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20080916_PC_mtg_min 1 PLANNING COMMISSION CITY MANAGER Libby Bacon Diane Schleicher Demery Bishop James P. Boyle PLANNING & ECONOMIC George Dausey DEVELOPMENT DIRECTOR John Major, Vice Chair Brannyn G. Allen Anne Miller David Postle Chuck Powell, Chair CITY ATTORNEY Whitley Reynolds Edward M. Hughes MINUTES Planning Commission Meeting September 16, 2008 – 7:00 p.m. Chuck Powell called the September 16, 2008, Planning Commission meeting to order. Other Commissioners present were: Libby Bacon, Demery Bishop, James Boyle, George Dausey, John Major, Anne Miller, David Postle, and Whitley Reynolds. Whitley Reynolds moved to approve the Minutes of the August 19, 2008, Planning Commission meeting. James Boyle seconded. All voted in favor of the motion except for Libby Bacon who stated that she was not present at that meeting. Chuck Powell asked if there were any Disclosures. Whitley Reynolds said that he would recuse himself for items 1, 3, and 4. Chuck Powell opened the Public Hearing for a request from James McLeroy for Zoning Variances (Section 5-090) from Section 3-090, Schedule of Development Regulations (setbacks), for 1405 Fifth Avenue, PIN 4-0011-06-011, Zone R-2. The request was for side setback variances of 5.9-feet on the northeast and northwest corners, and 5.8-feet on the southeast and southwest corners for front and rear deck additions. The front deck addition would also require front setback variances of 5-feet on the northeast corner and 1.1-feet on the southeast corner. Whitley Reynolds recused himself. Brannyn Allen summarized the request and said that the existing structure was a nonconforming use. She spoke of the petitioner having been issued a building permit to convert a duplex into a single-family residence and adding front and rear porches, and, while under construction, he realized he wanted to expand the porches to meet the ends of the house, which would be encroachments into the side and front setbacks. Allen said the petitioner had made changes since being before the Planning Commission the prior month and they were substantive enough to bring it back before the Commission. After further explanation by McLeroy, John Major confirmed that the request would not have negative impact on the character of the neighborhood. He asked if it would impact marshland or any other protected area. Allen said no. McLeroy said that the space would be unconditioned. Major said that converting a duplex into a single- family was commendable and in keeping with the Master Plan. Powell asked for public input and then closed the Public Hearing. David Postle moved to approve and James Boyle seconded. The motion to approve passed unanimously with the exception of Reynolds who did not vote due to recusal. Chuck Powell opened the Public Hearing for a request from Live Oak Group, LLC, for a Site Plan Amendment to an existing Planned Unit Development (PUD) for Lot 14 Gulick Street, PIN 4-0002-20- 003, Zone PUD. Brannyn Allen said that the current Land Development Code expressly prohibits PUDs; this was an existing PUD that was allowable to amend. She said that the petitioner proposes constructing a single-family residence. Libby Bacon asked why they did not receive the original plan for the PUD. 2 Allen said that one of the most important components to any PUD was a master site plan; in this case, to the best of her knowledge, a master site plan does not exist that addresses the situation before them. Demery Bishop asked Allen to elaborate on litigation involved with the development. Allen said that she could not. Bishop asked if the lot was previously designated as greenspace. Allen said that she could not speak to that. John Major spoke of the June 9, 2005, City Council Minutes referencing that the lot had been committed to perpetual greenspace. He said it was said at that time that DNR had some record, and he was able to be provided a copy, and the application did state that no additional construction or grading would be done without going back before the DNR, and that 51% of the site would be utilized for development, 49% kept as greenspace, and the seaward portion of the parcel would be maintained as an open area. Major asked if there was a reason that they could not be told the status of the DNR recommendation. Allen said that because of the legal ramifications she would hope that any response on her part would not be considered binding. She said there were legal questions that she was not in a position to answer; the questions Major raised were among those. David Postle asked, if there were key questions related to the property, why they were discussing it. Allen said what was before them was an amendment to an existing Planned Unit Development, which was permissible under the Land Development Code. After further discussion amongst Powell, Allen, and Major, Tim Walmsley, on behalf of the Live Oak Group, said that Tybee Ordinance does not address PUDs anymore; when PUDs were permitted the property was designated as a PUD. He said they were asking to add to the PUD a single-family residence. Walmsley said there were townhomes next door but the majority within the area were single-family residential. He said that the site plan was consistent with