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Marouf Car Wash 05-08-01 A PETITION FROM THE RESIDENTS OF LAKESIDE HARBOR May 8, 2001 We are totally against the request of ZUHAIR MAROUF for an exception to the Land Development Regulations reducing the required 15,000 sq. ft. minimum to only 9908 sq. ft. so that he can build a car wash near our homes. This car wash would be right next to R1AA homes and because of the resulting noise and traffic problems is not acceptable! IF THIS EXCEPTION IS GRANTED TO REDUCE THE MIN~ BY ONE THIRD WE MIGHT AS WELl, HAVE NO REGULATIONS AT ALL!!! SIGNED BY: May 8, 2001 TO: The City Officials of Boynton Beach /, FROM: Colleen R~61feskBecknef './? ' S~JECT: Car Wash - Las Pal~s P~k I am the owner of Lot 1 Las Palmas Park which abuts the property on which a zoning change request has been made to build a car wash. For 30 years I have enjoyed my home with the peace and quiet this small residential street allows myself and my neighbors - "going" commercial will change that for all of us. I oppose the change for the following reasons: I have an acute - critical drainage/flooding problems which start at the Texaco driveway on Las Palmas and mn, like a river due East into my driveway, carport, yard (front and back), on occasion into my Florida room. We are talking 6-8 inches in a rainfall. The City did put a swell in on the adjoining lot, however the owner's of the lot filled part of it in with concrete and they do not maintain it. A car wash would compound the problem. 2. The value of my property and others would decrease dramatically. 3. The small road (Las Palmas Park) was and is intended for very light traffic to accommodate the 14 plus single family homes located on it. The street does not have an outlet, it dead ends. 4. We all pride ourselves on our neighborhood - a car wash would not be an asset to this street. 5. Las Palmas Park is one of the remaining beautiful streets in the area, I do not want to see it "trashed". 6. Going commercial with this lot for a car wash would end my privacy, peace and quiet of my home and the enjoyment of my property. Between Boynton Beach Blvd. And Gateway there are already 3 car washes - one only 7 blocks South on Federal Highway. Just how many car washes does the North End of Boynton Beach need? New slogan "Gateway to Boynton Beach's Car Washes". I petition for the request to be denied. PETITION BY Residents of Las Palmas Park to the Community Redevelopment Agency Board of the city of Boynton Beach NOT TO APPROVE the request ofZuhair Maroufas described in Notice of Public Heating dated April 23, 2001. Request: Relief from Land Development Regulations Chapter 2, Zoning Section 6.C.3. to allow development of a car wash facility on a 9,908 square foot parcel in lieu of the 15,000 square foot minimum lot area required by the C-3 zoning district regulations Location: A portion of lots 4 & 5 of Sam Brown Subdivision. Legal: Legal description on file in the Planning and Zoning Division, 100 E. Boynton Beach Blvd., West Wing Second Floor. REASONS FOR THIS DISAPPROVAL PETITION 1. Las Palmas Park is a two lane road designed to support single family residences (eleven on Las Palmas Park and six on Presidential Way). 2. The addition of a car wash business would overload the two-lane road access at the Route 1 intersection. 3. The limited access to a car wash would cause traffic to line up to get in the car wash on Las Palmas Park and require expansion of the road for access, turning lanes to Route 1 and the car wash and queue lanes to the car wash. The C-3 Zoning District Regulation should be upheld. This petition is the request ofresidems of Las Palmas Park and Presidential Way Below: ........ _ :}_._. . PETITION BY Rcaktents of Las Palmas Park to thc Commlmity Redevclopmcat Agency Board of the city of Boymon Beach NOT TO APPROV~ the request ofZuhalr Maroufas descn'l)ed i~ Notioe ofPubli~ ltearing dated April 23, 200i. Reque~: Roli~f from Land Develolmma Regulations Chapter 2, Zonin~ Secrbn 6.C.3. allow development of a car wash facility on a 9,90g squar~ foot parcel in ~ of th~ 15,000 square foot minimum lot area required by th~ C-3 zonin8 d~lzict Location: A portion of lots 4 & 5 of Sam Brown SuMivision. Legal d¢~ription on ~ in thc Planning and Zoning Division, 1 O0 E. Boynton Boach Blvd., W~ Win~ Second Floor. REA,~r)NS FOR THIS DISAPPROVAL PETITION l. Las Palm~ Park is a two lane road designed to support sinl~le filmily residences (eleven on Las Palnas Park and six on Preside~li~ Way). '~ Th° addition ora c~r wa~ busine~ would overload the two-laae road acc~..s at the Route 1 intersection. 