Friday, June 22, 2012

Shopping center owner sues city over zoning rules

by Geoff Folsom

June 22, 2012 12:00 AM
 KENNESAW — The owner of a shopping center where a pawnshop was recently forced to close is suing the city, saying zoning stipulations violated his constitutional rights.

The lawsuit, filed June 15 in Cobb Superior Court by Mack Dobbs Properties LLC, names the city of Kennesaw, as well as Mayor Mark Mathews and the city council members as defendants. The lawsuit states that the city’s zoning ordinance violates the state constitution.

When Celestino Venturi was opening the shopping center in 2004, he agreed to a stipulation prohibiting him from opening a pawnshop. But last year, he signed a five-year lease with the Cruchelow Jewelry & Loan pawnshop, which after a city oversight and subsequent city council approval received a business license, as well as pawn and precious metal licenses.

The store closed earlier this month after the city council refused to agree to an amendment to the Mack Dobbs Point shopping center’s zoning that would have allowed for pawnshops to be included among acceptable uses at the site.

But now the lawsuit asks that the city be directed to work with Venturi to rezone the property, claiming that the city has made no effort to prove that its denial of the rezoning the property was constitutional.

The City Council acted on the recommendation of Kennesaw’s planning commission and voted down the proposed rezoning by a 5-0 vote on May 16.

The conditional zoning classification for the shopping center is equivalent to “a substantial destruction of plaintiff’s valuable property rights,” the lawsuit states.

The suit also criticizes the zoning hearings the city holds because they limit the time they allow applicants to make a case for rezoning and don’t allow for proper response to opposition.

“The defendants have delegated their authority to zone property to the citizens at large by basing their decision on whether there is vocal opposition to a zoning request,” the lawsuit states.

The suit asks for unspecified “appropriate damages,” as well as court costs, including attorney fees.

Mathews said Thursday that he couldn’t comment on pending litigation.

Efforts to reach Venturi’s lawyer; Garvis Sams of the Marietta firm of Sams, Larkin & Huff; were not successful.

Read more: The Marietta Daily Journal - Shopping center owner sues city over zoning rules
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Note:  A copy of this filing is available at the end of the blog or use direct link to go to it:  http://kennesawpawnproblems.blogspot.com/2011/06/mack-dobbs-properties-llc-v-city-of.html

Thursday, June 21, 2012

Just a few minor observations FYI:

1) Venturi had 30 days to file and his lawyer filed on the 30th day, June 15th,

2) The shop is now abandoned and the Cruchelow's have moved out on the weekend of June 9/10th,

3) In his complaint Attorney Sams repeatedly slams the City for listening "to citizens speaking in opposition to the request" (P. 19 at 66 and 67). Seems he thinks that the City should only have listened to him, however he did speak for 22 minutes for the zoning change, while the 'citizens' comments were limited to 10 minutes in total.

4) Attorney Sams is the same person who drafted the 5 page stipulation letter in '04 wherein client Mr. Venturi agreed to exclude 28 types of business from the mall - now Sams is in effect arguing that all those restrictions he had his client agree to were unconstitutional.

Q: So why did Sams draft the '04 document if he was getting his client to agree to something 'unconstitutional'?

5) If the various arguments 'for' a zoning change have any validity then they should have been argued 8 years ago. Venturi/Sams had ample opportunity to make their case then, but rather chose to waive any such claims in favor of executing the 5 page letter of stipulations. "If you snooze, you loose." IMHO Venturi/Sams waived any challenges in '04 by signing away their 'rights' in favor of a zoning change then.

No redo now Mr. Venturi, one bite at the apple is all you get.

Wednesday, June 20, 2012

On Tuesday June 19th the City of Kennesaw was served with a 24 page Complaint and De Novo Appeal by Mack Dobbs Properties (ie:  Clestino Venturi).   That filing is now available via direct click on link:  http://kennesawpawnproblems.blogspot.com/2011/06/mack-dobbs-properties-llc-v-city-of.html

The item is on this blog and is the last item. 

I would draw readers attention to page 19 and the statements made therein by Attorney Sams: 
"66. The Defendants have delegated their authority to zone property to the citizens at large by basing their decision on whether there is vocal opposition to a rezoning request."

67 "Specifically in this case, the Defendants delegated their legislative authority to rezone the Subject Property to citizens speaking in opposition to the request instead of making a legislative decision based upon the zoning guidelines as outlined by the Georgia Supreme Court."


I read this nonsense as Attorney Sams saying that the great unwashed citizens of Kennesaw have no business commenting to their elected representatives on matters he feels are reserved solely to the City Council and any such 'vocal opposition' should be ignored by the 'delegated authorities'.

Of course if Mr. Venturi had a decent attorney in the Fall of 2004 and not some incompetent lawyer then Venturi would not have relied on stupid advice and entered into a 5 page agreement with the City of Kennesaw in order to have his property rezoned from residential to business.

Oh, wait a minute, the incompetent Attorney from 8 years ago was the same Garvis Sams who now claims that the City did all sorts of improper things to his poor client.

That seems to be a classic case of arguing both side of the issue.

