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HomeMy Public PortalAbout20010913CCMeeting1 1 @ @ITEM 2001 -09 -13 City Council Minutes Mayor Walter Parker called the September 13th City Council meeting to order at 7 P.M. The following members of Council were present: James Burke, Jack Youmans, Shirley Sessions, Pamela O'Brien and Mallory Pearce. Acting City Attorney Dana Braun and City Manager Tom Cannon were present. Father Otto Immel gave the invocation, which was followed by the Pledge of Allegiance and God Bless America. Jan MacKinnon, Georgia Department of DNR Coastal Management, explained the program and the incentives to Council and gave a slide show of what the Coastal Management has to offer in the way of grants and incentives. Pearce moved to enter into executive sessions to discuss personnel and litigation. O'Brien seconded. Vote was unanimous. Mayor Parker reconvened the regular meeting. David Ring requested a one -day special beer license for a benefit to be held on September 29th for Bruce from the Breakfast Club to help defray the medical bills. Curtis Carver addressed Council on his concerns about the flooding of his property at # 210 Street that has been going on for 10 years. Carver said they have lost a dog, have to move cars and something needs to be done. Carver has written a couple of letters and has had some response. Carver told the Mayor that the time that he was called that he could not get down to the house. O'Brien asked for a current copy of the drainage priority list. Cannon responded that every member would receive a copy. The Mayor proclaimed and urged every citizen to get an influenza and a pneumonia shot. Mayor Parker opened, asked for comments and closed the following public hearing according to the laws of Georgia. Pearce explained the proposed zoning text amendment on uses in the C -1 district stating that it would limit the restrictions to certain streets, not the entire C -1 area. It is noted that the Planning Commission turned down the proposal. Bobby Phillips, representing Nick Alexander and Tony Simon. Charlie Masterpolis spoke against. Jenny Orr said that there are good and bad points. Angel Schroeder said condos do not belong in C -1 district. Burke said should go back to Planning Commission since wording has been altered. E -mail from Diane Lightly asked for Council to please vote no. Chip Ziegler said he would like to see and hear what the property owners in C -1 have to say. O'Brien moved to adopt the ordinance that was attached to a note from Jackie on the 11th of September. Pearce seconded. Pearce moved to amend by adding "depth of 60 feet ". O'Brien accepted. O'Brien said deal with this tonight and set a workshop for 2 weeks from tonight. Acting City Attorney Dana Braun said he has concerns about passing on first reading tonight, then changing the wording and then passing on second reading in October, it is safer to have the 1st and 2nd readings identical. Pearce asked Cannon to bring in a planner to make sure it is legal. Braun said every thing is legal but you lose your safety net when you change wording between 1st and 2nd readings. Council vote was 2 in favor (O'Brien and Pearce); 3 opposed (Burke, Youmans and Sessions). Pearce moved to send back to the Planning Commission with the addition of "Depth of 60 feet" and Hughes new wording as of September 11, to look at the long range goals in a workshop set for September 27 at 7 P.M. with Council and the Planning Commission. O'Brien seconded. Parker said this means a 1 continuation until the October meeting. Council vote was 3 in favor (Sessions, O'Brien and Pearce0; 2 opposed (Burke and Youmans). Back ground on the growth control issue was discussed at length. O'Brien would like the July 2nd growth report of this year to be added as part of these minutes as it supports the text amendment. Pearce asked for a point of order. Burke moved to deny. Youmans seconded. Vote by Council was 2 in favor of denial (Burke and Youmans); 3 opposed (Sessions, O'Brien and Pearce). O'Brien moved to handle the hearing on Growth Control the same way as the C -1 uses and advertise for October meeting. Pearce seconded with the amendment for Section 5 to read "If a permit holder or applicant desires more hook-ups permits than received in a lottery, such permit holder or applicant can gain additional hook -up permits by donating or dedicating an individual buildable parcel to be a permanent green space /natural habitat parcel." O'Brien accepted the amendment. Levy said that the vote by Planning Commission was a unanimous vote to deny. Vote by Council was 3 in favor of motion (Sessions, O'Brien and Pearce); 2 opposed (Burke and Youmans). Mr. Tom Olsen presented Council with a petition from Tommy Clark for a 27 condo unit site plan Phase III at 404 Butler Avenue PIN 4- 4 -20 -1. Olsen said that this is for concept approval, everything meets all ordinances, all setbacks without requesting any variances, and the 65% green space required is in the addressed in the setbacks. Parking is adequate, 216 to meet the ordinances. This will be a 4 -story structure and there will be 27 condos verses the 56 motel rooms at present. O'Brien questioned Phase II hotel suites asking if there is adequate parking. Olsen answered yes. O'Brien said Council learned that the hotel suites had been changed to condo, but the suites were approved by Council not the condos. O'Brien stated that she would not entertain any new construction until Phase II is in compliance with codes and ordinances. Sessions agreed. O'Brien said a buffer is needed between residential and commercial. Clark answered the parking and buffer concerns. Clark said that H. G. B. & DeY have approved all the drawings. Bargeron told Council that McAfee had the City go all over the site and all fmdings were in a red notebook that is no longer in McAfee's old office. O'Brien moved to table decision on Phase III. Pearce seconded. Vote by Council was 4 in favor (Burke, Sessions, O'Brien and Pearce); 1 opposed (Youmans). Wayne Disher presented Council with a variance petition for an 8 -foot setback on rd Avenue side of lot. Pearce asked if Disher is willing to have a tree survey. Parker asked how many palms. Disher answered 10, but we have relocated 2. Pearce asked what is the hardship? Disher said that he couldn't build a comparable house with other houses in the area. Levy said Planning Commission voted 4 to 3 in favor. Susan Edwards spoke in favor of the variance. Sessions moved to approve the variance. Youmans seconded. Vote by Council was unanimous. Carew Rowell requested variance for continuance of non - conforming use of 48 -inch setback variance to build a set of stairs at 605 Lovell Avenue PIN 4- 5- 12 -12. O'Brien stated that it means that the