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Amended Item 1B- Draft Minutes of Gate Appeal 5-12-16 AMENDED AGENDA ITEM #1B MINUTES OF GATE PETROLEUM APPEAL HEARING JUNE 13, 2016 ATLANTIC BEACH CITY COMMISSION HELD ON MAY 12, 2016 IN ATTENDANCE : Mayor Mitchell E . Reeves City Attorney Brenna Durden Commissioner Mitchell R. Harding City Manager Nelson Van Liere Commissioner Jimmy Hill Human Resources Director Cathy Berry Commissioner John Stinson Recording Secretary Dayna Williams Commissioner M. Blythe Waters 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. Mainline 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, Court Reporter swears in all witnesses. Mayor Reeves opened the Public Hearing. City Attorney Durden explained the procedures of the meeting. All ex parte disclosures were made by the Commission. 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 . Mayor Reeves reminded everyone in the audience the importance of respect and to listen to all sides and 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 . He stated 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. Attorney T.R. Hainline, 1301 Riverplace Boulevard, representing the applicant, Gate Petroleum, stated, as the City Attorney knows, Gate Petroleum 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. He stated it is our position it should be on the record and on the record only that was before your staff and submitted written objections for the record. Mayor Reeves asked Attorney West, representing Atlantic Beach Cares and Mr. Shuck, 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 , 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 . 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 further 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 Wayne Flowers, representing the City, had no objections . Mayor Reeves recognized those present : 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 advised and recommended to the Commission to proceed with the hearing in accordance with the Order of Presentation. Mayor Reeves asked if any Commissioners had objections . There were none . 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 and confirmed with Mr. Flowers how much time he wanted - for his direct testimony. 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, 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, explained his position with the City, how he was named the Community Development Director, by the City Manager as authorized in Section 24-46(f) of the Code, and described his work experience, education and -2- certifications 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 . Mr. Hubsch explained the background of the project beginning with the first submittal of plans from Gate Petroleum in October 2015 through the 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 stating the City did extensive research to make this zoning deteunination, citing historical data and criteria. Mr. Sneed and Mr. Eakin objected, stating Mr. Hubsch was testifying about matters that were stricken from the record . Ms . Durden responded stating the document dated March 29, 2016 was the document that was stricken; whether the information was obtained prior to that and used by Mr. Hubsch, the information looked at and considered is allowed, but the document dated March 29, 2016 to memorialize the research that was previously done, is the only document that has been stricken. Mr. Flowers wanted the testimony to be allowed. 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. Mr. Hubsch was told to proceed. Mr. Hubsch continued his explanation of the research conducted and he addressed 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. Mr. Hubsch stated, in summary, his opinion is the project 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. Steve Lindorff, 2092 Vela North Circle, provided a detailed explanation of his background education, professional work experience and honors received . He explained 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 gave an overview of his review of all of the documents that are included in the two appeal binders and 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 . 3 . Applicant' s Presentation. Mayor Reeves stated the applicant' s presentation will be up to 2 hours in total for direct/rebuttal ; rebuttal, now or at the end of the hearing, if time remaining and confirmed with Mr. Hainline how much time he wanted for his direct testimony. -3-- Mr. Hainline stated they have a Powerpoint presentation and hard copies of the presentation to provide to the Board and the Appellants . 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 are a local company and we give back to the community. Mr. Peyton stated Gate has been looking for a site for a service station in this area for a long time ; 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; the City responded that we are an appropriate use for the zoning that exists for this property; and Gate would not have bought this property if it were not zoned properly. Mr. Peyton 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 counsel, but this is not an Atlantic Beach issue . Attorney 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; the role of the Commission is to deteuuine if the staff made an error in its application of the Code ' s standards ; Mr. Hubsch was not the only staff person who reviewed Gate ' s site development plan; the staff review included input from Zoning, Public Works, Building Department, Utilities Department, Fire Department and other staff He stated Gate is not seeking any zoning change, exception, variance or waiver; 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 and at the conclusion of the testimony of our witnesses, we will provide exhibits that include their resumes and affidavits . Tony Robbins , a planner with Prosser, a firm in the Jacksonville area for more than 32 years, provided his educational background, qualifications and certifications ; as well as extensive work experience as an urban and city planner. He stated he agreed completely with the findings of both Mr. Hubsch and Mr. Lindorff, a service station with a retail store is permitted at the site in question. Brad Davis , a principal with Prosser, a planning and engineering firm, stated he is the civil engineer of record on this project and they took the information gathered through the process and were granted approval on February 9, 2016, with conditions and that the project meets the requirements of the City Code. Russ Ervin, 1035 Kings Avenue, representing Ervin Lovett and Miller, 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 from 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 presented pictures of the approved landscape plan dated December 16, 2015 , which meet and exceed the landscape requirements by one and a half times . -4- Attorney T.R. Hainline, stated the witnesses we have heard all spoke to code compliance, demonstrating Gate meets or exceeds the standards in the code and 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; they have reduced the number of driveways on Sturdivant Avenue from six to two and on Atlantic Boulevard from six to two ; the Gate site will generate less traffic than existing uses or uses that could be put on this site ; FDOT did require a traffic study as part of the site permitting, and he explained the study results . Mark Bachara, Director of Security for Gate Petroleum Company, explained his background experience and education, stating he is 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 and that security is very good at Gate Stations . Courtland Eyrick, 806 Riverside Avenue, stated he is a state certified general real estate appraiser; he conducted a study of residential property values near service stations and concluded the proximity of a Gate service station does not adversely affect residential values . Attorney T.R. Hainline, addressed the specific argument that has been made at Commission meetings by 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 Mr. Adeeb ever possessed a documented right to parking spaces on the adjacent shopping center; adding City approvals did not grant property rights to Mr. Adeeb ; City approvals are not a deed, easement or lease . 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 . 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; stating Gate would be a great neighbor in Atlantic Beach. Attorney T.R. Hainline, stated the Commission has heard about the staff' s decision, from both your staff and our experts ; the City hired an independent expert, Mr. Lindorff, to review the plans and he confirmed they meet and exceed all criteria; staff did not make an error; Mr. Lindorff did not make an error; their decision was based on your code standards . He stated we are offering and would agree to be bound to the architectural renderings Mr. Ervin presented; our plans would be consistent with those architectural renderings . He further stated, in addition, we are offering and would agree to be bound by the enhanced landscape plan presented by Ms . Whitmill; we are offering those two conditions, which are over and above your code standards . John Peyton, stated Gate came to Atlantic Beach to build a store we are proud of 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, you may decide, after this is over, to revisit your code and make some changes ; adding, what is not right, is to change the rules in the middle of the game; Gate followed your rules, we met your code, we exceeded your code in most instances and we are going to do a good job . -5- Mayor Reeves asked about the time left and stated we will add it to the remaining time . Mr. Hainline was agreeable . 