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REVIEW COMMENTS , 'lI, DEVELOPMENT DEPARTMENT MEMORANDUM NO, PZ 02-201 TO: Chairman and Members Planning and Development Board FROM: Michael Rumpf Planning and Zoning Director DATE: September 27, 2002 SUBJECT: Gateway Texaco Gas Station - Administrative Appeal (ADAP 02-001) Expansion of nonconforming use for storage of retail merchandise (Revised) Project Name: Gateway Texaco (ADAP 02-001) Location: 2360 North Federal Highway Owner: Mr. Zuhair Marouf Agent: Mr Beril Kruger, Beril Kruger Planning and Zoning Consultants Request: Notice of Appeal from the July 16, 2002 decision of the Planning and Zoning Director, identifying proposed improvement as unlawful expansion of nonconforming use BACKGROUND Request for proposed expansion The subject property owner desires to expand the above-referenced use to provide additional building area for the storage of merchandise The proposed expansion was presented to staff who was requested to respond in writing as to whether said improvement would be allowed by city regulations On July 16, 2002 the Planning and Zoning Director rendered an administrative decision that the proposed change to the above-referenced business would be prohibited by city regulations. Code sections cited in this determination included the Land Development Regulations, Chapter 2, Sections "0" and "G" (See Exhibit "A" - Administrative Determination). In accordance with the Land Development Regulations, Section 11.L,(3)(a)(2), the subject gas station is a legal non-conforming use (see Exhibit "B"- Code Excerpt-Sale of Gasoline). Item "a" (2) of Paragraph #3 limits establishments that sell gasoline as follows: "(2) Gasoline dispensing establishment shall only be located at any intersection consisting of roads of four (4) lanes or wider." The Gateway Texaco Gas Station is located at the unaligned intersection of Gateway Boulevard/Las Palmas and North Federal Highway, which is an intersection with a local street containing only two (2) lanes. The subject use is therefore a nonconforming gas station by virtue of its existing location. Improvements allowed to non-conforming uses are limited to ordinary repairs, maintenance, and improvements, pursuant to the Land Development Regulations, Chapter 2, Section 11 1, paragraph "0"(1) and (2). An excerpt of these paragraphs read as follows: Paragraph (1) "No nonconforming use may be extended to occupy any land outside the building or other structure, nor any additional building or structure on the same plat, which was not used for such nonconforming use at the effective date of the adoption or amendment of these regulations" Paragraph (2) "No structure used for a nonconforming use shall be enlarged, extended, reconstructed or structurally altered, unless the use is changed to one which complies with the provisions of this chapter [ordinance)." Furthermore, paragraph "G" of this same section limits changes in nonconforming uses to uses which would be conforming in the district in which the subject land or building is located (see Exhibit "C" - Code Excerpt- Nonconforming Uses). On July 31, 2002, Mr. Kruger, agent for the property owner, addressed a letter requesting a formal appeal be processed to the subject administrative determination (see Exhibit "0" - Request for Appeal). In summary, the appeal justifies the proposed expansion by the position that retail sales at this business is a separate component from the non-conforming aspect-gasoline sales, which component can therefore be altered/expanded independent of the gasoline sales element of the business. The applicant supports this position that retail sales is distinguishable from gas sales by the absence of other nearby convenience stores, and therefore the high demand for convenience item sales at this location. The applicant states that "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...." . Procedure Appeals to administrative determinations are processed in accordance with the procedures outlined in Chapter 1.5, Article I, Sec. 4.1, "E". of the Land Development Regulations (see Exhibit "E"). Under these procedures the Planning and Development Board hears the appeal and renders a decision that must be ratified by the City Commission. ANAL YSIS/CONCLUSIONS The analysis conducted in response to the subject appeal concentrated on the following two facts: 1) The subject determination by the Director represents the consistent interpretation and application of the Land Development Regulations which clearly prohibit the proposed improvement; 2) The lack of proof that the proposed expansion is necessary for the continued operation of the principal use. With respect to item #1 above, the subject administrative determination represents the consistent application of the non-conforming