5440 Fulton Industrial Blvd SW • South Fulton, GA 30336 • Office: 470.809.7700

GOVERNMENT OF THE CITY OF SOUTH FULTON

SHAYLA REED TAMMI SADDLER JONES INTERIM CITY

MANAGER DIRECTOR

COMMUNITY DEVELOPMENT AND REGULATORY AFFAIRS

MEMORANDUM

TO: Zoning Board of Appeals

FROM: Planning & Zoning Division

SUBJECT: V20-006: 5270 Campbellton-Fairburn Rd

MEETING DATE: November 19, 2020

The applicant seeks a variance from the South Fulton Parkway Overlay District color palate requirement in order to paint their awnings and sign post in their corporate colors. This is for a Dunkin Donuts.

STAFF RECOMMENDATION: APPROVAL

cc: Corey Adams, City Clerk

V20-006: 5270 Campbellton-Fairburn Rd Meeting on November 19, 2020

Page 2 of 4

APPLICATION INFORMATION

Applicant Information: Jeffrey S. Haymore, Attorney For Atlantis Fairburn, L.L.C.

Status of Applicant: Representative / Attorney

City Council District(s): 3

Parcel ID Number: 09F300001170868

Area of Property: 1.65 Acres

Existing Zoning: MIX, South Fulton Parkway Overlay

Current/Past Use of the Property: The business, Dunkin Donuts, is open and operating.

Prior Zoning Cases/History: 2002Z-0007

SPECIFIC INFORMATION

REQUEST

The applicant seeks a variance in order to paint two awnings and a sign base in their corporate colors (Picture Attached). This color (orange) is not a color allowed in the South Fulton Parkway Overlay District.

BACKGROUND

This request is for typical coloring/paint at a new Dunkin Donuts store. It is in conflict with the color regulations in the overlay district.

ADJACENT ZONING AND LAND USES

This is a multi-parcel site of MIX zoning. It is all part of one mixed use development. The site is at the intersection of Campbellton-Fairburn and Hall Road and Camp Creek, a major intersection. Adjacent parcels are not in the City of South Fulton.

APPLICABLE CODE REQUIREMENTS

3. 12K.4. E. Building materials and architectural treatments

Table 12

Permitted Colors for Exterior Walls, Building Components, Sign Structure, Accent and Decorative Elements

The following numbers refer to the Pantone Matching System, an international color matching system

Exterior Building Walls, Building Components, Sign

Structure, Accent and Decorative Elements

Accent and Decorative Elements Only

Browns, Beiges and Tans 462 C to 468 C 4625 C to 4685 C

Greens 553 C to 554 C 560 C to 561 C

V20-006: 5270 Campbellton-Fairburn Rd Meeting on November 19, 2020

Page 3 of 4

469 C, 474C, 475 C 4695 C to 4755 C 478 C, 719 C to 724 C 725 C to 731 C 476U to 482U 719U to 725U 726U to 732U

614 C to 616 C 3302 C to 3305 C 3295 C 342C, 343 C 3435 C 356 C, 357 C 5467 C to 5527 C 3305U, 3308U, 335U 336U, 341U-343 U 3415 U to 3435 U 349 U 356 U to 357 U 5535U to 5595U 553U to 559U

Reds 168 C, 181 C 483 C, 484 C 675C, 1685C, 4975 C

Grey 429 U to 433 U 443 U to 447 U Warm Grey 6U-11U Cool Grey 6U-11U 5467U to 5527U

Red-Browns 154 U, 1395 U 1405 U

Grey-Blue 5395U to 5455U 621U to 627U 642U to 644U 647U to 650U 654U to 656U 662U Green-Grey 5605U to 5665U

SITE MAPS

See attached.

VARIANCE CONSIDERATIONS

Staff is including the specific conditions that must be considered for a variance to be granted to assist the Zoning Board of Appeals in considering the application and its merits. According to our Code, these considerations include:

22.3.1 Variance considerations. Variances may be considered in all districts except CUP. Primary variances and concurrent variances shall only be granted upon showing that: (Amended 12-1-99)

A. Relief, if granted, would be in harmony with, or, could be made to be inharmony with, the general purpose and intent of the zoning Ordinance; or,

B. The application of the particular provision of the zoning Ordinance to aparticular piece of property, due to extraordinary and exceptional conditionspertaining to that property because of its size, shape, or topography, wouldcreate an unnecessary hardship for the owner while causing no detriment to thepublic; or,

C. Conditions resulting from existing foliage or structures bring about a hardshipwhereby a sign meeting minimum letter size, square footage and heightrequirements cannot be read from an adjoining public road.

