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Blythe Waters Notes from Gate Hearing.pdfBerry, Cathy From: Blythe Waters [blythewaters@gmail.com] Sent: Friday, May 13, 2016 9:07 AM To: Berry, Cathy Subject: Blythe Waters Notes from Gate Hearing Attachments: Gate Hearing.pdf M. Blythe Waters blythewatersftmail.com Animal Care of Ponte Vedra 880 North A1A Suite 21 Ponte Vedra Beach, FL 32082 (904)280-4544 1 Berry, Cathy From: Blythe Waters [blythewaters@gmail.com] Sent: Friday, May 13, 2016 9:07 AM To: Berry, Cathy Subject: Blythe Waters Notes from Gate Hearing Attachments: Gate Hearing.pdf M. Blythe Waters blythewatersftmail.com Animal Care of Ponte Vedra 880 North A1A Suite 21 Ponte Vedra Beach, FL 32082 (904)280-4544 1 Thursday, May 12, 2016 Gate Hearing Objections: TR Hanline - Gate: objection - de novo testimony in quasi judicial hearing - hearing should be restricted to only those materials presented to the city Sneed - Barry Adeeb, Beach Diner - objection - no showing that permit was issued by a properly elected building official Eakin - objection - city adopted Mr. Lindorf's report - therefore any material in Vol 1 not contained in Vol 2 should be struck from the record. Also no showing that permit was issued by a properly elected building official City Presentation Jeremy Hubsch: Building and Zoning Director - Does the request meet all city codes and requirements - only question that city is able to address • CG Zoning - allows for mixture of any uses allowed in the code - retail establishments and gas ales allowed in code - therefore combination allowed - most intense zoning district since 1982, both this and previous code allowed for service station and prior code defined automobile service station as gas station - we have intensified this designation when the CI zoning was eliminated. • Determined that under applicable code - site permit as submitted requires no variances or use by exception - Steve Lindorf - review plan - offer comments. • Is use permitted? - yes all uses stand alone in CG zone and allowed in combination by code. note* and minor automotive repair - permissive not requirement. Supplemental regulations - buffer and landscape and off street parking regulations - the site plan met all these supplemental regulations. • Look at alcohol sales and hours - code is mostly to guide restaurant use- allows a restaurant to stay open but not serve - this is a matter left for another day - when alcohol permit is requested • Parking entitlements of Beach Diner - city has no obligations to enforce lease - this is a landlord lessee issue for an independent court - No specific number of spaces allotted to beach diner, lease does not allow for use by outparcel lessee to specifically utilize parking the the shopping centers parking, 1997 expansion - no follow up by applicant or city that the parking was conditioned on parking space - just permission of lessor Thursday, May 12, 2016 • Ingress and Egress - meets city's minimum requirements - must be with permission of applicant • Review communications from objectors and provide historic info about how local cities administer their code and if this permit is in accordance with that historical precedent. Issued a review - Duty is to impartially administer black and white language of code - Code was properly administered in issuing this permit. GATE Presentation • John Peyton - 2 year process - accusation that this process was not transparent - Untrue - looking for many years - found a distressed site in foreclosure - Gate would not have purchased this property if it were not a permitted use - DO not buy property that requires rezoning. Did confirm with city that their reading of the code was correct and that it was permitted under current code. Not a mega store (up to 15 pumps) - a Neighborhood store - the design is unique and specific to the beaches community Tearing down a building that is 3 times larger and is not in compliance with current parking code. Bus code - busses fuel all over the city. All buses will not fuel a this location all the time. Conflict with Beaches diner - believe that it can coexist -dispute is about parking - BD believes that they are entitled to unlimited to parking that is unencumbered in their lease - city has not engaged in the tenant landlord dispute. • TR Hanline - Site development plan process - staffs' role - administrative position - does not legislate or create new standards and by law can not make decisions specific to an appeal or objection - they must apply code fairly and evenly or they are outside the limits of the law. Can only apply code as it exists. Gate is not requesting a variance, exception or waiver. Gate's plan meets or exceeds the standards of the current code. Gate even agreed to comply with new standards adopted after they had purchased this property - they did not ask to be vested or grandfathered under previous more relaxed standards. • Tony Robbins, Prosser - Planning and Public Administration - A service station with a retail store is allowed under the land use guidelines for this site. Zoned commercial general - the most intensive zoning designation. Pyramid - commercial limited is a step down from CG and then he next step down is commercial professional office. All less intensive uses are allowed in more intensive districts. • Brad Davis, Prosser - Civil Engineer, engineer of record on this project- began due diligence in 1/2014 - review of code, use, setbacks, parking, pups, engineering, D/ W connections, utilities available. 