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Minutes of Gate Petroleum Appeal Hearing 5-12-16.pdfMINUTES OF GATE PETROLEUM APPEAL HEARING ATLANTIC BEACH CITY COMMISSION HELD ON MAY 12, 2016 IN ATTENDANCE: Mayor Mitchell E. Reeves Commissioner Mitchell R. Harding Commissioner Jimmy Hill Commissioner John Stinson Commissioner M. Blythe Waters City Attorney Brenna Durden City Manager Nelson Van Liere Human Resources Director Cathy Beny Recording Secretary Dayna Williams Also Present: Building and Zoning Director Jeremy Hubsch Attorney Paul Eakin, Representing Eakin & Sneed Attorney Jeffrey Sneed, Representing Barry Adeeb/Beach Diner Attorney Jane West, Representing Atlantic Beach Cares/Glenn Shuck Attorneys T.R. Hainline and Emily Pierce, Representing Gate Petroleum Call to Order/Pledge & Invocation Mayor Reeves gave the Invocation, followed by the Pledge of Allegiance to the Flag. Mayor Reeves called the meeting to order at 10:07 a.m. in the Fellowship Hall of the Community Presbyterian Church, 150 Sherry Drive, Atlantic Beach, Florida. Mayor Reeves announced that this is a quasi-judicial proceeding on the Appeals by Mr. Eakin, Beach Diner/Barry Adeeb, and Atlantic Beach Cares/Glenn Shuck of the Preliminary Site Development Plan for the Gate Petroleum developments located in the 500 block of Atlantic Boulevard for the purpose of determining whether any error was made in approving the Site Plan. 1. Open Public Hearing, City Attorney Procedural Reminders, Ex Parte Disclosures. Mayor Reeves opened the Public Hearing. City Attorney Durden explained the procedures of the meeting. All ex parte disclosures were made by the Commission as follows: Mayor Reeves stated any meetings and all appointments that he had were placed on the City's Outlook email calendar; he met with Stan Jordan, Barry Adeeb, Paul Eakin, John Fletcher, John Peyton, Glenn Shuck, Kirk Hansen, Alan Jensen, Atlantic Beach Cares, Betsy Cosgrove and many others, both for and against the issue, adding that all the communications he has had will not impact his decision today, it will be based on the testimony and facts given today and not the emotions. Commissioner Harding -He stated he has met with numerous individuals, including Stan Jordan, Barry Adeeb, Glenn Shuck, Betsy Cosgrove, he has received phone calls from Jim Smith, Fred Kerber, Mike Borno, Atillio Cerqueira and numerous emails, phone calls and texts both supporting and opposing the issue; however his decision today will not be impacted by those communications, it will only be based on the evidence presented today. Commissioner Hill -He stated he has spoken to many citizens and in the last two months he had official engagements with representatives from Gate Petroleum, representatives from Beach Diner, and representatives from Atlantic Beach Cares, then the appeal proceedings took place and all of the communication ceased. However, none of the conversations prior to this point will have any impact on the decisions today, the decision will be based on all the facts gained from this hearing. Commissioner Waters -She stated she has had numerous emails, phone calls and meetings both on the street in public, and official meetings; prior to the appeals being issued she met officially with Glenn Shuck and Betsy Cosgrove, Barry Adeeb and Stan Jordan, and Mayor Peyton. Since the appeal has been issued she has received numerous emails both for and against the Gate Site Plan, none of those emails or communications will affect her decision today, her decision today will be based on the facts presented at this hearing. Commissioner Stinson -He stated, prior to the appeal being filed, he met with Mr. Peyton, Mr. Jordan, Mr. Adeeb, Ms. Cosgrove, Mr. Shuck, Since the day the appeal was filed he ceased communications and he has full confidence that he can listen to the facts presented today and make a fair and impartial decision. City Attorney Durden stated proper notice for the Public Hearing has been provided to all parties and published in the Beaches Leader newspaper. She stated Volume 1 and Volume 2 of records, documents, plans and other materials used by the Community Development Director in the course of the City's review have been provided to the Commission and to all parties in accordance with the Atlantic Beach Ordinance Code. She stated that consists of documents 1-73, except item number 26, which has been stricken at the request of one of the parties. She stated for this hearing she wants to announce that it has formally been made part of the record and the documents, except for item number 26, being documents 1-73 are officially made part of the record. Mayor Reeves reminded everyone in the audience the importance of respect and to listen to all sides and please keep order during the meeting. He stated all the parties have been notified of the City's intention to allow for evidence and testimony to be presented to the Commission by the parties and to proceed in accordance with the Order of Presentation dated April 26, 2016. While the times of day are general and we may need a few more breaks for the court reporter to rest her hands, the timeframes set out for given presentations, rebuttals and cross examinations will be enforced. We have a timekeeper