stairs would be 4 feet into the setback on Lovell Avenue. Planning Commission vote 7 to 0 to approve. Burke moved to approve. Pearce seconded. Vote by Council was unanimous. Haile Parker requested a variance for continuance for non - conforming use in order to add a screen porch to his deck at 1017 Lovell Avenue PIN 4- 6 -13 -7. Levy 1 1 1 said the Planning Commission vote 7 -0 in favor. Burke moved to approve. Youmans seconded. Vote by Council was unanimous. Hal Stillings requested a variance for non - conforming use for adding a room to the back of his home at 1207 Lovell Avenue. Levy said the Planning Commission voted 5 in favor, 1 opposed, 1 abstained. Burke moved to approve. Youmans seconded. Vote by Council was unanimous. Gary Sanders presented Council with a request for site plan approval for Pam Crawford for a 7 unit condo at 8 17th Street PIN 4- 8 -6 -35, 3 story over parking with 7th condo as pent house on top floor. Orr asked that the storm water issue4 be addressed. Jeff Schroeder spoke against the project. The Planning Commission voted 7 — 0 in favor of approval. O'Brien moved to approve the project contingent upon 4 items: Storm drainage — show how storm water flows prior to the construction and how the changes will affect the drainage; calculate the green space; parking plan; and proof of ownership. Pearce seconded. Vote by Council was unanimous. Pearce moved to approve the one -day beer permit for David Ring. Youmans seconded. Vote by Council was unanimous. There were no comments from anyone on the 4 -year staggered terms for Mayor and Council members. Another public hearing will be held at the October meeting. Pearce moved to approve the three sets of minutes as presented. O'Brien seconded contingent upon all extra documents being attached. Vote by Council was unanimous. Pearce moved to adopt the telecommunication ordinance with the fees being added by the second reading after Cannon does research. Burke seconded. Vote by Council was unanimous. Pearce moved to adopt 9 -4 -44 Cable on its first reading. Cannon will also research and add the fees before the second reading. Sessions seconded. Vote by Council was unanimous. The Mayor asked Council to look over the survey concerning the cable on Tybee and make suggestions to Cannon. Pearce moved to approve the concept. Sessions seconded. O'Brien asked about the postage. Cannon answered that the City will pay the postage. Vote by Council was unanimous. O'Brien addressed the following issues: Letter from Mr. Glass dated August 1st concerning lights — the Mayor said that the problem is being addressed. The meeting with Anne Mueller in reference to a wish list for October meeting - the Mayor answered that he will present the list, please get your suggestions to Cannon — Cannon to give Council a copy of wish list one week prior to meeting. Parks of Flags — Chambers left messages for Cannon — Cannon answered that it is not cleared up yet. The moving of the soccer goals on Monday nights in order to have softball games. Ms. Leonard concerns about the area behind the IGA — Cannon said that this issue will be revisited soon. Youmans moved to deny the Ante Litem from Attorney Phillips concerning an injury to Delores Flemming. Burke seconded. Vote by Council was unanimous. Council accepted the resignation of Rachel Perkins from the Planning Commission. Council will appoint a new member to fulfill Perkins term at the October meeting. A resolution concerning the laying of lines from Tybee to Savannah failed. Burke and Youmans voted in favor and Sessions, O'Brien and Pearce opposed. 1 1 Cannon told Council that the employees elected Claire Price and Jimmy Woods to the pensions board. Mayor and Council appointed the Mayor and the Mayor Pro tem to serve on the board. Cannon asked Council for a policy guideline for city personnel and equipment usage on private property. Braun said that his legal opinion is that it is all right if there is a sanitation or health concern. Youmans mentioned the man Carver that appeared before Council tonight to complain about standing water and flooding at the east end of 10th Street. Burke said to get Pye to look at taking the water east, the middle of the dune is low. Parker said that DNR will not allow. Cannon to look into this issue. O'Brien moved to allow Hughes to update the Family Medical Leave ordinance for the October meeting. Pearce seconded. Vote by Council was unanimous. Pearce moved to adopt Section 2 -2 -1 Qualification for Office: Mayor on its second reading. O'Brien seconded. Vote by Council was unanimous. O'Brien moved to adopt Section 2 -2 -2 Same: Council members on its second reading. Pearce seconded. Vote by Council was unanimous. Youmans moved to approve Section 9 -6 -1 Shark Fishing on its second reading with the word intentionally added. Pearce seconded. Vote by Council was unanimous. Mayor Parker adjourned the meeting, as there was no further business to come before Council. Clerk of Council Mayor Walter W. Parker 1 1 1 PROCLAMATION WHEREAS, influenza is a highly contagious viral infection of the nose, throat, and lungs that is one of the most severe illnesses of the winter season: and WHEREAS, influenza and pneumonia were the seventh leading cause of death in Georgia in 1999; and WHEREAS, more than 20,000 die each year due to influenza related illness and the number of fatalities increases to 40,000 during severe influenza seasons; and WHEREAS, certain "at risk" populations should be immunized against the influenza virus to significantly reduce the incidence of influenza; and WHEREAS< the annual direct medical costs (hospitalizations, physician office visits, medications, etc.) of influenza are estimated at up to $4.6 billion with the total direct and indirect costs (work and school days missed) of a severe influenza epidemic are at least $12 billion; and WHEREAS, influenza can be prevented with a safe and effective vaccine which is covered by Medicare and most insurance plans; and WHEREAS, influenza vaccines are available through many physicians, health departments and community pharmacies and very cost effective. NOW, THEREFORE BE IT RESOLVED, that the City of Tybee Island strongly urges its citizens to consult their physician and/or pharmacist to discuss the appropriateness of receiving the influenza vaccine. Proclaimed this al3th day of September 2001. Clerk of Council Mayor Walter W. Parker 1 1 2 -2 -1 Qualification for office; Mayor ORDINANCE NO. It is hereby ordained by the governing authority of the City of Tybee Island, in open meeting assembled, that the Tybee Island Code of Ordinances, Title 2 Government and Administration, Chapter 2 Elections, Section 1 Qualification for office; Mayor, be amended to read as follows: Section 1. Section 2 -2 -1 is hereby amended