CORRESPONDENCE
"
WEINER & ARONSON, P.A.
AlTORNEYS AT LAW
The Clark House
102 North Swinton Avenue
Delray Beach, Florida 33444
Telephone. (561) 265-2666
Telecopier: (561) 272-6831
E-mail: delraylaw@bellsouth.net
MICHAEL S. WEINER
CAROLEJ,ARONSON
JASON S. MANKOFF
OF COUNSEL.
ROBERT MARC SCHWARTZ, P.A.
Florida Bar Board Certified
Real Estate Lawyer
October 8, 2002
Via Hand Delivery
Mr Michael Rumpf
Director of Planning & Zoning
City of Boynton Beach
100 East Boynton Beach Blvd.
Boynton Beach, Florida 33425
Re: Gateway Texaco
Our File No.: MARF002
Dear Michael.
Enclosed is a First Proposal for the westerly elevation of the Gateway Texaco. My client,
Mr Steve Marouf, wanted to let you know that he is proceeding as quickly as possible with the
exterior renovations
We appreciate the City Staff's assistance in this regard You will soon have a complete
package .-
v: ;I[J ~ \ _
Mi~ I S Weiner ~
MSW'vf
Enclosures
cc: Mr Beril Kruger (w/o enclosures)
Mr Steve Marouf (w/o enclosures)
G:\MARF002\Letter Rumpt.Oct8.wpd
Sent By: WEINER & ARONSON PA;
561 272 6831;
Oct-10-02 ?:48PM;
-( " , -,.....
'-- ~'<...u. <"')
Page 2/2 ,1,,(00,,; .\~.-..-
, .....,l, .. -
I I 'H
WEINER & ARONSON, P.A.
ATTORNEYS AT LAW
The Clark House
102 North SWinton Avenue
Delray Beach, Florida 33444
.
MICIiAa S. WEINER
cAROLEJ.ARON$ON
JASON $. MANKOFF
Telephone: (561) 265.2666
Telecopler: (561) 272-6831
E.mail: delmylaw@hellsouth.net
,
1
Of COUNSEL: I
ROBERI' MAlIC sc:HW~ PA
Rorida Bar bra C8~
Re&I Estate I...awier ~
October 10, 2002
,
Via TelecoDler 4 ReqJ,., Mall
MS:Janet Prainito, City Clerk
City of Boynton Beach
100 East Boynton Beach Boulevard
Boynton Beach, Florida 33435
Mr. Kurt Bressner, City Manager
City of Boynton Beach
100 East Boynton Beach Boulevard
Boynton Beach, Florida 33435
Re: City Commission Hearing
Our File No.: MARF002
Dear Janet and Kurt~
On behalf of our client, Mr. Zuhair Marouf and pursuant to Chapter 1.5, Article II, Section 2J1 (E}(6)
of fhe Boynton Beach Code, please consider this letter an appeal of the decision by the C~ Board
concerning the Administrative Order for the Gateway Texaco Gas Station item. Therefore, we resRectfully
request that this item be removed from the Consent Agenda and be placed on the regular agenda for the
City Commission Hearing on Tuesday, October 15,2002.
Alternatively, Chapter 1.5, Article II, Section 2.1(E)(6) of the Boynton Beach Code m*es no
reference to an app&al being placed on the Consent Agenda. I also point out to you that the vote jrnargin
of the Community Redevelopment Agency was by a single vote, against our client's position. Therefore,
we believe that we should have the opportunity to present testimony to the Commission.
Thank you very much for your assistance in this matter. We look forward to presenting our position
to the Co ission.
cc: Mr. Steve Marouf (via telecopier)
Mr. Berif Kruger (via teleeQpier)
Mr. Mike Rumpf (via telecopier)
O:\MARFDO~~ PreinIIo-B_.0d10.wpd
. -
FACSIMILE
CITY OF BOYNTON
BEACH
City Hall, West Wing
100 E. Boynton Beach Blvd,
P, 0, Box 31 0
Boynton Beach, Florida 33425
(561) 742-6260
(561) 742-6259 Fax
From the office of
Planning & Zoning
TO: Doug Hutchinson
FAX: 742-6298
FROM: Patricia Tucker
DA TE:
September 9, 2002
NUMBER OF PAGES: (including cover)
2
RE: Withdraw of Gateway Texaco (ADAP 02-001)
Doug,
Here is the fax that Mr, Kruger sent to withdraw from the CRA Board Meeting on Tuesday, September
10, 2002.
Cc: Beril Kruger fax of letter
If you receive this fax in error, or experience trouble with transmission, please notify our office
immediately, at (561) 742-6260, Thank you.
,..
"RANSMISSION VERIFICATION REPORT
TIME 09/09/2002 15:30
NAME BOYNTON BEACH P & Z
FAX 5613756259
TEL 5613755250
DATE,TIME
FAX NO./NAME
DURATION
PAGE(S)
RESULT
MODE
09/09 15:28
5298
00:01:23
03
OK
STANDARD
September 9,2002 11:26 AM From: Beril Kruger Fax Number: 2654611 Page 1 of 2
BERIL KRUGER
Planning & Zoning Consultant
9 Northeast 16th Street
Delray Beach, Florida 33444
Telephone (561) 265-4983 - Fax: (561) 265-4611
I
FAX TRANSMITTAL SHEET
To: Patricia Tucker, Admin Asst
Fax No.: 742-6259
Phone No.,
Time Transmitted 11 :23 AM X PM
Company' Boynton Beach P&z Dept.
Transmitted by: bk
Date Transmitted: Sept. 09, ,2002
Total pages (including transmittal sheet):~_
MESSAGE:
If you do not receive all of the pages, ,,/ease call (561) 265-4983 as soon liS
possible.
THE INFORMATION CONTAINED IN THIS FACSIMILE MESSAGE IS INTENDED ONLY FOR THE USE
OF THE INDIVIDUAL OR ENTITY ABOVE. IF THE READER OF THIS MESSAGE IS NOT THE
INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION
OR COPY OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS
COMMINICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY US AT (561) 265-4983, AND RETURN
THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA UNITED STATES POSTAL
SERVICE. THANK YOU.
...: Answer ServIce - Research r"'1uested regardmg expanSIOn of non-co r-Formmg gas statIo Page 1 of2
~umpf, Michael
From: Barry Bain [BBain@planning org]
Sent: Friday, August 09, 2002 12 32 PM
To: Rumpf, Michael
Subject: FW Answer Service - Research requested regarding expansion of no n-co nforming gas station
Hello Michael.
We do mclude research m land-use law and ZOnIng digest. I will go ahead and process your inqUIry
Regards.
*****************************************
Barry Bam, A.I.c.p
Research AssocIate - Planning AdVISOry Service
American Plannmg Association
122 S MIchIgan Avenue
SUIte 1600
ChIcago, IL 60603
Voice 312-431-9100
FAX. 312-431-9985
Web http.//www.QJapning.orglpas
-----Original Message-----
From. Fay Dolnick
Sent: Wednesday, August 07,20025 11 PM
To Barry Bain
Subject: FW Answer Service - Research requested regardmg expansion of
non-co nforming gas station
-----Original Message-----
From. Rumpf, MIchael rmailto.RumptM@ci.boynton-beachjlu~]
Sent: Wednesday, August 07,20024.30 PM
To 'pasmfo@p1annmg.org'
Subject: Answer ServIce - Research requested regarding expansion of
non-co nforming gas station
To whom it may concern.
I am a member of PAS through the City of Boynton Beach and am m need of PAS
research aSSIstance.
8/9/2002
I_cril kr..tlcr plan. .ing and zoning consultaa .i
July 31, 2002
Mr Michael W Rumpf, Director
Planning and Zoning Department
City of Boynton Beach
100 East Boynton Beach Blvd
POBox 31 0
Boynton Beach, FL 33425-0310
RE Expansion of Texaco Gas Station at 2360 N Federal Highway
Dear Mr. Rumpf:
Please let this letter serve as a request to appeal your decisions to the City
Commission regarding an addition at Gateway Texaco, 2360 N. Federal HIghway
A. Expansion of the Texaco Convenience Store (with Fuel Pumps) for dry storage;
The expansion of the convenience store (by an addition to rear of 600 sq ft.)
for dry storaqe only does not increase the non-conformity of the existing
facility and or its current use. The sale of gasoline (non-conforming use
according to the Boynton Beach Zoning Code) at this location will not be
Increased. Many people shop at this convenrence store that do not purchase
gasoline We are ready to show the difference In sales between the
customers just purchasing gas, just purchasing groceries and purchasing gas
and groceries.
The closest grocery store to this location is the Winn Dixie at Hypoluxo Road and
U.S Highway 1, which is over a mile away This convenience store IS located
wIthin a short distance to numerous residential subdivIsions along the east and west
Side of N. Federal Highway between the C-15 Canal and Hypoluxo Road. The
location of this convenience store makes it very convenient for these people to shop
at this store who do not need gasoline. Many people just shop in thiS store to
purchase milk, cigarettes, soda, and other products where if this convenience store
were not here, they would have to drive up to Hypoluxo Road to the Winn Dixie,
using unnecessary gas, putting additional traffic on the roads, and polluting the air
needlessly. Many people living in this area come to the convenience store by bicycle
It would be doing a disservice not to allow the addition on the rear of this building for
dry storage only
Building an addition on the rear of the convenience store Just for dry storage IS not
only a necessity for Mr. Marouf, but it may possibly cause him to go out of business
if it is not allowed. Mr. Marouf had purchased a trailer, which is parked adjacent to
9 northeast 16th street * delray beach, florida 33444
(561) 265-4983 * fax (561) 265-4611 * e-mail: bkruger@bellsouth.net
rezoning
concurrency
conditional
use,
special
exceptions,
ORe approval
site plans
annexations
comp plan
amendments,
variances
(county, state,
municipal)
abandonments
palm beach
broward
dade &
all counties
& cities
in florida
,.
Mr Michael W. Rumpf, Director
page 2
July 31, 2002
the parking area south of the building. The only purpose for this trailer is to store
sodas (An existing Code Enforcement Violation described below) There IS not
enough room in the building to store the soda and that is the reason the addition is
being requested Without this additional square footage to store soda, a large part
of the business will be lost. Gas sales may not be discontinued but the convenience
store may be forced to cease operation
Along with the addition for storage on the rear of the convenience store, Mr Marouf
will be renovating the exterior of the bUilding to better fit In with the character of the
residential neighborhoods surrounding this property. Our Architect is currently
working on the elevations for the building.
VIOLATION:
Mr Marouf currently has a violation before the Code Enforcement Board, Case# 1-
1450, Notice Date: June 18, 2001, with a running fine. The violation is for: PT-
LDR.CH2 SEC. 6.C.6. C-3 / EXTERIOR DISPLAY / STORAGE; "STORAGE OF
MERCHANDISE IN THE TRAILER IS NOT PERMITTED." "TRAILER MUST BE
REMOVED." The trailer is being used to store soda. It is not plugged in to
electricity nor does It have an operating refrigeration unit.
The enclosed site plan illustrates where the addition will be located and how the
additional parking spaces will be laid out. Therefore, the Texaco Convenience Store
will not lose parking spaces but gain spaces with the addition for dry storage on the
rear of the building
The only other alternative to allow the expansion of the convenience store for dry
storage and change the convenience store with gas sales to conforming would be to
change the Zoning Code to allow gasoline sales on intersections with other than Just
four (4) lanes in both directions. We do not want to do this because of the
ramifications to the entire city by allowing of all of the other gasoline selling
establishments to become conforming.
