Title
Administrative Appeal - 3217 New Macland Road, Land Lot 725 Flea Market/ Used Merchandise Store
Body
Prepared By: Community Development Department
Recommendation: Denial of the appeal
Background:
The subject property is located at 3217 New Macland Road. The property is owned by WCP Management LLC. The owner has granted permission to Mr. Frederick Bryant to present this appeal. Mr. Bryant has presented staff with a request to operate a used merchandise store at the subject property. He stated he would be the only seller on the property. The store is called the Yard Sale Store. Staff reviewed this request and classified his use as a flea market. Flea Markets are not permitted in the CRC zoning district, and Mr. Bryant is appealing staff’s determination.
Analysis:
Mr. Bryant would like to open a used merchandise store called the “Yard Sale Store” in a CRC zoned property. After review of the code, staff determined that the use meets the definition for a “flea market” and therefore is not permitted.
The applicant will be selling used merchandise. The used merchandise store would be located in the same shopping center as the Antique Mall that was previously approved with a special use. The previous UDC specified that used merchandise stores required special use approval. The revised UDC adopted in December of 2015 did not include this language.
The current UDC does not define used merchandise, thrift or consignment. In the table of permitted uses, Retail trade establishments, enclosed is permitted in the CRC district. It is staff’s opinion that the use is not defined as a Retail trade establishment, enclosed, because it better meets the definition of a flea market. Also, the definition excludes pawn shops, which are know for the sale of used merchandise. Flea Markets are not permitted in the CRC zoning district, as such, the applicant was advised that the use is not permitted.
The definition for a Flea Market is as follows :
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).
If Mayor and Council choose to accept the applicant’s request regarding the appeal of the administrative decision, staff recommends that the use be considered as a special use.
The existing Treasure Hunt Antique Mall was permitted only after approval of a special use. Based on the language in Sec 1-97 the conditions granted under the special use still are valid and therefore at a minimum a change in conditions of special use approval would be required. The special use granted for the Treasure Hunt Antique Mall was limited to a specific owner and limited the merchandise to only that meeting the definition of an antique store.
Additional definitions and code sections for discussion purposes.
Retail trade establishment, enclosed: Any business offering goods and products for sale to the public, which may include the incidental repair of such goods and products, that operates entirely within a structure containing a roof and walls on all sides, except for outdoor display or other use during business hours and accessory storage in enclosed, subordinate buildings. These include but are not limited to the following: hardware, paint, glass and wallpaper stores, grocery and miscellaneous food stores including retail bakeries, apparel, shoe, and accessory clothing stores, furniture, upholstery, floor covering, household appliance and home furnishing stores, musical instrument stores, radio, television, and computer stores, record, tape, and compact disc stores, , drug stores, apothecaries and proprietary stores, sporting goods stores and bicycle shops, art and stationery stores, hobby, toy, and game shops, jewelry, gift, novelty, souvenir and antique shops, camera and photographic supply stores, luggage and leather goods stores, sewing, needlework, and piece goods stores, newsstands, florists, , automotive parts stores not involving repair, video rental and sales stores, and watch and clock sales and repair shops. Retail trade establishment excludes the following uses: package stores, pawn shops, and tobacco shops.
Sec. 1-97. Status of Prior Zoning Approvals.
Notwithstanding the repeal of prior ordinances in conflict with this ordinance upon its adoption, if a property was zoned subject to conditions or use approved subject to certain conditions existing and in effect at the time of adoption of this ordinance by the Powder Springs Mayor and City Council, such zoning conditions or conditions of use approval shall continue to apply to said property.
The previous special use stipulations placed on this property
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.
Summary: It appears that the requested use is not a permitted use.
Attachments: Applicant's appeal