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    PAGE 1 OF 3

    Morgan Falls Office Park 7840 Roswell Road, Building 500

    Sandy Springs, GA 30350

    CITY COUNCIL

    Eva Galambos, Mayor John Paulson District 1Dianne Fries District 2Chip Collins District 3

    Ashley Jenkins District 4Tibby DeJulio District 5

    Karen Meinzen McEnerny District 6

    Tuesday, March 16, 2010 Regular Meeting 6:00 PM

    A) INVOCATION Deacon Tom Shuler, Holy Spirit Catholic Church

    B) CALL TO ORDER Mayor Eva Galambos

    C) ROLL CALL AND GENERAL ANNOUNCEMENTS

    D) PLEDGE OF ALLEGIANCE Mayor Eva Galambos

    (Agenda Item No. 10-053) E) APPROVAL OF MEETING AGENDA (add or remove items from agenda)

    F) CONSENT AGENDA

    (Agenda Item No. 10-054)

    1. Meeting Minutes:a. August 18, 2009 Regular Meetingb. August 18, 2009 Work Sessionc. September 1, 2009 Regular Meetingd. September 1, 2009 Work Sessione. September 15, 2009 Regular Meeting(Michael Casey, City Clerk)

    (Agenda Item No. 10-055) 2. Georgia Power Lease Agreement (Morgan Falls River Park)

    (Cecil McLendon, City Attorney)

    (Agenda Item No. 10-056)

    3. A Resolution in Opposition to Georgia House Bill HB 480 Currently Pending in the GeorgiaLegislature(Eva Galambos, Mayor)

    (Agenda Item No. 10-057) 4. A Resolution in Opposition to Georgia House Resolution HR 1 Currently Pending in the

    Georgia Legislature(Eva Galambos, Mayor)

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    SANDY SPRINGS CITY COUNCIL MEETING AGENDA MARCH 16, 2010

    PAGE 3 OF 3

    Morgan Falls Office Park 7840 Roswell Road, Building 500

    Sandy Springs, GA 30350

    (Invitation for Public Comment)

    I) UNFINISHED BUSINESS (none at this time)

    J) NEW BUSINESS

    (Agenda Item No. 10-065)

    1. Acceptance of Right of Way and Easement Rights for the Lake Forrest Drive Sidewalk andIntersection Improvement Project(Presented by Director of Public Works, Thomas Black)

    (Agenda Item No. 10-066) 2. A Resolution to Amend the Local Roadway Functional Classification Map of the City of

    Sandy Springs Transportation Master Plan(Presented by Director of Public Works, Thomas Black)

    (Agenda Item No. 10-067) 3. Consideration of Approval of a Contract to Construct the Ridgeview Middle School

    Sidewalks Project Subject to Validation and Approval by the Legal and Finance Departments

    (Presented by Director of Public Works, Thomas Black)

    (Agenda Item No. 10-068) 4. Consideration of a Contract with Blount Construction, Inc. for the 2009-2 Local Assistance

    Road Program Resurfacing Contract Bid No. 10-305 and Authorize the City Manager toExecute Contract Documents(Presented by Director of Public Works, Thomas Black)

    K) REPORTS AND PRESENTATIONS

    a) Mayor and Council Reports

    b) Staff Reports

    L) PUBLIC COMMENT

    M) EXECUTIVE SESSION ( none at this time)

    (Agenda Item No. 10-069) N) ADJOURNMENT

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    To: John McDonough, City Manager

    From: Ronnie Young, Recreation & Parks Director

    Date : March 9, 2010 for Submission onto the March 16, 2010 City Council ConsentAgenda

    Description: Georgia Power Lease Agreement (Morgan Falls River Park)

    Recommendation:

    The Recreation & Parks Department recommends that the City Manager approve an awardof extension with Georgia Power for the leasing of property at Morgan Falls River Park.

    Background:

    Under this contract the Georgia Power leases a portion of land for the City of Sandy Springsto provide recreational activities such as River Rafting, Boating and Kayaking services. Theseservices are provided by Up The River Outfitters Inc.

    Discussion:

    A request for extension of the lease has been granted by Georgia Power for an additionalyear with the expiration date of December 31, 2010.

    Alternative:

    Terminate all services at the Morgan Falls River Park.

    Financial Impact:

    None

    Final Impact:

    The contract with Georgia Power will enable the City of Sandy Springs to retain the contractwith Up The River Outfitters and provide the residents the opportunity to participate and enjoythe Morgan Falls River Park throughout the year.

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    GPC Morgan Falls 2010 Final.docx

    STATE OF GEORGIA FILE NO. 135FULTON COUNTY Morgan Falls Project

    LEASE AGREEMENT(Ground Lease)

    THIS LEASE AGREEMENT is made and entered into this ___ of March 2010, to beeffective as of January 1, 2010, between GEORGIA POWER COMPANY , a Georgiacorporation with offices at BIN 10151, 241 Ralph McGill Boulevard, N.E., Atlanta, FultonCounty, Georgia 30308- 3374 (hereinafter referred to as Lessor), and CITY OF SANDYSPRINGS, GEORGIA , a municipal corporation of the State of Georgia with offices at 7840Roswell Road, Suite 500, Sandy Springs, Georgia 30350 (hereinafter referred to as Lessee).

    WITNESSETH:

    THAT Lessor has this day rented and leased to Lessee the Premises (as hereinafter defined). Premises shall mean the Land (as hereinafter defined), less and except theExcluded Property (as hereinafter defined). Land shall mean that certain tract of land, together

    with the improvements located thereon, being in Land Lot 84, 17th District, Fulton County,Georgia, more particularly described on Exhibit A attached hereto and by reference made a parthereof. Excluded Property shall mean the following: (a) any and all property, real, personal or mixed (including without limitation fixtures or equipment), constituting all or any portion of anyexisting transmission or distribution lines or communications lines of Lessor or any affiliates of Lessor, including without limitation lines, poles, towers, frames, manholes, conduits, fixtures,appliances, wires, cables or equipment, or protective wires or devices, or communications lines,cables or equipment (collectively, the GPC Facilities); (b) the nonexclusive right and easementof pedestrian and vehicular ingress and egress to, from, between and among the GPC Facilitiesand Morgan Falls Road; (c) the nonexclusive right and easement of pedestrian and vehicular ingress and egress to, from, between and among Morgan Falls Road and transmission, distribution

    and communications lines hereafter constructed or installed on the Premises by Lessor or anyaffiliates of Lessor, including without limitation lines, poles, towers, frames, manholes, conduits,fixtures, appliances, wires, cables or equipment, or protective wires or devices, or communicationslines, cables or equipment (collectively, the Future GPC Facilities) and to, from, between andamong the GPC Facilities and the Future GPC Facilities; (d) the nonexclusive right and easementof pedestrian and vehicular ingress and egress to, from, between and among Morgan Falls Roadand transmission, distribution and communications lines now existing or hereafter constructed or installed adjacent to or in the vicinity of the Premises by Lessor or any affiliates of Lessor,including without limitation lines, poles, towers, frames, manholes, conduits, fixtures, appliances,wires, cables or equipment, or protective wires or devices, or communications lines, cables or equipment (collectively, the Adjacent GPC Facilities) and to, from, betwe en and among the

    GPC Facilities, the Future GPC Facilities and the Adjacent GPC Facilities; and (e) thenonexclusive right and easement of pedestrian and vehicular ingress and egress to and from the boat ramp located adjacent to the Premises and Morgan Falls Road.

    The Premises are rented and leased by Lessor to Lessee subject to the following terms andconditions, to wit:

    1. The term of this lease is twenty five (25) years, commencing on January 1, 2010,and ending (unless sooner terminated as hereinafter provided) on December 31, 2035, at 11:59PM.

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    GPC Morgan Falls 2010 Final.docx -2-

    2. As rental for the Premises, Lessee agrees to pay Lessor the sum of One Dollar ($1.00).

    3. (a) The Premises shall be used solely for the purpose of a public park, conservationand recreation area, consistent with the provisions and restrictions of O.C.G.A. Sections 51-3-20et. seq. for the purposes of (i) public sightseeing areas, picnicking areas, hiking areas, boatingareas and fishing areas, where the public may sightsee, picnic, hike, boat and fish in accordancewith the provisions of law (including but not limited to the rules and regulations of the GeorgiaDepartment of Natural Resources), and (ii) education of the public on wildlife and environmentalmatters, and for no other purpose whatsoever.

    (b) Lessee agrees to obtain all proper permits for the operation of the Premises for the purposes set forth in Paragraph 3(a) as well as the temporary uses permitted under Paragraph 3(c),including, but not limited to, written authorization from the Department of Natural Resources andthe National Park Service. Lessee shall not impose any fees for admittance of vehicles to thePremises or parking of vehicles on the Premises.