3. The limit~ acce~ to a car wa~ would cause ~ to line up to get in the car wash on Las Palmas Park and require expansion of the road ~or access, mining lanes to Route I and the ear wa.~ and queue lanes to the car wash. The C.3 Zord~$ District Regulation should be upheld. This petition is the reque~ of residents ofLa~ Palm~ Park and P~ Way Below: 2424 North Federal Hwy. * [3oyritf)f~ [3ea{;h, Florida 33435 May 6, 2001 City of Boynton Beach FL. Ref: Car Wash at Texaco Gas Station 2360 North Federal Ii[wy Boynton Beach FL. 33435 This letter is to Certify that I Pete Gondolfo owner of the propcwties of Resturant and Club complex at 2280 'N- Federal Hwy Boynton Beach FL 33435 have the Knowledge that Texaco Gas Station at the above address building a ear wash. I do give my recommendation because the owner of the Gas Station is a successlhl business man. He keeps the property well maintained. If you have any Questions please call me ax 445~ 6200. Pete Gondolfo Owner of the Property Kmser B. Ramgoolie x;~-~.-,~._~..~ Maintence Manager of the property ~d Nd£g:80 100g ~0 'A~N 0~8~ 999+~gfi : 'ON BNOHd ]]I~g Stiffs I~D[~ JOOb'I:IN : WOSB NQm¢ Ad~rce~ 4he un&er~,igned 4o allow ~A~ bulldln~ of o car' waGh on 4.h~ parcel o~land loco.l.c& Nc~m¢ Ad&ross NQm~. Adc~rc$~ O'~d_ ~or~o q~ ~/& 4he undersigned po+ron~ oF 'l'~xaco- agree-~o allow ~ bulldln~ of o car wath on the. var. on~- parc. et o~ land Iocp~cd Nc~m¢ AdcJrce~ /~- %(:/,,~;~ /; P- Nc~me Adc~rce~, ,q a/~-/ No, me Ad&rceG Name. Ad~rce$ We 4he undcr~,igmd i:~,.on6 oF 'l'exace- agree-re allew ~ bulld/n~ ~f ~ car' w~th ~n +he. va~n~- p~rce! of land bce+c& ca$~' e,c +he gee Nc~m¢ Ad&rce~ / .L >'t/X'~ y ve~n,l-parcel of lam:l I~c-e.l.c& ca$~, ~.t: .I. hc ~,a~ ~.l,~&n 27oM.£'. ~/V& 4he un&er~igned p.e~roes oF '1-exnce- G'e+g,wn~j, .gree +o nllow ~ build~n~ ef~ cnr w.sh en +he. /D/ NQm¢ Ad~rce$ %q& .the, und~4)ign~d p~r'on~, oF 'T'c, XA~- 4~ree -I.o alk)w ~ abr~ldln~ of A car wASh on 4.hr. . Ye~n4- pclrce! of l Ioc¢).l. cd c~e~. o~: 4.he. 6ac, Name. iii Name. Adc~rce~ I · fl ,, iql~ ~_~:_-. 4 u, !bio ?-/ °10 N,w. ¢ ?. ~ ;r l~ '70 o .-$ q ~o2 7~6 ~ 336 So.2d 420. (Cite as: 336 So.2d 420) Page 1 District Court of Appeal of Florida, Third District. Joe ANON, Appellant, V. CITY OF CORAL GABLES, Appellee. No. 75--958. Aug. 3, 1976. Rehearing Denied Sept. 8, 1976. Owner of property having frontage of 41.44 feet applied for variance from 50- foot frontage requirement. The city commission denied application and upheld decision of zoning board, and owner filed petition for writ of certiorari. The Circuit Court for Dade County, Lewis B. Whitworth, J., ruled that restriction would not work an undue hardship and that any hardship was self-inflicted, and petitioner appealed. The District Court of Appeal, Lester, M. Ignatius, Associate Judge, held that denial of variance was improper where variance would not alter character of the locality nor interfere with zoning plan for the area or rights of owners of other adjacent properties and the lot, which was sought to be used for constructing residential dwelling, could not be used for any other purpose and that petitioner had not caused his own hardship since, among other things, petitioner was not aware of existence of the restriction at time he purchased the property. Order vacated and set aside and cause remanded. Nathan, J., dissented. West Headnotes [1] Zoning and Planning ~::~503 414k503 Owner of lot having frontage of 41.44 feet was entitled to variance from 50- foot frontage requirement for constructing a residential dwelling where variance would not alter character of the locality, nor interfere with zoning plan for area and rights of owners of other adjacent properties and in denying owner right to use his land for single-family residence purposes would render the property totally useless to him since it could not be used for any other purpose. [2] Zoning and Planning ~:,497 414k497 Fact that 50-foot street frontage requirement was in existence at