9/9/2014 - requested a zoning confirmation letter 2 Thursday, May 12, 2016 from COAB - provided on 10/7/2015 - use was permitted, no concurrency. Then prepared the submittal package as required by COAB sec 24-67 - 10/12/2015 - 2 rounds of comments - approval granted 2/9/2016 - comments form public works on utitilites, engineering also answered. All code is met or exceeded including: sec 24-161- off street parking and loading (current building doesn't meet current code) sec 24-165 - service stations sec 24-66 - stormwater, drainage and treatment requirements (current building doesn't meet current code - this plan more than doubles AB standards, storage meets both peak flow and peak storage demands) • Russ Irvine, Architecture and design practice, took architectural cues from ABCC - white brick material from the building - seen in skirting and frontage, also weathered wood lap siding, careful attention paid to rear elevation - wood lap siding and bhama shutters to add a softer residential feel to the rear view from sturdivant. • Janet Whitmill, Landscape Architect, water conservation and local plants - meet and exceed requirements by approx 1.5 times. Water star certification - dictated by water mgmt district. Based on Citizen in put - new plan is 2-3 Times requirements - goal is screening per residents - for water conservation - trying to reduce sod areas - tried to use salt tolerant and meet water star requirements • Austin Chapman, Prosser, Transportation Engineer, traffic counts show that a thriving shopping center would actually generate more trips both primary and secondary. Calculated according to currently accepted methodology. Atlantic, strdivant, sylvan, pine all meet FDOT standards for expected traffic. • Mark Bachara, director of security, GATE - When crimes are committed in and around service stations - they are sminilar of those committed in other retail locations - crimes of opportunity. GATE uses SOA surveillance, robust cash mgmt, clear lines of site into and out of store, zero tolerance for illegal activity. Front windows free of advertisements for clear site lines. minimum of 2 employees in store at all time, walk property • Courtland Eyrick, Appraiser, MAI - study of effect that Gate Service Stations have on paired sales in single family residences: Does not adversely affect residential property values - however retail centers that are underutilized or in disrepair can adversely affect property values 3 Thursday, May 12, 2016 • TR Hanline - Parking issue - argument stated to representatives - in 1997 - Adeeb filed applications for variance from required setbacks and permit for expansion of Beach Diner - told at variance hearing that he would still have to meet parking requirements - not that the shopping center would have to meet parking requirements. email 11/13/15 from Adeeb -no specificity, no lease, no assigned parking for Beach Diner - no documented right to any specific number of spaces in adjacent parking center. * Note - permits issued by city do not convey rights of one private party to another party - only a deed, easement or lease between the parties can grant property rights - and if one of those agreements is entered into then the city has not role in enforcement of said agreement. A permit does not give away or take way private property rights. Our code requires that the shopping center have 84 dedicated spaces for its use and those spaces cannot be double counted in the Beach Diner's parking allowance. • Mike Kinnard, Store manager - Gate provides job, promote from within - opportunities for advancement, Provide a safe, friendly environment where store employees go out of their way to assist customers. • TR Hanline - agree to be bound by renderings of architectural plans as well as enhanced landscape engineering plan - 2 offered conditions over and above code. • Mayor Peyton - good faith to meet and exceed requirements, transparent, have engaged commission and community, search for remedy for unhappy citizens - while we can revisit our code - we have to apply current rules to this application. Cross Examination Sneed/Davis: is an engineer, applied terms as defined. Sneed/Irving: regulations and codes - applied when designing a project, Defined terms, applied as written Sneed/Whitmill: Landscape architecht, regulations and codes applied as defined - Sneed/Robbins: Heard Lindorff's testimony, agree that the process of a zoning is minatorial - are not allowed to create policy but only apply code, Testified regarding 1997 variance of Mr. Adeeb - but has no personal knowledge of proceedings or of record keeping processes in AB in 1997 Sneed/Lindorf: Not a Lawyer, No legal training to interpret leases, contracts, etc. testified that employees of the city must apply the code as written. 4 Thursday, May 12, 2016 Convenience stores and gas stations limited to 6 pumps are both express uses permitted in CL and therefore in CG zoning districts. How many seats does Beach Diner Have? Expired 2010 DBPR license shows 94 seats - in report that is 19 years old - Beach Diner showed outdoor seating - not used in calculations. If parking is calculated on a shopping center standard - then number of seats doesn't matter if it is in the same parcel. Steve Lindorf - laymen's interpretation of a lease, question left incomplete. Moved on to outside dining - does it surprise you that there was outside dining - showed picture - no food on tables - no evidence of dining. Lindorff Report Except questioning - fairness - yes, consistency - yes, comprehensiveness - yes - it is improper for a zoning director of the city to give misleading information during the zoning process. Lindorff - in principal yes- but that mistakes can be made based on current information, It is improper for a zoning director to intentionally give mistaken information to an applicant - yes. It is inappropriate to ask only one interested party for information regarding disputed material -yes, Would a independent restaurant with 119 seats need 30 parking spaces under the current code - yes - Sneed Hubsch: Did you rely on