    (c) Portions of the Premises are temporarily being used for a dog park and a river outfitter operation and operated by Lessee. The gate to the dog park area shall be approved byLessor, shall not be locked (or, if locked, a combination lock will be used and Lessee will provideLessor with the combination), and Lessor will have access to the dog park at all times. Lesseeshall terminate the uses for a dog park and river outfitter operation on or before December 31,2010. Lessee may request Lessor's consent to continued use as a dog park and river outfitter operation beyond December 31, 2010 by written notice to Lessor no later than November 30,2010. Lessor may grant or withhold such consent in Lessor's sole discretion. Lessor reserves theright, in Lessor's sole discretion, to terminate the temporary use of the Premises as a dog park andriver outfitter operation by giving not less than fifteen (15) days' written notice to Lessee. Lesseeshall terminate such uses on or before the date set forth in such written notice from Lessee. All

    structures associated with the dog park and river outfitter operation (signage, fencing, fence posts,etc.) will be removed at the expense of Lessee on or before the date sixty (60) days after the dateLessee is to terminate such uses in accordance with this Paragraph 3(c). Lessee shall repair alldamage caused by such removal, and restore the Premises to good order and condition as deemedacceptable by Lessor.

    (d) Lessor reserves the right at any time and from time to time to limit vehicleoccupancy at the Premises for concerns of safety and emergency access. At any time and fromtime to time in the event of an emergency, Lessor may notify Lessee to immediately evacuate thePremises, and Lessee shall evacuate the Premises immediately upon such notification. Lessor shall have the right to prohibit Lessee's access to and use of the Premises at any time and from

    time to time in connection with the exercise of Lessor's rights under Paragraph 30 of this lease.Lessee shall not hold Lessor responsible for any loss of revenue or costs sustained by Lessee in theexercise by Lessor of the rights identified or set forth in this Paragraph 3 or in Paragraph 30, andLessee waives any claim or cause of action against Lessor for damages by reason of interruptionof Lessee's uses of the Premises (including, without limitation, the dog park and river outfitter operation) or loss of revenues therefrom because of the exercise by Lessor of such rights.

    (e) Lessee agrees that the Premises may or may not be suitable for the use Lesseedesires to make of the Premises and that the Premises may not be in a safe or proper condition for such use. LESSEE AGREES THAT LESSEE IS LEASING, AND ACCEPTS, THE PREMISES

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    GPC Morgan Falls 2010 Final.docx -3-

    AS IS, WHERE IS, WITH ALL FAULTS AND LESSOR MAKES NO WARRANTIES,EXPRESS OR IMPLIED, AS TO FITNESS, MERCHANTABILITY, USE OR CONDITION OFTHE PREMISES.

    4. Lessee agrees not to abandon or vacate the Premises during the term of this leaseand agrees to continuously use the Premises solely for the purposes herein leased until theexpiration of the term hereof; provided, however, either party may terminate this lease upon thirty(30) days written notice to the other party of such termination.

    5. Neither this lease nor the interest of Lessee in this lease or in the Premises, or any part thereof, shall be sold, assigned, sublet or otherwise transferred by Lessee, in whole or in part,whether by operation of law or otherwise, without the prior written consent of Lessor, and anysuch assignment or sub-lease without said consent shall be null and void.

    6. Lessee, at Lessees sole cost and expense, shall obtain any and all appropriatemunicipal, county and state permits required for Le ssees use of the Premises and shall at all timesuse, occupy and operate the Premises in compliance with all applicable city, county, state, federaland local laws, ordinances, statutes, rules and regulations now in effect or hereafter enacted.

    Lessee shall not place, use, store, spill or discharge any hazardous, toxic or dangerous substanceson the Premises. Lessee hereby indemnifies Lessor from any and all loss, cost, damage or expenseever incurred by Lessor as a result of Lessees breach of the foregoi ng covenants and agreementsof Lessee, and such indemnification shall survive the termination or expiration of the term of thislease.

    7. Lessee shall not make any alterations, modifications, additions or improvements(including without limitation structures or buildings of any sort) or make any changes in, to or atthe Premises (collectively, Alterations) without first obtaining Lessors written consent, whichconsent Lessor may grant or withhold in Lessors sole discretion. Any Alterations desired to bemade by Lessee or required to be made pursuant to any local, city, county, state or federal laws,

    rules, ordinances, statutes or regulations will be done at Lessees sole cost and expense. AllAlterations must be done in a good and workmanlike manner and in compliance with allapplicable laws.

    Notice is hereby given that Lessor shall not be liable for the cost and expense of any labor,services or materials furnished or to be furnished with respect to the Premises at or by thedirection of Lessee or anyone holding the Premises or any part thereof by, through or under Lesseeand that no laborers, mechanics or materialmans or other lien for any such labor, service or materials shall attach to or affect the interest of Lessor in and to the Premises. Nothing containedin this lease shall be deemed or construed in any way as constituting the consent or request of Lessor, express or implied, by inference or otherwise, to any contractor, subcontractor, laborer or

    materialman for the performance of any labor or the furnishing of any materials for anyimprovements or repairs to or of the Premises or any part thereof, nor as giving Lessee any right, power or authority on behalf of Lessor to contract for or permit the rendering of any services or the furnishing of any materials that would, give rise to the filing of any lien against the Premisesor any part thereof.

    8. Lessee, at Lessees sole cost and expense, shall keep the Premises in good order and repair (including without limitation any necessary replacements). Lessor gives to Lesseeexclusive control of the Premises and shall be under no obligation to inspect or repair thePremises. Lessee further agrees, at Lessees sole cost and expense, to care for the grounds

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    GPC Morgan Falls 2010 Final.docx -4-

    constituting a portion of the Premises, including without limitation the mowing of grass, care of shrubs and general landscaping. Lessee shall provide adequate restroom facilities and regularlyscheduled disposal of garbage and animal waste from the Premises. Lessee assumes allresponsibility for public safety, security, and law enforcement on the Premises.

    9. Lessee shall not create or permit to be created or to remain, and, shall promptlydischarge, at its sole cost and expense, any lien, encumbrance or charge upon the Premises, or any

    part thereof or upon Lessees rights under this lease that arises from the use or occupancy of thePremises by Lessee or by reason of any labor, service or material furnished or claimed to have

    been furnished to or for the benefit of Lessee or by reason of any construction, repairs or demolition by or at the direction of Lessee.

    10. (a) So long as Lessee maintains the dog park, river outfitter or any commercialactivity whatsoever on the Premises (regardless of whether or not such activity is permitted under this lease), Lessee shall acquire and maintain, at Lessees sole cost and expense, commercialgeneral liability insurance covering the liability of Lessor and Lessee for bodily injury or death of

    persons and for damage to or destruction of property occurring on the Premises and arising out of the use or occupation of the Premises with a Combined Single Limit per occurrence of not less

    than $5,000,000.00 for bodily injury liability and $500,000 for property damage liability (theMinimum Insurance). The parties further acknowledge that upon written request from Lessor, atany time and from time to time, the amounts of the Combined Single Limit of the MinimumInsurance will be increased to the amount of self-insurance which Lessor maintains from time totime during the term of this Lease. At such time as Lessee discontinues the dog park, river outfitter and all other commercial activities whatsoever on the Premises other than those activities set forthin Paragraph 3(a) above, Lessee shall be allowed to reduce the amounts of the Combined SingleLimit of the Minimum Insurance to the amounts which Lessee carries from time to time upon itsgeneral liability insurance policies.

    (b) All of the aforementioned insurance shall be placed with an insurance company

    whose financial condition and policy forms are acceptable to Lessor, and so long as Lesseemaintains a dog park, river outfitter or any commercial activity whatsoever on the Premises shallname Lessor as an additional insured party, and shall be endorsed to cover the liability assumed byLessee under the provisions of this lease. The endorsement shall be worded substantially asfollows:

    During the effective period of the policies referenced herein, it is agreed that this insurancespecifically covers liability assumed by the insured under the provisions of a certain agreemententered into by the insured and the Georgia Power Company, dated March __, 2010 .

    (c) Lessee shall further carry, at Lessees sole cost and expense, all -risk hazard

    insurance for the full replacement value of all improvements, less and except electricaltransmission and distribution facilities, located on the Premises. Such insurance shall be in thename of Lessor and Lessee as their interests may appear.

    (d) So long as Lessee maintains a dog park, river outfitter or any commercial activitywhatsoever on the Premises, each of the above required policies shall name Lessor as an additionalinsured, and shall be endorsed with a provision whereby the insurance company shall notifyLessor ten (10) days prior to the effective date of cancellation or material change in any of the said

    policies. As evidence of this insurance and prior to Lessees occupancy of the Premises, Lessee

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    GPC Morgan Falls 2010 Final.docx -5-

    shall submit to Lessor a certificate providing the above coverage which certifies that the said policies have been properly endorsed to meet all requirements set forth herein.

    To the extent of the insurance required to be maintained by Lessee (but in no event in excessof the fullest extent permitted under O.C.G.A. Section 13-8-2), Lessee hereby releasesLessor, its agents and employees from any liability for damage to property or injury topersons, regardless of the cause of such damage or injury. Except as provided in the sentenceimmediately preceding this sentence, the waivers and indemnities in this lease shall not applyto damages arising out of bodily injury to persons or damage to property caused by orresulting from the sole negligence of Lessor, its agents or employees to the extent O.C.G.A.Section 13-8-2 is applicable thereto. In no event shall the insurance requirements of thisparagraph be deemed to limit the liability or responsibility of Lessee in any manner.

