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HomeMy Public PortalAbout20060508_agenda_mtg 1 MINUTES Planning Commission Agenda Meeting May 08, 2006 – 7:00 p.m. Planning Commission Members present at the Agenda Meeting on May 8, 2006 were: Barry Brown, Sandy Chandler, Bill Garbett, Honor Hutton, Chuck Powell, and Lawanna Tsoulos. Susan Hill, Gene Kindrick and Rachel Perkins were absent. Building and Zoning staff present: Dee Anderson, Warren Millikan and Dianne Otto. City Attorney Bubba Hughes was present. Chairperson Lawanna Tsoulos welcomed the attendees. She reminded the Planning Commissioners to limit their questions as much as possible so the questions would be asked and answered at the Public Hearing. Tsoulos said they would be looking at approving the Minutes from the April 10 Agenda Meeting and the April 18 Meeting at the May 16 Meeting. Chairperson Lawanna Tsoulos said the first petition was a Zoning Variance in Zone R-1-B, 911 Lovell Avenue, Gail Lamb, PIN 4-0003-17-005. Dee Anderson said Lamb asked to be pulled from the Agenda. Ron Jacobs represented a Zoning Variance petition for owner Gilda DeMott for 606 Miller Avenue, PIN 4- 0005-13-003, Zone R-1. Dee Anderson said Tybee has its own Ordinance that prohibits filling wetlands without permission so Jacobs was here to request permission to fill an old mosquito ditch on the back of the property. Chuck Powell asked if it was considered a wetland by the Corp. Chairperson Lawanna Tsoulos said EMC Engineering delineated the wetland found on the project, so it must be. Powell asked if a portion of it had already been filled in. Jacobs said no. It was discussed that the area has standing water in it. Bill Garbett asked about a flagged portion on the plan. Powell asked if it was a flagged wetland. Jacobs said he was not sure; the only portion they are talking about filling was the ditch. Honor Hutton asked about a pipe. It was decided that the pipe does not go anywhere. Chandler asked if the City of Tybee Island was the first level that Jacobs needs to go to about this. Anderson said he thought they are already talking to the Corp of Engineers. Jacobs said according to the EMC Engineering it did not meet the acreage threshold to worry about filling in so they submitted a letter to the Corp. The letter was in the packet that Jacobs had submitted. Tsoulos asked it there was anything else. Hutton asked Jacobs to tell or show the Planning Commission how far they are going to fill. Jacobs showed Hutton the area. Barry Brown asked if they were going to put in a culvert pipe. Jacobs said no. Garbett asked for clarification on the other area. Jacobs said he would find out. Tsoulos told Jacobs the petition would be on the Agenda for May 16. Sam Liberti represented a Zoning Variance petition for Frank and Kim Nelson at 1409 Chatham Avenue, Zone R-2, PIN 4-0011-09005. The request was for a front setback Variance. Chuck Powell said he looked at the swimming pool regulations because this pool was going to be built right on the bulkhead, which means they are going to excavate right next to the bulkhead. He asked if other than what is in Ordinance about swimming pools being fenced, etc., was there DNR or anything else that prohibits them from building right on the river. Liberti said he was 10 feet off the property line. Bill Garbett said he had to set back 25 feet from water. Anderson said it was from wrested vegetation according to the EPD. Barry Brown said it is deep water and the property line is the bulkhead. Garbett said it was land disturbing activity within 25 feet of the water. Brown said he did not think there was a buffer on deep water land. Tsoulos said they need clarity on that. Anderson said he would check. Anderson said Liberti’s request was 10 feet from the front setback. Powell asked Liberti to explain the hardship for the front setback when he comes to the Hearing. Liberti said he could do that. Powell said the lot is cleared right now. Tsoulos told Liberti the petition would be on the May 16 Agenda, and that Planning Commission is asking him for clarification on the hardship and Anderson will check into whether or not there is a buffer there. Ron Jacobs represented a Zoning Variance petition for Lot 12 North Wave Subdivision, Zone R-2, PIN 4- 0022-01-031. Chairperson Lawanna Tsoulos said the Planning Commission had seen this one before. She said it looks like he has got everything delineated. She asked if there was anything anyone would like to have added to it. Brown said they were asking for 5 feet into the front setback and were encroaching 10 feet into the DNR buffer. It was asked when the DNR line was revised. Anderson said it was revised from the original survey in 1997 by the DNR. Tsoulos asked if there was anything anyone would like to request. There was not. She told Jacobs the petition would be on the Agenda for May 16. 