time petitioner acquired tract of property having a frontage of only 41.44 feet did not mean that petitioner, seeking variance so as to construct a residential dwelling, had created his own hardship since petitioner had no knowledge of the restriction at time he acquired the property and application of the restriction would work a complete denial of the use of the property. *420 Lamar, Arango & Lamar, Coral Gables and Jorge Sanchez-Galarraga, Miami, for appellant. Charles H. Spooner, City Atty., and Robert D. Zahner, Asst. City Atty., for appellee. Before HENDRY and NATHAN, JJ., and LESTER, M. IGNATIUS, Associate Judge. LESTER, M. IGNATIUS, Associate Judge. The relevant facts concerning the property in this case date back for more than half a century. The record on appeal reveals that the appellant is the fee simple owner of a parcel of land in the City of Coral · 421 Gables, which was platted and zoned in 1925 for single family residence, having a frontage of 41.44 feet and a depth of 105.50 feet. In 1937 the City of Coral Gables adopted the zoning restriction requiring that no building designed for residential use may be constructed or erected upon a building site having a street frontage of less than 50 feet. The appellant acquired said lot in 1972 and does not own any adjoining lot, and at the time he bought the lot he was not aware of the street frontage requirements adopted in 1937. Intending to build a single family residence on this lot, the appellant obtained all the necessary approvals from the authorities as far as lot area and architectural plans, but his application for a building permit was denied since his lot did not meet the frontage requirements. The appellant made application for a variance from the street frontage requirements, and his application was accompanied by letters from abutting property owners who approved the proposed variance. However, the zoning board denied the variance requested, and the appellant appealed to the City Commission, which denied the appellant's application for a variance and upheld the decision of the zoning board. The case came before the trial judge on a Petition for Writ of Certiorari, and the Court ruled that the restriction of the 50-foot minimum frontage Copr. © West 2001 No Claim to Orig. U.S. Govt. Works 336 So.2d 42(I. (Cite as: 336 So.2d 420, '421) Page 2 requirement would not work unnecessary and undue hardship on the petitioner- appellant and further found that when the petitioner-appellant purchased the property, he knew or should have known what the zoning regulations were in the City of Coral Gab]es, and treat any hardship was self-inflicted and self- imposed, and cited authority of Elwyn v. City of Miami, Fla. App., 11:3 So.2d 849. Appellant urged tha': the trial court erred in finding that the literal interpretation and application of the 50-fi)ot minimum fi'ontage requirement would not work unnecessary and undue hardship on the appellant and that su.eh hardship was self-inflicted or self-imposed by the appellant. The record reflects [hat the appellant has carried the burden of proof, showing that hardship is peculiar and unique tc~ his lot, and that such hardship is not shared by the other property owners in the area. A variance in th!is case '~'ill not alter the character of the local, ity nor will it ir.terfere with the zoning plan for the area and the rights of owners of other adjacent properties. In denying the appellant the right to use his land on which to build a single family residence, his lot will be totally useless to him since it cannot be used for any other purpose. '* * * The aut2mrities seem uniform on the proposition that the difficulties or hardships relied on must be unique to the parcel involved in the application for the Yariance. They must be peculiar to that particular property, and not general in character, since difficulties or hardships shared with o~.ers in the area go to the reasonableness of the zoning generally, ~md will not support a variance. If *~he hardship is one which is common to the area the remedy is to seek a change of *.he zoning for the neighborhood rather than to seek a change through a Yariance for an individual owner. Thus some exceptional and undue hardship to the individual land owner, unique to that parcel of property and no~: shared by property owners in the area, is an essential prerequis:ite to the granting of such a variance.' Elwyn ,~. City of Miami, Fla. App., 113 So.2d 849. Justice Thomas's concurring opinion in Miami Shores Village v. Et. lis, Fla., 53 So.2d 324, simply affirms the appellant's contentions in this case. 