Promenade II Building (John Disney/Daily Report)
Smith, Gambrell & Russell has sued the landlord of its home office, the Promenade, and management company Cousins Properties to stop an accounting firm from placing 18-foot-square signs bearing its logo high atop three sides of the building.
According to the complaint filed Aug. 22 in Fulton County Superior Court, Smith Gambrell has been the Promenade’s largest tenant since moving in shortly after it opened in 1990. The firm claims it is contractually guaranteed the right to approve any “substantial addition … or alteration” to the building’s exterior, as long as such approval is not “unreasonably withheld.”
The Promenade is a 38-story tower topped with a distinctive ziggurat-styled spire, sporting stainless steel fins that loom over Peachtree and 15th streets in Midtown.
The complaint says accounting firm Frazier & Deeter, which moved into the building last year, is planning—”in concert with Cousins” and the law firm’s landlord, 1230 Peachtree Associates LLC—”to install signs containing the logo ‘FD’ on the southern, western and northern sides near the top of the Promenade so that they can be seen from the Downtown Connector.”
Smith Gambrell’s complaint said 1230 Peachtree and Cousins are not only in violation of their lease agreement but have also failed to abide by the city of Atlanta’s sign ordinance. The firm seeks an injunction barring installation of the signs.
According to documents submitted with the complaint, 1230 Peachtree is an affiliate of Cousins.
The complaint was filed by Chilivis, Cochran, Larkens & Bever partners Anthony Cochran and John Larkins Jr.
“We stand on the facts as stated in the verified complaint,” said Cochran, declining to discuss the suit further.
Troutman Sanders’ partner Thomas Reilly, whose firm is representing the defendants, said there would be no comment.
A spokeswoman for Frazier & Deeter, which is not a party to the suit, did not reply to requests for comment.
According to the complaint, Frazier & Deeter first proposed placing the signs atop the building in 2013, prior to the accounting firm’s moving into the Promenade. Smith Gambrell opposed the signage, basing its objections on a provision of the lease requiring its consent for any substantial modification of the building.
It also cited a portion of the Atlanta sign ordinance that says only “a principal occupant” of a building at least four stories tall can place such a big sign.
A “principal occupant” is defined in the code ordinance as a tenant “who occupies a minimum of 25 percent of the floor space, or 100,000 square feet, of a specific building that is available for occupancy.”
Frazier & Deeter, the complaint said, has “contingent rights to occupy more than 100,000″ square feet. “However, upon information and belief, [Frazier & Deeter] does not actually occupy that much square footage and did not at the time it applied for a permit with the city” to erect a sign.
The accounting firm occupies four floors in the building, the total space of which is less than 100,000 square feet, the complaint said, and thus cannot be a “principal occupant.”
The complaint also said that three sign permits issued by the city to Frazier & Deeter in March had been issued without the accounting firm’s having provided a notarized affidavit saying that public notice signs had been posted on the property to announce the issuance of the permits, as required by city ordinance. An Aug. 19 email from Senior Assistant City Attorney Jeffrey Haymore to Smith Gambrell associate Robert Griest, which is attached to the complaint, said no such affidavits were filed with respect to the signs.
Smith Gambrell leases more than 156,000 square feet in the building and occupies more than 140,000 square feet, the complaint said. It added that it pays $5 million in annual lease payments and “has paid tens of millions of dollars as a tenant at the Promenade since 1991.”
“As the largest tenant in the Promenade, and as a long-time, original tenant, [Smith Gambrell's] consent is not unreasonably withheld,” the complaint said. “First, the proposed signage is illegal under the controlling ordinances of the City of Atlanta. Second, [Smith Gambrell] does not want the logo of a different firm on the Promenade building which has housed [Smith Gambrell]—the Promenade’s largest tenant—for more than two decades. Third, [Smith Gambrell] desires to preserve the architectural and aesthetic integrity of the Promenade’s unique design and appearance. Fourth, [Smith Gambrell] believes its clients identify its main office with the Promenade, and the proposed building signature signs would substantially detract from the Promenade as a long-time image of the firm. Fifth, [Smith Gambrell] has a reasonable belief, that so long as it is the largest tenant at Promenade, its right to signage trumps those of any other tenant.”
“Further,” it said, “the placing of the logo—’FD’—on the Promenade will constitute a de facto renaming of the building” in violation of another lease provision assuring Smith Gambrell’s right to approve the building’s name.
The complaint said that Cousins, 1230 Peachtree and Frazier & Deeter had agreed not to install the signs until after Sept. 11, but they made no commitment regarding the signs after that date. It includes a demand for an injunction barring any installation of the signs until Smith Gambrell’s claims can be adjudicated.
Attached to the complaint are several affidavits including one from the Promenade’s lead architect, Thomas Ventulett III.
“In my opinion,” wrote Ventulett, “the installation of the proposed signs would be a substantial alteration to the external appearance of the Promenade. As the architect for the building, I believe the proposed signs would materially change and certainly diminish the dignified character and aesthetic design of the spire and lighting at the top of the building. None of the truly architecturally distinguished buildings in Midtown are adorned with signs, thereby preserving a distinctive skyline without signs appearing like advertising billboards.”
“Buildings become ordinary and background when adorned with signage as advertising,” wrote Ventulett. “The Promenade was never intended to have signs attached near the top of the building where its distinctive architectural features and lighting appear.”
The case is Smith, Gambrell & Russell v. 1230 Peachtree Associates LLC, No. 2014CV250516.