to read as follows 2 -2 -1 Qualification for office; Mayor. To be eligible for election to, and to hold at any time, the office of mayor of the City of Tybee island a person shall be at least 21 years of a e, shall have ros dod in the city for a period of one 1 year next before qualifying as a candidato for the office of mayor, and shall be duly registered and qualified to vote in municipal elections of the city and of the State of Georgia (code 1970, Sec. 6 -1) Any ordinances in conflict herewith are repealed to the extent of the conflict and this Ordinance shall have application to any violation of the Tybee Island Code of Ordinance of the City of Tybee Island, Georgia. Adopted this day of , 2001 Mayor Walter W. Parker City Clerk 1st Reading: 2nd Reading: Enacted: Page 1 of 1 1 1 1 2 -2 -2 Same; Council members ORDINANCE NO. It is hereby ordained by the governing authority of the City of Tybee Island, in open meeting assembled, that the Tybee Island Code of Ordinances, Title 2 Government and Administration, Chapter 2 Elections, Section 2 Same; Council members, be amended to read as follows: Section L Section 2 -2 -2 is hereby amended to read as follows 2 -2 -2 Same; Council members. To be eligible for election, and to hold at any time, the office of council member of the city, a person shall be at least 21 years of age, shall have resided in tho City of Tybee Jsland for a penod of one n year next before qualifying as a candidato 1l e .f<if mr.o to e 4 f ` for the office of council member, and shall be duly registered and qualified to vote in municipal elections of the city and of the State of Georgia. (Code 1970. Sec. 6 -2) Any ordinances in conflict herewith are repealed to the extent of the conflict and this Ordinance shall have application to any violation of the Tybee Island Code of Ordinance of the City of Tybee Island, Georgia. Adopted this day of , 2001 Mayor Walter W. Parker City Clerk 1st Reading: 2nd Reading: Enacted: Page 1 of 1 1 ORDINANCE NO. AN ORDINANCE TO AMEND THE CODE OF ORDINANCES, CITY OF TYBEE ISLAND, GEORGIA IT IS HEREBY ORDAINED by the governing authority of the City of Tybee Island duly assembled, as follows: 9 -6 -1 Shark Fishing Prohibited. Section I. It shall be unlawful for anyone to fish for sharks of any species on or from any of the public beaches, docks or piers of the City. Section II. Violations shall be punishable by fines not to exceed $300.00 and/or imprisonment not to exceed six (6) months and /or to perform community service for a period not exceeding sixty (60) days, any or all such penalties in the discretion of the municipal Judge. It is the intention of the governing body and is hereby ordained that the provisions of this ordinance shall become and be made a part of the Code of Ordinances, City of Tybee Island, Georgia. (� ADOPTED THIS I0 DAY OF , 2001. MAYOR ATTEST: CLERK OF COUNCIL FIRST READING: SECOND READING: ENACTED: EMH\TYBEE\ORD q �o HUSSEY, GAY, BELL & DEYOUNG, INC. July 2, 2001 Mr. Tom Cannon City Manager City of Tybee Island P.O. Box 2749 Tybee Island, Georgia 31328 RE: GROWTH IMPACT STUDY Dear Tom: ESTABT .TSHED 1958 A Bell Company At your request we have investigated the impact on the City's water and sewer systems of the two following scenarios: I. (a) Three hundred eighty two (382) new single family houses constructed in districts zoned Residential. These houses would be occupied twelve months a year. (b) Four hundred forty eight (448) residential units constructed in the districts zoned C -1 and C -2. These units would be 100% occupied in the months of May, June, July and August. The other eight months they would be 75% occupied. II. (a) Three hundred eighty two (382) new single family houses constructed in districts zoned Residential. These houses would be occupied twelve months a year. (b) Two hundred twenty four (224) new residential units and 224 motel rooms constructed in the C -1 and C -2 districts. Occupancy would be the same as I (b) above. The monthly impact for each scenario is shown on Exhibit I. We used 300 gallons per day (GPD) for single family homes and new residential units and 100 GPD for motel rooms. WATER Exhibit II shows the'monthly groundwater withdrawal for the City since January 1999. 2 show the average of the latest two months of data (January thru May December of 1999 and 2000) combined with the monthly impact of e xhibit I. In each of the scenarios the City's monthl withdrawal permit limits o ,600,000 GOD would -be exceeded. However, un er both scenarios the City's annual , . average of 960,000 GPD o cee a .� LE � .4 6�. W/ t 3 ikk $A4•izi. � `c4, Nor) 329 COMMERCIAL DRIVE (31406) • P.O. BOX 14247 • SAV N . . GEORGIA 31416 -1247 • TELEPHONE 9(2.354.4626 • FACSLMILE 912-35 .6 4 1 Mr. Tom Cannon July 2, 2001 Page No. 3 EXHIBIT II GROUNDWATER WITHDRAWAL CITY OF TYBEE ISLAND Month 1999 2000 2001 January 643,000 683,500 688,000 February 620,000 666,000 626,000 March 725,000 762,000 742,600 April 961,000 904,000 948,000 X May 1,049,000 1,229,000 1,203,000 June 1,242,000 1,389,000 July 1,212,000 1,371,000 August 1,205,000 1,058,000 September 963,000 870,500 October 828,000 830,000 November 700,000 750,000 December 643,000 678,000 ANNUAL AVERAGE 899,000 Permit Limits 932,500 1,600,000 Monthly Average 960,000 Annual Average 1 1 Mr. Tom Cannon July 2, 2001 Page No. 2 January February March April May June July August September October November December sr . 3DO 6P� k P�stb 10D b EXHIBIT 1 MONTHLY IMPACT �� ciAse +k, e Scenario I 215,000 215,000 215,000 215,000 249,000 249,000 249,000 249,000 215,000 215,000 215,000 215,000 ? 3 vsc t ,)y v Scenario 182,000 182,000 182,000 182,000 204,000 204,000 204,000 204,000 182,000 182,000 182,000 182,000 1 Mr. Tom Cannon July 2, 2001 Page No. 4 v W EXHIBIT III 1 Two Year Average Scenario I Estimated Month Withdrawal Withdrawal :Withdrawal January 685,750 215,000 900,750 February 646,000 215,000 861,000 March 752,300 215,000 967,300 April 926,000 215,000 1,141,000 May 1,216,000 249,000 1,465,000 June 1,315,500 249,000 1,564,500 July 1,291,500 249,000 1,540,500 August 1,131,500 249,000 1,380,500 September 916,750 215,000 1,131,750 October 829,000 215,000 1,044,000 November 725,000 215,000 940,000 December 660,500 215,000 875,500 Annual Average 1,151,000 1 Mr. Tom Cannon July 2, 2001 Page No. 5 EXHIBIT II11-2 Two Year Average Scenario II Estimated Month Withdrawal Withdrawal Withdrawal January 685,750 182,000 867,350 February 646,000 182,000 828,000 March 752,300 182,000 934,300 April 926,000 182,000 1,108,000 May 1,216,000 204,000 1,420,000 June 1,315,500 204,000 1,519,500 July 1,291,500 204,000 1,495,500 August 1,131,500 204,000 1,335,500 September 916,750 182,000 1,098,750 October 829,000 182,000 1,011,000 November 725,000 182,000 907,000 December 660,500 182,000 842,500 Annual Average 1,114,000 1 Mr. Tom Cannon July 2, 2001 Page No. 6 WASTEWATER Exhibit IV shows the permitted and metered monthly flow at the Tybee Treatment Plant since January 1999. Exhibits V -1 and V -2 show the average of the latest two months of data combined with the monthly impact of each scenario shown in Exhibit I. These estimated flows are then compared with the monthly permitted flow. In both Scenario 1 and 2 NPDES permit violations may only occur in July and October. 