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 appellants would have up to 2 hours for cross examination. He asked each appellant to state how much time they would need. 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 witnesses stay for the remainder of the hearing 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; do the regulations and codes have defined terms ; and did you apply 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 confirmed. Mr. Sneed asked are there regulations and codes 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; and the witness confirmed. 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 are there regulations and codes you have to follow; do the regulations and codes have defined terms you have to apply; and did you apply 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 wanted it clear for the record that Mr. Robbins was not personally involved in Mr. Adeeb ' s permitting in 1997 ; the witness stated that is correct. Mr. Sneed called Mr. Lindorff, and asked questions about hours of operation, definition for convenience store, authorized uses in CL and CG, how to interpret zoning provisions, the number of seats in Beach Diner and the number of parking spaces needed for Beach Diner. Mr. Sneed presented Document 20b, page 7, dated May 29, 1997 and asked additional questions regarding the number of seats in the Beach Diner. Mr. Sneed called Mr. Hubsch and asked, did your rely on Mr. Lindorff' s report in making your decision that Gate had the proper zoning for the site plan, as well as determining that Gate would be an automotive service station. The witness stated partially, as well as my review of our zoning codes . Mr. Sneed questioned the witness, at length, about Section 24- 16 and the language of "shall" and "and" and how it may be applied. Mr. Sneed questioned Mr. Hubsch about Section 24- 17 and the definition of automotive service station. Mr. Sneed had a lengthy discourse with Mr. Hubsch about the issue of the seating, parking plans and parking spaces for Beach Diner. Mr. Sneed stated, the witness has no personal knowledge of how the parking was calculated in 1997, and the witness stated that is correct. -6- Ms. West called Mr. Peyton and asked him about marketing, cost benefit analysis, and deliveries to the Gate station. Ms . West called Mr. Hubsch and asked him about convenience stores in the CL Zoning District and other questions about automobile service stations and preamble language in the City' s Code. Ms . West asked if he found any sections of the code, when applying the provisions for this particular application, to be ambiguous, and the witness stated no . 5. Eakin Presentation. Mayor Reeves stated Mr. Eakin had up to 1 hour for his presentation/now or at the end of the hearing and confirmed how much time he wanted. Mr. Eakin, 599 Atlantic Boulevard, stated he was representing himself and testified about Mr. Lindorff' s report, Sections 24- 111 , and 24- 110 of the City ' s Code, as well as 24- 16, that the use should be restricted to convenience store with six pumps . and that his investigator found that Gate did not sell 50 types of automotive supplies . He further testified that a convenience store with 14 fueling positions is really a much more intensified use than that same convenient store with only 6 fueling positions and that other gas stations have been limited to 6 pumps . 6. Sneed Presentation. Mayor Reeves stated Mr. Sneed had up to 1 hour for his presentation/now or at the end of the hearing and confirmed how much time he wanted. Mr. Sneed called Mr. Hubsch. Mayor Reeves stated this is your presentation not your cross examination. Mr. Flowers stated he had no objection, as long as Mr. Sneed covered new questions not previously presented . Mr. Sneed questioned the witness about an email about the number of pumps . Mr. Sneed stated this exhibit is an email from Mr. Hubsch to Duncan Ross dated 4/25/ 14 . Mr. Sneed asked the witness when the City reached the decision that Gate would fit in the CG zoning category, and the witness stated in the fall of 2014 . Mr. Sneed called Mr. Adeeb and asked him how the Beach Diner got started. Discussion ensued regarding the variance request to the City to add additional seating. Mr. Sneed asked multiple questions regarding the amount of seating available inside and outside. Mr. Sneed asked if the City approved the construction, and the witness stated yes . Mr. Sneed asked the witness if he had seen the diagram the City used to calculate his parking, and the witness stated yes . Mr. Sneed asked the witness if he was asking the City to deny the permit and Mr. Adeeb stated yes . 7. West Presentation. Ms . West stated she is here on behalf of Atlantic Beach Cares, as well an individual, Glen Shuck. She stated our expert witness testimony will demonstrate what the proper course of planning should have been. She stated the applicant has the burden of proof to demonstrate through competent, substantial evidence that they have met the provisions of the code . Ms . West called Dodie Glas, a land planner and landscape architect from Jupiter, FL . She stated she has practiced in Florida for over 28 years and described her extensive experience and credentials . She provided a detailed explanation of the approach and steps that should be taken in processing a proposed project such as Gate. -7- Ms . West called Robert Sutty, a commercial and residential appraiser from Winter Park, FL . He described his lengthy work experience and credentials . He stated he was asked to review the proposed project and its impact on the Saltair subdivision and, in his opinion, he feels the Gate station would be a negative externality. He stated he inventoried home sales from this primary area, and said the average sale price might decrease as much as ten percent. He also expressed concern about the negative impact of increased traffic, congestion, noise, lighting and perhaps crime . Ms . West called Glen Shuck, 104 Sylvan Drive. The witness stated he is concerned about the potential negative impact this will have in his neighborhood . He addressed the many issues of concern including excessive traffic, safety, noise, lighting, the late hours of operation and the overall quality of life and character of the City, and urged the Commission to rescind the site development permit for this project. Ms . West called Betsy Cosgrove . She stated she first presented her concerns about this project when you were a new Commission, and she has made several other presentations since that time. She stated this development project will have a negative impact on the surrounding neighborhood and urged the Commissioners to use their authority wisely and deny the permit. 8. Cross Examination of Eakin/Sneed/West witnesses . Mr. Hainline questioned Mr. Adeeb, about the number of indoor and outdoor seats, as well as how many parking spaces were used, and/or, required under the code . Mr. Flowers questioned Mr. Sutty about his testimony on property value assessments and traffic analysis . Mr. Flowers questioned Ms . Glas about her testimony regarding pyramid zoning and the land development regulations . 9. Rebuttal - Eakin, Sneed, West, City and Applicant. Mr. Eakin stated he has no rebuttal . Mr. Sneed stated he has no rebuttal, but was requesting to tender and file the errata sheet; and he would like to publish; Mr. Adeeb gave a reason for the change in his deposition testimony, dated 1 / 12/ 16 , that he counted the seats, and that is why he changed the number he had testified to . Ms. West called Ms . Glas and asked if the fact that the CL use is less intense than the CG use relevant to the review of this project. Ms . Glas stated no, the question is related to what the request is by the applicant and how that use should be defined under the CG provisions . Ms . West asked, in her opinion, if the City' s determination that the Gate permit was properly issued accurate. Ms . Glas stated no , she noted two things ; one, there is obviously current existing approval for that property that did not seem to be evaluated and there is still continuing use, the restaurant; and second, in terms of the permitted use discussion, there was no reference the ways in which the code provides for determining a use. Ms . West called Betsy Cosgrove and asked, as a longtime resident of Atlantic Beach, does she feel she would be adversely impacted by the permitting of this project, and why. The witness stated yes, for a number of reasons . She stated because of the proximity of where she currently resides ; she is concerned about the retention pond; concerned about the continuous lighting from the Gate station and the increase in traffic and crime . -8- Ms . West concluded by mentioning an important case she felt should be addressed; the Board of County Commissioners of Brevard vs . Snyder, which addresses the burden of proof She stated