believes that other businesses may approach us if we approve this change. Herb stated that he doesn’t know how many other businesses would have a business model similar to this.

Walter Anderson, 551 Lakeshore Dr., asked to clarify the distinction between the hours of operation and the fact that janitor services, for example, could be provided after hours.

Johansen says that we have already limited the businesses that can go into this development.

Hammond motioned to approve the amended condition to the preliminary plat as submitted. Huntington seconded the motion.

Lombardi asked if retail was limited to certain area on the development. Johansen stated the distinction between retail and office uses was noted on the plat. Lombardi asked if this amendment only applied to that portion of the development for retail uses, and it was answered that that was correct, the amended condition only applied to the retail portion of the site.

Lombardi asked if council would review this. Herb stated that it would go before council for approval.

Lombardi noted that one of his concerns would be an increased cost of police patrol of the proposed use. 

Huntington, Hammond, and Belt voted in favor. Lombardi abstained. The motion passed.

b.) Consideration of changes to the zoning ordinance, Section 39-811.2, Home Occupation Exemptions

Herb stated that Anderson would be going through these wording changes. Herb reiterated the purpose of zoning to permit appropriate uses that don’t harm the citizens. In addition, we should enforce the code that we have and be sure that the practice and the code are consistent. 

Anderson began by giving some history on this topic. He stated that council had heard an appeal to a citation two meetings ago, which council denied. Council assigned the City Administrator, Threadgill, and Council member Anderson to look at the home occupation code and to determine if there were appropriate changes that could be made to the code to address some of the home businesses that exist in the city. It became apparent fairly quickly that this is an example where we have code in place that hasn’t been enforced. This does become a question of how we want the city to treat certain classes of home businesses. Up until now, they’ve been treated by looking the other way. Anderson stated that he and Threadgill researched other municipalities and considered the relationship of the changes to the community in Berkeley Lake. Anderson noted that 39-811.2 (4) adequately summarizes the conclusion he and Threadgill came to regarding the nature of these kinds of uses and the positive impact they have on the community. To summarize, within specific limits, child care and educational activities are exempt, which includes daycares up to a limited size, tutoring, piano instruction and so forth. The only section of current code that these uses violate is that there would be added traffic coming to these businesses. The real impact is to determine what limits are reasonable and what would be an acceptable additional burden of traffic.  None of the other restrictions on home occupations have been permitted with this code change, but just the increased traffic.  What we have is something that would permit us to enhance our community to allow things that are a benefit to our neighbors and ourselves. The net impact would not be harmful to the community in terms of added traffic. The number of students or the number of kids in daycare is a knob that P&Z can turn as well as hours of operation in considering this change. The limits we came up with here are what we think are reasonable in terms of the operation of the business but would also reduce the side impacts on neighbors.

Herb stated that there are some additional sections of current code that would be violated by the home occupations proposed in this change. The first is 39-811.1(2) which requires the home occupation to be conducted within an existing dwelling unit or enclosed accessory structures. Daycares will be operated at least some of the time outside of the home, which would violate this subparagraph. In addition, it would violate 39-811.1(6) that customers and clients can not come to the premises.

Herb stated that the original intent was for home businesses to be invisible to the neighbors. The area that is difficult for this amendment is that these uses may not be invisible. Herb stated that a previous council heard a request to put a school in a residential district, and it was turned down. The daycare use has become an issue because of a complaint that was received by city hall.

Herb stated a concern that we may end up with an influx of daycare uses in a concentrated area, which would have a traffic impact. We weren’t built to handle that kind of traffic. How do you prevent these from lining up next to each other on a street? Everyone would recognize that we don’t want that to occur, but you have to think of that worst case scenario. 

Belt asked about what size daycare would require state licensing. Anderson responded that he and Threadgill are researching how many kids would warrant that registration or licensing. He went on to say that the registration and licensing requirements do change depending how many children are in the daycare.

Kathryn Robinson, 4710 Berkeley Walk Point, stated that you don’t have to be licensed to keep children.  One of the reasons that she moved into Berkeley Lake is because it’s like a small town and finding child care around the corner is hugely beneficial. If you change this then you are changing things that are vital to the community. If you can take your child to piano teachers and to a neighbor for child care, then she can be at home. She added that this amendment should not be denied just because of the worst case scenario happening. She stated that she hopes that this won’t be taken away. She also drew a distinction between in-home daycares and schools.

Lydia Gilpatrick, 4614 Briar Hill Cove, stated that she is running a home day care and is not licensed with the state.