11 repaying this report we have made several assumptions. We have tried to be most . conservative by assuming the worst possible situations. For example, we have assumed that 100% of groundwater withdrawal will be returned to the sewer system. A more realistic percentage might be 90% return to the sewer system. In conclusion the City's wastewater treatment y 2. The Ci 's mont • lant seems to be ade average groundwater withdrawal is • uate for both Scenario 1 and so adequate. Discussions with EPD to increase the yearly withdrawal permit limits should begin in the near future. If EPD denies the increase permit limits other sources of groundwater withdrawal, such as an agreement with the City of Savannah, should be pursued. We hope that this information is helpful and are available to discuss it at your convenience. Sincerely, �Ip �1 j�c4 I w- WILLIAM H. LOVETT • cg S Al-$) T +ri"`ll Cf ! � li C4frili-W Cool 1 1 Mr. Tom Cannon July 2, 2001 Page No. 7 EXHIBIT IV TYBEE WASTEWATER TREATMENT PLANT FLOW SUMMARY JUNE 28, 2001 Permitted 1999 2000 2001 Month Flow, MGD Flows. MGD Flows, MGD Flows, MGD January .890 .570 .561 .431 February .890 .636 .539 .470 March 1.15 .555 .605 .549 April 1.15 .571 .658 .653 May 1.15 .556 .741 .680 June 1.15 .653 .795 July 1.15 1.248 (2) .916 August 1.15 .810 .812 September 1.15 • .80.8 1.022 (1) October .890 .972 (2) .699 - November .890 .711 .509 December .890 .596 .399 (1) 8 inches of rainfall (2) Non - typical flows possibly caused by high rainfall 1 1 Mr. Tom Cannon July 2, 2001 Page No. 8 Two Year Month Average Flow January .496 EXHIBIT V -1 .215 February .505 .215 March .577 .215 April .656 .215 May .710 .249 June .724 .249 July 1.082 .249 August .811 .249 September .915 .215 October .836 .215 November .610 .215 December .498 ' .215 * Permit Violations Estimated Permitted % of Flow .Flow Permit .711 80 .890 .720 .890 .792 1.150 • .871 1.150 .959 1.150 .973 1.150 1.331* 1.150 1.060 1.150 1.130 1.150 1.051* .890 .825 .890 .713 .890 81 69 76 83 85 93 80 Note: Non - typical flows in July and October of 1999 may cause two year average flow to be inaccurate: Adding impact of Scenario 1 to higher, possibly inaccurate, flows could cause the anticipated flows to show as permit violations. 1 1 Mr. Tom Cannon July 2, 2001 Page No. 9 EXBIT V -2 Two Year __Scenario 2 / Estimated Permitted % of Month Average Flow ImilEtT3T6D Flow Flow, MGD Permit January .496 .182 .678 .890 76 February .505 .182 .687 .890 • 77 March .577 .182 .759 1.150 66 April .656 .182 .838 1.150 73 May .710 .204 .914 1.150 79 June .724 .204 .928 1.150 July 81 Jul 1.082 .204 1.286* 1.150 C-112.- August .811 .204 1.105 1.150 96 September .915 .182 1.097 1.150 October .836 .182 1.018* .890 November .610 • .182 .792 .890 December .498 .182 .680 .890 * Permit Violations . 95 76 Note: Non - typical flows in July and October of 1999 may cause two year average flow to be inaccurate. Adding impact of Scenario 2 to higher, possibly inaccurate, flows could cause the anticipated flows to show as permit violations. 1 1 1 STATE OF GEORGIA COUNTY OF CHATHAM ) AFFIDAVIT PERSONALLY appeared before the undersigned attesting officer, duly authorized to administer oaths, ,,f(k, (2 , Who after being duly sworn, deposes and on oath states the following: (1) I was the presiding officer of a meeting of the Tybee Island City Council held on the L3 day of SEIJ4. , 2001. (2) That it is my understandi«ig that O.C.G.A. § 50- 14 -4(b) provides as follows: When any meeting of an agency is closed to the public pursuant to subsection (a) of this Code section, the chairperson or other person presiding over such meeting shall execute and file with the official minutes of the meeting a notarized affidavit stating under oath that the subject matter of the meeting or the closed portion thereof was devoted to matters within the exceptions provided by law and identifying the specific relevant exception. (3) The subject matter of the closed meeting or closed portion of lI the meeting held on the I:, of , 2001, which was closed for the purpose (s) of .,Qh g a1 1 k ° as allowed by O.C.G.A., Title 50, Chapter 14, was devoted to matters within those exceptions and as provided by law. 1 1 1 (4) Any unrelated matters which were mentioned or attempted to be offered for discussion during the closed portion of the meeting were ruled out of order and not discussed. This affidavit is being executed for the purpose of complying with the mandate of 0.C.G.A. § 50-14-4(b) that such an affidavit be executed. (5) This 04 day of Sworn to and subs9ribed befpFe me this day ofc 37 14,Toti*, public 2001. gAcommon\em1A14536\affiday.01 , 2001. • Mayor/Presiding Officer 1 1 1 Shark Fishing 9 -6 -1 ORDINANCE NO. It is hereby ordained by the governing authority of the City of Tybee Island, in open meeting assembled, that the Tybee Island Code of Ordinances, Title 9 Licensing and Regulations, Chapter 6 Shark Fishing Prohibited, Section 1 Prohibited, be added to read as follows: Section 1. A new Section 9 -6-1 is hereby added to read as follows 9 -6 -1 Shark Fishing Prohibited A. It shall be unlawful for anyone to fish for sharks of any species on or from any of the public beaches, docks or piers of the City. B. Violations shall be punishable by fines not to exceed $300.00 and/or imprisonment not to exceed six (6) months and/or to perform community service for a period not exceeding sixth (60) days, any or all such penalties in the discretion of the municipal Judge. (ORD. 2001 -21; 9/13/01) Any ordinances in conflict herewith are repealed to the extent of the conflict and this Ordinance shall have application to any violation of the Tybee Island Code of Ordinance of the City of Tybee Island, Georgia. Adopted this 13th day of September , 2001 Mayor Walter W. Parker City Clerk 1st Reading: 2nd Reading: 9/13/2001 Enacted: 9/13/2001 Page 1 of 1 1 1 Municipal Code Section 9 -4-40 TELECOMMUNICATION (Ord. 2001 -22, Amended, 12/12/2001) Section 9 -4-41 Definitions For purposes of this Ordinance, the following terms, phrases, words and their derivations shall have the meanings set forth in this Section, unless the context clearly indicates that another meaning is intended. When not inconsistent with the context, words used in the present tense include the future, words used in the plural number include the singular number and words used in the singular number include the plural number. 