Zoning Board of Appeals - Regular Meeting

Call a meeting of the zoning board of appeals of city of South Fulton. A staff, would you please call the role, please? Dr. Blackshere, present. Miss Patterson, present. Mr. Matthysse, here. Mr. O'Donnell, present. Miss Plaz Ferde, here. Miss Jerome, present. Miss Evans, we have a quorum. All right, we have a quorum. Uh, we have special circumstances tonight, ladies and gentlemen. So, I appreciate your patience. Uh, at this time, I'm going to Mr. Chair, go ahead.

Um, may I make a motion? I have a mo a motion. I move that the um zoning board of appeals uh group board move into executive session. At this time, you will need to state a reason for potential litigation for potential litigation uh regarding the appeal that's being presented this evening. A second. It's been properly moved and second to go into executive session to discuss the appeal of the Santtown land disturbance permit application. All in favor say I. I.

I. All oppose. Nay. Hearing none. Motion passes and we are going to go into executive session. We'll ask that everyone please uh excuse themselves. Uh we hope not to be too long. Hopefully uh We're going to stay here. We're going to stay. Hold on just a second. Where can they go, man? Can they go through the break room? Yeah, absolutely. Okay.

Evening, ladies and gentlemen. Uh, appreciate y'all's patience with us. We're going to call back to order the February 3rd, 2026 special meeting of the Zoning Board of Appeals. Uh, at this I'd like to make a motion that we come out of executive session at 7:23 p.m. I second that. It's been properly moved and second to come out of executive session. All in favor say I. I. I.

All oppose? Nay. Hearing none. Motion passes. We are out of executive session. We are going to uh have a a special uh uh public uh session, but this is strictly for both parties, meaning the attorneys uh to offer up any more commentary that they have. We're not going to take comments uh from the public uh at large because we haven't had any signup sheets or or signup cards. So at at this time I'll entertain that motion.

Okay, good enough. Uh let's start with the applicant. Hello. Okay. Identify yourself for us, Mr. Hillyard, just for public record.

Thank you very much, uh, Mr. Chair, members of the board. My name is Hakee Hillyard. I'm with the law firm Michel Grubman uh, LLC, uh, located in, uh, Dunwoody, Georgia. Um, happy to be here this evening tonight with my colleague, Mr. Joe Seagelman. Uh, also Ray uh, Crocker with Corta, the developer here in this project, and Doug Crawford here is the landowner. uh we're all here and we're pleased to have the opportunity to be present with you again. Um I know you all uh have wonderful stamina uh from our last hearing and we appreciate that and I promise you that I won't contribute to that going forward. My daughter said she watched the hearing a little bit and she said you're making funny faces so I'm going to make sure I don't do that again. So uh but thank you for the opportunity to be here. I wanted to just kind of go over kind of what we understand we're here for and why uh what this project is about. Uh Ray Crocker and I uh went and talked to the city officials after uh he got the land under contract for Mr. uh Crawford uh and Mr. Crawford said we have 200 multif family units entitled for this property uh and we would like you to develop it. And so Mr. Crocker said, "Well, before I do that, before I spend a dime in that direction, I want to understand what the zoning was that you say entitles us to do that." That's that 2001 zoning and the history of for that property since then. And so we reviewed the historical record independently and again together. Then we contacted the CD director, Mr. Reginal McClendon. At that time, the the office here was not constructed. They didn't have a place to meet. So, he came to our offices and met with us for a couple hours and we went through the whole zoning history and made some understandings known about the project and the property. Uh, he agreed to go back and look at it. We made sure we gave him all the files that we had. We

told him he should also inquire of those files from Fulton County. He did that. A couple months later, after some more inquiries, he wrote a letter to us in July of 2024, telling us the the letter that you all are all familiar now that we were entitled to develop two uh 200 multi- family units um you know, subject to compliance zoning rules. My my work at that point was largely done because when land is entitled, you don't necessarily need a land use attorney to take it through the zoning process. So, I stepped back. Mr. Crocker and his colleague Taylor Harper uh began to meet with the city. Uh you all heard a lot of testimony uh when we were here before. They talked about all their efforts in that regard. Uh they followed they didn't come in in the night. They didn't wait till the doors were locked and sneak into the planning department and try to write approval where it wasn't supposed to be. They talked to every official. Uh Mr. McClendon wrote the letter. Mr. Williams was involved. Miss Tomminy. So many people were involved in this process over the course of a year. I didn't hear about it until almost a year later uh towards the end of the process when Mr. Crocker gave me a frantic call. He says, "We're at the end of the process. Everything's been reviewed multiple times. We've talked to them many times and this this item is now on the agenda to approve the plat which was we understood an administrative step that the city had to take. The staff had already recommended approval and was encouraging the city council to approve it. What happened was that matter was pulled from the agenda with with with no notice, no understanding about the purpose or any reason. Mr. Crocker called me. I called Council Member Ral. I said, "Hey, what's going on here?" She said, "Oh, well, I just want the community to make sure they have an opportunity to be heard regarding this request." I said, "Well, we do understand that this property is untitled. We're happy to go meet with the community. We don't want the anybody to be confused about the process of neighborhood review because we already have the entitled property." Uh, she said, "Just meet with the community. We were directed to two communities in particular. We met with them independently. There were a couple people that expressed concern about the multif family portion of the