2 Tom Waters represented a Major Subdivision of Land (16 lots) for Robert Chu at Eighth Street and Butler Avenue, Zone R-2, PIN 4-0005-20-006. Waters said this was a conceptual sketch plan review. He said these are lots of record on the existing space. He said they would put a road in as shown on the drawing. Chairperson Lawanna Tsoulos asked if they are existing lots of record. Waters said yes. Dee Anderson asked Waters if he was sure. Waters said he believed so but he was not 100% sure. Chuck Powell asked if it was R-2 or R-1. Anderson said R-2. Anderson said Waters will have to bring something regarding the lots of record. Waters said he would. Anderson said it was his understanding that Chu was going for a Major Subdivision and a Variance to the right-of-way requirements for this number of lots. Anderson said Ordinance calls for a 60-foot right-of-way and he is asking for a 40-foot right-of-way. Barry Brown asked Waters to have Mark Boswell put the dimensions on the lots. Waters said okay. Powell asked if other than the development directly across from the Tybee Market, are there any other subdivisions like this on the ocean side of Butler. Anderson said he thought that [Tybee Straits] is the only one, and that was what Chu is trying to imitate, except those are all duplexes and these would be single family. Sandy Chandler asked if the easement was 40 feet from the projected road. Chandler and Anderson discussed the plan. Brown asked if there is a driveway there now. Anderson said yes. Chandler said they look like square lots. It was decided the lots were not square. The Commissioners asked Waters that a readable scale be put on the plan. Waters agreed. Tsoulos told Waters he would go on the Agenda for May 16. Chairperson Lawanna Tsoulos asked about Site Plan Approval for 1605 Inlet Avenue, Phil O’Dell, Zone C- 1, PIN 4-0008-17-001. Anderson said he was told by Kern-Coleman that we will have everything by the next day, including drainage. Tsoulos asked if it could be put in the Planning Commission box and an email sent telling the Commissioners that it is there. Anderson said yes. Bill Garbett asked Anderson to ask Kern-Coleman to have the actual measurements of the building on the drawing because O’Dell had told him that the roof did not overhang in front of the projections at the bottom, but the roof sticks out well beyond the base of the structure. Anderson said O’Dell just had the property surveyed and that was what the engineer had been waiting on. Anderson said he is hoping they will transpose the building onto the survey. Chuck Powell said he would like an answer of what the driveway is; what its function is. He said it looks like it is for driving up to the drive thru window and O’Dell says it is not, but it goes right pass the drive thru window and O’Dell should come prepared to explain that. Barry Brown asked how long O’Dell had to leave the building sitting there. Anderson said he is probably past due. Tsoulos said it would go on the Agenda. Chairperson Lawanna Tsoulos said the Dark Sky Initiative will be presented Tuesday night by Henry Levy. She said Levy went before City Council, and Council recommended he bring this to the Planning Commission. City Council Member Kathryn Williams said when Levy discussed the Dark Sky Initiative with Council the first recommendation was to set up a committee, but Levy felt that most of the issues could be addressed through our Ordinances, so that was why it was coming to the Planning Commission. Williams told the Commissioners that if they happen to have a chance to go on the website. She said it was very interesting information. Tsoulos said she is assuming the reason that Council wanted it to come before Planning Commission was because that there are some Ordinance issues. Williams said that was right. City Attorney Bubba Hughes said Dee Anderson asked him to come down and speak. He said Council has been talking for awhile about a joint work session. Hughes said in the past there have been questions about what is being asked of Planning Commissioners. He said he wanted to talk briefly about what information the Planning Commission may have, and what information they may not have and want to get. He said Council has always tried to appoint people who will have some level of expertise to be on the Planning Commission so the Council will get the benefit of the Commissioners expertise. Hughes said on the other hand a lot of what the Commissioners are asked to do is almost impossible in that the Commissioners have got to disassociate themselves from everything they know when they come to review. He said they deal with matters that are legislative in nature, like questions about whether property should be rezoned, and they deal with matters that are administrative in nature, like subdividing or variances. Hughes said the distinction is hard to make sometimes but it is important. He said the Planning Commissioners’ discretion is a lot broader on any legislative decision. He said Code sets out standards; for example for a zoning change, the same standards apply