The request was met with opposition from area residents who argued they didn’t want a bustling convenience store built on the corner of their dead-end street, which contains a daycare center and more than 800 units comprised of two townhome communities and two apartment complexes. On May 15, the council voted to deny the developer’s request to move forward with plans for the gas station.
Court documents show the lawsuit was brought against the city by both Speedway and Ellison Lake Partners, the developer of the 130-acre community, which owns two remaining undeveloped parcels along Highway 41 it hopes to develop.
“The council turned Speedway’s rezoning request down and as a result they’re suing in Superior Court,” said Randall Bentley, Kennesaw’s city attorney. “I think in large part, most of the residents were against it.”
Richard Calhoun, the attorney representing the developer in the case, said the lawsuit seeks to have the council’s ruling overturned so his clients can move forward with their plans to build the gas station and develop the front of the neighborhood.
“I’ve done zoning a long time and this is one of the most unusual cases I’ve ever seen,” he said, adding the community’s master plan was approved back in 2001 with the intention of including commercial development along the property’s frontage.
In 2011, however, the city changed its zoning ordinance, removing convenience stores from the list of commercial uses in districts zoned “planned village commercial,” Calhoun said.
But in 2014, filings show, Kennesaw rezoned the 52-acre Market Place development along Barrett Parkway to the PVC classification and approved a 5,000 square-foot QuikTrip.
Calhoun said he hopes a judge will overturn the council’s decision on the basis of equal protection of the law, but a decision in the case could still be months away.
Representatives announced their plans to build the convenience store on the vacant lot last year, but were told their request would require an amendment to the community’s original 2001 master plan, filings show. That request was ultimately denied.
Developers maintain the inclusion of commercial and retail space “was, and is, an integral part of the overall Ellison Lake development” and Calhoun said they made about $450,000 worth of infrastructure upgrades to the 34,000 square-foot parcel, including two curb cuts, a traffic signal at the intersection and an extension of utilities to the property.
“The defendants’ denial of Speedway’s and Ellison Lakes’ application was based upon erroneous and prejudicial advice from city staff that the mayor and council had the legal authority ‘to allow any use deemed appropriate or not,’” the lawsuit asserts, maintaining the developer has every right to build the gas station on the property.
Joyce Yung, president of the Ellison Lakes homeowners association, said most residents living in her neighborhood are opposed to the gas station, which was slated to be built next door to a day care center.
She said she hopes the court upholds the council’s unanimous denial of the rezoning application.
“The city staff said no, the planning commission said no and the mayor and council, 5-0, said no,” Yung said. “Ellison Lakes is a dead-end road and with a school bus stop and a day care center right there. We don’t want it.”
An April petition started by residents in opposition to the Speedway generated 265 signatures. Most cited safety and traffic concerns as their reason for opposing the convenience store.