Open Letter to Atlanta Council on Cheshire Bridge Rezoning Proposal

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(APN) ATLANTA — Following the Wednesday, May 29, 2013 three to two vote by the Zoning Committee of the City Council of Atlanta, in favor of the Cheshire Bridge rezoning proposal, and in anticipation of the upcoming vote by Full Council on Monday, the News Editor of Atlanta Progressive News issued the following Open Letter to Council Members, in opposition to the proposal:

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Dear Atlanta City Councilmembers,

 

As a resident of the Cheshire Bridge neighborhood and concerned citizen, I am writing to implore you to vote NO on the Cheshire Bridge Road proposal during Monday’s Full Council vote, June 03, 2013.

At issue is a very radical and legally shaky, to say the least, concept to sunset, or amortize, the grandfathered-in status of certain businesses in the City of Atlanta.

Actually, I’m confident the legislation will not withstand a court challenge, so I’m not too worried about that.  I’m more worried about the unnecessary litigation cost to the taxpayers; the loss of public trust as I will discuss below; and the loss of the trust of developers, businessowners, and property owners, that the passage of this legislation by the Council would surely entail.

I have spoken with some undecided Councilmembers who say they have not been following this closely–it’s understandable given the recent budget debates–but that is very concerning to me, given the amount of misinformation and misleading information that Councilman Alex Wan (District 6) and the Law Department has presented to the Council thus far in reference to the two Cheshire Bridge rezoning ordinances.

WAN’S MISREPRESENTATION OF COMMUNITY SUPPORT

Wan told Zoning Cmte that there is broad community support for the proposal, saying that there are two online petitions, one in support and one against, and that the one in support had nearly ten times more signatures than the one against.

This is false and misleading by Mr. Wan and he knows better.

There are actually at least FOUR petitions at change.org, one in favor and three against:

http://www.change.org/search?utf8=%E2%9C%93&q=cheshire+bridge

The one in favor has 433 supporters.  The combined three against have 776; many people did not sign the more recent opposition petition Wan cited because they had already signed an earlier petition.

Mr. Wan also said, “The only ones who oppose it are adult businesses and developers.”

However, that is not true, as many of the people–including myself–who have spoken out against this, are neither adult businesses nor developers.  This includes residents of the Cheshire Bridge community like myself (I am a person too), as well as activists with a group called QUEER UP Atlanta.

He also stated that this is supported by NPU F.  However, the vote that NPU F took on April 16 was on an earlier version of the legislation, so unless they voted again, we don’t know for sure whether they support the current proposal.

Actually, this issue has brought together an unlikely alliance.  You know, when the anti-gentrification advocates and the neighborhood preservationists agree with the developers, that you all have a serious problem.

THE ISSUE OF PUBLIC TRUST

The City makes zoning changes all the time, and whenever the City approves such a change, existing businesses that are already there are grandfathered in as “legal nonconforming uses.”

When past zoning changes have been debated, the City and the ZRB have assured opponents and existing property owners and business owners that the grandfather clause would protect them.

Basically, what the Council is considering–this radical amortization scheme–is to go back on its promises, and that’s just wrong.

That means the next time there’s a zoning change proposed, everyone has a good reason to be up in arms about the possibility of immediate change and harm to their neighborhoods, and they’ll have no reason to believe when you tell them otherwise–or for that matter, anything you say at all.

These are basically the concerns raised by the ZRB members who opposed the proposals in the recent ZRB vote against them.

So before you take this vote I would urge you all to ask yourselves whether you’re ready to abandon the public’s trust.  

The trust is already on shaky ground.  After all, everything that Mr. Wan said early on about how this was about achieving a vision and simply implementing a plan, and that he had no idea (see December 2012 Project Q interview) which actual businesses would be impacted, has now been all revealed now to have been a false pretext.  

http://www.projectqatlanta.com/news_articles/view/city_coming_for_your_cheshire_bridge_porn

The proposal has now been revised *twice* to make sure that all the other businesses that would have been impacted–from the baby furniture store to the car washes–are safe.  It was always about targeting adult businesses, so why would we believe anything else that Mr. Wan has to say about the motivations of the legislation now?

BAD FOR DEVELOPERS

Even Mr. Scott Selig, you know, your developer buddy who’s never had a development scheme you couldn’t support, is against this.  

