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20080115_PC_mtg_min 1 PLANNING COMMISSION CITY MANAGER Libby Bacon Diane Schleicher Demery Bishop Charlie Brewer PLANNING, ZONING & ECONOMIC Barry Brown, Chairperson DEVELOPMENT DIRECTOR Sandy Chandler Brannyn G. Allen Bill Garbett John Major David Postle CITY ATTORNEY Chuck Powell, Vice Chairperson Edward M. Hughes MINUTES Planning Commission Meeting January 15, 2008 – 7:00 p.m. Vice Chair Chuck Powell called the January 15, 2008, Planning Commission meeting to order. Other Commissioners present were: Libby Bacon, Demery Bishop, Sandy Chandler, Bill Garbett, John Major, and David Postle. Chair Barry Brown and Charlie Brewer did not participate at the meeting because they were elected to serve as City Council members beginning January 1, 2008. Vice Chair Chuck Powell called for a motion on the Minutes of the December 10, 2007, Planning Commission agenda meeting. John Major motioned to approve. Demery Bishop seconded. The vote was unanimous. Powell asked for a motion on the December 18, 2007, meeting Minutes. Bill Garbett moved to approve and David Postle seconded. The vote was unanimous. Vice Chair Chuck Powell commented that the Planning Commission operated under rules and procedures found in [Land Development] Code Section 5-060. He then listed sources for researching Code and gave a summary of how Public Hearings are conducted. He asked the Commissioners to adopt Robert’s Rules of Order. David Postle so moved and John Major seconded. Bill Garbett asked how that would differ. Powell said that it didn’t. Garbett requested a copy of Robert’s Rules. During discussion Postle noted under the regulations of the City of Tybee an abstention from voting was determined as a positive vote for the plaintiff which was contrary to Robert’s Rules. He suggested the City change its Ordinance. The vote was six in favor and Garbett opposed. Harriet Simmons presented a Zoning Variance petition for herself and her husband, Chester, at 11 Eighth Street, PIN 4-0006-01-005, Zone R-2. The request was to subdivide a lot into two lots with one of the lots containing an existing house and the second lot being vacant. Approval of a setback Variance from Land Development Code Section 3-090, Schedule of Development Regulations, would be needed for the proposed lot with the existing house. Vice Chair Chuck Powell opened the Public Hearing. Simmons explained the subdivision. Powell called for questions from the Commissioners and then asked if anyone in the audience wished to speak for or against the proposal. He closed the Public Hearing and called for a motion. Bill Garbett moved to approve. David Postle seconded. Garbett said that the house was built off of the lot through no fault of the petitioners. Major said that a Variance had a shelf life after which it would have to be reapplied for. He asked if there would have to be a re-request of the Variance if the lot was not built upon. Brannyn Allen said that the only reason the Simmons would have to reapply for the Variance would be if they did not move forward with the subdivision. Garbett said that if the Variance was granted the Simmons should go ahead with the subdivision. Allen agreed. Simmons said they would like to go ahead with the subdivision. The motion to approve passed with all seven Commissioners voting in favor. Powell told Simmons that it would go before City Council on February the 14th. Harold Yellin presented a Zoning Variance petition for Lou Kietzman at 1106, 1104 and 1102 Estill Avenue and 1017, 1015, 1013, 1011, 1009, and 1007 Solomon Avenue, PINs 4-0021-12-008, -009 and -010; 4- 0021-11-002, -003, -004, -005, -006, and -007, Zone R-1. The request was to fill wetland, requiring a Variance from Land Development Code Section 5-010(K), Prohibit Placing Materials in the Marshlands. Yellin said that the property was a 25-lot subdivision that was first approved in 1928. He said the petitioner had applied to the Army Corps of Engineers to fill an isolated freshwater wetland. He said the Corps had approved subject to the purchase of mitigation credits and this Variance request. He spoke of the Corps having notified three government agencies, 2 none of which gave comment on the application. Yellin described five photographs of the site that he had brought to the Hearing. He spoke of the matter having been before the Planning Commission and City Council previously. He said that a number of issues were raised that were not relevant to the Variance. He said that he was going to present the relevant facts. Yellin said that there was no movement of water on the isolated wetland; there was no tidal influence. He read several items from the Minutes of the previous Public Hearings. He said that the property should be filled. Yellin spoke about hardship and that the Ordinance talks about topography. He said that the wetland impacts a total of eight lots, which impacts the livability and usability of the lots. He said that without the ability to do something with the isolated freshwater wetland there was a hardship and impact to the owners. He said the property was zoned R-1; residential dwellings are a matter of right. He said the ditch was a hardship to the petitioner and Tybee because it was a breeding ground for mosquitoes. He concluded by reading into the record a letter dated January 14, 2008, from Chatham County Mosquito Control. Libby Bacon said that there was to be no land disturbing activity within the wetland area prior to approval of a Variance to fill by City Council and the purchase of 2.4 credits to mitigate the wetland. Yellin said that was not his understanding; he could build as long as he did not impact. After discussion between Bacon and Yellin, Bacon asked how a manhole got into the wetland when the infrastructure was placed since the 2.4 credits had not been obtained and Tybee