By allowing the convenience store to expand for dry storage only will not Increase
gas sales and therefore will not Increase the non conformity of this use.
Sincerely, ~
7 /
..A' ~.~
'..r~I/
Benl ~.ruger
v
v
SENT BY FACSIMilE AND U.S. MAil
DEPARTMENT OF DEVELOPMENT EXHIBIT A
PLANNING AND ZONING DIVISION
· Building . Planning & Zoning . Occupational Licenses . Community Redevelopment
July 16, 2002
Mr. Beril Kruger
Planning & Zonmg Consultant
9 Northeast 16th Street
Delray Beach, FL 33444
Subject:
1) Expansion of Texaco Gas StatIOn at 2360 N Federal HIghway
2) Dnveway ConnectIOn from Texaco StatIOn and Approved Car Wash Project
Dear Mr Kruger:
The intent of this letter is to clarify information provided to you in a previous letter dated June 14,
2002. Please be mformed of the conclusion reached that pursuant to the Land Development
Regulations, Chapter 2, Sections "D" and "G", the above-referenced changes are prohibIted due to the
theIr involvement with a non-conforming use. However, with respect to Item #2, the physical
connectIOn could only occur through a recorded access easement that would connect the car wash
~:rrcel to the northernmost gas station driveway at Federal Highway. Of course tlus IS contingent upon
.1 modIfications to the Texaco site being code-complIant. These changes should be processed as a
mmor modIfication request to the existing sIte plan which is described by the attached fact sheet.
Please be sure to include all site/tabular data on the revised plans including the tabulation of required
and provided parking, and aisle and parkIng space dimensions.
Please be informed that you may not proceed with item #1 due to It mvolving the physical expansion
of a non-conforming use; however, this clarifymg letter should be construed as the final administratIve
deCIsion to which you would file an appeal m accordance with the Land Development Regulations,
Chapter 1, Article VII, SectIon 1. If you stIll deSIre to appeal, please provide this office with a revised
applIcation (letter) for appeal which we will apply to the same fee, and application file that has been
recently created. If based upon this letter you no longer prefer to file an appeal, please inform me of
same In writing so that your applicatIOn can be closed. Please be reminded of the filmg reqUIrements
to appeal and contact me should you have any questIOns.
Smcerely,
I
iti/Z--
Michael W. Rumpf
Director of Planning and Zoning
MWR;jdc
:: Kurt Bressner
Attachment
S:l!'lanningISHAREDlWP\CORRESPICorresp A thru LIKruger. Benl Re Texaco St~l[ion Expansion.doc
City of Boynton Beach. 100 East Boynton Beach Blvd., PO. Box 310 . Boynton Beach, Florida 33425-0310
Phone (561) 742-6350 . www.cLboynton-beach.or
Jog
KelerCU\;C
ragc 1 V1 '+
E.' . HBIT B
L. COMMERCIAL ESTABLISHMENTS ENGAGED IN THE RETAIL SALE OF GASOLINE
OR GASOLINE PRODUCTS.
1. Purpose. The purpose of these regulatIOns IS to establIsh development standards for
commercIal establIshments whIch engage m the sale of gasoline, or other motor fuels. These
regulatIOns are intended to cover businesses of any type, mcludmg convenIence stores and
automotIve servIce statIOns. The development standards establIshed by thIs sectIOn would overlay
the development cntena stated m the ZOnIng distnct m WhICh these uses are allowed. Busmesses,
WhICh engage m the sale of gasoline or other motor fuels, shall reqUIre condItional use approval.
2 DefinItIOns. For the purpose ofthis ordmance, the followmg definItions shall apply
Ancillary building or structure. A bUIlding or structure mcidental to, subordmate to and
subservIent to the pnncIpal bUIldmg or structure located on the premIses.
Ancillary use. A use mcidental to, subordmate to and subservIent to the pnncIpal use of the
premIses.
Automotive service station. The use of a bUIldmg or other structure, on a lot or parcel of
land which includes any retail sale of gasoline or other motor fuels.
Convenience store. Any place of busmess that IS engaged m the retail sale of grocenes,
mcluding the sale of prepared foods, and gasoline and servIces The term "convenIence store" does
not include a store which is solely or primanly a restaurant.
Gasoline dispensing establishments Any commercIal enterprise, mcluding automotIve
servIce stations and convenience stores, whIch engage m the sale of gasoline or other motor fuels to
the publIc.
Grade separated intersections Use of the term grade separated intersectIOns shall mean
any mtersectIOn wherem one road passes over another road by means of a bndge or an overpass.
3. Development standards which apply to all gasoline dIspensmg establIshments except
those described under SubsectIOn 4. of thIS sectIOn below:
a. LocatIOn.
(1) All gasoline dIspensmg establIshments not determmed to be ancillary uses as
described m Subsection 4. below, shall be located only at the mtersectlOn of any combmatIOn of the
following roads as designated m the Boynton Beach ComprehensIve Plan:
County arterial,
State arterial,
Local collector, or
County collector.
http://www.amlega../24fa?f=templates&fu=document-frame.htm&q=gasoline&x=Simple&2
9/3/2002
/09
Kererence
Page 2. 01 4
f
(2) Gasoline dIspensmg establIshment shall only be located at any mtersectIOns
consIstmg of roads of four (4) lanes or wIder
(3) The maxImum number of gasoline dIspensmg establIshments located at any
mtersectIOn shall be two (2). Gasoline dIspensmg establIshments shall only be located at dIagonal
comers of permIssible mtersectIOns.
b Minimum plot SIze' thirty thousand (30,000) square feet.
c Mimmum street frontage: one hundred seventy-five (175) feet on each frontage
measured from the mtersectmg nght-of-way lmes of the publIc streets
d. Dnveways
(1) No dnveway shall be located less than one hundred ten (110) feet from the
mtersecting nght-of-way lines of publIc streets
(2) Dnveways shall be a muumum of thIrty (30) feet and a maXImum of forty-five (45)
feet m width.
(3) Dnveways shall not be located less than thirty (30) feet from any mtenor property
lme
(4) Dnveways wIll be limited to one (1) per street frontage.
e. Setbacks. Setback requirements shall apply to all structures on the property mcluding
the pnmary structure, or any accessory structures such as car washes or above-ground storage
facIlitIes.
(1) Front -- 35 feet.
(2) SIde -- 20 feet.
(3) Rear -- 20 feet.
(4) Other:
(a) No canopy shall be located less than twenty (20) feet from any property line.
(b) No gasoline pump island shall be located less than thirty (30) feet from any
property line.
(c) The entrance to a bUIldmg wherein motor vehIcles are washed by mechamcal
means shall be located a mimmum dIstance of seventy-five (75) feet from the street lines to prOVIde
an off-street area of waItmg vehicles. Car washes shall be a permitted accessory use at gasoline
dispensmg establishments Car washes shall
1 be fully automatIc;
2 recycle all water used m the car washmg process
f. Buffers
(1) A ten-foot wide landscape buffer shall be located along the street frontage ThIS
buffer shall contain one (1) tree ten (10) to fifteen (15) feet m height WIth a mmImum three-mch
caliper every forty (40) feet, a contmuous hedge twenty-four (24) mches hIgh, twenty-four (24) mches
'In center at time of plantmg with flowering groundcover.
(2) Interior property lmes.
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110
Keterence
.page j ot 4
(a) A ten-foot wIde landscaped buffer shall be located on all mtenor property lmes
When the buffer separates the property from a residentially zoned property, the buffer shall contam a
SIX - foot concrete wall landscaped on the extenor SIde by a contmuous hedge no less than thIrtY-SIX
(36) mches hIgh and planted twenty-four (24) mches on center at time of plantmg; trees ten (10) to
fifteen (15) feet m height WIth three-mch calIper every forty (40) feet; and groundcover. When the
buffer separates the property from other commercIal property, the buffer shall not be reqUIred to
contam a concrete wall. Landscapmg shall be contmuously mamtamed.
1 The wall shall be kept m good repair and appearance at all tImes
2. Openmgs with gates may be allowed where deemed appropnate by the CIty
CommISSIon.
g. Design cntena.
(1) All gasoline dIspensmg establIshments located on deSIgnated out-parcels to
shopping centers, business centers, or other planned commerCIal developments shall conform m
deSIgn to the approved deSIgn plan of the pnncipal center.
(2) Gasoline dIspensmg establIshments shall conform to the commumty deSIgn plan.
(3) All gasoline dispensing establIshments shall not mstall extenor SIte lightmg which
exceeds photometric levels of 60-foot candles average maintamed. LIght fixtures must be baffled,
shIelded, screened or recessed to prevent visibility of the lIt portion of the fixture from off the
'JremIses.
h. Conditional use. Gasoline dIspensing establishments are hereby deSIgnated as a
condItional use as that term is defined in Section 11.2.
i. Distance separation requirements. No gasoline dispensing establIshment shall be
located within two hundred (200) lineal feet from a residentIal structure. DIstances for the purpose of
thIS subsection shall be measured from the boundary line of the parcel on which the gasoline
dispensmg establIshment is located to the closest boundary wall ofthe residential structure.
(4) As to all gasoline dIspensmg establishments that are an ancillary use located or
operated in or from an anCIllary building or structure WIthin a parcel of land of not less than ten (10)
acres WIthin a "Planned Commercial DIStrict" (PCD) governed by Section 6.F. ofthe City of Boynton
Beach Zoning Code, and which gasoline dIspensmg establIshment IS operated by the person(s) or
entity(s) that operates the pnncIpal use located on such parcel of land; and do not meet all of the
requirements set forth under Subsection 3., above, the following shall be applIcable
a. Setbacks. Setback reqUIrements shall apply to all structures on the portIOn of the
property on which the gasoline dispensmg establIshment is located, including the pnmary structure
for the gasoline dispensing establishment, or any accessory structures such as above ground storage
facilIties
(1) Front - 35 feet.
(2) Side - 20 feet.
(3) Rear - 20 feet.
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1//
Kererence yage 4j. or 4j.
( 4) Other:
(a) No canopy shall be located less then twenty (20) feet from any property lme
(b) No gasoline pump Island shall be located less than thIrty (30) feet from any
property lme.
(c) No gasoline pump island or canopy shall be located less than two hundred (200)
feet from any publIc nght-of-way
(d) No gasoline dispensmg establIshment shall be located wIthm two hundred
(200) feet from a resIdentIal structure. Distances for the purpose of thIS subsectIOn shall be measured
from the closest gasoline pump Island or canopy of the gasoline dIspensmg establIshment to the
closest boundary wall of the resIdentIal structure.
b Buffers. Except for permItted dnveway openmgs, a five (5) foot WIde landscaped
buffer shall be located around that portIOn of the parcel of willch the gasoline dIspensmg
establIshment IS located. When the buffer separates the portIOn of the property on WhICh the
gasoline-dIspensing establIshment is located from a resIdentIally zoned property, the buffer shall
contain a SIX (6) foot illgh concrete wall landscaped on the exterior side by a continuous hedge no less
than thIrty-six (36) inches illgh and planted twenty-four (24) mches on center at the tIme ofplantmg;
trees ten (10) to fifteen (15) feet in heIght with three-mch calIper every forty (40) feet; and
groundcover. When the buffer separates the portIOn of the property on willch the gasoline dispensing
establishment is located from other commercIal property, the buffer shall not be reqUIred to contam a
concrete wall. Landscaping shall be continuously mamtamed.
