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Cheney Woods Residents Angry, Frustrated Over Oxford Academy Expansion

Some residents voiced an interest in changing the ordinance allowing daycares as a permitted use in residential zones.

Emotions ran high at an informational meeting organized by Smyrna’s Ward 5 City Council Representative Susan Wilkinson about the .

“We are a residential neighborhood and you have more or less tried to decide that the middle of Church Street is no longer residential," said Sandra McQueen, a Church Street resident. "My property values are going down because of this.”

“This is our lives you’re talking about!” shouted Bonnie Berry, a resident of Flagler Circle and one of the organizers of Concerned Citizens of Cheney Woods. “Quit hiding behind your silly rules! This is our lives!”

Berry and about 20 other residents of Cheney Woods and the surrounding neighborhoods assembled Thursday at the to voice their concerns about proposed plans to renovate a rental house on the corner of Flagler Circle that would be used as Oxford’s third daycare building. Smyrna City Administrator Eric Taylor and Community Development Director Ken Suddreth were there to answer questions. Ward 6 Council Representative Wade Lnenicka also attended the meeting.

Issues were raised over the increased volume of traffic, the daycare’s negative impact on property values and drainage issues. However, residents were principally upset about the circumstances surrounding an amendment made to a city ordinance concerning the R15 zoning classification and day nurseries in 2006.

Jimmy Smith, former Ward 5 City Council Representative, and his wife Cindy own Oxford Academy. Suddreth, who did not work for the city at the time, explained that in 2006 while Smith was still on Council, the body voted to add day nurseries as a permitted use under the R15 zoning designation provided that the property in question met certain criteria.

Exemptions for day nurseries in residential areas are sometimes referred to as “grandmother exemptions.” Berry’s real estate consultant Alan Aycock said at the meeting that other municipalities in the metro area have similar exemptions, though he argued they are more detailed and explicit than Smyrna’s ordinance.

Minutes from the July 2006 meeting show that the amendment passed 5-0. Smith and then Ward 4 Council Representative Mike McNabb were absent.

Cheney Woods resident Hazel Hale asked Suddreth why they were learning about the amendment after the fact.

“Was there a hearing before the city decided to zone it that way?” she said. “Why was there not a meeting like this then? It would seem appropriate don’t you think if we’re having it now.”

Suddreth explained that a public forum was not required because the zoning classification was not changing from residential to commercial; rather a text ordinance was changed to add day nurseries as a permitted use to the R15 zoning classification.

However, the minutes from the July 2006 City Council meeting show that the Council held a public hearing at that meeting concerning the amendment: “Mayor Bacon stated that this was a public hearing and asked for public comment. There was none.”

One resident asked Suddreth what needs to be done to change the ordinance. Suddreth explained that Wilkinson has already brought it up before Council and the Planning and Zoning Board.

“That process has started, but all I can do is encourage you to either send Susan an email to that effect,” he said. “You’re welcome to send me an email or you can come to the meeting and voice your opinion that you think it should be removed. What I hear you saying is you’d like that use removed from the ordinance.”

The approval of a text amendment to Section 703 of the zoning ordinance concerning day nurseries has been added to the agenda for Monday’s Planning and Zoning Board meeting. However, Suddreth said even if the ordinance is changed the Oxford Academy expansion would be grandfathered in because while Smith has not been officially granted a building permit, he’s already submitted a site plan.

“He’s grandfathered in on the very first submittal (…) once the process starts he’s in,” Suddreth said.

However, Aycock said he and the Berrys plan to take legal action to put a stop to the expansion.

“We’re planning to go to full court to get an injunction to stop this,” he said. “This is irreparable damage to the property values of the neighborhood. You can’t change this back.”

The Planning and Zoning Board meets Monday at 6 p.m. at Smyrna City Hall.

Do you have concerns about Oxford Academy's expansion? Share them in the comments.

Alan Aycock June 21, 2012 at 03:43 PM
excerpts of our legal letter to City and Council: As you know, this firm represents Donald and Bonnie Berry of 835 Flagler Circle, Smyrna Georgia with respect to their stated objections to the proposed expansion of the Oxford Academy along Church Street and onto Flagler. This objection is made more poignant by the observation that Oxford Academy is not an authorized use under the R-15 zoning category as Church Street is designated a “minor road” on the Transportation Plan and is not designated a major or minor arterial. As you know, Section 703.2 (1) requires such uses to be located on a major or minor arterial. Accordingly the current use should not have been allowed. It additionally has come to our attention that the current use covers 71% of the property. As you also know, Section 801 imposes a 35% impervious lot coverage requirement (regardless of the “use” of the R-15 property). Accordingly, the site is dramatically overbuilt with no apparent variances and has been illegal since its inception. As I am sure you are aware, a permit granted in violation of the existing ordinance vests no rights in its continuation and the use should be terminated immediately. Part !
Alan Aycock June 21, 2012 at 03:45 PM
Part II legal letter t is no defense that a building permit or license already has issued for the existing facility. “A permit issued for a use or structure which is forbidden by the ordinance is beyond the power of the officer to issue; consequently, it has no legal status, is invalid, and is itself entirely without power to clothe its holder with any legal rights thereunder.” 56 Rathkopf, The Law of Zoning and Planning, § 1 (1964) and cit. “A permit for a use prohibited by a valid zoning ordinance, regulation, or restriction is void, of no effect, and subject to revocation. This is true although the permit has been issued under a mistake of fact.” 8 McQuillin, Municipal Corporations, § 25.153 (3d ed. 1983). “The expenditure of even substantial sums in reliance upon a permit found to be void is generally held not to raise an estoppel against its revocation or against enforcement of the ordinance found to be violated by the use or structures maintained pursuant to the permit.” Rathkopf, supra, § 56-13. See Corey Outdoor Adver., Inc. v. Bd. of Zoning Adjustments of City of Atlanta, 254 Ga. 221 (1985). Georgia courts have held “that a permit issued for either an illegal use or an illegal nonconforming use is void; it cannot be used as an excuse to continue the use in violation of a zoning ordinance, and it does not vest rights. The conversation should be about the termination of the illegal use and not the unlawful expansion.1
Alan Aycock June 21, 2012 at 03:50 PM
Don Berry and I met with Councilman Welch today - we discussed all the issues openly and appreciate his interest and concerns. ********************************************************** We are awaiting our atty. meeting with the City atty. - we will keep you all informed.
M Jones June 23, 2012 at 10:44 PM
The City attorney, Scott Cochran, is very good friends with Jimmy and Cindy. They have been to each others vacation homes on several occasions through the years. ( know Mayor Bacon has also been entertained by the Smith's at their Florida home also). As far as "public" vote and Jimny not voting, all this is decided away from the viewing public, the televised vote is a mere formality. Also, to address the parents who say "how beautiful" Oxford is, yes, the facilities themselves are beautiful BUT there's much more behind the scenes than people are aware of.
BB June 29, 2012 at 02:37 PM
To everyone arguing their property values will decrease...guess what, they already did. and it had NOTHING to do with Oxford! Wake up! Also, the buildings are lovely and there's never been an issue with traffic. Try fixing up your own houses if you want to keep your property values intact.

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