Did you not hear about his testimony before the ZRB?  (Here, by the way, were my comments:

http://www.youtube.com/watch?v=1XjRMQFZgy0 )

He basically said this change, this new amortization policy, would call into question his ability to make future investments in the City of Atlanta, because he’ll always be worrying about how zoning changes will impact him, and because the promise of grandfathered-in status will become an empty one.

WAN WRONG ABOUT PRECEDENT

During Zoning Cmte, Wan also said not to worry about setting precedent, because he said this was so narrowly crafted to only impact a certain type of business, on two stretches of one street.

First of all, the courts won’t see it that way.

But even as a factual, practical matter: what was Councilwoman Keisha Bottoms’s (District 11) first question to the Law Department?  Whether this amortization scheme could be used in other parts of the cities, where, she says, there’s a need because of lack of progress on previous rezonings.

So obviously, at least one of your colleagues is already salivating to use and replicate the amortization scheme throughout the City.  So, historic preservations, be alarmed!  Working class neighborhoods, get ready!  Businesses that don’t meet the political, cultural, and racial agendas of certain neighborhoods, better lawyer up!

Bottoms also asked whether the businesses would be entitled to any compensation; the response was no.  Bottoms then went on to support the proposal.  So, obviously, she was happy with the answer: that amortization is really a back-door way to try to take people’s property away from them without having to invoke or pay for imminent domain.  And that takes me to the legal issues.

LEGAL ANALYSIS PART ONE: CITY SAYS LONG-STANDING GEORGIA LAW IN SUPPORT OF AMORTIZATION, BUT THAT IS SOMEWHAT MISLEADING

As I reviewed in the following article, I looked up the two cases that the City Law Department is citing in support of their claim that amortization is perfectly legal and fine, and the cases are completely inapposite, that is, irrelevant to the circumstances at hand.

http://www.atlantaprogressivenews.com/interspire/news/2013/05/02/analysis-cheshire-bridge-rezoning-proposal-likely-illegal.html

The bottom line is that, yes, there is a case, Gifford-Hill & Co. v. Harrison (1972) that states, in passing, that, theoretically, there might be a time when a municipality can require a sunset on a grandfathered-in business.

Here’s the exact language:

“The owner of land, or one in contractual relationship with the owner, has a right to be issued authorization to use the land for the purpose for which it is zoned at the time he makes his application for such authorization; the governing authority can thereafter rezone the land to prohibit a use previously permitted, and by such rezoning the previous use thereby becomes a nonconforming use which under the rezoning can be required to terminate within a reasonable time.” (emphasis added)

That was in 1972, forty-one years ago.  Since this theoretical pontification occurred in 1972, the pondered possibility has never, in fact, been upheld in a ruling that would apply it.

That’s obviously what the City wants to do here, to experiment in order to test the limits of this case law.

Of course, that’s not the case law that the City cites.  The City cites B.B.C. Land & Dev., Inc. v. Butts County (2007) and Flippen Alliance for Community Empowerment v. Brannan (2004), two more recent cases.  Again, these cases are inapposite.

What they do is they, again, in passing–having nothing to do with the issues upon which the rulings actually turned on–recite the same proposition as the 1972 case.

The Butts County case, for example, dealt with “whether vested rights to build in accordance with prior zoning requirements are transferable.”  Obviously, that’s not the issue here because no one is trying to transfer their status to someone else.

The Flippen Alliance case, also irrelevant.  It found someone could not expand their grandfathered-in use; again not the issue here.

When the Law Department says there is long-standing Georgia law in support of this, I worry there are some Councilmembers who might be misled into believing that means there’s numerous examples of case law where the principle has been upheld.  Instead, there are no such examples.

I’ve spoken with attorney Alan Begner several times about this and other attorneys who insist that the actual record of Georgia case law is in support of protecting and honoring the grandfathered-in status of existing businesses.

It will be difficult to overcome years and years of decisions in favor of the grandfathering protections, with a single proposition that’s been passed down for over forty-one years but never upheld in a ruling that actually looked at applying it.

The City Attorney also tried to muddy the waters at Zoning Cmte by saying that there could not be a legal “taking” here because many of the adult business owners are renters, and not property owners.  

I asked Begner about this and he says it is a taking because there’s no way the property owner can turn Onyx into a TGI Fridays.  A compelling point, isn’t it?