(1) The wall shall be kept m good repair and appearance at all tImes.
(2) Openmgs WIth gates may be allowed where deemed appropnate by the CIty
CommIssion.
c. DeSIgn criteria.
(1) All gasoline dispensmg establIshments under tills SectIOn 4. shall conform to the
community deSIgn plan.
(2) No gasoline dispensing establishments under this Section 4. shall be permitted to
advertise product pricmg on the SIte sign IdentIfying the pnmary tenant or occupant.
(3) All gasoline dIspensmg establIshments under thIS SectIOn 4 shall not mstall
extenor SIte lIghting whIch exceeds photometric levels of 60-foot candles average mamtamed. LIght
fixtures must be baffled, shielded, screened, or recessed to prevent VIsibilIty of the lit portion of the
fixture from off the premises.
d. ConditIOnal use. Gasoline dIspensing establishments defined as anCIllary to a pnncIpal
tenant of a planned commercial dIstrict are hereby designated as a condItional use as that term lS
defined in Section 11.2.
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Kelen::w.;c;;
page l or .!.
D NONCONFORMING USES OF STRUCTURES
EXHIBIT C
E--
1 The nonconformmg use of a buildmg or other structure may be extended throughout any
part of the bmldmg or structure which was clearly desIgned and mtended for such use at the date of
the effectIve adoptIOn or amendment of these regulatIOns Any nonconfomllng use WhICh OCCUpieS a
portIOn of a bmldmg or other structure not ongmally desIgned or mtended for such llse shall not be
extended to any other part of the buildmg or structure. No nonconformmg use may be extended to
occupy any land outsIde the bUIldmg or structure, nor any addItIonal bmldmg or structure on the same
plat, which was not used for such nonconformmg use at the effectIve date of the adoptIOn or
amendment of these regulatIOns.
2 No structure used for a nonconformmg use shall be enlarged, extended, reconstructed or
structurally altered, unless the use IS changed to one WhICh complIes WIth the provlSlons of thIS
chapter [ordmance]. However, ordmary repaIrs, mamtenance and Improvements, such as plumbmg
or wmng, replacement of nonbeanng walls, fixtures or other mtenor alteratIOns, shall be permItted
each year in an amount not to exceed twenty-five (25) percent of the assessed value of the bmldmg or
structure for that year as determined by the Palm Beach County Property AppraIser, subject to the
provISIOns of the precedmg paragraph and provIded such work does not mcrease the CUbIC volume of
the structure, the floor area devoted to the nonconformmg use or the number of dwellmg units.
Nothmg m these regulatIOns shall prevent compliance WIth applIcable laws or ordmances relatIve to
the safety and sanitatIOn of a buildmg occupied by nonconformmg use
E. NONCONFORMING STRUCTURES. The lawful eXIstence of a structure or bUIldmg at the
effectIve date of the adoption or amendment to these regulatIOns, although such structure or bUIldmg
does not conform to the building and SIte regulatIOns of these regulatIOns for mImmum lot area and
dimensions, minimum yard setback requirements, maximum building height, total floor area
requirements, or other characteristics of the structure, or its location on the lot, may be contmued so
long as It remams otherwise lawful. A nonconforming structure or bUIlding (as opposed to a structure
or bUIldmg used for a nonconforming use) may be maintained and repaired, but it shall not be added
to or altered in a fashion so as to increase the extent to WhICh the structure or bUIldmg IS m VIOlatIOn
of applIcable regulatIOns. A nonconformmg structure or bUIldmg may be added or altered If such
alteration or addition does not in Itself constitute a further VIOlatIOn of existing regulatIOns.
F. RECONSTRUCTION OR REMOVAL. If any structure IS destroyed to such an extent that
the cost of rebuilding, repair and reconstruction will exceed seventy (70) percent of ItS current
assessed valuation as determined by the Palm Beach County Property Appraiser, or for any reason
IS moved any dIstance, It shall not agam be used or reconstructed except m conformIty with the
provisIOns of these Land Development Regulations.
G. CONTlNUANCE, DISCONTlNUANCE OR CHANGE OF NONCONFORMING USE.
1 A nonconforming use of land or structure shall not be changed to any other use except one
which would be permItted as a conformmg use m the distnct m WhICh the land or bUIldmg IS located.
However, no change shall be required in the plans, constructIOn, or deSIgned use of any structure for
whIch a bUIlding permit was lawfully issued pursuant to Chapter 20 of the Land Development
RegulatIOns, and upon which constructIOn has actually begun prior to the effectIve date of the
ddoptIOn or amendment of these regulatIOns.
http://www.amlegal.comlboynton_beach_fl/lpex...I262d?fu=document-frame.htm&f=template 9/3/2002 1/3
Keterence
.t'age L or L
2. Any part of a structure or land occupIed by a nonconformmg use whIch IS changed to or
occupIed by a conformmg use shall not thereafter be used or occupIed by a nonconformmg use
3. If for any reason a nonconformmg use of land, structure or any part thereof ceases or IS
dIscontmued for a penod of more than six (6) consecutIve months, except when government actIOn
Impedes access thereto, the land shall not thereafter be used for a nonconformmg use
http./ /www.amlega1.comlboynton_beach_fl/lpex../262d?fu=document-frame.htm&f=template 9/3/2002
lit.[
r!,~ ~il kr....cr plan~g and zoning consultan~
EXHIBIT 0
July 31, 2002
11 -. 5
-",t::: -
Mr Michael W Rumpf, Director
Planning and Zoning Department
City of Boynton Beach
100 East Boynton Beach Blvd
POBox 3 1 0
Boynton Beach, FL 33425-0310
RE Expansion of Texaco Gas Station at 2360 N. Federal Highway
Dear Mr Rumpf
Please let this letter serve as a request to appeal your deCISions to the City
Commission regarding an addition at Gateway Texaco, 2360 N. Federal Highway
A Expansion of the Texaco Convenience Store (with Fuel Pumps) for dry storage;
1. The expansion of the convenIence store (by an addition to rear of 600 sq ft)
for dry storaqe only does not Increase the non-conformity of the eXisting
facility and or its current use. The sale of gasoline (non-conforming use
according to the Boynton Beach Zoning Code) at this location will not be
increased. Many people shop at this convenience store that do not purchase
gasoline We are ready to show the difference In sales between the
customers just purchasing gas, just purchasing groceries and purchasing gas
and groceries
The closest grocery store to tNs location is the Winn Dixie at Hypoluxo Road and
U.S Highway 1, which is over a mile away. This convenience store is located
within a short distance to numerous residential subdivisions along the east and west
Side of N. Federal Highway between the C-15 Canal and Hypoluxo Road. The
location of this convenience store makes it very convenient for these people to shop
at this store who do not need gasoline. Many people just shop in this store to
purchase milk, cigarettes, soda, and other products where if this convenience store
were not here, they would have to drive up to Hypoluxo Road to the Winn Dixie,
using unnecessary gas, putting additional traffic on the roads, and polluting the air
needlessly. Many people living in this area come to the convenience store by bicycle
It would be dOing a disservice not to allow the addition on the rear of this building for
dry storage only
Building an addition on the rear of the convenience store just for dry storage IS not
only a necessity for Mr. Marouf, but it may possibly cause him to go out of business
if It IS not allowed. Mr. Marouf had purchased a trailer, which is parked adjacent to
9 northeast 16th street * delray beach, florida 33444
(561) 265-4983 * fax (561) 265-4611 * e-mail: bkruger@bellsouth.net
rezoning
concurrency
conditional
use,
special
exceptions,
ORe approval
site plans
annexations
comp plan
amendments,
variances
(county, state,
municipal)
abandonments
palm beach
broward
dade &
all counties
& cities
in florida
IIJ
Mr Michael W Rumpf, Director
page 2
July 31, 2002
the parking area south of the building The only purpose for this trailer IS to store
sodas (An eXisting Code Enforcement ViolatIon described below). There IS not
enough room in the building to store the soda and that IS the reason the addItion IS
being requested. Without this additional square footage to store soda, a large part
of the business Will be lost Gas sales may not be dIscontinued but the convenIence
store may be forced to cease operation
Along with the addition for storage on the rear of the convenience store, Mr Marouf
will be renovating the exterior of the building to better fit In with the character of the
residential neighborhoods surrounding this property. Our ArchItect is currently
working on the elevations for the building.
VIOLATION:
Mr. Marouf curre~nIY-Violatio~efore the Code Enforcement Board, Case# 1-
1450, Notice Oat. Jpnp. 1..8, 2001,.-With a running fine. The violation is for PT-
LDR.CH2 SEC 'E6 C-3 / EXTERIOR DISPLAY / STORAGE; "STORAGE OF
MERCHANDISE IN THE TRAILER IS NOT PERMITTED." "TRAILER MUST BE
REMOVED" The trailer is being used to store soda It IS not plugged in to
electricity nor does it have an operating refrigeration unit.
The enclosed site plan illustrates where the addition will be located and how the
additional parking spaces will be laid out. Therefore, the Texaco Convenience Store
will not lose parking spaces but gain spaces with the addition for dry storage on the
rear of the building
The only other alternative to allow the expansion of the convenience store for dry
storage and change the convenience store with gas sales to conforming would be to
change the Zoning Code to allow gasoline sales on intersections with other than Just
four (4) lanes In both directions. We do not want to do this because of the
ramifications to the entire city by allowing of all of the other gasoline selling
establishments to become conforming.
By allowing the convenience store to expand for dry storage only will not increase
gas sales and therefore will not increase the non conformity of this use.
7ncere'~
~~~
Beril K<i:.l!ger
1....../
/
/
V"
SENT BY FACSIMILE AND U.S. MAIL
lib
Reterence
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Boynton Beach, FL Code of Ordinances
PART III LAND DEVELOPMENT REGULATIONS*
CHAPTER 1.5 PLANNING AND DEVELOPMENT GENERALLY
EXHIBIT E
Sec. 2,1 Quasi-Judicial Authority, functions, powers and duties.
A. The CRA board shall have the authonty and duty to hear and deCIde, m a quasI-JudIcIal
capacIty, admmIstrative appeals, specIal exceptIOns and variances
B AdmmIstratIve appeals. The board has the authonty to hear and deCIde appeals when It IS
alleged that there IS error in any order, reqUIrement, deCISIOn or determmation made by an
admInIstratIve official m the enforcement of any zonmg ordmance or regulatIOn adopted pursuant to
the sectIOn.
C. SpecIal exceptions. The board has the authonty and duty to hear and deCIde requests for
specIal exceptions. To decIde such questIOns as are mvolved in the determmatIOn of when such
specIal exceptIOns should be granted. To grant special exceptIOns WIth appropnate condItIOns and
safeguards or to deny such special exceptIOns when not m harmony WIth the purpose and mtent of
thIS sectIOn. The followmg standards apply to the board power to grant specIal exceptIOns:
1. The board shall find that m grantmg the special exceptIOn, the publIc mterest wIll not be
adversely affected.