Lindorff review to determine it would be a service station - yes as well as code, historic information. Use of the word and - does it require all of the above? - Hubsch -example - beer distribution - e allow for distribute of beer and wine and we allowed him to sell only beer. Shall is always mandatory - Hubsch agrees - a particular or specific shall control over general - code defines and - defines that all the connected provisions SHALL (aka Must) apply. Definition - automotive service station and minor automotive service. Hubsch - clarifies automotive repair the code has always intended to limit service - and would require automotive service - which would be a more intense use than what has been permitted. Gate - seating diagram for restaurant - hubsch did not ask beach diner for a seating diagram because he was neither the applicant nor owner. No outdoor seating was present at the time of submittal or issuance of permit. Reemphazied repeatedly - no one had any personal knowledge of Mr. Whorly's methods or what was applied to the 1997 variance. Email - shopping center standard -12 spaces - restaurant standard verbally told that 4 seats 1 space. Expansion of restaurant - requires more parking. Again with the how were standards applied in 1997? No way of knowing. Was advance notice provided to Adeeb of approval? No, any need to provide parking information - applicant provided, confirmed submitted seating plan visually. Under current code if 119 seats - need 30 parking spaces. West/ Payton: Why gate is not amenable to building with just 6 fueling stations - goal is to meet demand during peak hours - site is limited - goal is to meet peak demand - is it financially feasible? Would you still make a profit? Cannot speculate. Cost 5 Thursday, May 12, 2016 benefit analysis of 6 fueling stations - no study done. Becky Hamilton VP of Real estate - Deliveries - 5-6 weekday 1-2 satruda, none sunday - West/Hubsh - Why is a convenience store with gas, limited - why is that treated as a use by exception in CL district - To prevent Targe station at large intersection - why was this updated in code - no discussion in minutes - 3/2008 Sonja Doer - variance to add gas to an existing convenience store on Mayport Road. To avoid lighting canopy and large megastationas it would be objectionable to adjacent neighbors. Stated that both retail sales and automobile service station - code allows for mixed usage. Convenienece stores are not specifically referenced in the code? No Hubsch - they are specifically mentioned. In 1982 code - CL provision - conveience food store with retail gas sales - updated to add a restriction for 6 fueling positions in 2002. prior to that the code said that all gas stations require a use by exception in CL - intent of planners in defining the number of pumps was to avoid megastations. - they did this in CL district - In CG - higher classification - no pump restrictions - 3 places they could have placed restrictions in the code - but they did not - no goal to limit pump numbers in CG - not your role to deny a submission but to inform them of deficiencies. How much weight to preambles? States goals - guiding document - steers guiding uses permitted below it. Any ambiguous sections of code in reviewing this project - No. Eakin Presentation - On behalf of himself and the co-owner of his property - no personal vendetta against Gate Gas. Object to site plan based on zoning. - Hubsch relied on Lindorff's report regarding zoning. Mr. Lindorff - this limiting provision does not apply to the proposed project however b/c food stores are permitted by right under our code regardless of size or type, and an automobile service stations permitted by right subject to no limitations. Convenience with retail sales of gasoline is also a permitted use in CG just like the above - BUT it carries a restriction on 6 pumps. - The law is that if different language is used in different portions of the code then they are intended to have different meanings. difference in terminology is significant - a retail outlet for the sale of food is not the same as a convenience store? Failed to define the difference between the two - just to state there is a difference. 6 Thursday, May 12, 2016 - All of AB's gas station with retail sales. i.e. Kangroo station with more pumps on Mayport road is classified as a convenience store with gas according to Duval County Tax Appraisers office - Eakin - rebuts that adding minor automotive repair is more intense that an additional pump - - tire changes and oil changes - air driven power tools are in his opinion Tess intense than a fueling position Sneed Presentation • Procedural Objection - unclear basis for objection • Testimony about email - 4/25/2014 - From Hubsch to gate - already recanted on reading further into code • Asked to read additional email into record - In response to an email from Ross (prosser- planner) don't have a strong opinion on 10 pumps - will get pulse of city mgr and atty if they are headed that direction. Hubsch in response to emails - these were a cursory review of conceptual project - fall of 2014 - reached decision just before 11/10/2015 • Convenience store - 6 pumps more restrictive than retail store of 6400 sq feet & 7 pumps - yes (hubsch) • Adeeb - how did he come to lease? - made a deal with property owner needed to expand - if approved would sign lease - hence 1997 variance request - granted and sign lease. • Adeeb testified that he signed off at city (no evidence) to be representative of landlords Bill Nicol and John Green - property owners - so Adeeb attended CDB meetings personally - Note * is this his testimony why there is no evidence that landlords gave approval as required by the city. • Testimony regarding seats - 1997 - 94 - indoor seats/25 outdoor seats despite that