'I have wr!,tten many opinions upholding zoning restrictions, but I have ever been conscious of the fact that there is a point beyond which such regulations may not reach without bringing into play the censtitutional protection of the property owner. As I understand the circumstances peculiar to this case the application of the Zoning Act, F.S.A. s 176.01 et seq., reduces to nothing any legitimate construction by the appellee on his 50-foot lot. it is to me obvious that when the zero mark is thus reached, it follows that *422 the owner's constitutional guarantees are being invaded, and that the answer to all appropriate questions growing out of this controversy must therefore be favorable to him.' In Davis v. Sails, Fla. App., 318 So.2d 214, the Court stated as follows: 'It is clearly the duty of the court to determine the validity of zoning ordinances as applied to a specific parcel of property. This proposition was enunciated by the Supreme Court of Florida in a 1949 case, City of Miami Beach v. First Trust Co., 45 So.2d 681. In that case, a parcel of property on Miami Beach and been zoned for single family residences. In due course, adjoining lands were used for multiple family purposes, including hotel and apartment houses. Upon the city refusing to rezone the plaintiff's property for multi-family residences, suit was commenced, whereupon the chancellor ruled with the city. Appeal was taken to the Supreme Court of Florida, which initially affirmed the chancellor. Upon petition, rehearing was granted, whereupon Justice Terrell stated as follows: 'When the case was before us initially the proposition that got the ear of the Court was the insistence by appellant (City) that the ordinance was presumptively valid, that if fairly debatable the action of the city in passing it should be upheld and the Court should not substitute its judgment for that of the City Council. * * * but on thorough review of the case on petition fro rehearing, I am convinced that our judgment was erroneous. When, as here, the constitutional rights of the citizen are assaulted, I do not think the Court can in the manner shown bypass its duty to adjudicate them. * · *' (45 So.2d at page 688) The court thereupon reversed the lower court, holding that under the circumstances of that particular case the subject ordinances constituted confiscation, observing: '* * * There is no showing that the zoning plan of the city will be jeopardized or materially affected by removal.' (45 So.2d at page 688)' [1] In this case there was no question that the adjoining property owners had no objection to the variance, and there is nothing in the record disclosing Copr. ~ West 2001 No Claim to Orig. U.S. Govt. Works 336 So.2d 420. (Cite as: 336 So.2d 420, *422) that the granting o;!' the variance would harm the zomag plan of the City. "An ordinance when in force should not in its application deprive the owner of a reasonable use and enjoyment o5 his own property, thereby depriving him of his property without due process of law or just cotapensation. The ownership of property is guaranteed by the State and Federal Constitutions. Frequently it becomes necessary for the proper~y and use thereof to yield to constitutional regulations. While a municipality by ordinance may reg~.tlate or limit the use of property in behalf of the ge~z.eral welfare of its citizens, such action is .authorized only in a constitutional manner." Davis v. Sails, Fla. App., 318 So.2d 214, at page 219. [2] The appe~lees re'ged that the hardship suffered by the appellant was seitf-created and self-imposed, and as stated above, the t:cial court followed that rationale. Aga:in referring to El. wyn v. City of Miami, supra, it is noted in said case that the purchaser of the property was aware of the permitted uses and sought to O~tain a v~riance therefrom before it acquired the prol:,erty, and the appellee corporation took the conveyance after the, City's zoning board had ruled agai:ast its applicatio~ for variance. The