and two clocks. All questions by the City Commission will occur after all presentations are completed. Commissioners, I ask that you keep those questions written down, as sometimes they will be answered throughout the day. The timekeeper will set the clock for the timeframe requested by a party. If any of the parties object to these procedures, please state those objections now for the record and submit any documentation, if any, to support the objection. You will have up to 2 minutes to state your objection. T.R. Hainline, 1301 Riverplace Boulevard, representing the applicant, Gate Petroleum. He stated, as the City Attorney knows, we objected several weeks ago to the de novo; that is new evidence and new testimony aspect of this hearing and the quasi-judicial aspect of this hearing. It is our position it should be on the record and on the record only that was before your staff. I have reduced that objection to this letter and I will give copies to the appellants and to the Board. City Attorney Durden asked that a copy be given to the court reporter. Mayor Reeves asked Attorney West if she had any objections and she stated no, they concur with the City Attorney's position that this is a de novo proceeding. Attorney Jeff Sneed, representing Beaches Diner and Barry Adeeb. H stated, as noted in my correspondence with City Council before the hearing, our objection is that there has been no showing, and we cannot locate anywhere in the record, that the permit was issued by a validly appointed Community Development Director and, as such, the permit is void and unenforceable by any party and there is no purpose in having a hearing. -2- Attorney Paul Eakin, 599 Atlantic Boulevard, stated he joined Mr. Sneed in his objection; also an additional objection in that the City adopted Mr. Lindorff s report in so far as the zoning issues were concerned. Mr. Lindorff has now submitted the documents he relied on in coming to his decisions in his report as Volume 2 of the record. Mr. Eakin stated he would move to strike any portion of Volume 1 of the record that is not also contained in Volume 2, as being outside Ordinance 24-49 of what is supposed to be submitted to this Commission as the record. Attorney Flowers (no response can be heard) butl believe he stated no objections. Mayor Reeves stated he would like to recognize who is present so the audience will be informed. He stated we have T.R. Hainline representing Gate Petroleum, Wayne Flowers representing the City of Atlantic Beach, Paul Eakin representing Eakin & Sneed, Jeff Sneed representing Beach Diner and Jane West representing Atlantic Beach Cares and Mr. Shuck. City Attorney Durden stated she is aware of the objections and she advises and recommends to the Commission to proceed with the hearing in accordance with the Order of Presentation. All witnesses were sworn in by the Court Reporter. 2. City's Presentation. Mayor Reeves stated the City presentation will be up to 45 minutes in total for direct/rebuttal; rebuttal, now or at the end of the hearing, if time remaining. He asked Mr. Flowers how much time he wants the timekeeper to set on the clock for his direct testimony. Mr. Flowers stated 35 minutes for the presentation and he would like to reserve the remaining 10 minutes for rebuttal. Mr. Flowers stated he would like to change the presentation time to 36 minutes. Attorney Flowers stated the City is going to present 2 witnesses, the first witness will be Jeremy Hubsch, the Community Development Director for the City of Atlantic Beach. He will be followed by Steve Lindorff, who is an expert planner. He stated they will provide testimony on the basis for the City's recommendation. Jeremy Hubsch, Building and Zoning Director for the City of Atlantic Beach, stated he manages the City's Building, Zoning and Code Enforcement Departments. In addition, he also performs the role of Community Development or Planning Director, Economic Development Director and he administers the tree code. He stated the City Manager has named me the Community Development Director, as he is granted authority by Section 24-46(f) of the Code. He stated he has been with the City for 3 years starting in 2013 with the title of Redevelopment and Zoning Coordinator. He stated this is a senior level staff position within the City that is on the same pay scale as our Deputy Public Works Director, Deputy Finance Director and Parks Director. He stated, shortly after his arrival, the City's Principal Planner left her role and he assumed her duties. Additionally, the Building and Zoning Director, Michael Griffin, left his position and he was named Interim Building and Zoning Director and then named full time Director shortly thereafter. Mr. Hubsch stated, as his role in the review of this project is under scrutiny, he would like to provide some background of his work experience. Mr. Hubsch presented a detailed explanation of his extensive education, certifications, projects and history of his vast work responsibilities and positions held. -3- Mr. Hubsch stated we are here to review whether or not the proposed Gate Petroleum project was permitted properly and meets all applicable City Codes. He stated this is not a question of does Atlantic Beach want a gas