R-1 zoning, the most stringent designation on Tybee. He spoke of the covenants and restrictions of the adjoining subdivision not applying to the Gulick lot, and the standards for the townhomes, created in the middle of the PUD, also did not apply. After further explanation of the proposed development, Walmsley said the documents from DNR said that further develop would have to go back to DNR to review on its own merits. He said that determination was made when the original subdivision was put together; since then DNR went to the property and noted a 20-foot pine that did not exist when the townhomes were developed. He said there was now a determination from DNR that the property no longer fell within their jurisdiction. He said the property did not fall within the Tybee Shore Protection Line either. Walmsley said that no one could point to any document making the property greenspace; the Live Oak Group did not buy property that was greenspace. Major confirmed that the lot size was 4,280 square feet. He said the minimum size required for an R-1 single-family dwelling was 12,000 square feet. Walmsley said it was a PUD amendment. Major said that Walmsley referred to it as meeting all the zoning requirements of R-1; it was about one-third the minimum size required in R-1. Walmsley said if they were asking that it be rezoned to R-1 that standard would apply; this was a PUD plan amendment and his point was that no standards applied to the property and they were taking the most restrictive standards available and voluntarily applying those. Bishop and Walmsley discussed the lot. Bishop asked when the letter was received stating that the DNR did not have jurisdiction. Walmsley said November 3, 2006. Postle said that when the original request to build the townhomes was submitted the construction was to take place on lots 15 and 14. He asked how they were talking about an unoccupied lot 14. Walmsley said the development, as defined by the individual that built it, included the western portion of lot 14. He said the eastern portion of lot 14 was left out so what was approved was a plat that defined the subdivision as a portion of lot 14 and lot 15. Postle said the original PIN on lot 14 ended in 003, and now ended in 002. Walmsley said that he would assume the Tax Assessor assigned a new PIN when the property line shifted. Bacon asked if there was reference in the covenants and restrictions to the lot being open space and part of the subdivision. Walmsley said no. Bacon asked about the adjacent subdivision, which was also a PUD. Walmsley said there were two PUDs created at two different times. Bacon, Walmsley and Allen discussed the two PUDs. George Dausey said that the property was under legal involvement. He asked, first, if Walmsley considered coming before the Planning Commission with a clean piece of property, and, second, if they moved to approve and Walmsley loses the lawsuit, how would the 3 Planning Commission stand. Answering the second question first, Walmsley said that he was not Tybee’s lawyer and could not answer the question. To the first question, Walmsley said there were proposals before the Planning Commission in 2005 and some issues were raised. He said those issues had been addressed in the submission before them today. Dausey asked the situation with the lawsuit. Walmsley said there was a lawsuit currently pending in Superior Court. Major said there seemed to be sand dunes on the eastern portion, very stable with a lot of vegetation. He asked what the plan would do to those. Walmsley said that the purpose of the DNR and the Tybee lines was to take that into consideration and there had been a determination by both that neither wished to have jurisdiction. Major and Walmsley discussed further. Powell asked if the lot was in a PUD. Walmsley said the lot was part of a PUD. Powell asked if it was part of the PUD that included the townhouses. Walmsley said yes. Powell asked if it was designated for the lot to remain greenspace. Walmsley said no; there were no conditions placed on the property. Major said that the DNR must have been looking at something when they said that the seaward portion of lot 14 would be maintained as open area. Following a discussion between Major and Walmsley, James Boyle asked about the PUD amendment procedure. Boyle, Allen, and Powell discussed the PUD amendment request. Bacon asked if the litigation was the property owners of the townhomes and Live Oak. Walmsley said that was correct. He said there were some interveners, Noble Boykin, a client of Boykin’s in Seaside Colony, and Mr. Akins who owns property with Boykin. He said that Akins claims a view corridor through the property. Bacon asked if the lawsuit was neighbors of the lot versus the property owners. Walmsley said that right now Akins was the only neighbor involved; there was an order from the Court where Live Oak invited all the neighbors who wished to, to get involved. Powell asked for public input. Noble Boykin said he was owner of Gulick property and the lawyer representing the interveners, which was Dan Akins, another owner in the Gulick subdivision. Boykin said that Live Oak filed the action versus the City of Tybee Island; Tybee Island was the defendant. He said that the adjacent landowners