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July 21, 2022
Courthouse, Main Courtroom, 16001 Barnesville Street, Zebulon, Georgia
Click here to see the agenda for the Board of Appeals meeting.
Board of Appeals members were present as follows: Ron Snowden, Chair. Scott Huckaby, Vice-Chair. Members Bonnie Byrd-Gardner and Tricia Gwyn.
I. Call to Order
II. Pledge of Allegiance
III. Approval of the Agenda - (O.C.G A. § 50-14-1 (e) (1))
IV. Approval of the Minutes - (O.C.G A. § 50-14-1 (e) (2))
a. Approve June 16, 2022 Board of Appeals Minutes
V. Unfinished Business
a. APP-22-01. Tom Morgan is requesting an appeal to the administrative action by the zoning administrator with regards to a letter of determination written pertaining to right-of way and the 25’ state water buffer at the Flat Shoals Bridge at the Flint River (entrance to the Shoals Subdivision). The appeal is being heard pursuant to Section 156.25 of the Pike County Code. Commission District: 2, Commissioner: Tim Guy. The public is invited to attend to speak in favor or in opposition of the request. The BOA will have final decision on this appeal. This Item has been Postponed until the July 21, 2022 Board of Appeals Meeting.
Planning and Zoning Director Jeremy Gilbert advised that Tom Morgan is appealing the decision that Pike County made to remove the rocks/riprap that was placed at the edge of the Flint River. He went out and investigated this at the end of January including measuring the location of the rocks and said that it was determined that the rocks were in the 25 foot state water buffer as well as being in the public right of way (ROW). Nothing is allowed in the Pike County public right of way without permission from the Pike County Board of Commissioners. According to 153.04(c)15(a) of the Pike County Code of Ordinances, the 25 foot state water buffer is established and is to remain undisturbed unless it is allowed in the code. He said that at the time he investigated, the rocks were approximately 23 feet from the water's edge and were in violation of code.
He said that a letter was sent to Mr. Morgan on February 2 requesting that the riprap rocks be removed from the ROW and 25 foot buffer by March 3. A follow up visit was made after the March 3 deadline. The riprap had not been removed. A second letter went out on March 7 requesting that the rocks be removed or Pike County Public Works would remove and store them. The deadline was March 12 which was an error and should have read Monday, March 14. A meeting was held on March 15 in the County Commission Office with County Attorney Rob Morton, County Manager Brandon Rogers, P&Z Director Jeremy Gilbert, and Tom Morgan to discuss the issue. Morgan advised at that time that the rocks were placed there for erosion purposes and that he believed that the rocks were in the state ROW and not the county ROW. However, the rocks were not approved or an authorization given to install the rocks. They were not installed according to a state regulation either according to Gilbert. He advised that the rocks had been removed prior to the meeting that morning. [Note from the Editor: This is documented in articles written by Pike County Times. Click here to read, "BREAKING NEWS: Riprap Removed from the Boat Ramp at Flat Shoals Part 1" and "BREAKING NEWS: Riprap Removed from the Boat Ramp at Flat Shoals Part 2." These articles are in date order from the bottom of the page.] The area where the rocks were removed was seeded and straw was placed there as well as hay bales placed to stop erosion. The applicant has submitted an appeal that has been given to all of the members of the BOA. The applicant included some exhibits. It is Gilbert's recommendation that the BOA hear the request, hear his appeal, and uphold the decision of the county that the rocks were located in the ROW as well as the 25 foot state water buffer.
Chairman Ron Snowden explained that there is a 10 minute limit for each side on presentations total. He advised to pick someone to speak for everyone or have multiple people speak within the 10 minutes.
Tom Morgan walked through the exhibits. Measured 25 feet to the low water mark. Each section of the HOA fence is 8 feet from post to post. The rocks were 24 foot riprap drainage control structure. Open Records Request (ORR) from 2016. Concerned about erosion and sedimentation and complained to the EPD which sent this along to the county. The upstream side would not need a variance. Storm water discharge discussion with the EPD. This was before the rocks went down in 2016. The rocks were approved by the state without a variance or permit, and the county was advised of this. Georgia Law talks about drainage structures: OCGA 12-7-3-7. Riprap is considered part of the exemption in state law and allowed within the state buffer. He also presented a 1957 plat. The bridge was constructed beyond the low water mark of the Flint River. There was an approximate additional 25 feet of state right of way even after the bridge was constructed. He said that the state of Georgia controls all bridges and not the county. He has the original plat from the surveyor. He showed other rocks in a right of way. He asked, Why were my rocks picked up five months after placement and not other rocks on the right of way in the county? He showed a picture of people canoeing there. He was stopped before he finished because the clock went off on his 10 minutes to speak.
PUBLIC COMMENT.
IN FAVOR OF THE APPEAL. (Against the county's decision to remove the riprap/rocks.)
[Note from the Editor: If I have names spelled wrong, please let me know. I did not get a copy of the list of names and have not seen a post agenda.]