station, need a gas station and is this the highest or best use for the property. It is a question of whether or not the proposal meets all the City's land development regulations. He stated, in my role as administrator of the Land Development Regulations he has a responsibility to the City, the residents and businesses to apply the City Codes fairly and equitably. He added, if a property owner meets all City Codes and requirements, he has to approve the project. Mr. Hubsch explained the backstory of the project, stating the City received the first submittal of plans from Gate Petroleum in October 2015. He stated the plans were circulated to the various departments within the City for review of consistency with Codes. The departments then issued correction comments to the applicant which stated any inconsistencies with the City Codes that needed to be addressed. He stated this process was repeated through a second submittal of revised plans from Gate, followed by a third set of revised plans, which were approved on February 9, 2016 after review by the various City departments. Mr. Hubsch gave an in depth, detailed explanation of the Commercial General (CG) Zoning District and why the proposed use of a gas station with retail sales is permissible. He stated the City did extensive research to make this zoning determination, citing historical data and criteria. Mr. Sneed objected, stating Mr. Hubsch was testifying about matters that were stricken from the record... (cannot hear the rest of what he is saying-mic problems) Time -10:35/36 to 10:38 Ms. Durden stated the document that was dated March 29, 2016 was the document that was stricken. She stated whether the information was obtained prior to that and used by Mr. Hubsch, the information looked at and considered is allowed and the document dated March 29, 2016 to memorialize the research that was previously done, is the only document that has been stricken. Mr. Sneed (mic problems again) incomplete record....10:42 begins again. Mr. Eakin objected, stating at the time the content of the record was being discussed and, specifically, the item that was stricken, it was his understanding that was a report that was given to this witness by someone else in his office as a result of research that the other person had done; and the date of that research was March 29, 2016, well after the date this witness came to his decision to issue the permit. That was the basis of striking the document from the record, which was granted; and now you are going to allow this witness to testify to the contents of that record. He stated, there is a due process problem here because according to that record, this witness was unaware of the contents of the record until he was given the record by the author of the record. Now, if he was not then that document should have been included in the record, but it has already been decided that it was not. Ms. Durden asked Mr. Flowers to approach and respond if he wants this to be part of the testimony. Mr. Flowers stated we do, adding that council was very much in favor of this being a de novo hearing, not just a review of the record. He stated, so we are here to offer testimony and opinions. This man is an expert and he is talking about the basis for the decision that was made. He would note that the document that was stricken says during the evaluation of the Gate Petroleum submittal this person who created this was asked to provide the information which the information was provided to Mr. Hubsch and, therefore, was part of his decision making He added that everything Mr. Hubsch talked about or considered does not have to be in the written record in order for him to be able to testify about it. -4- Ms. Durden stated we have heard the objections and directed Mr. Hubsch to proceed. Mayor Reeves asked the attorneys to please go through the Chair if they want to make an objection. Mr. Hubsch continued his explanation of the research conducted and he addressed, at length, some of the issues expressed by opponents to this project. In addition, he addressed the issue concerning the seating and parking requirements for Beach Diner, which resides on the property. He explained the zoning codes and regulations pertaining to seating and parking requirements, stating that 19 parking spaces are allotted for Beach Diner and the City has not found any provision to require Gate Petroleum to maintain parking spaces for the diner. Mr. Hubsch stated, in summary, his opinion is the property proposes a mix of uses that are allowed in CG Zoning category; there is no pump limitation under the automobile/service station definition, or, in the service station supplemental regulations; the site provides the appropriate amount of parking under the City's parking code; and all other standards are met. Therefore, it is permissible as submitted and needs no zoning variances or exceptions from the City. Mr. Hubsch stated, due to a substantial amount of public comment about the project, the City decided to contract with Steve Lindorff, who is the former Planning Director of Jacksonville Beach and has extensive experience in this field. He stated Mr. Lindorff was tasked to do an independent review of the project and focus primarily on the questions