    11. Nothing in this lease is intended to diminish any protection afforded either Lessor or Lessee by the provision of the Georgia Recreational Properties Act (O.C.G.A. Sections 51-3- 20through 51-3-26) as from time to time amended. Lessor expressly intends and agrees that the

    provisions of O.C.G.A. Sections 51-3-22 and 51-3-23 shall apply to the duties and liability of Lessor. Lessee is a municipal corporation created under the laws of the state of Georgia and, by

    provision of the Constitution of the State of Georgia has been granted sovereign immunity fromliability, unless the same is waived by action of the General Assembly of Georgia. Lessor andLessee acknowledge the entering of this Lease, and performance of Lessees duties hereunder,does not constitute a waiver of sovereign immunity of Lessee.

    12. In the event Lessee shall default in the performance of any of its covenantscontained in this lease and such default shall continue for thirty (30) days after written noticethereof has been given by Lessor to Lessee, then in such event, at Lessors option: (i) Lessor may terminate this lease by written notice to Lessee, in which event Lessee shallimmediately surrender the Premises, and if Lessee fails to do so, Lessor may, without prejudice to

    any other right or remedy which Lessor may have, enter upon and take possession of the Premises(by force, summary proceedings, ejectment or otherwise) and remove Lessee without being liablefor prosecution or any claim for damages therefor, and Lessee hereby waives its rights to any legal

    proceedings in connection with such reentry.(ii) Lessor may take any other action permitted by law.

    13. Lessee assumes and shall pay any additional tax or license fee that may beassessed against the Premises as a result of the use thereof by Lessee. Ad valorem taxes assessedagainst the Premises shall be paid by Lessor. Ad valorem taxes assessed against any improvementsshall be paid by Lessee.

    14. All notices, demands, requests, consents, and approvals desired, necessary,required or permitted to be given pursuant to the terms of this lease shall be in writing and shall bedeemed to have been properly given if personally delivered or sent, postage prepaid, by first classregistered or certified United States mail, return receipt requested, addressed to each party heretoat the following address:

    Lessee: City Manager City of Sandy Springs, Georgia7840 Roswell Road, Suite 500Sandy Springs, Georgia 30350

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    GPC Morgan Falls 2010 Final.docx -6-

    Lessor: Georgia Power CompanyAttention: Land Management Manager BIN 1015115th Floor 241 Ralph McGill BoulevardAtlanta, Georgia 30308-3374

    or at such other address in the United States as Lessee or Lessor may from time to time designate by like notice. Any such notice, demand, request or other communication shall be consideredgiven or delivered, as the case may be, on the date of personal delivery or on the date of deposit inthe United States mail as provided above. Rejection or other refusal to accept or inability todeliver because of changed address of which no notice was given shall be deemed to be receipt of the notice, demand, request or other communication.

    15. This lease shall create a landlord-tenant relationship between the parties hereto andno estate shall pass out of Lessor. Lessee has only a usufruct, not subject to levy and sale, and notassignable by Lessee except with Lessors prior written consent.

    16. No failure of Lessor to exercise any power given to Lessor hereunder, or to insistupon strict compliance by Lessee with its obligations hereunder, and no custom or practice of the

    parties at variance with the terms he reof, shall constitute a waiver of Lessors right to demandexact compliance with the terms hereof.

    17. In the event any one or more of the provisions contained in this lease shall for anyreason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof and this lease shall be continued as if such invalid, illegal, or unenforceable provisions had never been contained herein.

    18. This lease contains the entire agreement of the parties hereto and norepresentations, inducements, promises or agreements, oral or otherwise, between the parties notembodied herein shall be of any force or effect. This lease may not be modified except by anamendment signed by both Lessor and Lessee.

    19. Time is of the essence in this lease. This lease shall be governed by the laws of theState of Georgia. No remedy conferred upon or reserved to Lessor in this lease, at law or in equityis intended to be exclusive of any other available remedies, but each and every remedy shall becumulative and shall be in addition to every other remedy given in this lease or now or hereafter existing in law or in equity.

    20. Lessees rights hereunder shall be subject to any mortgage, indent ure or deed tosecure debt which is now, or may hereafter be, placed upon the Premises by Lessor.

    21. Upon the termination or expiration of the term of this lease, Lessee shall vacate thePremises and surrender the Premises to Lessor in as good order and condition as on the datehereof, reasonable wear and tear excepted.

    22. Lessee hereby agrees and covenants not to use, and will prohibit agents, employeesand contractors of Lessee from using, any tools, equipment or machinery within ten (10) feet of Lessors overhead conductors located on or in the vicinity of the Premises. Lessee agrees to

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    comply with Official Code of Georgia Section 46-3-30 et seq. (HIGH VOLTAGE SAFETYACT), and the Rules and Regulations of the State of Georgia Section 300-3-7.01 et seq. Lesseefurther agrees to notify any contractors that may be employed by Lessee of the existence of saidcode sections and regulations, and to require that all work be performed in compliance with saidcode sections and regulations by including same as a requirement in any contract let as a result of said bid. Lessee further agrees and covenants to warn all persons whom Lessee knows or shouldreasonably anticipate for any reason may conduct any activity whatsoever on or in the vicinity of the Premises of the fact that such conductors are (a) electrical conductors, (b) energized, (c)uninsulated, and (d) dangerous.

    23. If the whole of the Premises, or such portion thereof as will make the Premisesunusable for the purposes herein leased, is condemned by any legally constituted authority, or conveyed to such authority in lieu of such condemnation, then in either of said events, the term of this lease shall end on the date when possession thereof is taken by the condemning authority, andrental shall be accounted for between Lessor and Lessee as of such date. In the event any portionof the Premises is taken by condemnation or a conveyance in lieu thereof (other than as set forth inthe preceding sentence), at Lessees option, by written notice to Lessor wi thin thirty (30) daysfollowing such condemnation or conveyance in lieu thereof, Lessee shall either (i) terminate this

    lease, or (ii) if the Premises may still be used for Lessees intended use therefor, elect to continuethis lease and reduce the rent in proportion to the portion of the Premises so taken. In the event of any such taking of all or any portion of the Premises or conveyance in lieu thereof, Lessor shall beentitled to all compensation which may be paid or made in connection therewith, and Lessee shallhave no claim for the value of the unexpired leasehold, and hereby assigns to Lessor any rightLessee may have to participate in any award paid on account of any such taking. Lessee shall,however, be permitted to pursue a claim for improvements placed on the Premises at Lessees solecost and expense, provided that such claim shall not reduce or diminish Lessors award.

    24. Upon termination or expiration of the term of this lease, Lessee shall remove allimprovements and personal property which it owns and has placed in or on the Premises;

    provided, however, that Lessee repairs all damage to the Premises caused by such removal,thereby restoring the Premises to as good order and condition as on the date hereof, reasonablewear and tear excepted. All property of Lessee remaining in the Premises after expiration of theterm or earlier termination of this lease shall be deemed conclusively abandoned and may beremoved by Lessor and disposed of by Lessor or, at Lessors option, retained by Lessor fo r Lessors own account, without compensation to Lessee, and Lessee shall reimburse Lessor for thecost of removing and disposing of the same.

    25. This lease may be simultaneously executed in several counterparts, and all suchcounterparts shall constitute but one and the same instrument.

    26. Lessee shall place no advertising signs upon the Premises. Any and all signs placed on the Premises by Lessee shall be maintained in compliance with the applicable local,city, county, state or federal statutes, ordinances, laws, rules and regulations governing such signs.Lessee shall be responsible to Lessor for any damage caused by the installation, use or maintenance of said signs, and Lessee agrees upon removal of said signs to repair all damageincident to such removal.

    Lessee shall post signs throughout the Premises that ingress or egress from the river for anyactivity is to occur at the Department of Natural Resources boat ramp. Lessee shall post signs atthe boat ramp stating, Caution: Water Level Subject To Rise Without Warning. Lessee shall be

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    responsible for traffic control and enforcement on the Premises, including without limitation the posting of No Parking signs along Morgan Falls Road.

    27. In the event Lessee remains in possession of the Premises after termination or expiration of the term of this lease, without any express agreement of the parties, Lessee shall be atenant at sufferance, and otherwise upon the terms and conditions set forth in this lease. In theevent Lessee remains in possession of the Premises after termination or expiration of the term of this lease, with Lessors consent, then, except as expressly otherwise provided in Lessors consent,Lessee shall be a tenant at sufferance, and the other terms and conditions set forth in this leaseshall apply.

    28. Lessor as used in this lease shall include Lessor, its representatives, assigns, andsuccessors in title to the Premises. Lessee shall include Lessee, its representatives, and if thislease shall be validly assigned in accordance with the provisions of this lease, shall include alsoLessees assigns or successors under this lease. Lessor and Lessee include male and female,singular and plural, corporation, partnership or individual, as may fit the particular parties.