had not granted the Variance. Yellin said that the plans were approved by Tybee. Bacon asked if the manhole was shown in the wetlands on the plans. She read a wetland buffer note on the plan that Kietzman had submitted for the Variance request. She asked if the 25-foot buffer was required, and if it was not then there was enough footprint for an average house. Mark Boswell, project engineer, said that the Corps allows building to the buffer. He said that the 25-foot was a requirement of Tybee. Bacon asked about the zero setback variance along Solomon Avenue. Boswell said that Variance had not been asked for. Bacon asked if the developer would have to do a new drainage plan if this Variance was approved. Allen said yes, and also a new land disturbing permit. David Postle said he spoke to Mark Padgett and that Padgett was not aware that a storm sewer had been installed in the wetland. Postle said that the storm sewer appears to be a violation of Tybee Ordinance and the regulations from the Corps of Engineers because the mitigation credits had not been purchased. Boswell and Dower Davis, City engineering consultant, discussed the plans. John Major asked if the plans showed the manhole. Davis said no. Boswell talked about an outlet structure. He said there were two submittals: the water/sewer infrastructure and the drainage. Boswell said that the outfall structure was designed to be in the wetland. He pointed out the location of the inlet and responded that it drained to the marsh. After further review of the plans Davis confirmed an overflow inlet. He explained the locations and purposes of the drainage improvements. Boswell said that it was not designed to drain the wetland; it was designed to hold the water level where so that if houses were built around the wetland it would not flood the yards. Vice Chair Chuck Powell asked if it was a permitted disturbance in the wetland. Allen said that a permit was issued. Davis said that the plan was approved by the NRCS and any subsequent plan would be reviewed by them also. Postle said he spoke with George Reese of Tybee’s Water/Sewer Department and Reese did not approve the placement of the storm sewer in the wetland and Padgett of the Corps of Engineers did not know it was there. Boswell said that after the Corps claimed they did not have jurisdiction, they would not have had anything to do with it. Postle said the Corps did claim jurisdiction over freshwater wetland. Boswell said that Tybee claimed jurisdiction over the freshwater wetland. Postle said that so did the Corps. Boswell said that the Corps allowed them to fill it. Postle asked if it was a fresh water wetland. Powell said that it was declared a freshwater wetland by the Corps. Bill Garbett said that Tybee does not require a 25-foot buffer around a freshwater wetland. Boswell said that Tybee did for this one. The group could not determine who required the 25-foot buffer. Garbett said that the property was infested with invasive Chinese tallow plants. It was discussed that the mitigation credits could be purchased from a regional bank of credits. Garbett asked if this was the only breeding ground for mosquitoes on Tybee. Yellin said that it was one of the worst. Garbett asked if that dispensed with the other advantages of fresh water wetland: animal habitat, drainage buffer, filtering of water. Garbett asked if they got rid of the wetland would there not be mosquitoes on Tybee. Yellin said absolutely not. The two discussed the relevancy of mosquitoes and of the wetland. Garbett commented that it was the owners’ responsibility to clean the wetland and make it productive. Major asked the name of the agency that Davis had referenced. Allen said it was the Georgia Soil and Water Conservation Commission. Demery Bishop confirmed that the storm water drainage was in the wetland and that it was approved by Tybee. Bishop asked when the plan was submitted and approved. Allen said the infrastructure application was submitted in May of 2007 and approved in August of 2007. Bishop asked if at the time of the submission was the intention to build improvements in the wetland and were there footprints of dwellings. Boswell said there were not footprints impacting the wetland or the buffer. Bishop referenced a Boswell drawing dated July 31, 2007, and asked if it reflected potential building footprints with setbacks. Boswell said that it showed setbacks. Bishop and Boswell discussed the plan and the wetland. Garbett said that there was a Variance request to fill the wetlands. Boswell said yes, to fill the wetland, but not to put the drainage structure 3 in the wetland. Postle asked if they planned to ask for a zero front setback at a later date. Powell said that was not relevant to the wetland issue. Postle said that the silt fence was now on the outside of the 25-foot buffer area and yet the storm sewer was within 6 feet of the silt fence. He said that raised the question if the silt fence was located where it was supposed to be or if the water had relocated. He asked if the City required a 25-foot buffer because if it did not, elimination of the 20-foot front setback would not be necessary because the houses could be moved closer to the wetland. Boswell said that the owner would be happy to get rid of the buffer. Postle asked if it was properly located. Boswell said it was likely a case of where the contractor placed the silt fence. Major referred to a note on the drawing that said the petitioner was requesting a zero setback on Solomon Avenue. He said that the Ordinance says that before excavation can commence, all permits must be in place. Major asked that if there were permits that were going to be asked for in the future, would they not have to be in place prior to doing anything. Allen said that the petitioner was not asking for a setback Variance. Major stated that Ordinance says