development. We shared with them like we've shared with you all the last time we were here. You know, the land was already entitled for the purpose that we intended it for, but we're happy to hear any of the concerns that you have and talk through them. Two good meetings. Uh we we assumed after those meetings that this item would go back on the agenda for review and approval by the city council. I think a month later it did go back on the agenda and again unceremoniously it was pulled from the agenda unbeknownst to us. This time when Mr. Crocker didn't wait for me to inquire why it happened because a million dollars is invested and you get a little anxious when you understand you don't understand what's happening. He was told by the council member you need to talk to director McClendon. Uh and so that began an escapade of many many days trying to get in touch with Mr. McClendon about what happened. We couldn't figure out why this happened. We were never told what the decision was, how it happened, why it happened, or any of that. One day, Mr. Crocker and I came down here and decided to do something I've never done. We just showed up here, waited for somebody to talk to us. And Mr. Tomy, Miss Tomminy, and Mr. Williams came in the room and talked to us about it. And and we asked them about how this happened and why it happened. They said the city has a right to change its mind. uh and they also said that there was some interest in involvement of a council member uh and which led to this decision. And so we were you know hopefully understandably concerned about that process and how that could have happened. Uh but we just wanted to give you that history one for context but two to help hope you understand that we think we are good actors. We think we did everything that we were supposed to do. We did everything first. We didn't spend a dime until we confirmed that we understood what the city said was the process and what we were have to go through the process. Uh when we were here in December, there was conversation. Well, you know, we told you that you had multi uh 200 multif family unit entitlement, but it didn't say what the design of the buildings were. Well, that is was interesting because it was the first time we'd heard that because there were

several iterations of the plan that the staff reviewed. There was a specific question by staff, I mean by the developers at one point that said,"Well, what is the site plan review process?" They said there was none uh just to go through the process. So when we got to the end of the process and there was this hold without any understanding of why and even to this day, we're here on uh Janu February the 3rd, 2026. Um uh this decision was made apparently in September of 2025. And to this day, although we received the letter of approval from Mr. McClendon, not only has he never given us any response or endorsement of the decision that a staff person made by a note in the file uh about why that decision was made. So, we knew we learned more about what the city's position with about how we got to this point at the hearing with you all than we'd ever learned uh before that. And so, that's why we're here in this posture. And we wanted to make sure you understand we don't think that anybody I don't we think the city loses by winning. If if the city considers winning that this appeal is uh that the decision of the city is upheld. We think that the city loses. It loses because the development community is going to go back. Mr. Crocker is going to be asked well what was your experience? Well, I spent a million dollars and all these promises were made and then they kicked me out on my behind and said, "Don't come back and and so the rest of the development community is probably going to listen to that." That's what we believe. They also the community loses because as we talked to community members, we spent four and a half hours here with you in December. The community was of the understanding that this conversation was about m whether multif family could be developed here or not. This property is already entitled for that purpose. it was not for that reason. So, everybody loses and so we are here tried to come here in good faith and wanted to have a conversation about how we could move forward. Uh, and so for the legal issues and I just

wanted to kind of not go back through everything we talked about before and hopefully we'll have a opportunity to have a conversation. Mr. Mitchell has much more stamina than me. So, he was moving around fast. I saw him going for a run after we were at the meeting last time. So, I don't know what he's eating that he has so much energy, but I don't have as much. Um, let me just talk to you, go straight to the issue that we ended with at the end of our four and a half hours. I think there was some belief that when we pulled out the zoning file and we looked at the 2004 zoning, this zoning started in 2001, when we got to 2004, that there was some smoking gun that completely undid our argument for this zoning and why our property should uh not have been entitled. Uh, so what I'd like to kind of just go through a couple of things with you. I think about that 2004 zoning, the concern appears to be that because the 2004 action is labeled as a zoning modification, it must have fundamentally changed the original zoning approval or locked the project into a specific town center form. That concern is understandable, but is not supported by the actual record. When the 2004 documents are read carefully, they show something very different. The county, the city approved, no, Fulton County at the time approved a limited technical adjustment to an already approved project while deliberately preserving the original zoning program, units, counts, and flexibility. In plain terms, the rule stayed the same. Only the diagram was adjusted. The purpose of the 24 action was narrow and practical. The 2004 modification was required was requested because of updated survey work revealed that physical site constraints. Creek creeks, flood planes, buffers, steep slopes and rocks and outcroppings that made portions of the original 2001 sketch impracticable impractical to build exactly as drawn. Rather than increase density or add new uses, the applicant asked for the permission to relocate housing types within the site so the project could be connected safely