Bill Harris
Kennesaw

Tuesday, June 12, 2012

Pawn shop at center of controversy shuts down

Posted: Jun 13, 2012 7:37 AM EDTUpdated: Jun 13, 2012 7:42 AM EDT

KENNESAW, GA (CBS ATLANTA) -  
A Kennesaw pawn shop, Cruchelow Jewelry and Loan, has shut down, after three months of fighting by neighbors.

Those neighbors said that in 2004 a Roswell man named Tino Venturi promised them if they would permit Kennesaw to change a piece of land in their neighborhood from residential to commercial, he wouldn't allow any shops, such as pawn shops.

Nearly eight years later, neighbors said that promise was broken, by both the city and landlord, by allowing Cruchelow Jewelry and Loan to set up shop. Neighbors like Bill Harris have been fighting since then.

"I think the city really believed that it was getting a jewelry store," Harris said. "It was like three and a half months of turmoil that we really didn't need."

After CBS Atlanta News did multiple stories, the store removed flashing "pawn" signs from its walls.
At a packed public meeting in March, Kennesaw Mayor Mark Mathews owned up to the city's mistake.

"We made a terrible, terrible oversight," Mathews said. "For that I apologize to the residents, I apologize to the business owner. They shouldn't be in that position."

As of Tuesday, Cruchelow Jewelry and Loan has removed most items from inside of its shop. There are no signs saying where, if anywhere, the business will move.

Sonia Moghe, a Reporter for CBS Atlanta filmed a segment on the closed Pawn Shop 6/12/2012.  Link to CBS News Report:  http://www.cbsatlanta.com/video?clipId=7391424&autostart=true



"Pawnshop gives up fight, closes in Kennesaw"

by Geoff Folsom
gfolsom@mdjonline.com
June 12, 2012 01:17 AM
KENNESAW — A Kennesaw pawnshop has apparently given up its fight to remain open after a months-long battle with its neighbors and the city.

Cruchelow Jewelry & Loan, located at Cobb Parkway and Mack Dobbs Road, was closed Monday, with little merchandise remaining inside the store, which took up two suites in the Mack Dobbs Point shopping center. The store opened late last year despite a stipulation in the strip mall’s 2004 zoning that prohibited a pawnshop from opening there.

“I couldn’t really believe it,” said Bill Harris, a nearby resident who has maintained a website critical of the store. “It’s too easy.”

A city oversight, and subsequent council approval, allowed the store to get business, pawn and precious metal licenses. But the Kennesaw City Council voted 5-0 on May 16 to deny a request from property owner Celestino Venturi to amend the zoning and allow the pawnshop to stay open, paving the way for the store’s closure.

The final vote was the last step in the back and forth between Venturi, store owners John and Serena Cruchelow, the city and residents of nearby Summer Stream and Summerbrooke subdivisions. After the May meeting, Venturi’s attorney, Garvis Sams, said he planned to fight the decision in Cobb Superior Court, but efforts to reach him and Venturi were unsuccessful Monday afternoon.

The Cruchelows’ lawyer, Michael Pryor of Atlanta, said he didn’t know of the store closing and couldn’t comment on what his clients’ next step might be.

The store had been threatened with closure before city council once before. An April 2 hearing was called to determine if the pawnshop violated a state law prohibiting pawn brokers from having the word “loan” in their name. But Mayor Mark Mathews said the city had no ordinance prohibiting such advertising in its ordinance, which meant it had no jurisdiction to enforce the law.

On Monday, Kennesaw city officials were either unavailable, didn’t know about the case or didn’t return phone calls seeking comment.

Harris said a neighbor noticed activity outside the store over the weekend. He later went to check the site for himself and saw it was “90 percent” empty, with some rugs and other items left.

“They may have already opened somewhere else,” Harris said. “As long as it’s not in my neighborhood.”

In April, the Cruchelows said they could not afford to move to a new location because they had already spent $40,000 to remodel and stock the Mack Dobbs Point store.

Calls to the pawnshop went unanswered Monday.


Read more: The Marietta Daily Journal - Pawnshop gives up fight closes in Kennesaw

Monday, June 11, 2012

Cruchelow Pawn Shop is now closed

As of Monday June 11th the illegal Pawn Shop "Cruchelow Jewelry and Loan", in the strip mall called Mack Dobbs Point is now closed.
Over the weekend the majority of the contents were removed. As of today (Monday June 11th) the shop is locked and 90% empty. Left behind were some rugs on the floor, display cases etc.

This was an expensive and unfortunate problem which in my estimation was caused by both parties.

1)  Clearly Tino Venturi, the Owner of that strip mall, and Garvis Sams, his lawyer, knew that such usage was prohibited by the very agreement they signed with the city 8 years before.   Venturi clearly knew the usage of the shop was that of a 'pawn shop' as the lease he prepared for the Cruchelow's to sign indicated that twice, once even on the very first page of the lease,

2)  It has been testified to before under oath before the Kennesaw City Commission that the Cruchelow's had been bragging in their Kennesaw neighborhood that they had gotten around the Kennesaw ban on pawn shops in that mall.