1.1.01 "Affiliated Person" means each Person who falls into one or more of the following categories: (1) each Person having, directly or indirectly, a Controlling Interest in the applicant; (2) each Person in which the applicant has, directly or indirectly, a Controlling Interest; (3) each officer, director, joint venturer or joint venture partner, of the applicant; and (4) each Person, directly or indirectly, controlling, controlled by, or under common Control with, the applicant; provided that "Affiliated Person" shall in no event mean the City or any creditor of the applicant solely by virtue of its status as a creditor and which is not otherwise an Affiliated Person by reason of owning a Controlling Interest in, being owned by, or being under common ownership, common management or common Control with, the applicant. 1.1.02 "Cable Services" means "cable services" as defined in the Communications Act of 1934, as amended by the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, the Telecommunications Act of 1996, and as may be further amended from time to time (the "Cable Act "), but does not include Telecommunications Services or Private Telecommunications Services. In the event that "cable services" is no longer defined in the Cable Act or the definition in the Cable Act otherwise becomes inapplicable, "Cable Services" shall mean "cable services" as defined in the Cable Act immediately prior to such term no longer being defined in the Cable Act or such definition otherwise becoming inapplicable. 1.1.03 "Cable System" means any "Cable System" as defined in the Cable Act. 1.1.04 "City" means the City of Tybee Island. 1.1.05 "City Council" means the City Council of the City and its designee or any successor thereto. 1.1.06 "Control" or "Controlling Interest" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, including, but not limited to, a person' s compliance with a Franchise or Revocable License, whether through the ownership of voting securities, by contract, or otherwise, and the beneficial ownership of shares representing 10 percent or more of the votes entitled to be cast by a corporation's voting shares shall create a rebuttable presumption of control. Page 1 of 11 1 1 1 Municipal Code 1.1.07 "Facility Services" means the installation, construction, operation or maintenance of conduit or related facilities in the Streets by a Person for sale or lease to third parties, other than Affiliated Persons, that use such conduit or related facilities for the transmission of Telecommunication Services, but such Person does not itself provide Telecommunications Service or Cable Service to such third parties or any locations or other Persons in the license area. 1.1.08 "Franchise" means an initial authorization, or renewal thereof, issued by the City in accordance with the provisions of this Ordinance, which authorizes the occupation and use of the Streets by a Telecommunications System to provide Telecommunications Services. 1.1.09 "Grantee" means the legal entity to which is granted the right, authority and responsibility to provide Facility Services along licensed routes pursuant to a license, or to construct, install, operate and maintain a Telecommunications System as necessary to: (a) furnish, supply and distribute Telecommunications Services to any locations or Persons in the franchise or license area; (b) provide Private Telecommunications Services along licensed routes pursuant to a license; or (c) transport Telecommunications Services across the City along licensed routes pursuant to a license without terminating or originating any Telecommunications Services at or from any Person or location in the City. 1.1.10 "may" is permissive. 1.1.11 "Ordinance" means this Ordinance and all modifications and amendments thereto. 1.1.12 "Person" means any individual or any association, firm, partnership, joint venture, corporation or other legally recognized entity, whether for profit or not for profit, but shall not mean the City. 1.1.13 "Private Telecommunications Services" means the transmission of Telecommunications by a Person, regardless of the facilities used, for or in connection with the internal operations of such Person' s business, residence or employment and not for or in connection with the provision or offering of Telecommunications Services for sale or resale to any Person, and shall not mean Cable Services. 1.1.14 "Revocable License" means an initial authorization or renewal thereof, issued by the City in accordance with the provisions of this Ordinance, which authorizes the occupation and use of specifically identified Streets, provided that a Revocable License shall be issued only in the limited circumstances set forth in Section 2.1.02 of this Ordinance 1.1.15 "shall" is mandatory, not merely directive. 1.1.16 "Streets" means the surface of, as well as the spaces above and below, any and all streets, alleyways, avenues, highways, boulevards, driveways, bridges, tunnels, parks, Page 2 of 11 1 1 Municipal Code parkways, public grounds or waters, and other public rights -of -way within or belonging to the City. 1.1.17. "Telecommunications" means "telecommunications" as defined by 47 U.S.C. § 153(43) of the Communications Act of 1934, as amended by the Telecommunications Act of 1996, but shall not include Cable Services. 1.1.18 "Telecommunications Service" means "telecommunications service" as defmed by 47 U.S.C. § 153(46) of the Communications Act of 1934, as amended by the Telecommunications Act of 1996, but shall not include Cable Services. In the event that "telecommunications service" is no longer defined in the Communications Act or the definition in the Communications Act otherwise becomes inapplicable, "Telecommunications Service" shall mean "telecommunications service" as defmed in the Communications Act immediately prior to such term no longer being defined in the Communications Act or such definition otherwise becoming inapplicable. 1.1.19 "Telecommunications System" means the system, plant, equipment or property within the Streets in the franchise or license area over which Telecommunications Service or Private Telecommunications Service is provided, and to be constructed, operated and maintained by a Grantee pursuant to a franchise or license ordinance or agreement.