Planning and Zoning - Regular Meeting

in Jesus Christ's name we pray. Amen. Amen.

All right. The uh first thing I want to do is to tell you that everything that we recommended to the board of commissioners uh was went through as we recommended. uh there was uh quite a bit discussion on some of it but uh uh they agreed with our recommendations. So uh I'm sure you all got the minutes of December 2nd for recommended meeting and the minutes of December 16th for public hearing. Uh if you're happy with that, uh I would entertain a motion.

A motion to approve. A motion to approve. Second. A second. Any discussion? [clears throat] Yes. More discussion. All right. Second. Yeah. Yeah. Yes. Yes. All right. [clears throat] The minutes of December 2nd and December 16th have been approved. Uh discussion of zoning application for January 20th public hearing. Mr. Tracy, I'll turn it over to you.

All right. The first up is Stacy [clears throat] Duffel and he is requesting to resone a 7.35 acres from A2 to AR to bring the property into compliance with zoning regulations and to allow an existing accessory dwelling unit to be continued to be lived in by his son. property is located at 1206 Duffel Martin Road in Comr on Map 93 Park 17 in District 4. So, Mr. Duffel has an existing mobile home that contains uh 1,344 square ft that he currently lives in and he also has an existing barnominium that contains 2400 square ft. But there is a section that he has um made out consisting of 864 square feet that his son is currently living in. Now we were made aware of this violation because it cannot be lived on as is because the A2 zone requires a 10 acre minimum for ADUs. So, um it's it's illegal as is. So, this was discovered when we the code enforcement department discovered um that a complaint had been filed regarding the property. So, that led to us [clears throat] researching. So, we um contacted Mr. duffel and told him that it was an illegal ADU and that his only option of continuing that is is if the board would approve it um to AR to allow

the ADU to be there legally. And as you know um in a AR zone you only have to have four acres for a um ADU. And if reszone, the ADU will meet all guidelines because the the f the property owner lives in the property and the manufactured home that is larger than the portion that his son is living in. Um, not that it matters, but there is ample road frontage and they will be using a shared driveway and the AR zone is consistent with the comp plan as it's in the rural conservation character area. The father lives in the bondium.

No sir, in the mobile home. In the mobile home. The [clears throat] son lives in the barn. In a 800 square foot portion. [clears throat] So what is the other portion of? The other portion is just um like a barn structure, but the living quarters is 864. So do they have animals in the other? No. A question for Mike. Yes, sir. Is it the living area or is it the the building itself? The size for what we talking about? The ADU. The ADU has to be smaller than the

Yeah, I've never understood that. Well, I don't either, but [laughter] that's in there. Well, I mean, which one's which is the part I don't understand. The sun is living in No, no, no. If I got two houses on a piece of property, which one's the primary and which one's the ADU? How what do you look at? Figure that out. The person that owns the property has to live in the larger house. Is that a requirement? Uh, well, it says it has to be live the principal dwelling has to be lived in by the property owner and the principal dwelling has to be larger than the AGU. Oh, okay. Okay, that's the thing there.

All right. So, my question was, you know, she was she said the living area in the barnaminium was so many square feet, but if the if you take in the entire bar bondium is bigger than the mobile home. Yeah. I don't believe they taught that in law school. Won't y'all ask me a legal question? According to Georgia law, I have not seen that where EABU has to be bigger. That's why of course not. That's why that's the reason for my snide com. This is all made up local stuff.

And and it's perfect. It's fine. I mean, as long as it does not does not conflict with any state or federal law, then and and doesn't violate constitution or whatever. I mean, generally, so most zoning things are are legal and you have pretty wide the county has wide discretion to pass zoning requirements. Um, but when you ask me what does this mean? My answer is I don't know. I didn't write it. It was made up by whomever wrote it however many years ago. Um, and it's a discre, you know, things have changed since then. Barn dominions did not exist. Um, and said this a billion times over the years on those interpretation questions. The only thing you have to do is be consistent in your interpretation when they come up in the future. So, it's perfectly reasonable. Uh, this this may be the first one. If you want to say that we only count the uh living area and not the it it's you could do it by heated versus unheated area. Um, but you know, find the rule and be consistent. Okay. Well, my thought was, you know, maybe just to cover the heated area, but

I wanted to make sure that this could be defended if we went the other way. You understand what I'm saying? I mean, if we That's That's why I asked you.