LEGAL ANALYSIS #2 – PREVIOUS CITY OF ATLANTA AMORTIZATION SCHEME WAS THROWN OUT IN FEDERAL COURT IN 1981

So, actually, the City has tried this experiment before, in its effort to amortize adult businesses out of a much larger section of Atlanta.

The ruling in Purple Onion v. Jackson — that’s Maynard Jackson — found that the scheme was unconstitutional under First Amendment rights under the Constitution of the US, because it would severely limit the availability of sex-related speech, including dance, and sex-related literature throughout the City, on the basis of the content of the speech.

The ruling did not reach the issue of amortization, as it was a federal case dealing with federal claims, but as a point of fact, the City has tried this before and failed, subjecting taxpayers to finance the administration’s apparent City Attorney job creation program.

LEGAL ANALYSIS #3 – LACK OF ALTERNATIVE LOCATIONS MEANS FIRST AMENDMENT PROBLEMS

The City Attorney swore that there were plenty of other places for these adult entertainment establishments to go to within the City of Atlanta.

However, Mr. Begner, who has studied these issues for a long time, insists this is not the case.

Wan and the Law Department should be required to substantiate a list of specific places in the City where the businesses could go.  Not a list of zones, because obviously, distance requirements also come into play.  Someone should demand a list of actual addresses or intersections.

As stated earlier, this lack of alternative locations creates a First Amendment problem for the City, just like in Purple Onion.  Actually, the problem is worse now than it was in 1981 because there are even fewer adult entertainment establishments left than there were before.

LEGAL ANALYSIS #4 – EQUAL PROTECTION

No one from the Law Department has addressed this question yet: How does the City justify establishing one grandfather clause [one of amortization] for one part of the city, while the rest of the city would be subject to the general grandfather clause [one of perpetuity]?  Attorney John Woodham, who has defeated the City of Atlanta in court so many times, noted that someone could bring an equal protection claim here, that would be another federal claim, on top of the state ones.

MORNINGSIDE NEIGHBORHOOD CONCERNS

Wan and some Morningside residents have bemoaned the lack of progress on Cheshire Bridge road due to the continued presence of legal nonconforming establishments.

Well, guess what?  They’re not entitled to progress!  That’s what grandfather clauses are all about.  Maybe if someone dies or retires or decides to close their business (like, Poster Hut), that’s when they might see progress.

To bemoan lack of progress is baffling.  Were the businesses supposed to just skedaddle, giving up their investments, just because Morningside soccer moms–who knew exactly what neighborhood they were moving into when they CHOSE to do so–want to be able to push their strollers down Cheshire Bridge Road, and don’t know what to tell their children?  (Yes, somebody actually said this at the ZRB hearing).

There are a lot of things that could be done to make progress on Cheshire Bridge Road.  People want walkability; how about some sidewalks?  If you have all this money for litigation, why not actually do something productive with it?  The seniors at Cheshire Bridge highrise need a walkway to get across the street to the Dominos.

And besides, who is going to invest in Cheshire Bridge in any capacity when the city is embroiled in a zoning debate, followed by lengthy litigation.  It creates uncertainty and trepidation.

ANOTHER GENTRIFICATION SCHEME

At the ZRB hearing, one Morningside resident insisted that this was not about gentrification because the NC zoning concept is opposed to big box stores.  Well, last time I checked, gentrification can occur even without a Wal-mart.

And the ZRB staff’s own presentation to the ZRB noted that the lack of progress on Cheshire Bridge could be measured by the lack of development and lack of increase in property values, and that these proposals would address those “problems.”

So, obviously, even the ZRB staff admit this is about raising property values and bringing about development.  

This scheme–to further push working families out of Atlanta–does not bode well for my community, on Woodland Avenue: one of the last multi-family affordable apartment communities in all of Atlanta.  

So I ask you to oppose this legislation because it is part of a scheme to gentrify, yuppify, and homogenize Cheshire Bridge, just like Midtown, just like the rest of Atlanta is facing.

Thank you for your time and consideration.  I am open to any questions, and I urge a NO vote.

MATTHEW CHARLES CARDINALE

Woodland Avenue resident

News Editor, Atlanta Progressive News

Vice Treasurer, Fulton Atlanta Community Action Authority

 

(END/2013) 

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