Anderson noted that that is something that we are asking for as part of a requirement for family day care homes. Anderson stated that the correct word may be registering and not licensing, but we’re still looking into that. The suggested code change makes a clear distinction between a daycare situation and a tutor or piano teacher in terms of the number of children at the home. In the tutoring situation you would be permitted up to 2, but the daycare use permits up to 6. Anderson stated that we are differentiating between the daycare use and the educational use.

Anderson stated that there is already an exemption for certain businesses to receive clients at their home. The list is limited, but that door is already open. He is not aware that that has been abused by anyone in the city. We would also not permit any of the new exemptions to abuse the limits placed on them.

Huntington asked if there were citizens with opposing viewpoints or further input.

There were no citizen comments to this request.

Herb stated that p&z has to answer first the question of should these type of businesses in some form be allowed and if the answer is yes, then we should go down the rabbit hole of determining what boundries to put around such exempt businesses. Further, if we decide to go down this hole, p&z needs to do everything it can to make these businesses as invisible as possible. Herb stated we we’re here to protect citizens who bought a home and they want the area they live in to keep the feel of a residential neighborhood.

Hammond wanted to hear more about the research that was done to arrive at the proposed code changes. Threadgill stated that she looked at codes from nearby cities, but particularly at codes from Duluth, Sugar Hill and Roswell because they had more specific verbiage dealing with these kinds of uses. In addition, she and Anderson tried to craft language to deal with some of the specific concerns that were voiced about the use.

Hammond asked about the number of children permitted for daycares. Threadgill stated that six was the number that she saw in other codes.  Anderson stated that he researched in-home daycares across the nation.  He found that they were either consistent with what Threadgill stated or that they were similar to our current code and that the municipality turned a blind eye to enforcement against these uses.

Lombardi asked if these changes would address the concerns of the neighbor who complained. Anderson stated that he could not answer that. He stated that the complaint was anonymous so it was not possible to follow up with the complainant to determine whether we were addressing his concerns.

Herb asked about the email from Mayor Salter and what that stated about the anonymous complaint. Commissioners acknowledged that they had received an email from Salter with the concerns from the neighbor that were essentially the increased traffic and noise from outdoor play. 

Herb reiterated that P&Z needs to answer the question about whether we want to allow these types of businesses first and then we should go down the rabbit hole to define the boundaries for such businesses.

Huntington stated he has a hard time legislating based on the thought that the absolute worst case scenario is going to come true. The concern about having one after another coming in seems unreasonable. If we realize that we’ve made some mistake, we can come back and change the code to limit daycares to a certain density. He stated that he thinks it’s highly unlikely that we will have that problem.  Whatever we do, we can come back and revisit it later.

Lombardi asked if there is any permit requirement for home-based business.  It was discussed that that could be added to the code, that these businesses could be registered with the city, but home occupations are not currently required to be registered. Threadgill added that it may be something that can be captured in the occupation tax and business license process, once we get that process begun.

Lombardi stated that the intent of this section of the code is to have invisible businesses. Herb stated that the current code was put in place as it was realized that several undesired businesses wanted to come into the residential neighborhoods. The current code was changed along the way as it was realized that businesses wanted to come in to residential neighborhoods. This was drafted to prevent some of the businesses that were trying to start up in homes in the city.

Julia Distlehurst, 235 Lakeshore Drive, stated that she is a piano teacher. She stated that she bought property in the 70’s and before they closed on their home they asked if she needed an SUP to teach piano in the home. They were told no, it was a service to the community. She stated that she has taught in her home for many years. Historically, some time in the early 90’s, Berkeley Lake went through this exact same thing. It was huge and hit the news. It was resolved. Her memory isn’t clear as to who was on council at the time, but in the resolution of it Gwinnett Daily Post took pictures of Julia teaching in her home.  Julia did not know that she was operating illegally until the issue with the daycare came up. She was shocked to find out from City Hall that the resolution from the early 90’s unfortunately no longer existed. She encouraged the code to be written to resolve this so this doesn’t come up again. This is something that needs to be solved and put in writing so every resident is aware of it. Teaching piano is a protected cottage business. In addition, piano teaching has historically been taught in the home and been protected as a cottage business because that’s the norm for delivery of service.  Music teaching is like tutoring and considered an educational service. She has no more than 2 cars at her home at any time. It’s a student coming and one leaving. Noise never can be an issue. She owns one piano, and only two people can sit there at once. Julia knows all about her clients and families, so she knows that the people coming to her house are safe.  One of the people that has always been very vocal about this is George Sipe. His daughter was on the waiting list for Distelhurst for 7 years, and she ended up referring them to the piano teacher she’s taking from now who works in a neighborhood in Duluth. For piano teaching, this came up in 2000 in Dekalb County. It was well documented and was in the news. Someone complained about the piano teacher and she won her case. The code was re-written in Dekalb County as a result of her case. Music and tutoring are protected in Dekalb County as a provision of educational services rather than being considered a business.