it is the landowner who has to demonstrate that the proposed use of property is consistent with the comprehensive plan; and just because it is consistent does not mean they are presumptively entitled to that full use. They must provide competent, substantial evidence to support this permit. She stated that has not been done . She stated the overwhelming evidence presented here today is the City' s determination of consistency was based on improper provisions of the code . Mr. Flowers called Mr. Lindorff, stating in earlier testimony, Mr. Eakin was unable to locate anything in Mr. Lindorff' s report referencing subsection (c), page 3 , which was intended to cite the mixed use provision within that, and asked why he was unable to find it. The witness apologized, stating it was a typographical error. He stated he cited subparagraph 11 and it should have been subparagraph 17, which does address the provisions for allowing mixed use developments in a CG zone . Mr. Sneed objected, stating in rebuttal, council is supposed to be addressing issues that were raise during our rebuttal ; it is a procedural due process objection. Ms . Durden stated no, this is allowed during rebuttal and we should continue to move forward. Mr. Flowers called Mr. Hubsch stating in the testimony from Ms . Glas, one of her concerns was that the existing use on the property, Beach Diner, was not considered in his review. Mr. Flowers asked Mr. Hubsch if it was considered, and the witness stated it was considered. He also stated, in our Code, Section 24- 85 (c)(3 ) states that a non-conforming structure may be maintained, so in our review we deteiniined that Beach Diner could remain as is, under our non-conforming structure code . Mr. Hainline summarized testimony heard today regarding the zoning issue and whether or not it was properly done. Mr. Eakin objected, stating we are in the rebuttal portion of the proceeding and not closing. Ms. Durden stated part of the direct/rebuttal allows Mr. Hainline to speak. Mr. Hainline continued to comment on key points of the interpretations presented today, regarding the CG zoning district; the definition of a convenience store ; and the definition of a service station. Mr. Hainline called Mr. Chapman, our traffic engineer, and asked him to comment on traffic which may head back towards Sturdivant Avenue. The witness reiterated his earlier testimony regarding the traffic study that was done, as required by the FDOT, and reiterated the study results . 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. Bee Jay 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. Penny Kamish, 193 Beach Avenue, spoke in support of the Gate Company. -9- Bert Rast, 1220 Seminole Road, spoke in support of the Gate station. Diane Latta-Brandstaetter, 254 Oceanwalk Drive South, spoke in opposition of the Gate station. Dan Janson, 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. Harley Parkes, 1838 Seminole Road, spoke in support of the Gate station. Allen Hieb , 10 10th Street, spoke in support of the Gate station. Cord Butler, 2014 Duna Vista Court, spoke in support of the Gate station. Kerry Russell, 1915 North Sherry Drive, spoke in support of the Gate station. Marla Buchanan, 1771 Sea Oats Drive, spoke in support of the Gate station. Kelly Tuttle, 1860 Sea Oats Drive, spoke in opposition of the Gate station. Mike Carlin, 1700 Selva Marina Drive, spoke in support of the Gate station. Nicole Brose, 1824 Ocean Grove Drive, spoke in support of the Gate station. Del Galloway, 258 Pine Street, spoke in support of the Gate station. Gary Montour, 6312 Christopher Creek Road East Street, spoke in support of the Gate station. Nancy De Candis, 515 Sturdivant Street, spoke in opposition of the Gate station. Lorraine Smith, 112 Poinsettia Street, spoke in opposition of the Gate station. Cecil White, 109 Sylvan Drive, spoke in opposition of the Gate station. Marvin Gillman, 1331 1St Street North, Jacksonville Beach, spoke in opposition of the Gate station. Crispin Salvador, 4266 Seabreeze Drive, Jacksonville Beach, spoke in opposition of the Gate station. John Strub, 4557 Antler Hill Drive East, spoke in opposition of the Gate station. Mac Helmsworth, 148 El Dorado Way, Ponte Vedra Beach, spoke in opposition of the Gate station. Cason Adeeb, 12915 North Winged Elm Drive, Jacksonville, spoke in opposition of the Gate station. Kasey McClendon, 1062 Snug Harbor, spoke in opposition of the Gate station. Joe Adeeb , 4343 Ocean Course Drive South, spoke in opposition of the Gate station. -10- Bill McCullum, 541 Sherry Drive, spoke in opposition of the Gate station. Donna My1od, 184 Sylvan Drive, spoke in opposition of the Gate station. Katie Anderson, 366 Seminole Road, spoke in opposition of the Gate station. Richard Bell, 1952 Beachside Court, spoke in opposition of the Gate station. Susanne Barker, 1938 Beachside Court, spoke in opposition of the Gate station. Diana Townsend, 266 Poinsettia Street, spoke in opposition of the Gate station. Peyton Hopkins, Jacksonville Beach, spoke in opposition of the Gate station. Tom Foppiano , 377 4th Street, spoke in opposition of the Gate station. Rachel Brumsey, 1525 Summer Sands Drive, Neptune Beach, spoke in opposition of the Gate station. Helen Bradley, 94 Oceanside Drive, spoke in opposition of the Gate station. Jerry Redfield, 366 Seminole Road, spoke in opposition of the Gate station. Jeff Barker, 1938 Beachside Court, spoke in opposition of the Gate station. Ross Weeks, 380 8th Street, spoke in opposition of the Gate station. Ed Beach, 407 Seaspray, spoke in opposition of the Gate station. Claire Gertz, 28 17th Street, spoke in opposition of the Gate station. Michael Aston, 1523 Summer Sands Dr, Neptune Beach, spoke in opposition of the Gate station. Suzanne Shaughnessy, 168 Oceanwalk Drive South, spoke in opposition of the Gate station. Stan Jordan, 501 Atlantic Boulevard, spoke in opposition of the Gate station. Joshua Hancock, 13062 Birch Bark Court North, Jacksonville, spoke in opposition of the Gate station. Joni Hancock, 13062 Birch Bark Court North, Jacksonville, spoke in opposition of the Gate station. Curtis Long, 154 Beach Avenue, spoke in support of the Gate station. Chris Jorgensen, 92 West 3111 Street, spoke in support of the Gate station. Lynda Padrta, 1113 ft Street, Neptune Beach, spoke in opposition of the Gate station. Williams Brigman, 355 6th Street, spoke in opposition of the Gate station. - 11- Zimmerman Boulos, 1524 San Marco Boulevard, spoke in support of the Gate station. Maria Mark, 1148 Linkside Drive, spoke in support of the Gate station. Frank Fenno, 2159 Birch Bark Drive, spoke in opposition of the Gate station. Mayor Reeves asked Ms . Berry if there any other speakers wishing to speak. Ms . Berry stated we have 34 who submitted slips, but chose not to speak. He requested she read the names and addresses and whether they were for or against. She stated she had 14 speaker forms in opposition of the Gate station and read the names and addresses . Patrick Lundquist, 511 Selva Lakes Drive. Anne Roberts, 222 Poinsettia Street. Lucie de Sancy, 222 Poinsettia Street. Michael Roberts , 222 Poinsettia Street. Karen Garrett, 123 Pine Street. Spencer Diaz, no address provided. Jermaine Shavers, 13062 Birch Bark Court North. Jacob Hancock, 13062 Birch Bark Court North. Olya Shipun, 100 Great Harbor Way. Mary Orser, 376 9th Street. Gary Rhodes, 1551 Ocean Boulevard . Richard Moore, 376 9th Street. Ms . Berry stated she had 20 speaker forms in support of the Gate station and read the names and addresses . Louis Samson, no address provided. James Dudley Long, no address provided. Darleen Herbertson, no address provided. Triston Brauter, no address provided. Thomas Seller, no address provided. Justin Smith, no address provided. - 12- Stanley Brannen, no address provided. Richard Solomon, no address provided. Harry Rollie, no address provided. Alan Hollie, no address provided. Robert Dixon, no address provided. Robert Weinberg, no address provided. Matt Adkins, no address provided. John McDaniel, no address provided. Jason Brannen, no address provided. Vicki Brannen, no address provided. Heather Bolton, no address provided. Keith Bolton, no address provided. Rebecca Davisson, 915 Alhambra Drive North. Larry Wilson, 4065 Cordova Avenue. Mayor Reeves expressed thanks to the community for understanding and being very respectful . He thanked the Church for the use of their facility and Gladys for her help and support with the sound system. Break Mayor Reeves recessed the meeting at 9 : 26 p .m. He reconvened the meeting at 9 :41 p .m. 11 . Closing Statements : Eakin, Sneed, West, City and Applicant. Mayor Reeves explained each attorney has 3 minutes for closing statements and the order will be Mr. Eakin, Mr. Sneed, Ms West, Mr. Flowers and Mr. Hainline . Mr. Eakin deferred his three minutes to Mr. Sneed . Mayor Reeves requested the clock be set to six minutes for Mr. Sneed . Mr. Sneed requested that the Board "follow the Code" referring to City expert Mr. Lindorff who stated that the Code is in black and white English. He indicated that Gate knew what the code was and what parking issues were when they bought the property. He stated the issue is regarding competent, substantial evidence that supports granting this permit. The City and Gate never challenged