of zoning and parking that have come up throughout the course of this project. The City did review Mr. Lindorff s report, as well as its own interpretations of the codes prior to signing off on the project, and based on our review the project is deemed consistent with the code and approved. Steve Lindorff, 2092 Vela Norte Circle, provided a detailed explanation of his background education, professional work experience and honors received. He stated he was contacted by Mayor Reeves and entered into a contract to assist the City and provide an independent review of the work done by Mr. Hubsch to approve the site plan for this project. He stated he reviewed all of the documents that are included in the two appeal binders. He concluded, the Director's decision to approve the site plan was properly done and his actions were in keeping with the way projects like this typically progress through the development process. He stated Mr. Hubsch's job is administerial in nature, meaning he cannot make it up as he goes along; he has to deal with the black and white language of the code; it is not his job to pick winners and losers; he is carrying out a duty that is fairly clear and has to rely on the black and white verbage in the code. Mr. Flowers asked Mayor Reeves to reserve their remaining time of 2 minutes and 9 seconds and was so granted. 3. Applicant's Presentation. Mayor Reeves stated that Mr. Hainline had up to 2 hours total for direct and rebuttal, and asked how much time did he want the timekeeper to set for direct testimony. Mr. Hainline requested 1 hour and 30 minutes now, and to reserve 30 minutes for rebuttal. Mr. Hainline stated they have a powerpoint presentation to appear on the screen and hard copies of the presentation to provide to the Board and the Appellants. Ms. Durden received the copies and requested one be given to the court reporter. John Peyton, representing Gate Petroleum, 9540 San Jose Boulevard, expressed his thanks to the City for the time they have put in for this effort, stating they have been at this for nearly 2 years. Mr. Peyton stated Gate was founded by his father in 1960 with one service station, stating we are proud to be a Northeast Florida based company for over 50 years. He stated we have grown our business -5- successfully because we do a good job. He stated we are a local company and we give back to the community. Mr. Peyton stated they have been at this for 2 years and there have been a lot of things said, and he hopes to debunk some of the myths and present some of the facts. He stated opponents have made reference that this process has not been transparent and nothing could be further from the truth. He stated Gate has been looking for a site for a service station in this area for a long time. He stated they found a site that was in foreclosure and in distress and they came to the City in 2014 asking for clarification on the zoning. He stated the City responded that we are an appropriate use for the zoning that exists for this property. He stated Gate would not have bought this property if it were not zoned properly. Mr. Peyton stated they have worked closely with the City staff for 2 years to make sure they comply with the City Codes. He stated Gate meets or exceeds the laws, codes and regulations of the City. Mr. Peyton addressed other myths, misconceptions, issues and concerns expressed by residents and the opponents of this project. Mr. Peyton elaborated on the misconception of the conflict with Beach Diner. He stated, this is a dispute between a landlord and a tenant. He stated he respects the advice Beach Diner has gotten from their council, but this is not an Atlantic Beach issue. T.R. Hainline, 1301 Riverplace Boulevard, representing Gate Petroleum, stated he would like to talk about the site development plan process and how it is provided in the City's Code, in an attempt to present a context for the Board in their decision. He stated the staff s role is an administrative position; the staff applies adopted, written, measurable standards in the existing Code. He stated the role of the Commission is to determine if the staff made an error in its application of the Code's standards. He stated Mr. Hubsch was not the only staff person who reviewed Gate's site development plan. He stated the staff review included input from Zoning, Public Works, Building Department, Utilities Department, Fire Department and other staff. He stated if the Commission feels any existing standards in the Code are inadequate, they may address this with future legislation. He stated in this appeal, like the staff, the Commission is looking at the existing standards in the Code. He stated Gate is not seeking any zoning change, exception, variance or waiver; adding, the Commission is not being asked to consider or grant any relief to Gate from any code provisions. He stated, our experts, who will speak today, will show you that Gate's proposed station meets or exceeds all code standards. He stated at the conclusion of the testimony of our witnesses, we will provide exhibits that include their resumes and affidavits. Tony Robbins, stated he is a planner with Prosser, a firm in the Jacksonville area for more than 32 years. He provided his educational