situation in the case unde:c consideration is entirely different, and the property owner should not be precluded from objecting to the zoning ordinance merely because the Page 3 ordinance was in force when he acquired his lot and had no knowledge of the restriction. Aslo, in Josephson v. Autrey, 96 So.2d 784 (Fla. 1957), the property owner bought the land, paying a higher price for it, and gambled that the variance would be granted, *423 making the property more valuable. Here, again, in the case under consideration appellant did not buy the property to speculate or gamble on getting a variance in order to use it. Also, in both the Elwyn decision and in the Josephson decision, the property owners could have other uses for the lands if the variance was denied, but in the case under consideration the unique hardship is not the loss of a better or more profitable use, but rather a complete denial of the use of the owner's property. Accordingly, the trial court's order on Petition for Certiorari is vacated and set aside, and the cause remanded to the trial court for the entry of an appropriate order consistent herewith. Reversed. NATHAN, J., dissents. END OF DOCUMENT Copr. © West 2001 No Claim to Orig. U.S. Govt. Works 383 So.2d 1127 te as: 383 So.2d 1127) District Court of Appeal of Florida, Third District. CITY OF CORAL GABLES, a Municipal Corporation, Appellant, V. Steve R. GEARY, Appellee. No. 79-2393. May 20, 1980. Rehearing Denied June 19, 1980. Applicant sought variances from building restriction imposed by city's zoning code. The Circuit Court, Dade County, George Orr, J., required city to grant variances, and city appealed. The District Court of Appeal, Schwartz, J., held that alleged hardship, i. e., fact that unusual triangular shape of property rendered it simply and practicably impossible for it to be developed in accordance with existing regulations, was not "self-created," thus precluding relief. Affirmed. West Headnotes [1] Zoning and Planning ~='496 414k496 Irregular shape or other peculiar physical characteristic of particular parcel constitutes a classic "hardship" unique to an individual owner, which justifies, and in some cases, requires, granting of a variance. [2] Zoning and Planning ~g='497 414k497 Where hardship involved, i. e., the unusual triangular shape of property which rendered it simply and practicably impossible for it to be developed in accordance with existing regulations, arose from circumstances peculiar to realty alone, unrelated to conduct or to self-originated expectations of any of its owners or buyers, "self-imposed" hardship doctrine would not apply and right to variance possessed by original owner would not be lost simply because succeeding owner bought or contracted to buy with knowledge of restrictions. '1127 Robert D. Zahner, Coral Gables, for appellant. '1128 Starr W. Horton, Miami, for appellee. Page 6 Before SCHWARTZ, NESBITT and PEARSON, DANIEL, JJ. SCHWARTZ, Judge. Coral Gables appeals from a final judgment requiring it to grant the plaintiff-appellee four variances from building restrictions imposed by the city's zoning code. The variances, which deal with set-back requirements and building and wall height limitations, were ordered because, as appeared without contradiction below, the unusual triangular shape of the plaintiff's property rendered it simply and practicably impossible for it to be developed in accordance with the existing regulations. [1] It is, of course, well-recognized that the irregular shape or other peculiar physical characteristic of a particular parcel constitutes a classic "hardship" unique to an individual owner which justifies, and in some cases requires the granting of a variance. Forde v. City of Miami Beach, 146 Fla. 676, 1 So.2d 642 (1941); see Leveille v. Zoning Board of Appeals, 145 Conn. 468, 144 A.2d 45 (1958); Downey v. Grimshaw, 410 Ill. 21, 101 N.E.2d 275 (1951); City of Baltimore v. Sapero, 230 Md. 291, 186 A.2d 884 (1962); 3 Anderson, American Law of Zoning s 18.34 (2nd ed. 1977). The appellant does not really take issue with this rule or with its clear application to the case at bar. [2] The city does contend, however, relying primarily upon Elwyn v. City of Miami, 113 So.2d 849 (Fla. 3d DCA 1959), cert. denied, 116 So.2d 773 (Fla. 1959), that the alleged