the assertion that Gate was building a convenience store . The parking calculation for the restaurant was not - 13- done correctly. Mr. Adeeb should have been asked for seating if that was a material issue in dispute and the outside seating was ignored. Mr. Sneed is asking that the language of the Code be honored. He asks that the Permit be denied and the Code honored. The City Code does not allow them to build a convenience store with more than three gas pumps . They can build a convenience store with gas pumps but no more than three . That' s the grounds for denying the permit. Deny the pennit because they failed to properly calculate parking. They relied upon evidence of seating that was non-existent. Ms . West stated, "Let' s talk about due diligence . " January 2014 — Gate asked, "What can we do with this property?" The City responded "A convenience store with six fueling stations . " Gate didn' t like that response. In fact you heard here today John Peyton testify himself, he admitted that he never even bothered to do a Cost Benefit Analysis for six pumps . Ms . West continues, instead Gate lawyered up and pushed hard for a more creative interpretation of your Code . It worked. The City flip flopped. All the residents have a legal right to depend on a reasonable interpretation of the Zoning Code and it is the Commission' s responsibility to make sure that reasonable interpretation sticks . No one is saying that Gate can' t build a small gas station That ' s allowed . A convenience store with six fueling stations is permissible under your current Code. Rescind this permit. Mr. Flowers will only take two minutes and give one minute to Mr. Hainline . Mr. Flowers stated that he would first like to commend Jeremy Hubsch, your Planner, your Community Development Director for the outstanding job he does for you and that he did for you in this particular instance . A lot of folks have sat in the seats that you're seating in right now over the last 2-3 decades and they crafted zoning regulations, zoning designations for this particular piece of property and others in this community. They determined that this would be a commercial corridor. They determined that this zoning would be a CG category, a very, very intensive category that allows a whole variety of uses ; I ' ll try to briefly speak to this because a convenience store appears in the CL category but it somehow controls what you can do in CG. That just does not make sense. The whole scheme that we talked about is the allowances increase as you go to a more intense zoning category and the fact that the wording is different doesn't change the breadth of what is allowed in the CG category, which includes service station which has no limitation on pumps and also allows retail sales which is broader than convenience food store . I submit to you that the decision is correct. Mr. Hainline thanked the Mayor and members of the Commission, for their time and attention today . He stated, Let' s try to address the parking issue right off the bat. Mr. Adeeb stood here and said he has 94 seats in his restaurant. That' s what his business license says and that' s what he said in his changed deposition. He said 80 to 94 seats in his restaurant. Do the math. The parking requirement is 94 divided by 4, that' s 24 spaces . We offer a condition to provide him that Code required parking for his 94 seats, that' s what he says he has, of 24 spaces . We offer a Condition to provide that 24 spaces . We know we can do it on site . So, let' s get to the next issue . It' s the "AND" issue and the convenience store issue . Here ' s your CG code right here . "Permitted — Retail outlets for the sale of food and drugs . You know what they have in that store? It' s a retail outlet and they sell food and drugs . It' s right there . Right there is a permitted use. Now, on the second page, Automobile Service Station with minor automotive repair and, there ' s that word AND with accessory car wash. So, we ' ve said on many occasions if this Commission wants to interpret that provision in a way that their Staff is saying it doesn't need to be, but if this Commission wants to interpret that condition as requiring minor automotive repair and a car wash, we ' ll do that but none of the neighbors want that. It doesn' t make any sense . It ' s an absurd result. And do you know what else your Code provisions says that uses the word AND ? Retail sale of office equipment AND furniture . If you sell only office equipment does that make you violate the Code? Retail sale of home furnishings AND appliances . If you' re going to sale chairs and tables, do you have to sell washers, too? Cabinet shops, woodworking shops AND surfboard production. So if you have a cabinet shop you have to produce some surfboards, too . Mr. Hubsch -14- already said the example of retail sale of beer and wine. AND is used a lot and it does not mean that you have to do all those things given as Mr. Lindorff and Mr. Hubsch described that AND lists the things that you can do, you 're permitted to do . You don' t have to do all of those things . The absurd result that is suggested by the contrary interpretation is that Gate has to do the more intensive things which nobody wants it to do . So, I hope that deals with the AND issue . As Mr. Flowers just said this site has been zoned since the 50 ' s for intense commercial uses including service station. Blocking this service station is effectively changing the current zoning on the site and the historic zoning of the site . It' s changing those rules in the middle of the game . We ask you to support your staff, follow your Code, Retail Outlets for Sale of Food and Drugs. Follow it. Support your Staff Follow your Code. We offer the condition to the parking which gives them the parking they need for the seats they said they have . 12. Commission Questions/Deliberations and Vote. Mayor Reeves explained they will move on to Commission Discussion and will follow the same procedures without any changes just like we do at any other meeting, up to 5 minutes each for a discussion and comments . He stated, You may ask the parties question and their response does not count against your 5 minutes and you do have a second round of 5 minutes for closure or rebuttal . The Commission had a lengthy discussion about how much time they would take for the discussion. The consensus was to start off with 5 and 5 and then if they believe they needed additional time, they ' 11 do that. Commissioner Harding yielded his 5 minutes . Commissioner Hill stated, Procedurally, I don ' t necessarily need to call a witness back to the stand . The CL vs . the CG was the focal point for me . I think this Board probably needs to take a really bold move after listening to all this testimony by recommending a compromise position and then be able to fight that position out. I'm going to listen and in my second 5 minutes I ' m prepared to make a compromise position. I do think that we have ironically an opportunity here . I think it' s an opportunity to do something that might accidentally make almost every party in the room feel better about the process . I ' m going to yield the rest of my time and we ' ll talk about that opportunity soon. Commissioner Stinson stated, First I' d like to ask a couple of questions of Mr. Hainline. Mr. Hainline, thank you for your time today and I just have a couple of real quick questions . The first one deals with the definition of AND as it' s written in Code. Could you please elaborate a bit on why you don't think AND applies in this instance. Mr. Hainline answered, In the Service Station part of the CG Zoning District, the only time AND is used is in conjunction with the Car Wash, so AND Car Wash; and a Car Wash is an intensification of selling petroleum products . It' s an additional thing, and intensification. As both Mr. Hubsch and Mr. Lindorff, the experts you hired said, that list of things is a list of uses that can be done but the AND does not mean that it has to be a Service Station accompanied by a Car Wash. There are terms or instances in which AND does mean that you have to do both things . But in a Code that is permissive in nature, that it is listing what the permitted uses are, not to require both the Service Station AND a Car Wash. If Gate has to do that, then they' ll figure out some way to put a Car Wash in there. I don' t think that is the result that anyone wants . Commissioner Stinson stated I just read Section 24- 16(f) that confirms what you said about AND . My next question is regarding what "services", not products, are they going to provide to the customers at the Gate Station. - 15- Mr. Hainline stated, That is a page long answer and was provided to your staff in response to a question they asked . I could read that entire page but I don' t believe that is what you want me to do . The services provided are not just sales of items but also assisting customers with filling tires, with pumping gas, with oil changes, with things that happen at a Service Station. There ' s no definition in your Code that describes what that service is . Mr. Kennard, the Gate Store Manager who spoke to you and lives in Atlantic Beach, provided some answers to that. Service Station is the most intense use . It doesn' t have to be service bays although we ' ve