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Shopping center owner sues city over zoning rules

by Geoff FolsomThe Marietta Daily Journal

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

What happens now?

                                                                              

Now that the City Council has voted 
5-0 to deny any amendment to the existing ban on Pawn Shops in the Venturi mall the next question has to be: 'Now what?'

The Kennesaw Zoning Department has provided the information on how the City will now proceed in this matter:

"The planning and zoning department will be forwarding written notice to the business owner, property owner and legal counsel of property owner that due to denial of the rezoning application, the property is in direct violation of the zoning ordinance and stipulations of 2004. The property owner and business owner will be given notice to cease operation of the pawn shop business within ten days of receipt of said notice. The notice will also state that the business license and certificate of occupancy that was issued will be voided."

Venturi attorney Mr. Sams has already indicated that he will challenge the City in Cobb Superior Court within the 30 days he has to file. 

It seems unlikely that the Pawn Shop will simply depart on it own.  The pending litigation on the matter will delay any actual closure, perhaps for months.

If the initial Sams challenge against the City fails, and it probably will, that may be only one phase of the litigation and of course the City will be named in any such follow up actions.  Up until now both Venturi and Cruchelow have had a common interest - keeping the Pawn Shop in the mall.  But I think the more interesting aspect of this might be a probable legal squabble between Venturi and Cruchelow and the mud slinging there will be interesting to watch. 

The interests of the 2 parties are about to diverge.  The aggrieved Cruchelow Pawn Shop has the reasonable claim against Venturi in that he was up to his arm pits in the 2004 decision to bar 32 types of businesses from any development he put up on that property, so why did he then agree to rent to a Pawn Shop knowing it was one of the excluded types of business on that property? 

The answer is obvious = MONEY.  A five year lease for 2 units with approx. $300,000 in rental, in a mall that for most of its 5 1/2 year existence has been an under preforming lemon.

From Venturi's point of view it was probably a long shot that the Pawn Shop would ever get a license, but nothing ventured then nothing gained.  If the City noticed the usage and denied the license the 2 units would remain available for rental to someone else.  If the City missed the illegal usage aspect then he had his 300K for that 60 month lease.

Initially all went exceedingly well for Venturi and Cruchelow.  The clever wording of the Pawn Shop, calling itself 'Cruchelow Jewelry and Loan' completely misled the City and all the departments signed off on it not noticing that just one time in the 20 page application were the words 'pawn shop' mentioned.  The City just missed those 2 key words and were mesmerised by the word Jewelry.  Who would ever be against a Jewelry store? 

So the license was issued and the Pawn Shop was opened and all was well in Mudville, until someone returning from being away for a few months noticed that suddently there was a Pawn Shop next to his subdivision and complained March 1st to a City Councilman who bounced it up to the Mayor and City Manager. 

Now all was not well in Mudville.   The 3 strikes were:  1)  Zoning came out against allowing the shop to remain, 2)  Planning Comm. voted 3-0 not to approve any changes and 3)  City Council voted 5-0 to deny any change to allow the Pawn Shop to remain.

Shortly there will be litigation and as mentioned there is a reasonable claim against Venturi.  Of course the Venturi counter to that will include the allegation, now part of sworn testimony before the City Council, that the Cruchelow's well knew that pawn shops were not allowed and that they were bragging in their neighborhood that they had gotten around the City ban and gotten their license anyway. 
                                                                                                                                     
So it may be a long and interesting summer here in Kennesaw. Oh, as to the City, they did make a mistake and they might make some settlement with the shop and join the rest of us on the sidelines to watch the mud fly.

Bill Harris

Liar, Liar, Pants on Fire!

I have obtained a copy of a copy of the Venturi/Cruchelow Lease dated Sept 8, 2011 and signed 9/7/11 by Venturi as Managing Partner and both Serena and John Cruchelow. It is 37 pages and has the financial information blacked out, it is for a 60 month term.

The lease is a copy of a copy and difficult to read.  This section deals with the use of the rented property.

Marked as Page 2 at 1.1(k) reads as follows:
"USE" - Tenant shall use the premises for the retail sale repair, and loan of jewelry; for a gold buying operation, for the purchase, loan and sale of firearms (but Tenant may not sell ammunition); and for pawn brokering services and for no other purpose whatsoever."






At page 7, Article IV Use of Demised Premises, 4.2(a) "Tenant shall conduct its business in Demised Premises during the hours consistent with a pawn shop operator."

It seems that the land owner Venturi had ample notice that this shop would be used as a Pawn Shop. I understand that he has disclaimed knowledge of the intended use but the lease is one prepared by Venturi and/or lawyer Sams and it is clear that one of the uses was to be a Pawn Shop operation and that this was known as early as 9/8/11 when the lease was typed up.

We know that 8 years ago the same Venturi/Sams combo practically begged the City and area residents to allow a change of usage from residential to business for his 2.91 acres.