Distlehurst asked Linda Craigg to come to speak on her behalf and has two letters from others in support of her services. She noted that her piano teaching is her sole income, and if she were cited she would have to sell her house. Distlehurst submitted the letters to P&Z for their review. She stated that way back when she was told that she was safe as long as she kept her nose clean, but did not know that some time after that the code dealing with home-based businesses was re-written.

Linda Craigg, 569 Lakeshore Drive, stated that this has been educational. She is surprised that there is no provision for this kind of business because of the benefit to qualify of life and enrichment of the community for this kind of use to exist. She sees that there is a difficulty in trying to write verbiage for uses such as piano lessons as well as daycares. If you need to deal with them on a case-by-case basis then you can do that so that you can have the enrichment but still regulate these businesses. She can’t imagine living in a community that doesn’t allow provisions for these kinds of businesses.  We’re an intelligent enough community to make these provisions and get the language in the code and not compromise our residents.

Lombardi stated he was very comfortable recommending Section 39-811.2 (4)(a). There was discussion about the distinction between the educational services and the daycare uses.

Belt stated that he is not sure that these kinds of businesses are illegal. He is not convinced that the current code prohibits them.

Lombardi stated that this is like a delivery of service exemption and could be added to 39-811.2(3).  There was discussion.

Huntington stated that some of the other conditions related to that then would have to be changed. Herb added that we probably do need to treat the educational services as a separate class of business because they are different from architects, attorneys, etc., which are already covered under the code.

There was further discussion.

Belt stated that by specifying the uses someone may perceive that we are trying to crack-down and harshly limit these businesses, even if our intent is to somewhat loosen the code. Lombardi stated that adding businesses would be seen as loosening the code, however tight the restrictions are perceived.

Herb noted that there is consensus to do some verbiage changes for the educational uses such as tutoring, arts, music, and dance.

Herb asked about the daycare use. Lombardi stated that he has a big problem with it because of the impact on the neighborhood.

Jim Gilpatirck, 4614 Briar Hill Cove, stated that they have run their daycare for a number of years and had no idea they were in violation by running it. They are willing to deal with whatever restrictions the city would put them under. You can’t drive by and know that anything is going on there. The total number of customers is very small and they depend on this business for income to support the family. He doesn’t know that he sees a great deal of difference between tutoring and the daycare use.

Herb asked how many customers the Gilpatricks serve. Lydia Gilpatrick responded 2 full-time kids and one part-time.

Huntington stated that he is in favor of all of it and doesn’t see a difference between the uses in terms of traffic. There was further discussion.

Several commissioners stated that they aren’t comfortable with six, but that they would be more comfortable with fewer kids for a daycare use.

Huntington asked where the number 6 came from. Threadgill stated that that is the norm in the research that she reviewed in other jurisdictions codes and believes it comes from the state definition of a family day care home.

There was discussion about the registration requirement for family day care homes with the state and whether the city would want to require registration with the city.

Distlehurst asked why we wouldn’t consider the number 6 if that’s what the research supports. She noted that she deals with a lot of families that have lots of kids who would make noise.  Herb and Anderson responded about the significance of the number 6.  The state probably draws the line at 6 for a couple of reasons. One is for enforcement and how many resources the state wants to designate and the other is for ratios of adults to kids.

Huntington noted that even for a daycare, all the kids are not going to be dropped off at the same time.

Huntington motioned to approve the code amendment exactly as written.

There was discussion.

Huntington amended his motion to approve the code amendment as written. Lombardi seconded the motion.

Hammond and Lombardi noted they had no objection to 39-811.2(4)(a).  Herb stated that we should amend condition 3 because there is no other way to meet that. Herb stated that it could be amended to add the specific requirements that do not need to be met, which are paragraphs 5 and 6 of 39-811.1. There was discussion.

Herb asked for discussion about the daycare use. Hammond asked which cities stipulated 6 kids. Threadgill stated that everyone that she remembered reviewing did that. She stated that Duluth, Roswell and Sugar Hill all reference 6 kids. Threadgill added that Duluth limited the number to 6 including the provider’s own children. Hammond added that by comparison we wouldn’t be as restrictive with the amendment as proposed.

Belt asked if someone is babystting one child do they need to be licensed.