and realistically. County staff confirmed that these changes were internal to the development, would not impact surrounding properties, and did not alter the nature or intensity of the project. The letter of intent in that file expressly expressly uh uh I'm sorry, is there time? Go ahead and finish attorney here wrap up for us.

Okay. Well, let me let me let me we can come back and talk to about the 2004 zone and if I need to finish up, let me just make a couple of critical points I think I'd like to make. Uh we talked about we didn't we really didn't get to the burden of proof when we were here after the four and a half hours last year and I I I assume some responsibility for that. But why is this issue being raised now? At the initial hearing, the party spent approximately four and a half hours discussing the history of the zoning, the 2004 modification, and competing interpret interpretations of that modification, what it meant. What we did not discuss at all is the threshold legal question that must come first, which we think is dispositive. Who has the burden of proof when the city claims that previously granted zoning entitlements were stripped away? That question matters because if the city carries that burden, and it does, then the city's interpretationbased arguments fail as a matter of law. The city bears the burden of proof. Under Georgia law, once zoning rights are granted, they remain in effect unless the governing authority can show that those rights were expressly and lawfully withdrawn. The burden does not fall on the property owner to reprove entitlements decades later. The Georgia Supreme Court made this clear in several cases, holding that zoning rights, once granted, do not disappear absent clear governmental action without withdrawing them. When a local government claims that a later action is eliminating an existing entitlement, the government must prove it. Here, Corta has shown that the original zoning approval permitted the multif family units at issue and that no zoning ordinance has ever expressly revoked them. At that point, the burden shifts and the and it shifts to the city. Georgia courts have repeatedly rejected efforts by local governments to impose zoning limitations through implication or interpretation rather than clear language. There is no clear language here. We're looking at a town center on a map and decided that that had created some prohibition to what we had been already been approved to do. If the city's position is that the 2004 zoning modification eliminated or

conditioned previously approved multif family entitlements, the city must identify explicit language in the action do doing so. It has not in four and a half hours. It never did and nothing in writing have they done that because no such language exists. Because the zoning ordinances restrict free use of property, Georgia law requires them to be strictly construed and courts will not read zoning actions broadly to create new limitations that were not there. applied here. And I'll conclude with this. Even if the city believes the 2004 action should have limited future development, that belief is legally irrelevant. What matters is that the zoning actually says what it actually says, not what the city wishes it had said. The city's position is an interpretation problem, not a zoning problem. What it is the city is attempting to do is not enforce zoning language. It is attempting to reinterpret history to reach a politically convenient outcome. There's no ordinance, no conditioning, and no adopted language stating that the multif family unit count was reduced. The remaining units were eliminated, future development was conditioned on a specific town center form. There's no language in the ordinance that says that. Instead, the city asked the board to infer those results from silence and context. Georgia law does not permit that. As the Supreme Court has made clear, local governments may not interpret their way out of zoning approvals they later regret. If the city wishes to change the zoning, it must do so prospectively through a lawful resoning, not retroactively through interpretation. This case turns on the burden of proof. Corta relies on existing zoning approvals. The city claims those approvals were stripped away. The burden is therefore on the city to prove the result with clear written zoning language. The city is not met and cannot meet that burden. Absent express revocation, the entitlements remain. And we hope that you will see it this way and rule in our favor. We're here to answer any other additional questions you all have uh while we're present.

