In a 3-2 vote at Tuesday’s zoning hearing the Cobb County Board of Commissioners rejected a rezoning application that would have allowed the construction of a gas station and convenience store in Fair Oaks.

The zoning case was Z-23-2020, and the location of the property was at the intersection of Atlanta Road and Danielle Drive. The applicant was Parklane Capital II.

The outcome was unusual since commissioners usually defer to the member whose district the rezoning request is in, and the motion to approve was made by District 3 Commissioner JoAnn Birrell, who represents the site of the proposed rezoning.

The attorney for the applicant, Garvis Sams, said in requesting approval of the application, “It’s a 1.088 acre tract located near Atlanta Road and Daniell Drive, very near the City of Smyrna.”

He said a little sliver of the property is zoned RM-12 (residential multi-family), but the balance is zoned R-20 (single-family residential).

He said the original application had requested rezoning to General Commercial, but that after talking with the district commissioner and Planning Commission, the applicant had changed the request to CRC (Community Retail Commercial).

Sams said that when three people from the adjacent subdivision came to the Planning Commission meeting to oppose the rezoning, the applicant had revised the site plan to remove the access from Daniell Drive, and all traffic would come via Atlanta Road instead.

He said the building would be approximately 3,500 square feet with an ancillary retail component.

He also said that while the convenience store would apply to sell alcoholic beverages, the stipulations would state that the ancillary retail would not be able to sell alcohol from the drive-in window.

“We simply ask that based on our presentation today that you and the board follow the recommendations of your professionals and the Planning Commission and take action approving this recommendation,” Sams said.

Five people were present in-person at the hearing opposed to the rezoning, and four spoke to the board.

Ken Daniell, a resident of Daniell Drive, said “I did speak at the Planning Commission meeting, and I have not spoken with anyone with the applicant in regard to this since that meeting.”

“I still have the same objections.  I understand that this is Atlanta Road, and that it’s going to be developed,” he said. “But it’s this type of use, using this for a gas station, a convenience store, and unidentified drive-through.”

“That’s an awful lot of commercial activity put on this small package at the end of a residential street.  And plus the hours that have been specified is from seven in the morning until 11 at night,” he said. “That’s a lot of long hours, and a lot of activity.”

He said that the intersection would become a problem for residents leaving the community to turn onto Atlanta Road. A slight grade in the road causes residents to have to pull into Atlanta Road to see traffic coming from the north, he said.

He said that apartments and townhomes are in close proximity to the proposed store..

“This is a very short span to have all of this traffic coming in and out of here.”

“Then there’s the crime issue that’s usually associated with any type of a convenience store,” he said.  “You’ve got loitering, you’ve got slider crimes, you’ve got robberies, and again 7 a.m. to 11 p.m. and this close to a residential street … it is not very far from the back yards of these houses that have been there for so many years.”

Johnnie Turner, another Daniell Drive resident said that a petition had been submitted to Commissioner Birrell’s office opposing the rezoning and signed by all 30 people on the street, but it had not made it to Birrell’s desk.

When the meeting moved to discussion by the commissioners, Birrell said she wasn’t certain why the petition had not reached her, but she asked that it be put into the record by the clerk.

She also said, in response to a resident’s comment that Hispanic residents had not been brought into the process, that she had offered to try to find an interpreter, but that the Hispanic residents had not requested that she follow through with it.

She said that after meeting virtually with the three residents who were in opposition at the Planning Commission, and speaking with the applicant, the plans were changed to remove the entrance from Daniell Drive, and that the hours of operation had been reduced.

“This is in a CAC (Community Activity Center), which allows a convenience store, and it’s been recommended that instead of GC it be deleted to CRC, and based on the stip letter from Mr. Sams dated March 3, there will be security cameras at this property, and lighting for security reasons,” she said.  “And there are some other things that I’m planning to add to this.”

“I’m ready to make a motion,” she said.

She made a motion to delete the property to CRC, which would allow the convenience store to be built. She repeated the stipulation that the hours of operation would be reduced, and that no alcoholic beverage sales would be done from the drive-in window.

She also read a stipulation that the district commissioner’s approval would be required for the tenant in the ancillary space.

District 4 Commissioner Lisa Cupid said, “I’m particularly familiar with this area.  A lot of Atlanta Road was in District 4 prior to map changes in 2016.  I appreciate Commissioner Birrell’s consideration for the community in removing access to Daniell Drive and also in reducing the hours from midnight to 11 p.m.”

“But I do think the challenges with this area, and the desire for this community to have a use that is more compatible is overarching to me, knowing the challenges that this community has,” Cupid said.

“This is a more moderate income area of the county, and even just looking at the future land use and the zoning around that community, they have not been given a proper buffer that is communicated in our comprehensive plan, to drop the intensity from low density residential between more intense commercial uses,” she said.  “You would anticipate seeing a NAC (Neighborhood Activity Center), medium density residential, some other kind of buffer with these strong intensities that this community has not been afforded.”

“I think it’s unfortunate that you see moderate and lower income communities continue to have these very intense uses put adjacent to their communities,” she said. “It would not be tolerated in other areas.”

“In good faith I can’t do that today,” she said. “Their concerns about crime are valid. Their concern about wanting to see this area improve based on past history is valid.”

She said that while technically the land use map would support the convenience store, the BOC has a wide range of disgression to protect health, safety and welfare of communities beyond what’s technically put on a map.

“I can’t support it today.”

Chairman Mike Boyce called the question, and commissioners Cupid, Gambrill and Boyce voted to deny the application, with commissioners Birrell and Ott in favor, so the application was denied 3-2.