GILROY
– Gilroy’s largest furniture store must cease its daily retail
operations and limit sales at its Luchessa Avenue site to 12 days a
year, according to a recently released decision by Superior Court
Judge Thang Barrett.
GILROY – Gilroy’s largest furniture store must cease its daily retail operations and limit sales at its Luchessa Avenue site to 12 days a year, according to a recently released decision by Superior Court Judge Thang Barrett.
On Saturday, the retail portion of the 5-Day Furniture store at 500 E. Luchessa Ave. will close at the order of the court. However, owner and operator Hai Tran said he will appeal the judge’s decision if the city doesn’t let the company sell its discounted furniture until roughly November.
By that time, the city will have approved or denied Tran’s application for a so-called Conditional Use Permit, potentially allowing 5-Day furniture to continue retail operations even though it lies in an industrial area zoned for wholesaling.
“I have no other choice (but to appeal the case),” Tran said. “I’m just trying to look out for my employees. This city has 380 people out of work (since Indian Motorcycle shut down), do they want 30 more?”
Tran said his attorney was contacting officials, but as of Tuesday, city staff was under orders to shut down 5-Day Furniture’s retail operation.
“We’ve been told we will enforce the ruling on Sept. 28. They can stay open through Sept. 27,” City Planner Gregg Polubinsky said.
Judge Barrett issued the nine-page ruling last week and on Monday the document was distributed to City Councilmembers and the media. At issue in the case was whether 5-Day Furniture violated the terms of its business license when it used a quarter of its 162,000-square-foot building on Luchessa Avenue to sell furniture on a retail basis.
On Tran’s business license, the city stated 5-Day Furniture could “be a wholesale business, with retail as only an ancillary use.” Tran said ancillary was defined as 25 percent or less of the building. The city said it really meant the wholesale section needed to be the primary business.
According to court records, 5-Day Furniture’s retail sales exceeded its wholesale sales in January and February 2003. However, 5-Day Furniture argued that the court should have included the sales amount for its entire wholesale operation which covers much of the Western United States .
Judge Barrett’s ruling states, “Under (5-Day Furniture’s) reasoning, (5-Day Furniture) would be able to dedicate the entire Gilroy facility to retail sales only and would still qualify as ancillary use.” Such reasoning “does not take into account the purposes of having zoning regulations in the first place.”
Tran remains steadfast he has been unfairly targeted by the city, pointing to other businesses in the Luchessa Avenue and Chestnut Street area that sell primarily retail products and have no conflict with the city.
Granite, lumber, mattresses and trucks are all sold in the area and can be purchased by customers without retailer licenses, Tran said.
” ‘Where is the consistency?’ is all I’m asking,” Tran said.
Planning Division Manager Bill Faus acknowledged that several businesses in the industrial zone “fall within a gray area” between retail and wholesale. However, lumber and granite yards, for instance, sell to contractors who will resell the product or use it as part of a finished product they will sell.
“It’s a different kind of customer that goes to 5-Day Furniture,” Faus said.
Faus said the conflict with 5-Day Furniture has changed how staff is conducting business at City Hall.
“The number one thing is when an applicant in an industrial use zone has potential for retail, we give them a more complete answer (regarding how much retail sales can occur on site),” Faus said. “The law permitted two interpretations before.”
Other than successfully appealing the judge’s decision, Tran’s only hope to save his retail operation at the Luchessa site is to get approval from the Planning Commission for the Conditional Use Permit. To land the permit, Tran will have to meet regular retail zoning regulations, the most stringent of which may be providing adequate parking.
Tran is also moving ahead with plans to open a retail furniture store at Tenth and Monterey streets. He plans to apply for his business permit today.
Tran said he plans on keeping the Luchessa site open as, at least, a wholesale operation even if the retail permit is denied.
