An attempt to legalize a beloved backyard swimming lesson business sank before the Sandy Springs Planning Commission May 22 amid concerns it could open a “Pandora’s box” and ruin the city’s new zoning code. Not joining in the 4-1 vote was commissioner Reed Haggard, who was the source of the original complaint about Swim With Allison, and recused himself. Another commissioner later said it would have been 5-0 against if he hadn’t mistakenly voted in support.

The Planning Commission’s vote on the proposal, which would legalize certain types of backyard businesses, is only advisory. A final decision awaits at the July 17 City Council meeting.

Allison Dubovsky, owner of Swim With Allison, speaks to the Sandy Springs Planning Commission on May 22, arguing that her business is crucial to saving children from drowning. (John Ruch)

“Very disappointed. It’s not over,” said Allison Dubovsky, the business’s owner, after the vote. Meanwhile, she said, the city is allowing her to run the swimming lessons this summer pending a decision on the legalization. She said that is partly compensation for the city issuing her a business license for four years without ever being told the business was illegal under zoning, then suddenly yanking it in January. A city spokesperson could not be reached for immediate comment.

Allison Dubovsky operates the business in the pool behind her house at 640 Weatherly Lane, in a cul-de-sac in the exclusive Riverside neighborhood. Haggard, who is Dubovsky’s neighbor, previously said he fielded noise and traffic complaints about the business several years ago when he served as Riverside Homeowners Association president, and more recently, due to his work on the city’s new zoning code, realized the business is illegal. He asked city staff about it and they revoked her license.

Other neighbors say that Swim With Allison causes no problems, and Dubovsky says she has more than 950 petition-signers, mostly clients, in support. Dubovsky and her supporters – roughly 100 of whom showed up for the Planning Commission meeting at City Hall – have made increasingly dramatic claims that children will drown if her specific business is not allowed to teach them basic skills. That argument swayed some City Council members at a March meeting, where they requested a code somehow written to allow only her type of backyard business and sent it to the Planning Commission for review.

But at that same council meeting, Mayor Rusty Paul and City Attorney Dan Lee warned that it is impossible to write a code to essentially legalize a single business and that bad unintended consequences would follow. Similar concerns led the Planning Commission to recommend denial.

Commissioner Elizabeth Kelly said “there are many ways to twist the intent” and to create “unintended consequences…that will start to really deteriorate the [zoning] code.”

Haggard began the meeting by apologizing to the other commissioners, city staff members and everyone in the audience for what he called a neighborhood dispute that escalated. “I just wanted some peace and quiet in my back yard. That’s all,” he said.

Haggard said he chose to recuse himself, despite no legal requirement to do so. Before leaving the meeting, he said that, after months of some “not very nice” comments, that they say nothing about him while he was gone, and no one did.

The proposal

The city can’t write a code literally legalizing a specific business. So instead, planning staff tried to write something as narrowly tailored to Swim With Allison’s needs as possible. City staff planner Paul Leonhardt said one issue with drafting a code is the lack of models – no other city in Georgia legalizes outdoor home businesses, he said.

The proposal would make outdoor businesses a conditional use – meaning a permit, plans and public meetings would be required – in single-family residential zoning districts. Only “educational,” “recreational” or “instructional” businesses would be allowed, only operating in the side or back yards, and with no employees except residents of the house. “Nuisances” and unusual “machinery” would be banned. A minimum of four on-site parking spaces would be required, along with fencing or other screening.

The businesses could have a maximum of two students at any one time and a maximum of four per hour. The businesses could operate up to six hours per day within certain hours: 8 a.m. to 6 p.m. on weekdays; 8 a.m. to 5 p.m. on Saturdays; and no Sunday or holiday hours.

If the business had children students, general American Red Cross safety certification would be required; and swimming certification from a similar organization would be required for businesses like Swim With Allison.

The debate

“I want to start with number seven” – the number of children who drowned in Georgia last summer, Dubovsky said in her remarks to the Planning Commission, continuing the theme of her business as a vital safety resource. “I have one goal, and that’s to save as many kids lives as I can.”

However, she and other supporters acknowledged that there are other places for kids to learn swimming. An emerging issue of unintended consequences was reports of several other such backyard swimming businesses – possibly less beloved — that could seek legalization under the proposed code. And according to the Swim With Allison website, Dubovksy offers not only basic lessons at $375, but also training for experienced swimmers in such skills as strokes and diving at $195.

City staff raised a different sort of safety issue: There are state and county regulations governing the condition of public pools, but not of private ones like Swim With Allison’s. That means no oversight of safety and hygiene for such businesses.

The numbers of Swim With Allison’s customers remain unclear, as does whether the new code would help her, as she and some supporters have called its hours and other limits too restrictive. “This has turned into a big commercial enterprise, it seems to me,” said commissioner Craig Johns.

The concern for city staff, the Sandy Springs Council of Neighborhoods and the Planning Commission was whether allowing such businesses would legalize unwanted businesses and tear up a core part of the city’s new “Next Ten” planning and zoning policies. Single-family residential areas are considered “protected neighborhoods” of low-density, low-traffic uses.

“I feel bad about this,” said commissioner Andrea Settles, but said the denial was not a judgment about the swimming business. “What’s more important is, we have an obligation to protect those residential communities,” she said.

Commissioner Andy Porter said the proposed code has too many vaguely defined terms that will “pit neighbor against neighbor” and violate protected neighborhoods.

Commissioner Dave Nickles made the only vote against denial, saying his only concerns were improving the fencing requirement and how on-site parking would be enforced. But Nickles later said he meant to support denial and got confused by the language of the motion. He said he will notify City Council members about his actual advisory intent, which includes concerns about safety inspections and unintended zoning consequences.

“I made a mistake,” Nickles said, adding he thought about calling for a re-vote, but knew it wouldn’t change the result anyway. “I looked out at the crowd, said [to myself], “This thing went down 4 to 1.’ I didn’t want to put folks through that again.”

Update: This story has been updated with comment from commissioner Dave Nickles.