that all of the permits have to be in place. He referred again to the note on the plan. He asked if that should be dealt with now. Boswell said that the note may have been an error on his part. He asked if a Variance request would not have to be on a form. Major agreed as did Yellin. Yellin said he read the Ordinance to mean all proper permits, such as the Corps permit, necessary for that activity. Powell asked if there was anyone wishing to speak for or against the petition. Mallory Pearce, 8 Fifth Street, pointed out that a portion of the wetland was City-owned land so any permission to fill should not allow filling of the City swamp. He described the wetland as a willow swamp and he noted that willows only grow in fresh water. He said there was Chinese tallow which was invasive and it would be desirable to remove to let the willows grow. Pearce said that willow swamps are an endangered habitat on Tybee and that several of them had been removed by development. He said the City had not given permission to open Storer Street and it was home to the painted bunting, the official bird of Tybee. Pearce said that the best way to control mosquitoes would be to make it permanent wetland. He described how to keep a permanent body of water there and seeding it with fish that eat mosquitoes. Pearce said it was a significant habitat and the developer, rather than destroying, should enhance and promote it. He said it does need a buffer of natural vegetation. He encouraged either tabling or denying, and asking the developer to come back with a new plan which would use the wetland as part of the beauty of the development. Rachel Perkins said she had been involved with the property for over ten years. She said it was not a ditch; ditches are dug to create dry land. She explained that prior to construction of the railroad bed, the saltwater marsh extended there. She said that over 100 years ago the railroad cut off the isolated wetland from the tide. She said that it still functioned as a wetland. She said it was freshwater. Perkins pointed out as fill the area along Solomon Avenue. She said that the wetland was narrowed and created the appearance of a ditch. Perkins explained a drawing she had made of contour lines and related it to the property. She said that filling the wetland was contrary to developing the island in an environmentally responsible manner. William Hicks of Chatham County Mosquito Control referred to the letter that Yellin had read earlier. He said that the property was the second largest mosquito-breeding site on Tybee. He said it was too large to treat by hand so they used aircraft. He reiterated some of the points from the letter. Referring to the hardship, Barry McIntosh, 1111 Solomon Avenue, said that when the property was purchased, [Tom] Sullivan knew what he was buying. He spoke of flooding issues on nearby properties and the effects on those properties of a drainage plan for the subdivision because of the elevations. McIntosh asked where was the hardship, knowing that the condition existed when the land was purchased. He referred to a 5-page letter of concerns that a nearby property owner had written during the 2006 Variance request to fill the wetlands. McIntosh questioned whether the application for the nationwide permit identified opened and unopened City streets as being acreage owned by the developer. After speaking about flooding issues, McIntosh said that filling part of a shared pond was not identified on the plan. He recommended a land swap. He said that once there are houses, sediment and pesticides would dump into the marsh. He said that the Mosquito Control letter did not say that filling was the best solution. McIntosh requested to resubmit the 5-page letter. Powell asked him to give it to Allen for distribution to City Council. Angela McIntosh, wife of the previous speaker, read from an EPA document, “The principal mosquito carrier of West Nile virus does not prefer to reproduce in most wetlands. Damaged or degraded wetlands can provide ideal habitat for some mosquito species that carry West Nile. Filling or draining wetlands may also increase mosquito outbreaks. Draining or filling wetlands is not a necessary or appropriate way to control mosquitoes. Healthy, functioning wetlands typically have a balanced predator/prey relationship that provides natural mosquito control.” She said that the questions that were put before City Council during the initial Variance request were never addressed. She noted the discrepancies with the acreage of the property. She read, “For residential subdivisions the aggregate total loss of waters authorized by NWP39 can not exceed half an acre. This includes any loss of waters associated with development of individual subdivision lots.” She asked if the benefit of one outweighed the benefit of many. She said the petitioner stands to gain financially; the people and the environment lose. She concluded by talking about flooding. Jennifer Hutcherson, 1108 Bay Street, said that prior to disturbing the land 4 to clear it, it was a functioning ecosystem. She asked if Tybee needed more houses so badly that wetlands needed to be filled to get them. She said that there are mosquitoes, and that she likes mosquitoes more than developers. Lawanna Tsoulos asked about the land swap. Yellin said he would address that. Jan Deyton, 1115 Solomon Avenue, said that the owner of the land should take responsibility for cleaning it and making it a viable ecosystem. She said she was against filling. Yellin said that Sullivan proposed to the City over a year ago to swap Solomon Avenue property for wetland. After further explaining the proposal, Yellin said that there were two forms of hardship: topography and mosquitoes. He summarized and then Powell closed the Public Hearing. Postle said that the letter McIntosh referred to raised several points. He