intervened, so it was Live Oak Group, plaintiff, in Superior Court, versus Tybee Island. He said people from Seashore Colony have not intervened, but he did not think they were notified to intervene. Boykin said that the original lawsuit was filed against the City of Tybee demanding that the Court allow this to be developed as an R-1 lot, and then it was clear it was too small as an R-1 lot. He said that in the litigation Live Oak said the lot was not part of the subdivision or part of the PUD. Boykin read further from the pleadings. He said the lawsuit had not gotten much traction because the City responded that Maple Sanders developed and asked for the PUD. He said that Sanders asked twice to build on the lot as an R-1, and was turned down twice because the lot was too small. Boykin discussed the litigation and described the area. He said that Sanders sold the lot once, had to un-sell it, and then sold it to Live Oak Group. Major read the list of existing PUDs in the Ordinance and asked if this PUD was one of the four mentioned. Allen said that this PUD was shown on the Zoning Map, which was what was binding. Walker Beeson, 2 Sandalwood Court, spoke of when he bought property in Seaside Colony having been shown sales materials that specified that there was not going to be anything on the Gulick lot because it was a view corridor for people on Wrenwood and Officers Row. He said they did not want a three-story building in the small lot. He said he did not understand how it could be something and not be something at the same time. Sue Christian, owner of number 3 of the townhouses, said that when she bought the property everyone said the lot was greenspace and nothing would ever be built on it. She said she did not see how they could go back and change it. Dan Akins said that when he and his wife purchased their lot at Seaside Colony, now Seashore Colony, Wilma McCusker told them it was greenspace, it would never be built on, and it was controlled by DNR. He said that as owner with Boykin of two of the units on Gulick, when the PUD was developed that was the end of it. Judy Miller, 23 Gulick, said that the only notice was the sign posted. She asked about written notice. Allen said that written notification goes out before the Public Hearing before the Mayor and Council. Judy Miller spoke of having been told that when Sanders went to Council to request building the townhouses she asked to build them and let the rest of the space alone. She said they have a lot of people living in the six houses and the lot was used for extra parking. She said the 4 trunk of the pine tree was about 6-inches in diameter; it was not a huge tree. Gary Sanders, architect of the plan, said he had been involved since 2005, and they had been resolving some of the questions through the City Attorney. He spoke of it being a 3-year process. He spoke of the background of the lot. Walmsley summarized. Powell closed the Public Hearing. Bacon motioned to table until the litigation was resolved or dismissed. She said they could not be wiser than the Courts. Dausey seconded. Whitley Reynolds suggested they look into the issues. Bishop said he had questions concerning the current litigation. He referred to plats exhibited during the discussion by Walmsley that were not in the Planning Commission packet, as well as the question concerning greenspace. Bishop said there were a number of questions that were not answered. Boyle spoke also to the issue. Walmsley said the petitioner would object to tabling; the petitioner requests that the Commission take some action tonight. He said a complete application was submitted; they were not notified that anything was incomplete. He said their objection was being stated, and that he also wanted to state, on the record, that they were reserving all of their rights if, in fact, the matter was tabled, both State Constitutional and Federal Constitutional, and State Statutory and Federal Statutory rights, because they would like the Commission to make a decision tonight so they could move forward. He said the matter had been held up for quite some time and they were simply asking that it move though this process, and if, in fact, there was a legal issue he was sure that he would hear from Mr. Hughes, and that he would be happy to address those legal concerns when raised. Walmsley repeated his objection to tabling. Reynolds said that the Planning Commission had a site plan, and it was Council’s job to clear up the legal portion. He suggested getting clarification on some of the issues, to which Bacon asked the process for doing that. Reynolds suggested that the petitioners and neighbors provide the needed documents to City Council. Postle said that he did not recall seeing anything from DNR about them no longer having jurisdiction. Allen said that it was not included in the packet. Postle said that he did not know if they were threatened or not, and he was not saying they were; if they were he did not take kindly to it and if they were not, he apologized for making the suggestion. He said they have unanswered questions and he did not know where the legal questions stopped and their concerns about site plan began. Dausey said that if the property loses their lawsuit, everything that went on tonight was