    29. If any rent or other debt owing by Lessee to Lessor hereunder is collected by or

    through an attorney-at-law, or if Lessor uses the services of any attorney in order to securecompliance with any other provisions of this lease, to recover damages for any breach or default of any other provisions of this lease, or to terminate this lease or evict Lessee, Lessee shall reimburseLessor upon demand for any and all attorneys fees and expenses so incurred by Lessor.

    30. Lessor expressly retains unto itself, its successors and assigns, for the benefit of Lessor, its successors, assigns and such others (such as but not limited to Lessors agents,contractors, subcontractors, licensees and permittees) as Lessor shall from time to time designate,the right and easement to install, construct, reconstruct, replace, improve, upgrade, enhance,maintain, operate, use, repair, add on to, demolish, and remove the transmission, distribution andcommunications lines currently crossing the Property as well to access such transmission,

    distribution and communications lines. In addition, Lessor hereby retains unto itself, its successorsand assigns, for the benefit of Lessor, its successors, assigns and such others (such as but notlimited to Lessors agents, contractors, subcontractors, licensees and per mittees) as Lessor shallfrom time to time designate, the rights, interests and easements from time to time and at any time,upon, over, across and under the Premises (i) to construct, install, use, patrol, obtain access to,operate, maintain, repair, inspect, renew, rebuild, reconstruct, replace, improve, upgrade, enhanceand add onto overhead and underground electric transmission and distribution lines, poles, towers,frames, manholes, conduits, fixtures, appliances, wires, cables and equipment, and protectivewires and devices, and communications lines, cables and equipment (including, without limitation,Communications Facilities as hereinafter defined); and (ii) to construct, install, use, patrol,obtain access to, operate, maintain, repair, inspect, renew, rebuild, reconstruct, replace, improve,

    upgrade, enhance and add onto additional transmission, distribution, and communications lines, poles, towers, frames, manholes, conduits, fixtures, appliances, wires, cables and equipment, and protective wires and devices, including, without limitation, Communications Facilities[Communications Facilities shall mean (x) equipment, systems or facilities used for or inconnection with communications by radio, including without limitation, microwave towers,mobile base radio towers, radio base repeater towers, telemeter transmitters, multiple addresssystem radios or power line carrier equipment, and any permits, licenses or leases relating to anyone or more of the foregoing, and (y) equipment, systems or facilities used for or in connectionwith light wave communications over optical fibers, including without limitation, optical fibers,optronic or photo-optronic equipment, repeaters, junctions, splice enclosures or equipment for the

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    GPC Morgan Falls 2010 Final.docx -9-

    conversion of light signals to or from radio or electronic signals, and any permits, licenses or leases relating to any one or more of the foregoing], and, in addition to and not in limitation of theforegoing, the terms and provisions of the form of Easement for Right-of-Way attached hereto asExhibit B and by reference made a part hereof shall apply to such easements as if Lessorreferred to Lessor and the Undersigned referred to Lessee, and with such changes as may benecessary to reflect that such easements were reserved by Lessor rather than granted by Lessee.

    31. To the extent allowed by law, Lessee agrees to indemnify, defend, and holdharmless Lessor from any and all liability resulting from any claim or lawsuit occurring on or from use of the Premises.

    30. That certain Lease Agreement entered into on March 8, 2007, as amended, ishereby terminated and cancelled, effective as of January 1, 2010, for all purposes and in allrespects, except for those provisions which expressly survive a termination, as if January 1, 2010,had been the natural termination date of such Lease Agreement.

    IN WITNESS WHEREOF, the parties have hereunto set their hands and seals, the dayand year first above written.

    Signed, sealed and delivered in the LESSEE: presence of: CITY OF SANDY SPRINGS, GEORGIA

    _____________________________ By: ________________________________ (SEAL)Witness Name: ______________________________

    Title: ______________________________

    ______________________________ Notary Public

    (NOTARIAL SEAL) My Commission Expires:

    Signed, sealed and delivered in the LESSOR: presence of: GEORGIA POWER COMPANY

    ______________________________ BY: _______________________________

    Witness Name: O. Ben HarrisTitle: Vice-President -Land

    ______________________________ Notary Public

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    GPC Morgan Falls 2010 Final.docx

    Exhibit "A"

    Land

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    GPC Morgan Falls 2010 Final.docx

    Exhibit "B"

    Form Transmission Easement

    Acct No. Draft No. R.C. No.

    EASEMENT FOR RIGHT-OF-WAY

    STATE OF GEORGIA,

    __________ COUNTY.

    For and in consideration of the sum of ($________) Dollars, in hand paid by GEORGIAPOWER COMPANY, a Georgia corporation (hereinafter referred to as "Georgia Power," which term shall include successors and assigns), the receiptand sufficiency of which is hereby acknowledged, (hereinafter referred to as "the Undersigned," which term shallinclude heirs, successors and assigns), whose Post Office address is

    does hereby grant to Georgia Power the rights to, from time to time, construct, operate, maintain, renew and rebuild overheadand underground electric transmission, distribution and communication lines, together with necessary or convenient towers, fr ames, poles, wires,manholes, conduits, fixtures, appliances, and protective wires and devices i n connection therewith (all being hereinafter referred to as "the Facilit ies")upon or under a tract of land being more fully located and described below (hereinafter referred to as "the Premises"), together with the right of GeorgiaPower to grant, or permit the exercise of, the same rights, either in whole or in part, to others, and said rights are granted to Georgia Power together withall rights, privileges and easements necessary or co nvenient for the full enjoyment and use of t he Premises for the purposes above described, includingthe right of ingress and egress to and from the Premises over lands of the Undersigned and the right to cut away and keep c lear, remove and dispose of al ltrees and undergrowth and to remove and dispose of all obstructions now on the Premises or that may hereafter be placed on the Premises by theUndersigned or any other person. Further, Georgia Power shall have the right to cut, remove and dispose of dead, diseased, weak or leaning trees(hereinafter referred to as "danger trees") on lands of the Undersigned adjacent to the Premises which may now or hereafter strike, injure, endanger or interfere with the maintenance and operation of any of the Facilities located on the Premises, provided that on future cutting of such danger trees GeorgiaPower shall pay to the Undersigned the fair market value of the merchantable timber so cut, timber so cut to become the property of Georgia Power. TheUndersigned shall notify Georgia Power of any part y with whom it contracts, and who owns as a result t hereof, any danger trees to be cut as s et forthabove. Georgia Power shall also have, and is hereby granted, the right to install, maintain and use anchors or guy wires on lands of the Undersignedadjacent to the Premises, and the right, w hen required by law or government regulations, to conduct scientific or other studies, including but not limited toenvironmental and archaeological studies, on or below the ground surface o f the Premises.

    The Premises are shown on a plat made by or for Georgia Power, and on file in Georgia Power's Land Department, and are as described asfollows:

    Georgia Power shall pay or tender to the Undersigned or owner thereof a fair market value for any growing crops, fruit trees or fences cut,damaged or destroyed on the Premises by employees of Georgia Power and its agents, in the construction, reconstruction, operation and maintenance of the Facilities, except those crops, fruit trees and fences which are an obstruction to the use of t he Premises as herein prov ided or which interfere with or may be likely to interfere w ith or endanger the Facilities or their proper maintenance and operation, provided the Undersigned shall give Georgia Power written notice of the alleged damage within thirty (30) days after the alleged damage shall have been done. The Undersigned shall notify Georgia Power of any party with whom the Undersigned contracts and who owns, as a result thereof, any growing crops, fruit trees or fences; and the Undersigned shallinform said party of the notification provision set forth herein. Any growing crops, fruit trees or fences so cut or damaged on the Premises in theconstruction, reconstruction, operation and maintenance of the Facilities are to remain the property of the owner t hereof.

    It is agreed that part of the within named consideration is in full payment for all timber cut or to be cut in the initial clearing and constructionof the Facilities and that timber so cut is to become the property of Georgia Power. The Undersigned will notify Georgia Power in the event theUndersigned has contracted with another party who owns as a result thereof the timber to be so cut.

    The Undersigned has the right to use t he Premises for agricultural or any other purposes not inconsistent with the rights hereby granted, provided such use shall not injure or i nterfere with the proper operation, maintenance, repair of, extensions or additions to t he Facilities; and providedfurther that no buildings or structures ot her than fences (which shall not exceed eight (8) feet in height and shall neither obstruct nor otherwise interferewith any of the rights granted to Georgia Power hereby) may be erected upon the Premises.

    The Undersigned expressly grants to Georgia Power t he right to take any action, whether at law or in equity, and whether by injunction,ejectment or other means, to prevent the construction, or after erection thereof to cause t he removal, of any building or othe r structure(s) located on thePremises (other than fences as provided for herein), regardless of whether the offending party is the Undersigned or not. The undersigned will notifyGeorgia Power in the event the Undersigned contracts with a third party who owns, as a result thereof, any buildings or other such structures. TheUndersigned acknowledges and agrees that said rights are necessary for the safe and proper exercise and use of t he rights, privileges, easements andinterests herein granted to Georgia Power.

