Gwinnett Buzz

Lakeview Plantation in Lawrenceville is embroiled in a dispute with the state Department of Natural Resources over repair costs to the dam creating the neighborhood lake.  The state is saying that the community is responsible for all necessary repairs to the dam but neighbors are balking at a potential six-figure cost. If the dam is faulty and threatens human life, the need to make repairs is clear.  The neighbors do not seem to dispute this point.  The neighborhood’s primary concern is apparently money.  Because  the homeowners association membership is not mandatory (something I applaud), the HOA annual budget is only around $14,000, a paltry summed when faced with repair costs that could approach a quarter-million dollars.  I can understand the cost concern, but that is akin to saying I am not going to fix my faulty brakes and replace my bald tires because it is expensive.  You can drive your car in that condition, but you are courting disaster.  That being said, the legitimacy of placing liens on all or a subset of homes in the subdivision likely depends on the legal ownership of the lake.

I say “legal ownership” because common sense dictates that a neighborhood lake is owned by the neighborhood.  As such, the owners should be liable for all costs associated with that lake.  However, when you are talking about placing liens on property, digging a little further into the legalese is necessary.  If I had purchased a home in Lakeview Plantation and no where within the legal documents required to complete that purchase was noted a ownership share or liability for repairs to common areas including the lake, I would be hesitant at the possibility of being hit with a charge of thousands of dollars.  At the same time, I would be torn because my share of responsibility would be fairly obvious to me.  This situation illustrates a weakness of a voluntary HOA when there is significant common property in a development.  If the HOA is the entity held liable for repair costs, is it fair that any homeowner could effectively “opt-out” of paying by simply resigning from or not joining the HOA?  Should only a subset of homeowners in a subdivision pay for maintenance costs for common area that is open to everyone?

This is obviously a difficult situation for the Lakeview Plantation and I do not envy their plight.  This is compounded by the fact that I have an extreme distate for HOAs and I applaud Lakeview’s voluntary association, but I recognize that could be a problem in this dispute.  Ultimately, looking at it as a Georgia taxpayer, I do not see why we should bear the cost to repair a private lake that, I assume, is not open for the enjoyment of anyone other than Lakeview Plantation residents.

This morning I was listening to Neal Boortz.  This was a good day for Neal - he did not have his liberal hat on and, as such, did not have me yelling at him through my radio.  (Ok…that is hyperbole…slightly.)  Neal actually had a story that struck a nerve - more Homeowners’ Assocation madness, and it turned out that this case was right here in Gwinnett.

A listener had forwarded to Neal a letter that he received from his neighborhood HOA’s property manager, Liberty Community Management of Loganville.  Apparently, this resident of Little Suwanee Pointe Subdivision in Lawrenceville had committed a grievous violation of the neighborhood covenants:

It has been reported that you dog has been allowed to urinate on your lawn, causing the lawn to be destroyed. Pets should not be allowed to urinate on the grass and should be directed to an area where there is no turf such as in pine straw beddings. We hope to have pet stations installed within the community in the near future to try and resolve this issue.

A dog urinating on grass.  Imagine that.  If that were as damaging as LIberty claims, my mom’s backyard would be bare earth.

This time the violation is funny and most of us can laugh at it.  However, HOA’s effort to tell you what do on your property are not always so funny or innocuous.  You can even see an element of this attitude in Liberty’s letter:

Please address the above issues before your next community drive-through, which is scheduled in approximately fourteen (14) days.

The instruction certainly carries a Big Brother tone - “we are watching you.”  Typically, the fact that some neighborhood busy bodies would try to force their preferences on others is downright infuriating.  Yes, there are legitimate covenants and guidelines in a neighborhood.  Residents should have a reasonable expectation that neighbors will maintain their property and not be overly disruptive to others.  However, restrictions that go beyond this are far too common.

The abuses too often seen and the actions of power-hungry residents are why I am glad I do not have to deal with an HOA in my neighborhood.  Sure, there are some minor things I would rather not see in the community (cars continually parked in the street, for example), but having to put up with minor and inconsequential nuisances is a small price to pay to avoid having Mr. or Ms. Joe or Jane Neighbor knock on my door and tell me what to do with my own home if it does not really impact them.