Thank you, Attorney Hill. Does the city care to uh make a presentation closing argument? Yes, we do. Thank you,

chairman and members of the board. Thank you for your time this evening. I'm going to uh refer to a PowerPoint. Uh, a lot of these slides I showed last time, uh, but I'll go through them quickly. I added a couple, uh, a couple others, but let me, uh, first, uh, start off with where, uh, attorney Hillyard ended up. We're talking about the burden of proof. The, uh, the developer here is the appellant. This is their appeal. Uh so and and you were represented by a council. So I'm I'm I'm not too concerned about getting confused about who has the burden here. But it is the it is Corteer's appeal. If we can go to the next slide. So the the thing that we need to focus on is what is being appealed and what's the standard for that appeal. So the what was identified by attorney Hillyard on uh October 3rd, 2025. He wrote a letter and he he he wrote a cover letter and he also formally submitted his appeal. And so the appeal identified what the issue is that this whole appeal is about. It's a September 3rd, 2025 determination by Karen Tomminy. Okay. So we're going to look at what Karen Tomminy did on September 3rd, 2020 uh 2025. Uh but when we look at it, the two questions we have to answer are uh here in this highlighted yellow portion. Was her action based on an erroneous finding of a material fact or did she act in an arbitrary manner? Okay, I think we can take one of these two options off the table. Uh the the acting in an arbitrary manner that basically means she just made it up. I I I don't think anyone's going to accuse her of just simply making this up. So the question is going to be was she wrong? Did did she make a determination of material fact that she

was just wrong about? Okay. Can we look at the next slide please? Okay. Um the context here is Director McClendon's letter. So Director McClendon, he wrote a letter July 3rd, 2024 commenting on how many more multif family units could be built on this property. We look at the next slide. This is a highlighted portion. I think this is the most contentious portion of this letter. Uh and this is what he said. He said, "We have had the opportunity to fully examine your request and confirm herein that the approved zoning allows for the development to a total of 550 multif family units in the northwest quadrant of the subject property. That 350 multif family units have been developed and there remains the right to develop 200 multif family units in the northwest quadrant. Okay. So these the these comments, this is director McClendon having reviewed this zoning which is originally zoned 2001 Fulton County with a zoning modification in 2004. He looked at this he said this was originally approved for 550 multif family units 350 have been built. So of this entire development 200 more multif family units can be built. And can we look at the next slide please? Importantly, however, he did not say, "And now you can go build 200 apartments. Doesn't matter what the plan shows. Go build." The highlighted portion here says you have to, you know, well, I'll just read that whole sentence. thereafter subject to the presentation of a site plan with 200 multif family units to the department of community of department of community development as well as demonstrated compliance with all other conditions of zoning associated with the subject property. That's the key here. Director McClendon never misled quarter. He answered the question, how many more multif family units can be built here? He did the math and he's correct. there's 200 more multif family units can be developed on this property. However, he didn't say do it however you

want. He said there has to be demonstrated compliance with all other conditions of zoning associated with the subject property. This is part of that same letter. So again, this is the context for Karen Tomy's decision that's being appealed. If we can look at the next slide, please. Okay. Um, and right here, this is a quote from one of the affidavit that Carter submitted. Uh, I mean, we have the actual email, but this is an accurate quote, so I just use this slide. So, this is what Karen Tomminy said. Uh, on on September 3rd, 2025, she said this. Uh she said our team was doing some due diligence and we came across the case file for this matter which causes us to change our recommendation and get and she's looking at it from the planning department's perspective there. There there are a host of different departments in the city. They all look at it. They're looking you know everyone has their specialty. She has the planning specialty. So she's looking at it. Does it meet the different planning criteria? Initially they thought it did but then as she explains doing some due diligence came across the case file which caused us to change our recommendation. Okay. Again definitely nothing arbitrary here because she's going to explain her reasons. The question is was she wrong. So this is the comment if you cannot see it in Sages and Sages is the the internal electronic system that staff use to communicate with each other and to show uh changes in application status. This development does not match what was approved in the site plan for zoning petition 20001 Z0079. That's a 2001 zoning. The zoning case has this area designated as pod F, which is a town center that contains community services, commercial components, and residential components that contain lots, town homes, and assisted living facility. I'm going to try to go fast. Uh, next slide, please. Okay. So, this is what was approved in 2001. And this is absolutely critical that we understand something about what was approved in 2001.

Now the quarter has emphasized that in 2001 zoning condition 2A said that the site plan is conceptual only. Okay. And they interpret conceptual only to mean do whatever you want. It's it this is essentially they say this is irrelevant. I'm exaggerating a little bit. They're not saying it's completely irrelevant, but they're saying as far as like the design like where things go that this is conceptual only. You don't have to look at this again. As long as we get the number of multif family right, you don't have to look at it, but there's a part of this that we need to look at. And you're gonna you may have to squint. I wrote it down in the larger print for myself so I can read it. But where it says uh district F Town Center, if you see there on on the right hand side of um of this document says district F Town Center. So it tells you what's supposed to be in district F. Okay. Commercial components, retail, office, medical, plus or minus 334,000 square feet. Child care plus or - 11,000 square feet. Service station, general store, plus or - 5,000 ft². That's your commercial component. Community components, examples, YMCA, library, fire station, charter school, charter school. Residential components. Now, this is where we're going to hear what uh director McClendon was looking at, and he was right about it. Residential components, loft apartments, 200 units. There it is. So, that part is right. Town homes 50 units, assisted living 75 units. So that tells us I mean you you can you can move the streets around a little bit. You can reconfigure things a little bit. It's conceptual in that in in that regard, but when it tells you what's going there, there is clearly a commercial component. There's clearly these other components. And again, I mean, you look at the top sand town center live, workshop, play, it's supposed to be mixed use, not residential only. So um in 2004 there was a there was a resoning and the the zoning modification and the zoning