    Georgia Power shall not be liable for or bound by any statement, agreement or understanding not expressed herein.

    TO HAVE AND TO HOLD forever unto Georgia Power the rights, privileges, easements, powers, and interests granted herein, which shall be a covenant running with the title to the Premises.

    The Undersigned warrants and will forever defend the title to the r ights, privileges and easements granted herein to Georgia Power againstthe claims of all persons whatsoever.

    IN WITNESS WHEREOF, the Undersigned ___________ hereunto set ___________ hand(s) and seal(s), this _______________________ day of __________________________, 19___.

    Signed, sealed and delivered in the presence of:

    _________________________________________ ____________________________________________(SEAL)Witness

    _________________________________________ ____________________________________________(SEAL) Notary Public

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    RESOLUTION NO. 2010-03-XX

    STATE OF GEORGIACOUNTY OF FULTON

    A RESOLUTION IN OPPOSITION TO GEORGIA HOUSE BILL HB 480 CURRENTLYPENDING IN THE GEORGIA LEGISLATURE

    WHEREAS, proposed House Bill 480 (HB 480), sponsored by Representative Geisinger,currently being considered by the Georgia Legislature, would eliminate thesales and ad valorem taxes on motor vehicles titled in Georgia and, instead,creates a 6.75% title fee; and

    WHEREAS , the title fee would be collected on a county basis and a title of the vehicle fromsale in a particular county will be assigned to such county and all local share of the title fee would stay in that county; and

    WHEREAS, Mayor and City Council believe that this elimination of the sales and advalorem motor vehicle taxes would significantly impair anticipated revenue of local governments and impair such governments provision of services for thehealth, safety and welfare of its citizens; and

    WHEREAS, the apportionment of title fees to the county wherein the vehicle is titled andsold would create an inequality amongst local jurisdictions and may not,necessarily, correspond to the use of the municipal, county and state roads andexpense of their maintenance; and

    WHEREAS, municipalities in Fulton County currently are responsible for maintenance of most of the roadways in Fulton County and thus should receive a proportionateshare of the title fees, as it is not a fair apportionment to allow more than half of the title fees to be given to the County for maintenance of a very smallnumber of roadways and streets; and

    WHEREAS, though removing sales and ad valorem automobile taxes, HB 480 does notprovide the necessary factual basis or methodology to properly replace theseimportant local government revenue sources to appropriately keep each localgovernment whole and able to provide the necessary services to its citizens.

    NOW THEREFORE BE IT RESOLVED by the Mayor and Council of the City of Sandy Springsthat the Mayor and Council, for the reasons stated above, hereby express their opposition on behalf of the City of Sandy Springs for House Bill 480 (HB 480) and hereby authorize the City Manager to relaysaid opposition to Representative Geisinger, as well as the Citys elected representative delegation to

    the Georgia Legislature.

    Page 1 of 1

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    RESOLUTION NO. 2010-03-XX

    Page 2 of 2

    BE IT FURTHER RESOLVED by the Mayor and City Council of the City of Sandy Springs that theMayor is hereby authorized to sign on to any Resolution of the North Fulton Municipal Association inopposition to HB 480.

    Approved:

    __________________________Eva Galambos, Mayor

    Attest:

    _________________________________Michael Casey, City Clerk (Seal)

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    RESOLUTION NO. 2010-03-XX

    STATE OF GEORGIACOUNTY OF FULTON

    A RESOLUTION IN OPPOSITION TO GEORGIA HOUSE RESOLUTION HR 1CURRENTLY PENDING IN THE GEORGIA LEGISLATURE

    WHEREAS, House Resolution 1 (HR 1), sponsored by Representative Lindsey, currentlybeing considered by the Georgia Legislature, is a proposed amendment to theGeorgia Constitution which would cap annual assessment of property taxincreases of property at 3 percent or the rate of the Consumer Price Index,whichever is less, with the exception of improvements to property or after saleof property, which would be assessed at fair market value; and

    WHEREAS , Mayor and Council of the City of Sandy Springs believe that this artificialassessment cap would create an inequity in property taxes wherein owners of similar properties would be assessed a markedly different property taxdepending on whether the property has been recently sold; and

    WHEREAS, capping the assessment on commercial properties would likely lead to theincrease in real estate trusts and tax shelters to shield legal transfer of properties for tax purposes, which would eventually lead to the inequity of higher property taxes for residential rather than commercial properties; and

    WHEREAS, this inequitable assessment cap would be a disincentive for the purchase of homes and would depress an already stagnating housing market and prolongthe current recession; and

    WHEREAS , this assessment cap would decrease flexibility in the revenue sources of localgovernments as the consequences of this cap would decrease the Citys mainsource of revenue, property taxes, and, in order to continue provision of necessary services, this assessment may require some local governments toraise millage rates and contribute to the inequitably higher property taxesassessed against new home and business owners; and

    WHEREAS, in newly established municipalities such as Sandy Springs, Milton, and SandySprings that are already less flexible in their revenue sources due to existingmillage rate caps, this assessment cap would impair these cities ability to haveimmediate control over their anticipated revenue and would create aninsurmountable circumstance where they could not provide many of the basicservices while still maintaining the requisite balanced budget.

    NOW THEREFORE BE IT RESOLVED by the Mayor and Council of the City of Sandy Springsthat the Mayor and Council, for the reasons stated above, hereby express their opposition on behalf of the City of Sandy Springs for House Resolution 1 (HR 1) and hereby authorize the City Manager torelay said opposition to Representative Lindsey, as well as the Citys elected representative delegationto the Georgia Legislature.

    Page 1 of 1

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    RESOLUTION NO. 2010-03-XX

    Page 2 of 2

    BE IT FURTHER RESOLVED by the Mayor and City Council of the City of Sandy Springs that theMayor is hereby authorized to sign on to any Resolution of the North Fulton Municipal Association inopposition to HR 1.

    Approved:

    __________________________ Eva Galambos, Mayor

    Attest:

    _________________________________ Michael Casey, City Clerk(Seal)

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    RESOLUTION NO. 2010-03-XX

    STATE OF GEORGIACOUNTY OF FULTON

    A RESOLUTION IN SUPPORT OF GEORGIA HOUSE LEGISLATION HB 1093 AND HB1137 OF THE 2010 GEORGIA LEGISLATIVE SESSION

    WHEREAS, the Mayor and City Council of Sandy Springs are authorized to receive certainportions of the local sales taxes collected on its behalf by the State of Georgia;and

    WHEREAS , the Mayor and Council recognize that it is difficult to ensure that all applicablebusinesses collect and pay to the Department of Revenue of the State of Georgia (DOR) all appropriate sales taxes are required by law; and

    WHEREAS, HB 1093 (sponsored by Representative Knight) and HB 1137 (sponsored byRepresentative Porter), currently propose legislation in the Georgia House,would require the City of Sandy Springs and all other municipalities to collectcertain information for any business within the jurisdiction of suchmunicipality that requires an occupation tax or regulatory fee, and provide thatcollected information to the DOR; and

    WHEREAS, the Mayor and City Council believe that, by passage of both these bills,positive steps will be taken to make sure that the appropriate sales taxes andcollected by applicable businesses and properly tendered to the Department of Revenue; and

    WHEREAS, HB 1093 and HB 1137 will require the Department of Revenue to comparesaid information provided by the municipalities to its records, as well as reportany differences in the information to the affected municipality; and

    WHEREAS , HB 1093 and HB 1137 will help ensure that all persons who are responsible forpayment of sales taxes do so fairly in order to help shoulder the burden of thetaxpaying businesses and individuals who have been properly compliant withstate law and operating their business properly.

    NOW THEREFORE BE IT RESOLVED by the Mayor and Council of the City of Sandy Springsthat the Mayor and Council hereby express their support on behalf of the City of Sandy Springs for the2010 Georgia Legislative Session Bills HB 1093 and HB 1137 and hereby authorize the City Managerto relay said support to Representatives Knight and Porter, as well as the Citys elected representativedelegation to the Georgia Legislature.

    BE IT FURTHER RESOLVED by the Mayor and City Council of the City of Sandy Springs that theMayor is hereby authorized to sign on to any Resolution of the North Fulton Municipal Association insupport of HB 1093 and HB 1137.

    Page 1 of 1

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    RESOLUTION NO. 2010-03-XX

    Page 2 of 2

    Approved:

    __________________________ Eva Galambos, Mayor

    Attest:

    _________________________________ Michael Casey, City Clerk(Seal)

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    Prepared by the City of Sandy Springs Department of Community Development for the Mayor and City Council Hearing on March 16, 2010

    DT 3.1.10 Page 1 of 19

    Rezoning Petition No. RZ09-006/CV09-015

    HEARING & MEETING DATESCommunity Zoning

    InformationMeeting

    Community DeveloperResolution Meeting

    Planning CommissionHearing

    Mayor and City CouncilHearing

    October 27, 2009 November 18, 2009 December 17, 2009February 18, 2010

    January 19, 2010March 16, 2010

    APPLICANT/PETITIONER INFORMATIONProperty Owners Petitioner Representative

    MDT Perimeter Pointe LLC Wendys Arbys Group Jeff Dehner/Woody GallowayPROPERTY INFORMATIONAddress, Land Lot,and District

    1155 Mount Vernon HighwayLand Lot 19, District 17

    Council District 5

    Frontage and AreaApproximately 1,000 feet of frontage along the southeast side of Mt. Vernon Highway and620 feet along the northeast side of Perimeter Center West. 1155 Mount Vernon Highwayhas a total area of approximately 30.41 acres (1,324,660 sq.ft.).