2. The board may prescribe appropriate condItIOns and safeguards in conformIty WIth thIS
chapter VIOlation of such conditions and safeguards, when made part of the terms under WhICh the
special exceptIon IS granted, shall constitute grounds for the revocation of the specIal exception and
the certIficate of occupancy or occupatlOnallicense assocIated therewIth.
3. The board may prescribe a reasonable tIme limIt wlthm whIch the action for which the
specIal exceptIOn IS reqUIred shall begin or be completed, or both.
D Variances The board has the authonty and duty to authonze upon appeal such variance
from the teams of a CIty ordinance as will not be contrary to the public mterest when, owmg to special
conditIOns, a lIteral enforcement of the proVIsIOns of the CIty ordmance would result m unnecessary
and undue hardship.
1. In order to authorize any variance from the terms of an ordmance, the board must find.
a. That special conditions and CIrcumstances exist wmch are peculIar to the land,
structure or bUIlding mvolved, and WhICh are not applIcable to other lands, structures or bUIldmgs m
the same zonmg dIStnCt.
b. That special conditIOns and CIrcumstances do not result from the actIOns of the
applIcant for the variance.
c That grantmg the variance requested wIll not confer on the applicant any specIal
pnvilege that IS denied by this section to other lands, structures or bUIldings in the same zOnIng
district.
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d. That lIteral mterpretations of the provIsIOns of the ordmance would depnve the
applIcant of rights commonly enjoyed by other propertIes m the same ZOnIng dIstnct under the terms
of the ordmance and would work unnecessary and undue hardshIp on the applIcant.
e. That the variance granted is the mmImum variance that WIll make possible reasonable
use of the land, structure or building.
f. That the grant of the variance wIll be m harmony wIth the general mtent and purpose
of thIS chapter and that such variance WIll not be mJunous to the area involved or be otherwIse
detnmental to the publIc welfare.
g. For variances to mInImum lot area or lot frontage reqUIrements, that property IS not
aVailable from adjacent propertIes m order to meet these reqUIrements, or that the acqulSltIOn of such
property would cause the adjacent property or structures to become nonconformmg. The applIcant for
such variances shall provide an affidaVIt WIth the applIcatIOn for variance statmg that the above
mentIOned condItIOns eXIst WIth respect to the acqUIsition of additIOnal property
2. In grantIng a variance:
a. The board may prescribe appropnate conditIOns and safeguards m conformIty WIth thIS
sectIOn. Violations of such condItIons and safeguards, when made a part of the terms under WhICh the
variance IS granted, shall be deemed a VIOlation of this section.
b The board may prescribe a reasonable tIme lImIt WIthIn WhIch the action for whIch the
variance is reqUIred shall begin, be completed, or both.
c. Where variances of lot area and maximum densItIes are requested, and such variance,
If granted, would cause the densIty to exceed the densIty shown on the future land use map of the
CIty'S comprehensive plan, the density created shall be construed to be m conformance WIth the
comprehensive plan If the board finds that the variance meets the condItIons set forth in this sectIOn
for grantmg the same, and the variance would only allow for the constructIOn of a smgle-famlly
detached dwelling.
~{ E.
.......
Procedures for variances, specIal exceptions and appeals of adminIstratIve actions.
1 Exceptions. Under no circumstances except as permItted above shall the board grant a
variance to permIt a use not generally or by speCial exception permItted m the zoning district
mvolved or any use expressly or by ImplIcatIOn prohibited In the applicable zoning dIStriCt. No
nonconforming use of neighboring lands, structures or bUIldmgs m other zoning dIstncts shall be
considered grounds for the authonzation of a variance.
2. ReVIew of admmistrative orders. In eXerCISIng ItS powers, the board may, upon appeal
and m conformity WIth the proVISIOns of thIS section, reverse or affirm, wholly or partly, or may
modify the order, requirement, deciSIOn or determInatIOn made by an admInIstratIVe official m the
enforcement of any zoning ordmance or regulation adopted pursuant to thIS section and may make
any necessary order, reqUIrement, deCIsion or determInatIOn, and to that end shall have the powers of
the officer from whom the appeal is taken. A majority vote shall be necessary to reverse an order,
requirement, decision or determination of any such administratIve offiCial or to deCIde m favor of the
applIcant on any matter upon which the board IS reqUIred to pass under thIS sectIOn.
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3. Appeals from decIsIon of admmIstratIve officIal. Appeals to the board may be taken by
any person aggrieved or affected by any decIsIOn of an administratIve officIal mterpretmg any ZOnIng
ordinance. Such appeal shall be taken wIthm thIrty (30) days after rendItIon of the order, reqUIrement,
decIsion, or determmatIOn appealed from by filmg WIth the officer from whom the appeal is taken
and with the board, a notIce of appeal specifyIng the grounds thereof.
4. Stay of work and proceeding on appeals. An appeal to the board stays all work on the
premIses and all proceedmgs in furtherance of the actIOn appealed from, unless the offiCIal from
whom the appeal IS taken shall certl:fy to the board that, by reason of facts stated in the certIficate, a
stay would cause unminent peril of life or property. In such case, proceedmgs or work shall not be
stayed except by a restrammg order which may be granted by the board, or by a court of record on the
applIcatIOn, on notice to the officer from whom the appeal IS taken and on due cause shown.
5. Heanng of appeals. The board shall fix a reasonable tIme for the hearing of the appeal,
gIve the pubhc notIce thereof, as well as due notice to the partIes m mterest, and decide the same
WIthin a reasonable tIme. Upon the heanng, any person may appear m person, by agent or attorney.
Applicants shall be reqUIred to file a proper form (supplied by staff), a current certIfied survey
accompanied by a fee as adopted by resolution of the CIty CommissIOn. For procedural purposes, an
apphcatIOn for a special exception shall be handled by the board as for appeals.
6. Review of deciSIOns of the Board. Any person may appeal variance, special exception, or
appeal of admmistratIVe order to the City CommissIOn of the CIty of Boynton Beach WIthin twenty
(20) days after rendItion of the deciSIOn by the CRA board. The deCISIOn of the City CommIssIOn
shall be deemed final subject only to review by writ of certiorari to the Palm Beach County CirCUIt
Court.
7. Withdrawal or denial of apphcation.
a. Upon the denial of an apphcation for rehef hereunder, m whole or m part, a period of
one (1) year must elapse prior to the filmg of a subsequent apphcation affecting the same property or
any portion thereof.
b. Upon the withdrawal of an application, in whole or m part, a penod of six (6) months
must run pnor to the filing of a subsequent applicatIOn affectmg the same property or any portIOn
thereof, unless the decision of the board IS WIthOut prejudice; and provided that the penod of
limitation shall be increased to a two (2) year waiting period in the event such an application, in
whole or m part, has been twIce or more denied or withdrawn.
c. An applicatIOn may be WIthdrawn without prejudice by the apphcant as a matter of
right; provIded the request for withdrawal IS in writmg and executed in a manner and on a form
prescribed by the board and filed with the board at least one (1) week pnor to any scheduled heanng
scheduled before the board concernmg the apphcatIOn; otherwIse, all such requests for withdrawal
shall be with prejudice. No application may be withdrawn after action has been taken by the board.
When an applicatIon IS withdrawn WIthout prejudIce, the tIme hmitatIOns for re-application provided
herein shall not apply.
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F AdvertlSlng reqUIrements. ReqUIred advertIsements for the applIcant's request must appear
in newspaper of general circulation m the CIty of Boynton Beach, at least fifteen (15) days pnor to
the scheduled eRA board meeting. All reqUIred notIces to surrounding property owners must be
postmarked no later than fifteen (15) days pnor to that scheduled publIc hearing.
(Ord. No 00-70, S 2,12-19-00)
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~
~f, Michael
From:
Sent:
To:
Cc:
Subject:
Kelley, David
Friday, June 27, 2003 843 AM
Logan, Laurinda; Johnson, Eric
Rumpf, Michael
RE. Gateway Texaco M ~ l
Laurinda.
I would prefer to leave the two existing driveways along Federal Highway open for the one-way
access in and out. Trying to access the station via Las Palmas Drive will become a nightmare once
THE HARBORS development is up and running; we must consider the vehicle stacking that will
take place on the east leg of the (traffic light) intersection. Vehicles northbound on Federal (or
crossing the intersection from Gateway Boulevard) simply will not be able to access the station via
Las Palmas Drive.
Dave.
-m-Original Message-m-
From: Logan, Laurinda
Sent: Friday, June 27, 2003 8:16 AM
To: Johnson, Eric
Cc: Kelley, David; Rumpf, Michael
Subject: Gateway Texaco
ErLG,
Title LDR oll'vLtJ iilLLows oll've c:MveWiiltJ per street frol/\.tiilge for giilS stiiltLolI'vs (Cltliilpter 2, seGtLolI'v 1-1- L.3 el
(4-)) Title C;iiltewiil tJ Te)(iilGO ltliilS two Oll'v Feeleriil L HWtJ iilll'vel oll've Oll'v LiilS 'PiilLVV<.-iilS Are tltletJ g riilll'velfiiltltlereel
LII'v or WII'v we iilSR, tltleVV<.- to dose oll've of title FeeleriilL HwtJ elrLvewiiltJS elOWII'v7
L,Dlv{}
:( [/.Ir s;:!
1
DEPARTMENT OF DEVELOPMENT
PLANNING AND ZONING DIVISION
. Building . Planning & Zoning . Occupational Licenses . Community Redevelopment
June 14,2002
Mr. Beril Kruger
Plannmg & ZOnIng Consultant
9 Northeast 16th Street
Delray Beach, FL 33444
Subject:
1) ExpansIOn of Texaco Gas StatIOn at 2360 N Federal HIghway
2) Dnveway ConnectIOn from Texaco Station and Approved Car Wash Project
Dear Mr Kruger:
.~ ThIS letter is m follow-up to our recent meetmg regardmg the above-referenced issues. Please be
,~. ) mformed of the conclusion reached that pursuant to the Land Development Regulations, Chapter 2,
....,," Sections "D" and "G", the proposed changes are prohibIted. I acknowledge and apologIze for the
delay caused by the numerous conversatIOns and meetings held on these Issues, which may have
mIsled you.
Please be mformed that you may not proceed wIth the Said changes. However, m accordance wIth the
Land Development Regulations, Chapter 1, Article VII, SectIOn 1, you may appeal this decisIOn of the
Planning and Zonmg DIrector to the City CommIssIOn. As an alternative, please also be aware of the
optIOn you have to amend our regulations to meet your objectives I would recommend that any code
amendment (code revIew) you would apply for be wntten to conSIder ItS CIty-wIde ImplIcatIOns.
Please note the filing reqUIrements to appeal (see attached excerpt) and contact me should you have
any questIOns.
Smcerely,
r1.iJ2
Michael W. Rumpf
DIrector ofPlannmg and Zonmg
\ MWR:Jdc
"
Attachment
S \P!annmg\SHARED\WP\CORRESP\Corresp A thru L\Kruger, Ben! Re Texaco StatIon ExpanslOn.doc
City of Boynton Beach . 100 East Boynton Beach Blvd., POBox 310 . Boynton Beach, Florida 33425-0310
Phone: (561) 742-6350 . www.cLboynton-beach.or
28
,.....,
, )
Boynton Beach Code
ARTICLE VII. APPEALS
See,!. Appeals from decisions of an
administrative official.
