AUSTELL — Tracy Crum says she drives past a couple of other produce stands in order to get from her home in the Country Walk subdivision, north of Powder Springs, to the stand owned by Jeff and Julian Smith at 4509 Austell Powder Springs Road.

“I’d always get tomatoes. I’ll usually get a watermelon,” said Crum, a teacher. “They’re just nice, friendly people that carry stuff out for you, whatever you need.”

But the store, which has been in the same southwest Cobb location since 1983, is scheduled to close for good at the end of the summer if a 3-2 June 19 Cobb County Board of Commissioners decision to deny a land use permit for the store stands.

And the customers of the produce stand don’t like it. Sondra Smith, who runs the fruit stand when her husband, co-owner Jeff Smith, is away, said she has gathered 150

signatures from customers since the commissioners’ decision, asking them to reconsider. Those are on top of the 247 they turned in when they requested the land use permit.

“I think it’s pretty rotten myself,” said Larry Morgan, a customer of the produce stand for 28 years who lives off nearby Clay Road. “I’d like to know what happened to free enterprise. They’re not doing anything illegal.”

Jeff Smith, 52, and his 56-year-old brother Julian Smith, took over the store after their father, Charles “Paw Paw” Smith, died at 81of a brain tumor on Dec. 4, 2011. They say his dying wish was for his family to keep the business he’d run from his home for nearly 30 years open.

In order to keep the produce stand open, they would need a land use permit, since the property it sits on is zoned residential. The Smiths said their father had successfully gotten one every two years since the store opened.

County planning staff recommended the fruit stand receive a two-year land use permit, with stipulations including that its sales be limited to spring and summer months and that it provide off-street parking and turnaround space.

The land use permit passed by the Cobb Planning Commission by a 3-1 vote on June 5, with Bob Hovey, an appointee of northwest Cobb Commissioner Helen Goreham, casting the lone vote against. The Planning Commission makes recommendations for the Board of Commissioners zoning hearing.

With no opposition speaking at the planning meeting, and a staff recommendation, the item was placed on the consent agenda, where several items considered non-controversial are approved at one time, for the June 19 hearing before the Board of Commissioners. But when zoning division manager John Pederson asked if there was any opposition to the Smiths’ land use permit, one woman sitting at the table reserved for county staff spoke up, meaning it had to be taken off the consent agenda and given a full hearing, in which each side gets 10 minutes to address the board.

The woman was Annette Friant, who lives directly across Austell Powder Springs Road from the Smith home. She is also Goreham's assistant. Friant said during the hearing that the stand should be closed after this year and that owners should look to move to a new site, such as an abandoned gas station. She said the change in ownership marked a good time for the county to change its stance on the fruit stand.

Among her concerns were statements that Charles Smith had once made about wanting to use the business as a way to get extra money to help him deal with a disability. Friant said that the younger Smiths have jobs and do not need the income.

While Julian Smith works as a truck driver and helps at the fruit stand when he can, Jeff Smith said he gave up his job to take one as a bus driver for the Cobb County School District so he could spend more time helping his aging father. He said he still needs the supplemental income.

Jeff Smith said Friant’s family have long been the only neighbors to complain about his store, even reporting him to Cobb Community Development earlier this year for having a refrigerator on the front porch of his father’s former home, which had been there since 1976.

“She waited until she was in friendly territory,” Jeff Smith said of Friant. “If she had opposition, she should have voiced her opinion in the planning committee.”

While Friant declined to comment for this story, Goreham takes issue with the fact that part of the property was once zoned commercial, which means the owners had to pay higher property taxes taxes, before Charles Smith requested it be changed to residential.

But, at the June 19 meeting, Goreham made statements suggesting that the fruit stand itself was once zoned commercial, something the family denies. Rather, Julian Smith, 56, said his father bought a neighboring piece of property that was already zoned general commercial from a man who had once intended to use it for a convenience store but ended up not developing it. After buying it, Charles Smith left most of the lot vacant, with some used for parking for the fruit stand.

The Smiths say the stand itself has always been zoned residential.

“Daddy had it combined into one property,” Julian Smith said. “Anyone with common sense would do that to lower taxes.”

But even had she had she known the fruit stand, which is attached to Charles Smith’s old house, had always been zoned residential, Goreham said she still would have opposed it.

“I look at the total package,” she said. “And I understand that Commissioner Woody (Thompson) wants to clean up that area and bring more uniform zoning.”

