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Eat more development

Neighborhood's fight against developer, fast-food chain turns ugly

Hey, Mr. Developer, having troubles?
Did you get a neighborhood all riled up with construction plans? Need to build something that doesn't exactly comply with city ordinances? Don't sweat. Just hire a former city attorney and pal of Mayor Bill Campbell as your lawyer.
The North Buckhead Civic Association says that's just what Chick-fil-A did to sidestep city zoning restrictions and build a drive-thru restaurant in North Buckhead.
The fast-food joint is going up in the Chastain Square Shopping Center, at Roswell Road and Midvale Drive. Just south of Wieuca Road, Midvale is a quiet street, home to about 25 families. The yards are well kept, but not overly immaculate or showy. The houses range from modest one-story, ranch-style homes to split-level and two-story cottages.
One of them belongs to Giovanna DiMaura. It's where she's lived for 23 years, raised two children, and now mourns for her husband who died of lung cancer a-year-and-a-half ago. It's also next to the Chick-fil-A site, and DiMaura, 50, says her house is now a prison.
"They took my privacy away from me. I have to keep all my windows closed because of the dust [from the construction]. I feel like everyone can see me in the bathroom, in the shower. There's no fence, nothing but very small trees," DiMaura says.
Chick-fil-A and the property's developer, Frank Bishop, first approached the civic association in November 1999. Chick-fil-A asked the neighborhood association for a zoning variance. But, while Midvale residents were wrestling with that request, Chick-fil-A and Bishop were busy getting a building permit, neighborhood association President Gordon Certain says. He's convinced the maneuver was an intentional distraction.
"They asked for the variance in November, and while that was still being looked at, they went after a building permit. But they never told us they were abandoning their appeal for a zoning variance," Certain says.
Bishop denies duping the neighborhood and says he followed all city procedures. Unbeknownst to Midvale residents, the city issued the building permit Jan. 6. But Certain says the building permit was not displayed on the site and that neighbors who went to the permit office were told repeatedly that there was no permit for the parcel of land at the corner of Midvale and Roswell.
Certain says he spotted a permit at one point in a hard-hat area off-limits to pedestrians. When he asked to see the permit, a construction worker told him "no."
Bishop says the permits have always been posted in accordance with the law but notes that pedestrians aren't allowed on construction sites for obvious liability reasons. "I take issue with anyone who says we didn't post the permit on the property properly."
As soon as the permit was discovered, Midvale resident Don Deal filed an appeal with the Board of Zoning and Adjustment. That was April 27. At the appeal hearing, Deal pointed out that city code prohibits construction of a gas station, mortuary or drive-thru business within 100 feet of residential property.
The board rescinded the building permit, but the project was back on after Bishop filed suit against the city of Atlanta in Fulton County Superior Court on July 12. The court reinstated the building permit because Deal's appeal had been filed too late. The appeal period after a permit is issued lasts only 30 days, and Deal filed his appeal almost four months after it was issued.
"We followed the process the city of Atlanta has in order to get a building permit or else the city of Atlanta would not have given us the permit," Bishop says.
When construction resumed, the neighborhood group turned to Atlanta City Councilman Lee Morris, who also butted heads with Bishop about the driveway going on Roswell Road instead of Midvale.
"The developer told us that he had to have the curb cut on Midvale because the Georgia Department of Transportation refused to let him have the curb cut on Roswell Road. We looked into this personally and we understood from the DOT that they actually recommended a curb cut on Roswell for Chick-fil-A," Morris says. "From the very beginning the developer has been very difficult to deal with."
Bishop denies ever saying that the DOT recommended the curb cut be on Midvale.
To add to the resident's ire, Chick-fil-A won't even be using the old curb cut, even though it's taking advantage of zoning that allowed the old curb cut in the first place. The company was allowed to move its curb-cut closer to Roswell Road because it was grandfathered in by zoning for the old curb cut.
Finally, Morris took the matter before the city council. Three times council passed ordinances that would have prohibited large truck traffic on Midvale and moved the entrance to the drive-thru from Midvale to Roswell Road.
But Chick-fil-A had hired its own gun with clout in City Hall. Three times Mayor Bill Campbell vetoed Morris' efforts, causing Deal, Locker and even Morris to grumble that Chick-fil-A was given special treatment because its lawyer, Michael Coleman, has close ties to mayor's office.
Coleman was city attorney under former Mayor Maynard Jackson's third administration and currently represents Atlanta in a federal lawsuit against the city's affirmative action program.
"I think it's a travesty to have a curb cut on Midvale, but Chick-fil-A's attorney is very close to the mayor and convinced the mayor to veto the ordinances," Morris says.
From Chick-fil-A's perspective, Coleman is simply the go-to guy at their law firm, Troutman Sanders, when it comes to government affairs in Atlanta. But his involvement added to residents' perception that cronyism is more important in city government than the law and that developers are powerful enough to influence the city.
"That [ordinance prohibiting drive-thrus from being built within 100 feet of a residential property] was designed to protect residents from exactly what Chick-fil-A is doing. That's why the law was written, but the law doesn't matter, because they know the mayor and have a lot of money," says Debbie Locker, a Midvale resident. "It's a bad precedent for the city of Atlanta. I wish I knew why the mayor didn't see fit to protect its residents from being overrun by development."
Coleman says he did send a letter to Campbell and the rest of the city council, urging them to reject one of Morris' ordinances, but never personally asked Campbell to veto Morris' proposals.
"It's been six years since I worked for the city and there's nothing unethical or illegal about what I do at all," says Coleman. "The charges [of cronyism] are simply unfair. My law firm has had a relationship with Chick-fil-A for many years. I was hired to fashion a compromise between the neighborhood association and the businesses who want to develop the project. I'm still optimistic a compromise can be fashioned that will work to everyone's best interest."
While the mayor's office is used to less than cordial relations with many Buckhead residents, this is one of the first times Chick-fil-A's image has been tarnished. Founder and Chairman S. Truett Cathy is devoutly religious and has nurtured the company's reputation as a good corporate citizen, partly by closing all Chick-fil-As on Sundays. The company's purpose is, "To glorify God by being a faithful steward of all that is entrusted to us. To have a positive influence on all who come in contact with Chick-fil-A."
Irwin Reid, Chick-fil-A's real estate representative, says the company bent over backwards to accommodate the neighborhood group. "We met with the neighborhood on numerous occasions, supplied all the info required by law and statutes," Reid says. "I don't see how that's underhanded when we simply played by the rules."
Morris now is asking fellow council members to approve what he calls the "Chick-fil-A ordinance." Because he says Bishop and Chick-fil-A's lawyers possibly did follow the city's rules, he wants to change the rules so that what happened on Midvale never happens again. The ordinance, introduced on Oct. 16, would require the Bureau of Building to post all building permits on the city's Web page.
The "Chick-fil-A ordinance" would also require the permit holder to post the permit on a sign not less than six-feet by six-feet in view of the street within 24 hours of receiving the permit.
"I hope these kinds of problems are avoided in future years, and the fact that it'll probably be referred to as the 'Chick-fil-A ordinance' is a sad commentary,' Morris says. "I have been very disappointed with their [Chick-fil-A's] attitude, which is sad to say because they were my very favorite fast-food restaurant."