background, qualifications and certifications; as well as extensive work experience as an urban and city planner. He stated that he agreed completely with the findings of both Mr. Hubsch and Mr. Lindorff, adding, a service station with a retail store is permitted at the site in question. He stated the City's comprehensive plan is what acts as a guide for future development, with very broad, aspirational goals and objectives in your future land use element. He stated our zoning code is where the immediate, day to day, specific and detailed parameters for the use of the land is presented and must be consistent with the comprehensive plan. He stated the zoning code supports the broader goals inside the comprehensive plan. He reiterated his support and agreement with the staffs findings. Brad Davis, stated he is a principal with Prosser, a planning and engineering firm. He stated he is the civil engineer of record on this project and explained the process which has been ongoing since they began in January 2014. He stated they took the information gathered through the process and created a site plan. He explained the site development plan submittal process, zoning codes reviewed and complied with, and stated they were granted approval on February 9, 2016, with conditions. -6- Russ Ervin, 1035 Kings Avenue, representing Ervin Lovett and Miller. He stated they are an architectural design practice and their role in this project was to redesign Gate's prototype and create something that would fit into the neighborhood. He presented pictures of the rendering of the project, incorporating design elements taken the Atlantic Beach Country Club, as well as the overall elements seen in Atlantic Beach. Janet Whitmill, 1144 Vale Orchard Lane, stated she is a landscape architect and has been a native of Jacksonville her entire life, with 28 years of experience. She stated 4 years of her practice have been with the City of Jacksonville and she has the experience and understanding of working with codes, interpreting codes and enforcing codes. She presented pictures of the approved landscape plan dated December 16, 2015, which meet and exceed the landscape requirements by one and a half times. She added, Gate decided to enhance the landscape plans and go after a water star certification. She presented the rendering of the enhanced landscape plans, which have not been submitted to the City, meet and exceed the code requirements by two to three times. T.R. Hainline, stated the witnesses we have just heard all spoke to code compliance, demonstrating Gate meets or exceeds the standards in the code. He stated the next witnesses will address some of the community issues. Austin Chapman, Transportation Engineer with Prosser, stated he works on development agreements and driveway permitting. He stated they have reduced the number of driveways on Sturdivant Avenue from six to two and on Atlantic Boulevard from six to two. He stated the Gate site will generate less traffic than existing uses or uses that could be put on this site. He stated the FDOT did require a traffic study as part of the site permitting, and explained the study results. Mark Bachara, Director of Security for Gate Petroleum Company, stating his background experience and education. He stated at Gate is he responsible for developing and implementing the company's overall security programs and initiatives, which includes managing surveillance and crime prevention systems and educating Gate employees on security programs and procedures. He stated he also serves as the company's liaison with local law enforcement agencies. He stated Gate works diligently to ensure the safety and security of our customers and employees. Courtland Eyrick, 806 Riverside Avenue, stated he is a state certified general real estate appraiser. He stated he has over 15 years of experience in the appraisal industry and he is currently a principal at Florida Valuation. He stated he reviewed the proposed plans for the Gate Service Station and reviewed the area surrounding the service station. He stated he conducted a study of residential property values near service stations and concluded the proximity of a Gate service station does adversely affect residential values. T.R. Hainline, stated he would like to address the specific argument that has been made at repeated Commission meetings by one party, Mr. Adeeb, relating to Beach Diner and the parking issue. He presented a detailed explanation of the history of permits, approvals, and variances submitted by Mr. Adeeb to the City; stating the City has no record that Mr. Adeeb ever possessed a documented right to parking spaces on the adjacent shopping center. He stated City approvals did not grant property rights to Mr. Adeeb and City approvals are not a deed, easement or lease. -7- Tony Robbins, stated we found no record with the City of any allocation of parking spaces to Beach Diner, nor is it prescribed in the lease. He stated, in addition, it is not the City's role to enforce any lease or private agreement between a tenant and a landlord. Mike Kinnard, Gate store manager, 2222 Destine Lane, expressed support for Gate, citing many positive reasons he is proud to be a member of their company. He stated the main