Title
Special Use - Used Merchandise Store; Frederick and Trina Bryant
3217 New Macland Road, Suite 90; Land Lot 725
Body
Prepared By: Community Development
Recommendation: Based on the analysis of this application, using the standards and criteria found in Section 13-38 of the UDC, staff recommends the following conditions of approval:
1. Merchandise allowed for retail sale at Suite # 90 is limited to that described by the application, specifically that the merchandise is no more than 4 years old. Auto parts, tires and pawn shops are specifically excluded in this approval.
2. Merchandise shall be owned by the applicant as no consignment or vendors are approved as part of this application.
3. No collection bins be permitted at this site related to this business.
4. No equipment or merchandise may be stored or offered for sale outside the store without approval of a temporary event permit.
5. The applicant shall maintain "no dumping" signs outside at the rear of the location and monitor the area for illegal dumping. Staff notes that the shopping center has had past issues with illegal dumping. It may be of interest to the applicant and the shopping center in general to consider installing electronic surveillance to discourage this activity as the applicant and property owners will be responsible for clean up and maintenance of the property.
6. Violation of the conditions of this approval or the requirements of an approved building plan or permit may be subject to the enforcement actions outlined in Section 16 of the UDC.
7. Any subsequent business and/or property owner apply for Special Use Approval for this use.
Background:
Article 2, Table 2-3 of the City’s Unified Development Code specifies permitted and special uses in zoning districts. The subject property is an existing shopping center, located at the intersection of New Macland Road and Macedonia Road. According to the City’s Official Zoning Map, the property currently is zoned Community Retail Commercial (CRC). The property is surrounded by existing CRC zoned commercial development to the north, east and south. The properties to the west are zoned NRC.
The CRC zoning district is established to accommodate commercial uses serving a citywide or regional market. This zoning district is typically if not exclusively designated on properties abutting and with access to major arterial streets and at intersections of arterial streets with other major streets, where development nodes can be supported by the regional transportation network. Higher density residential uses in certain locations may be permitted. In relation to comprehensive plan, the CRC zoning district is intended to implement the “community activity center” identified by the future land use map.
Mr. Frederick and Trina Bryant are seeking a Special Use approval to operate a used merchandise retail store at 3217 New Macland Road, Suite 90. The used merchandise the applicants intend to sell is purchased by them as second hand items from a variety of sources. Applicants state that some of the items have been worn or utilized and may need little to no repair. Other items may be donated or sold to them at a discounted rate from its original sales price. Still other items may have been used as custom promotions or are acquired through liquidations or other closeout merchandisers.
On the same property, applications have been approved under the previous code to allow the retail sale of used merchandise. The previous approvals require that any subsequent business or property owner apply for special use to operate a used merchandise store.
The previous special use stipulations placed on this property include the following:
A. 2011 Action
B. 2016 Action.
In 2016, the antique mall changed ownership and the new owner came in to apply for a change in special use conditions (this was after the adoption of the new UDC in 2015)
The conditions on the 2016 approval were as follows:
1. That property be used as an antique mall as described by the applicant. Any other use relating to the sale of used merchandise shall have to reapply for SUA.
2. That no equipment or merchandise be stored outside the store except in accordance with outdoor display requirements or special sales promotions.
3. That the applicant maintain "no dumping" signs outside at the rear of the location and monitor the area for illegal dumping.
4. Violation of the conditions of approval will render the approval null and void and the use vacated from the property.
Staff found that the use meets the definition of flea market, which is:
Flea market: The use of land, structures or buildings for the sale of produce or goods, usually second-hand or cut-rate. A flea market is an open air business.
A flea market is also defined in state law as follows: Flea market means any event (1) at which two or more persons offer personal property for sale or exchange; and (2) at which a fee is charged for the privilege of offering or displaying personal property for sale or exchange; or (3) at which a fee is charged to prospective buyers for admission to the area where personal property is offered or displayed for sale or exchange; or (4) regardless of the number of persons offering or displaying personal property or the absence of fees, at which used personal property is offered or displayed for sale or exchange if the event is held more than six times in any 12 month period. The term “flea market” is interchangeable with and applicable to “swap meet,” “indoor swap meet,” or other similar terms regardless of whether these events are held inside a building or outside in the open. The primary characteristic is that these activities involve a series of sales sufficient in number, scope, and character to constitute a regular course of business. The term “flea market” shall not mean and shall not apply to (1) an event which is organized for the exclusive benefit of any community chest, fund, foundation, association, or corporation organized and operated for religious, educational, or charitable purposes, provided that no part of any admission fee or parking fee charged vendors or prospective purchasers or the gross receipts or net earnings from the sale or exchange of personal property, whether in the form of a percent of the receipts or earnings, as salary, or otherwise, inures to the benefit of any private shareholder or person participating in the organization or conduct of the event; or (2) any event at which all of the personal property offered for sale or displayed is new, and all persons selling, exchanging, or offering or displaying personal property for sale or exchange are manufacturers or licensed retail or wholesale merchants (O.C.G.A. 10-1-360).
Such use is not permitted by the Unified Development Code.
