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

Pawn shop at center of controversy shuts down

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

By Sonia Moghe - email

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

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

City refuses zoning change for Venturi 5-0

On Wed. May 16th at 6 PM a Special Call Meeting of the Kennesaw City Council was held. The meeting lasted 45 minutes and 50 people attended. All Council members were present. John and Serena Cruchelow and Tino Venturi were present.

After Zoning Administrator Simmons outlined the subject matter of the meeting, Mr. Garvis Sams spoke for 15 minutes in support of the Venturi/Cruchelow request for approval of an Ordinance to amend a rezoning condition which had earlier been submitted by Mr. Venturi's Mack Dobbs Properties. Nothing 'new' was added, just restated for the record. A stenographer was present to record what was said. Future litigation is probable.

4 people spoke in opposition to any change in zoning and one person spoke in favor of having the Pawn Shop remain.

The 5 member City Council voted 5-0 to deny the request for a change in zoning to allow the Pawn Shop to remain.

The Venturi attorney, Mr. Garvis Sams, said that he would file a challenge in the Cobb Superior Court within the required 30 days.

Commission recommends against pawnshop

Commission recommends against pawnshop

by Geoff Folsom
gfolsom@mdjonline.com The Marietta Daily Journal

May 03, 2012 11:28 PM

KENNESAW — The city of Kennesaw’s planning commission denied a rezoning request that would allow a pawnshop to stay in a shopping center in a 3-0 vote Thursday.

Kennesaw City Council will have the final say on whether or not the store can remain open on May 16.

Planning and zoning director Darryl Simmons acknowledged that his own error allowed the Cruchelow Jewelry & Loan pawnshop to go into the Mack Dobbs Point shopping center, but said that error had to be corrected.

“It is my responsibility to make sure that all of the zoning conditions are met,” he said. “It was my oversight and my error that allowed the processing of that business license and subsequently their moving in to that suite ... Based on my analysis, based on the minutes of the 2004 review and based on the original intent of the land use restrictions, it is planning and zoning administrator’s recommendation that we uphold the 2004 rezoning conditions in its entirety.”

The property’s owner, Celestino Venturi, is asking the city to amend the zoning at the strip mall he owns that houses Cruchelow Jewelry & Loan, located at Cobb Parkway and Mack Dobbs Road. He wants the store to be allowed to remain in the shopping center for the remainder of its five-year lease. The pawnshop was allowed to go in the center despite a condition in the city’s 2004 approval of Venturi’s initial zoning request that prohibited certain businesses — including pawnshops — from being placed in the Mack Dobbs Point shopping center.

During the initial zoning process, neighbors expressed concern over the strip mall, which led to an agreement being reached about what types of businesses could go in the shopping center. Also among the 32 prohibited uses, which were written into city ordinances, were adult bookstores, tattoo parlors and golf driving ranges.

But the Kennesaw City Council approved pawn and precious metal and business licenses for Cruchelow Jewelry & Loan last year. The store opened Dec. 28, 2011.

Many of the 50 people in attendance at the meeting opposed the pawnshop.

“They built this business to disguise it as a pawnshop,” said Carol Robertson, a resident of the nearby Summer Stream subdivision. “If you want to be a jewelry, be a jewelry. If you want to be a firearm sales, be a firearm sales. But do not be a pawnshop, because that broke the rules.”

But attorney Garvis Sams, who represented Venturi, said pawnshops have become more upscale since the use was first restricted in 2004. He even submitted a photograph of a ribbon-cutting, attended by Mayor Mark Mathews, taken in February at Cruchelow Jewelry & Loan, before resident complaints started coming in.

“It’s aesthetically pleasing,” he said. “I would consider it a high-end retail store with a pawn capacity as well.”

Venturi also apologized for his role in putting the pawnshop in his shopping center, but said it has had no problems or any complaints of “bad looking” people around.

“I would like to say on my behalf that I have always been an upstanding citizen in Kennesaw,” Venturi said. “I have created jobs, tax revenue. I think I have created a nice looking center.”

But Bill Harris, who has helped lead a campaign against the pawnshop, said Venturi knew what he was doing.

“He knew back in September 2011 what the intended use was,” Harris said. “We’re getting stabbed in the back, and we don’t like it.”

Sams also submitted a petition with 164 signatures in support of the pawnshop, in an attempt to offset petitions with more than 100 signatures that have been submitted by residents of surrounding subdivisions. After the meeting, he denied claims that they were obtained from “transients” staying in extended stay hotels near the pawnshop. Sams said around “75 percent” of the signatures were from Kennesaw residents, with a “couple” each from Marietta and Acworth residents.

Sams said he hoped to get better results when the city council takes up Venturi’s rezoning request at a special called meeting on May 16.

“We’re disappointed, but we’ve got two weeks to work on it and get some more support for the applicant,” he said.

City council previously discussed shutting the store down because state law prohibits pawnshops from using the word “loan” in its name or advertising. But it determined at its April 2 meeting that the city did not have authority to rule on this law, saying it is a state issue.

Read more: The Marietta Daily Journal - Commission recommends against pawnshop

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.

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.

Kennesaw pawnshop may get rezoned

Kennesaw pawnshop may get rezoned

by Geoff Folsom gfolsom@mdjonline.com The Marietta Daily Journal

April 03, 2012 01:11 AM |

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KENNESAW — The owner of property where the city of Kennesaw mistakenly allowed a pawnshop will apply for rezoning, officials said Monday.