    Existing Zoning andUse

    C-1 (Community Business District) conditional under zoning case Z93-066/VC93-103. Theproperty is developed with a shopping center.

    Overlay District Perimeter Community Improvement Design District2027 ComprehensiveFuture Land UseMap Designation

    Living-Working Regional (LWR), Node 6: PCID (Perimeter Community ImprovementDistrict Live Work Regional only)

    Proposed Zoning C-1 (Community Business District) conditional to allow a new fast food restaurant.INTENT

    TO REZONE TO C-1 (COMMUNITY BUSINESS DISTRICT) CONDITIONAL, WITH CONCURRENTVARIANCE(S), TO ALLOW A NEW FAST FOOD RESTAURANT.

    The current zoning conditions, under Z93-066, allow for no more than one fast food restaurant on the total site at1155 Mount Vernon Highway (Perimeter Pointe Shopping Center). The applicant is requesting to rezone thesubject property from C-1 (Community Business District) conditional to C-1 (Community Business District)conditional to allow an additional fast food restaurant on the subject property.

    Additionally, the applicant is requesting two (2) concurrent variances as follows:

    1. Variance from Section 4.13.C. of the Zoning Ordinance to allow an existing outparcel (Chick-Fil-A)

    abutting a public right-of-way to have less than 200 feet of frontage on that public right-of-way.

    2. Variance from Article 33, Section 26, Subsection F(2) of the Zoning Ordinance to allow a third wall sign.

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    RZ09-006

    Prepared by the City of Sandy Springs Department of Community Development for the Mayor and City Council Hearing on March 16, 2010

    DT 3.1.10 Page 2 of 19

    DEPARTMENT OF COMMUNITY DEVELOPMENT RECOMMENDATION

    RZ09-006 DEFERRALCV09-015 #1 - DEFERRALCV09-015 #2 DEFERRAL

    The applicant continues to work with neighborhood groups, as well as the Landlord, to address certain issuesraised at community meetings. The issues raised, that are being addressed, include traffic flow throughout theentire shopping center.

    PLANNING COMMISSION RECOMMENDATION

    The petition was heard at the December 17, 2009 Planning Commission meeting . The Commissionrecommended denial of the request (4-0, Maziar, Rupnow, Pond, and Rubenstein for; Thatcher not voting;Duncan and Boyken absent). The Commission expressed the following concerns:

    1) Traffic flow within the Perimeter Pointe Shopping Center and vehicular traffic flow to and from theshopping center and Perimeter Center West may be negatively impacted

    2) The proposed project and overall shopping center lack sufficient Green Space3) An additional fast-food restaurant having a drive-thru window would not promote pedestrian activity4) The overall shopping center design was not planned to include the proposed project

    The petition was heard at the February 18, 2010 Planning Commission meeting . The Commissionrecommended denial of the request. Approved (5-0, Thatcher, Pond, Maziar, Rupnow, and Rubenstein for;Duncan not voting; Tart abstaining). The Commission recognized the opposition by the DunwoodyHomeowners Association and other community associations and their request to enforce the original zoningcondition(s) limiting the shopping center to one [drive-through] fast food restaurant and three (3) outparcels.

    The Commission recommended to express the following issue regarding the aforementioned denial ofRZ09-009/CV09-015: Lack of pedestrian connectivity to the adjacent Crown Pointe office property tothe east. Approved (5-0, Thatcher, Pond, Maziar, Rupnow, and Rubenstein for; Duncan not voting;Tart abstaining).

    The Commission recommended to express the following issue regarding the aforementioned denial ofRZ09-009/CV09-015: The insufficient overall green space of only 11.84% (with the proposed Wendy's)not meeting the policy standard of 15% for the entire shopping center. Approved (5-0, Thatcher, Pond,Maziar, Rupnow, and Rubenstein for; Duncan not voting; Tart abstaining).

    The Commission recommended to express the following issue regarding the aforementioned denial ofRZ09-009/CV09-015: Insufficient quality of traffic circulation and directional/way-finding signage forthe entire shopping center. Approved (5-0, Thatcher, Pond, Maziar, Rupnow, and Rubenstein for;Duncan not voting; Tart abstaining).

    The Commission recommended to express the following issue regarding the aforementioned denial ofRZ09-009/CV09-015: Lack of thoughtful provision for employee parking for the proposed Wendy'sperhaps to be located adjacent to and west of the throat of the vehicular ingress/egress on Perimeter

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    RZ09-006

    Prepared by the City of Sandy Springs Department of Community Development for the Mayor and City Council Hearing on March 16, 2010

    DT 3.1.10 Page 3 of 19

    Center West. Approved (5-0, Thatcher, Pond, Maziar, Rupnow, and Rubenstein for; Duncan notvoting; Tart abstaining).

    The Commission recommended to express the following issue regarding the aforementioned denial ofRZ09-009/CV09-015: Deficiency in traffic circulation in and around the Chick-Fil-A outparcel.Approved (5-0, Thatcher, Pond, Maziar, Rupnow, and Rubenstein for; Duncan not voting; Tartabstaining).

    The Commission recommended to express the following issue regarding the aforementioned denial ofRZ09-009/CV09-015: Lack of true pedestrian access from the MARTA facility to the proposed Wendy'sand to the shopping center as a whole. Approved (5-0, Thatcher, Pond, Maziar, Rupnow, andRubenstein for; Duncan not voting; Tart abstaining).

    MAYOR AND CITY COUNCIL RECOMMENDATION

    January 19, 2010 Hearing: The petition was deferred to the March 16, 2010 City Council hearing to allow the

    applicant time to provide additional and/or revised information regarding:

    1) Traffic flow within the Perimeter Pointe Shopping Center and vehicular traffic flow to and from theshopping center and Perimeter Center West.

    2) The proposed project and overall shopping center Green Space.3) How an additional fast-food restaurant having a drive-thru window would affect pedestrian activity.4) With the inclusion of the proposed project, how would the overall shopping center impact the area.

    After community/developer meetings, the applicant provided additional material, including a revised siteplan having a new site layout, that addressed items numbered 1 through 3.

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    RZ09-006

    Prepared by the City of Sandy Springs Department of Community Development for the Mayor and City Council Hearing on March 16, 2010

    DT 3.1.10 Page 4 of 19

    Location Map

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    RZ09-006

    Prepared by the City of Sandy Springs Department of Community Development for the Mayor and City Council Hearing on March 16, 2010

    DT 3.1.10 Page 5 of 19

    BACKGROUNDThe subject site is located east of the intersection of Mount Vernon Highway and PerimeterCenter West. The property is zoned C-1 (Community Business District) conditional underzoning case Z93-066/VC93-103. The property is developed with a mixture of uses includingretail, restaurant, and entertainment. The 30.41 acre subject property currently has a totalbuilding area of 361,272 S.F. and a density of 11,880 S.F./Acre.

    Under Z93-066/VC93-103, the subject property was conditioned to include the following:

    To a specific site plan To a maximum of three (3) outparcels To no more than one (1) fast food restaurant on the total site To a concurrent variance allowing the existing Chick- Fil-A outparcel to have less

    than the required 200 feet of frontage abutting a public right-of-way (Mount VernonHighway)

    Note: The above concurrent variance allowing the existing Chick- Fil-A outparcel to haveless than the required 200 feet of frontage abutting a public right-of-way (Mount VernonHighway) is now currently being considered under CV09-015.

    EXISTING LAND USE AND ZONING OF ABUTTING PROPERTY

    SUBJECTPETITION

    RZ09-006/CV09-

    015

    RequestedZoning Proposed Use

    LandArea

    (Acres)

    SquareFootage

    Density(Square

    Footage perAcre)

    C-1 Shopping Center 30.41 364,972S.F. 12,002 S.F./Acre

    Location inrelation to

    subjectproperty

    Zoning UseLandArea

    (Acres)

    SquareFootage

    orNumberof Units

    Density(Square Feet orUnits Per Acre)

    NorthA-L

    ConditionalZ94-119

    Windsor at Mt.Vernon

    Apartments7.3 96 units 13.15 U.P.A.