Staff further found that at a minimum a special use approval was a prerequisite for the applicant’s proposed use. Because the previous special use did not limit approval to a specific suite on the property, a new tenant at any other location on the property is required to apply for special use.
Applicant filed an administrative appeal of the staff’s interpretation, and the Mayor and Council voted to approve the appeal, concluding that the use did not meet the definition of flea market but was instead an allowable use of retails sale of used merchandise. Mayor and Council also concluded that, while allowed, the proposed use was subject to the special use approval process.
Fiscal Impact:
The property is developed with an existing shopping center. There are other existing similar uses within the shopping center. The use will be conducted entirely within the building. An increase in traffic flow and possible illegal dumping by others is anticipated by the operation of this new business.
Analysis:
Section 13-38 of the UDC provides the Criteria for Special Use Decisions. The following is a written analysis comparing the proposed action with the criteria in this section. The planning commission and the governing body take into consideration these standards in making a recommendation and decision, respectively, on a special use application:
Criteria (a). Will the proposed special use be consistent with the stated purpose of the zoning
district in which it will be located?
Response: The property is currently zoned CRC, Community Retail Commercial. The CRC Zoning district is established to provide locations for office, commercial, and service uses that serve several neighborhoods and communities, or which may provide regional attraction. A used merchandise store would offer additional sale items for those customers looking at used items for their homes or businesses. The use would be consistent with the stated purpose of the CRC zoning district Staff notes that although retail sales is consistent with the stated purpose of the zoning district, care must be taken to ensure that quality merchandise is maintained and there is no accumulation of junk.
Criteria (b). Will the establishment of the special use not impede the normal and orderly development of the surrounding property for uses predominate in the area?
Response: The applicants desire to operate the proposed business within an existing building. No exterior alterations are planned for the structure. As such, the use does not impede the normal and orderly development of the subject property for retail commercial uses. Approval of used merchandise sales without any restrictions may be inconsistent with the previously approved special use. The previous approved special use limited sales to meeting the definition of antique mall, where the majority of merchandise must meet the definition of antique.
Criteria (c). Is the location and character of the proposed special use consistent with a desirable pattern of development in general?
Response: Other used retail stores are located along commercial corridors and can be found in either stand alone buildings or within a tenant space in a shopping center. The use at this location would be consistent with other commercial activities along New Macland Road and Macedonia Road. Staff notes that the existing space was previously used as a haunted house. The applicants have indicated that the business would bring additional commercial activity to the shopping center.
Criteria (d). Is or will the type of street providing access to the use be adequate to serve the proposed special use?
Response: New Macland Road, an arterial roadway and Macedonia Road, a minor collector roadway are adequate to serve the use as proposed. The property is located within the shopping center at the Northeast corner of these roads.
Criteria (e). Is or will access into and out of the property be adequate to provide for traffic and pedestrian safety, the anticipated volume of traffic flow, and access by emergency vehicles?
Response: The property has direct access to New Macland Road and Macedonia Road. Vehicular access to the site is deemed appropriate. Access to the property for emergency vehicles is easily achieved via direct connection to these roadways. Due to the expansive parking lot and lack of pedestrian connections to the existing sidewalk along both roads, staff notes that majority of customers to this proposed use and the existing businesses will be arriving by vehicle.
Criteria (f). Are or will public facilities such as schools, water or sewer utilities, and police or fire protection be adequate to serve the special use?
Response: Staff notes that the use will be conducted out of an existing space within the shopping center. The proposed use poses no impact to local schools. As long as the use is maintained within the existing space, and no bins are placed on site and no illegal dumping of merchandise occurs, other public services should be adequate to serve the proposed retail use. Staff did not receive concerns regarding this application from other department or outside agencies.
Criteria (g). Are or will refuse, service, parking and loading areas on the property be located or screened to protect other properties in the area from such adverse effects as noise, light, glare or odor?
Response: The proposed business will utilize the refuse facilities currently existing on site. No expansion of the existing parking facilities is proposed at this time with this application. Loading facilities are located to the rear of the space. Staff notes the applicants must seek approval from the City Building Official and Cobb County Fire Marshal's office as part of the tenant occupancy process prior to issuance of a Certificate of Occupancy.
Criteria (h). Will the hours and manner of operation of the special use have no adverse effects on other properties in the area?
Response: The proposed use is consistent with other retail uses within the existing building and would be regulated to the same hours of operations as other existing businesses at that location. It is noted the nature of the use may result in illegal dumping by others seeking to dispose of their goods with the idea that the applicant will use the merchandise in their operations. As long as the merchandise is limited to that described by applicant to the Mayor and Council, signage (and possibly electronic surveillance) is placed on the property, and the applicants and property owners are vigilant in monitoring the property, possible adverse affects can be minimized.
Criteria (i). Will the height, size or location of the buildings or other structures on the property be compatible with the height, size or location of buildings or other structures on neighboring properties?
Response: The special use will be operated within an existing space in the shopping center. The business use does not include merchandise drop offs or exterior displays.
Visuals:
Fire Marshal approved floor plan/
Summary:
It appears that the standards for special use have been met. Should City Council approve the application, staff recommends the conditions stated above.