Neither Venturi nor Cruchelow came out a winner on this issue and it was probably a very expensive lesson for people who tried to make an end run around the Kennesaw Zoning regulations and failed.
  
The community around Mack Dobbs and Cobb Parkway will not waste any sympathy on either party and they can be very pleased with their outstanding efforts in coming together to make the community a better place.






It’s Official…Cruchelow’s Pawnshop Has Closed

Bill Harris says:

http://thekennesawwatch.com/
June 11, 2012 at 5:35 pm

Now that the dust has settled on this Pawn Shop issue it is time to thank the many people in the Summerbrooke, Summer Stream and Mack Dobbs Road areas for all the work that went into having this section of the Kennesaw community come together to ‘encourage’ the City to get the ordnance enforced.

The 2 petitions, letters, emails and those attending meetings made it all work out in the end.

The media also played a very big part in getting the word out to area residents. Both the Kennesaw Watch and the Marietta Daily Journal were extremely active in making timely reports of what was going on with the problem.

If it wasn’t for the media we might still have the City wondering if they could just issue a variance and dodge the problem. With media attention from the Watch and MDJ it became clear to them that they had to act and after 3 months they finally did and now the Pawn Shop is gone.

The community and media did a great job of pulling together!

Friday, June 8, 2012

Editorial Comment:

During the 3 month run up to the final voting on the Pawn Shop issue I was critical of the lack of feedback from elected officials in the City of Kennesaw.


While I am pleased with the Planning Commission vote of 3-0 and the Council vote of 5-0, all in favor of not allowing the Pawn Shop to remain, I am still annoyed at the City for their apparent indifference to the taxpayers and voters of the area around this strip mall.

I don't know of any regulation, ordinance or law that states that elected officials may not express any opinion on an issue of great public interest prior to actually voting on said issue.

The lack of feedback from the Council during these months leading up to the final vote only served to unnecessarily stir up the community and cause turmoil and anxiety among the citizens who read this prolonged silence on the part of Officials as indifference and unconcern about the Pawn Shop issue.

I was, and continue to be, annoyed that the Kennesaw City officials are unwilling to express opinions prior to taking a vote on an issue. Nowhere else in the Country do elected officials or those running for office, feel the need to remain silent on issues prior to casting their votes on them.

Kennesaw residents and voters deserve better representation from their City officials. The only possible reason I can come up with for this total lack of opinion prior to the voting would be that they wanted to see which way the wind was blowing before they decided which side of the fence they wanted to jump off on.

This isn't a good way to run Kennesaw and despite their 'doing the right thing' in the end, the Council caused a lot of unneeded drama and turmoil for the community.

Bill Harris

Tuesday, June 5, 2012

City Voted down application to change zoning


SPECIAL CALL MINUTES OF MAYOR & CITY COUNCIL MEETING
CITY OF KENNESAW
Council Chambers
Wednesday, May 16, 2012
6:00 p.m.

Mayor Mathews opened the meeting at 6:00 p.m.
Present: Mayor Mark Mathews
Mayor Pro Tem Cris Welsh
Councilmember Jeff Duckett
Councilmember Bruce Jenkins
Councilmember Killingsworth
Councilmember Bill Thrash
City Clerk Debra Taylor
City Manager Steve Kennedy
City Attorney Fred Bentley, Jr.

IX. PUBLIC HEARING(S)
       
A. Authorization for approval of an ORDINANCE to amend a rezoning condition submitted by Mack Dobbs Properties, LLC, Tino Venturi. Property identified as Land Lot 141, Tax Parcel 180, 20th District, 2nd Section, Cobb County. To rezone the property from City Conditional HGB to City Conditional HGB to amend a stipulation/condition that prohibits establishment of a pawn shop business as per conditions of the original rezoning ordinance 2004-50. Property was legally posted on April 18, 2012 and advertised in the Marietta Daily Journal on April 13, 2012.

Planning Commission at a meeting held on May 03, 2012 made recommendation to deny the request to amend the 2004 rezoning condition to allow Cruchelow Jewelry & Loan located at 2958 Cobb Parkway, Suite 1 & 2 to operate as a pawn shop.

Vote 3-0. Commissioners Richard Anderson, Cindi
Micheal and Jeff Powers. Staff Recommendation: Darryl Simmons, Zoning Administrator recommends denial of the rezoning amendment request to allow operation of a pawn shop at 2953 Cobb Parkway, Suites 1 & 2 known as Cruchelow Jewelry and Loan business.

See attached transcripts6:29 PM Floor Open to Public Comments
6:46 PM Floor Closed to Public Comments

Mayor Mathews called for a vote on the implied motion to deny the request to amend the 2004 rezoning condition to allow Cruchelow Jewelry & Loan, located at 2958 Cobb Parkway, Suites 1 & 2 to operate as a pawn shop; as submitted by Mack Dobbs Properties, LLC, Tino Venturi.

Vote taken, approved unanimously, 5-0.
AYES:  Councilmembers Welsh, Duckett, Jenkins, Killingsworth and Thrash. Motion carried.

See City minutes at: 
http://www.kennesaw-ga.gov/form-center/category/58-2012