A. ELIGIBILITY. Appeals of decisions of an
administrative official may be taken by any person
aggrieved or by any officer, board, or bureau of the
governing body affected by any decision of an
administrative official under any ordinance enacted
pursuant to the Land Development Regulations of the
City of Boynton Beach.
B. FILING. Appeals shall be filed within
fifteen (15) calendar days after rendition of the order,
requirement, decision, or determination with the
official from whom the appeal is taken specifying the
grounds for the appeal. A current certified survey
and a fee as adopted by resolution of the City
Commission, plans, drawings, documents and/or
other material constituting the record upon which the
-""",,~ction was taken shall be collected by the
'Jministrative official and, together with the
completed appeal, forwarded to the appropriate
appeal board for placement on the board's next
available agenda.
C. STAY OF WORK. Upon posting of
acceptable surety (see Chapter 7) by the appellant in
an amount equal to 110% of the potential costs of
delays and damages as certified by a design
professional, all work on the premises and all
proceedings in furtherance of the action appealed
from will be stayed, unless the official from whom
the appeal was taken certifies that by reason of facts
stated in the certificate, a stay would cause imminent
peril of life or propeny. In such case, proceedings
or work shall not be stayed except by a restraining
order which may be granted by the board or by a
court of record on application, on notice to the
officer from whom the appeal is taken and on due
cause shown.
D. ASSIGNMENT OF APPEALS. The City
of Boynton Beach has several boards/commissions
'~~hich deal with a variety of appeals, variances,
Jemptions, exceptions, etc., as follows:
1. The building board of adjustment and
appeals will hear and decide appeals of administrative
1997 S-5
decisions or determinations made in the enforcement
or administration of LDR Chapter 20, Building,
Housing and Construction Regulations and the various
building codes and ordinances adopted by the City.
See LDR Chapter 20, Article vn, Section 2D for
detailed information.
r-'
. ..
2. The City Commission will hear and
decide appeals of administrative decisions or
determinations in the enforcement or administration of
envirorunental review permits; excavation, dredging
and/or fill permits; major/minor site plan or master
plan modifications and height exceptions.
3. The concurrency review board will hear
and decide appeals of administrative decisions
denying a certification of concurrency and/or a
conditional certification of concurrency.
4. The board of zoning appeals will hear
and decide appeals of administrative decisions or
determinations made in the enforcement or
administration of all portions of the Land
Development Regulations not specifically enumerated
within the jurisdiction of the City Commission and/or
the building board of adjustment and appeals and/or
the concurrency review board. See LDR Chapter 2,
Section 10 for detailed information.
f~;;
.~v'
E. HEARING OF APPEALS. Each board or
commission shall fix a reasonable time for the hearing
of the appeal, give public notice thereof, as well as
due notice to the parties in interest. Upon the
hearing, any party may appear in person, by agent or
by attorney.
F. REVIEW OF ADMINISTRA TIVE
ORDERS. In exercising its powers, each board or
commission may, reverse or affirm, wholly or partly,
or may modify the order, requirement, decision, or
determination made by an administrative official and
may make any necessary order, requirement,
decision, or determination, and to that end shall have
all the powers of the officer from whom the appeal is
taken. The concurring vote of a majority of the
members present shall be necessary to reverse any
order, requirement, decision, or determination of any
administrative official or to decide in favor of the
c.
...
General Provisions
~)
applicant on any matter upon which the board or
commission is required to pass.
G. INDEMNIFICATION. In the event a claim
or lawsuit is brought against the City, its officers,
employees, servants or agents, the applicant hereby
agrees to indemnify, save, and hold harmless the
City, its officers, employees, servants or agents and
to defend said persons from any such claims,
liabilities, causes of action, and judgements of any
type whatsoever arising out of or relating to the
appeals from decisions of an administrative official
whether the appellant is the applicant or any other
party. The appellant agrees to pay all costs,
attorney's fees, and expenses incurred by the City, its
officers, employees, servants or agents in connection
with such claims, liabilities or suits. Nothing
contained herein, however, shall act as a waiver of
any of the City's immunities provided for in Florida
Statutes, Section 768.28. (Ord. No. 96-49, ~ 7, 1-
21-97)
::) Sec. 2, Appeals from decisions of the
concurrency review board,
A. ELIGIBILITY. Appeals of decisions of the
concurrency review board may be taken by any
aggrieved party affected by a board decision.
B. FILING. Appeals shall be filed within
fifteen (15) calendar days after rendition ofthe order,
requirement, decision or determination with the
planning and zoning director specifying the grounds
for the appeal. A fee as adopted by resolution of the
City Commission together with other documents and
materials constituting the record upon which the
action was taken shall be collected by the planning
and zoning director and, together with the completed
appeal, forwarded to the planning and development
board for placement on the board's next available
agenda.
1
" ...r
C. HEARING OF APPEALS. The planning
and development board shall fix a reasonable time for
the hearing of the appeal, give public notice thereof,
as well as due notice to the parties in interest. Upon
the hearing, any party may appear in person, by
agent or by attorney.
1997 S-5
29
D. REVIEWING APPEALS. In exercising its
powers, the planning and development board may
reverse or affirm wholly or partly, or may modify the
decision or determination made by the concurrency
review board and may make any necessary order,
requirement, decision or determination, and to that
end shall have all the powers of the concurrency
review board and the planning and zoning director.
The concurring vote of a majority of the members
present shall be necessary to reverse any order,
requirement, decision, or determination of the
concurrency review board or to decide in favor of the
applicant on any matter upon which the board is
required to pass. (Ord. No. 96-49, ~ 7, 1-21-97)
Sec. 3, Appeals from decisions of the board of
zoning appeals, and the building board of
adjustment and appeals,
A. ELIGIBILITY. Appeals of decisions of the
board of zoning appeals and the building board of
adjustment and appeals may be taken by any
aggrieved party affected by a board decision.
B. FILING. Appeals for judicial relief shall be
filed with the circuit court within thirty (30) calendar
days after rendition of a board decision. (Ord. No.
96-49, ~ 7, 1-21-97)
Sec. 4. Appeals from decisions of the City
Commission.
A. ELIGIBILITY. Appeals of decisions by the
City Commission may be taken by any aggrieved
party affected by a commission decision.
B. FILING. Appeals for judicial relief shall be
filed with the circuit court within thirty (30) calendar
_ days after rendition of a commission decision. (Ord.
No. 96-49, ~ 7, 1-21-97)
Sec. S, Withdrawal or denial of appeal,
A. REFILING AFfER DENIAL. Upon denial
of an application for relief hereunder, in whole or in
part, a period of one (1) year must run prior to the
September 9, 2002 11:76 AM From: Beril Kru~r i=aK Number: 2654611 Page 2 of 2
Iteri. krlll.cr planning and zoning consultants
Patricia Tucker, Administrative Assistant
to Planning and Zoning Director
CIty of Boynton Beach
100 E Boynton Beach Boulevard
Boynton Beach, FL 33435
RE: GATEWAY TEXACO (ADAP) 02-001
Dear Ms. Tucker:
Since I received the staff report on this project Thursday, September 5, 2002,
and Friday night was the beginning of the Jewish New Year, I did not have
time to go over the staff report and properly prepare a presentation to present
at Tuesday evenings eRA meeting. I had spoken to Mr. Rumpf earlier about
possibly going before thiS meeting but since I had not heard earlier, I thought
we were on the October 8lh meeting as Mr. Rumph had informed me earlier in
AUHust. I therefore respectfully request a postponement of this appeal to the
next CRA meeting.
I apologize for any inconvenience this has caused and I will be prepared for
the next meeting, which I understand is on October 8, 2002.
---.--.
SKlcI
CC Steve Marouf
SENT BY FACSIMILE ONLY
9 northeast 16th street * delray beach, florlda 33444
(661) 266-4983 * fu (561) 265-461' * a-mail' bkruger@bellsouth.nat
rezoning
concurrency
conditional
use.
special
exceptions,
ORe approval
site plans
annexations
comp plan
amendments,
variances
(county, state.
municipal)
abandonments
palm beach
broward
dade &
all counties
& cities
in florida
or
,- -
t .
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iI
Changing or Expanding
Nonconforming Uses
By Mark S. Dennzson
The ulumate purpose of zoning ordinances IS to confine
certam classes of uses and structures to certain areas. The
law generally frowns on nonconforming uses because they
undermine that goal. The general rule IS this: If pnor to the
adoption of an onglnal zomng ordinance-or a subsequent
amendment or revISIon-property was being used for a then-
lawful purpose that the ordinance prohibHS and renders
nonconforming, the property owner acqUIres a vested nght to
continue the nonconforming use.
Thus, the pohcy of zoning ordinances IS to secure the gradual
or eventual elImination of nonconforming uses. To further thiS
goal, state zomng enabling acts confer powers on local zomng
bodies to Impose restncuons on the expansIOn or change of
nonconforming uses. ThiS Issue of Zonzng News evaluates the
Clfcumstances under which a change or expansIOn of a
nonconforming use IS considered lllegal under most zoning
ordinances. (Where case citations are missing In the text, they
appear In the accompanYIng sidebar)
Establishment of Nonconforming Use
What IS reqUIred to establIsh a nonconforming use as lawful?
The land use must meet two baSIC requirements:
. It must have eXIsted before the prohibitory regulauon was
enacted. [See, for example, Heyman v Zonzng Hearzng Board
of Abzngton TownshIp, 601 A.2d 414 (Pa. Commw 1991)]
. It must have been lawful when commenced. [See, for
example, Oceanview Homeowners AssocIatlOn, Inc. v
Quadrant ConstructlOn & Engzneerzng, 680 P.2d 793 (Alaska
1984), Hooper v Cay 0[5t. Paul, 353 N W.2d 138 (MInn.
1984) ]
The burden of proving the extent or eXIstence of a
nonconforming use rests on the landowner, who must estabhsh
both of the above POIntS. [See, for example, R.K Kibblehouse
Quarrzes v Marlborough TownshIp Zoning Hearing Board, 630
A.2d 937 (Pa. Commw 1993), City ofPeorza v Danz,585
N.E.2d 1207 (Ill. App 1992), Town of Ithaca v Hill, 571
N Y.S.2d 609 (App Dlv 1991)]
A use that was begun In vlOlauon of the ordInance In effect
at the time cannot gain stams as a preexlstmg and lawful
nonconformIng use. [See, for example, Lantos v Zoning Hearzng
Board of Haverford TownshIp, 621 A.2d 1208 (Pa. Commw
1993) ] The use In question must have been m full conformance
With all applicable land-use regulations In effect when the
activIty began. [See, for example, City ofDublzn v finkes, 615
N.E.2d 690 (OhIO App 1992)] In a few cases, the landowner's
faIlure to obtain a ceruficate of occupancy when the use was
estabhshed under a former zoning ordinance has prevented the
property from acqUIring nonconformIng use status under
subsequem amendmems to the ordinance that prohibited the
use. [See, e.g, Bernstezn v DIstrzct ofColumbra Board ofZonzng
Adjustment, 376 A.2d 816 (D C. App 1977)]
However, where the Invahdlty of a use hes In the fact that
the landowner failed to obtaIn a bUSiness hcense or to comply
With reqUIrements Imposed by an ordinance orher than the one
regulating land use, such invalIdity generally wlll not preclude
the property from acqumng nonconforming use stams. [See, for
example, Carrollv Hurst, 431 N.E.2d 1344 (Ilt App 1982)
(fallure to obtain hcense for operauon of automobile Junkyard
as required by state motor vehicle code dId not defeat
nonconforming use status under zoning ordinance) ]
Limitations o~ Change
A zonmg ordmance can proscnbe a new nonconformmg use
or one of a dlfferem character The questlOlied use may not
.:. Permissible Changes
Types of changes that the courts have deemed permissible:
DzBlasz v. Zonmg Board of Appeals of the 7'own of Litchfield,
624 A.2d J72 (Conn. 199'3) (change in use from a
construction office to an adult probation office)
Half v Brazzale, 624 A.2d 916 (Conn. App. 1993) (change
from a secondary storage site to the sole storage site tor
construction business)
Limley v Zoning Hearing Board of Port Vue Borough, 625
A.2d 54 (Pa. 1993) (change from pnvate club to public
restau rant and bar)
Appeal of Schneider, 521 A.2d 528 (Pa. 1987) (change of use
of property from storage and repair of general hauling
trucks to storage and repair of empty trash trucks).