Well, and that's another misnomer and I'm just going I guess I'm in a pontification mood tonight. So, um, what has to be defended is the existing zone classification, not all of this other stuff that we worry about. Now, that could potentially be an issue. Again, that's why I say be consistent. If if you give it to this guy, but don't give it to the next guy because you take a different interpretation and that next guy also happens to be black or Hispanic or female. Now we got a problem.

And my another question about that who said that's why I asked the animals in the other part cuz who says that he can't expand it the 800? Well, I don't think just [clears throat] on m I don't think that that's the the question is we can't predict the future. You know, we're what we voting on is what we got right now. Yeah. But I'm saying according I mean like I've never seen it in Georgia law, but as you said the 800 he has to be smaller. Okay. Right now

according to our zone in that's a local rule and that's perfectly fine to have that as a local rule. Then when you have these new things pop up, then you have to figure out what you're going to count towards the square footage and then use that from now on. And we're not the only local county that has qualifications like this. I'm doing a transaction right now. Another local county that has a very similar statute. And when I went to their planning zoning department, asked them about it, they said people were going around the density, the zoning density for this particular area by building accessory [clears throat] dwelling units and then renting them out as Airbnbs.

And so that's that's what every action has an equal and opposite reaction. I'm not saying that's right or wrong, but that's what Well, of course, as you know, short-term rentals has been an issue. I mean that was one that got big enough that it got the states attention. Yeah. So now we have state regulations and case law that defines what the parameters of local regulation can be. Correct. Well, what I'm saying how can they enforce that? I mean, okay, we if it be if the path is 800 square feet, but we can't are you going to go back in there and see if he expanded it in two years.

Oh, I get your I get what you're saying is. Are you Well, you know, and that's the, you know, you don't have to never have to take very many steps resing the land use stuff to get to the, you know, the contradictions and ambiguities. And that's a good one. That's that's a good point. Uh, that has nothing to do with it being a barnaminium. That could just be the owner lives in a 4,000 foot house. The ADU is 3,000 square ft. And two years from now, they put a 1500 foot addition on the ADU. Are you going to deny the building permit? I guess you could, but we certainly don't have the structure to catch that, I don't think.

Okay. Any further questions on this one? We won't bother until we have the public hearing. I haven't been out there set back from that side property line. Yeah. All right. Any further questions on that first one? All right, move on.

All right, second one is Haley Kerry, applicant for her uncle Michael Kerry, is requesting to resone a 5acre portion of his 53.91 acres from A1 to AR to split and gift his niece for a home site. The remaining AC acreage will remain in the A1 zone. The property is located at 3802 highway 174 in Danielsville on mount 49 parcel 22 in district 4. So as I said uh Mr. Kerry is wanting to get his his needs 5 acres. So, of course, we will need to reszone the 5 acre portion to AR um because the A1 zone requires a minimum of 25 acres and the AR only requires a minimum of four. Um both tracks will have ample road frontage as you can see on the enclosed uh plaque. Uh the AR zone is consistent with a comp plan as it falls in the rural conservation character area. The property is in Cuba, but this will not constitute a breach. [clears throat]

Questions on this one? The old store building that's on here, that's not functional in any way. Yeah, it's not business. Any other question?

All right. Third is Gary Harbin, applicant for Renee Cannon, is requesting to reszone her 10.62 acres from A2 to AR to allow a 3.127 acre split to be combined with her son's adjoining property, which is map 66, parcel 55, for a total of 4 acres. She will retain the remaining 7 433 acres. Property is located at 527 Fowler Freeman Road in Danielsville on map 66, parcel 54 in district 4. So basically her son owns the adjoining property and he only has 86 of an acre and believe it or not it's zoned too. So, she's just wanting to give him enough of her property so that it will bring him up to 4 acres and [clears throat] that's why it would need to be reszoneed to the AR zone. Um, let's see. And also her son is having to go through the reszone process to go from A2 to AR. So, the reszones are contingent upon each other. Um both tracks have ample road frontage and AR zone is consistent with the comp plan as it's in the rural conservation character area. [clears throat]

So three and four need to be considered together. It they could be yes sir. questions and comments on this? None. All right, [clears throat] moving on to item two. Well, so yeah. So I guess you we won't read out the sun and that's the joint unless you want me to.