said at Commission meetings if this Commission interprets it to require a service bay, we ' ll put a service bay in. I think that is not a result people will be happy with. We provide Service . There ' s no definition in the Code what that Service has to be . We said what we do at Gate fits into that definition. Commission Stinson stated, I would like to ask Mr. Sneed two questions . Commissioner Stinson thanked Mr. Sneed for his time and effort put into tonight and all day. Commissioner Stinson stated, I ' ve heard a term used in 3 different ways . I ' ve heard fuel pumps, filling stations, and our Code says fueling positions . How do you define fueling positions? Mr. Sneed stated his interpretation of that language was your typical two-sided gas pump — so if they had 3 fueling positions they could have 6 pumps . Commissioner Stinson asked, how many parking spaces did the Beach Diner lose due to the expansion in 1997? Mr. Sneed answered, They lost none . Mr. Adeeb testified to this . They expanded over a drive-thru lane that was at the former "Dip `N Sip" so they in fact added spaces at that point because the drive-thru lane is gone and they had no conflict with parking cars straight up against the side of the building. They added 7 spaces . Commissioner Stinson asked, To your knowledge, has Beach Diner ever been segregated, separated or delineated with concrete barriers or concrete parking stops from the shopping center? Mr. Sneed answered, . Never. Commissioner Stinson asked Mr. Hubsch whether the Beach Diner is a conforming structure, business or operation according to the Codes of Atlantic Beach? Mr. Hubsch answered, It is a non-conforming structure as far as building setbacks . It does not meet our front and rear setbacks, I believe . Commissioner Stinson stated, So perhaps my eyes are getting tired, but I thought I read in our Codes that if there was a reconstruction on a site that every attempt would be made to bring a non-conforming structure into compliance . Is that correct? Mr. Hubsch answered, The Code states that a non-conforming structure can continue as is . Section 24- 85 . Based on that, we ' ve stated that they are allowed to maintain as is . The only Code provision that would likely apply to what I believe you' re speaking to is our Landscape Code. It says when improvements on a site are more than 25 % of the value, the applicant has to bring the site up to meet Landscape Codes standards, which we have done in this case . - 16- Commissioner Stinson stated, So then I ' m incorrect in interpreting the Codes that if the Beach Diner is part of the parcel that Gate Petroleum wants to develop for their service station they are not required to bring the other part of the area in compliance . Is that correct? Mr. Hubsch answered, That ' s correct, sir. Commissioner Waters stated, In considering all of the significant public testimony and comments that we ' ve heard it strikes me, like Commissioner Hill mentioned, the possibility to reconcile many of the concerns brought forth by our citizens as well as the desires of Gate as a business . I think that, as elected officials, one of our most important jobs is to balance both sides of any issue we face and make our best educated decision in the interest of our citizens . I' d like to ask Jeremy Hubsch to come back up . Please speak to the evolution of language in our Code over time . Service Station seems to be one that we are struggling with. I concur with Commissioner Stinson that Service Station is what I think of as full service but even in 1986 we were beginning to see language both for convenience store, but also the operation of a gasoline service station. No mention of bays or service . Can you speak a little bit as to how that' s changed over time . Mr. Hubsch answered, Sure . The term Automobile Service Station has been in the Code for a significant amount of time . Now we may perceive that to be similar to "not a true service station where service occurs" like Commissioner Stinson said. From what I ' ve seen historically the Code has stated that a Service Station was synonymous with a Gas Station. In the 1982 Zoning Code if you look at the definition of Filling Station, which I think we can all gather, is the same as a Gas Station, it says Filling Station, See Automobile Service Station. It says it is synonymous with a Gas Station. In the 1982 Code it actually says Auto Service Station but not Repair, Car Wash. It wasn' t really a Service Station or repair where services were occurring. It was really a Gas Station. In 1985 , the Commercial General Zoning District was the second most intensive zoning district in the City. Also in 1985 , the city removed it ' s most intensive zoning district which was Commercial intensive which allowed heavy Automotive Repair. The City then shifted heavy Automotive Repair into our Light Industrial Area which you know is between Levy and Dutton Island Road. It then allowed minor Automotive Repair to occur in the CG district under the term of Automobile Service Station. The City has essentially over time made the Automobile Service Station definition more intensive. Previously you didn't have to do servicing but it says now you can do servicing. If you look through the history of the Code, it' s always been about attempting to limit repairs . As Mr. Hainline has stated, Automotive Repairs can have noise, a lot of negative impact on neighborhoods so the intent has always been to limit repairs . Commissioner Waters asked Ms . West, I ' d actually like you to answer a very similar question. We once knew only full service gas stations . We aren' t necessarily New Jersey where that' s all that was allowed but can you speak to the fact that common perception of gas stations may or may not have changed over time . Ms . West answered, .Absolutely . I don't know if you would need an attorney to speak to this or not, but I think common sense would dictate that in the 1950 ' s a service station serving fuel was basically a one or two pump station where an attendant would come out and gas up your car. Obviously, times have changed and we are much more auto-dependent now. You are now seeing mega-stations that the previous planner alluded to that you are trying to prevent in going adjacent to neighborhood communities because of the negative impact they have . I think it has changed over time . Commissioner Waters stated, I have one last question I think I can squeeze in. We ' ve been asked to consider our Comprehensive Plan as our guiding principle in our deliberations tonight, looking at it the way we would look at the Constitution of this Country. Just as our laws enforce the Constitution, our Zoning implements the Comprehensive Plan. We ' ve heard from one side that these particular Zoning - 17- regulations do not enforce our Comprehensive Plan. Jeremy Hubsch, would you please speak to how our Comprehensive Plan reconciles our residential character with the fact that we are bordered by two commercial corridors . I ' m going to say I have a prejudice here . I graduated from the University of Virginia and Thomas Jefferson had very strong feelings on the subject. He thought the purpose of the Constitution would be entirely defeated if interpreting it as a legal document we failed to adhere to the law as it was written. Adherence to this is something that I think is really important both to our citizens and to us as we deliberate but it seems that we have heard testimony from all our specialists that they do reconcile with one another. Mr. Hubsch answered, yes . As I stated earlier in my presentation today, goals and objectives and policies in a Comprehensive Plan are put into action in your Land Development Regulations . They' re put into action on the City' s Zoning Map or in the City' s permitted uses . For instance, one of the great qualities of Atlantic Beach is that there are no Commercial uses in the internal residential area of the City. That' s because all those areas are zoned residential . If someone were to try to rezone those properties to Commercial, they would be an intrusion into residential Atlantic Beach. This is property that has been zoned Commercial since at least 1979, but we believe back to the 1950 ' s . Commissioner Waters asked, Can you speak to how our Zoning Requirements use buffers and other things to reconcile? Mr. Hubsch answered, sure . The Zoning Code does address quite a few of the things that have been stated in the Comprehensive Plan. There are buffer standards . There is a separate Service Station supplemental regulation that really contemplates all the negative impacts that a Service Station could have on residential . It has location of pumps where they have access requirements, lighting requirements . This is where the City has contemplated some of those negative impacts that are stated in the Comprehensive Plan. Mayor Reeves stated, I have a question for Mr. Sneed or Mr. Abeeb regarding parking. Mr. Adeeb, we talked about the 94 seats and we talked about the 24 parking spaces . The parking situation is kind of a strange situation because we can only do so much when it comes to that. For you to operate what is the number of parking spaces you feel you need? Mr. Adeeb answered, Mayor, I can answer that very quickly. You give me 50 spaces and we ' re out of here . We ' re going to say thank you, it was great working with you and that' s what I would have gotten in 1997 . Mayor Reeves stated, I understand the rule in 1997 but fortunately the City changed that. There are some small businesses that could not open today if we still had that 1 for 2 . If something could happen, you would not accept anything less than 50? Mr. Adeeb answered, We work towards peak demand. You all know when my peak demand is . Everybody does — it' s weekends . You all come by the Diner everyday on the weekends on a regular basis, most everyone of you. I use 65 to 80 parking spaces and that' s what we work toward. Mayor Reeves stated, Alright. I just wanted to clear that. Thank you very much. Mayor Reeves asked, Mr. Peyton, would you mind coming up . I just want to ask you a question. In your Plan you asked for 7 stations, depending on how you want to word it. 7 sounds better than 14 . Could you explain to me, why 7? - 18- Mr. Peyton answered, The roads are busy, usually in the morning, morning commute, and also evening commute . Our ability to allow the station to perform is dependent on our ability to have availability of pumps . If we can access customers easily in and out, we are able to perform the returns necessary to invest the money in this real estate, these lawyers, and the construction of this facility. Mayor Reeves asked, If we were able to work out something or ask you to go to 6 and if you had known that before when you did your plan, would you have asked for 24 so then you could negotiate? Mr. Peyton answered, Well, I think the site is really dictating what we can fit on it. There ' s not room to put more than that. We have circulation around this facility now with the number of pumps that we ' re building. We think we can meet peak demand. I think, aesthetically it' s not going to look any different really from 6 to 7, in my opinion. Mayor Reeves stated, Okay. Thank you very much. Mayor Reeves asked, Mr. Hubsch. We talked about the Kangaroo on Mayport Road which we know was built before 2000 . Things have changed and Codes have changed. The Kangaroo has 7 stations . Is that correct? Mr. Hubsch answered, Kangaroo has 8 and 16 . Mayor Reeves asked, So the Kangaroo has 8 — 16 . How did you deteimine that you were comfortable knowing that everyone wants to confuse the CL and CG, with Kangaroo having 8 ? Mr. Hubsch answered, Prior to the 2002 addition of the 6 pump restriction into the Commercial Limited Zoning District, it still said all convenience stores with gasoline required use by exception. That goes back to 1982 . We know that between 1982 and that Kangaroo 4 gas stations were permitted without getting use by exception in the Commercial General Zoning District. Kangaroo being one of them. Those gas stations came under the Service Station definition, CG. Mayor Reeves asked, If you could answer quickly, between the two locations if the other one has 8 and the new location wants 7 , is the new location larger, smaller or the same size as Kangaroo? Mr. Hubsch answered, The number of pumps is smaller. Property size, I have not done the calculations but they' re fairly similar. They' re both wide lots so it' s a similar set up . I believe they' re fairly similar in size . Mayor Reeves stated, Okay, thank you. Mayor Reeves asked Ms . West, What is your definition of a mega station? Ms . West answered, I don't think that is defined in your Code, but service station is . I don't think there should be any confusion. Mayor Reeves asked again, what is YOUR definition of a mega station? You used those terms several times . Ms . West answered, Sure . I 'm depending on your previous planner' s testimony about a mega station and I would refer to that as anything over 6 . So, for 3 stations, 6 pumps . Anything over that I would consider a mega station. Mayor Reeves stated, Okay, thank you. I have no fluffier questions . We ' ll start back over. Mr. Harding. - 19- Mr. Harding stated, It just so happens that my first job in Atlantic Beach was a gas pumper at Willie ' s Texaco at Royal Palm and Atlantic . I used to clean windows and check oil . I know what a service station back then meant. Over the course of time, that has evolved. We got away from the full service gas stations, filling stations, service stations, whatever you want to call them. Now, I ' m hearing an argument about what a service station is, what services have to be provided to be in accordance with the Code . The first thing I ' d like to ask Mr. Hubsch. We ' ve heard made reference numerous times tonight to the CL Zone Requirement pertaining to a Convenience Store with gas, 6 pumps maximum. Is that restriction applicable in the CG Zoning Requirements? Mr. Hubsch answered, My interpretation, as well as that of Mr. Lindorff, is that it does not apply. The CG Zoning District is a more intensive zoning district. It allows Automobile Service Stations which allow the sale of retail gasoline with no pump restrictions and we believe the 6 pump restriction in the lesser intensive zoning district goes away based on the Automobile Service Station definition. Additionally, the CG Code allows a mix of uses . We know you can do Retail Sales . The only restriction the City has on maximum site of retail sales is 60,000 feet. That is to eliminate the big box retailers . Hypothetically, somebody could have a 59,000 square foot retail sales operation that could be a grocery store, could be convenience store and we know that they can do a service station. They can blend those two uses based on the way that the CG Zoning Code is written . Mr. Harding asked Mr. Adeeb, By your own business license its says you have 94 seats . By current code which only allots 24 spaces, that won' t come close to accommodating your needs on your high traffic volume days . How are you going to accommodate the additional parking that' s necessary for the days that you are at full capacity? Mr. Adeeb answered, It ' s a sacrifice for me to tell you to apply the 1997 Code today because that only gives me 50 parking spaces . I ' m telling you, I ' m willing to do that for the compromise. Commissioner Hill stated, I' m going to make a proposal . I propose that we adopt the application with concessions . I ' m going to list those concessions . Let' s talk about parking for a second. We have to address parking for the safety environment of our citizens . I propose that one of the conditions to approve the parking is that applicant provide 30 parking spots on site for their tenant. The other condition is that the 2 curb cuts on the north side of the property be entrance only. That will solve 99 . 9% of the impact on the immediate neighbors . The City should take a very strong stance on line of site issues, curb side on any project going forward. Commissioner Stinson stated, Thank you, Mayor. I appreciate Commissioner Hill ' s presentation of a compromise . I would just like to speak to some of the things I was questioning. I keep coming back to this AND term and the definition in our Land Development Regulations . I read in Section 24- 111 (b)(9) Automotive Service Station with minor Automotive Repairs . I ' m trying to figure out what kind of repair there is . If I go to Beach Diner and have breakfast, they sell me a product, but it' s the service that keeps me coming back. I have a very unique viewpoint on fueling positions so Webster tells me that a position is an area or a site . My personal opinion is that it doesn' t really matter how many hoses are sticking out of that box. That ' s one fueling position whether the car is on the right side or the left side . The parking issue is very complicated for me . There ' s nothing that says that Beach Diner gets 90 parking spaces and there ' s nothing that says they don't get 90 spaces . Everyone is going to have to give, including the City of Atlantic Beach. I don't have any questions, thank you Mayor. Commissioner Waters stated, I ' m going to quote Thomas Jefferson again because he said something I think truly profound . "Common sense is the foundation of all authorities of the laws themselves and other construction. " I think we have two commissioners who demonstrated a lot of common sense and I -20- think it is something that should guide everything we do tonight. I have a couple of questions . I ' m going to start with the elephant in the room when it comes to common sense . Ms . West, in your opinion to you think it makes common sense for us to require Gate to put in a Car Wash or service bay to be in compliance with the letter of the law and be a Service Station as permitted. Does it make common sense? Ms . West replied, No . Commissioner Waters inquired of Ms . West, Mr. Sneed and Mr. Eakin if it was common sense for Gate to put in car washes or service station bays . Ms . Waters recalled the testimony indicating the negative aspects of the Gas Station, as well as the "suggested" 10% decrease in property values that could be expected. Ms . West was asked if she thought the dilapidated shopping center presented a negative property to the adjacent property. Ms . West suggested that the shopping center in its present state negatively impacted the adjacent property; the Gas Station would do more harm to the diminished property values due to impacting the adjacent property as well as the neighborhood. Ms . Waters questioned Mr. Hainline on the environmental impact studies in regard to fumes and storm water system. Mr. Hainline referred the questions to his experts . First, Mr. Brad Davis Prosser, Planners and Engineers for Gate spoke on the Stormwater issue and discussed water that may or may not have been exposed to gasoline . He indicated when questioned that Gate handles this issues in a manner "above and beyond Atlantic Beach' s current laws" . Secondly, Mr. Ken Czoer, the environmental expert spoke with respect to the vapors from fueling operations . Gate and service stations, in general, comply with all the requirements of the current law, and is 98% efficient in removing those vapors from the environment. Ms . Waters was concerned about the effect on the City in regard to "business friendly. " She asked Mr. Hainline to address that issue, particularly in the regard to the 7- 11 store in St. Augustine issue that has previously been discussed. Mr. Hainline mentioned statements both positive and negative, to the City of St. Augustine in this regard . He discussed the zoning permitting particular to St. Augustine . He is not aware of any particular repercussions on the business or real estate side as it relates to St. Augustine with the exception of the concerns of taxpayers . Mr. Harding agreed with Mr. Hill that we should come to a resolution in this matter. Mr. Harding asked Mr. Hubsch to discuss the six fueling stations in regard to the CL in the Code . Mr. Hubsch discussed that the Gate property was zoned CG which allows the Automobile Service Stations with no bays and no pump restrictions . Commissioner Hill discussed his feelings of assisting all three groups to a suitable compromise in accordance with our Code . Therefore, he lists four conditions that may help resolve this issue . 30 parking spaces for the tenant. The big one is ingress only and no egress to the North. He stated this is a bold step but we are attempting to move this forward while staying within our Code. Mr. Stinson asked Mr. Hubsch how he arrived at his decision regarding the parking the Diner was allowed versus what the site plan proposes today. He stated the minimum City requirement is 1 space for every 4 seats . It was agreed that the Beach Diner has 94 seats and spaces will be provided for that number. The City does not see any way that it can require any additional parking above the minimum standards we require of any restaurant. Mr. Adeeb replied he did not have any documentation. Mr. Stinson and Mr. Adeeb then discussed whether or not the Diner was an outparcel. While Mr. Adeeb did not consider it one, he cited several examples indicating a lack of consistency in regard to outparcels . Commissioner Waters had a brief discussion with Mr. Adeeb regarding parking. Commissioner Waters also asked Mr. Hubsch if we had an existing interpretation under our Code that a fueling position consists of 2 pumps, which he confirmed . -21- Mayor Reeves asked Mr. Hubsch and Mr. Adeeb several questions about parking. A brief recess was taken at 11 : 23 p .m. The Mayor called the meeting back to order at 11 : 46 p .m. Mr. Stinson brought to the attention of the Commission that several residents approached him during the break and requested the opportunity to make a final comment. Ms . Waters added that the residents were witnesses in one of the primary testimonies, not just citizens asking to make comments . Mr. Hill would only say that as much as I am a fan of citizen input, that part of the process is over and we cannot open that up and finish these proceedings . Mr. Harding believes we should stick with the established schedule . The Mayor agrees to that as well, noting that they could have gone to their attorneys during the break time . It is the consensus of the Board that they will not hear comments from the floor as that phase is over. The residents were thanked for their concern and interest. Mayor Reeves thought it was a possibility for the City to provide on-street parking along the Sylvan- Sturdivant corridor and Mr. Hubsch agreed it could be reviewed. The Mayor stated we should move forward to a motion and if that motion receives a second. We can proceed from there. Motion : Find that the Director did not commit an error because the site plan meets applicable City regulations and further to accept the following modifications to the site plan if agreed by the applicant. The specific modifications are 1) all northbound curb cuts be entrance only for this project, 2) that the applicant provide a minimum of 30 spots for the tenant onsite and they' re dedicated spots, 3) the enhanced landscaping scheme with attention to line of sight, 4) the applicant provide architectural renderings and to authorize the Mayor to execute a written order in accordance with this motion. Moved by Hill, Seconded by Waters Amended motion : Add 5) move the vacuum station forward of the building. Moved by Hill, Seconded by Waters City Attorney stated, in the motion, it included authorization for the mayor to execute a written order, and I ' d like to read that order into the record since we don 't have a hard copy of it. She explained she will read it into the record and then it will be made part of the motion . She read it as follows : It' s an order confirming approval of Site Development Plan 15CVPR-2411 with modifications. This matter came to be heard upon the following appeals of the Community Development Director' s approval of preliminary Site Plan 15-CVPR-2411 for Gate Petroleum, Inc. , filed pursuant to Section 24-49 of the City of Atlantic Beach ' s Land Development Code. -22- 1) Paul Eakin, Esquire, on behalf of himself, dated February 16, 2016, as supplemented by letter dated April 15 , 2016. 2) Jeffrey Sneed, Esquire, on behalf of Barry Adeeb and Beach Diner, LLC, dated February 16, 2016, as supplemented by letter dated April 12, 2016. 3) Jane West, on behalf of Atlantic Beach Cares, LLC, and Glenn Shuck, by letter dated March 4, 2016. Having duly considered the record documents transmitted by the Community Development Director to this Commission, as well as both testimonial and documentary evidence presented at the public hearing on May 12, 2016, City Commission of the City of Atlantic Beach hereby finds and determines A) That competent substantial evidence demonstrates that the site development plan for the Gate Petroleum project at 501 , 535 and 541 Atlantic Boulevard, 15CVPR-2411 , meets the applicable City regulations for site plan approval for an automotive service station in the CG zoning district, and B) That no error was made by the Community Development Director in the approval of the Site Development Plan 15CVPR-2411 . Now, therefore, it is ordered by the City Commission, 1 ) The approval of the Site Development Plan 15CVPR-2411 is hereby confirmed as described in the City' s approval dated February 9 , 2016, and 2) The following modifications to the site plan as proposed as agreed to by Gate Petroleum Inc. , shall be incorporated into and made a part of the site development plan. She paraphrased the five conditions as follows : The 30 dedicated spaces ; the entrance only on Sturdivant Avenue, the enhanced landscaping plan dated February 22 , 2016 ; the architectural renderings and elevations dated February 17, 2016 ; and the relocation of the vacuum forward of the building towards Atlantic Boulevard. Executed this (blank) day of May 2016 by the City Commission of the City of Atlantic Beach. Mayor Reeves opened the floor for discussion. Commissioner Harding stated he is in agreement with Commissioner Hill in regards to the recommended modifications and also agrees that there were no errors on the part of our City staff in approving the site plan. Commissioner Hill stated nothing in any of my motions was intended to give any direction to either the applicant or the City to look for parking on the north side of the property, on the residential side of this project. It ' s probably late for that mention, but it ' s really just a house cleaning thing. The idea is not to shift the burden to the residential side of the property, but to keep it on the north-south running streets and not the east-west running streets, for obvious reasons, on Atlantic Boulevard and Sturdivant. Commissioner Stinson asked for clarification on number 1 stating that Commissioner Hill said northbound curb cuts were for ingress only, but the City Attorney said that curb cuts on Sturdivant were for ingress only. Commissioner Waters stated she believes this is a good common sense approach to trying to resolve the dilemma that we face as elected officials, to both apply our code fairly and uphold the will of our citizens . -23- Mayor Reeves stated he is supportive of the motion and that we need to vote based on the record and the facts . He encouraged all the commissioners to vote on the facts and not emotions stating facts will never get you in trouble; emotions will . Mayor Reeves stated at this point in this hearing, we need the applicant to agree to the changes . He called the applicant forward. Attorney Hainline stated they certainly agree to the renderings, agree to the landscape, agree to moving the vacuum upfront, agree to the curb cuts on Sturdivant on the north side of the site would be ingress only; they' d be signed as entrance