Aboud v Wallace, 463 N Y,S.2d 572 (App. Div 1983)
(change from doctor's office to professional lobbying
group's office)
Kastendike v. Baltimore Association for Retarded Children, 297
A.2d 745 (Md. App. 1972) (change from nursing home
for treatment of elderly and alcoholics to home for
treatment of retarded children)
.:. Impermissible Changes
Types of changes that the courts have deemed impernussible:
Gilmore I' County ofDuPage, 597 N.E.2d 1111 (Ill. App
1991) (change from chiropractor's office to dentist's
office)
Boivin v Town of Sanford, 588 A.2d 1197 (Me. 1991)
(change from auction barn to antique business) .
Tier Oil Corp. v. Eran. 472 N.Y.S.2d 505 (App. Div 1984) ~
(change from gasoline SeI'Vlte station to combination gas
station and convenience store).
Stevens v Town of Rye, 448 A.2d 426 (N.H. 1983) (change
from automobile garage to bath shop and plumbing
supplies showroom)
Board ofZonmg Appeals I' McCalley, 300 S.E.2d 790 (Va.
1983) (change from auto body shop to metal forge and
machine shop)
(contmued on page 3)
be grandfathered from the operation of new zoning
restrictions If it:
. falls to reflect the nature and purpose of the preexisting
nonconformmg use
. IS different m qualtty or character as well as m degree
. IS different m kind m ItS effect on the neighborhood where It
IS located. [See, for example, Keith v Saco Rzver Corridor
Commisszon, 464 A.2d 150 (Me. 1983) ]
To qualtfY as a contmuatlon of an eXisting nonconformmg
use, a proposed use must be similar to the ongmal use. (See, for
example, Boivzn v Town o/Sanford.) However, It need not be
Identical. [See, for example, Pappas v Zonzng Board of
Adjustment of the City ofPhrladelphia, 589 A.2d 675 (Pa. 1991)
(pizza restaurant with seatmg for 40 customers was Similar to
preexlstmg nonconforming use as sandWICh shop that had very
Itmlted customer seating and sold pnmanly take-out food) ]
In determming whether a new use bears adequate slmtlanty
to an eXisting nonconforming use, courts evaluate vanous
factors, mcludmg:
. the extent to which the current use reflects the nature and
purpose of the ongmal use;
. whether the use is different m character, nature, and kmd,
. whether the current use has a substantially different effect on
the neighborhood.
[See Zachs v Zoning Board of Appeals; Knowlton v Browning-
Ferris IndustrIes, 260 S.E.2d 232 (Va. 1979), Town of
Brzdgewater v Chuckran, 217 N .E.2d 726 (Mass. 1966) ]
Determmmg whether a questioned use meets this test
necessarily mvolves consideration of the specdic facts of each
case. [See, for example, Mason v Crooker-Mulligan, 570 A.2d
1217 (Me. 1990) ] For instance, m Ka-Hur Enterprzses, Inc. v
Zoning Board of Appeals of Provzncetown, 661 N .E.2d 120
(Mass. App 1996), the court evaluated whether a
nonconforming use as a fuel 011 storage and distribution depot
was terminated by a change m use. The property at Issue was
used as a fuel oil storage and distribution faciltty before the city
enacted a 1951 zonlllg ordinance that zoned It for reSidential
use. This use contmued until 1979, when the Nauset Trawling
Company acqUIred the property and operated a fishmg busllless
and truck repaIr shop on the premises that lasted until August
1987. The eVIdence showed that Nauset used the property
primanly to operate its fishing business and to garage and repaIr
trucks used for hauling fish.
While there was evidence that Nauset continued to store fuel
in the two tanks on the premises and to make deltveries to Its
fishing vessels, out-of-town fishing boats, and a few homes of its
employees, neighboring property owners testified that they
never saw any fuel oil trucks enter or leave the premIses. The
town's building inspector also testified that, on his numerous
yisits to the prop~rty from 1985 to 1987, he never saw any
'oence that the property was being used as a fuel storage and
:..~~~~~,p" fac.ili~. The court was unpersuaded by the fact that
~p~~FOn~u~ to be used for incidental storage of fuel
, (~,n.~~~,~t a s~bstantial change in Use had occurred
. Ip. ~4 the property lost ItS
.",~,~~,;~.,; .,
I:":'t.n-
;i~~thor who practzces envzron-
Vfr~twood, New Jersey.
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..
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,
. '
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On the other hand, some courts have held that incidental
storage activities that were part of the preexisting nonconformmg
use may be conqnued despIte a change or discontinuance of the
property's pnmary nonconformmg busmess use. [See, for example,
Toys R Us v Srlva, 639 N Y.S.2d 881 (Sup. Ct. 1996), Hendgen v
Clackamas County, 849 P.2d 1135 (Ore. App. 1993) ]
Some zonlllg ordlllances allow a change m use proVided that
the new use would have been permitted m the most restnctlvely
zoned distnct m which the ongmal use was allowed. [See, for
example, Prudence v Town of Ithaca Zonmg Board of Appeals,
599 N Y.S.2d 749 (App Dlv 1993)] Others allow changes to a
less llltensIve nonconformlllg use or one that would be less
detnmental to the neighborhood's character than the eXIstmg
nonconformlllg use. [See, for example, McLaughlm v City of
Brockton, 587 N .E.2d 251 (Mass. App 1992)] These
ordlllances are deSigned to achIeve eventual eradication of
nonconformlllg uses through gradual change to uses that are
"more appropnate" to the dIstnct. [See, for example, Kopietz v
Zomng Board of Appeals fOr the City of the Village of Clarkston,
535 N W.2d 910 (Mich. App 1995)]
Zoning ordinances seldom contoin an
absolute prohibition against 01/
expansions of nonconforming uses,
ond some courts, most notably in
Pennsylvania, have ruled thot locol
ordinances cannot impose such an
absolute prohibition.
Limitations on Expansion
The rationale for prohibiting a change from one nonconformlllg
use to another appltes also to expansIOns of preexIstlllg noncon-
formlllg uses. The only nonconformmg use enntled to protec-
non IS the one that existed when passage of the zoning
ordlllance made It nonconforming. Allowmg the nonconform-
ing use of land and buildmgs to be expanded or enlarged would
further exacerbate the offense to the general commul1lty and
undermine the publtc polIcy that nonconformmg uses should
eventually be eltmlllated and made to conform to the zol1lng
laws. [See, for example, SLS Partnership v City of Apple Valley.]
Zonm ordmances seldom contam an absolute rohibmon
agaInst all expansIOns 0 noncon ormmg uses, and some courts,
most notabl m Pennsylvania, have ruled that local ordinances
cannot impose suc an a so ute pro i ition. ee, or example,
Gattt v Loning Hearzng Board ofSalzsbury Township, 543 A.2d
622 (Pa. Commw 1988)] Most zonmg ordmances permIt some
exp~nsion. Permissible expansIOns typIcally lllclude an mcrease m
busmess volume that does not mclude an enlar ement of the size
o a nonconformin buildin or an extensIOn 0 t e nonconform-
in use wlthm the confines 0 t e same nonconformin lot or
buildm.g,. Impermissl e expansIOns common y mc u e structural
alterations that mcrease the SIze of a nonconformlllg building or
its expansion onto addmonalland that was not formerly used for
that purpose. The applIcable zonmg ordmance determllles whIch
expansIOns are deemed eIther lawful or illegal.
) ~". ' .
.. ~I ~
,.
Adding new facIlities or enlarging eXisting ones IS a
prohibited expansIOn of a nonconforming use If It IS
Incompatible with the permitted use or If the nature of the use
substantially changes. Even where the ordinance In question
does not state s eClfica'l that a noriconformln use could not
e ex anded, court ..have held that a nonconformln<7 use ma
'not be ex anded, as this would 0 en t e regulation's purpose.
ee, or example, Lower Mount Bethel TownshIp v Stabler Dev
Co, 509 A2d 1332 (Pa. Cornmw 1986), Norton Shores v Carr,
265 N W 2d 802 (Mich. App 1978)] In the absence of specific
gUidelines In the ZOl11ng ordinance, a court seekll1g to determine
how much a nonconforming use may be expanded must look to
th.facts eXisting when the nonconforming use was created.
[See, for example, New London Land Use AssocIates v New
London Zonmg Board, 543 A2d 1385 (N H. 1988).]
For example, In Rays Statelme Market, Inc. v Town of
Pelham, the owner of a nonconforming convel11ence store
applied for permits to make alterations to the premises that
Involved replacing two sign faCings on the extenor and
relocating a coffee counter inside the store. On appeal of the
town zol11ng board of appeals' deCISIOn to deny the permits, the
trlal court concluded that the proposed alterations dId not
constitute an ImpermIssible expansIOn or change of a
nonconforming use, Affirming the tnal court, the New
Hampshire Supreme Court applied proVISIOns of the state
zol11ng enabling act pertaining to alterations to nonconforming
uses. The statute ranted rotectlon to a nonconformln use
unless the use was altere or a ur ose or 111 a manner which IS
substantia y 1 erent from the use to w IC it was lit before
alteration. N H. Rev Stat. sec. 674 19]
~. The town ZOl11ng ordinance was consistent With thIS
proVIsIOn, whICh the court construed as lImiting any extenSIOn,
expanSIon, or enlargement of a nonconforming use and
prohibiting ItS change to a "~ubstantlally dIfferent"
nonconforming use. The court tnerefore evaluated the facts to
determine whether granting the permItS would result In an
ImpermissIble change or extensIOn of the nonconforming use In
light of "the extent to whIch the challenged use reflects the@
nature an~ ur ose of the revaIlIn nonconformin us
@w et er t e c allenged use IS merely a dIfferent manner of uSing
the onglnal nonconforming use or whether It constitutes a (!)
different use, and whether the challenged use will have a
substantially dIfferent Impact upon the neIghborhood."
Applying these factors, the coun found that the landowner's
proposed alterations 1I1volved nothing more than the Internal
expansIOn of a business wlth1l1 a preeXIsting structure and that
there was no substantial change In ItS effect on the neighborhood.
Granting the SIgn permit would not affect the dImensIOns of the
eXisting SIgns and would result only In lettenng changes.