Just for clarity, I guess you can. Okay. So, Gary Harman, applicant for Andrew McCannon, is requesting to reszone his 0.87 acres from A2 to AR to allow a 3.127 acre portion to be comi com combined with his property for a total of 4 acres. The 3.127 acre portion will be split from his mother's adjoining property on map 66, parcel 54. And the property is located at 469 Fowler Freeman Road in Danielville, parcel uh map 66, parcel 55 in district 4. And like the other one, um it still will have ample road frontage. AR is consistent with the comp plan.

Questions, comments?

Okay, so next up is the discussion of the private cemetery request for Benjamin Hanley Jr. Now, um I will give an explanation in just a moment of all the emails that's transpired, but first of all, I'll read you um how we are to deal with those. So, this is kind of like our first one that we Why don't we just You want to clear that up? Why don't we just go with the end result, not confuse everybody with how we got there?

Okay. All right. That's that's good. So, um, the ordinance allows for private cemeteries in the A1 zone. They are a permitted use, so a reone is not required. Um, a request to develop a private cemetery must go through the same channels as the reason request, meaning that it must be advertised in the newspaper, have letters mailed to adjoining property owners, not notifying them of the request, and go through two public hearing meetings with one being held by the planning and zoning commission and the other by the board of commissioners. Um, these requests only require board approval for the site plan and the perpetual care plan. And upon staff's review, we have found that the proposed site plan for the cemetery layout and the perpetual care plan that was submitted and performed by Al Tone met all of the requirements for private cemeteries. Um and basically that's the nitty-gritty of it. Um there is some um some situations that came to light that there was a deed um recorded for the cemetery to go into a trust. Um my notes here and uh Mr. Puit stated that the trust would need to deed the cemetery back to the owner of track 1A which is Mr.

Hanley and all will be well. Yeah. And I noted that. Yeah. But so that's by the way where is the public hearing stuff? I'm looking through. I know 9.7 is really long, but that's what I was going to ask. So, what is the cemetery is a permitted use, but it states that it must be approved by the BOC. Which tells me if it's a permitted use, does it have to go through a public hearing? Oh, here it is.

9736. Look at that, Lee. It's really a mess. [laughter] you'll get updated. We have like a office discussion trying to you know read it out loud and make sure that that's how we were interpreting it but it had to go through the public meeting. Well, all I see so here's what I see. Prior to approval of the request of the location of new cemetery site plan and perpetual care plan must be submitted to y'all. Um you have 30 days following the public hearing to submit your report. So you make a I I guess that means

Yeah. So I mean what is what was the problem? That was a crack. What is the problem? But when we read that it was like public hearing. Yeah. I mean that's the only place it just says the public hearing. It doesn't tell us when or where or why we have to do it. Oh,

what a mess. The problem see putting all that garbage aside because I don't know what to do with that. [clears throat] Um is that um instead of just leaving the cemetery as part of this 28 acre tract and you know getting the approval under 9.7, they actually did a deed to a separate entity called the blah blah blah Cemetery Trust or something like that. Well, it's only like 6 006 of an acre. So, so they separated.

They separated it. And we don't I mean, and it would make sense if we wanted designing ordinance wanted, you know, did allow um cemeteries to be exempt from the minimum acreage requirements. That'd be great. But we don't have that provision. Oh. So, so they're technically in violation of the minimum acreage provision. Oh. So he needs to deed it back.

Yeah, it really needs to be deed back and I expect that they were advised to do all this and and I get why that you know the best solution from a global perspective would probably be to exempt family cemeteries from all cemeteries from the minor requirement. But that but I'm sure people would have reasons that's not a good idea either. I I I still have a problem with that. I need wood. I need somebody. [laughter] Oh, you saying everybody put their cemetery.

No, no, no, no, no, no, no, no. It's It's because our parcels were not zoned correctly. We have some 1 acre parals that are zoned A1. So, if I had a 1acre piece of property and I wanted to put a private cemetery on it, then I could do it. What What would it hurt for them? What is it hurting for this 0068? This partic this particular one I don't see a problem with.