moot – they would have to start all over again. He requested that they start with a clean piece of property. Powell called for the vote. Voting in favor of the motion to table pending resolution of litigation were Bacon, Postle, Anne Miller, and Dausey. Opposed were Bishop, Boyle, Major, and Reynolds. To break the tie Chairman Powell voted in favor of the motion. The motion to table pending resolution of litigation passed. Chuck Powell opened the Public Hearing for a request from Michael Godbee for a Zoning Variance (Section 5-090) from Section 5-010.K, Prohibit Placing Materials in the Marshlands, for Lot 121 Miller Avenue, PIN 4-0005-16-007A, Zone R-2. The request was to bridge jurisdictional wetland in an unopened portion of Miller Avenue right-of-way. Whitley Reynolds recused himself. Brannyn Allen said that the petition had been before the Planning Commission in the past and the Minutes of previous Planning Commission and City Council meetings were included in the packet as well as site plans from the petitioner. Allen stressed that the petitioner was only requesting access to his property and should access be granted it would in no way vest future activity on the lot. Powell reiterated the request was for access. Harold Yellin, representing the petitioner, said that without a variance the property was landlocked. He said that the area to be crossed was freshwater wetlands. He said it was a swale that runs parallel along Miller. Yellin gave the history of the previous petition, which was denied by City Council. He said that the petitioner had to juggle Tybee, DNR, and the Corps of Engineers. He said they were asking for a variance; if it was denied they had no reason to go forward. Yellin said if the variance was approved, they have every intention of coming back because the variance was nothing more than the first step. He said that once access to the property was granted they would immediately apply to the Corps and to DNR and they would come back to Tybee with full construction plans. Yellin summarized. John Major said that at the September 13, 2007, City Council meeting City Attorney Bubba Hughes said 5 that if Council granted access the City would be stuck with whatever variances Godbee would need to build on the property, and Hughes suggested that the entire request be done at the same time. Major said that in his conversations with the DNR they said they would never approve a bridge to nowhere; they would need to see the whole footprint. Major read further from the City Council Minutes. Yellin spoke of Hughes knowing and understanding why Yellin disagreed. Yellin said that once he gets the other approvals, they would be back. He said they have options: bridge, pipe, culvert. He said they intend to address those options with the Corps and DNR, and once they know what they are going to build they would come back with detailed drawings. Major and Yellin discussed and then Yellin said that the likely use was a single-family residence. Libby Bacon said that Godbee has access to his lot: he can jump the ditch. Yellin said that Georgia law would not consider that access. Yellin and Bacon discussed legal access. Powell asked if anyone from the public wished to speak. Bill Garbett, 613 Miller Avenue, said that it was under 4-feet of water from time to time, and was jurisdictional wetlands, coastal marshland. He said that Godbee was again requesting permission to destroy coastal marshland in order to have vehicular access to a lot that was unbuildable due to environmental restrictions. Garbett said Godbee has access to his lot: it was a 15-foot walk from where he could park his car. He asked what other type of access was required if you are not going to put a house on it. He said the lot was over half coastal marshland and wetland. After further comments, Garbett urged denial of the request and that the applicant be required to submit a complete plan. Citing the expense of plans that may be disapproved, Yellin said that it did not make sense to submit complete plans. He said that Georgia law favors access to property. After reiterating prior points, Yellin said that every house on Miller and Seventh crosses a swale. Powell closed the Public Hearing. Anne Miller motioned to approve. George Dausey seconded. David Postle requested that Section 5-010.K be read. Allen read it. Major commented that the driveways crossing swales on Miller and Seventh were to buildable lots, and there were questions about whether Godbee’s was a buildable lot. Miller said she thought they were not supposed to talk about that. Powell said they were not; it should not have a bearing on their decision. He said the issue was simply to fill the wetland. James Boyle, Dausey and Miller voted in favor of the motion to approve. Opposed were Bacon, Demery Bishop, Major, and Postle. Reynolds had recused. The motion to approve failed. Yellin said that Postle had recused himself in 2007. He asked why he was not recusing for 2008. Powell said that perhaps the time to have brought that up would have been before the Hearing but since it was brought up now, he had that discussion with Postle before the meeting, and that was well over a year ago and he did not think it would be right to hold that against Postle; he now serves as a