So when Venturi claims to other shop Owners in his mall that he was unaware of the intended usage of these 2 units leased by Cruchelow is he a Liar?

I will leave that for you to decide, I have already made up my mind on the matter and I look forward to he and Sams appearing to argue this issue before the City Commission.  They can count on my having some comments on the matter.

Don't miss these meetings!

Here are 2 meetings where the City and Venturi are going to try to screw the homeowners around Mack Dobbs and Cobb Parkway.

You better be there for both meetings or our weak kneed City Council will just ram this modification of the 2004 zoning through and we will be stuck with the Pawn Shop.

Be there Thurs May 3rd at 7 pm and Wed May 16 at 6 pm. The City is going to sell us out to avoid getting sued by Venturi/Cruchelow. Be there and speak up on this issue!

Just my opinion:

There was, and apparently in some quarters still is, some body of opinion and sympathy for the unfortunate shop owners who it seemed initially were mistakenly given a business license for a type of business that was specifically banned from the strip mall where they opened.

I personally went down the City Clerk's office in Kennesaw and reviewed the 18-20 pages of the Cruchelow's application. Each page, and sometimes twice on a page had: "Cruchelow Jewelry and Loan".   Only one mention of  'Pawn Shop' appeared in the center of one document in the middle of the page where both above and below the mention appeared the familiar phrase "Cruchelow Jewelry and Loan".

If I were to hand this body of documents to anyone not familiar with the issue and asked them to read them over and then asked them what kind of business was applying for a license, the reply would be 'a jewelry store'.

Should the City have caught it? Yes, but they were set up to fail. I'm told that even the Chief of Police signed off on the application.  Everybody missed it just as they were suppose to miss it.

That Pawn Shop got the City license via fraud, trickery and deceit and this came to light when the Cruchelow's bragged in their neighborhood that they had found a way to get around the City ban on such shops in that strip mall.

The Cruchelow's deserve absolutely no consideration from the City and this shop should be closed down immediately.

Wake Up City Council - these people made you look foolish - it is past time to revoke this license.

Who should you contact about this problem?

Make your opinions heard by the Mayor, City Council or Venturi: 
         Mayor Mathews:                 mmathews@kennesaw-ga.gov

5 Council members are:       bthrash@kennesaw-ga.gov cwelsh@kennesaw-ga.gov       bjenkins@kennesaw-ga.gov
jduckett@kennesaw-ga.gov    tkillingsworth@kennesaw-ga.gov

City Manager Steve Kennedy     skennedy@kennesaw-ga.gov 

Tino Venturi, property Owner:      tinoventuri@aol.com 

Gavis Sams, Attorney for Venturi:   gsams@samslarkinhuff.com

For Your Information:

Before this Pawn Shop issue really got complicated I had the opinion that it was probably just an accident on the part of the City and that while I and others might be critical of it that I should at least offer some sort of solution. After all, if you want to complain then perhaps you should be ready to provide a solution.

With that in mind I did some research to find out if Mr Venturi still owned his Mars Hill strip mall in Acworth. He did and I set aside a Saturday afternoon (March 10th) to take a look and see if my idea might be possible.

I did find that there were 2 empty units in that strip mall and suggested via an email to City Manager Kennedy and Zoning head Mr Simmons (with cc to Mr. Killingsworth) that perhaps the Pawn Shop might relocate to the other Venturi mall and the City refund all fees paid by the Pawn Shop. I provided unit numbers and 7 photos.
(see email at this link: http://kennesawpawnproblems.blogspot.com/2012/04/blog-post_11.html)

A month later a City official mentioned in passing that my idea was not of interest to Mr. Venturi, no details given.  I was sorry to hear this but by this time it had become known that the shop owners had gotten the license by trickery and deceit and were bragging about how they had gotten their shop into a mall where it was prohibited. Very shortly thereafter I learned that Mr. Venturi, despite his 2004 agreement, wanted to have the zoning changed again, to allow the shop to remain.

Reasonable alternatives were available from nearly the start of this matter but were not acceptable to the property owner.

I have absolutely no respect for either the shop owners, who got their license by trickery and deceit, nor for the property owner who it turns out is simply a two faced businessman with no regard for honor or integrity.

 

His word is just worthless as is that of his lawyer Gavis Sams.

That Pawn Shop must go.

There is now consideration in the community for both picket lines at the strip mall and a boycott of all stores in that mall. 

What is your opinion? Let us know at: http://kennesaw.proboards.com/index.cgi and there is another blog site FYI at: http://jcruchelow.blogspot.com/

Venturi's Constitutional Challenge to the City of Kennesaw

You can click on the direct link http://kennesawpawnproblems.blogspot.com/2012/04/blog-post_09.html to go directly to this document.  Only the first 4 pages are relevant, the rest is just legal garbage.  You might also make note that you can email Mr. Venturi at:  tinoventuri@aol.com.

