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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. http://www .amlega.. ./24 fa ry f=temp lates&fn=document- frame htm&q=gaso line&x=SImple&2 9/3/2002 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. http./ /www.amlega.../24fa?f=templates&fu=document-frame.htm&q=gaso 1 me&x=S Imp le&2. 9/3/2002 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. http.l/www amlega. .I24fa?f=templates&fn=document-frame.htm&q=gasoline&x=SImple&2. 9/3/2002 112- 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 Page 1 at 4 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. . .I48e3? f=temp lates&fn=document - frame.htm&q= Procedures%2 Ofor%20vanances&x=SImple<9/3/2002 1 {1- Kelt::! t;u\;e t'age L. 01 '-t 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. .. .!48e3 ?f=temp lates&fn=document - frame.htm&q=Procedures%20for%20vanances&x=Simp Ie 9/3/2 002 lft?, Keterence Page j ot 4 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. .. .I48e3 ?f=templates&fn=document- frame.htm&q=Procedures%20for%20vanances&x=Simple 9/3/2002 1 \ q Keterence Page 4 ot 4 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) . .!48e3 ?f=temp lates&fn=document - frame.htm&q=Procedures%20for%20variances&x=SImple 9/3/2002 12..D ~ ~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 . ! 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. ~" .. ., - .. _ ~.. 4 , . ' .. . 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 / ! '~ '\,,;~~;1-:t~:. - I~:T (,'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 dO~-O \ 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. Subscriptions are available for $50 (U.S.) and $65 (foreign). Frank S. So. Executive Direccof; William R. Klein, Director of Research. Zoning NtwJ is produced at APA. Jim Schwab. Ediror; Chris Burke. Fay Dolniek, Michelle Gregory, Sanjav Jeer. Megan Lewis. Doug Martin. Marya Morris. Marcin Roupe, Laura Thompson, Reporters: Cynthia Cheski, Assistant Edicoc; Lisa Banoo, Design and Production. Copyright <!:i 1997 hy American Planning Association. 122 S. Michigan Ave., Suire 1600. Chicago. IL 60603. The American Planning Association has beadquarters offices at 1776 Massachusetts Ave., N W.. Washington, DC 20036. All rights reserved. No part of this publication may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording. or bv any informacion storage and rerrieval system, without permission in writing from the American Planning Association. Printed on recycled paper including 50-700/0 recycled fiber and 10% posrconsumer waste. @ 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