Planning Commission member and he had not spoken out against Godbee and his property since that meeting well over 14 months ago. Yellin said that he was not in the room at the time there was discussion about who was and was not voting. Powell said that it was not public; Postle asked him his opinion, and that was the opinion he gave and that was probably why he did not recuse himself. Powell said he was not a lawyer and not the City Attorney; it was the answer he gave Postle. Chuck Powell opened the Public Hearing for a request from Howard Reeve for a Zoning Variance (Section 5-090) from Section 5-010.J, Shore Protection with Variance Clause, for 1 Shirley Road, PIN 4-0006-06-001, Zone R-2. The request was for a Tybee Shore Protection Line variance for a new duplex. Whitley Reynolds recused himself. Brannyn Allen referenced a prior petition and she said that the Minutes were included in the packets. She explained the moving of an existing cottage landward to make room for the duplex. Libby Bacon said that it looked like all the challenges other than the Shore Protection Line could be handled administratively. Allen said that was correct. Bacon said that if the new Shore Protection Line that had gone before Council had been adopted the petition could have been handled administratively. Allen said that was correct. Powell asked if they resolved the legal issues about ownership of Shirley Road. Allen said that the ownership question was never answered; however, Reeve amended his site plan such that he no longer needed to use Shirley Road as part of the setback so the ownership question was moot. Reeve said that his wife was the owner of the property. He said the 6 only reason he was here was because of the Tybee Shore Protection Ordinance. Reeve said that lot 45 would comply with all the requirements of building a duplex because the lot would be the proper size. He said that one of the reasons there was opposition from the neighbors was the density. He said the zoning was R-2 so a duplex did comply. Reeve said that one of the unfortunate things was that the neighbors on lot 43 built so close to the lot line that it probably makes them uncomfortable that he would be 10 feet away. He said their building was about a foot over the property line. Reeve said he had tried to talk to the neighbors and they became very emotional and he was not sure there was anything he could do besides disappear that would make them satisfied. Bacon asked if Reeve had reduced the footprint. Reeve said yes. Bacon asked if he understood that the footprint included porches and everything. Reeve said yes. John Major clarified with Allen that they were dealing with the Shore Protection Ordinance as it stood that day. Reeve explained the colored lines on the drawing. Demery Bishop asked the distance eastward beyond the Tybee Shore Protection Line. Reeve said 25-1/2-feet. He said the front steps of the present house were 19 feet in front of that line. Powell asked if anyone from the public wished to speak. Christian Arden-Joly, resident of Shirley Park, named four other neighbors that share his views. He said that the developer’s plan was still undesirable for many reasons; it diminished the neighbors’ property values and jeopardized the safety of the subdivision. He said that Shirley Park was a subdivision of Tybee Island and came under the laws of subdivisions. Referring to slides being shown on the screen that he had prepared, Joly said that the proposal radically increased density; three large dwellings where there was one. He spoke of Shirley Park being the first subdivision on Tybee, recorded in 1931 with 18 lots. Joly spoke at length of the property lines of lots 44 and 45, and the Strand, and then summarized his previous points, and also stated that there was no hardship. Allen asked the Chair if public comment was being kept to three minutes. Powell said no, he was not limiting them to three minutes yet. Allen stated that that had been the practice for the previous petitions and she would like it noted that the Chair had waived it for this petition. Powell asked that comments be kept brief and to the point. Nancy Slotin said that the building that Reeve wanted to move would abut her house. She said that Reeve was going to have to move trees to build the condos. She said they are turning a beautiful City into a concrete jungle. Leon Slotin said that he has lived on the island since he was born. He said he was glad that Shirley Road was not part of the issue because everybody on Shirley Road owns Shirley Road. He emphasized that Reeve was altering a lot to make a house suitable for a lot that was too small; subdividing two lots to his dimensions. Slotin said that if Reeve wanted to build a cottage that conformed to that lot, that was his right; but he wanted to move a gigantic house back to within 10 feet of our home. Slotin said his property would be destroyed from any aesthetic value. He implored the Commission to deny the petition. Keith Gay said he was speaking on behalf of Dr. Osteen, the former owner of the property. Referring to the moving of lot lines, Gay said there were a multitude of occasions where existing lots were modified which allowed them to be buildable in a different category. He said that Osteen said that