The Forest Park City Council is set to vote Monday night on whether to overturn a veto by Mayor Angelyne Butler of how the Zaxbys restaurant slated for the corner of Main and College Streets wants to handle stormwater.

The council’s vote could be setting up the city for legal trouble and environmental fines.

The veto

In a memo to council included in tonight’s agenda packet, Butler explained why she vetoed the council’s February 6 approval of Zaxby’s plan, which did not comply with Clayton County Water Authority requirements.

According to Butler, the developer is “responsible for ensuring compliance with all applicable stormwater regulations as waived. [I]f they fail to maintain the stormwater controls the city of Forest Park is likely to become responsible for them.”

In other words, cutting Zaxby’s a break on stormwater requirements could mean the city has to fix any problems. That could include fines and penalties from state environmental regulators. It also could cut off the city’s access to shared revenues from the state and revolving funds for capital projects, as well as “increase cost to residential taxpayers to maintain the stormwater controls for failures of private developments.”

The Forest Park Development Authority sold the site (and the City Council signed off on the deal in January 2021) , which was made up of several smaller parcels, to a developer for $300,000. At least two fast-food chicken restaurants—Chick-Fil-A and Kentucky Fried Chicken—as well as Wingtopia in Jasber Plaza are within walking distance of the site, which will anchor Main Street’s redevelopment.

Clayton County Water Authority logo

In July 2021, according to the Clayton County Water Association, CCWA had approved Zaxby’s stormwater plans but the company did not follow through on those. CCWA put “conditions” on the site, which the city says Zaxby’s “is unable to fulfill.” So Zaxby’s asked the city for a waiver letter to give to CCWA so it could get water management permits.

Joey Clanton, the Zaxby’s owner, said he and his partners were introduced to Economic Development Director Bruce Abraham about three years ago.

“We found the sites. We combined four lots on Main Street,” Clanton told the council February 6, “had a plan, went to the ARC [Atlanta Regional Commission], went through several things, intermissions of what we were planning to put there, and went through the process which we normally go through for getting permits before actually closing on the site. We had the city permits, closed on the site, submitted it to Clayton County [Water Authority], and they came back. We had to submit again a different change, which took away about roughly 15 parking spots, which was a main concern for the ARC. And the cost inhibited from what we had planned what the cost was going to be for the project. It just made it—it’s not feasible. It’s really not, for what we had to meet for Clayton County [Water Authority], and that’s why we’re asking for this waiver.”

What’s the issue?

Adam Price is an engineer with Falcon Design Consultants, which the city asked to review the plans.

“Per your IGA [intergovernmental agreement] with Clayton County Water Authority, we do not review stormwater requirements,” Price told the council. “We review erosion control, general engineering matters on the plans. So, after one or two submittals, we approved the plans from an engineering standpoint on behalf of the city. I was contacted by Mr. Abraham and James Shelby, and asked to review the stormwater report produced by, uh, I guess, Joey’s engineer, and, you know, give an opinion on it. So we did review it, and there was actually two reports submitted to us. One apparently was the initial report that they had submitted to the Water Authority, the second was the revision that the Water Authority had then eventually approved, but the one where they came back and gave their financial analysis said that it was not feasible.”

After analyzing both reports, Price said, “in our professional opinion, the original report actually more closely followed your ordinance than the one that was finally approved. Not to get too technical, but detension requirements are the main focus of stormwater, usually. Now it’s gone off into water quality requirements and so forth. But the detention requirement was not even met in the final study that was approved, which greatly concerned us because that is a state law. You cannot increase post-development flow onto an adjoiner higher than what it was pre-developed, not developed at all. And that is being done in the current approved sequence.”

Noting the ordinance’s reference to the Metropolitan North Georgia Water Planning District‘s “Practicability Policy for Stormwater,” Price said, “What that means is, ‘Reasons to Waive a Requirement in the Stormwater Manual.’ So there’s really only one requirement they’re asking to waive, the other two they’re meeting.”

That, he said, is because the site is not big enough to meet the state’s requirements.

“This is a regular occurrence,” Price said. “This was just enacted about two years ago, and it is causing big problems” for small businesses. “Their reason for asking for the waiver, in our professional opinion, met the [city] ordinance, which I why I advised Mr. Abraham and Mr. Shelby that yes, if I were doing the stormwater review on your behalf, then I would agree with their letter and waive that one requirement.”

Councilwoman Kimberly James said, “I definitely want to make sure we can move forward and approve this.”

Councilman Dabouze Antoine added, “Likewise, we applaud you. You’ve been here since 2014, and this is what I’ve been champion for. We’re in the largest city in Clayton County. There is no Walmart, no Kroger’s, no Zaxby’s, no anything, basically. We actually go to Lake City, Morrow to do most of our business and this red tape shouldn’t be here. And to me, this is a no-brainer. We’re trying to welcome more businesses, not push them away. So I’m definitely for it.”

Councilman Héctor Gutierrez asked, “Why did y’all take away the grilled chicken sandwich? Just kidding. I would have really appreciated a visual. So you’re saying that they’re meeting two of the three requirements, and the last one seems to be that they don’t have the space to have this?”