only; however, as to the parking, 24 spaces onsite is the most we can do which matches his seating of 94 seats . He further stated he would have no objection to the City designating 7 spaces on Sylvan and/or Atlantic Boulevard as designated for Beach Diner only, which would be 31 , but we cannot agree to more than 24 onsite because to do that, we would need to vault the pond which our engineer has told us would be somewhere between $300, 000 to $ 500 , 000 . He explained that would mean we would be paying up to a half million dollars to provide more than Code parking to Beach Diner. He stated we are happy to do Code and to do our part to make that possible with 24 spaces, but we can' t vault the pond at a cost of $ 300,000 to $ 500,000 simply to provide more than Code parking for the tenant. He reiterated that they are willing to provide the Code required 24 spaces onsite and we have no objection to the City designating 7 spaces total on Sylvan and/or Atlantic Boulevard for Beach Diner only. He stated he believes there are other possible on-street parking on Sturdivant, but we heard the Commission say you don ' t want any on-street parking on Sturdivant, so we didn't include that. Mayor Reeves opened the floor to Commission discussion. Commissioner Waters stated we have many applicants now; parking is becoming an ever increasing problem in the City that utilize offsite parking for employees and potentially for patrons . Commissioner Hill stated the idea of vaulting the retention was not part of what he looked at and counted and thinks that the applicant could provide 30 spaces without vaulting the stormwater. He explained the criteria he looked at was the potential to maximize profit on the property and the other piece of it was also the potential for the tenant to not create a problem that we have to address in other ways . Mayor Reeves explained that we agreed that the applicant had to agree to those changes here so he asked the City Attorney if the only choice is to withdraw the motion. Ms . Durden stated there are two choices ; you can either withdraw the motion altogether or you could modify the motion for the 24 spaces because the site plan just has the 19 ; even the 24 is a modification. Commissioner Hill asked the applicant for his solution. Mr. Hainline explained they could provide the 30 spaces if there was relief from the terminal tree islands at four locations around the store and relaxation from the 70% maximum impervious surface requirements in order to get the 30 spaces on the site . Commissioner Hill asked if they ' d be willing to provide percolation space through pavers that are rated. Mr. Davis stated, yes ; we are already taking advantage of porous concrete and will continue to do it to help reduce that impervious surface calculation. , but even with that, they would still need relief. -24- Mr. Hubsch explained that the Code says that we cannot grant zoning variances for an increase in impervious surface and the Community Development Board is the body that grants zoning variances . He offered one way that it could be done by providing pervious pavers somewhere on the site to offset the gains in impervious surface there . Mr. Davis stated yes ; that is a great idea; we are doing that currently and any new parking we added we would continue to do that, but I still don' t think we will get there; we are very tight right now. Commissioner Stinson asked Mr. Hubsch for confirmation that there is currently no onsite retention in place; Mr. Hubsch agreed. Commissioner Stinson asked Mr. Davis if it is possible to, rather than build a retention pond, put some kind of pervious surface there that allows the Beach Diner patrons to use that for parking which would not affect the site because there is no retention onsite today. Mr. Davis answered, I can ' t get around the Water Management District criteria; we are changing the site entirely going from this dilapidated strip center to a new use. Therefore, I have to provide new treatment and have to have onsite stormwater management facility of some sort. Commissioner Hill stated, we just shared percolation surface and retention surface recently offsite in a dog park. The City right of way would make a perfect buffer with a swale and you could do your calculations on a swale; keep everything else the way you were just talking about; keep this as simple as possible. Utilize the north side of the property as a massive swale ; use that as your buffer; do some landscaping on your side of that and let the City potentially share some of your percolation needs in a swale area. Mr. Davis asked, do you mean in lieu of water management facility or in addition to? Commissioner Hill responded, in addition to, to get to those numbers . Mr. Davis stated, that would be fine, except he would still trip the impervious surface ratio to get the new parking. Mr. Hubsch stated, he believes he has figured out a solution which is requesting a waiver from our impervious standards and offered that as an option. Commissioner Waters stated, she wanted to explore the idea of some additional bike parking and trying to encourage people to use bikes more and to walk more and encourage traffic to Beach Diner that way. Can we look at cost sharing for daytime use of offsite parking; the empty lot that' s being utilized by Town Center is literally one block over; it seems like we have potential parking there . Ms . Durden stated, in response to Jeremy' s suggestion, I do think that the City Commission has the authority to waive the 70%, but rather than just have a blanket waiver, have up to a specific percentage, instead of 70% . Discussion ensued about what percentage should be considered. Mr. Davis asked that they consider 76% . Commissioner Waters expressed environmental concerns and about remedies. Mr. Hainline suggested the following three things in addition to what has already been discussed. They are willing to agree that 1 ) dumpster service would be limited to between 7 a.m. and 9 p .m. , 2) that outdoor speakers would be prohibited except as otherwise required by the fire code or other applicable safety regulations, and 3 ) the HVAC equipment for the service station and retail store shall be kept behind opaque enclosures composed of the same material and painted the same color as the structures on the property such that the HVAC is screened from view from Sturdivant. Ms . West expressed her disappointment that her clients concerns have not been addressed and asked the Commission to consider making changes to the hours of operation. Commissioner Harding responded to Ms . West' s concerns and explained the modifications addressing her clients ' complaints . -25- Mayor Reeves stated Commissioner Hill, after we listened here and going through back and forth, I'm not sure that we can take action on your motion without the parties agreeing to the changes . He explained that Commissioner Hill could either modify or withdraw his motion and then whoever seconded it would have to agree also . Commissioner Hill stated he would like to modify the motion, if possible, that the City make a waiver to 76 percent of percolation surface as a condition of this . Now, here's going to be a process required to do that. It's not going to happen right now, but we have to agree to do that also , and there was a bunch of other stuff we'll talk about. Ms . Durden offered to list out the other conditions and Commissioner Hill agreed explaining there were three additional things, but he didn't write them down. City Attorney burden stated the one that he mentioned was to amend to add Condition #6, which would be to waive the 70 percent impervious surface up to did you say up to 76? Commissioner Hill stated he wants 78 , so modify that to 78 percent. Ms . Durden stated up to 78 percent would be #6 . Ms . Durden asked the applicant if the terminal tree islands from the four locations are still a part of that and Mr. Davis gave confirmation. She stated #7 is to waive the terminal tree islands from four locations, as shown on the site plan. #8 would be to limit the dumpster service from 7 a.m. to 9 p.m. only. #9 would be no outdoor speakers, except as required by law. #10 would be that all HVAC equipment would be screened and located behind an opaque screen so as to avoid view from Sturdivant, and that that screen would be the same materials as the principal structure. Commissioner Hill indicated that was his motion as read, almost. Attorney Flowers stated you simply need to reflect the fact that the waivers are subject to a later process; they have to be granted through a process . Commissioner Hill agreed stating he thought he did that with the first part of it. Ms . Durden added that they have to be subject to a later process . Commissioner Hill confirmed that is his motion as read. Mr. Hainline confirmed that he was in agreement with the motion, but asked that it be clear that these are City-initiated waivers as opposed to us filing an application. Commissioner Hill agreed to that modification of his motion. Motioned by Hill, Seconded by Waters Mayor Reeves stated there being no further discussion and called for a roll call vote . -26- 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 12 : 37 a.m. ATTEST Mitchell E . Reeves Mayor/Presiding Officer Donna L . Bartle, CMC City Clerk -27-