point he wanted to make was that Gate would be a great neighbor in Atlantic Beach. T.R. Hainline, stated the Commission has heard about the staff's decision, from both your staff and from our experts. He stated it was not a quick decision. The staff took their time with two rounds of comments from all the different agencies and they put conditions in the approval, which we have agreed to live by those. The City also hired an independent expert, Mr. Lindorff, to review the plans and he confirmed that they meet and exceed all the criteria. He stated the staff did not make an error; Mr. Lindorff did not make an error; their decision was based on your code standards; it is the correct decision, as Gate's plans meet or exceed all of your code standards. He stated, we are offering and would agree to be bound to the architectural renderings that Mr. Ervin presented; we would agree that our ultimate building plans would be consistent with those architectural renderings, which is an affirmative offer over and above the code requirements. He stated, in addition, we are also offering that we agree to be bound by the enhanced landscape plan presented by Ms. Whitmill. He stated we are offering here in the presentation, those two conditions, which are over and above your code standards. He stated, after Mr. Peyton concludes, we will distribute exhibits that include the resumes and affidavits of our experts, as well as any documents they referred to during their presentations. John Peyton, stated Gate came to Atlantic Beach two years ago to build a store that we are proud of. He stated we have met and exceeded your requirements; we have been transparent in the process; we have engaged your citizens and have engaged you and your staff. He stated he respects and appreciates that all of you have worked hard to listen to all sides of this issue. He stated, you have taken your time to get it right, which is admirable. He stated you have a group of unhappy constituents and he knows you are trying to find a remedy. He stated, you may decide, after this is over, to revisit your code and make some changes, which is your right. He added, what is not right is to change the rules in the middle of the game. He stated Gate followed your rules, we met your code, we exceeded your code in most instances and we are going to do a good job. Mayor Reeves asked if there were any minutes left from the 90 minute allotment and was informed they had 11 minutes left. He stated we will add those to the remaining time, for a total of 41 minutes and asked Mr. Hainline if that was agreeable and he responded yes. Lunch Break Mayor Reeves recessed the meeting at 12:35 p.m. for lunch. He reconvened the meeting at 1:20 p.m. 4. Cross Examination by Eakin/Sneed/West of the City's and Applicant's witnesses. Mayor Reeves explained the process that was agreed upon to allow up to 2 hours. He asked each appellant to state how much time they would need. -8- 5. Eakin Paul Eakin, representing himself as the owner of 599 Atlantic Boulevard, stated he has no cross examination of Gate's witnesses, stating he reserves the right to call any and all of them as witnesses in his case in chief. He asked that the witness stay for the remainder of the hearing. He agreed to give his time to the other appellants. Mr. Sneed agreed to take up to 80 minutes, but if any time is left over, he will give the remaining extra time to Ms. West to add to her 40 minutes. 6. Sneed Presentation. Mr. Sneed called Mr. Davis, stating he understood from Mr. Davis's testimony that he was the Civil Engineer for the Gate project and Mr. Davis stated yes. Mr. Sneed asked, in doing that work, are there regulations and codes that you have to follow and the witness stated yes. Mr. Sneed asked if the regulations and codes have defined terms that you have to apply, and the witness stated yes. Mr. Sneed asked Mr. Davis if he applied the defined terms as written, and the witness stated yes. Mr. Sneed called Russ Ervin, stating he understood from Mr. Ervin's testimony that he was the architect for Gate on this project and Mr. Ervin stated yes, he was the architectural designer. Mr. Sneed asked, as an architect, are there regulations and codes that you have to apply in designing a project; do those regulations and codes have defined terms; and did you apply those defined terms as they are written. The witness stated yes to all. Mr. Sneed called Janet Whitmill, stating he understood from Ms. Whitmill's testimony that she was the Landscape Architect for the Gate project and Ms. Whitmill stated yes. Mr. Sneed asked, in doing that work, are there regulations and codes that you have to follow and the witness stated yes. Mr. Sneed asked if the regulations and codes have defined terms that you have to apply, and the witness stated yes. Mr. Sneed asked if she applied the defined terms as written, and the witness stated yes. Mr. Sneed called Mr. Robbins, asking if he agreed with Mr. Lindorff s testimony that the process of a Community Development Director is an administerial process, and the witness stated yes. Mr. Sneed stated he was going to read the exact words given by Mr. Lindorff in his testimony; stating Mr. Lindorff testified that land use workers in a city are not