the Strand lot was still his property and, although it could not be built on, still was allowed for consideration of total square footage. After speaking about Shirley Road, the Slotin home, traffic, and density, Gay said the property was zoned R-2 which allowed for a duplex. He said there was no condo being built. After Gay talked about the current Tybee Shore Protection Line and possible changes to the Ordinance in the future, he asked that the Commission look at the real issues. Susan Arden-Joly, resident of Shirley Road, said that as one of the neighbors she is sensitive that Reeve would like to preserve the old house. She said they would not oppose Reeve if he would build within the Codes. She said that Reeve must respect the setbacks and he cannot claim the Strand land as part of his development. Reeve said he was not sure of the validity of a lot of the things that were said. He said that he has a plat from the City that he has not recorded yet. He said the house was too big for the lot but he was trying to save the old house, and you can recombine property. Nancy Slotin said the house was deteriorated: vines growing through the windows, awful, Reeve has not mowed the lawn, snakes in the area. She said that if he wanted to keep this beautiful Tybee house, why all this time has he not taken care of it. Powell closed the Public Hearing. Boyle motioned to approve. Miller seconded. 7 Boyle asked if the properties could be divided accordingly. Allen said that was correct. She restated that the issue before them was a Shore Protection variance, not a recombination or subdivision plat. Voting in favor of the motion to approve were Boyle and Miller. Opposed were Bacon, Bishop, Dausey, Major, and Postle. Reynolds had recused. The motion to approve failed. Chuck Powell said that the Shoreline Protection, which was on the table again tonight, did go before City Council and was denied. Brannyn Allen said that it was the Flood Damage Prevention Ordinance that was mentioned in their packets; it was not on the agenda for this evening – it was an update that was provided. Powell said that he was talking about the Shoreline Protection Ordinance that the Planning Commission worked on for 20 months that went before City Council. Allen said that was never on the agenda for this evening. Powell said he was at that meeting and it did come on the agenda, and not only was it turned down, they decided that they would do away with the Shoreline Protection we are currently under. Allen said the Text Amendment was never on the agenda for this evening. Powell said he disagreed with that; it was on the agenda and it was denied by City Council. Allen said she thought they were talking about two different things. She said the Shore Protection was never intended to come back before the Planning Commission; it was never on the agenda. Anne Miller said that she was under the impression that they were not supposed to go to sites together and discuss things beforehand. She said that she found John Major and David Postle on Shirley Road together. Miller said that she was tired of coming to the meetings and trying to act like adults when half were acting like unruly children that would not abide by what they are supposed to do. Major said that when Postle was first appointed to the Commission they had discussion about how a person with his disability would be able to serve. Major said that a number of them, himself included, said they would walk with Postle, not to try to influence him but to tell him what they were seeing, and others would help him with the documents. Major said that no objections were raised at that time and he had not been told anything different then that. He said that under the Americans with Disabilities Act of 1992 companies and municipalities are required to provide reasonable accommodations to persons with disabilities. Major said that allowing Postle to walk a site with him was very reasonable accommodation that he was more than happy to provide for the City. Postle said that when he was initially appointed to the Commission, one of the Commissioners, Sandy Chandler, strongly objected. Postle said that he and Chandler had a discussion in public where Postle answered many of Chandler’s questions. Postle said that when he asked Chandler when he needed to go with someone to walk a property could he feel free to ask for his assistance, Chandler had said anytime. Postle said that with all due respect to Miller, he was really getting tired of her picking on him and if she would like to trade places with him, he thinks her attitude would change. Chuck Powell said he would like to defer the situation to Brannyn Allen and to Bubba Hughes, City Attorney, and ask for his ruling about the accommodation that had been made with Major assisting Postle in walking some of the sites. To Miller, Powell said that he had not witnessed any childish action on behalf of the Commissioners and he though they conducted themselves in a very professional way and tried to do the best job they could with the petitioners, the citizens and the members, and he was very proud to be Chair and work with them all. Chuck Powell gave the dates of upcoming City Council and Planning Commission meetings. Chuck Powell adjourned the meeting.