V20-006: 5270 Campbellton-Fairburn Rd

Meeting on November 19, 2020 Page 4 of 4

PUBLIC PARTICIPATION Meeting was held November 5th, 2020, via Zoom. A report is attached.

STAFF COMMENTS Engineering: Requested information, none provided. Arborist: Requested information, none provided. Environmental: Requested information, none provided. Public Works: Requested information, none provided. Transportation: Requested information, none provided. MARTA: Requested information, none provided. Fulton County Health Department: Requested information, none provided. Fulton County Schools: Requested information, none provided. Fire: Requested information, none provided. Legal: Requested information, none provided.

STAFF RECOMMENDATION Overlay color regulations exist for a good and specific reason, to ensure continuity in development and have an aesthetic that is pleasing to the members of that community. Staff is very aware of the desire for the community to significantly improve the quality of development coming into the City. Ultimately, the petitioner’s requests are reasonable. They are asking for the same color palate that is at every other Dunkin Donuts, which are high-quality developments. We do not believe that allowing this overlay color variation to the Dunkin corporate colors will be of any detriment to the area. In fact, we believe that allowing this variance will help ensure the success of the business by improving its ability to be easily recognized by nearby traffic. We believe that Variance Consideration A will be met by granting this variance. Staff recommends APPROVAL based on these factors.

PREPARED BY: Nathan Mai-Lombardo, Planning and Zoning Administrator REVIEWED BY: Shayla Reed, Director, CDRA

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South Fulton Parkway Overlay

AG-1

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COSF ArcGIS Web Map

Esri, HERE, Garmin, INCREMENT P, Intermap, NGA, USGS

Address Points

Overlay Districts

County Parcels All

City Limits

Current Zoning

AG-1 (Agricultural)

CUP (Community Unit Plan)

MIX (Mixed Use)

11/6/2020, 12:55:04 PM0 0.1 0.20.05 mi

0 0.2 0.40.1 km

1:9,028

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11/6/2020 5270 Campbellton Fairburn Rd - Google Maps

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5270 Campbellton Fairburn RdFairburn, GA 30213

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J97P+XJ Fairburn, Georgia

5270 Campbellton Fairburn Rd

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G. Douglas Dillard Email: 404.665.1243 ddillard@dillardsellers.com

October 20, 2020 Nathan Mai-Lombardo Planning and Zoning Administrator Department of Community Development and Regulatory Affairs City of South Fulton 5440 Fulton Industrial Boulevard SW Atlanta, Georgia 30336

Re: Letter of Intent/Variance Standards for Dunkin Store at 5270 Campbellton Fairburn Road

Dear Nathan: This firm represents Atlantis Fairburn, LLC (“Applicant”). Applicant is the owner of 5270 Campbellton-Fairburn Road, South Fulton, Georgia 30213 (“Subject Property”). The Subject Property is at the corner of Campbellton-Fairburn Road and Hall Road. The Subject Property is recently improved with a 4,200 square foot convenience store/Chevron gas pumps and a 1,500 square foot Dunkin restaurant with drive-thru. The Subject Property is zoned to the MIX (Mixed Use) district and the South Fulton Parkway Overlay District. Applicant seeks the Zoning Board of Appeal’s (ZBA) grant of variance from the prescribed paint color requirements (Sec. 12K.4.E.9 & Table 12K) in the South Fulton Parkway Overlay District (Article XIIK) for exterior wall accent element, drive-thru and store entrance awning, and drive thru signage. The purpose of the variance is so that Applicant may paint these accent elements and features with the iconic Dunkin Donuts orange, bearing in mind that other than these elements, the facades comply with the South Fulton Overlay District paint colors.

The Overlay District prescribed tan paint color awnings and wrap-around stucco band can be seen in Exhibit “A”. The variance sought Dunkin Donuts iconic orange paint color awnings and wrap-around stucco band can be seen in Exhibit “B” The variance sought Dunkin Donuts iconic orange paint color sign structures can be seen in Exhibit “C”.

ANALYSIS OF VARIANCE STANDARDS

The following standards and factors set forth in City Code Sec. 22.3.1 entitled “Variance considerations” provide that “[p]rimary variances….shall only be granted upon showing that:

A. Relief, if granted, would be in harmony with, or, could be made to be in harmony with,

the general purpose and intent of the Zoning Ordinance; or,

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B. The Application of the particular provision of the Zoning Ordinance to a particular piece of property, due to extraordinary and exceptional conditions pertaining to that property because of its size, shape, or topography, would create an unnecessary hardship for the owner while causing no detriment to the public; or,

C. Conditions resulting from existing foilage or structures bring about a hardship whereby a sign meeting minimum letter size, square footage and height requirements cannot be read from an adjoining public road.”