modification very important. Well can we look at the next slide please? Okay so this is in in in that 2001 original zoning. This is the site plan. It's it's part of the zoning condition 2A in 2001 said there is a site plan attached. It did say conceptual only, but it also said you've it's got to comply with all the zoning conditions. And then there's a lot of other zoning conditions. Uh, next slide, please. Okay, so this is a slide I didn't show you last time. We talked about this, but it wasn't in the presentation. This is the 2004 modification plan. So the uh Fulton County Board of Commissioners took this matter back up in 2004 and the only thing they changed was condition 2A. They modified condition 2A and this is how they modified it. They modified it by adopting a new site plan. Now it it has the exact same words as in 2001 describing it, but the plan is new. If we can look at the and and noticeably you'll see uh pod F shaded gray. So now let's look at the next slide. So this is where I blew it up so it's a little bit easier to see. What does it say in the conceptual plan? It says asis as per approved plan. Next slide please. This right here comes from the right hand side of that same document. And I just blew it up so it's so it's easier to see. Look at district F as is as per the approved original plan. So perfectly clear that in 2004 the board of commissioners readopted the 2001 plan for pod F. Uh next next slide please. This is what Carter's this is what

Carter has has um proposed. This is the site plan that uh was being considered by planning staff. This is the one that Karen Tomy looked at and said, "Wait a minute. This doesn't match the 2001 zoning." So one thing I want to emphasize here because I didn't mention this last time because we were so focused on the site plans and I think it's sufficient just to simply focus on the site plans to say yeah Karen Tomminy she was not she did not make an erroneous finding of material fact therefore the appeal should be denied. She looked at 2001. She compared it to this that these are not the same. 2001 contained all these different mixes of uses. This doesn't. Even if the number of apartments is correct, it doesn't have everything else. So, we are going to say from the planning perspective, this isn't ready to go forward. I will note that the actual decision to withdraw this happened prior to September 3rd, which would make this appeal untimely. But all the same, if we're focusing just on this on just on the email that Karen Tomy said on sent on September uh 3rd, 2025, she wasn't wrong. In fact, she was correct. But I need to uh draw your attention really quickly to something else. In 2001, when this was originally approved, there were other zoning conditions. Again, uh condition 2A dealt with the site plan, but there were others. Okay. In uh condition 1F, it talks about uh uh community services. Condition 2 A, then the big one we've talked about said, you know, abide by the following plan or abide by, you know, this attached plan. It's conceptual only, but it says must meet or exceed the requirement of the zoning resolution. What else is in the zoning res resolution? Condition 3A, district F is called a town center. But here's the big one. Uh in condition 3F and condition 3G, they

3F says, "No lot shall be allowed direct access to Boat Rock Road." 3G says, "No lot shall be allowed direct access to Reynolds Road." And this lot, which is one lot, it's one parcel, has access in violation of the zoning conditions, shows access to both Boat Rot Road, Boat Rock Road, and Reynolds Road. On that basis alone, this plan violates the zoning condition. You don't even have to look at the uh the site plans which we spent so much time looking at last time. You the the 2001 zoning condition 3F condition 3G. Uh this site plan is in violation. So again the question is was Karen Tommin wrong? I submit to you she was not. She looked at she compared these site plans. She said this doesn't match that other site plan. She didn't even comment on the violation with zoning conditions 3F and 3G. And I'm happy to answer any questions. Thank you so much.

Yes. Stay stay there. Does the board have any questions, Mr. O'Donnell? You tell me. I'm not talking about the just the whole question. Yeah. Exactly. Which two lots are you referring to have access to Boat Rock Road and Reynolds Road? I see where the subdivision in this plat has access, but I don't see a lot that has access. So, I don't understand what your argument there.

That's a great question. Thank you very much. That what you what you see is one lot because this is multif family that this is not uh broken into separate lots. And as uh Mr. Crocker stated at the the hearing in December, this is one lot, one parcel. Okay. If you go back to your table with your chart of the units. Yeah. No. So, this is from two that's the 2001 and this other one is the Can you go forward please? Right there.