hardship was "self- created," thus precluding relief, because the plaintiff purchased the property in its present configuration with knowledge of the already-imposed building restrictions. See Allstate Mortgage Corp. of Fla. v. City of Miami Beach, 308 So.2d 629 (Fla. 3d DCA 1975), cert. denied, 317 So.2d 763 (Fla. 1975); Crossroads Lounge, Inc. v. City of Miami, 195 So.2d 232 (Fla. 3d DCA 1967), cert. denied, 201 So.2d 459 (Fla. 1967); Friedland v. City of Hollywood, 130 So.2d 306 (Fla. 2nd DCA 1961). We do not agree with this position. Unlike the situation in each of the cited decisions, the hardship involved here arose from circumstances peculiar to the realty alone, unrelated to the conduct or to the self- originated expectations of any of its owners or buyers. See the discussion of the cases on this issue from other jurisdictions in 3 Rathkopf, Law of Copr. © West 2001 No Claim to Orig. U.S. Govt. Works 383 So.2d 1127 (Cite as: 383 So.2d 1127, '1128) Zoning and Planning, s 39.02 (4th ed. 1979).[FN1] In this case, therefore, as the court observed in Murphy v. Kraemer, 16 Misc.2d 374, 182 N.Y.S.2d 205, 206 (Sup. Ct. 1958), "since it is not the act of the purchaser which brings the hardship into being, it is incorrect to charge him with having created it." It is undisputed that the appellee's predecessor in title, who held the property when the restrictions were initially imposed, would then have been entitled to the variances in question. Compare Duval Productions, Inc. v. City of Tampa, 307 So.2d 493 (Fla. 2d DCA 1975), cert. denied, 317 So.2d 78 (Fla. 1975) (predecessor compensated for "hardship" created by condemnation). The "self-imposed" hardship doctrine thus does not apply. We endorse the principle stated in Harrington Glen, Inc. v. Municipal Board of Adjustment, 52 N.J. 22, 243 A.2d 233, 237 (1968): FN1. Rathkopf's summary of these decisions at s 39.02(3) aptly characterizes the Florida cases as well: Despite the fact that some courts have used language which, taken upon its face, would indicate that even where a unique hardship existed with respect to land which would have warranted the person owning that property prior to the enactment of the ordinance to apply for and receive a variance, the mere act of purchase with knowledge of the ordinance may alone bar the purchaser from the same relief, it is apparent that few higher court decisions have actually so decided. In each case in which the refusal of a variance was upheld and in which such language was used, the facts showed either that there was an affirmative act which created the hardship peculiar to the property involved or that there was insufficient evidence as to at least one of the elements required for the grant of a variance. Page 7 As we indicated in Wilson v. Borough of Mountainside, 42 N.J. 426, 452- 453, 201 A.2d 540 (1964), when neither the owner '1129 of the lot at the time of adoption of the zoning ordinance. · . nor a subsequent owner, did anything to create the condition . . . for which the variance is sought, a right to relief possessed by the original owner passes to the successor in title. Such right is not lost simply because the succeeding owner bought or contracted to buy with knowledge of the . . . restriction. See 2 Rathkopf, Law of Zoning & Planning, c. 48, p. 48-20 (3d ed. 1966). (e. s.) Accord, Landmark Universal, Inc. v. Pitkin County Board of Adjustment, 40 Colo. App. 444, 579 P.2d 1184, 1185 (1978) ("If a prior owner would have been entitled to a variance at the time the zoning ordinance was passed, that right is not lost to a purchaser simply because he bought with knowledge of the zoning regulation involved."); School Committee v. Zoning Board of Review, 86 R.I. 131, 133 A.2d 734, 737 (1957) ("The zoning law deals with the use of land. The time when the land was acquired is not pertinent in determining its proper use."); Denton v. Zoning Board of Review, 86 R.I. 219, 133 A.2d 718, 720 (1957) ("The question of whether an applicant is entitled to a variance because of hardship flowing from a literal application of the terms of the ordinance is in no way dependent upon his knowledge or lack of knowledge of the existence of zoning restrictions affecting the land. "). Affirmed. END OF DOCUMENT Copr. © West 2001 No Claim to Orig. U.S. Govt. Works