Well, no, there is a problem because it violates the zoning ordinance. But I'm saying what would be the problem if we did a text amendment to the zoning ordinance that said you don't have to meet the minimum? If 006 isn't a problem, why would one acre be a problem? I'm trying to figure out how to answer that.

I'm with you. I don't I don't see the problem with a c with a cemetery, a private cemetery. The problem I've had all along is the process that has happened. I mean, it shouldn't have happened. A deed was created. Why? [snorts] I don't really know. [bell] Well, I mean to solve the whole problem. All they have to do is really is feed it back into the 20. I would solve it. I without getting into the weeds, I think you're they're probably going to say they don't want to do that. Oh, okay. But but we, you know, I guess that would be the place to start. Let me say that and then we'll deal with the next question, I suppose.

Yeah. Well, I I mean I personally don't have a problem with this. So, what was their reason? Well, you can know the problem is that you have an existing zoning violation and normally you don't approve things on a property that has an existing violation unless and until that violation is cured. Well, if they did it back, they'll cure that property. Yeah, that's that's why I say I don't have a problem with that if they agree to to do it back. So, would approval be contingent upon them deing it back?

Well, no. It's not even the right owner right now. They need to I mean, if they want to go through with it, that's fine, but it's it's certainly within y'all's discretion and maybe obligation to deny it because I think you have a provision somewhere in your zoning ordinance that says you won't, you know, you don't get granted an additional permit if you have an existing violation until you fix that violation. So, you know, they want to go through with it, they can. It probably gets denied for that reason. And or they could withdraw it and go back fix do need it back and then have a big track owner apply.

Is there a reason why they decided to separate that? I know I probably they I don't know what's the reason that they the weeds I didn't get into. So they create, and I didn't read it in detail, but they they created a a a potential [clears throat] trust to own and maintain this cemetery. And that's and I actually Yeah, I understand that.

Yeah, I understand that. And that's why I'm saying uh now there I think there may be ways they can achieve the goal of that trust without actually deeding this property to that trust. I'm not their lawyer, so I haven't really thought through all the details of that. Um, but again from the county's perspective, it is my client. We could fix it for them by a text amendment that says matrix is requiring a separate client or separate tracks that are totally consist of a cemetery. When I when I talk about [cough] [clears throat] having a problem with the process, the plant and the deed were recorded back in [snorts] April. It was sent to the assessor's office. I guess they assigned a parcel number to it. It was put into Q public at that point. And then I found in 973 it says once approval has been given by the BOC a new plat showing the area designated for the private cemetery must be filed with the cler court office. [clears throat] So it was done it was done back in April and it shouldn't have been done at all until it got approval or So I don't know why that happened but it did. [clears throat] But according to that according to that thing that Mike read about the public hearing it sounds like the public hearing has to be done before the staff need to do anything. Well, no. I think that's where Melissa Tracy got, you know, that there's at least some basis for implying here that it goes through the same public hearing process as a reszone or a

variance. I get where you got that conclusion. Um, you could probably I mean, I could probably come up with other interpretations that are defensible, too. It'd be nice if people weren't on heavy drugs when they wrote our zoning ordinance, but I I even wonder why it's even in there. Well, if I recall, this whole section was written by an employee who's no longer here. Is that right, Tracy?

I believe so. Yes, sir. You didn't like private like house. So, what is our solution at this time to wait and see if they're going to

Well, um I mean, you know, Tracy, Melissa know the problem. I think you probably already told her this. If you have that, I mean, you have to tell them, you know, you have an existing zoning violation and that, you know, you can cure that by deeding it back and it could go well, still have to reapply. But, uh, you know, if they insist on going through with it as is, you just, you know, I mean, we again, we don't predict what this board or the board commissioners will do. existence. All that the three of us, me, Melissa, and Tracy can tell people is there is a potential ground for denial here that you may want to withdraw and fix. But if you don't go through it, have they been made aware of that?

No, we just learned that today. So, we will call them tomorrow morning. Okay. And then then the decision will be up to them. go forward or not. Exactly. Yeah, that's that's always the case. If they decide to go forward, is it best advice to go through the public hearing process?