And this the 2004. We all agree that there's 550 units allowed there, right? Apartments. Are you asking what's shown here or what's allowed in the the entire mixeduse development? The entire the entire mixed use. Correct. Where's the other 200?

Okay. Uh, great question. So, here where it describes district F, it says asis, as per the approved original plan. So, in other words, it's just holding everything same the same as it was in 2001. Can you go back a couple of slides? One more right here. Okay. And and this is the one. I apologize. I don't have it blown up, but this is so this is the 2001 original plan. And this is where you know, if you can kind of squint, you'll see at and in that box. Oh, perfect. Thank you so much. So, uh that's where it's that's where it's broken out. uh loft apartment homes 200 units. Thank you.

Any other questions? Thank you very much. Attorney Hill, you you want to come back up? Does anyone on the board have questions of Attorney Hill? No, I don't have any at this. No questions. the 2004 plan. Okay, I'm turning here. You can back down. Nobody has questions for All right. Uh if there are no questions from either side at this time, we'll entertain a motion from the board. I I would like to go ahead and make a motion to um discontinue the discussion. Uh

no, no, no. We don't need a motion for that. Just make a motion up or down.

Okay. So I thought we were closing the discussion. Okay. Um this has been a very very difficult situation and case for a lack of better words. um really listening to the community, listening to you gentlemen as well, listening to the city of South Fton. It's been a hard place to be in the middle of that pyramid. So, but I figured maybe we could come up with something and I'm hoping that we can meet in the middle um where we know everybody can't get everything, but hopefully we can meet somewhere in the middle where we can all have in agreeance. So, I would like to go ahead and make a motion. And my motion is with conditions. Um, I'd like to go ahead and make a motion to reverse the decision with conditions. Please hear me clearly. with conditions interconnectivity within pod F and across adjoining pods and some component of true mixed use as depicted on the plan in pod F. That

that's my that's my motion. Okay, I second. Okay, it's been properly moved and second to reverse the city's decision and to approve the plan with conditions as articulated. All in favor say I. I. I.

All oppose, nay. Hearing none, the eyes have it and the motion passes and the decision of the city is reversed. And your permit is approved with the conditions stipulated. It was it was we were at plat review. They had a misunderstanding about that. So it's a plat approval. Yes. Okay. Hasn't gone to the seat.

Yes, it has. They did. That the it it went to city council twice and it was pulled two times by council member. That's not what's being appealed tonight. Well, he's asking that was the question he was asking. What was the appeal tonight? Their understanding and my understanding was it was some of this. Can everything be done on the mic?

Hold on a second. We may need to make a motion to modify or reconsider. Can we get a motion to reconsider? I'll make a motion that we reconsider. Second. It's been properly moved and second to reconsider. All in favor say I. I. I.

All oppose. Nay. Hearing none. Motion passes to reconsider. The motion instead of issuing a permit should be to reverse the zoning interpretation of staff with the conditions you set forth.

I have a question. Um because it seemed to me that the vote that was just made was to Mr. Matthysse, you can correct me if I'm incorrect, but it seemed to me that the the motion that was voted upon was to reverse the decision of the city and to add conditions with conditions. So my question is, does this board have the authority to add conditions? The way I read your ordinance, I believe it does. Okay.

Yeah. To answer your question, the attorney, uh, in executive session had advised us accordingly and so, uh, we're operating with that understanding. Okay. All right. Yes. Thank you. Sure. Right now, hang on. Right now we got right now we have taken back and we're reconsidering the previous motion. If I can just answer your question may reverse or affirm wholly or partly or may modify the order requirement decision or determination.

Can you step to the mic for me? Right. The ordinance at issue sub paragraph F and it's ordinance number 5-60009 sub paragraph F says that this board in exercising its powers may reverse or affirm wholly or partly or may modify the order requirement decision or determination appealed from and to that end shall have all the powers of the administrative official from whom the appeal was taken. So under that I believe that they can impose conditions as a part of their approval process.

So if I can just clarify what he's reading, it's uh section 5-60009 hearings before the zoning board of appeals and it is um letter F uh for reference for the record. Ultimately, you're the city attorney. So,

I have an additional question. Um, so you've satisfied my previous question. So, my question is to the board. Um, the motion that was previously made was to um reverse the city's decision with conditions. Have those conditions been specified like what they are or is it it was recognized connectivity okay as was depicted in the original plan approved plan as referred to by Fulton County in their minutes in the submittals and the second was to

include the mixeduse component that was depicted in the original plan because as far as the apartments that were permitted in pod F It appears that most of those are marked as let me look at it so I'm clear. It says loftcommercial. Okay. All right. Okay. You you've answered my question. I appreciate it. So the modified motion to correct the issue about permits being issued would be to reverse the zoning determination made by staff

with the conditions she specified previously. Hang on before you make that motion. Dr. Black here. Let me hear from a question. I don't know if it's attorney M. Let me That's up to the chair. Go ahead. Identify yourself.