It's Just My Opinion:

It is well known and recorded in the City Minutes of the October 2004 Council meeting that Mr. Venturi, as owner of the 2.9 acre parcel to be rezoned, was well aware and signed off on the restrictions prohibiting Pawn Shops on that land.

8 years pass and the City admits it has made an error in issuing a business license to the Pawn Shop, said shop using the misleading terms Jewelry and Loan rather than Pawn Shop to obtain their license.

Initial information was that mall owner Venturi was equally misled by the shop owners and he did not know of the Pawn issue until signs appeared in the shop windows.

That was the initial impression.

Now that Mr. Venturi has gone on record by asking the City to in some manner change the regulation or make an exception so that the Pawn Shop can remain, you must ask yourself if someone who had been misled, or even lied to, by the shop owners would be of such forgiving disposition that despite the area residents outrage at the shop, and the underhanded method of it getting approved, would you expect the mall owner to then go to bat for the shop owners?

I don't think so.

You might then have to consider the possibility that Mr. Venturi knew all along that a Pawn Shop was intended for those 2 units of his 16 unit mall. You might even consider that since it was built in 2006 that the mall had not attracted a lot of new businesses to rent those units and he may well be having a hard time staying solvent with an under performing mall.

Could it be that Mr. Venturi was well aware of the intended usage and decided that renting 2 of his empty units it would be worth it if the City thought that the license was for a Jewelry store rather than a Pawn Shop and did issue them a business license?

I guess only Mr. Venturi can answer that question. But his coming to the assistance of the Pawn Shop owners by asking the City to allow them to remain tells me that it is quite likely that he put money over integrity.

Shame on you Celestino Venturi.

FYI: Marietta Daily Journal Article

Misc:  Both the ABC and CBS Stations in Atlanta have run segments on the issue and the Marietta Daily Journal and the internet site www.patch.com have articles on this.

Pawnshop has neighbors seeing red in Kennesaw

by Marcus E. Howard mhoward@mdjonline.com The Marietta Daily Journal

March 15, 2012 12:24 AM |

Cruchelow Jewelry & Loan, which is located in the Mack Dobbs Point shopping complex at the corner of Cobb Parkway and Mack Dobbs Road, was recently granted a pawnshop license erroneously.
Photo by Jon-Michael Sullivan

slideshow

KENNESAW — Some Kennesaw residents are livid that the city allowed a pawnshop to open in a shopping center near their neighborhood, despite a 2004 agreement that would keep certain kinds of businesses out of the area.

Bill Harris said he and his neighbors in the Summer Stream subdivision off Mack Dobbs Road reached an agreement with the city in 2004 about what kinds of businesses would be allowed in a new shopping center next to their neighborhood.

But in September, city officials approved a business license for Cruchelow Jewelry & Loan in the Mack Dobbs Point shopping center on North Cobb Parkway at Mack Dobbs Road, exactly the type of business residents wanted kept out.

In his website devoted to the issue, www.kennesawpawnproblems.blogspot.com   Harris writes that he and other residents found out in the fall of 2004 about plans to rezone the 2.9-acre development from residential to business.

Meetings were organized with developer Celestino Venturi by nearby residents to stop the rezoning, but an agreement was eventually reached with city officials to prohibit certain types of businesses in the new development, such as adult bookstores, massage parlors and pawnshops.

“Residents concerns were at that point more towards just what would go on that parcel, which was next to the northern end of our development,” Harris wrote. “We had expressed our opinions to Mr. Venturi and some of us attended the October 4, 2004, Kennesaw City Council meeting where quite a lot of time was devoted to the zoning change. In fact, of the 33 pages of minutes of that meeting, 14 pages had to do with the zoning change.

“Mr. Venturi and his Marietta land use/zoning attorney Mr. Garvis Sams gave assurances that many types of undesirable businesses would not be built on this property. The assurances were both written and oral and were in great detail incorporated into the minutes of the meeting.”

According to minutes from the city council’s Sept. 19 meeting, city finance director Gina Auld recommended the City Council approve a pawn and precious metal license for Cruchelow Jewelry & Loan, submitted by John and Serena Cruchelow. Mayor Mark Mathews called for a vote on the application, which was approved unanimously, according to the minutes. The license was approved in December.

City officials acknowledge making a mistake in approving the license.

“It’s just one of those things that was an oversight by our zoning department, and we’re trying to work through it,” Mathews said Wednesday. “We’ve been in contact with (Bill Harris) multiple times, as well as the business owner and others. We’re trying to work through it as best we can and see what options are out there.”

City Manager Steve Kennedy said the city is evaluating options regarding the pawnshop, which opened this year.