regulations. Planning and Zoning staff has applied this same interpretation of the non-conforming regulations on previous occasions when confronted with requests for similar expansions to non-conforming gas stations. There has been a trend over the past few years to expand the retail components of gas stations, including the replacement of an auto-repair function with the increase in retail sales space. While the increase in retail space done in conjunction with the elimination of automobile repair services has been construed as allowed by city regulations, this interpretation was generated based on the facts that a nonconforming element of the use was being eliminated, and there was no physical expansion of the principal structure from which the business operated (nor a movement of any aspect of the non-conforming use into a portion of the building not originally occupied by any aspect of the non-conforming use). A reverse in this determination would affect more than just the subject gas station. Rather, other owners of non-conforming uses (not limited to just owners of gas stations) would be motivated to consider, or reconsider possible expansions to their respective businesses arguing and justifying their position that the proposed improvements do not expand the nonconforming aspect of the business. It should be noted that other nonconforming uses that could be subject of potential similar requests could include adult entertainment establishments. With respect to item #2 above, additional research by staff has concluded that the courts have supported the expansion of nonconforming uses to accommodate accessory uses. However, this support appears to be conditioned upon the accessory use being necessary for normal operation of the principal use, and otherwise a hardship on the owner without said accessory use. This same document, Zoning and Land Use Controls (Mathew Bender & Co, ReI. 32-2/91; Pub. 845), cites as an example of a permissible accessory use the sale of alcohol at a restaurant, and a non-permissible use a car wash at a gasoline station Even if this more liberal conclusion from court precedents were stretched to apply to this case, which may potentially support the accessory use of retail sales to the gasoline service station, the owner would still be required to prove that the subject expansion is necessary for the normal operation of the principal use-the sale of gasoline. It should noted that retail sales were increased previously at this business, timed with the elimination of the automobile service function of the business. At that time, the space allocated to convenience sales increased significantly. If in fact the retail sales component were to be construed as a separate element and business activity from the gas station, rather than an accessory activity, than the code further supports the denial of this expansion of a business which may directly or indirectly enhance (i.e. support beyond what was originally approved at this location), the non-conforming gas station. RECOMMENDATION Staff recommends that the request for appeal be denied, thereby affirming the original determination by staff that the subject expansion of the Gateway Texaco Gas Station would be an unlawful expansion of a legal, nonconforming use. This recommendation is based on the following conclusions: 1) The subject determination by the Director represents the consistent interpretation and application of the Land Development Regulations; 2) The sale of gasoline is the principal use of the subject business which is located on one parcel within a single structure, and therefore cannot be viewed separate from accessory components such as retail sales; and 3) The applicant has not proven that the further expansion of the building and retail sales aspect of the business is mandatory for the continued normal operation of the principal use, and that if denied a hardship would be imposed. In conclusion, staff reiterates the intent of the non-conforming regulations to encourage the eventual relocation or elimination of such businesses. Therefore, staff recommends that if the City Commission supports the continued operation and expansion of the subject station, this situation should more appropriately be addressed through a code review process. Of course this alternative is communicated with caution and reluctance, due to the risk of code modifications potentially accommodating new and existing non-conforming gas station uses where inconsistent with redevelopment efforts or city vision. Attachments MR S'\Planning\SHARED\WP\PROJECTS\Gateway Texaco\Staff report ADAP 02-001.doc DEPARTMENT OF DEVELOPMENT EXHIBIT A PLANNING AND ZONING DIVISION . Building . Planning & Zoning . Occupational Licenses . Community Redevelopment July 16, 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: The intent of this letter is to clarify information provided to you m 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 mvolvement WIth a non-conformmg use. However, with respect to Item #2, the physIcal connectIOn could only occur through a recorded access easement that would connect the car wash parcel to the northernmost gas station driveway at Federal Highway. Of course this IS contingent upon all modIficatIOns to the Texaco site being code-complIant. These changes should be processed as a minor modification request to the existmg 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 parkmg, and aisle and parking space dimensions. Please be mformed that you may not proceed with item #1 due to it involving the phYSIcal expansIOn of a non-conforming use; however, this clarifymg letter should be construed as the final administratIve declSlon 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 mform me of same in wntmg so that your applicatIOn can be closed. Please be reminded of the filing reqUIrements to appeal and contact me should you have any questions. Smcerely, 7w7-- Michael W. Rumpf DIrector of Planning and Zonmg MWR:jdc CC: Kurt Bressner Attachment S:l!'lanning\SHAREDlWPICORRESP\Corresp A thru L\Kruger. Berd Re Te:<aco Station Expansion.doc City of Boynton Beach. 100 East Boynton Beach Blvd., P.O. Box 310 . Boynton Beach, Florida 33425-0310 Phone' (561) 742-6350 . www.ci.boynton-beach.or Reference Page 1 of 4 ... "(HIBIT 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 mtended to cover businesses of any type, mc1udmg convemence stores and automotIve servIce stations. The development standards establIshed by thIS sectIOn would overlay the development cntena stated m the zonmg dIstnct m WhICh these uses are allowed. Busmesses, whIch engage m the sale of gasoline or other motor fuels, shall reqmre condItIonal use approval. 2 DefimtIOns. For the purpose of thIS ordmance, the followmg defimtIons shall apply: Ancillary building or structure. A bmldmg or structure mCIdental to, subordmate to and subservIent to the pnncipal bmldmg or structure located on the premIses. Ancillary use. A use mCIdental to, subordmate to and subservIent to the princIpal use of the premIses. Automotive service station. The use of a bmldmg or other structure, on a lot or parcel of land whIch mc1udes any retail sale of gasoline or other motor fuels. Convenience store. Any place of busmess that IS engaged m the retail sale of grocenes, mc1udmg the sale of prepared foods, and gasoline and servIces. The term "convemence store" does not mclude a store WhICh IS solely or pnmarily a restaurant. Gasoline dispensing establishments Any commercial enterpnse, mc1udmg automotIve servIce statIOns and convemence stores, WhICh engage m the sale of gasoline or other motor fuels to the publIc Grade separated intersections Use of the term grade separated mtersectlOns 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 mtersectIOn of any combmatIOn of the followmg roads as deSIgnated m the Boynton Beach ComprehensIve Plan: County artenal, State artenal, Local collector, or County collector. http://www.amlega.../24fa?f=templates&fn=document-frame.htm&q=gasolme&x=SImple&2. 9/3/2002 Reference Page 2 of 4 *" (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 dispensing establIshments located at any mtersectIOn shall be two (2) Gasoline dIspensmg establIshments shall only be located at dIagonal comers of permIssible mtersectIOns. b MmImum 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 driveway shall be located less than one hundred ten (110) feet from the mtersectmg nght-of-way lmes of publIc streets. (2) Dnveways shall be a mmImum 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 intenor 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 mcludmg 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 lme. (b) No gasoline pump Island shall be located less than thirty (30) feet from any property lme. (c) The entrance to a bUIldmg wherem motor vehIcles are washed by mechamcal means shall be located a mimmum distance of seventy-five (75) feet from the street lmes to provIde an off-street area of wmtmg 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 mimmum three-mch calIper every forty (40) feet, a contmuous hedge twenty-four (24) mches hIgh, twenty-four (24) mches on center at tIme of planting with flowenng groundcover (2) Interior property lmes. http://www.amlega.../24fa?f=templates&fn=document-frame.htm&q=gasolme&x=SImple&2. 