Price explained, “There’s three things. Detention, holding back stormwater from post-development to meet pre-development or less, which you don’t want to flood your neighbor, okay? They’re meeting that. Water quality requirements, which is you’re basically cleaning the water from asphalts and runoffs from your paved surfaces and your rooftops, they’re meeting that. The third thing was the enacted ordinance I mentioned, about two or three years ago, it’s called runoff reduction. And basically what it is, it’s designed to—you want more of your stormwater to infiltrate into the ground. Well, as an engineer for 20 years, that’s a great thing to have if you’re near the beach. So imagine you’re near the beach, and you’ve got a cup of water. And you pour that water on the sand, what happens to it? It goes down into the sand, you don’t see the water on the surface anymore, right? You go out front here. and you scrape off some of your Bermuda grass and you’ve got red dirt under there, it’s called red clay, which is what most of Georgia is, and you pour that water on top of that red clay, you’re gonna have water sitting on top of it. Because it doesn’t infiltrate. It sits. So runoff reduction wants you to infiltrate it. One of the measures to bypass runoff reduction and issue a waiver.”

He added that he is authorized to issue such waivers in other cities, but that in Forest Park, “You guys have to do it. Because [CCWA] through the IGA, they’re reviewing it for you. And they run your stormwater program.”

Watch the Feb. 6 meeting

YouTube video

Councilwoman Latresa Akins said, “We get so many questions: ‘When is Zaxby’s coming? When is Zaxby’s coming?’ Like [Antoine] stated, we want to invite businesses in. We don’t want to make it difficult. So I definitely am in favor of approving this, to waive it.”

Councilman Allan Mears said, “Well, I’ve got two problems….if we pass this or move forward with this, we’re setting up a precedent for other people that’s wanting to come up and down Main Street. We shouldn’t be held responsible for the runoff water if something does go wrong. The way I understand it, if we go with the county’s situation, then it’s their [Zaxby’s] problem. Now, I’m glad to see y’all here, and want you here, but what happens in two years, hypothetical number, two years y’all decide you can’t make it here and y’all leave? Well, we’re stuck with the runoff problem that didn’t satisfy the county, but it helped y’all to stay here during the period of time, so then Forest Park’s responsible for it. And I just don’t want Forest Park, in mu tour of duty, to be held responsible for a lot of problems on down the line after I’m gone. Because it will inevitably come back to the city to take care of if we make concessions on variances. You understand what I’m saying? I want y’all here but I think you need to work out some other way, or some way to get everybody happy on board that Forest Park won’t be held liable for a situation that may or may not ever happen.”

After the city bought the old Fort Gillem, along with several toxic dumpsites on the property that needed remediation and will require decades of monitoring, Mears and Butler made it abundantly clear that they do not want to open the floodgates to potential stormwater issues on Main Street.

“Waiving stormwater requirements for this development would set a precedent,” Butler warned the council in her veto letter. “It is plausible that a matter of this nature may arise again. If the analysis for granting the waiver otherwise complies with the requirements of the Georgia Stormwater Management Manual, the City of Forest Park has no internal guidelines, matrix, standard, or legal basis for NOT granting a future waiver. The absence of a uniform set of practices will have legal ramifications.”

Only two options for stormwater engineering were presented to council, Butler wrote.

“Zaxby’s proposed a less expensive option that did not meet all the requirements. Simply choosing this option without exploring other potential options sends the wrong message to future developers. Alternative options with the Clayton County Water Authority should be explored.”

Another possibility, Butler suggested, could be a public-private partnership around parking issues and sharing costs to bring the project up to standard.

Butler urged the council to consider exploring other engineering options.

Tonight’s work session starts at 6 p.m. and the regular meeting is at 7 p.m. at City Hall. Also up for consideration: guidelines on how to spend ward money. A memo in tonight’s council packet reads, “We have been asked to review and prepare a set of guidelines regarding the usage of the discretionary funds and Capital Outlay Funds each Councilmember is entitled to spend in furtherance of their duties as a member of the City Council. These guidelines were requested to be brought forward for discussion during the FY22-23 budget talks in order to clearly define acceptable uses of Regular and Capital Outlay Ward. Per Council’s direction to the City Manager once a policy was approved Capital Outlay Ward Funds would be released to members. In the September 6, 2022, City Council Meeting there was disagreement with the section regarding “donated funds and goods”. This section has been removed from the policy and represented to council on at the December 5, 2022, Regular Meeting. The motion was made to approve the new guidelines as presented but died due to lack of a second to the motion. Since there was no additional guidance approved, Capital Outlay funds were still being held. The City Manager is seeking councils’ direction to either allow use of or continue to hold these funds under the guidelines that was presented as a memorandum by the City Attorney to council in December 2020.”)

The council will vote on whether to exercise eminent domain to seize property at 314, 318, and 320 Forest Parkway, owned by Winton E. Bowman of Canton, for the new City Hall on Main Street. The city had offered $1.6 million but Bowman turned down that offer.

The city also needs a new fuel management system due to a lightning strike, will vote on approving two city welcome signs from Lite Rite Signs.

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