said that the proposed development would be much denser than what the neighborhood could or should support. He asked if the City had a chance to address the letter’s seven points. Allen said that the first time she had seen the letter was that evening. She said that compatibility with surrounding density was not the petition before them. She said that because these were lots of record, the Variance request to fill the wetland needed to be looked at and not surrounding land use compatibility. Sandy Chandler asked what would be the problem of draining fresh water into the marsh. He said that they are lots of record. Chandler said the property was a pesthole; the wildlife was mosquitoes and cottonmouth water moccasins. He said there was a black substance leeching into it and it was unhealthy looking. He said to put it into the same category as idyllic fresh water marshes was really begging what it actually was. Bishop referenced several issues: the 25-foot buffer, the placement of the storm water drainage into the wetland, and the drainage impact of fill. He said those issues, among others, needed further addressing. Major spoke of the 25-foot buffer and of the possibility of a land swap. Postle said that if there was a possibility of reaching a mutually acceptable agreement that needed to be pursued. Powell called for a motion. Chandler moved to approve. The motion died for lack of a second. Postle motioned to continue to pursue an agreement that was satisfactory to all. There was no second. Major asked the petitioner if there was room to work that might preserve his rights and the property rights of those around it. Tom Sullivan said that everything was still on the table. He spoke of his reason for purchasing the property, of the land exchange proposal in executive session with City Council, and of the water/sewer work that was done. He said that they were turned down and they have had to deal with that delay and are back to square one with the wetlands. He said that they need to fill, not for more buildable land space, but because it was a hazard to those that are going to buy the lots. He stated that they are not trying to get more land space; they are trying to enhance the area. Major asked if he was willing to consider alternatives that did not involve filling. Sullivan said absolutely. Chandler motioned to continue for more information. Major seconded. Bishop asked if they could include issues. He referred to the buffer and the storm water appliance in the wetland. The 25-foot buffer was discussed. Allen asked that they select a date for continuance. Powell said that it would be the next Commission agenda meeting. Yellin asked if they needed to come to the meeting. Powell said yes. Powell restated that the motion was to continue for clarification on: the 25-foot buffer, the storm water structure in the wetland, and the impact of filling the wetland on the drainage of the site and the surrounding properties. The motion passed unanimously. Clyde Johnson presented a Minor Revision to a Subdivision for Battery Drive, PIN 4-0024-02-003, Zone R-2, which dealt with the surface of a private drive. This was not a Public Hearing. Libby Bacon stated that she was working with Johnson’s daughter. Vice Chair Chuck Powell stated that there was not a conflict of interest. Johnson explained that the subdivision project had evolved and the atmosphere of the project had changed. He explained that the original plan was a concrete private drive and that they would like to change for aesthetic reasons to rock material that would be more appropriate for the neighborhood. He said that the stability of the road would be the same. Powell asked for questions from the Commissioners. There were no questions. Powell asked Downer Davis to comment. Davis spoke about the project’s history. Libby Bacon asked if crushed stone was not considered permeable because it was compacted. Davis said yes. He said the material that was there would require more maintenance than a paved road. Powell confirmed that the maintenance fell on the property owners. Sandy Chandler said it was permitted as non-pervious. Johnson agreed. He spoke about the low country look of crushed rock. Powell called for a motion. Bill Garbett motioned to approve and Chandler seconded. The motion to approve passed unanimously. Powell told Johnson that the request would go to City Council. The Coastal Protection Ordinance Subcommittee was the next agenda item. This was not a Public Hearing. Vice Chair Chuck Powell said that it had been proposed that a presentation by one of the three subgroups of the Subcommittee be approved to be given to City Council. The presentation had been given at a previous Planning Commission meeting. Powell explained that he had contacted members of the other two subgroups and they expressed that that their assignments had been covered by the presentation. Lou Off said he was on a subgroup that spent several hours looking over the possibility of using erosion rates. He spoke of impacts on erosion rates by the seawall, artificial renourishment, and the channel not allowing sand flow. Off said that the Corps does not 5 have any input as far as the Shore Protection Line. John Major asked Off if he had looked at the presentation. Off said that he had. It was agreed to put the presentation on the agenda of the January 24th City Council meeting. Libby Bacon said that she would present it. Vice Chair Chuck Powell read announcements. He then thanked Charlie Brewer, Barry Brown and Bill Garbett for their work on the Planning Commission. Powell announced the appointments by City Council of Sandy Chandler, James Boyle, Anne Miller and Whitley Reynolds to two-year terms. Powell reminded the Commissioners of a Work Session on February 4th at 6:30 pm for current members and at 5:30 pm for new members. The meeting adjourned.