9/3/2002 Reference Page 3 of 4 (a) A ten-foot wIde landscaped buffer shall be located on all mtenor property hnes 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 continuous hedge no less than thIrtY-SIX (36) mches high and planted twenty-four (24) inches on center at tIme ofplantmg; trees ten (10) to fifteen (15) feet m heIght WIth three-inch cahper 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 appropriate by the CIty COlrumssIOn. g. DeSIgn cntena. (1) All gasoline dIspensmg estabhshments located on deSIgnated out-parcels to shoppmg centers, business centers, or other planned commercIal developments shall conform m deSIgn to the approved deSIgn plan of the pnncIpal center (2) Gasoline dIspensmg estabhshments shall conform to the commumty deSIgn plan. (3) All gasoline dIspensmg estabhshments shall not mstall extenor SIte hghtmg WhIch exceeds photometnc levels of 60- foot candles average mamtamed. LIght fixtures must be baffled, shIelded, screened or recessed to prevent vIsibIhty of the ht portion of the fixture from off the premIses. h. Conditional use. Gasoline dIspensmg estabhshments are hereby deSIgnated as a condItIOnal use as that term IS defined in Section 11.2. 1. DIstance separatIOn reqUIrements. No gasoline dIspensmg establishment shall be located wIthm two hundred (200) lineal feet from a residentIal structure. DIstances for the purpose of thIS subsectIOn shall be measured from the boundary lme of the parcel on whIch the gasoline dIspensmg establishment IS located to the closest boundary wall of the reSIdentIal structure. (4) As to all gasoline dIspensing estabhshments that are an anCIllary use located or operated m or from an ancillary buildmg or structure wIthm a parcel of land of not less than ten (10) acres wIthm a "Planned CommerCIal DIstnct" (PCD) governed by SectIOn 6.F. of the City of Boynton Beach ZOnIng Code, and which gasoline dIspensmg estabhshment 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 followmg shall be apphcable: a. Setbacks. Setback reqUIrements shall apply to all structures on the portIOn of the property on which the gasoline dIspensmg estabhshment IS located, mcludmg the pnmary structure for the gasoline dIspensmg estabhshment, 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&fn=document-frame.htm&q=gasolme&x=SImple&2. 9/312002 Reference Page 4 of 4 (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 right-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 opemngs, a five (5) foot WIde landscaped buffer shall be located around that portIOn of the parcel of WhICh the gasoline dIspensmg establIshment IS located. When the buffer separates the portIOn of the property on WhICh the gasoline-dIspensmg establIshment IS located from a resIdentIally zoned property, the buffer shall contam a six (6) foot hIgh concrete wall landscaped on the extenor SIde by a contmuous hedge no less than thIrtY-SIX (36) inches hIgh and planted twenty-four (24) mches on center at the tIme ofplantmg; trees ten (10) to fifteen (15) feet m heIght WIth three-mch calIper every forty (40) feet; and groundcover. When the buffer separates the portIOn of the property on whIch the gasoline dispensmg establishment IS located 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 appropriate by the City CommIssIOn. c DeSIgn cntena. (1) All gasoline dIspensmg establishments under thIS Section 4. shall conform to the communIty design plan. (2) No gasoline dIspensmg establIshments under thIS SectIOn 4. shall be permItted to advertIse product pncmg on the site SIgn IdentIfymg the pnmary tenant or occupant. (3) All gasoline dIspensmg establIshments under thIS SectIOn 4. shall not mstall extenor SIte lIghtmg which exceeds photometnc 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 premIses. d. CondItIonal use. Gasoline dIspensmg establIshments defined as ancillary to a pnncIpal tenant of a planned commercial dIStriCt are hereby designated as a condItIOnal use as that term IS defined m SectIOn 11.2. http://wwwamlega../24fa?f=templates&fn=document-frame.htm&q=gasoline&x=Simple&2. 9/312002 Reference Page 1 of2 EXHIBIT C D. NONCONFORMING USES OF STRUCTURES * 1 The nonconforming use of a bmldmg 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 nonconformmg use whIch occupIes a portIOn of a bmldmg or other structure not ongmally deSIgned or mtended for such use shall not be extended to any other part of the bmldmg or structure. No nonconformmg use may be extended to occupy any land outsIde the bmldmg or structure, nor any addItIonal bmldmg or structure on the same plat, whIch was not used for such nonconforming 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 m an amount not to exceed twenty-five (25) percent of the assessed value of the bmldmg or structure for that year as determmed by the Palm Beach County Property Appraiser, subject to the provlSlons 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 umts. Nothmg m these regulatIOns shall prevent complIance WIth applIcable laws or ordmances relatIve to the safety and samtatIOn of a bmldmg occupied by nonconforming use. E. NONCONFORMING STRUCTURES. The