The property’s owner, Celestino Venturi, asked the city to amend the zoning at the strip mall that houses Cruchelow Jewelry & Loan at Cobb Parkway and Mack Dobbs Road, said Atlanta attorney Michael Pryor, who represented pawnshop owners John and Serena Cruchelow. Venturi; his lawyer, Garvis Sams; and Council members Bill Thrash and Jeff Duckett did not attend Monday’s hearing at the Kennesaw City Council’s regular meeting.

Mayor Mark Mathews said the rezoning could be discussed at public hearings before the city’s planning commission as early as May 3 and with city council on May 7.

If the rezoning is denied, the pawnshop could be forced to move, Mathews said.

Monday’s hearing was initially called after the city determined the pawnshop to be in violation of a state law prohibiting pawnbrokers from having the word “loan” in their name. According to Georgia code section 44-12-138, any pawnbroker that opens after March 1, 1992, must prominently use the word “pawn” and cannot use “loan” in advertisements.

But, after a threat on constitutional charges from the pawnshop’s attorney, the council voted 3-0 to dismiss the claim referring to the word “loan.” Mathews said city attorneys determined late Friday that, while state law prohibits advertising with the word “loan,” the city had no such wording in its ordinance, meaning it has no jurisdiction to enforce the law.

Despite the city’s claims being dismissed, John Cruchelow told council members he is already working to come into compliance with state law by removing any signs referring to the word “loan.” But he said moving the business would be too costly since he and his wife already put $40,000 into licenses and outfitting the store.

When questioned by Councilman Tim Killingsworth, John Cruchelow defended himself against allegations that he physically and verbally assaulted a neighbor, which led to an arrest in September for disorderly conduct. John Cruchelow said the neighbor had kicked in his door and made “sexual gestures” to his new wife.

“I’m not a public person. It seems everybody is trying to put my business out there,” he said. “I thought he was my friend.”

The Cruchelows left the council chambers after their case was dismissed, but Pryor convinced them to return to hear comments from some of the 50 audience members in attendance. Speakers delivered more than 100 signatures from residents of nearby subdivisions opposing the pawnshop.

Summer Stream resident Lisa Stables even volunteered to help the couple move to another location.

“Hopefully, we’ll find a way to work together so the law’s held up and you’re not hurt financially,” she told the Cruchelows.

But others pointed the finger at the City Council for not enforcing the law.

“They didn’t face the issue,” Summerbrooke resident Robin Ferguson said after the meeting. “They took the easy way out.”

After the hearing, John Cruchelow referred questions to Pryor, who said they plan to work with neighbors.

“The neighbors have a right to come out and express their concerns,” Pryor said. “Obviously the Cruchelows want to meet people halfway. If there’s something they’re doing that the neighbors don’t like, they want to hear from them because they’re their potential customers.”

Mathews apologized for the city’s error, admitting a “serious, serious oversight” in its zoning department at the March 26 meeting and echoed that feeling Monday.

“We’ve been put in a very, very bad position, just as everybody has,” he said. “It’s all been a serious, very serious mistake on our part, when they were approving the business license,” he said.

As of Monday, the Cruchelow Jewelry & Loan website maintained the word “loan” in the store’s name. It was also on signs at its location at 2953 N. Cobb Parkway.

Mathews said the City Manager Steve Kennedy’s office was reviewing whether anyone should be held responsible for the licensing foul-up.

“It’s purely within his abilities,” Mathews said.

In 2004, the city’s approval of a zoning request for Venturi put in writing that the Mack Dobbs Point shopping center would be free from certain kinds of business — including pawnshops.

After neighbors expressed concern about the strip mall during the initial zoning process, an agreement was reached that restricted what could be put at the strip mall. Among the other uses prohibited at the site, which were written into city ordinances, were adult bookstores and massage parlors.

But the city council, on the recommendation of city finance director Gina Auld, approved a pawn and precious metal license for Cruchelow Jewelry & Loan at its Sept. 19, 2011, meeting.

Read more: The Marietta Daily Journal - Kennesaw pawnshop may get rezoned

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 residents need to contact the City to make sure Zoning regulations will be enforced

The City admits that they made an error in allowing a Pawn Shop to be licensed in the Mack Dobbs strip mall.  Consideration is now being given to what can be done in this matter. 

I anticipate that the City will be in contact with area residents regarding this error, probably by a mailing and they will update residents as to the issue and solicit opinions from area residents as to what course of action would meet with general community approval.

It is extremely important that residents contact the City to express their concern about allowing businesses which are clearly excluded into this strip mall. We don't want to find massage parlors, adult book stores etc moving into this mall. The 2004 agreement must be enforced by the City. 

A message board has been set up to facilitate communications on the issue, take a look at:  http://kennesaw.proboards.com/index.cgi?  If only one or two residents bother to complain about this then probably the City will just give them a variance and nothing will happen, however, if enough people do protest then there is a possibility that something will actually be done and complaints about this may deter any future prohibited businesses from being allowed to rent in this strip mall.  So at the very least you should use the active links to email City officials to get some serious attention to the problem.

Probably on this coming Tuesday I will be writing to the residents in the Summer Stream development with some additional information and I expect to be able to enclose with that letter some comments giving the City view and possible courses of action which they and the City Council might take.

Both Mr. Kennedy and Mr. Simmons would be pleased to hear by mail or email from area residents who might wish to comment on the issue, and if you would like to write the address is:

Kennesaw City Hall
2529 J.O. Stephenson Ave.
Kennesaw, Ga. 30144

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

Planning/Zoning Administrator D. Simmons

dsimmons@kennesaw-ga.gov

Certificate of Organization

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