Gilpatrick added that you can’t register if you have 2 or fewer children, but you can be registered with more than 2, although registration isn’t required.

There was discussion about whether the city should register these businesses.

Belt stated that the noise is the only thing that would seem objectionable to him with the home daycare.

It was determined to remove subparagraph 4 which states that the use must meet zoning requirements after discussion about the intent behind this restriction.

There was further discussion about the number of children. Gilpatrick added that they have never kept more than 4.  After additional discussion, commissioners came to a consensus that they would reduce the number of kids permitted for daycare uses from 6 to 4.

There was discussion about the hours of operation and it was determined to amend them to be 7 a.m. to 7 p.m.

There was discussion about the hours of outdoor play and it was determined to amend them to be 10 a.m. to 7 p.m.

There was discussion about eliminating 39-811.2(b)(4) and 39-811.2(b)(5). It was determined to eliminate both paragraphs.

It was suggested to add a paragraph “all other requirements of 39-811.1 must be met with the exception of subparagraphs (2), (5) and (6).

The motion was amended with the following changes: 1.) Section 39-811.2 (4)(a)(3) is amended to include at the end of the sentence “except subparagraphs (5) and (6).” 2.) Section 39-811.2 (4)(b) is amended to reduce the number of children from 6 to 4. 3.) Section 39-811.2 (4)(b)(2) is amended to allow hours of operation to be from 7 a.m. to 7 p.m. 4.) Section 39-811.2 (4)(b)(3) is amended to allow outdoor play time to occur from 10 a.m. to 7 p.m. 5.) Section 39-811.2(4)(b) is amended to remove subparagraphs (4) and (5). 6.) Section 39-811.2(4)(b) is amended to include a new subparagraph (4) stating that “all other requirements of 39-811.1 must be met, except subparagraphs (2), (5) and (6).”  Hammond seconded the motion.

The approved text amendment is as follows:

4. The following uses are permitted for the care of children, and for both adult and child educational purposes in recognition of the benefits that child care and educational home occupations provide to the community at large. 
a.) Instruction in music, dance, arts and crafts, or tutoring services within an enclosed building, but limited to two pupils at one time, is permitted subject to the following:
1. Clients are permitted between the hours of 7:00 a.m. and 9:00 p.m.
2. Off-street parking must be provided and utilized.
3. All other requirements of 39-811.1 must be met, except subparagraphs (5) and (6).
b.) The care of not more than four (4) children for compensation is permitted subject to the following:
    1. Off-street parking must be provided and utilized.
    2. The hours of operation shall be limited to 7:00 a.m. to 7:00 p.m.
    3. Outdoor play shall be limited to occur between the hours of 10 a.m. and 7:00 p.m.
     4. All other requirements of 39-811.1 must be met, except subparagraphs (2), (5) and (6).


Belt stated he would like to go on record that he is not in favor with this much detail that he would take a different approach. He would leave it a lot less defined. He would include babysitting, tutoring and music teaching in the exemptions already provided in the current code. He believes it will be difficult to enforce at the city level.

There was discussion about hours for educational services and whether they need to be changed. It was decided to amend the hours of operation for educational services to be 7a.m. to 9 p.m.

Huntington amended the motion again to include all the above amendments as well as to amend 39-811.2(4)(a)(1) to change the hours of operation to be 7 a.m. to 9 p.m.

Hammond, Huntington, and Lombardi voted in favor. Belt voted in opposition. The motion passed.

c.) Consideration of proposed text changes to Section 39-1401, Variances; Application for, Notice and Procedure

Herb introduced this text amendment and explained that the recommendation is to add a paragraph 3 in Section 39-1401, municode section 78-366. This amendment outlines what documentation applicants are to provide when they apply for a variance. Herb read the proposed language into the record: “All applications for variances shall be accompanied by all the building permit documentation that is detailed in Section 78-317 (d).  In addition, applicants shall demonstrate to the planning and zoning commission how the subject property meets all the conditions detailed in Section 78-366 (1) items (A) through (F) or Section 78-366 (2) items (A) through (F), whichever pertains to the application under consideration.”

Lombardi asked what it means to demonstrate. There was discussion about what needs to be submitted with a variance application.

Huntington motioned to approve the text amendment. Hammond seconded the motion.

There was further discussion about the definition of “demonstrate.”

All were in favor. The motion passed.

IV. CITIZEN COMMENTS
There were none.

V. ADJOURNMENT

Huntington motioned to adjourn the meeting at 8:50 p.m. Lombardi seconded the motion. All were in favor. The motion passed.






(Respectfully submitted by Leigh Threadgill, approved by P&Z December 4, 2007)