to anything that is a legislative decision. He said a legislative decision was like what they just got about the Dark Sky Initiative in that that would be adopting some legislation. He said they are really unrestrained: they can take into account 3 any and everything they want to, however, when they get to the Public Hearing stage they are theoretically and ideally supposed to make their decision based on what is presented at the Public Hearing. He said that does not mean they have to empty their heads of everything they already heard or know, but it is important that the record reflect that their decision is based on what was presented at the Public Hearing and the information and the comments. He said each is a different application and needs to be considered individually. Hughes said they hear all the time: we set a precedent. He told them to forget all of that: every one of the applications lives and dies by itself. He said “precedence” is the kind of a word they ought to avoid, and so is having any opinions about anything before they have the Public Hearing. Hughes said it would be a mistake to indicate that they will never approve a front yard setback. He said the applicant is entitled to a fair Public Hearing and if they dig up a statement the Commissioners made like that and they voted consistently with that, they are going to call that into question. He said even though the Planning Commission is a recommending body to the Council, it is important the whole process be handled as objectively as possible. He said we all have opinions; when people are running for office they make promises but once they get elected it is a whole new game. He said the important thing is how the Commissioners vote, not what they say they are going to do. He said if it is their belief or opinion that they will never grant a front yard variance, hold and keep that to themselves, and vote them all down; just do not say it. Hughes said to take into account what is presented at the Hearing and if it will not overcome their predisposition, then vote with their heart and mind. He said that is for legislative- type things but it overlaps into the administrative-type things too. He gave an example of a subdivision, and said that if it meets all of the Ordinances the applicant is entitled to the permit; the Commissioners can not tell them no because they do not like what they are doing. He said they rarely have a subdivision that is that cut and dry though because of all the overlap in storm water, and road size and lot size requirements. He said the legislative end works itself into that because the Planning Commission is relieving the applicant from some other legislative requirement, so they would have discretion about that sort of thing. Hughes said it is important that their ultimate decision is based on what is presented at the Public Hearing as opposed to anything that might have been said, even at Agenda Meeting. He said it is important that they reflect that they always have an open mind, even if they might feel that front yard variances are the worse thing possible and they would never approve one. He said they have got to address each applicant with an open mind. He said there might be unique circumstances that might change their mind, and that is the importance of the process. Hughes said he assumes they all have the Planning Commission Ordinance, have taken the Oath, and have read the Land Development Code about Public Hearing requirements for the Planning Commission and for the City Council. He said every community is unique in that regard; Savannah is different then here and they make a lot of final decisions on their own. Hughes said it is hard to incorporate something learned from somewhere else and apply it here because Ordinances are different everywhere and procedures are generally different except for those mandated by state law, and that is when they get into the zoning procedure law and the conflicts of interest in zoning. Hughes said he and Lawanna Tsoulos have talked several times about issues of who might have an interest that should prohibit them or disqualify them. He told them to not hesitate to call him if they get uncomfortable. He said he would give the best answer he can. He asked if the Commissioners got the articles that Frank Jenkins wrote. Tsoulos said she has those and could share them. Hughes said it would be a good idea. He said the bottom line is to keep an open mind for every applicant. Sandy Chandler asked Bubba Hughes if someone were to say that they believe in upholding the Code, would that be not appropriate. Hughes said he was having a hard time putting that into context because the Code provides for Variances. Chandler said it does, but he has heard often times that Code is the excuse for not granting a Variance, like if a Commissioner does not believe there is a hardship. Hughes said Chandler was right and determining whether or not there is a hardship is a pretty subjective