lawful eXIstence of a structure or bmldmg at the effectIve date of the adoptIOn or amendment to these regulatIOns, although such structure or bmlding does not conform to the bmldmg and sIte regulatIOns of these regulatIOns for mmImum lot area and dImenSIOns, mmImum yard setback reqmrements, maximum buildmg height, total floor area reqmrements, or other charactenstics of the structure, or ItS locatIOn on the lot, may be contmued so long as It remams otherwIse lawful. A nonconformmg structure or bmldmg (as opposed to a structure or bmldmg used for a nonconforming use) may be mamtamed and repaired, but It shall not be added to or altered m a fashIOn so as to mcrease the extent to whIch the structure or buildmg is m VIOlatIOn of applIcable regulations. A nonconformmg structure or bmldmg may be added or altered If such alteratIon or addItIon does not in Itself constItute a further VIOlatIon of eXIstmg regulatIOns. F. RECONSTRUCTION OR REMOVAL. If any structure IS destroyed to such an extent that the cost of rebmldmg, 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 in conformIty WIth the provIsions of these Land Development RegulatIOns. G. CONTINUANCE, DISCONTINUANCE 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 bmldmg IS located. However, no change shall be required m the plans, construction, or designed use of any structure for WhICh a bmldmg 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 adoption or amendment of these regulatIons. http://wwwamlegal.com/boynton_beach_fl/lpex.../262d?fn=document-frame.htm&f=template 9/312002 Reference Page 2 of2 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 nonconforming 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 nonconforming use. http://www.amlega1.comlboynton_beach_fl/lpex.../262d?fn=document-frame.htm&f=template 9/312002 ~~il kr..4Iler plarh'1ing and zoning consultarltS EXHIBIT 0 July 31, 2002 V',", 5 f."ut; - Mr Michael W. Rumpf, Director Planning and Zoning Department City of Boynton Beach 100 East Boynton Beach Blvd. PO. Box 310 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 on Iv 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 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.6 ~ /A ,...-A~~/ Benl ~ger L..,/ / / .,/ SENT BY FACSIMILE AND U.S. MAIL Reference Page 1 of 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, admmistratlVe 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 m any order, reqmrement, deCIsion or determinatIOn made by an admmIstratIve offiCIal m the enforcement of any ZOnIng 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 involved m 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 appropnate condItIons and safeguards m 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 occupatIonal license associated therewith. 3 The board may prescribe a reasonable tIme lImIt wIthm whIch the actIOn for WhICh the specIal exceptIOn IS reqmred shall begm 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 ordmance 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 whIch are peculIar to the land, structure or bmldmg mvolved, and WhICh are not applIcable to other lands, structures or bmldmgs 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 bmldmgs m the same zOnIng dIstnct. ../ 48e3 ?f=templates&fu=document - frame.htm&q=Procedures%20for%20vanances&x=SImple(9/312002 Reference Page 2 of 4 d. That lIteral interpretatIOns of the provIsIOns of the ordmance would depnve the applIcant of nghts 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 bUIldmg. 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 mvolved or be otherwIse detnmental to the publIc welfare. g. For variances to mmImum lot area or lot frontage reqUIrements, that property IS not available from adjacent propertIes m order to meet these requirements, or that the acqUISItion 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 acqulSltIOn of addItIonal property. 2 In granting a variance: a. The board may prescribe appropriate 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 wIthm whIch the actIOn for whIch the variance IS reqUIred shall begm, 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 m thIS sectIOn for grantmg the same, and the variance would only allow for the constructIOn of a smgle-famIly detached dwellmg. ~*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 dIstnct mvolved or any use expressly or by ImplIcatIOn prohibIted m the applIcable ZOnIng dIstnct. No nonconformmg use of neIghbonng lands, structures or bUIldmgs m other ZOnIng dIstncts shall be conSIdered grounds for the authonzatIOn of a variance. 