Gwinnett Buzz was present at the Gwinnett Justice and Administration Building for the April Public Hearing of the Gwinnett Board of Commissioners. I had attended mainly to cover what promised to be a contentious zoning issue in the Collins Hill area. However, that case was tabled until the May hearing, which will hopefully allow time for me to do a thorough analysis of this application thanks to the information provided by Buzz Brockway. However, there were still quite a few issues that deserve attention.Note, Kevin Kenerly was not present due to his father’s illness. The Buzz wishes Mr. Kenerly well.

Recall when reading about this month’s cases, the only test that should be considered by government is whether a proposed use materially impacts the use and enjoyment of neighboring properties by their owners. Adherence to such a standard would ensure protections for fellow neighbors but not allowing mere likes and dislikes to trump basic property rights. However, reality is that the law is sadly far more extensive and intrusive in citizens’ lives. Even so, commissioners should strive to only apply the absolute minimum level of government interference legally necessary when rendering their decisions.

Solid Waste Management Plan

The commission approved a new Solid Waste Management Plan that is very business unfriendly and very restrictive of the free market. However, this warrants a separate post, so I will not go into further detail here. Look for a post on this terrible decision by the BoC.

New Mercies Christian Church (2008-0326 CIC-08-009/2008-0327 SUP-08-026)

Commissioner: Beaudreau (District 3)

This one should have been easy. New Mercies Christian Church occupies a former grocery store at the intersection of Five Forks Trickum Road and Killian Hill Road. The church was previously using the Publix parking lot across Five Forks from the church for overflow parking. I imagine that you can immediately see the safety concern with this arrangement. To rectify the situation, the church was seeking a simple change of conditions and Special Use Permit for two pieces of property behind the facility so as to build a parking lot. No big deal right? Yes, this lot is adjacent to another property and there is the potential that there could be some disruption that could reasonably impact the neighboring property owner. However, the twist in this story is that the two properties are currently zoned as M-1. What use, by existing zoning and law, would be permitted on this property? According to the Gwinnett County zoning definitions, M-1 is a Light Industrial District permitting “light industrial development.” Open and shut right? A parking lot is no where near as intrusive to neighbors as the legally permissible industrial use, right? Apparently not. Even though the adjacent property owner was was not present to protest, even though the Planning Department and Planning Commission recommended approval with conditions, Commissioner Beaudreau decided to table the matter so he could have to go out and walk the property. What for? All this does is unnecessarily delay construction of the parking lot, thereby prolonging the period that those attending the church have to cross a busy Five Forks Trickum Road. Surely Mr. Beaudreau will not find any other reasons to delay or deny this very reasonable request.

Penske Truck Rental (Timothy Roe) (2008-0285 SUP-08-019)

Commissioner: Green (District 1)

See property in Microsoft Live Maps Birds-eye View

This one is classic Homeowners Association: we don’t like the way it looks so, even though it won’t have any real impact on our lives, we are going to encourage government to interfere in private property rights. Mr. Roe was seeking permission to rent Penske trucks from this oil change facility. His representative explained that steps were taken with Penske to make the use less intrusive to the area. However, during their opposition neighbors from the Springmont HOA could offer little substantive reason why this business should not operate at this location beyond their dislike of the use and aesthetics. They even tried to justify their stance by arguing that renting trucks and changing oil are non-related businesses! Well a barber shop and a cafe are not related businesses either, but they both exist in many retail centers. However, as you can see from the map view, this is hardly a pristine, scenic residential area in which a truck rental office would mar the character of the area. The facility is on a major thoroughfare, Lawrenceville-Suwanee Road, adjacent to a gas station and across Riverside Parkway from a former grocery store. Exactly how will a few trucks - which are admittedly not the most attractive things you will ever lay eyes upon - in a parking lot prevent you from enjoying a nice evening on your rear deck, lounging in your family room watching a movie, or enjoying a family dinner in your kitchen or dining room? Precisely - it won’t. However, rather than having the courage to stand up to the homeowners association effort to elevate personal preferences ahead of a man’s livelihood, Commissioner Green aligned herself against business by standing with the homeowners’ special interest group.

In denying this reasonable application, she expressed that a truck rental business was an “eyesore” and that it was difficult to screen such an intense use of the property. First, being an “eyesore” is immaterial. What is an eyesore to one person may not be to another. You may think my truck rental business is an eyesore, but I might find that Georgia Bulldog flag on the front of your house to be the same. Should I be able to have the government force you to take your flag down? Second, the inability to screen the trucks is demonstrably false. The day after the hearing, I took the liberty of visiting the area in question. As I drove south down Lawrenceville-Suwanee Road, had I not been looking for them, the five or six trucks parked behind the oil change facility would not have been highly noticeable. They were a bit more visible after I turned around and drove northbound, but again, nothing that should make any real difference in the lives of Springmont residents. I then drove into the subdivision and upon my exit, before turning onto Lawrenceville-Suwanee Road, I snapped this photo of the truck rental facility as seen from the entrance of the neighborhood. The image quality is not that great (I took it with my phone), but do you see any yellow trucks? If you look closely through the bay doors of the building, you can see the trucks parked behind the building. Does this justify the government telling a legitimate business that it cannot operate? I say resoundingly, NO!