If they don't need to do one thing, they do. Yeah, I guess it at least to do the public hearing at this one because now is that the only place it mentions public hearing? So it doesn't say anything about a public hearing in connection with board of commissioners. It just says for planning commission, but yeah, I guess for y'all's purposes, I think I would do this do the one here. Board of Commissioners can, you know, cross that bridge when we get to it and do what they want. I think between me and Tracy, Truth and Eddie, like everybody reading it, getting their feel for it because I don't know have we done a private

everybody felt like it'd be better to cross your tees and dot your eyes. So, if it said anything about it, let's just go ahead and do advertisement. Let's go ahead and do letters. Let's run it through both. That way, it doesn't come back and get us later if we should have. So, should have, could have, would have. And that cemetery that was coming for us last year, I think it was, didn't it? Mr.

An ordinance would be much better. I'd much rather have an ordinance that did not mention private cemeteries that have this mess. Mhm. But anyway, and I say that because I think you'll find if and when you ever the the CPL recommend recommendation is ever adopted, there will be a lot of situations that it's not cookie cutter. The answer is not there.

And that's better than having an attempt at an answer that's indecipherable. Well, I'm sure 30 years from now somebody's go around somebody say, "Why did those idiots put that in there?" Well, you know, over the past few years, I have really started thinking that I remember 25 years ago when I said that about whoever came before me, and it's probably rapidly approaching time for somebody else to say that about me. Anything else, Mr. Tracer? That is it.

Anything else the board wants to address? You do. You can go ahead.

I could take a minute of everybody. Um there's I guess um there's a lot of community discussion about what's past and there's a lot of misinformation I guess going out throughout the county. I mean without throughout that community about the transfer station and what I guess I don't know to me I don't know if this would be a problem later on down the line but um what was the name of the guy that wanted that Mr. Diploma

diploma I can understand that he has a company he had land and I don't know if he purchased the land at all at the same time Tracy did or seem already in the [clears throat] county indust one of the county's industrial parks

well this is the thing the community is has misinformation bit I guess I know it's in industrial and according to our he came in for conditional use. So even though it's industrial, how come he just didn't build it and come? Why did he come to us if it's still because he had to have a conditional use to build that over there? Right. He heard No, he did not have to. It was recommended to him because of the way it was written. Can I interrupt? Yes. explain this. Okay. Yeah.

And I really hate doing but it's over now, so I guess it's fine. Um

the um our our zoning ordinance was very ambiguous as to whether it was a permitted use, conditional use, or perhaps not permitted at all, I guess. But uh although there was a definition of solid waste transfer station in our ordinance which pretty heavily implies it's at least some kind of use somewhere. So um it was denied the first time. Um he hired a good lawyer came up with a number of arguments. the the but the the one that I thought was probably the best one was uh and again, you know, can go either way in court, but he had a a legitimate could have prevailed argument that it's a permitted use. Uh rather than tested in court, as people do in civil disputes most of the time, um we reached a compromise. They didn't demand it as a permitted use if we would agree to hold a new hearings and if after those hearings a conditional use permit was granted with additional agreed upon conditions even beyond those required for the conditional use permit they would dismiss their lawsuit. So, uh, it was a reasonable compromise by two parties to a civil dispute, the county and the landowner, uh, not to take the risk of all or nothing in in court.

Okay. So, under our conditional use, they went with subject to special conditions, specifications, and special conditions, right? I guess. I'm not sure, but yeah, you can always put conditions on any zoning decision. That's what we did. But I guess what? Well, I know you said that, but the community is not going to let it go. I can't do anything. I mean, you do what you want to.

My advice to you is to do exactly what I did during the hearing, which was sitting here stonefaced, including when the guy made a snide comment about me being disinterested in his legal argument, which I took as a compliment. I am disinterested in his legal argument. This is my client, not not that person. I have a question. No, I got I'm just saying the community thought that I'm not speaking for me. I'm speaking of what I'm hearing out there that they it was somewhere out there that just because it was industrial he got industrial it was or whatever. So, but

and then I'm reading that because he came in with conditional use it that could didn't happen even though it was industrial and that it just he can't just put something in industrial. He still has to come before the board. I know [laughter] that's right. Right. Because what you can if you own a piece of land that is owned industrial, you can do any of the permitted uses there without any do anything. Yes, you can do conditional uses with a conditional use permit.