2. ReVIew of administratIve orders. In exerclSlng 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, declSlon or determination made by an admmIstratIve offiCial m the enforcement of any ZOnIng ordmance or regulatIOn adopted pursuant to thIS sectIOn and may make any necessary order, reqUIrement, declSlon or determinatIOn, and to that end shall have the powers of the officer from whom the appeal is taken. A maJonty vote shall be necessary to reverse an order, reqUIrement, declSlon or determmatIOn 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. .I 48e3 ?f=templates&fn=document- frame.htm&q= Procedures%20for%20vanances&x=SImple 9/312002 Reference Page 3 of 4 3. Appeals from declSlon of admmistratIve official. Appeals to the board may be taken by any person aggneved or affected by any declSlon of an admimstratIve official interpretmg any zoning ordmance. Such appeal shall be taken wIthm thIrty (30) days after rendItIon ofthe order, reqUIrement, declSlon, or determmatIOn appealed from by filmg WIth the officer from whom the appeal IS taken and WIth the board, a notIce of appeal specIfymg the grounds thereof. 4. Stay of work and proceedmg on appeals. An appeal to the board stays all work on the premIses and all proceedings m furtherance of the action appealed from, unless the offiCIal from whom the appeal IS taken shall certIfy to the board that, by reason of facts stated in the certIficate, a stay would cause Immment penl 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 heanng of the appeal, gIve the publIc notIce thereof, as well as due notIce to the partIes m mterest, and decIde the same wIthm a reasonable tIme. Upon the heanng, any person may appear in person, by agent or attorney. Applicants shall be reqUIred to file a proper form (supplIed by staff), a current certIfied survey accompamed by a fee as adopted by resolutIOn of the CIty CommissIOn. For procedural purposes, an applIcatIOn 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 administratIve order to the CIty CommIssIOn of the CIty of Boynton Beach WIthin twenty (20) days after rendItIon of the declSlon by the CRA board. The declSlon of the CIty CommIssion shall be deemed final subject only to reVIew by wnt of certIOrari to the Palm Beach County CircUIt Court. 7. Withdrawal or demal of applIcation. a. Upon the demal of an applIcation for relIef hereunder, m whole or m part, a penod of one (1) year must elapse pnor to the filing of a subsequent applIcatIOn affectmg the same property or any portIOn thereof. b. Upon the WIthdrawal of an applIcatIOn, in whole or m part, a period of SIX (6) months must run prior to the filing of a subsequent applicatIon affecting 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 mcreased to a two (2) year Waiting penod m the event such an applicatIOn, m whole or m part, has been twice or more demed or WIthdrawn. c. An applIcation may be WIthdrawn WIthout prejUdICe by the applIcant as a matter of right; prOVIded the request for WIthdrawal IS m wntmg and executed m a manner and on a form prescribed by the board and filed with the board at least one (1) week pnor to any scheduled hearing scheduled before the board concernmg the applIcatIOn; 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 lImitatIOns for re-applIcatIOn provided herein shall not apply. ../ 48e3 ?f=templates&fn=document- frame.htm&q=Procedures%20for%20vanances&x=SImple 9/312002 Reference , Page 4 of 4 F. AdvertlSlng reqUIrements. ReqUIred advertIsements for the applicant's request must appear m newspaper of general cIrculatIOn m the CIty of Boynton Beach, at least fifteen (15) days prior to the scheduled eRA board meetmg. All reqUIred notIces to surroundmg property owners must be postmarked no later than fifteen (15) days pnor to that scheduled publIc heanng. (Ord. No. 00-70, S 2,12-19-00) . .I48e3 ?f=templates&fn=document - frame.htm&q=Procedures%20for%20vanances&x=Simple 9/312002 DEVELOPM: T ORDER OF THE CITY COMMI~'''JN OF THE CITY OF BOYNTON BEACH, FLORI[).( PROJEeT NAME GATEWAY TEXACO (ADAP 02-001) APPLICANT'S AGENT' Beril Kruger APPLleANT'S ADDRESS' 9 NE 16th Street., Delray Beach, FL 33444 DATE OF HEARING RATIFleATION BEFORE elTY eOMMISSION September 17, 2002 TYPE OF RELIEF SOUGHT Administrative Appeal LOCATION OF PROPERTY 2360 North Federal Highway DRAWING(S) SEE EXHIBIT "A", "B", "C", "0", "E" ATTACHED HERETO. THIS MATTER came before the City Commission of the City of Boynton Beach, Florida appearing on the eonsent Agenda on the date above. The City Commission hereby adopts the findings and recommendation of the Planning and Development Board, which Board found as follows OR THIS MATTER came on to be heard before the City eommission of the City of Boynton Beach, Florida on the date of hearing stated above The eity eommission having considered the relief sought by the applicant and heard testimony from the applicant, members of city administrative staff and the public finds as follows: 1 Application for the relief sought was made by the Applicant in a manner consistent with the requirements of the eity's Land Development Regulations 2. The Applicant HAS HAS NOT established by substantial competent evidence a basis for the relief requested. 