Wednesday, June 10, 2009

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."


Anonymous said...

Ok, I'll take the bait. These business owners are either naive or choosing to disobey the referenced ordinances. Pointing the finger at the community is a pretty ridiculous proposition when instead they could have just sat down and spent a day figuring out how to make their business work within the framework of the law. Don't try to pretend you're the victim and you're angry for having to spend money to get in compliance; SMART business owners do that every day. Drawing press attention to your plight is pathetic.

Anonymous said...

This city is a joke. We need a new city council who will recognize the need between balance for a strong business community while still not promoting overdevelopment. That is not taking place now, rather a few council members have an agenda without respect to the health of the city, but rather in-line with personal agendas. It is a crying shame that we live in an affluent area, have no parks for our kids to play, have retail centers that are quarter filled, etc. Someone needs to hold people accountable at the top, and that is not happening.

Anonymous said...

When I was a kid we used to play in our own yard on our own swingset and all our friends came over to play!

Didn't need to have a fancy park to have fun...

Anonymous said...

Welcome to the 21st century. We need parks with state or the art Baseball, Football, Soccer, Lacrosse, etc. fields. The fact of the matter is that our city was started without the proper financial due diligence being done to understand what financial resources are needed to run a city. Milton has no money, so all of the extra things that make communities, ie. parks, thriving small business with unique character, etc. are not here. Council meetings are a joke, with nothing accomplished other than council members pontificating. We neeed a change, big time.

Anonymous said...

there are other cities with state of the art fields, move there. milton will never be the utopia you seem to want.

Anonymous said...

Let the businesses stay after getting properly registered and grandfathered in. These people need to continue working.

Anonymous said...

As previously stated Jan Jones sold a "pig in a poke" to the voters who voted "YES" for creation of the City of Milton.

Just wait, it will get a lot worse, mark my word "a lot worse".

Anonymous said...

From what I understand these are not the first landscape companies "SOMEONE" on council has tried to go after. If you look at the amount of landscape companies she (oops did I say that) i mean council has gone after compared to other types of business that should be a BIG red flag and considered a conflict of interest. Im sure there are more then landscape companies operating outside every word in the ordinances. Why are they not being ticketed?
WHAT we all should be concerned with is the taxes they are loosing from running small business out of MIlton.

Anonymous said...

TO the first idiot.... I bet there are codes on your property or house that are not in compliance with code. If you take it word for word. Even if you live in new house.

Anonymous said...

Speaking of letting irresponsible people having a business & liquor license in MILton. What about that new place that should be called CANT's. Go to see what people are saying about the place and the OWNER. MIlton should NOT let someone like this have a licensee and we should let them know since MONDAY they vote on his liquor license.

Anonymous said...

Milton staff should work with the business owners to get them up to speed. We need more small busineses right now. Yes, they should operate within the law and it looks as though they are trying to correct the noncompliance.

sad but true said...

The true side of Milton comes thru. A city created and run by a bunch of soccer mom’s frustrated by the lack of English speaking pool boys. Worshipping oprah and obama while their husbands are working in an attempt to maintain a false lifestyle for overzealous life sentence of marriage.

Anonymous said...

What a pathetic commentary on those trying to make a good life for themselves and others. I enjoy my married life in Milton, voted for the creation of Milton and look forward to better days here and all over the good ol' US of A.

Anonymous said...

Is that you JJ ?

Anonymous said...

I wonder if it were an interior decorating firm needing a variance if Tart would be so negative?

Anonymous said...

i am sure if ti
is was the case Alan would do the proper thing and fill out any legal forms with the attourney.

Anonymous said...

Sad but True: First Hockey Mom's, now soccer mom's under attack. Seems like America is picking on all mom's!

Back off or the mom's will revolt! Mom's get things done, no matter what.
I'd rather have a mom leading our country and in the White House then this lame Community Organizer and his fool Jester of a VP!

Anonymous said...

nuff said! Go on wit cha bad self!