By use of “or” in City Code Sec. 22.3.1, the City Council intends that a variance shall be

granted by the ZBA when the evidence satisfies one (or more) of the three written criteria; meaning either harmony (criteria A) or hardship (criteria B).1

Here, the primary variance should be granted because the evidence, as discussed below,

meets the “harmony” criterion:

“A. Relief, if granted, would be in harmony with, or, could be made to be in harmony with, the general purpose and intent of the Zoning Ordinance.”

As stated in Article II of the City of South Fulton Zoning Ordinance:

“This Ordinance is entered for the purposes, among others, of lessening congestion on the roads and streets, securing safety from fire, flood, and other dangers; providing adequate light and air; promoting the health and general welfare; encouraging such distribution of population and such classification of land uses and utilization as will facilitate economic and adequate provisions for transportation, communications, roads airports, water supply, drainage, sanitation, education, recreation and other public requirements. These regulations are made with reasonable consideration, among others, to the character of the districts and their peculiar suitability for particular uses, and with a general view of promoting desirable living conditions, protecting property against blight and depreciation and encouraging the most appropriate use of land throughout South Fulton.”

The general purpose and intent of the South Fulton Parkway Overlay District includes

“unity of design” and “aesthetics”. City Code Sec. 12K.1. But it also includes the “simultaneous pursuit of economic prosperity” and “to stimulate business and promote economic development”. City Code Sec. 12K.1. Thus, the intent of the Overlay District is to balance the interest in uniform design and aesthetic with the interest of furthering business and economic development.

This variance application is a perfect example of balancing these oft-perceived competing

interests weighed on the proverbial scale. On the one side of the scale, Applicant’s building overwhelmingly complies with the exterior façade paint colors of the Overlay District, thereby furthering uniformity of design within the District. On the side of the scale, granting a variance to allow the minor architectural elements of the building canopies and cornice belt as well as the drive through signage to be painted in the iconic Dunkin orange further Applicant’s business

1 Criteria C pertains to signs blocked by trees or structures and is not applicable in this case.

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interest of promoting economic development and brand recognition. Without use of the iconic Dunkin orange, vehicle customers could be, even if temporarily, confused as to whether the store is in fact a Dunkin store. Unlike most other businesses, the public expects Dunkin stores to use the iconic orange paint color and therefore will not be aesthetically displeased by its presence. On the contrary, use of the Overlay Districts’ required tan paint color could actually detract from the aesthetic quality. In further support, the use of the iconic Dunkin orange paint is at the end of the retail building closest to Hall Road, a minor dead-end street, rather than in the middle of the building facade.

For the foregoing reason, the ZBA’s grant of variance would not frustrate or otherwise be

disharmonious with the foregoing stated purposes of Article II of the Zoning Ordinance and Article XII governing the South Fulton Parkway Overlay District. As such, the ZBA is authorized to grant, pursuant to City Code Sec. 22.3.1, variance from the required paint color set forth in Table 12K.

CONSTITUTIONAL NOTICE

Georgia law and the procedures of the City of South Fulton require us to raise Federal and

State constitutional objections during the rezoning application process. While the Applicant anticipates a smooth application process, failure to raise constitutional objections at this stage may mean that the Applicant will be barred from raising important legal claims later in the process. Accordingly, we are required to raise the following constitutional objections at this time:

The portions of the City of South Fulton Code of Ordinances, facially and as applied to the Property, which restrict the Property to any uses, or to any zoning district other than that proposed by the Applicant are unconstitutional in that they would destroy the Applicant's property rights without first paying fair, adequate and just compensation for such rights, in violation of Article I, Section I, Paragraph I and Section III, Paragraph I of the Constitution of the State of Georgia of 1983, and the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States.

The application of the City of South Fulton Code of Ordinances, facially and as applied to the Property, which restricts the Property to any uses, or to any zoning classification other than in accordance with the application as proposed by the Applicant is unconstitutional, illegal, null and void, constituting a taking of Applicant's Property in violation of the Just Compensation Clause of the Fifth Amendment to the Constitution of the United States; Article I, Section I, Paragraph I, and Section III, Paragraph I of the Constitution of the State of Georgia of 1983; and the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the Constitution of the United States denying the Applicant an economically viable use of its land while not substantially advancing legitimate state interests.