3. The conditions for development requested by the Applicant, administrative staff, or suggested by the public and supported by substantial competent evidence are as set forth on Exhibit "e" with notation "Included". 4 The Applicant's application for relief is hereby _ GRANTED subject to the conditions referenced in paragraph 3 hereof DENIED 5. This Order shall take effect immediately upon issuance by the City elerk. 6 All further development on the property shall be made in accordance with the terms and conditions of this order. 7 Other DATED: City elerk J:\SHRDATA\Planning\SHARED\WP\FORMS\Blanks forms folder\Develop Order Form-2001- Revised.doc DEVELOPMENT DEPARTMENT MEMORANDUM NO. PZ 02-182 FROM: Chairman and Members Planning and Development Board ;"10J ?- Michael Rumpf Planning and Zoning Director TO: DATE: September 3,2002 SUBJECT: Gateway Texaco Gas Station (ADAP 02-001) Expansion of nonconforming use for storage of retail merchandise Project Name: Gateway Texaco (ADAP 02-001) Location: 2360 North Federal Highway Owner: Mr. Zuhair Marouf Agent: Mr. Beril Kruger, Beril Kruger Planning and Zoning Consultants Request: Notice of Appeal from the July 16, 2002 decision of the Planning and Zoning Director, identifying proposed improvement as unlawful expansion of nonconforming use. BACKGROUND Request for proposed expansion The subject property owner desires to expand the above-referenced use to provide additional building area for the storage of merchandise The proposed expansion was presented to staff who was requested to respond in writing as to whether said improvement would be allowed by city regulations. On July 16, 2002 the Planning and Zoning Director rendered an administrative decision that the proposed change to the above-referenced business would be prohibited by city regulations Code sections cited in this determination included the Land Development Regulations, Chapter 2, Sections "0" and "G" (See Exhibit "A" - Administrative Determination). In accordance with the Land Development Regulations, Section 11 L,(3)(a)(2), the subject gas station is a legal non-conforming use (see Exhibit "B"- Code Excerpt-Sale of Gasoline). Item "a" (2) of Paragraph #3 limits establishments that sell gasoline as follows: "(2) Gasoline dispensing establishment shall only be located at any intersection consisting of roads of four (4) lanes or wider." The Gateway Texaco Gas Station is located at the unaligned intersection of Gateway Boulevard/Las Palmas and North Federal Highway, which is an intersection with a local street containing only two (2) lanes. The subject use is therefore a nonconforming gas station by virtue of its existing location. Improvements allowed to non-conforming uses are limited to ordinary repairs, maintenance, and improvements, pursuant to the Land Development Regulations, Chapter 2, Section 11.1, paragraph "0"(1) and (2). An excerpt of these paragraphs read as follows: Paragraph (1) "No nonconforming use may be extended to occupy any land outside the building or other structure, nor any additional building or structure on the same plat, which was not used for such nonconforming use at the effective date of the adoption or amendment of these regulations." Paragraph (2) "No structure used for a nonconforming use shall be enlarged, extended, reconstructed or structurally altered, unless the use is changed to one which complies with the provisions of this chapter [ordinance)." Furthermore, paragraph "G" of this same section limits changes in nonconforming uses to uses which would be conforming in the district in which the subject land or building is located (see Exhibit "c" - Code Excerpt- Nonconforming Uses) On July 31, 2002, Mr. Kruger, agent for the property owner, addressed a letter requesting a formal appeal be processed to the subject administrative determination (see Exhibit "0" - Request for Appeal). In summary, the appeal justifies the proposed expansion by the position that retail sales at this business is a separate component from the non-conforming aspect-gasoline sales, which component can therefore be altered/expanded independent of the gasoline sales element of the business. The applicant supports this position that retail sales is distinguishable from gas sales by the absence of other nearby convenience stores, and therefore the high demand for convenience item sales at this location. The applicant states that "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...." . Procedure Appeals to administrative determinations are processed in accordance with the procedures outlined in Chapter 1.5, Article I, Sec. 4 1, "E", of the Land Development