Goreham said she was concerned because the fruit stand brings in some of its goods each day from the Atlanta Farmers Market in Forest Park. She said county ordinance allows for produce stands to operate on residential property only if they sell goods grown on that property.

While Goreham acknowledges not hearing from any opposition in the case other than her assistant, she said it was appropriate for her to vote on the issue.

“She had a right to be heard as a citizen,” Goreham said of Friant. “I base my zoning decisions on the facts and what I think is appropriate. I’ve spoken to no one on the board regarding this case, and my assistant has spoken to no one on the board regarding this case.”

But Thompson, whose southwest Cobb district includes the produce stand, said he “probably” would have recused himself in a zoning case in which his assistant were the only person to speak in opposition.

“It might require some judgment,” he said.

At last week’s planning meeting, Thompson initially motioned to give the Smiths a one-year extension of their land-use permit, less than the two-year permit the Smiths had requested, which is what Charles Smith had received in the past.

Instead, commissioners voted that motion down by a 3-2 decision, and went with southeast Cobb Commissioner Bob Ott’s motion to deny the land use permit request, while instructing code enforcement not to enforce the ruling for the remainder of 2012. In both votes, Ott, Goreham and Chairman Tim Lee were in the majority, while Thompson and northeast Cobb Commissioner JoAnn Birrell were on the losing end.

Had Goreham recused herself, the resulting 2-2 would have meant the land use permit would have been neither approved nor denied, leaving it up to the Board of Commissioners to decide whether to allow the stand to stay open while the longer term decision was in limbo, Cobb planning division manager Dana Johnson said.

Sondra Smith, 44, said Goreham should have stayed out.

“It’s a conflict of interest,” she said. “She should have recused herself or Tim Lee should have made her do it.”

The Smiths say they will remember the vote on election day. Since their request was turned down, they have placed 10 yard signs on their property along Austell Powder Springs Road promoting Bill Byrne, one of Lee’s three opponents in the July 31 Republican Primary for chairman.

“I don’t know a lot about Bill Byrne,” Sondra Smith said. “I tell people vote for whoever you want, but it would be nice to get Tim Lee out of office.”

Ott said he voted to deny the land use permit partly based on the information that the produce stand was once zoned commercial.

“Based on the information that was presented to me at the time, it appeared that because it has changed hands, and there had been a conversion of the property from general commercial to residential, it seemed an appropriate time to reconsider how land use permits are used,” he said. “However, it appears that not all the information is accurate.”

In general, Ott said he wants to see the county get back to issuing land use permits for the short-term purpose of allowing residents to get their business off the ground in their home and have them build up the business so they can move to a commercial area in a short period of time.

Jeff Smith said he would be OK with rezoning the fruit stand as commercial, but he can’t get any help from the county.

“There may be some things I need to change, and I’m willing to change,” he said. “I met every stipulation the county required of me.”

Now Jeff Smith said he is looking at his legal options to appeal the county’s decision. He said that if he can’t keep the store open, he is unlikely to open at a new location where he would have overhead costs like rent.

The store is currently open from 8 a.m. until 6 p.m. Monday through Saturday, after the county required it to change its hours from 7 a.m. until as late as 9 p.m., Jeff Smith said. The Smiths grow some of their own figs, tomatoes, carrots and cucumbers while picking up other items early each morning at the farmers market.

Jeff Smith said the store brings in between $6,000 and $8,000 a year, and they have a business license and pay property and sales tax.

The Smiths said the store is the only place in the area to get fresh produce, catering to seniors and the disabled, even offering service to their cars. It goes back to the standards set by “Paw Paw.”

“He gave away probably more than he ever sold,” Sondra Smith said.

Jeff Smith said his family splits its time between his father’s house and their home in Dallas, but someone is always living in the home by the produce stand.

The two-lane stretch of Austell Powder Springs Road just north of the produce stand sees around 14,600 vehicles pass by daily, according to 2005 Cobb Department of Transportation statistics, the most recent available. The area has a mixture of homes and commercial properties.

One of those vehicles to recently pass by belonged to a film crew from the Home and Garden Television cable network. Jeff Smith said the crew stopped last week and thought the fruit stand would be a neat place to shoot for upcoming programming.

“They were saying, ‘This is Americana. This is what America is,’” he said. “But not in Cobb County.”