JOHNS CREEK, Ga. — For the second time, the Johns Creek City Council failed to pass a change to the city’s zoning procedure that the city attorney says conflicts with state law.
After nearly two hours of discussion Dec. 9, the final vote was 6-1 to deny the change, with Mayor Mike Bodker casting the lone vote in favor.
The policy in question deals with reinitiating a previously denied land use petition. Under the current code, a landowner must wait 12 months and demonstrate that the proposed land use is “significantly different” from the previously denied petition before they can reapply.
The policy requires a developer who wishes to reinitiate a previously denied land use petition to first come before the City Council, and the council votes on whether the new plan is significantly different.
If it is deemed different, the petition goes through the regular zoning process and would eventually return to the City Council for approval or denial. If the plan is deemed not different enough, in theory, the petition would die there.
However, Assistant City Attorney Ron Bennett has advised that to reject a zoning petition before it goes through the regular zoning procedure opens the city to a lawsuit. State law requires cities take certain steps before making a zoning decision, like holding a public hearing and posting notices in a local newspaper.
“When you decide something isn’t significantly different, you have foreclosed that applicant from ever having the opportunity to file that application,” Bennet said. “You have definitively said you can’t use your property in the way that you are proposing, and you’ve done it without any due process.”
To fix the potential conflict with state law, the City Council reached consensus in work session to remove the “significant difference” language and to extend the waiting period to 18 months.
This proposal drew opposition from many Johns Creek residents. Opponents argued removing the re-initiation clause would lead to community fatigue because the same zoning cases would apply again and again.
The Johns Creek Community Association, an organization that collectively represents local homeowner associations, opposed the proposed change, as did Preserve Johns Creek. The Planning Commission recommended denying the amendment in a 4-2 vote.
Some council members said the residents’ fatigue fears were unlikely to become a reality, because the 18-month waiting period would encourage developers to bring their best plan the first time they apply, or else move on if they are denied.
Bodker said keeping the current policy is actually worse for the residents. Under the current policy, the same case could keep coming up every 12 months, because the council has no choice but to allow them to reapply. Under the proposed change, residents would have an additional six months of reprieve.
“Keeping the language, I think actually creates the very concern I’m hearing the public express, which is what I call resident fatigue,” Bodker said.
In the past two years, there have been three cases in which a previously denied property owner requested to reapply. All were allowed.
Three residents spoke against the proposed amendment during the public hearing, although one was in favor of the change, former JCCA President Marybeth Cooper. Cooper recently stepped down from her position to run for City Council, but while president, she asked the City Council to fix the re-initiation clause on multiple occasions.
“Council has sat on this issue for 18 months since you were told it is illegal,” Cooper said. “The first attempt to remove the amendment failed because this council failed to provide a viable alternative.”
The council previously considered changing this text in the zoning procedure in June 2018. Several residents spoke against the change then, and the decision was tabled.
During the debate, Councilwoman Stephanie Endres repeatedly tried to steer the conversation to talking about a unified development code, arguing that the council needed to comprehensively reevaluate its zoning process.
“We keep putting band-aids on different symptoms, but we are truly not addressing the overall cause,” Endres said.
A unified development code essentially combines all zoning and development regulations — such as design standards, sign regulations and stormwater management — into one document to create clarity for developers and landowners.
“It has no impact on a re-initiation clause,” Community Development Director Ben Song said.
The American Planning Association says unified development codes are especially beneficial for communities experiencing rapid growth, can provide stakeholders more predictability in the development process, but can be timely and expensive to produce.
This spring, when the council ranked its priorities for the Community Development Department, a unified development code placed in the middle of the list. Changing the re-initiation policy ranked fourth.