drawing shows 76 seats inside/ 25 seats inside on variance request to the city • INside has not changed since 1997, outside seating changes repeatedly • Traffic study - 65-85 spaces needed on a weekend and 40-60 spaces during week. West Presentation 7 Thursday, May 12, 2016 • Convenience store - not a takings case - decreased profit margin - not the city's problem • Reliance on preamble is legally allowed - Blackman vs. Miami • Burden of Proof - competent substantial evidence • Dodi Glass - Concerns - not due thought given to existing business and focused on CL designation though this project is CG Hainline X Adeeb: • Answers about seats - 94 inside/45 seats no service outside at time of issuance of permit • Deposition 4/14 - 80 seats - erratta sheet - 94 after coating seats • Require 30 spaces under code - 118/4 • Which is it? • 11/30/2015 - Exhibit #23 - email to Hubsch from Adeeb - knew 19 spaces were what the city was requiring under code from Gate.12/1/2015 - additional email offering to meet with Jeremy at any time - this goes counter to testimony that he was not advised by the city at anytime what was going to be required of gate regarding parking. • X Flowers - opinion - no data or computation done to come at 10% net Toss that he testified to. • X glass - pyramid zoning - restrictions decrease as intensity of category increases - Yes (glass) • Agreed also that zoning code is how complain is enacted. TJ felt that the purpose of the constitution would be entirely defeated if interpreting it as a legal document - he spoke out constantly for careful adherence to the law as it is written: Our peculiar security is in the possession of a written Constitution Let us not make it blank paper by construction 8 Thursday, May 12, 2016 Jefferson: The general is then an instrument is to be so construed as to reconcile and give meaning and effect to all its parts. TJ The legislature's laws have always some rational object in view; and are so to be construed as to produce order and justice. Common sense is the foundation of all authorities of the laws themselves, and of their construction Compromises suggested by speakers Reduce fueling positions Add electric charging station decrease lighting by 20 Increases beaches diner parking Call to review and revamp zoning codes Conditions gate offers - 24 parking spaces, enhanced landscaping, willing to add an accessory carwash or service bay, to be bound by renderings of architectural plans Questions: Elected to carry out the will of the people Jeremy - speak to evolution of language over time and age of code - 1982 vs today. Jeremy speak to how our comprehensive plan reconciles our residential character with the fact that we are bordered by 2 commercial corridors. we have Asked to look at the comp plan as the constitution and be our guiding principle. And TJ felt that the purpose of the constitution would be entirely defeated if interpreting it as a legal document - he spoke out constantly for careful adherence to the law as it is written: Our peculiar security is in the possession of a written Constitution Let us not make it blank paper by construction 9 Thursday, May 12, 2016 When were Kangaroo and BP on mayport rd permitted? - prior to change in code - however - if they had been judged under the CL zoning prior to change where limitation of 6 fueling stations - would have been a use by exception - they did not - historical precedent is that these stations have not needed a use by exception - they have been permitted in CG- Tab 27 A - mixed use convenience store and gasoline service station Environmental impact studies - included in the ABC exhibits - read over lunch Mr. Hanline - you mentioned how many things you do above and beyond -is there anything that Gate as a company or this station in particular will do to limit environmental impact We are elected to carry out the will of the people St. Augustine rescinded permit for 7-11 - has not affected their stature as a business friendly environment - they are growing by leaps and bounds. - can you give a specific example in regard to this particular local case of rescinding an offer has had a negative impact on real estate values Higher intensity use - retail sales of food or convenience store? since retail sales of food is only in CG - seems that this is higher intensity use - does it matter? Yes - if a convenience store is allowed as a less intensive use then it is allowed de facto. Common sense is the foundation of all authorities of the laws themselves, and of their construction Mrs. West - In your opinion - do you thinK that it makes common sense for us to require Gate to put a car wash or service bay to be in compliance with the letter of the law to be a service station as permitted? Mr. Sneed? Mr. Eakin? Testimony regarding gas station as a negative externality suggested a 10% decrease in property values - seems that no account was taken into the fact that a dilapidated under 10 Thursday, May 12, 2016 utilized shopping center is also a negative externality - seems that estimates may be grossly exaggerated. Mrs. West - do you agree with the contention that a dilapidated under utilized shopping center is a negative externality with regards to adjacent property value? Negotiation 30 spaces with waiver for impermeable surface increase to 76% and waive the terminal tree islands in 4 locations Ingress only on Sturdivant - no egress to the North vacuum station moved to front of property enhanced landscaping with eye to line of sight willing to be bound by renderings of architectural plans Dumpster service - 7 AM and 9 PM Outdoor Speakers - prohibited except for safety regulations HVAC shall be kept behind opaque enclosures to further reduce sound and screened from view. *Curbside parking from the city Offsite parking for employees 11