And that's what they were saying that you misinterpreting, you know, on what what you got written in. It was I don't know any other way to explain it. I know, you know, and I know the And way I see that [clears throat] if I were in court, I'd ask the court reporter to know. And knowing that's industrial land, if they bought in there and it's already industrial land, that's on them. It's not on the person that owns land now. It's owned to industrial park. That's on them. And when you buy something land next to industrial park, you can expect anything in there that's permitted or conditional use to go in. There you go.

Yeah. When you buy that, you just can't complain because I bought this five years ago, but the dust part formed 15 years ago and expect not to put nothing on that. I can see it both ways on that bill. Okay. The bottom line is the community thing. They want if it's industrial, if I if I own industrial land, if whatever is permitted under industrial, I can put it in there and I don't have to come before it. That's correct.

Is that correct? That's correct. conditional use that means that there's some kind of conditional below that I want to permit that to get my industrial in there and that's why he went under in industrial but the the concern is if something is maybe environmental harmful to the community if it's industrial and they own industrial land they can just put it in there anyway. My my question to you, Cynthia, is what can we do about it? I mean, you're bringing it up, but what can what can we do about it?

It's bad. It's written there. It was written there years and years ago in the future. It's just like that. Just like my my my pet peeve was set back for auction bonds. We had no choice but to do what we did. In this case, they had no choice to do what they did. But we can even if even though the community doesn't like it, then they can take their steps to do whatever they need to do. But there's nothing we around this table can do about it. Period.

Okay, that's understood now. But I'm just saying in well, nobody knows until it gets there because the people in the community know that 72 when they widen that you got increased accident especially in that section right there. There's no way they can put an access road or emergency where people can get over the train. There's a lot of stuff that is that place right there can increase hazards. So, whatever. It's very complicated. Yeah. And um

you're not going to be able to explain it to community members, especially if they're already angry. Um it's not as simple as it's not even as simple as you can do anything that's a permitted use. For example, um you know, transfer terminal is the is I think one of the permitted uses and that was the one they were arguing uh they would fall under. Um but if the transfer terminal is transferring nuclear waste,

you can't do that, but we don't regulate that because federal, you know, so there also state and federal law people have to comply with when you start talking about improving the road. Uh yeah, that's something I think it's a county road. That's something the county, you know, theoretically could do. We would have to apply rightaways which might be expensive. Uh you also have that grade crossing. So now we're back dealing with federal law with railroads. So um yeah, um you know, you're not, in my experience, you're not going to satisfy many people by telling them it's nuanced and it depends, but that is the right answer. Well, it's like you told me one time, common sense and the law are two different things.

Well, that's true. Sometimes, but I'm not really saying that in this in this particular situation. I'm just saying there are a lot of different laws and and there are practical considerations, too. I mean certainly uh the you know one something that could come up now or in the future is if that industrial park it continues to expand. Does the county need to spend the money to to make improvements to the road that it comes out onto? But that has financial as well as legal considerations.

That's all the county what said that's all the county is really responsible for is the road. Everything else falls under EPA or the the railroads or the state department of transportation. All that other stuff the county has nothing to do with. So do traffic. Well, and that's that place only has one way in, one way in, one way out.

If I can speak real quick, that's what I've learned really quick. Just because we approve something doesn't mean they're going to get state approval. Doesn't mean they're going to get EPD approval. All we do is approve it for the county and then they still have to have everything else in line. So yeah. And one of the things I said, you know, the count the counties have broad discretion in zoning ordinances, but but one of the limits on that discretion is when there are state or federal laws that preempt that area. Um, and when when something is preempted by state or federal law is again not a black and white test. It's a consideration of numerous factors that have been developed by courts in judicial decisions over the years as to when they when and how they'll determine preeemption has occurred. There is a reason that you know go to school. Yeah. I mean from a personal standpoint I kind of agree with Cynthia. I I I I wasn't real happy to see that go there, but I understand why. I understand why it got approved. You don't want

Well, that's that's what that's that's what that's that's what the citizens can do if they got if they if they got a good case. Mr. Sean understands it because he has a brain and he's been dealing with this ever since it began in Madison County. He is one of our OGs of Sony and land use. So you cannot expect I tell you the public doesn't that you didn't let me finish my sentence. You can't expect every [laughter] You can't expect everybody in the public to understand things the way that y'all Play.