ALBANY, Ga. — Despite a recommendation from staff to the contrary and the possibility that a lawsuit could result, the Albany Dougherty Planning Commission voted 6-2 Thursday to deny a variance that would have allowed Bailey Healthcare to locate a community living arrangement facility at 910 N. Davis St.
The vote, which ultimately concludes what has been an almost two-year effort by Randy and Lauren Bailey to open a personal care facility at the north Albany home, was based on an element of a recently approved city ordinance that doesn't allow the location of community living facilities within 1,000 feet of other such facilities.
"While you certainly qualify for a variance based on some of the reasons presented by staff, I have concerns about the precedence this board would set by granting a variance," Planning Commission Vice Chairman Stephen Kaplan said in making a motion to deny the request. "This has been an emotional process, and I've tried to put emotions aside."
Commission member Art Brown had offered a motion to approve the variance after testimony from Planning Director Paul Forgey, Randy Bailey and citizens from the Rawson Circle neighborhood who had opposed locating a community living facility there. His motion died for lack of a second.
"I'm against this request," Priscilla Boren, who lives on Third Street, said. "If you grant a variance on a home at 765 feet, what's going to stop you from considering 500 feet (at a later date)?"
Forgey said there were unique circumstances that warranted considering the variance request. Primarily, he said the Baileys' attempt to locate the personal care home at the North Davis Street residence before the Albany City Commission imposed a moratorium on such residences was a strong argument for the variance.
"I'm not going to get into law here, but state law does grant relief for people who are vested in an enterprise that is affected by a change in the law," Forgey said. "I believe what the Baileys did before the city imposed the moratorium may constitute vesting in this case."
Bailey, who angrily offered a sarcastic "congratulations" to members of the group that opposed location of the residence at North Davis — some of whom had openly questioned Bailey's honesty in their remarks — said he doesn't know yet if he'll take legal action.
"I'll have to make that decision after I think about this for a while," he said as he waited for an elevator at the Central Square Complex. "This ruling just doesn't make sense."
Forgey, based on seven common criteria for determining unique circumstances that justify variances to planning statutes, said his research showed that there would be no decrease in property value in the neighborhood if the variance were granted, that there would not be a significant increase in traffic and that any change to the exterior of the structure would have to be pre-approved. But both Kaplan and commission member Sanford Hillsman said a variance of the strict 1,000-foot element of the ordinance would present potential problems in the future.
"We were very strict about the 1,000 feet," Hillsman said. "Now you're saying, because of extenuating circumstances, we can alleviate that. Do we have a policy in place or is it a flex plan?"
Kaplan, who said he saw the 1,000-foot distance as the "lesser of two evils," admitted he was concerned about others following suit if the variance were granted.
"What if the next measurement is 990 feet, or 950 or 900 or 800?" he said. "It's unfortunate in this particular case, but we have to think about the precedent we'd be setting."
Commission Chairman William Geer said he's glad to see the issue finally settled.
"This has been a very emotional situation," he said after the meeting. "Certainly Mr. Bailey has the option of pursuing this matter further in court. That's his right."
Also at Thursday's meeting, the commission voted unanimously to allow special approval of the development of a surface mine borrow pit on 215 acres of land at 3424 Fleming Road. Dirt from the pit would be used at the Dougherty County Landfill.
After a lengthy discussion, the commission also voted to allow for the rezoning of 268 acres of land at 3851 Moultrie Road from Mobile Home, Single-Family District to Agriculture so that land owned by applicant Clinton Miles Sr. could be used to grow row crops. The commission OK'd the request with the condition that a 100-foot buffer be maintained around the property.
Keith Allen, an attorney for the property owner, asked and received permission to remove stipulation that an "undisturbed 100-foot barrier" be maintained around the property so that certain portions of it could be better utilized for agricultural purposes.
"We're asking that we be allowed to utilize as much of this land as we can," Allen said.