Procedural confusion at Cobb zoning hearing

Cobb Commissioners at february BOC zoning hearing used in article about the proposed Jewish Community CenterCobb Commissioners at February BOC zoning hearing (photo by Larry Felton Johnson)

Details matter, and a brief whirlwind of confusion at the February Cobb County Board of Commissioners zoning hearing on Tuesday brought that into sharp focus.

Details matter in zoning hearings because the stakes are so high.  Residents depend on good land use and zoning procedures to help maintain the quality of life in their neighborhoods. Developers and landowners often have millions of dollars at stake on the outcome of zoning hearings.  Precise rules help to create a process where the rights of all parties are upheld.

The case was OB-40 of 2018.  It was a request to reduce the frontage of a property on Hadaway Road near Kennesaw so that the applicant could create three new lots.  The application had been submitted by John and Mona Loyd, and the attorney representing them in the zoning process was Garvis Sams.

The exchange at the zoning hearing began when Commissioner Keli Gambrill, who represented the district the property is in, said, “I would like to reject the request for OB-40 of 2018 to be continued.”

She then made the formal motion, and District 3 Commissioner Bob Ott seconded it.

“Just to clarify for the audience, I have gone back and watched the hearings from September and also December pertaining to this case, and it is my understanding that we just need to make a motion to either approve or deny. And I would like to go ahead and do that,” Gambrill said.

Cobb County Commission Chairman Michael Boyce said, “We’ve already heard this case, and it was tied 2-2. So the board policy is that we wait ’til the commissioner who is absent comes, and we voted on that I thought already.”

County Attorney Debra Blair said,  “We did, and when Commissioner Ott voted in December, the motion failed, so (former District 1) Commissioner Weatherford made a motion to approve, and then he revised it to a motion to continue. So we’ve already had the public hearing on it. So it’s a matter of we need to have a motion to dispose of the case. Because it was continued it is still pending before the board. So we have to have a successful motion to take care of the case. But we’ve already had the public hearing on it.”

Boyce asked, “So Commissioner Gambrill can make a motion to … what’s the right wording?”

“Staff continued this. I was told that a continuance was going to be requested today,” said Blair.

Boyce asked, “So why did the staff continue it when the board already voted on it? We voted to deny, right?”

“No, the vote was to approve, and it failed,” Gambrill said.

Blair said, “And then in December, Commissioner Weatherford made a motion after Commissioner Ott voted on the prior motion . So there were two motions voted on in December on this matter. The first was to deny for three homes, well, it’s a failed motion. The second motion was to continue it until February. Then, like I said, I was told that Mr. Sams was going to be requesting a continuance until March.”

Boyce said Sams might request it, but it would be up to Gambrill to make the motion.

Sams asked to speak. Boyce said that allowing him to speak was at the pleasure of the board, “…and I don’t hear that right now.”

Blair said that John Pederson, the zoning division manager, had informed her that the case had been advertised as being continued until March, and since the public had been told the case would be heard in March, there would have to be due process.

Pederson said the attorney who represents the opposition to the request had agreed to the continuance until March.

Boyce asked, “What about the commissioner, (Gambrill), was she informed of this?”

Gambrill said no, that she had just received a last-minute email. She said that even though there are ongoing negotiations, the hearing on the case had been closed, and that no new information should be allowed.

“I would extend the offer to Mr. Sams that if he would like to withdraw the case I will give that to you without prejudice, or it will come back in March just for a vote.”

Boyce asked why the case was advertised as a continuance.

Pederson said, “The applicant submitted the letter within the seven-day time frame to continue the case, and the opposition’s attorney accepted that outcome that it would be continued until March.”

“But I guess my question is: how can we continue something without the board?” Boyce asked.

Gambrill said, “The bigger concern to me is in September we had a failed motion. Under Roberts Rules it should have failed. Cobb County had another rule that said it could come back for a vote of the commissioner that was absent. It should have come back in October. It should not have been held to December. By holding it to December, it essentially allowed the applicant to go back and come up with a new site plan. Again, that is not what was presented in the vote that was started in September. So if he (the applicant) wants to present new information pertaining to the case, it needs to be brought back as a new application.”

Boyce said, “We are between a rock and a hard place. We advertised that it was going to be held until March.”

After a few more minutes of explanation from Blair, Boyce closed the discussion, and said the motion for disposition of the case will be brought at the March meeting.