analysis. He said everybody’s opinion about something might be different but the standard for Variances, he thinks, is really a good idea. He said Council always has a folder in front of them when they are dealing with zoning issues and it has the standard for a zoning change and the standard for a Variance. He said as long as they take those into account they are pretty much safe from a legal standpoint, even if they disagree about what is a hardship. He said the other requirement for a Variance is the unique nature of the property or something about it being oddly configured that creates the hardship, or instances where somebody might have a physical handicap. He said that is not what the Code addressed. He said that is a hardship but it is not what the Code is talking about for a Variance. He said a Variance is dealing with a hardship to the property: it can not be developed in the way it should or could be because it is 4 oddly shaped, like a triangle or something like that, so they could not put a building on it without encroaching on the setback requirement. Chandler said he was not suggesting no Variances. He said it sounds like squishy ground, not the Code so much, but that anyone could possibly have complaints about the way they vote. Hughes said they always do. He said it is pretty much a thankless job they have, and some of them have been doing it a good while and know that. Hughes said it is important though. Chandler said he realizes the only reason they are here is Variances and he was just talking about public perceptions and things like that, which seems to be the basis of what Hughes is saying. Hughes said no, he only looks at it from a legal standpoint, and that they vote their heart and their mind, the way they see it. He said his concern would be that it be based on the standards that are set in the Ordinance, and that they avoid comments like “we would never do that.” Chandler said he would never make a statement like that. Hughes said he has made several that have come back to haunt him. He said they have a hard job but it is not unappreciated. He said he knows Council appreciates it. He said they are going to do what they can to improve the communication so when Council asks Planning Commission to do something they will have a clearer picture of what it is Council wants the Commissioners to do. Hughes said if they look back at the Ordinance at what the Planning Commission does, it is a pretty broad task, but he is available if they have questions. Hughes told Dee Anderson if he wanted him to comment on any particular issues to let him know. Barry Brown asked if they were protected under the insurance of the City if somebody decides to sue the Planning Commission members. Hughes said it is not an insurance policy; it is a risk management pool of various governments. He said as long as they are acting within their capacity as a City official or appointee they would be covered. He said every coverage agreement has loopholes and the coverage is not all encompassing. He said any immunity they might enjoy could be destroyed by personal vendettas, for example. Hughes said since he has been here no Planning Commission member has been sued in their individual capacity. Hughes said the main thing was always keep an open mind. Hughes said he generally recommends that the Planning Commissioners stay away from meeting the developer or applicant or his neighbors on the property. He said they could go by and look but he would rather they did it without the applicant there. He said they were perfectly free to do that on a legislative matter but they are not supposed to do it on an administrative matter, and sometimes it takes a judge to say which is which, so it would be easier for him and them to just avoid that all the time. He said if anybody asks what they think tell them you will look at it at the Hearing. City Council Member Paul Wolff said when a petitioner asks him what he thinks he says, “I can not express a firm opinion outside the Public Hearing, but I would be more disposed to be favorable if…” Wolff asked Hughes if that was okay. Hughes said it was in a legislative process, and most of what they have been dealing with, in his view, are legislative questions; they are changing something in the Code to deal with that particular project. Wolff said that as far as just a standard variance, they should not. Hughes said no, not just a setback variance, which to him is pretty clearly an administrative petition. Wolff said he was primarily talking about the buffer and asked if that was legislative. Hughes said he thinks it is legislative. He said the Planning Commission is subject to the open meetings law so minutes have to be kept of all the meetings and every time a quorum gets together the agenda has to be posted. Tsoulos asked if as far as legislative matters, ex parte communication might be appropriate at times. Hughes said yes, on a legislative matter. He said if someone is talking