“One would be to have them move,” he said. “Another one would be to do a temporary revision to the zoning stipulations from 2004, that would allow the pawn shop to be there for just this one time and any future applications would not be honored, and other combinations of suggestions.”

A tax service, a children’s consignment store, a nail spa, a battery store and an AT&T store occupy other storefronts in the shopping center

On March 8, Kennedy and city zoning administrator Darryl Simmons met with Harris to explain that the zoning approval to allow the pawn store was processed in error by the city’s planning and zoning staff. They said they would look into meeting with other area residents to answer questions and receive feedback regarding the matter.

A date for that meeting has not been set, according to the city.

“The worst answer for area residents is if they just give them a variance and allow them to remain,” Harris said. “The next business that wants to locate there and is blocked from doing it would then be able to say, correctly, ‘Well you gave them a variance to remain, and we want one also.’ So perhaps we end up with some adult book store or massage parlor because the city decided to let this pawn shop slide.”

Business owner John Cruchelow did not comment when questioned by the Journal about whether he knew of the prior agreement between residents and the city regarding the property.

Venturi, the developer, said he preferred to abstain from making any public comments until he meets with city officials to discuss future plans for his property.

Read more: The Marietta Daily Journal - Pawnshop has neighbors seeing red in Kennesaw

Area homeowners were blindsided by the Kennesaw City Council action

Misc: 52 Summer Stream residents and 4 living on Mack Dobbs will be getting a 2 page mailing about the zoning issue this Wed and Thurs.  Other info is available at:  http://jcruchelow.blogspot.com/

In the Fall of 2004 it became known that the 2.9 acre undeveloped lot at the corner of Cobb Parkway and Mack Dobbs, was under consideration for development. At that time the land had a residential usage zoning (City PUD) and the owner of that time a Mr. Celestino Venturi was trying to get the zoning changed to allow business usage (HGB - Highway General Business).
 
Interested parties in our 54 unit Summer Stream subdivision,  others from Summer Brooke and Cobb Pky, organized two meetings at the New Beginnings church which is just across Mack Dobbs from our subdivision.

When I learned of the protest meeting I looked up the lands owner, Mr. Celestino Venturi and informed him of the meeting and suggested he attend. He had interests in several upscale Marietta restaurants and also owned a strip mall on Cobb Parkway at Mars Hill Road in Acworth.

Mr. Venturi and about 25 residents attended and it was a good meeting with views exchanged. The general feeling was that something was going to be built there and it was almost certain that the zoning change would take place as scheduled.

Residents concerns were at that point more towards just what would go on that parcel, which was next to the northern end of our development. We had expressed our opinions to Mr. Venturi and some of us attended the October 4, 2004 Kennesaw City Council Meeting where quite a lot of time was devoted to the zoning change. In fact of the 33 pages of minutes of that meeting 14 pages had to do with the zoning change.

Mr. Venturi and his Marietta Land Use/Zoning attorney Mr. Garvis Sams gave assurances that many types of undesireable businesses would NOT be built on this property. The assurances were both written and oral and were in great detail incorporated into the minutes of the meeting. 

The area residents were pleased that both Mr. Venturi, lawyer Sams and the City Council were in agreement that a long list of disagreeable business types would be prohibited from using that property. 

One of the major concerns was that there would be no 'Pawn Shops' and this is specifically addressed in the meeting and the written assurances given.  
From Page 9 of the 2004 Council minutes:  ". . . Mr. Venturi has agreed to eliminate as a part of the otherwise permitted uses:  . . . Overnight travel trailer parks, pawn shops, private parks, recreation grounds, rooming houses and boarding houses . . ."

The property is now called 'Mack Dobbs Point' owned by Mack Dobbs Properties LLC, 630 Willeo Rd, Roswell 30075, (ie: Celestino Venturi) and in the fall of 2006 a 24,600 sq ft building with 16 store fronts was put up and opened for tenants in 2007. It was recently on the market for 3,350,000 with Cassidy Turley Commercial Real Estate Services.

Unfortunately in a Sept 19, 2011 City Council meeting, approval was given for a Pawn and Precious Metal License to be operated in this strip mall at 2953 North Cobb Parkway. The motion carried 5-0 and is now doing business at this site and in fact various City personnel attended the ribbon cutting and it was promoted on the City of Kennesaw web site.  Despite the fancy title, the business advertises itself both on the site and in advertising as a 'Pawn Shop'.


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Just in case anyone wondered (I did) if the purpose of the business was stated as Pawn Shop, I took some time out to review the 20+ pages of documents on file with the Kennesaw City Clerk. Cruchelow Jewelry and Loan was mentioned many times, but as you can see here, 'Pawn Shop' did get one mention on the 'Application For Occupational Tax Certificate', if you weren't paying attention you might easily miss it, but it was there one time.

 

Venturi's Constitutional Challenge

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March 10th Suggestion to Kennesaw Zoning Problem

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