Granting the coffee counter permIt would merely result In
relocating a coffee counter Within the store. The coun concluded
that these facts supported the trial court's rulings that the
requested permits would not result In a substantial change or an
illegal expansIOn of the nonconforming use.
The general rule With regard to extending a nonconform1l1g use
to additional pro er . IS that a nonconform1l1 use is restricted to
~he area t at waK noncorrformll1g at the time the relevant ordi-
nance was enacted. Furthermore, a nonconforming use cannot be
ex anded onto ro;; that was a~ uirea: after the use became
~nconforming. [ ee, for examp e, mit v Zoning Hearing Board
of the Borough of Belle vue, 619 A.2d 399 (Pa. Commw. 1992) ]
Where the use of property Involves a phYSical extension of a
nonconforming use to a part of the land not used for the
I
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'~ '\,,;~~;1-:t~:.
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(,'ontinul'd fiwn }i'ont)
Taylor l' A1m'opo/1li7l1 ])elle/opmem C'ommisslOn, 436 N .E.2d
1] ')7 (lnJ ApI' 1')82) (change from liquor store to
Tavern)
Helleville II i'm'illo 5, 111(., 4] 6 A.2J .,88 (N 1 ] 980) (,~hangc
from restaurant to discotheque)
i'lnllips 1) Village ofOmkal1Y, 394 N Y .".2.1 941 iApp Dlv
J 977) (change Irom r.:sraurant anJ suda fountalll to
reslaurant and ravern) ,
.:. lawful Expansion I
Types of expansions thaI the C<JUrlS have J.:emed lawful
Ray s Sf.m.line Markel, JIlC II Town lij Pelha111, 66') A.2d
] 068 (N.H 199')) (rt'l'la,'emenr of !\Hl sign taclllgs on
eXtCfJ(lr and relo,ation of a "'ltt'ee coulll.:r on rhe mrenOJ'
of a srore)
7.adJS 1/ 7.oning Board ofAppM/s, ')89 A.2d 3') 1 (Conn
11)9]) (increase in rhe use of a nonconformlllg radio rowl'r
through the addinon uf eight radJO anrennas)
Planning & Zo 111 Ilg C0111miSJ'ioll l' (:raji, ')29 A.2d 1328
(Conn. App. ] 987) (tncreasl' In use of l'acalIon dwel!Jng
from weekends and holidays to year-round on:upancy)
()(e.mlllew HomeOUJ!1a5 Association l' (juadlilnt C011St/-Udiol1
6- Engineerlllg, 680 1'.2d 793 (Alaska 1984) (mcrease in
numher of planes using an aIrsTrIp)
Redjf.11'Il I' (:I'eppel, 4')') So.2d 1.'3')6 (La. 1984) (expansion
of resrauranr m nonconformmg horel)
Hunziker 1/ Grande, 4"16 N E.2d ') 16 (OhlO App 1982)
(nursery's Illl"reaSe in relall busint'ss as OppOSl.J to
wholesale husiness)
.:. 'nlawful Expansion
Typcs of t~xpansions that rhl' cuurts have deemed unlawful.
Smith v. f'aI01l<', 642 N Y.S 2d 1] <) (ApI" I )iv ] 996)
(expanded operat ion of a n'llKonformmg speedway)
SlS f'111111mhip 11 CiI)I oj Apple J/all,y, 496 N W,2d 429
(Minn. ApI' ] 993) (in.:rease in lhe SIze of a mobile home
10l.ated on a preexiSllng pad m a mohile home park)
(.(HIIl/I)' .\1/111, In(' 11 He1/1ll'lt, ')97 N Y.S.2d 13 (ApI" Dil'
] 99.3) kOllStrue-lIon 01 an awnmg III rhc rear yard of a
nOllConl11J'ming restaurant)
J\.lelropo/itan Dell,.lopmml Com17lwion oj A1m'ion COt/Ill)' I'
(,oodm'ln, ')88 N E.2d 1281 (Ind. App. 1992) (expanded
use of a l.arriage house for rhree rental unlls was an
unpermissihle expansJOIl of the legallh)nconformlllg use
of the structure fur t\\O remalunJts)
Barley I' T01/ln ofKelll/dnt71~" ')93 A.2d ] 0')') (Me. 199])
(constTuClJOn of an extenor del.k fi-om lhe rlllrd floor oj a
nonconformmg residemial Jwelllng)
(.iI)' o/Rod,,'sfa Hills I' \'01lIheaSle1'7l '( Jllk/and Clt/m)'
ReS01l1W Re,'olll'I')' AUfhorll)', 481 N W.2d 7')3 (Midl ApI'
199]) (expanded use of landfill to mduJe l'(lmpusting
aClivitll'S)
BI.lk,' I' 01)' oj'Phoe'nix, 7')4 1'.2d 1.368 (Am. J 98S) (plant
nursery drasticallv expanded retad sales)
Helie'opm' Assorie/te" h'e l' CZI)' oj'.\mmjord, ') 19 A.2d 49
(Conn. ] 986) (]Je!tcopter Sl'lv1ce's expanded use from five
to un!Jmued numher of comll1l'rclal helintpler fllghrs)
B,lS/ianl' C'i~)I of ]'W17I ralls, 6')8 P.2d 978 (Idaho ApI'
, ] 98.3) (enJargemetlt nt supermarker)
Cannon v Z07l1ng Hoard ojAdJustl1ll'lIt, 308 ~.E.2d 73')
(N. C. App ] 98.1) (Ulllslruction of srorag.: shed on
adJal'enr prupeny)
3
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J a-N ~Ak&0wt INJ
prohibited purpose before the restrictive ordinance was enacted,
the extensIOn IS frequently deemed to vIOlate an ordinance that
In general language prohibits the extensIOn of nonconforming
uses. [See, for example, Stop & Shop v Board ofZonzng Appeals,
399 S.E.2d 879 (W Va. 1990) J For example, In Smlth v
Palone, the New York Supreme Court held that the expanded
operation of a nonconforming speedway was unlawful when the
owners expanded the use onto certain other properties and
changed the character of the vehicles raced to Include stock cars.
And In Country Sam, Inc. v Bennett, the zomng board
revoked an alteration permit for construction of an awning In
the rear yard of a nonconforming restaurant, based on ItS
interpretation of an ordinance that denned "enlargement" as "an
Increase In that portlon of a tract of land occupied by an
eXisting use." The court upheld the permit revocation, stating
that "a backyard patron waiting area might Increase the
nonconforming use of these premises as a restaurant by'drawlng
larger crowds and trafnc Into thiS reSidentially zoned area."
Some courts have ruled [hat It makes no difference whether
the landowner IS seeking to expand the nonconforming use to the
remaining portions of a Single lot or onto adjacent lots owned by
the landowner [See, for example, Berkey v Kosclusko County
Board ofZonzng Appeals, 607 N.E.2d 730 (Ind. App 1993)
(landowner could not expand Junkyard onto other portions of
same lot), Stuckman v Kosclusko County Board ofZonzng Appeals,
506 N .E.2d 1079 (Ind. 1987) (landowner could not shift
automobile salvage yard from one set of lots to another set of
adjacent lots) J For example, thiS general pnnclple has been
applied to the proposed expansIOn of a nonconforming mobile
home park. Courts have repeatedly held that an owner's nght to
a nonconforming use extends only to those mobile home lots In
eXistence or under construction at the time the land-use
regulation was implemented and does not Include sites that wer~
merely planned. [S!e, for example, McFillan v Berkeley County
Planning Commlssion, 438 S.E.2d 8Ql (W Va. 1993), Llewellyn's
Mobzle Home Court, Inc. v Sprzngfield TownshlP Zonzng Hearzng
Board, 485 A.2d 883 (Pa. Commw 1984) J
Natural Expansion Doctrine
Pennsylvama courts have adopted a natural expansIOn doctnne,
which recogmzes a properry owner's nght to expand a
nonconforming business use ~he demands of normal
growth. The rationale for thiS rule IS that, "once It has been
aetermined that a nonconforming use IS In eXistence, an overly
techmcal assessment of that use cannot be utilized to stunt ItS
natural development and growth." [Chartlers TownshlP v WH
Martzn, Inc., 542 A.2d 985,988 (Pa. 1988) J However, the
landowner must show that the expansion is ne'ZessaQ' to
accommodate an Increase In bUSiness. [See, for example, Heyman
v Zonzng Hearzng Board of Abington TownshlP (see cite on page
Zoning News is a monthly newsletter published by the American Planning Associadon.
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@
4
u C- ~ ~ ~,iJ;?,:;,.:~J.
1) (expansIOn of cemetery was not warranted as a natural ,1
expansIOn necessary to accommodate Increased buslness).J
A few other states apply an exception co-the policy agaInst
enlargement or extensIOn of a nonconforming use Similar to
Pennsylvama's do.qrIne. Courts In these states have held that an
Increase In the amount of use within the same area rs generally
"permissible, so that a nonco~formIn~ use may not only be
continued but also increased In volume and intensity [See, for lR,..lf
example, Town of Ithaca v HzlI(see cite on page 1)] As long as ~
"there IS no substantial change In the use's effect on tbe
neighborhood, the landowner wIll he allowed' to Increase t~
volume, intensl ~ , or fre uenc 0 he nonconformIn use." t..
Town 0 ampton v Brust, 446 A.2d 458, 461 (N H. 1982) ] {a,5
AccordIngly, ~hese courts have held that a mere Inqease 1fL., of1'G
the amount of business done ursuant to a' nonconformin use "o(\'~
IS not an ille al ex ansion 0 the on ina use [Compare Zachs V\_."sl
onmg Board 0 Appea . addition of eight antennas to radIO O'~
tower was lawful expansion of nonconformIng use) with Boivin
v Town ofSanftrd (change In use from auction barn to antique
bUSIness was unlawful change, not mere IntensInCatlOn of
nonconformIng use) J Many of the cases permit a landowner to
accommodate an expansIOn of a bUildIng br existing park.mg
area because of an Increase in the volume of bUSIness conducted
on the same parcel. [See, for example, Rotter v Cocomno Cty.,
818 P .2d 704 (Anz. 1991), Gzlbertle v Zonmg Board of Appeals,
581 A.2d 746 (Conn. App 1990).]
Remedy for Illegal Change or Expansion
There IS often a nne line between what c;onstJtutes an expansion
of the same nqn,cqnformIng.. use and a change to a new and
different use. In fact, some courts have found that the expansIOn
was so substantial as to constitute a prohibited change to a new
and different use. [See, for example, County Council of Prince
George's County v E.L. Gardner, Inc., 443 A.2d 114 (Md.
1982); Edwards v Zoning Board of Appeals, 420 N.E.2d 288 (Ill.
App 1981).] ThiS distinction can be Important because the
remedy for an illegal expansion is generally different from the
remedy for a change in use.
If a lando~ner has illegally expanded a nonconformIng use, he
will not lose all fights in the preexisting nonconformIng use
unless state enablIng legislation delegates such power to local
zomng authontles. [See, for example, Hulshof v. Missourl
Highway 6- Transportatlon Comm., 737 S.W.2d 726 (Mo.
