Sandy Springs’ new zoning code won city Planning Commission approval July 20 – with one big policy-changing request and one dissenting vote over the haste to approve the still-unfinished document.
The policy request would reverse the code’s proposal to wipe out conditions, such as height limits or landscaping, attached to rezoning approvals for projects that have yet to be built. Such slate-wiping has been among the major public concerns.
The Development Code, as it’s formally called, next goes to the City Council for a hearing and possible adoption on Aug. 1 – much sooner than originally scheduled. The council is pushing to maintain that schedule, officials said, and code consultant Lee Einsweiler said councilmembers want the code in place before the November election and any turnover in membership. Officials said an updated draft will be available July 26 – six days before the council hearing.
While the draft is still rough, “We’re done” in terms of writing the actual code and policies, Einsweiler said, aside from any changes the commission and council want. The remaining work is “style and clarity,” and finishing the zoning map.
However, the code’s unfinished condition drew the commission’s single “no” vote. Commissioner Andy Porter noted that members received an “errata sheet” of about 45 corrections and amendments “at 2:09 this afternoon,” and no copies were available to the meeting’s audience.
“I find it impossible to sign my name to this document,” Porter said, adding that he could not understand why the city couldn’t wait two or four more weeks to finish the document. “I don’t think the public has been given enough time to review this stuff … At the very end, we excluded the public, and it doesn’t feel right.”
Most other commissioners also expressed similar concerns, but also said the content is largely solid and that it is better to keep the process moving and have a chance to make recommendations.
“I personally, as a Sandy Springs resident, would rather have this than the piece of garbage we have now,” said commissioner Andrea Settles.
Commissioner Reed Haggard agreed, saying it’s time to “get out of this limbo land … I think it’s very good. It’s 99 percent there.”
Public comment from the large crowd was similar to that at a previous Planning Commission hearing last month. The overall theme was satisfaction with the overall code and concern about zoning of some specific properties and approaches to some categories, such as gas stations. One resident spoke in favor of the code’s proposed affordable housing mandate and another supported its “workforce,” or middle-income, housing incentives.
Some property owners continued advocating for specific new zoning designations to benefit their redevelopment plans. A surprise newcomer was Life Center Ministries, a church at 2690 Mount Vernon Road on the Dunwoody border. The church, which has had noise and other complaints from neighbors, employed attorney and former City Councilmember Chip Collins to advocate for a higher-density residential designation so it can move and sell the 6-acre property.
The commission declined to weigh in on such zoning designation proposals. Instead, it recommended that the City Council closely examine all such proposed changes, with input from neighbors. Assistant City Manager Jim Tolbert also promised to put a special map on the zoning code website (thenext10.org/zoning) showing proposed changes sometime before the Aug. 1 City Council meeting.
The speedy review process also remained a concern expressed by residents and developer attorneys.
“It’s a good document, but it’s not done,” said Trisha Thompson, president of the Sandy Springs Council of Neighborhoods. “We want your complete scrutiny of the document.”
The commission recommended approval of the new code with several suggested changes. One call was for two formal reviews of the code after it goes into effect – which Einsweiler will return to do in person – over six months; the current schedule calls for him to return just once, three months later.
In addition to that formal review, whenever the zoning code is adopted, there will be a 30-day wait until it goes into effect, so that the city can prepare and make further tweaks if necessary, Tolbert said.
Some other suggestions related to ongoing debate about whether and how to allow gas stations to be redeveloped or relocated. The suggestions were to ensure a 50-foot buffer between gas station pumps and residential areas, and to clarify what a code provision allowing “upgrading” gas stations means.
In another casualty of the speedy process, the commission was slated to vote on an amended version of the Comprehensive Plan’s map, but the city asked permission to withdraw it because it is not ready. The Comp Plan is a land-use plan and vision statement, already approved last year, that is the basis for the zoning code. It includes a “Character Area” map showing general types of uses, which the separate zoning map then turns into specific zoning. But in some cases, the zoning changes require a reverse change to the Character Area map, which need formal approval at some point. Tolbert said that he had expected the zoning map to be final enough to update the Character Area map as well, but that schedule didn’t work out.
The clean slate debate
One goal of the Development Code is to make a clean slate for the new zoning on properties by wiping away any old plans that were never built. Because the city incorporated only in 2005, it has many properties that were rezoned under Fulton County code, sometimes decades ago. The idea is to get rid of those and let the new code dictate what is developed. In addition, the intent of the code is to simplify zoning decisions and reduce haggling over mitigations.
Two types of zoning allowances are proposed to be wiped out entirely: “conditions” and “entitlements.” Both were debated by attorneys at the Planning Commission meeting.
Conditions are limits or improvements that a developer agrees to in exchange for rezoning. The conditions are often negotiated by neighbors. The homeowners associated for Autumn Chace, a neighborhood on Barfield Road, is among the opponents of wiping out conditions. Jamie Lyons, an attorney for the association, said it negotiated strong conditions, including height limits, on an office development proposed at Barfield and Mount Vernon Highway.
Lyons said it’s “simply wrong” to let a developer build a project yet “walk away from all conditions” that won the approval to begin with. It also “tells neighborhoods to never compromise again,” she said, because the city might take away their mitigations anyway.
Commissioner Dave Nickles agreed that the city’s approach should not say, “We got a new sheriff in town and those things don’t count anymore.” The commission agreed to his recommendation that all existing conditions more restrictive than the new zoning code will survive. That would include buffers between properties, green space donations and large-scale traffic-related mitigations, among others. The suggestion is that such conditions could be removed only after Planning Commission and City Council review.
Tolbert and Einsweiler said that if the council agrees to keep conditions alive, that’s an easy change to make in the text of the code. However, Tolbert said, it could be hard to administer in practice because the city often has trouble figuring out what the precise conditions were for Fulton County rezonings dating back decades.
Meanwhile, the wiping out of entitlements was left as-is by the commission. Attorneys who represent developers made early warning signals that wiping out entitlements may trigger lawsuits on the loss of the value of property. For example, a property may currently have an entitlement for a yet-to-be-built 30-story tower, but the new zoning might allow only 10 stories.
Woody Galloway, a prominent zoning attorney, cited four separate properties with entitlements for tall towers that, until recently, had similar treatment in the draft zoning code. But, he said, those zoning designations all “inexplicably” changed to lower-height and lower-density categories in the latest draft. Such sudden, unannounced changes have been another controversy in the fast-moving code-writing process. He called that a “taking” of economic value, which is legal terminology for a cause to sue.
City officials pointed him to a section of the code called “beneficial use” – another legal term. The section essentially sets up a way for developers to appeal the loss of entitlements to the City Council instead of immediately going to court. Einsweiler that since the section’s intent is fending off lawsuits, the Planning Commission can’t have much direct say in its text, because that discussion “unfortunately has to occur behind closed doors…due to the potential for litigation.”
Another prominent zoning attorney, Carl Westmoreland, spoke skeptically of the “beneficial use” section, calling it a “very creative roadblock for [legal] appeals.” He said that, while it mentions the wiping out of old, pre-cityhood Fulton County entitlements, it leaves unclear what a developer can do about losing entitlements created under the current city code.