    East Commercial(Dunwoody)

    Apartment/Office/Hotel ------ -------- --------

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    RZ09-006

    Prepared by the City of Sandy Springs Department of Community Development for the Mayor and City Council Hearing on March 16, 2010

    DT 3.1.10 Page 8 of 19

    Future Land Use Map

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    RZ09-006

    Prepared by the City of Sandy Springs Department of Community Development for the Mayor and City Council Hearing on March 16, 2010

    DT 3.1.10 Page 9 of 19

    Subject Property Subject Property

    North of the Subject Property (Windsor at Mt. VernonApartments) East of the Subject Property (Apartments inDunwoody)

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    RZ09-006

    Prepared by the City of Sandy Springs Department of Community Development for the Mayor and City Council Hearing on March 16, 2010

    DT 3.1.10 Page 10 of 19

    East of the Subject Property (Crown Pointe officecomplex and Embassy Suites in Dunwoody) South of the Subject Property (MARTA)

    South of the Subject Property (Retail Center) South of the Subject Property (Office Complex)

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    RZ09-006

    Prepared by the City of Sandy Springs Department of Community Development for the Mayor and City Council Hearing on March 16, 2010

    DT 3.1.10 Page 11 of 19

    South of the Subject Property (Office Complex) West of the Subject Property (Northpark Offices)

    Sign Sign

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    RZ09-006

    Prepared by the City of Sandy Springs Department of Community Development for the Mayor and City Council Hearing on March 16, 2010

    DT 3.1.10 Page 12 of 19

    SITE PLAN ANALYSIS The site plan submitted shows three (3) existing outparcels, on the west side of the property, havingrestaurants currently operating on them. The site plan also shows the main parcel, consisting of 27.81 acres,having an existing shopping center. The proposed 3,700 square foot fast food restaurant would be locatedover a detention area located at the south east corner of the subject property. The Wendys property wouldnot become an additional outparcel, but would become part of the existing shopping center. And theaforementioned open detention area would be made into an underground detention facility.

    PARKING AND TRAFFIC IMPACT ANALYSISSection 18.2.1, Basic Off-street Parking Requirements, requires a minimum amount of parking spaces for thefollowing uses: Retail Establishments, Restaurants, and Entertainment/Recreational. Based on the overallsubject property and the aforementioned uses, including the proposed Wendys, the applicant (per the siteplan) has provided 1,968 off-street parking spaces where 1,878 (with 15% MARTA reduction) off-street parkingspaces are required.

    NOTE THE FOLLOWING:

    Current total required parking (per Citys shared parking): 2172 15% MARTA reduction = 1847

    Current total existing parking = 1971

    With new Wendys, total required parking (per Citys shared parking): 2209 15% MARTA reduction= 1878

    Total provided parking with new Wendys = 1968 (30 of which serve new Wendys)

    With MARTA reduction, there are 90 spaces over the required amount.

    LANDSCAPE PLAN ANALYSISThe site plan for the overall project indicates there would be 148,842 S.F. (11.84%) of Landscaped Area. Thesubject property in an area designated by the 2027 Comprehensive Future Land Use Map as Living-WorkingRegional (LWR), Node 6: PCID (Perimeter Community Improvement District Live Work Regional only).The Comprehensive Plan recommends an excess of 20% Open and Green Space. 15% of this recommendationmust be green space. The overall project does not meet this recommendation; however, Staff notes theproposed Wendys would be a part of an existing shopping center and would be constructed over an existingdetention area that does not technically qualify as either Open or Green Space.ENVIRONMENTAL SITE ANALYSIS The Environmental Site Analysis Report is sufficient and satisfies the requirements of the Sandy SpringsZoning Ordinance. The reporting on all items of the analysis stated either positive, minimal, or noenvironmental issues.

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    RZ09-006

    Prepared by the City of Sandy Springs Department of Community Development for the Mayor and City Council Hearing on March 16, 2010

    DT 3.1.10 Page 13 of 19

    DEPARTMENT COMMENTS

    The staff held a Focus Meeting on November 4, 2009 at which the following departmental comments wereprovided:

    Sandy SpringsAssistant Director ofBuilding andPermitting

    There are no building and permitting requirements that need to beaddressed at this time.

    B U I L D I N G &

    D E V E L O P M E N T

    D I V I S I O N

    Sandy SpringsDevelopment PlanReview Engineer

    There are no site development requirements that need to be addressedat this time.

    Sandy SpringsLandscapeArchitect/Arborist

    The site is part of a previously developed site. The existing detentionpond would not require a buffer.

    F I R E D E P T

    .

    Sandy Springs FireProtection Engineer

    No fire hydrants are shown on the building site. Refer to 120-3-3,modification to the 2003 IFC, 508.5.1 Where required. Where a portionof the facility or building hereafter constructed or moved into or withinthe jurisdiction is more than 500 feet (152 m) from a hydrant on a fireapparatus access road, as measured by an approved route around theexterior of the facility or building, on-site fire hydrant mains shall beprovided where required by the local responding fire department oragency.

    Exceptions:1. For group R-3 and Group U occupancies, the distance requirementshall be 600 feet (183 m).2. For buildings equipped throughout with an approved automaticsprinkler system installed in accordance with Section 903.3.1.1 or903.3.1.2, the distance requirement shall be 600 feet (183 m).Fire hydrants may not be omitted unless written approval by the localresponding fire department or agency is submitted to this office.

    Refer to Sandy Spring Fire ordinance Sec. 22-34. Sprinkler protectionrequirements. 1.11.2 All new commercial buildings in excess of5,000 square feet or with an occupant load greater than 100 personsshall be protected throughout with an approved automatic fireprotection system .

    T R A N S P O R T A T I O N

    Sandy SpringsTransportationPlanner

    Provide two dedicated outbound lanes for the full throat length of theentrance onto Perimeter Center West.

    Georgia Departmentof Transportation

    There are no GDOT requirements that need to be addressed at this time.

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    RZ09-006

    Prepared by the City of Sandy Springs Department of Community Development for the Mayor and City Council Hearing on March 16, 2010

    DT 3.1.10 Page 14 of 19

    PUBLIC INVOLVEMENT Required MeetingsThe applicant attended the following required meetings:

    Community Zoning Information Meeting held October 27, 2009 at the Sandy Springs City Hall

    Community/Developer Resolution Meeting held November 18, 2009 at the Sandy Springs City Hall

    Public Comments (no attached letters)

    Community input includes the following:

    Traffic flow within the Perimeter Pointe Shopping Center and vehicular traffic flow to and from theshopping center and Perimeter Center West may be negatively impacted

    (The applicant has addressed this concern be redesigning the site layout)

    The proposed project and overall shopping center lack sufficient Green Space(The applicant has provided elevation renderings showing the proposed development)

    An additional fast-food restaurant having a drive-thru window would not promote pedestrian activity

    (The applicant has addressed this concern be redesigning the site layout)

    The overall shopping center design was not planned to include the proposed project

    The City Public Works Department has the following response to traffic flow:

    Provide two dedicated outbound lanes for the full throat length of the entrance onto Perimeter CenterWest.

    Notice RequirementsThe petition was advertised in the Daily Report on December 10, 2009 and December 24, 2009. The applicantposted signs issued by the Department of Community Development along the frontage of Mount VernonHighway and Perimeter Center West on November 13, 2009.

    Public Participation Plan and Report The applicant met the Public Participation Plan requirements. The applicant submitted the PublicParticipation Report seven (7) days prior to the Mayor and City Council Hearing on January 19, 2010. ThePublic Participation Report was submitted on or before January 12, 2010.

    The staff has not received any additional comments from the Fulton County Board of Education.

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    RZ09-006

    Prepared by the City of Sandy Springs Department of Community Development for the Mayor and City Council Hearing on March 16, 2010

    DT 3.1.10 Page 15 of 19

    ZONING IMPACT ANALYSIS

    Per Article 28.4.1, Zoning Impact Analysis by the Planning Commission and the Department , the staff shall make awritten record of its investigation and recommendation on each rezoning petition with respect to thefollowing factors:

    A. Whether the zoning proposal will permit a use that is suitable in view of the use and development of adjacent andnearby property.

    Finding: The staff is of the opinion that the proposed use is suitable in view of the use and development

    of adjacent and nearby property. The surrounding area consists of multi-family developmentsto the north, multi-family/office/hotel developments to the east, MARTA/retail/officedevelopments to the south, and an office development to the west. The proposal allows for aproper transition between these areas.

    B. Whether the zoning proposal will adversely affect the existing use or usability of adjacent or nearby property.

    Finding: The staff is of the opinion that the proposal will not have an adverse impact on the use orusability of adjacent or nearby property.

    C. Whether the property to be affected by the zoning proposal may have reasonable economic use as currently zoned.

    Finding: The staff is of the opinion that the subject property has a reasonable economic use as currentlyzoned.

    D. Whether the zoning proposal will result in a use which will or could cause an excessive burdensome use of existingstreets, transportation facilities, utilities, or schools.

    Finding: The staff is of the opinion that the proposal will not result in a use which will cause anexcessive or burdensome use of the existing infrastructure.