Ray Crocker, 55 Chaffen Road, Roswell, Georgia. So what I'm hearing is that podf our plan that we have completed design on and been through multiple rounds with this civil approval could remain with interconnectivity from our current plan into south into pod F and pod F somewhere on pod F there needs to be a commercial component to to meet the requirement of mixed use. Is that what I'm hearing the the requirement to be? I believe so. Yes. Yes.

So, our plans that we have now would remain with some modifications that would require interconnectivity to the south within pod F. We would then be required something out of our control to ask for an easement into the existing apartments. Is that what you are asking us to cut through? Can you step to the mic, please, sir? A little confusing on what that that you have to provide interconnectivity that means that the other side may have to come and meet. In other words, you may have to stub out that interconnectivity to be connected if when that additional area is developed.

Got it. That's understood. I I think that's achievable. We understand you can't we can't impose a requirement on you for somebody else's property. Right. Okay. Understood. Okay. So, we're not talking about interconnecting to the existing apartments. talking about into the whatever there is interconnectivity the remaining pod f that it was shown something was shown on the original plan I think that's the expectation I understand yes thank you

good evening Mr. Chairman board my name is Doug Crawford I am a I'm the land owner in this case of originally of the 225 acres I currently live in Mexico. I won't give you the whole address because it's about nine lines long, but we began this process in the year 1999 and we sp the property was originally zoned for 1,400 multif family units. Um we uh my partners and I and my land use consultants and I for sure uh were not interested in building 1,400 apartments single use uh on a 225 acre parcel. So uh we approached the community and uh over a period of 3 years and more than 25 meetings that included staff uh political leadership, our consultants, the Seismore group, uh the High Tower group uh and and others, transportation consultants came up with a collaborative plan to remove to jointly remove the 1,400 single-use u elements that was a part of the zoning of this property over the years. And and as part of that collaboration, instead of 1400 apartments, we uh each gave a little, took a little, and we created of the 225 acres, a mixeduse development. And uh the mixeduse development, it is really the definition of the 225 acres. Not pod C, not pod A, not B, not F, any of those. mixed use is the entire 225 acres. We were very successful early on in attracting some very first class

developers uh builders uh to do the single family detach component of the development 225 single family units. That was the first component that was developed. Subsequent to that, uh, we were able to find a developer that wanted to do the first phase of the apartments, which is in D, uh, D&E, I guess it says there, and those those were built. And then subsequent to that, we found a developer to build the 100 town homes. All of those properties are 100% occupied, either by owner occupants or by tenants. Uh we have spoken since then many many times with the leadership of Sant Town uh and including this evening and by and large these residents uh are very very happy with this development and I am extremely happy with it. I think it's extremely well done and it's the result of a very serious collaborative effort that included all of the stakeholders. I'm a little confused about u the motion on pod F because it calls for the inclusion of mixeduse components and of course there are mixeduse components throughout the development already. We do intend and would very much like uh to build retail additional retail on this track that that would make it a real dream that we had 25 years ago. the developers that are interested in doing that have not shown up. That doesn't mean we're going to stop looking for them. And I do believe that with the addition of u the 200 apartments that that effort will uh be expedited. We we'll have a much better chance. But I would point to you for clarification that there is a parcel that is not shaded but has frontage on Camp Creek

Parkway uh at the entrance to the property that is intended to be zoned for retail. And we think when that's reszoned it will allow um pro possibly a restaurant, a bank, but some really first class use uh retail use because of the frontage on on Camp Creek. that that's what retailers are looking for. They're looking for access, visibility, traffic count, those kinds of things. You put retail and other amenities interior to the property, virtually 100% of the time they fail. Uh internal retail is a disaster from day one. So I would like to pursue with the uh cooperation of the community and I'm already working with a advisory group in city of South Falton to create better retail and uh better access uh to focus on the 3 acre parcel with the frontage on Camp Creek Parkway. putting retail inside the the property in any portion of F uh will be a failure in my opinion. We will try. I would like to see it, but I I think it's it's asking for something that the uh the builder groups would not do. Uh so I'm a little bit concerned about that.

