To permit or not to permit?

By Jason Wright / Appen Newspapers

It's tough to own a small business, of that fact everyone agrees.

But just how much slack should City Council give local business owners who might not be totally up to speed on Milton's regulations?

Take the case of Robert Nestor's American Gardens on Birmingham Highway. Nestor has been operating the small-scale – two trucks that leave in the morning and come back at night, he said – landscaping business for 15 years at the site without complaint from neighbors or much oversight from Fulton County. In January, a Milton code enforcement officer spotted the business and noticed it didn't have the appropriate use permit.

Applying for that permit meant time in front of Planning Commission and City Council – and what Nestor said is thousands of dollars in land surveys. That's because Nestor's current setup runs afoul of Milton's zoning laws, so he is asking for several variances.

It also meant a public meeting where neighbors who had moved next to the business brought up concerns Nestor said he didn't know existed.

"Talk about frustration," said Nestor. "I've been here 15 years and all of a sudden they make me feel like a criminal. I've never had any complaints. I pay my business taxes, do what I have to do. To get a warning notice and then all of a sudden you're in violation – it's shocking when you didn't even know you were violating."

Or take the case of Frank Schaffer's The Landscape Group, which had been operating for more than 18 months on Arnold Mill Road without a proper use permit before being discovered in October 2008 by a Milton code enforcement officer. Schaffer said he assumed everything had transferred over since moving from Roswell in 2006.

Unfortunately, it hadn't, as he needed to get a new use permit to operate legally within Milton.

Both are now in a kind of legal limbo. Schaffer's case is set to be voted upon by council June 15, while Nestor's has been postponed following the results of that aforementioned land survey.

The problem, said Community Development head Alice Wakefield, is that Fulton County's code enforcement division was primarily complaint-based. Since neither bothered their neighbors, no one at Fulton ever realized what was going on – even through Milton's laws on the permits are the same as Fulton.

"The rules and regulations have been there for some time," she said. "But when you become a city, you up the expectation, so there's more scrutiny, more review."

At the April 27 Milton City Council meeting, both cases came before the city's elected officials.

Among the questions of whether or not to allow the variances for existing structures was that serious policy issue: Should longtime business owners be allowed to apply for permits retroactively?

Mayor Joe Lockwood said since the cases have yet to be decided, he couldn't talk about them specifically. He did say, though, that in hypothetical cases like these he believes it is prudent to side with the business owner – especially if no neighbor ever complained to the city.

"We certainly don't want to tell our code enforcement officers not to do their jobs," Lockwood said. "But I feel you have to be reasonable and look at the whole picture. With someone who has been in business for 15 years, you have to treat them differently than someone who is just starting from scratch."

Councilman Alan Tart has a different opinion, however."It is hard for me to buy the story of a large-scale landscaping business that, after being cited for operating illegally, wants to claim they did not know such regulations existed," he said.

He said when a citizen is cited for breaking the law, it's very rare that a judge would drop the charges because they didn't know any better."I do not believe the onus is on the government to expend taxpayer dollars to find [businesses]," he said. "The fact that Fulton County did not have adequate code enforcement coverage in this area prior to the formation of the city is not an excuse."

He also said the businesses are asking for variances to continue operations, and that doesn't sit well, either."Just because they have been doing something a certain way for many years, and this is a convenience for them is no reason to grant variances to our development standards," he said.

Nestor said he doesn't understand that mentality. He's been a longtime resident, and his livelihood depends on being in Milton, he said. "They've got this new town. They want to be proud of it and want people to be a part of it, and they're antagonizing everybody in a lot of different ways – I've heard horror stories," said Nestor. "If I treated my customers like that, I wouldn't have a business."

Nestor also questioned how councilwoman Julie Zahner Bailey, whose family owns Bailey Farms and Gardens on Hickory Flat Road – just a few miles from his landscaping company – could be allowed to sit in on the use permit hearings.

According to city records, Zahner Bailey fills out a full disclosure form prior to landscaping cases detailing how she would not profit by sitting in on the case.

Former and current City Attorneys Mark Scott and Ken Jarrard agreed recusal is not necessary and signed off.

For his part, Schaffer said he just wants to move on from the whole ordeal."I just want to get it over with, get it done and get on with business," he said. "A whole lot has been made out of nothing – we haven't really made a huge impact to anyone around us."

Both Schaffer and Nestor said their mistakes were honest, and that as soon as they were notified, they jumped at the chance to make things right."I thought we've had a really positive response from city council and the mayor," Schaffer said. "It hasn't been all bad – but of course no one's voted."

What is a landscaping business?

Irrespective of the two cases before City Council, Milton's Planning Commission has been looking at revising the city's landscaping business ordinance.

Chairman Paul Moore said in 2006 the city adopted a number of Fulton County's ordinances carte blanche to make sure the city could enforce law. The one that defined a landscaping business was always on the "to-do" list to revisit.

The timing is simply a coincidence, he said."Right now, the problem is there is no clear cut definition for what is a landscaping business," Moore said.Under the law as it is now written, a landscaping business could be a growing operation with a wholesale or retail component or a single truck driven by a team of workers. It could also be a large-scale operation with industrial equipment coming and going at all hours.Such a wide law creates what Moore calls a "sliding scale of impact."

"We have to protect the homeowner from a large-scale business operating in an area that only requires limited buffers [strips of vegetation meant to shield structures]," he said. "However, the rights of the small business owner should be protected, as well. They deserve to put their businesses with other like businesses."