Shirley Hurd. Resident since 1969. Resident in the Flat Shoals area since 1972. Her late husband and family owned the Shoals since the land grant. The erosion area shown on the picture. There has never been a boat ramp there. There was one of the other side of the fence that was private owned. This boat ramp was put there after the fact. EPA came in after the sale of Flat Shoals. The rocks are where the original road entrance is in the area of where the rocks are now. She has photographs but didn’t bring them. She emphasized that the boat ramp was never where it is now but was on the other side of the fence. We have in the last 50 years fought with many people and the county about tearing down the fence about the boat ramp that was privately built and owned by her husband's uncle. I don’t have any qualms with anybody kayaks and fishing. All they had to do was ask. But so many want to pitch a stink about the rocks put in for erosion. Where are the people parking? On her property across the road or on the public ROW. People couldn’t get out of the subdivision because of people parking there. We worked hard to take care of this family owned and operated property. I’m sorry if they feel like they are being hindered from doing what they want to do, but please leave it like it is.
Surveyer Phillip Flynn. He has seen the area where the riprap was placed. In his opinion, this was in the state of Georgia’s ROW for the bridge. The DOT/State Board of Roads in 1957 acquired the ROW for Flat Shoals Road and the bridge crossing the river in 1958. Based on that picture, that riprap should have been in the state ROW. In his opinion, the riprap that was removed should have been within the state ROW that the DOT should be maintaining.
Jason Elberry. When the Shoals subdivision was original built and designed, the EPD was contacted about erosion when the subdivision was constructed for the driveway. The EPD told them that they need to place 2 runs of riprap inside of the ROW. At the time, the county came in and removed it then too even though it was within state ROW. Over the years, the county has come in and torn down the fence. The state said to put the fence exactly where it is at on the state ROW ends and private property begins so the rocks were within the state ROW. The original plat of the bridge shows where the pasture road is, and it comes out where the driveway is now placed. What you will not see on the plat is a boat ramp.
Rhonda Morgan. (She had one minute to speak.) I live at the Shoals and am married to Tom. I believe it was the day after the riprap was installed, Pike County issued a stop work order on the driveway so we have abided by the stop work order so we had to leave everything like it was. The county stopped the work. On the day of the second letter, Tom was out of town.
The time was ended.
[Note from the Editor: On July 22, 2022--the day after this meeting, Director Jeremy Gilbert issued a letter to Tom Morgan which served as a notice from Pike County Planning and Development that the Stop Work Order from October 29, 2021 "has been lifted and work can commence again." Morgan was instructed to contact Public Works "for any inspections that may be required upon the completion of the driveway" and to contact Planning and Development if he had any questions. Click here to read, "BREAKING NEWS: County Issues Stop Work Order at Flat Shoals" from 11.1.21 and "BREAKING NEWS: Follow Up on Flat Shoals" from 11.6.21. ]
AGAINST THE APPEAL (In favor of the county's decision to remove the riprap/rocks.)
Dennis Teal. He's used the Flint River all of his life. This isn’t about erosion. This about stopping people from using the river. He said that if this was for erosion, it would wash out the subdivision side instead of the road side. It’s all about access to the river. He said that the rocks should have been removed and the other barricade (the driveway) too. If you go to Hwy 36 bridge at Pobiddy, there is a beautiful access there. He said that he thought that every river access is supposed to have an access for rescue. He remembers when the other side of the bridge being open before it was shut down. If someone will fix it up nice like the other bridges, with the laws being enforced by DNR or the Sheriff’s Office, so be it. It's all about access to the river, and people no longer have access because it's been bought up. The river and the access were there before the subdivision. The state has a right of way. Enforce that. The state overrides the county.
Cherry Thomas. 72 years old. Her grandparents were friends with Knotts who had the land grant. Ever since she was a kid, there was an access there that was used by everybody. She thinks that there is a question of prescriptive easement. She thinks that if this is closed, the county could be questioned on this because you can’t block access to cemeteries or driveways that have been there for years. Same goes for the river through an easement. She said that she respects people's private property and that nobody has a right to get on anyone's private property, but if there is an easement that has been there it can't be closed according to the law.