policymakers, they apply code; and the witness stated he agreed they apply code. Mr. Sneed stated Mr. Robbins testified about stuff that was done in 1997 when Mr. Adeeb got the variance, and the witness stated yes. Mr. Sneed stated he wanted it clear for the record that Mr. Robbins was not personally involved in Mr. Adeeb permitting in 1997, and the witness stated that is correct. Mr. Sneed stated you have no personal knowledge of that process other than what you gathered from reading the records of the City of Atlantic Beach, and the witness stated correct. Mr. Sneed stated you have no personal knowledge of what the City of Atlantic Beach records keeping practices were in 1997, and the witness stated that is correct. Mr. Sneed called Mr. Lindorff, stating he will start with what they can agree upon. Mr. Sneed stated, you are not a lawyer and the witness stated correct; you have no legal training in interpreting contracts, leases, and things of that nature and the witness stated no legal training, that is correct; you testified, on direct, that people working for the City of Atlantic Beach have to apply the code as it is written and the witness stated that is correct. Mr. Sneed stated, this slide up here, C3 (the third submission) dated -9- February 5, 2016, is that after your report was rendered, and the witness stated that is correct. Mr. Sneed stated, on the first page of Mr. Lindorff's report he described the proposed use as a retail convenience food store, asking if the witness remembered using that phrase, and the witness stated yes. Mr. Sneed stated, it is smaller than a grocery store and the witness stated yes. Mr. Sneed stated it operates on extended hours compared to Publix, and the witness stated he would not know that as a fact in this instance. Mr. Sneed stated, but in your basic experience, Gate stations are open longer hours than Publix, and the witness stated there are also 24 hour Publix's, and Mr. Sneed stated alright. Mr. Sneed stated, would you agree that is an appropriate definition for convenience store coming from Webster - Learner's Dictionary, and the witness stated yes, he could accept that. Mr. Sneed stated, you worked for thirty years for Jacksonville Beach, and the witness stated yes. Mr. Sneed stated, Jacksonville Beach does not have convenience store listed as a specified use in the commercial zoning district, and the witness stated that is correct. Mr. Sneed stated, the convenience stores, gas stations permitted in Jacksonville Beach were permitted in the method you described in your report here, "service stations with accompanying retail food stores". Mr. Lindorff stated, food stores without limitation and automobile service stations or gas stations are all listed as permitted uses both in Jacksonville Beach and in Atlantic Beach. Mr. Sneed stated, my question was about your work in Jacksonville Beach, the Gate stores in Jacksonville Beach, they were permitted as gas stations with retail food sales, and the witness stated that is correct. Mr. Sneed stated, would you agree that in Atlantic Beach convenience stores are specifically listed, and the witness asked, in what zone. Mr. Sneed stated, 24-110(b)(7), CL Zoning, Convenience food stores without fuel sales, but not supermarkets; and 24-110(c)(4) Uses -by -exception, Convenience food stores with retail sale of gasoline, is a specifically listed use, correct? Mr. Lindorff stated he would accept that Mr. Sneed has copied it properly from the CL District zoning requirements; adding, if you want me to answer with certitude, he will go and look it up in the code. Mr. Sneed stated he was not asking for Mr. Sneed to answer with certitude, but he is asking for the witness to acknowledge that you know these provisions are listed in the code. Mr. Lindorff stated he would accept his premise that that is what it says in Section 24-110. Mr. Sneed stated, are you saying that you have no specific recollection of what is in the code when you applied it to this project. The witness stated, after reviewing the CL Zoning District regulations, he concluded that they were not relevant to the application that was before the City. Mr. Sneed stated, let us look at Section 24-111 Commercial General Districts, asking if he reviewed this, and the witness stated yes. Mr. Sneed stated, is it fair to say, that the uses permitted by Use and Use -by -exception in CL are adopted by reference directly into Commercial General, and the witness stated correct. Mr. Sneed stated; convenience store without gas and convenience store with gas, three pumps, six fueling stations, are both specifically permitted uses in CG, and the witness stated, that would be true. Mr. Sneed stated, is it fair to say when a code section is incorporated by reference in another code section, it is your understanding that you have to take what it says, you do not get to pick and choose the words that you apply. Mr. Lindorff stated that is essentially what my testimony was, but in this particular instance, that language was superseded by other language in the CG Zoning section, and Mr. Sneed stated we will get to that. Mr. Sneed stated, in your analysis, you were provided with information by the City and by Mr. Eakin on behalf of Mr. Adeeb. Mr. Lindorff