Let let me ask you a question, sir. Uh just one second. I I just had a question that uh was kind of obvious to me if uh you're the developer builder and you you know your industry uh why did you or why did your group submit something with commercial inside in the first place if you're standing here telling us that inside commercial typically fails? That's a great question. First of all, I am not a builder. I'm not a developer. I'm a planner. My background is in planning. I have a degree in planning for Yale from Yale and I've worked with some of the business. But you know the business is

well I I do know the business and and and the business. Well, first of all and I think it was answered tonight by your your motion is that this plan was conceptual. Uh all of us at that meet of those 25 meetings we had in 2000, we were dreaming about what this could be. We were all dreaming. I I don't mean to cut you off, but we keep hearing uh conceptual uh but uh you know when you sub submit something that uh has certain specificity to it, you know, to come back and and you know have the excuse of uh conceptual uh it it just misses the point for a lot of our board members. I can answer that question. Uh there are two very important uh people that are missing from these kinds of exercises. We had the politicians, we had the bureaucrats, we had planners, we had consultants, we had land owners, we had a pretty significant diversity of people that envisioned this plan. But there were two very critical people that were missing. And that is the builder, investor, equity partner, banker. because we can put anything in the world on a plan and be aspirational, which we were in this instance. Turns out that our aspirations were mostly realized. You look at that plan, 200 or so of the acres has been developed. Uh but the final component has proven to be very elusive. And that's because the equity partners and the lenders that will give the builders the money to do this are not showing up. and they don't they don't participate in the planning effort.

Mr. O'Donnell, this has kind of gone off the rails a little bit uh from what I was expecting at the moment. Uh, I'd actually like to make a a motion that we go back into executive session very briefly so that we can confer and be uh uh understand really what we're either approving or not. So my my uh my motion is that we go into exe executive session. Second. It's been properly moved and second to go back into executive session. uh for clarity. Uh all in favor say I.

I. All oppose, nay. Hearing no opposition. We uh motion passes and we're going to go very briefly back into executive session. I appreciate everybody's patience.

All right, we're going to go ahead and call the meeting back to order. Uh, this time I'll take a motion to come out of executive session. A second. Oh, I'm sorry. I'll make a motion to come out of executive session session. It's been properly moved and second to come out of exe executive session. All in favor say I. I. I. All oppose, nay. Hearing none. Motion passes. We are out of executive session. Uh, at this time, can I say two things?

Yes. At this time, we're going to give the floor to Attorney Mer. and I'm here, Ted Maker, here representing this board this evening. There are two points I think we need to clarify. I understand I'm not a developer. I mean, I'm just not. So, what can go, what cannot go, I respect what the gentleman to my left do on a day in dayout basis, including what the property owner said. The problem is some of what he was talking about in terms of what will or won't work is really more of a legislative decision for the city council. If there's something that needs to be changed on the plans that were approved in 2001, then those things need to be taken up within the context of a zoning application as opposed to you guys making changes to what's before you. Your review is really limited to what's been approved to date. I think that all the lawyers have that same agreement. Um, the second thing is while I too representing local governments get frustrated sometimes if staff makes mistakes, the reality is and I think that every lawyer in this room is familiar with certain cases where just because a staff may have decided something or made a mistake, it doesn't always bind the city. And in fact, there's plenty of cases that say just the opposite, that it emphatically does not bind the city. I'd never like it because that's time and energy that one could argue could have been spent in a better way. So, but at the same token, just because staff had rendered certain decisions or maybe thoughts along the way, it doesn't mean that the council or the city is a stopped from doing something or taking a different position later. And I think that's an important point to make. Now, I think that the board's ready to

All right. Given attorney Miker's comments, uh, Dr. Blackshere, you have the floor. Thank you. Um, considering all information that's been reviewed and executive sessions we've been through, I'd like to make a motion to resend the previous approved motion and set aside with a revised motion. I'll second that. It's been properly moved and second to set aside the previous approved motion. All in favor say I. I. All oppose. Nay. Hearing none. The eyes have it. That motion passes. Dr. Black Share, you have the floor again.

Thank you. I'd also like to make a second motion, which is a reversal of the zoning determination by the staff, but again with conditions. A connect to the existing access roads in pod E and remaining portions of pod F. B. Mixuse as depicted in pod F from the original plan. Second.

It's been properly moved and second with Dr. Black Chair's adjustments. So all in favor say I. I. All oppose, nay. Hearing none, that motion passes. All right. Unless there's anything else, staff, uh, I'll take a allimp important motion from the board. Motion to adjurnn. Please second. It's been properly moved and second to adjourn today's meeting. All in favor say I. I. Any oppose? hearing none. We are ajourned.