Granted, this scene would be quite different if trucks were parked in the front of the building as the HOA claims was the case at times in the past. However, rather than impeding a businessman’s livelihood and the community’s access to needed services, Green could have simply stipulated that no trucks were allowed to be parked in the front of the building. While this is still not a stipulation that government should be making on a non-material impact, at least it would serve as a compromise to all involved. However, we again see Green being unfriendly to private property rights and kowtowing to self-centered homeowners associations.

I would encourage those of you who support ruling such as this to justify Commissioner’s Green’s actions on this matter. I fail to see how you can, but I am willing to listen to your points.

Note: There are several other matters from the meeting on which I intend to comment. However, because of the extreme tardiness of this analysis, I am posting this part immediately and will try to add a part two shortly.

Corinth Hills HOA has posted a request to its residents to oppose a commercial rezoning request in their area.  I have posted a comment encouraging neighbors to consider all angles and to make respect for property rights to be a major consideration.  You can read the HOA’s post here.  Here is my response:

I would propose that one test should be the test applied to land use questions. It is promotes fairness and ensures our precious property rights. That test is simply: does a proposed use MATERIALLY impact the ability of other nearby property owners to use and enjoy their property.

The key is materiality. Too often the reasons neighboring property owners give are based more on their personal preferences and that should not be a barrier to someone realizing the use or economic benefits of their property. You listed quite a few reasons, based on your Duluth experience, for opposing a rezoning. Whether these are material or not depend on circumstances. You mention two that raise red flags immediately: four lane roads and graffiti. I have sat in too many traffic jams in Gwinnett County on two lane roads so I support widening most major thoroughfares. Secondly, while I do not know all the factors that play into the development of groups that spray paint graffiti, I doubt that growth is the sole factor. There are many regions in metro Atlanta that are simply growing and graffiti is not a problem. I cannot see these as reasons to deny economic liberty to a fellow property owner.

I do not know the details of your case in Lilburn, but I hope to learn more and follow things on my blog Gwinnett Buzz (http://www.gwinnettbuzz.com). I would encourage you and your neighbors to be fair and equitable and respect property rights. Remember - one day someone might be trying to tell you that you cannot use your property.

This was originally posted on The Grayson Buzz in August, 2004.

Gwinnett Opinions-More letters to the editor (AJC.com) (Free subscription required)

There is just so much to respond to in today’s AJC Gwinnett letters to the editor! I would respond with the letter to the editor myself, but I do not know on which topic to focus! (Note: The above link will likely be out of date once AJC.com updates the letters. I will try to remember to update to the archive link but if I do not, just click on “Previous Letters.”)

David Kesler on the “anti-growth” phrase
David Kesler, head of the Gwinnett Place Neighborhood Alliance homeowners union takes exception to the AJC’s use of “anti-growth” to characterize the anti-progress (that is probably just as appropriate a term) crowd in Gwinnett. He tries to spin the term into “smart-growth” or “slow-growth” or “managed-growth” but it all boils down to one fact: to the advocates of these positions, virtually no project ever seems to meet the strict requirements of their smart/slow/managed-growth view. The de facto result is “no-growth.” I think the AJC used “anti-growth” appropriately as that is the eventual result of homeowner union activism.

Mr. Kesler closes with this gem:

“Smart growth” is a calculated effort by a local government to ensure that growth occurs where it is both appropriate and needed.“

As decided by whom, Mr. Kesler? Sorry, Mr. Kesler, but unless the use of my property materially impacts your use and enjoyment of yours, then you should have no role in determining what is “appropriate and needed.” Just evidence of how the homeowners unions seek an extension of the role of government into our lives - something that is neither appropriate nor needed.