    E. Whether the zoning proposal is in conformity with the policies and intent of the land use plan.

    Finding: The staff is of the opinion that the proposed use is generally consistent with theFuture Land Use Map, which designates the property as Live Work Regional (LWR). The LWRland use designation recommends a density of over 25,000 square feet per acre for commercialand office uses plus over 20 residential units per acre. The overall project, with the inclusion ofthe proposed Arbys, would have a commercial density of 12,002 square feet per acre.Therefore, the overall project does not meet this recommendation; however, Staff notes theproposed Arbys would be a part of an existing shopping center and, by its construction,would actually add to the density of the overall site. The complete project lends itself to theoverall intent of the LWR designated areas that are intended for high density residential andmixed land uses along major transportation corridors and/or rail transit stations intended toserve larger areas and to provide larger commercial uses with a significant employmentconcentration. The Comprehensive Plan recommends an excess of 20% Open and Green Space.15% of this recommendation must be green space. The overall project does not meet thisrecommendation; however, Staff notes the proposed Arbys would be a part of an existingshopping center and would be constructed over an existing detention area that does nottechnically qualify as either Open or Green Space. The subject site is located in Living WorkingNode 6, Perimeter Community Improvement District (PCID), which is made up of high densityresidential, regional office, and commercial developments.

    F. Whether there are other existing or changing conditions affecting the use and development of the property which givsupporting grounds for either approval or disapproval of the zoning proposal.

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    RZ09-006

    Prepared by the City of Sandy Springs Department of Community Development for the Mayor and City Council Hearing on March 16, 2010

    DT 3.1.10 Page 16 of 19

    Finding: The staff is of the opinion that there are no existing or changing conditions affecting the useand development of the property, which give supporting grounds for approval or denial of theapplicants proposal.

    G. Whether the zoning proposal will permit a use which can be considered environmentally adverse to the naturalresources, environment and citizens of Sandy Springs.

    Finding: The staff is of the opinion that the proposal will not permit a use which could be consideredenvironmentally adverse to the natural resources, environment, or citizens of Sandy Springs.

    VARIANCE CONSIDERATIONSThe applicant is requesting two (2) concurrent variances as follows:

    1. Variance from Section 4.13.C. of the Zoning Ordinance to allow an existing outparcel abutting a publicright-of-way to have less than 200 feet of frontage on that public right-of-way.

    The applicant states this request was previously approved under Z93-066/VC93-103 and the existingChick-Fil-A outparcel currently has less than the required 200 feet of frontage abutting a public right-of-way (Mount Vernon Highway).

    The staff is of the opinion relief from this requirement is in harmony with the intent of the Zoning Ordinanceand there is a hardship due to the physical characteristics of the subject property because this request was previously approved under Z93-066/VC93-103 and the existing Chick-Fil-A outparcel currently has less thanthe required 200 feet of frontage abutting a public right-of-way (Mount Vernon Highway). Therefore, based onthese reasons, the staff recommends APPROVAL of this concurrent variance request.

    2. Variance from Article 33, Section 26, Subsection F(2) of the Zoning Ordinance to allow a third wallsign.

    The applicant has indicated this variance will not result in any harm to the health and safety of the

    general public. The applicant has indicated that this variance is in harmony with the area and inharmony with the general purpose and intent of the Zoning Ordinance.

    The staff is of the opinion the variance request is in harmony with the intent of the Zoning Ordinance and the proposal will not pose a detriment to the public because the proposed sign is facing internal to the overalshopping center. Therefore, based on these reasons, the staff recommends APPROVAL of the variance to allowa third wall sign.

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    DT 3.1.10 Page 17 of 19

    CONCLUSION TO FINDINGS

    The staff recommends DEFERRAL of the request to rezone to C-1 (community business district) conditional,with concurrent variance(s), to allow a new fast food restaurant.

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    RZ09-006

    Prepared by the City of Sandy Springs Department of Community Development for the Mayor and City Council Hearing on March 16, 2010

    DT 3.1.10 Page 18 of 19

    STAFF RECOMMENDED CONDITIONS

    Should the Mayor and City Council decide to approve the petition to rezone the subject property from C-1(Community Business District) conditional to C-1 (Community Business District) conditional to allow anadditional fast food restaurant on the subject property, the staff recommends the approval be subject to thefollowing conditions. The applicants agreement to these conditions would not change staff recommendations.These conditions shall prevail unless otherwise stipulated by the Mayor and City Council.

    1. To the owner's agreement to restrict the use of the subject property as follows:

    a. Retail, service commercial and/or office and accessory uses, including all exterior food andbeverage service areas, at a maximum density of 12,002 gross square feet of total floor area per acrezoned or a total floor area of 364,972 gross square feet, in no more than seven buildings, whicheveris less, but excluding adult entertainment establishments, car washes, convenience stores, servicestations, grocery stores, commercial amusements and billboards or any uses which are 24 houroperations.

    b. A maximum of three outparcels shall be allowed on the subject site as shown on the site plan

    referenced in condition 2.a. The total gross square footage of the outparcel development, shall becalculated as part of the total floor area allowed in condition 1.a.

    c. No more than two (2) fast food restaurants, having drive-through windows, on the total site.

    d. Limit the height of the buildings to no more than two stories or 60 feet, excluding entrance featuresand roof-top screening, whichever is less.

    2. To the owner's agreement to abide by the following:

    a. To the site plan received by the Department of Community Development dated February 2, 2010.

    Said site plan is conceptual only and must meet or exceed the requirements of the ZoningOrdinance and these conditions prior to the approval of a Land Disturbance Permit. Unlessotherwise noted herein, compliance with all conditions shall be in place prior to the issuance of aCertificate of Occupancy.

    b. To be in accordance with the two (2) elevation renderings received by the Department ofCommunity Development dated February 2, 2010.

    3. To the owner's agreement to the following site development considerations:

    a. The owner/developer shall dedicate fifty-five (55) feet of right-of-way from centerline of MountVernon Highway and Perimeter Center West along the entire property frontage or ten and one-half(10.5) feet from back of curb, whichever is greater, to the City of Sandy Springs.

    Such right-of-way as may be coordinated and agreed to between the owner and MARTA.

    b. No more than two exit/entrances on Mt. Vernon Highway. The southernmost curb cut shall belimited to right-in/right-out traffic only. Curb cut location and alignment are subject to theapproval of the Sandy Springs Traffic Engineer.

    c. No more than one exit/entrance on Perimeter Center West. Curb cut location and alignment aresubject to the approval of the Sandy Springs Traffic Engineer.

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    DT 3.1.10 Page 19 of 19

    d. No direct access from Mt. Vernon Highway to service the outparcels. The permitted outparcelsshall gain access via internal drives. Said access points to the outparcels from the permitted curbcuts shall be located at least 100 feet from the new dedicated right-of-way of any public street.

    e. Each outparcel which abuts a public right-of-way shall have a minimum of 200 feet of frontage onsaid public right-of-way, except the outparcel labeled on the site plan as B, shall have a minimumof 160 feet of frontage; however, direct access to said right-of-way shall be prohibited (CV09-015).

    f. Variance from Article 33, Section 26, Subsection F(2) of the Zoning Ordinance to allow a third wallsign (CV09-015).

    g. Light sources of any exterior illumination on the site shall not be directly visible from any adjoiningresidential property lines.

    h. Any lighting of the parking lot shall be limited in height to a 30 foot mast.

    i. Provide 100% opaque screening around all trash dumpsters subject to the approval of the Directorof Community Development. Said dumpsters shall not be located within buffers, landscape stripsor parking and loading areas, nor within 150 feet of property zoned or developed residential. Pick-up service shall be limited to the hours between 8:00 a.m. and 8:00 p.m., Monday through Saturday.

    j. Provide 100% opaque screening around all delivery truck bays subject to the approval of theDirector of Community Development.

    k. Provide screening of any roof top mechanical equipment from adjacent properties subject to theapproval of the Director of Community Development.

    l. The owner/developer shall provide two dedicated outbound lanes for the full throat length of theentrance onto Perimeter Center West.

    AttachmentsLetter of Intent dated received October 6, 2009Applicant Zoning Impact Analysis dated received October 6, 2009Site Plan dated received February 2, 2010Two (2) elevation renderings received February 2, 2010

    Site Plan Detail dated received February 18, 2010Letter Fulton County Dept. of the Environment & Community Development received November 19, 2009Letter Fulton County Dept. of Health and Wellness received November 12, 2009ARC review finding received January 4, 2010MARTA Area Planning Review received January 4, 2010Amendment to the rezoning petition request received February 2, 2010Letter of Opposition received February 5, 2010

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    Prepared by the City of Sandy Springs Department of Community Development for the Mayor and City Council Hearing on March 16, 2010

    CG 2.26.10 Page 1 of 13

    Rezoning Petition No. RZ09-011

    HEARING & MEETING DATES

    Community Zoning

    Information Meeting

    Design Review

    Board

    Community Developer

    Resolution Meeting

    Planning Commission

    Hearing

    Mayor and City

    Council Hearing

    December 22, 2009 N/A January 28, 2010 February 18,2010 March 16, 2010

    APPLICANT/PETITIONER INFORMATIONProperty Owners Petitioner Representative

    MJM Development, Ltd. Metropolitan Clinic, LLC Gerald A. Benda, Esq.PROPERTY INFORMATIONAddress, Land Lot,and District