1987) J The landowner IS usually permined to scale back the
expanded use to the nonconforming use that eXIsted previously
[See, for example, Smith v Palone; Poulathas v Atlantic Czty
Zonmg Board of Adjustment, 660 A.2d 7 (N ]. Super App. Div
1995), Metropolitan Development Commlsszon ofMarzon County v
Goodman; 3M NationalAdvertising Co. v City of Tampa Code
Enftrcement Board, 587 So.2d 640 (Fla. App. 1991) J Accord-
Ingly, the proper remedy for illegal expansion has been to enJoin
the expansion but to permit the continuance of the nonconform-
Ing use at the level that eXIsted when the ordInance rendered It
nonconforming. [See, for example, Township of Falrfield v
Ltkanchuk's, Inc., 644A.2d 120 (N J Super App. Dlv 1994)]
On the other hand, If the court concludes that the expansIOn
caused a change to a different use, the landowner will usually be
prohibited from reverting to the preexisting use. [See, for example,
Village of Burr Rldge v. Ella, 382 N.E.2d 876 (Ill. App. 1978).J All
rights in the nonconforming use would be lost, and the landowner
would be compelled to conform the properry to a use permitted
under the zoning ordinance. [See, for example, RosbarCo. v Board
of Appeals, 420 N.E.2d 969, 438 N Y.S.2d 777 (1981).J
472 N Y.S.2d 504
99 A.D.2d 903
(Cite as: 472 N.Y.S.2d 504)
c
Supreme Court, Appellate DivisIon, Third
Department, New York.
In the Matter of TIER OIL CORPORATION,
Appellant,
v
Robert P EGAN, as Mayor and Trustee of the
Village of Johnson City, et aI.,
Respondents.
Feb 16, 1984
Special use perrmt apphcant appealed from judgment
of the Supreme Court, Special Term, Broome
County, Kuhnen, 1., disrmssing ArtIcle 78 application
to annul demal of perrmt application. The Supreme
Court, Appellate DIVISIon, held that proposed
modification of gasoline service station being
operated as pnor nonconforming use to create
combination gas station and convemence store selhng
food, beverages, and vanous sundry Items m addition
to petroleum products was an "intensification" of the
nonconforrmng use and perrmt therefor could
properly be demed.
Judgment affirmed.
West Headnotes
Zoning and Planning ~331
414k331 Most Cited Cases
Proposed modIficatIon of gasoline service station
bemg operated as pnor nonconforrmng use to create
combinatIOn gas statIon and convemence store selling
food, beverages, and various sundry items m addition
to petroleum products was an "mtensIficatIon" of the
nonconforming use and permit therefor could
properly be demed.
*504 James R. O'Day, Endicott, for appellant.
William K. Maney, Johnson CIty, for respondents.
Before MAHONEY, P.J., and KANE, CASEY,
WEISS and LEVINE, 11
MEMORANDUM DECISION
Page 1
Appeal from a judgment of the Supreme Court at
Special Term, entered April 21, 1983 m Broome
County, which disrmssed petitioner's application, in a
proceeding pursuant to CPLR artIcle 78, to annul
respondents' demal of a speCial use perrmt
applicatIOn.
PetItIOner operates a gasoline servIce station as a
prior nonconforrmng use in a portion of the Village
of Johnson CIty which is zoned residential. PetItIoner
seeks a speCIal permit to allow It to modIfy the
mtenor of ItS servIce station to create a combmatIOn
gasohne statIOn and convemence store Thus, m
addition to the present sale of petroleum products,
petitIoner mtends to sell "pre-packaged food, beer,
non-alcohohc beverages, and vanous sundry items"
Although no increase in the SIze of the structure IS
contemplated, petItIoner proposes mtenor
renovatIOns, mcluding the panelmg over of the
eXIsting overhead garage doors, to convert the
structure from a two-bay service statIon to a
convemence food market.
In due course, respondent village board of trustees
demed petItIoner's request. This CPLR artIcle 78
proceeding was then commenced. Special Term
demed the apphcatIon and this appeal by petItIoner
ensued.
SectIon 21-217 of the Zoning Ordmance for the
Village of Johnson City proVIdes, inter alia, that:
A nonconforming use may not be changed to a
more intensive nonconforming use * * * A
nonconforrmng use, building or structure shall not
be enlarged except upon the Issuance of a special
perrmt by the village board of trustees * * *
Contrary to petitioner's argument, we agree WIth
Special Term that the board did not misconstrue the
term "mtensIficatIOn" (see Gilmore v. Bever, 46
A.D.2d 208, 361 N.Y.S.2d 739; 1 Anderson, New
York Zomng Law and Practice [2d ed], S 6.30, pp
215-216). Moreover, a review of the record
adequately supports the board's conclusion that the
proposed actIVIty would mdeed *505 constItute
"mtensIfication" of petItioner's nonconforming use.
The judgment should, therefore, be affIrmed.
Judgment affirmed, with costs.
472 N Y.S.2d 504,99 A.D.2d 903
END OF DOCUMENT
Copr @ West 2002 No ClaIm to Orig. U.S Govt. Works
Rumpf, Michael
I q C. (<,vf
-. \ /
<"c<l' w~~"
-I c: c:r {' {..<
From:
Sent:
To:
Subject:
Rumpf, Michael
Thursday, May 02, 2002 5 33 PM
Cherof, James
RE. Current issues
~ /'<-<- -,
Apr( f' /~
Thanks for the responses Jim
2) I think the container is an unpermitted, unscreened outdoor storage element
unrelated to its conforming or non-conforming status The expansion of the building has
raised this question but the container could also be considered consistent with my
interpretation below. So we all (Quintus shares the same opinion that it would
intensify the non-conforming use) agree that expansion of the building would, regardless
if it is related to a "store", impacts the non-conforming use. Right?
3) We just have comp plan policies that state certain properties, when developed, will
yield land dedication to provide a park in a needed area.
4) Ok, but as long as we are not agreeing with his responses.
5) Any communication is fine with me. I plan on being here.
Mike
-----Original Message-----
From Lamanna, Rosemarie On Behalf Of Cherof, James
Sent: Thursday, May 02, 2002 4:29 PM
To: Rumpf, Michael
Subject: FW Current issues
-----Original Message-----
From: Cherof, James [mailto:jcherof@cityatty coml
Sent: Thursday, May 02, 2002 4:28 PM
To Cherof, James
Subject RE: Current issues
1. I thought we were actually putting it on under "Old Business" and
that at agenda preview CF could either confirm it as an issue he wanted to
discuss of it would get pulled off. The rest of the Commission can weigh in
at this point as well I discussed this approach with CF and he is OK with
it
2. I think that if a single tenant has both non-conforming and
conforming aspects of the business, the non-conforming prohibits any
expansion I assume the City is treating the storage container as an
expansion of the non-conforming use, although you have not actually said so
What provision of the code was cited as a violation?
3 Actually, the intent was to take the Commission out of the
negotiation role. I thnik it is best if it is a straight value
determination
4. I think the property owner is stalling, but I'll meet if you like
5 I also spoke with Resch. She was supposed to call me back after
reviewing the conditions She has not. I see this getting tabled if there is
not a breakthrough on Friday or Monday AM at the latest. Why don't we try to
set up a phone conference for Monday AM when we can sit together Bt copy of
1
this I'll ask Rose Marie to set t up if you are OK with that.
> -----Original Message-----
> From Cherof, James [SMTP:CherofJ@ci boynton-beach.fl us]
> Sent Thursday, May 02, 2002 10:50 AM
> To 'jcherof@cityatty.com'
> Subject FW: Current issues
>
>
> > -----Original Message-----
> > From: Rumpf, Michael
> > Sent: Thursday, May 02, 2002 10:42 AM
> > To Cherof, James
> > Cc: Johnson, Don; Greene, Quintus
> > Subject Current issues
> >
> > (Don- see Item 4 below)
> >
> > Jim, regarding these current issues:
> >
> > 1) Marouf Car Wash
> > Mr. Kruger called, as expected, asking about the process to get the site
> > plan changed I indicated that we would be communicating with
> > Commissioner Fisher about placing it on the agenda first for
> confirmation
> > of reconsideration
> >
> > 2) Texaco Gas Station
> > Mr. Kruger also discussed another issue, albeit ongoing, regarding his
> > citation for a storage container in the rear of the station He is now
> > attacking the issue like this. He believes that it would be lawful to
> > expand the building to increase the area allocated for the retail store
> > for storage use thereby eliminating the outdoor container I stated my
> > opinion that I did not believe the two uses, located on the same
> property
> > and in the same building, could be separated for purposes of identifying
> > nonconformity and proposed building expansions I acknowledge that
> there
> > is a fine line here
> this
> > mean use or sub-use on a parcel. Possibly in Mr. Kruger's favor, the
> code
> > does state "Any part of a structure or land occupied by a nonconforming
> > use which is changed to or occupied by a nonconforming use shall not
> > thereafter be used or occupied by a nonconforming use ". Do you think
> > this is referring to different uses in a single-tenant building or a
> > multi-tenant building? Paragraphs D-1 and D-2 under section 11 1 of
> > Chapter 2. Zoning could also be implying that a single tenant building
> > could have both nonconforming and conforming uses I find this hard to
> > accept given that the emphasis is, I thought, on expanding or
> intensifying
> > the gas station (the nonconforming use). No it would not be the literal
> > expansion of gas sales through additional pumps, but it seems logical
> that
> > if you expand (or add) other uses that seem to be ancillary to each
> other,
> > like retail goods and even a car wash, you may increase patrons who in
> > turn would buy more gasoline. Jim, I tried quickly to research a
> > typically good and user-friendly source for related law cases (zoning
> > bulletin) but the search system did not work. I have the publications
> in
> > the office to search through What is your experience or opinion?
The real issue focuses on the term "use"
Does
> >
> > 3) Recreation Impact Fee ordinance
> > Jim, I wouldn't want to take away the Commission's ability to initiate
> the
2
> > negotiations for land in lieu of fee, particularly if land for a park is
> > needed in a specific area. Do feel the new ordinance is taking this
> > ability away from them and would you consider any verbiage that would
> > provide some ability to negotiate on the city's initiative?
> >
> > 4) Barrera/Barcelona Pottery
> > I think we need to meet and discuss this response from Mr Moore dated
> > 4/16/02 My initial thoughts are as follows
> > Item #2- We should inspect to confirm.
> > Item #3- I assume that Don would also like to confirm this statement.
> > Item #4- The placement of merchandise in the front of the property has
> > intensified but would be difficult to prove If safety is an issue,
> > perhaps we can require that they remove some merchandise from the front
> > making more room for spaces to properly back out, or require them to
> > confirm they have at least 25 feet
> > Item #5- ???
> > Item #6- If it is fact that this second building was there when annexed,
> > contrary to the survey, they should provide proof using the county's
> > documentation which should specifically identify the structures for
> which
> > fines were collected, and invoices from the builder
> >
> > 5) Cafe LaNotte
> > I have not heard back from you regarding these draft comments Please
> note
> > that any of the original conditions not changed by my draft, or
> > recommended to be deleted by the CRA, should continue on as
> > recommendations. I met with a new attorney-Ms. Resch-who has been
> brought
> > in by the applicant. She will try to provide her recommendations in
> > writing today or tomorrow before she travels out of town for the
> weekend.
> > She said she would call you for an appointment She indicated they
> would
> > take a stronger stand against activities such as wet t-shirt contests,
> > etc., but will likely ask for more hours to operate outdoor activities
> I
> > have received the Chief's comment on overtime pay but have not received
> > the other traffic/circulation comment(s) from Jeff.
> >
> > Mike
> >
> >
> >
> >
3