Rachel McDaniel. Thank you for hearing us and serving the county and protecting citizens like you should. The stop work order on the driveway is a little bit of a crazy thing to say because they got an easement from Arc Builders for 50 feet of the southern border of the property, and I don't know what they would build there, but they have a really big nice driveway to get to it. She talked about access around the rocks because she has been there and she emphasized that there is no way to easily get around the current rocks with her kayak. It's steep and dangerous. Thanks for taking up the other rocks to protect citizen's rights when you did that. It's dangerous to bring a kayak in there. The 50 foot right of way has 38 feet on the other side. It is a prescriptive easement that is much more than 7 years of use according to state law. She read the law OCGA 49-4-40. Public, continuous, etc. She thinks that the prescriptive easement has been impeded by the landowners at the Shoals. 1) There are many people who have used that pathway for more than 7 years including the Boy Scouts who have used this access for decades to go down to Camp Thunder. 2) The private way is only a few feet wide as the rest is in the ROW. The private way is not wider than 20 feet as the law says. Admittedly the county hasn’t done extensive work there over the years, but they have placed gravel out there twice and removed rocks twice since 2008. There are no legal filings that show that the owners of this small property on the right side of the road have given express permission to use this. Obviously, they don't want people to use it. She said that this area has been a prescriptive easement, and we ask that you protect the rights of citizens who have used this for generations since the Flat Shoals bridge was built in 1960. I wish more kids would be out there on the river. There is no better place than to take kids out on the river. We should have a place here in Pike County. Every county that she and her friend have passed through in the 140 miles that they have traveled has access except Pike County. That makes me sad because I live here. This would be the easiest way to get to the river to do a quick float, but it's been blocked off. Col. Thomas Barnard, Chief of DNR Law Enforcement, said that parts of the river are navigable streams and that access cannot be blocked especially because it's a prescriptive easement anyway. If the driveway stays there, can the GDOT bridge inspectors get past the rocks to inspect the bridge? What about rescue boats in an emergency situation? In 2020, there was a successful rescue from the Atlanta Rescue Team. She asked people to stand if they were in favor of being able to use the river and supported the rocks being removed as well as the driveway being removed. That is the picture above. She said that there were a lot of people who weren't there too. She thanked the Board for continuing to protect their rights as citizens.
The public comment portion was closed, and Chairman Snow asked the county attorney to give a synopsis.
County Attorney Rob Morton thanked everyone for being here and expressing themselves because that is what the process is all about. Notice and opportunity to be heard have been afforded today. Mr. Morgan was specifically given the opportunity to present his appeal application. He then spoke to the Board of Appeals members.
We are not hear to discuss the driveway permit, the driveway, or the prescriptive easement, or access to the Flint River. Not even the boat ramp and whether it ever existed. We’re not hear to debate a state ROW that is exclusive or county ROW. This is not your job. We're not here to talk about navigable waters. Your duty is the Board of Appeals. Your Zoning Administrator properly stated in his presentation that this appeal is brought pursuant to Section 156.25 of Pike County Zoning Code. Sub paragraph (A) reads as follows: "If the Zoning Administrator executes an action which the developer or other aggrieved party believes to be contrary to the provisions of this chapter, that action may be appealed. Such an appeal must be filed within 30 days of the action which forms the subject matter of the appeal." So this means an appeal to chapter 156 of the Pike County Board of Ordinances. You have received an appeal application related to a letter of determination that's related to a 25 foot buffer and removing rocks from the county ROW. Both issues are outside of your jurisdiction. The appellant is appealing the letter of determination from the March 7 letter. The actual letter of determination was issued in February and sent to the same address as the March letter. The letter was not action taken by the Zoning Administrator. Section 156.25. If an aggrieved party believes an action taken by a zoning administrator is contrary to the provisions of Chapter 156, then they can appeal. These issues in the appeal do not apply to Chapter 156 and are not in your jurisdiction. Mr. Morgan has made no specific allegation that the Zoning Administrator has acted contrary to the provisions of Chapter 156. He has made issues to soil, erosion, etc. from Chapter 153. That doesn’t go before the Board of Appeals. He has also made issues regarding state ROW versus county ROW. The Board of Commissioners are the ones with authority over roads and ROWs. You do not. Soil, erosion, and right of way are outside of your jurisdiction in Chapter 156. Even if this Board wanted to address this, this appeal dated March 30, 2022 was not timely filed. This must be done within 30 days of the action presented in the February 2, 2022 letter. It has been determined was in the February 2 so this was the letter of determination. That is long before March 30, 2022. [Note from the Editor: The articles about riprap tell the story of how the Morgans did not receive the February 2, 2022 letter but did receive the March letter. It would be wise for the county to send letters by certified mail when there is a potential for litigation in the future so there is no question about whether something got lost in the mail or not.]
He reiterated that the Board has no jurisdiction over this matter because it is not pertaining to Chapter 156. He closed by saying that Zoning Administrator Jeremy Gilbert has no authority to tell anyone to remove the riprap. He did not order the removal, and he found out about it during the meeting with Mr. Morgan. Morton added that this meeting was the first time that he had heard about the removal as well. That is beyond the scope of this hearing. This is not an action taken by Zoning Administrator Gilbert. It came from the County Manager who is under the authority of the County Commissioners who have jurisdiction over county roads and ROWs. Mr. Gilbert as Zoning Administrator had nothing to do with this. Morton recommended denial on the appeal based on the decisions stated. He recommends that they follow staff recommendation.
Motion to deny the appeal based on the recommendation of Mr. Rob Morton. Denied 4-0.
VI. New Business - None
Public Hearing
VII. Discussion - None
VIII. Adjournment
Motion to adjourn. 6:48 pm
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