(ORD. 2001 -22; 10 /11 /01) (2001 -22, Amended, 12/12/2001) Section 9-4-42 Granting Authority 2.1.01 No Person shall use or occupy the Streets to construct, operate or maintain a Telecommunications System over which Telecommunications Services or Private Telecommunications Services are provided, or use or occupy the Streets to provide Facility Services, without a Franchise or Revocable License granted in accordance with the provisions of this Ordinance. The City intends to exercise its authority to franchise or license Persons pursuant to this Ordinance to the maximum extent permitted by applicable law, including the 1996 Act. 2.1.02 A Person shall not use or occupy the Streets to operate a Telecommunications System over which Telecommunications Services or Private Telecommunications Services are provided without a Franchise, except that such Person may use or occupy specific Streets without a Franchise if the Person obtains a Revocable License in accordance with the terms of this Ordinance. A Revocable License is intended to be a limited grant of authority to use and occupy specifically identified Streets and: (a) may be granted only if the use or occupation of such Streets is for the sole purpose of providing Private Telecommunications Services or Facility Services; or (b) shall be granted to provide Telecommunications Services only if the use or occupation of such Streets, together with the use or occupation of any Streets pursuant to Revocable Licenses previously granted to such Person and Affiliated Persons, shall not exceed five hundred (500) linear feet; or (c) shall be granted only if the use or occupation of such Streets is by a Telecommunications System that is not used by the Grantee or any other Person to sell, resell or otherwise provide Telecommunications Services to any Person in the City. In the event an application for a Revocable License would cause a Person to exceed or fail to comply with the limits specified in this Section 2.1.02, then such Person must apply for a Franchise in accordance Page 3 of 11 1 1 1 Municipal Code with the provisions of this Ordinance, and the use of specifically identified Streets pursuant to all previously granted Revocable Licenses shall thereafter be pursuant to and in accordance with any such Franchise that may be granted. 2.1.03 The City Council may grant one or more Franchises or Revocable Licenses in accordance with this Ordinance, provided that the City Council reserves the right to modify any provision of this Ordinance by amendment hereof. 2.1.04 The grant of any Franchise or Revocable,License shall be made by adoption of a separate ordinance by the City Council and shall be on such terms and conditions as may be specified in said separate ordinance and/or a franchise or license agreement between the City and the Grantee. 2.1.05 Any Franchise or Revocable License granted shall be nonexclusive. The City specifically reserves the right to grant, at any time, such additional Franchises or Revocable Licenses as it deems appropriate, and/or itself engage in the provision of Telecommunications Services, Private Telecommunications Services or Facility Services. 2.1.06 A Franchise may be granted for all or any defined portion of the City. A Revocable License may only be granted for use of specifically identified Streets. 2.1.07 The grant of Franchises and Revocable Licenses by the City to Persons constructing, operating or maintaining a Telecommunications System shall be subject to the provisions of applicable law, such as the provisions in the 1996 Act, as amended, governing telecommunications franchises and renewals thereof.(ORD. 2001 -22; 10 /11 /01) (2001 -22, Amended, 12/12/2001) Section 9 -4-43 Franchise Applications 2.2.01 Applications for Franchises and Revocable Licenses shall be submitted in such form and be issued on such terms and conditions as the City Council may determine, subject to applicable law. 2.2.02 Any Application for a Franchise or Revocable License shall contain and/or require the following information with respect to the proposed Franchise or Revocable License: (i) applicant' s name, address, telephone number, and federal employer identification number or social security number; copy of applicant's corporate charter or partnership agreement as applicable; and any trade names (and registrations) used by applicant; (ii) for the purpose of determining who Controls applicant, a detailed statement of the corporation or business entity organization of the applicant, including the following: applicant; (a) the names and business addresses of all officers and directors of the Page 4 of 11 1 Municipal Code (b) the names and business addresses of all Persons having Control over the applicant; (c) fmancial information sufficient to demonstrate that the applicant has the financial ability to construct and maintain the Telecommunications System, or to provide Facility Services, in a safe manner and in accordance with the City' s management policies, rules and regulations with respect to the Streets and to the extent not prohibited by law; and (d) for purposes of determining whether the applicant will construct, maintain, operate, and repair the Telecommunications System, or provide Facility Services, in compliance with the City' s management policies, rules and regulations with respect to the Streets and in a manner protective of the public health, safety and welfare with respect to the applicant' s use of the Streets, the names and addresses for telecommunications systems owned or controlled by the applicant and the areas served by such systems. (iii) in order to permit the City to manage its Streets, a description of the proposed plan of construction and maintenance of the Telecommunications System or Facility Services to be constructed in the Streets, which shall include the following: (a) a map indicating the location of the System or Facility Services in the Streets, and an estimated construction schedule, if known; and (b) a statement describing the proposed and actual location of facilities and equipment to be used in the Streets by the applicant; (iv) to the extent not prohibited by law, any other details, statements, supplementary information, or references reasonably pertinent to the City' s management of the Streets or the compensation to be paid to the City, which shall be required or requested by the Council or by any other provision of law.