A denial of this Application would constitute an arbitrary and capricious act by the ZBA without any rational basis therefore constituting an abuse of discretion in violation of Article I, Section I, Paragraph I and Section III, Paragraph I of the Constitution of the State of Georgia of 1983, and the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. A refusal to grant the variance request would lack objective justification and would result only from neighborhood opposition, which would constitute an unlawful delegation

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of the zoning power to non-legislative bodies in violation of the Georgia Constitution, Article IX, Section II, Paragraph 4.

A refusal by the ZBA to grant this variance application in accordance with the criteria requirements as requested by the Applicant would be unconstitutional and discriminate in an arbitrary, capricious and unreasonable manner between the Applicant and owners of the similarly situated property in violation of Article I, Section I, Paragraph II of the Constitution of the State of Georgia of 1983 and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. Any variance granted for the Property subject to conditions which are different from the conditions requested by the Applicant, to the extent such different conditions would have the effect of further restricting Applicant's utilization of the Property, would also constitute an arbitrary, capricious and discriminatory act in zoning the Property to a unconstitutional classification and would likewise violate each of the provisions of the State and Federal Constitutions set forth hereinabove.

For all the foregoing reasons, it is submitted on behalf of the Applicant that the variance application meets the requirements of the City of South Fulton Code.

STANDING OBJECTION

The Applicant further objects to the standing of each and every surrounding resident to challenge, whether before the ZBA or any court of competent jurisdiction, any variance decision by the ZBA in that he/she has not shown, nor can show, that he/she will suffer special damages within the meaning of Georgia law as a result of said decision. The Applicant raises this objection before the ZBA and requests the ZBA to determine the standing of any individual who challenges or objects to the ZBA’s decision to grant the variance for the Subject Property. Applicant further raises this objection before the ZBA to preserve said objection on appeal, if any, to any court of competent jurisdiction.

CONCLUSION

For the foregoing reasons, the Applicant respectfully requests that this rezoning application be granted as requested by the Applicant. If there are any questions about this rezoning request, you may contact me at 404-665-1243 or jhaymore@dillardsellers.com

Sincerely,

/s/: Jeffrey S. Haymore Jeffrey S. Haymore

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Jeff Haymore

From: Gary Hollander <garyhollander@yahoo.com>Sent: Friday, November 06, 2020 12:23 AMTo: Jeff Haymore; 'Nathan Mai-Lombardo'; 'Dana Gray'Cc: 'Shayla Reed'; 'Imran Ramji'; Julie SellersSubject: RE: Public Participation Plan Report for V20-006: 5270 Campbellton-Fairburn Road

Dear Jeff,  Thank you for your thorough description of the recently completed property at 5270 Campbellton Fairburn Road that contains a convenience store/gas station/Dunkin Donuts and the desire of Dunkin Donuts to seek a variance to paint its overhead drive‐thru and front door canopies, signage and architectural element of the building in the familiar Dunkin Donuts’ orange color.   Speaking for myself, as owner of the adjacent building to the south of the subject property, 5280 Campbellton Fairburn Road, I have no objection to the use of the Dunkin Donuts’ use of their branding colors in a tasteful fashion as shown in your photos of their property with the iconic Dunkin Donuts’ orange color. Had it been a McDonalds I would have not been surprised to see golden arches next door just as I would certainly expect to see the typical red and yellow storefront of Advance Auto Parts. It’s also about attracting business and new customers and many of these customers will patronize other stores in the center as well. Obviously, a shopping center with successful shops and businesses would make everyone happy and benefit the adjacent community too. I think that the Parkway Village shopping center has done a masterful job of integrating all their various shops and businesses within the community.  Best regards, Gary Hollander  

From: Jeff Haymore [mailto:JHaymore@dillardsellers.com] Sent: Thursday, November 5, 2020 16:36 To: Nathan Mai-Lombardo; Dana Gray Cc: Shayla Reed; Imran Ramji; Julie Sellers; garyhollander@yahoo.com Subject: Public Participation Plan Report for V20-006: 5270 Campbellton-Fairburn Road  Hi Nathan and Dana: Applicant held a neighborhood meeting via Zoom tonight. One adjacent property owner, Gary Hollander, participated in the meeting.  Attached is Applicant’s Public Participation Plan Report (with enclosures). Please include in the official variance application file. Please reply to me and confirm receipt.   Thanks!  

Jeffrey S. Haymore, Esq. 

 

d  (404) 665‐1243   e jhaymore@dillardsellers.com 

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