about rezoning a tract of land that is a legislative matter. He said the problem is when it is not purely a rezoning, and most of what they deal with is a mix, like a rezoning or a partial rezoning or expanding the text to allow something. He said if somebody applies for a use variance, that is a text amendment, not a use variance. He said if something is not permitted in an R-1 zone they do not get a variance to allow it; they would have to rezone that property, and that raises issues about spot zoning. Tsoulos asked if the situation with IGA where they want to make a parking lot in an R-2 zone was a variance. Hughes said he had been sent something about that today and asked that Tsoulos let him hold off answering. Tsoulos said she has been confused about this since it first came up. She said the use is there and how do you vary a use. She said when she goes to conferences they say you do not give a variance for use. Hughes said that is right, that is a text amendment or a map amendment. He said the IGA is a unique situation and he is not that familiar yet with the history of it. He said he read the minutes from when it was addressed at the Planning Commission and he had not had a chance to research it to give an opinion. Hughes said he thought IGA was doing site plan approval. Anderson said it was special review. Tsoulos said IGA is taking a lot that is currently residential, moving the house away and turning it into a parking lot, and that was changing the use because in R-2 there is no provision for a commercial parking lot. Tsoulos asked Hughes for his email address. Hughes said it was bhughes@cbrhlaw.com. 5 The group discussed public hearings and parliamentary law. Chairperson Lawanna Tsoulos said when she opens a public hearing that means they will address the petitioner. She said the petitioner will make their presentation, she will ask if anyone wishes to speak in favor or in opposition to the petition, and then she will close the public hearing. She said once she closes the public hearing they do not address the petitioner; the Planning Commission will discuss the petition amongst themselves. She said from that they get a motion and a second, and then they can discuss it. Tsoulos said they can amend the motion or vote the motion. Council Member Paul Wolff said they need to be sure their questions are direct and asking for a specific fact rather than being subjective. Chuck Powell said sometimes they get hung up when it appears it is not going to pass and one of them turns to the petitioner and asks if they would be willing to lop that deck off. He asked how they handle that once a motion has been made to approve or deny. He asked if they want to approve with a condition do they have to ask the petitioner if they will go along with the condition or do they just pass it. Tsoulos said no, if they want to amend a motion they should just amend it. She said they do not have to get permission. Powell asked if he could ask for the condition during the public hearing. Tsoulos said absolutely. Tsoulos said once a motion is seconded it belongs to the floor, so anyone can amend that motion but it has to be germane. She said if the motion is to approve a variance then it could not be amended to deny or to put a driveway in another place because that is not germane or applicable to the variance. She said an amended motion has to have a second. She said if the motion to amend alters the main motion they would vote for the amendment and it might not be necessary to vote for the main motion, but generally they would. Tsoulos said there is “call the question” and it is something they do not want to use a lot but if they feel they are beating a dead horse they can make a motion to call the question. She said it has to have a second and has to have a two-thirds vote. She said to use that judiciously because what they are doing is cutting off somebody’s right to talk. Tsoulos said they should run the meetings as close to parliamentary law as they can, but the main purpose of them being here is to serve the public so she did not think they should make parliamentary law so rigid that it impedes them doing what they are here to do. Barry Brown said it would be in their best interest to put on the agenda to bring up hand sketches. He said there are things begin sketched by homeowners that are not to scale. Chuck Powell said they can not make a decision based on them. Brown said the Commissioners do not know what the petitioners are asking for. He said it needs to be more professional. He said if they want a variance it is not a hardship to get a drawing. Chairperson Lawanna Tsoulos asked what they would have to do to impose that. City Council member Paul Wolff said they would have to have a text amendment. Wolf said he agreed with Brown in principle but if somebody does a scale drawing on a survey they can do it themselves. He said a lot of variances are getting shot out of the water and they are paying just to