Jay Wagner proposes some detrimental policy changes
As if on cue to vindicate the AJC’s use of “anti-growth”, Jay Wagner offers up a wish list of policy changes that would exacerbate all the problems in Gwinnett that the voters allegedly sought to change in defeating Wayne Hill. Several are standard fare for those seeking to impose their will on the county’s property owners: no rezonings when schools are overcrowded (that effectively shuts down all construction in Gwinnett) and a moratorium on apartment construction (forget that you own the property and that you have property rights, Jay Wagner does not like apartments so Mr. Property Owner should be prohibited from developing his property). The most egregious of Mr. Wagner’s wish list is restricting sales tax road funding to existing roadway enhancements and not permitting the county to contribute funds to a cross-county corridor. To be blunt, those last two are insane. To assume that not building new roads will staunch traffic growth is a pure head-in-the-sand mentality. Even if the anti-growth crowd is successful in shutting down all growth in Gwinnett, they will have no impact in neighboring counties. Unless Mr. Wagner proposes that only Gwinnett residents be permitted to traverse Gwinnett roadways (give the homeowners unions time to figure out to pursue this goal), the inter-county traffic will only increase, further choking our roads. If we refuse to plan for traffic growth, the already suffocating Gwinnett traffic will get much, much worse in a hurry. These types of proposals should scare every person who drives in Gwinnett County. Frankly, I have no problem with Mr. Wagner sitting in two hours worth of traffic every morning since he obviously voted against progress in Gwinnett, but the rest of us who had enough sense to not bury our heads like ostriches have to suffer as well. Let’s hope that Mr. Wagner is a lone voice in the wilderness or Gwinnett is going to be in worse shape than even I feared.

Clem Jones has a problem with Emory Morsberger defending his property rights
Mr. Jones’ letter is a classic anti-progress rant. He, too, tosses out the overcrowded schools argument. He complains that Mr. Morsberger is suing on the basis that state law prevents the county from refusing his building proposal based on school overcrowding, asking “Can you think of a better reason?” Sorry Mr. Jones, but in America, besides property rights, we have little annoyances called laws and when a governing body denies economic liberty while violating these laws, the victim is entitled to seek a remedy in the courts. In Mr. Jones’ world apparently, the ruling of the County Commission should be absolute (I wonder whether he would be such a staunch defender if the ruling had went in favor of Mr. Morsberger?) without regard to any relevant legal guidelines. He echoes a theme similar to that of Mr. Kesler in saying that the zoning process is intended to ensure that building proposals are “sound and will benefit the community.” Another Gwinnett citizen who wants the government telling me what I can and cannot do with my property.

Possibly the most troubling comment made by Mr. Jones is that Mr. Morsberger “puts his own interests ahead of the general population.” This is an incredibly anti-capitalistic statement. Consider this statement in light of this quote from Adam Smith’s The Wealth of Nations (courtesy of Nealz Nuze):

It is not from the benevolence of the butcher, the brewer or the baker, that we can expect our dinner, but from their regard to their own interest.

Denise Dutton on parents dropping kids off at Snellville Middle School
The last letter on which I want to comment veers away from the anti-growth movement. Denise Dutton writes about the traffic difficulties associated with dropping off her children at Snellville Middle School. On one particular morning when the traffic was particularly bad (imagine the horror of a middle schooler getting a little wet!), Ms. Dutton complains about the Snellville police instructing parents to move to the shoulder of the road which includes “residential driveways, long grass, large mudholes, directional signs, and…trees.” She takes issue with the officer threatening drivers over his loudspeaker with “expensive” tickets if they did not clear the roadway. (Personally, I am glad to see police trying to improve traffic conditions and threatening tickets to those that truly are causing traffic problems as opposed to enhancing revenue with speeding tickets…but that is another post for another day.) The main point is her contention that drivers were “doing the best they could in the pouring rain.” No, Ms. Dutton, they were not doing the best they could. Have you ever noticed that big yellow bus that drives past your home every morning? It is not the latest in Gwinnett public transportation - it is a school bus, there to take your child to Snellville Middle School. The best you could have done would have been to let your youngster board that bus in the morning and enjoy a free ride to school. If all the parents who were pampering their kids in that school line that morning had done the same, there would have been no significant traffic problem and the Snellville PD would not have had to threaten anyone with tickets to keep the road clear for people who needed to get somewhere. The most laughable comment is her assessment that incidents like that morning is “not the way…to create a good education program for our children.” Sorry, but I do not follow. Perhaps Ms. Dutton could cite a study that states that parents dropping their kids off results in better academic performance than with kids who ride the bus. No, the real result of the incident that morning was that it failed to help parents continue to pamper their children and raise a generation of softies.