Regulations (see Exhibit "E"). Under these procedures the Planning and Development Board hears the appeal and renders a decision that must be ratified by the City Commission. ANAL YSIS/CONCLUSIONS The analysis conducted in response to the subject appeal concentrated on the following two facts: 1) The subject determination by the Director represents the position consistently communicated by staff and therefore, the consistent interpretation and application of the Land Development Regulations which clearly prohibit the proposed improvement; 2) The lack of proof that the proposed expansion is necessary for the continued operation of the principal use. With respect to item #1 above, the subject administrative determination represents the consistent application of the non-conforming regulations. Planning staff has applied this same interpretation of the non-conforming regulations on previous occasions when confronted with requests for similar expansions to non-conforming gas stations. There has been a trend over the past few years to expand the retail components of gas stations, including the replacement of an auto-repair function with greater retail sales space. While the increase in retail space done in conjunction with the elimination of automobile repair services has been construed as allowed by city regulations, this interpretation was generated based on the facts that a nonconforming element of the use was being eliminated, and there was no physical expansion of the principal structure from which the business operated (nor a movement of any aspect of the non- conforming use into a portion of the building not originally occupied by any aspect of the non-conforming use). A reverse in this determination would affect more than just the subject gas station. Rather, other owners of non-conforming uses (not limited to just owners of gas stations) would be motivated to consider, or reconsider possible expansions to their respective businesses arguing and justifying their position that the proposed improvements do not expand the nonconforming aspect of the business. It should be noted that other nonconforming uses that could be subject of potential similar requests could include adult entertainment establishments. With respect to item #2 above, additional research by staff has concluded that the courts have supported the expansion of nonconforming uses to accommodate accessory uses However, this support appears to be conditioned upon the accessory use being necessary for normal operation of the principal use, and otherwise a hardship on the owner without said accessory use. This same document, Zoning and Land Use Controls (Mathew Bender & Co, ReI. 32-2/91; Pub. 845), cites as an example of a permissible accessory use the sale of alcohol at a restaurant, and a non-permissible use a car wash at a gasoline station. Even if this more liberal conclusion from court precedents were stretched to apply to this case, which may potentially support the accessory use of retail sales to the gasoline service station, the owner would still be required to prove that the subject expansion is necessary for the normal operation of the principal use-the sale of gasoline. It should noted that retail sales were increased previously at this business, timed with the elimination of the automobile service function of the business. At that time, the space allocated to convenience sales increased significantly If in fact the retail sales component were to be construed as a separate element and business activity from the gas station, rather than an accessory activity, than the code further supports the denial of this expansion of a business which may directly or indirectly enhance (i.e. support beyond what was originally approved at this location), the non-conforming gas station. RECOMMENDATION Staff recommends that the request for appeal be denied, thereby affirming the original determination by staff that the subject expansion of the Gateway Texaco Gas Station would be an unlawful expansion of a legal, nonconforming use. This conclusion is based on the following 1) The subject determination by the Director represents the position consistently communicated by staff and therefore, the consistent interpretation of clearly written Land Development Regulations; 2) The sale of gasoline is the principal use of the subject business which is located on one parcel within a single structure, and therefore cannot be viewed separate from accessory components such as retail sales; and 3) The applicant has not proven that the further expansion of the retail sales aspect of the business is mandatory for the continued normal operation of the principal use, and that if denied a hardship would be imposed Attachments MR S.\Planning\SHARED\WP\PROJECTS\Gateway Texaco\Staff report ADAP 02-001.doc