apply for a variance, and he hated to ask them to cough up any more money. Brown said if they have a survey they can have the surveyor hash in where they want the addition or whatever, but it be done in such a form that if it comes back later they are going to have something other than a hand-sketch that is not very thorough to start with. Sandy Chandler said they have no idea what the as-built is going to look like. Tsoulos suggested they put this on the agenda to be discussed Tuesday night and to make a recommendation to Council. She said of course it would be Council’s decision because it requires a text amendment. Chuck Powell asked if they could also add another one to that. He said it is the one they all got trapped on one meeting where somebody brought in a new drawing at the hearing the Commissioners had never seen. He said all of them have been conscientious enough to read what the petitioner submitted, go look at the property, and now here was something brand new or modified. Chairperson Lawanna Tsoulos said she did not run that meeting and she could guarantee Powell that it would not have been heard. Powell said they were novices that night. Tsoulos said the person running the meeting was too. She said certainly that should not happen and if somebody does that she would suggest that somebody make a motion that they table it. She said it is not fair to the Planning Commission and it is certainly not fair to the public or to the people that they are supposed to be giving recommendations to. Barry Brown said it should not be put on the agenda if all the information is not there. Tsoulos said in this case they came to the agenda meeting and it appeared they had everything, and then they showed up at the regular meeting with a change, and one copy. Bill Garbett said the drawing they presented was an improvement. Powell said that was what swayed them; they saved a bunch of trees and made it more attractive. Tsoulos said it was very unfair and in the future they need to get the information ahead of time. Powell asked if it was only a 30 day delay. Tsoulos said yes. 6 City Council member Kathryn Williams said a month or so ago they talked about generating a checklist for the zoning requests. She said it is hard when they are going through the plans: have they met the greenspace requirement, have they met the setbacks. She said if they could come up with a checklist, drawn to scale could certainly be one of them. She said until everything is checked it does not need to be put on the agenda. Williams said that would make everybody’s job so much easier and then they can make sure that items are not slipping through the cracks. Tsoulos said that was a good idea. Sandy Chandler said it could be part of the application. Bill Garbett said he thought we already had a checklist. Williams said it would help if all of them could give input, or at least once it is generated have input before it is finalized. Paul Wolff said he did not know if it was implicit in the Code the way it is written but he would like it to say that any approval subsequently granted by Council will be contingent upon the plans as presented; that they can not come in after they have gotten their approval and change anything on the plans; if it does not meet the as-built based on what they bring to us, it does not fly. Brown said they are getting a lot of variances from people buying property and they are going to have a current survey in most cases. He said it would be nothing for them to go to a registered surveyor and say hash this out. Wolff said let’s make any approval contingent upon those plans. Wolff said without coming back through, the plans will be an integral part of any approval; they can not change what is written without coming back through Planning Commission and back to City Council. Tsoulos said if they are remodeling or adding a deck there is no as-built. Wolff said that may be something they want to talk about too. He said he knows there is an as-built for new construction but there needs to be for remodeling because a lot of stuff is getting remodeled that comes out completely different. Chuck Powell asked if there are city personnel that periodically drive around the island to look for illegal building activity. Wolff said that was one reason the Deputy City Marshal was added to staff. Powell talked about a work site where no permit sign was posted. Williams recommended to Powell that he email Dee Anderson. Kathryn Williams, City Council member, said City Council has approved a new Ethics Advisory Board Ordinance and has appointed members. She said the Ordnance calls for a member of the Planning Commission to serve on the Ethics Advisory Board. She asked that they be thinking about that and when they have everybody in attendance see who might be interested. She said it would be a liaison because things will impact the Planning Commission. She said they are also asking for a member of the Audit Committee to serve.