stated he had communications with the City and Mr. Eakin and the information was provided as part of the record. Mr. Sneed stated yes, and part of the record that you produced, Volume 2 of the record before us today, included Mr. Eakin's correspondence where he attached a copy of the occupancy certificate for Beach Diner showing 94 seats, and the witness stated yes. Mr. Sneed asked if he placed any weight on the contention that Beach Diner had 94 seats inside, and the witness stated no. Mr. Sneed stated, you relied solely upon the representations of Gate that they provided to the City, and the witness stated no, he relied on the plain language within the City's code. Mr. Sneed asked does the City's code have the number of seats in Beach Diner printed in it somewhere, and the witness stated no, but it has the parking requirement. Mr. Sneed stated, to apply that parking requirement you have to know how -10- many seats they have, is that correct, the witness stated yes. Mr. Sneed stated, you relied solely upon the submittal of Gate, a seating plan that was 19 years old, and formed your opinion that 19 spaces were all the City could require. Mr. Lindorff stated 1 space for every 4 seats. Mr. Sneed stated, coming back to my question, did you rely upon Gate's representations of the number of seats, and the witness stated yes. Mr. Sneed asked if he made any investigation whether the 19 year old drawing represented the as -built of what happened at Beach Diner. Mr. Lindorff stated he reviewed the drawing and he has personal observation about what is on the property at Beach Diner, and he mentioned that in his report and in his testimony this morning. Mr. Sneed stated, you mentioned that you did not think they were using outside seating, and the witness stated correct. Mr. Sneed asked if the witness had considered the fact that they have had outside seating in the past and currently have outside seating, and the witness stated no, it was not relevant to his review. Mr. Sneed stated to the witness, you saw this 19 year old plan had outside seating on it and you recognized in your report that outside seating counts towards the number of parking spaces a restaurant requires, and the witness stated yes. Mr. Sneed stated, you based your 19 seat opinion solely upon the inside seating shown on the diagram, not including the outside seating that was also shown, and the witness stated yes. Mr. Sneed stated the current use is important in determining how many parking spaces are allowed, and the witness stated yes. 1:40:55 continues until 2:04pm Break* Mayor Reeves recessed the meeting at : p.m. He reconvened the meeting at : p.m. 7. West Presentation. 8. Cross Examination of Eakin/Sneed/West witnesses. 9. Rebuttal - Eakin, Sneed, West, City and Applicant. Dinner Break Mayor Reeves recessed the meeting at 6:01 p.m. He reconvened the meeting at 7:32 p.m. 10. Public Comment - Courtesy of the Floor to Visitors. Mayor Reeves stated each speaker may have up to 2 minutes each, but no more than 2 minutes. He stated he had sixty people requesting to speak, and when their name is called to speak, they may choose to simply state for the record, they are either for or against, and Cathy Berry will write it on their speaker slip and they may forgo their 2 minutes of speaking, or they may take their 2 minutes. Mayor Reeves explained the process for public comments and thanked everyone for coming tonight. B. J. Lester, 907 Second Street, Neptune Beach, encouraged the Commission and Gate to do the right thing for the residents who love the beaches area and do not want it to continue to grow any larger. -11- Penny Kamish, 193 Beach Avenue, spoke in support of the Gate Company. Burt Rast, 1220 Seminole Road, spoke in support of the Gate station. Diane Brandstaetter, 254 Oceanwalk Drive South, spoke in opposition of the Gate station. Dan Jansen, 707 Holly Drive, Jacksonville Beach, spoke in support of Gate. Charles Freshwater, 341 12th Street, spoke in support of the Gate station. Ashton Hudson, 319 12th Street, spoke in support of the Gate station. Harleston Parkes, 1838 Seminole Road, spoke in support of the Gate station. 11. Closing Statements: Eakin, Sneed, West, City and Applicant. 12. Commission Questions/Deliberations and Vote. Motion: Find that the Director did not commit an error because site plan meets applicable Code requirements, confirming the approval of the site plan application. Moved by , Seconded by Roll Call Votes: Aye: 5 — Harding, Hill, Stinson, Waters, Reeves Nay: 0 MOTION CARRIED -or - Motion: Find that the Director committed an error because site plan does not meet applicable Code requirement(s) (to be specified), reversing the approval of the site plan application. Moved by , Seconded by Roll Call Votes: Aye: 5 — Harding, Hill, Stinson, Waters, Reeves Nay: 0 MOTION CARRIED -or- Motion: Modify the approval of the site plan application and revise in manner specified. -12- Moved by , Seconded by Roll Call Votes: Aye: 5 — Harding, Hill, Stinson, Waters, Reeves Nay: 0 MOTION CARRIED Adjournment There being no further discussion by the City Commission, Mayor Reeves declared the meeting adjourned at : p.m. ATTEST Mitchell E. Reeves Mayor/Presiding Officer Donna L. Bartle, CMC City Clerk -13-