(ORD. 2001 -22; 10 /11 /01) Section 9- 4-43.1 Licenses Non - refundable Application Fees for New Franchises and Revocable No application for a new Franchise or Revocable License shall be considered without payment by the applicant of application fees as provided in this Section. If a Franchise or Revocable License is granted, application fees will not be deemed a credit towards any other fees or sums due by the Grantee. If an application is denied, the application fee will not be refunded, except if required by law. (a) Purpose of Application Fees. The application fees provided by this section will serve to cover the direct and indirect costs incurred by the City in processing the application, evaluating the applicant, and granting a franchise, and shall include, but not be limited to, administrative, engineering, publication, legal, and consultant's expenses. (b) Application Fee. The applicant will be expected to pay the reasonable costs of the City in evaluating the application. Notwithstanding any other requirement of this Page 5 of 11 1 1 Municipal Code ordinance, each applicant for a Franchise must furnish with its proposal a nonrefundable application fee in the amount of Two Hundred and Fifty Dollars ($250.00) by certified check or cashier's check made payable to the City of Tybee Island, and each applicant for a Revocable License must furnish with its proposal a nonrefundable application fee in the amount of Two Hundred and Fifty Dollars ($250.00) by certified check or cashier's check made payable to the City of Tybee Island. In the event the City' s reasonable costs exceed such amount, the applicant may be required by the City to pay any additional amount to cover such costs. In the event the City' s reasonable costs are less than the application amount, the City shall reimburse to the applicant the amount in excess of the City' s actual cost if required by applicable law.(ORD. 2001 -22; 10 /11 /01) Section 9 -4 -43.10 Application to Existing Telecommunications Systems and Providers of Telecommunications Services and Private Telecommunications Services. This Ordinance shall not be retroactively applied to franchises for the operation of Telecommunications Systems used to provide Telecommunications Services existing on the effective date of this Ordinance, but shall apply to any renewal or extension of such franchises.(ORD. 2001 -22; 10 /11 /01) Section 9 -4 -43.11 Applicability of Other Ordinances. All ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed.(ORD. 2001 -22; 10/11/01) Section 9- 4-43.2 Responsibilities of Applicants It shall be the responsibility of each applicant for a Franchise or Revocable License to comply with all applicable laws, ordinances, resolutions, rules, regulations and other directives of the City and any federal, state or local governmental authority having jurisdiction.(ORD. 2001- 22; 10 /11 /01) Section 9 -4 -43.3 Public Availability of Applications To the extent determined by the City Council, applications for Franchises or Revocable Licenses, including any additions, modifications or amendments thereto, shall be available for public inspection at a designated City office during normal business hours.(ORD. 2001 -22; 10 /11 /01) Section 9- 4-43.4 Evaluation Criteria Page 6 of 11 1 1 Municipal Code An applicant shall be granted a Franchise or Revocable License to construct, operate or maintain a Telecommunications System over which Telecommunications Services are provided, provided the City Council reasonably determines that the applicant has agreed to or meets the following factors: (i) the adequacy of the proposed compensation to be paid to the City; (ii) demonstration of adequate financial and technical ability to construct and maintain a Telecommunications System in the Streets, which such demonstration may be made by an adequate bond, security fund, and/or such other demonstration that is reasonably acceptable to the City, and a certificate of public convenience or other authorization from the State or Federal Communications Commission permitting the applicant to provide Telecommunications Services in the City; (iii) the ability of the applicant to maintain the property of the City in good condition throughout the term of the Franchise; (iv) the willingness and the ability of the applicant to meet construction requirements and to abide by all conditions, limitations and requirements with respect to the Franchise (including any terms or conditions imposed pursuant to Section 2.7 of this Ordinance), any public, health, safety and welfare requirements reasonably related to the applicant' s use of the Streets, and the City' s management of Streets; and (v) to the extent not prohibited by law, any other factors or considerations reasonably deemed pertinent by the City for managing the Streets and safeguarding the interests of the City and the public in the Streets, and for ensuring the City receives fair and reasonable compensation for use of the Streets. In making any determination hereunder as to any application for a Revocable License to provide Private Telecommunications Services or Facility Services and in accordance with applicable law, other than Section 253 of the Communications Act which is not applicable to Persons providing only Private Telecommunications Services or Facility Services, the City Council may consider such factors as it deems appropriate and in the public interest, including, without limitation, the foregoing factors to the extent applicable.(ORD. 2001 -22; 10 /11 /01) Section 9- 4-43.5 Procedure for Consideration of and Action on Applications 2.6.01 The City may make such investigations and take or authorize the taking of such other steps as the City Council deems necessary or appropriate to consider and act on applications for Franchises or Revocable Licenses. In considering applications, the City Council may seek advice from other city officials or bodies, from such other advisory bodies as it may establish or determine appropriate, or from the public, and may request the preparation of one or more reports to be submitted to the City Council, which may include recommendations with respect to such applications. Page 7 of 11 1 1 Municipal Code 2.6.02 After considering such information provided pursuant to this Ordinance as it determines to be appropriate, the City Council shall set one or more public hearings for consideration of the application(s), fixing and setting forth a day, hour and place certain at which such application(s) shall be heard, and providing notice of such public hearing in accordance with applicable law. 2.6.03 The City Council may authorize negotiations between City officials and applicants on the terms of the proposed Franchise or Revocable License. 2.6.04 The City Council shall consider the application for a Franchise or Revocable License to provide Telecommunications Services in accordance with this Ordinance and applicable law, including 47 U.S.C. § 253, and shall grant the Franchise or Revocable License, provided that the applicant has agreed to the terms on which the Franchise or Revocable License is to be granted and meets the evaluation criteria set forth in Section 2.5 of this Ordinance The City also reserves the right to waive any or all requirements in order to grant a Franchise or Revocable License to an applicant when it determines that the best interests of the City may be served thereby or that such waiver is required by applicable law. 2.6.05 Upon completion of the steps deemed appropriate by the City Council, the City Council may grant the Revocable License to provide Private Telecommunications Services or Facility Services, and may specify the conditions under which the Revocable License is granted. Alternatively, the City may reject any and all applications for a Revocable License to provide Private Telecommunications Services or Facility Services. The City also reserves the right to waive any or all requirements when it determines that the best interests of the City may be served thereby.(ORD. 2001 -22; 10 /11 /01) Section 9- 4-43.6 Terms and Conditions of Franchise and Revocable License 2.7.01 The terms and conditions applicable to any Franchise or Revocable License granted pursuant to this Ordinance shall be set forth in the separate ordinance granting the Franchise or Revocable License or in a separate written agreement. Such separate ordinance or written agreement, among other things, may address the following subjects, to the extent not prohibited by law: (i) the term of the Franchise or Revocable License, provided, however, that the initial tem of the Revocable License shall not exceed five years and shall not be renewed for terms exceeding five years; (ii) the franchise area authorized by the Franchise, or the Streets that may be used pursuant to the Revocable License; (iii) the compensation to be paid to the City; (iv) the circumstances upon which the Franchise or Revocable License may be terminated or cancelled; Page 8 of 11 1 1 Municipal Code (v) the mechanisms, such as performance bonds, security funds or letters of credit, to be put in place to ensure the performance of the Grantee's obligations under the Franchise or Revocable License; (vi) for the limited purpose of ensuring that the Grantee is complying with the terms of the Franchise or Revocable License, including, but not limited to, any compensation or Street management provisions, the City's right to inspect the facilities and records of the Grantee; (vii) insurance and indemnification requirements applicable to the Grantee;(ORD. 2001 -22; 10 /11 /01) (viii) the obligation of the Grantee to maintain complete and accurate books of account and records with respect to its obligations under the Franchise or Revocable License, including, but not limited to, any compensation or Street management provisions, and the City's inspection rights with respect thereto; (ix) provisions to ensure quality workmanship and construction methods in the Streets; (x) provisions to ensure that the Grantee will comply with all applicable City, state and federal laws, regulations, rules and policies; (xi) provisions to ensure adequate oversight by the City of the Grantee' s use of Streets and compliance with the Franchise or Revocable License; (xii) provisions relating to an assignment or other transfer of the Franchise or Revocable License or the Telecommunications System that results in a change in Control; (xiii) remedies available to the City to protect the City's interest in the event of the Grantee's failure to comply with terms and conditions of the Franchise or Revocable License; (xiv) provisions to ensure that the Grantee will obtain all licenses and permits necessary to provide Telecommunications Services by use of the City' s Streets from any governmental body having jurisdiction over the Grantee, including, but not limited to, the Federal Communications Commission; (xv) provisions to ensure that the Grantee will protect the property of the City from damage or interruption of City operations resulting from the construction, operation, maintenance, repair or removal of improvements of the Telecommunications System, or from the provision of Facility Services; Page 9 of 11 1 1 Municipal Code (xvi) provisions designed to minimize the extent to which the public use of the Streets of the City are disrupted in connection with the construction of improvements relating to the Telecommunications System, or the provision of Facility Services; and (xvii) such other provisions as the City reasonably determines are necessary or appropriate to permit the City to manage its Streets or ensure compliance with the Franchise or Revocable License, to the extent not prohibited by law. 2.7.01 The [City Manager] shall make available to an applicant a model Franchise or Revocable License, as applicable, containing the terms and conditions the City seeks to impose pursuant to Section 2.7.01. The [City Manager] shall have the right to modify from time to time such model Franchise or Revocable License, so long as such modifications are consistent with this Ordinance and applicable law. Section 9- 4-43.7 Revocation of Revocable License The Revocable License shall be revocable at any time by the City for cause or, if the Revocable License is for the provision of Private Telecommunications Services or Facility Services, for the City' s convenience. The Revocable License, together with all Revocable Licenses granted to the applicant or Affiliated Persons, shall not authorize the occupation and use of more than five hundred (500) linear feet of specifically identified Streets, unless the use or occupation of the Streets does not involve the offering or provision of Telecommunications Services by the Grantee, any Affiliated Persons or any other Persons to or from any Person or location in the City, or unless the use or occupation of the Streets is for the provision of Facility Services.(ORD. 2001 -22; 10 /11 /01) Section 9 -4 -43.8 Severability If any section, subsection, sentence, clause, phrase or other portion of this Ordinance is, for any reason, declared invalid, in whole or in part, by any court, agency, commission, legislative body or other authority of competent jurisdiction, such portion shall be deemed a separate, distinct and independent portion. Such declaration shall not affect the validity of the remaining portions hereof, which other portions shall continue in full force and effect.(ORD. 2001 -22; 10 /11 /01) Section 9- 4-43.9 Delegation Consistent with applicable law, the City Council shall have the right to delegate and redelegate, and to revoke any such delegation or redelegation, from time to time, any of its rights or obligations under this Ordinance to any body, organization or official. Any such delegation, redelegation or revocation, no matter how often made, shall not be deemed an amendment to this Ordinance or to require the consent of any applicant for a Franchise or Revocable License or Grantee. The City Council may also establish and appoint one or more advisory boards, with Page 10 of 11 1 1 1 Municipal Code such duration and such number of members as the City Council shall determine, to advise it on such of the matters which are the subject of this Ordinance.(ORD. 2001 -22; 10 /11 /01) Page 11 of 11