25 Dudley Street UBEX-12-00100008 Memo Attorney 02.24.2012 rH�:\,yr.i„ City of Atlantic Beach
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(J0. 800 Seminole Road
} Atlantic Beach,Florida 32233
,, ;s' P: (904)247-5800
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1.2.0.219 www.coab.us
MEMORANDUM
TO: Alan Jensen
City Attorney
FROM: Erika Hall
Principal Planner
DATE: February 24, 2012
SUBJECT: Request for legal opinion regarding status of grandfathered nonconforming
use that has lapse of three (3)years in local business tax.
In reviewing Mr. Chaney's request for a use-by-exception to "continue" a nonconforming use of
heavy automotive repair within the Commercial General (CG) zoning district at 25 Dudley
Street, I find the following:
The previous uses of both the subject property (25 Dudley Street) and Mr. Chaney's adjacent
property to the north (44 Dutton Island Road West) were both legally established uses when, on
December 11, 2006, Ordinance Number 90-06-197 was adopted in part, to prohibit "heavy
automotive repair" within the CG zoning district. Thus, these uses became nonconforming, and
subject to the provisions of Section 24-85 of the Land Development Regulations regarding the
treatment of nonconforming uses.
Mr. Chaney has submitted copies of documents issued by various county and state agencies to
his business establishment addressed at 25 Dudley Street, but review of the Atlantic Beach Local
Business Tax records maintained by the City Clerk indicate that there has not been an active tax
receipt issued for this address since 2008, nor has one been issued for his adjacent property at 44
Dutton Island Road West since 2009. Therefore it would seem there has been a lapse of
operation — according to Atlantic Beach records, beyond that necessary to maintain the
nonconforming use as "grandfathered".
The opinion I seek is a determination of the following: Does the failure to maintain a local
business tax receipt over an extended (multiple year) period of time substantially qualify as
a failure to "remain otherwise lawful", and therefore cause for discontinuance of a
nonconforming use? Or, alternatively, does the provision of other documentation issued by
agencies beyond the Atlantic Beach jurisdiction substantially qualify as proof of intent and
attempt to "remain otherwise lawful", and therefore cause for continuation of a
nonconforming use?
Below are applicable definitions and provisions I have relied upon in my research.
• Automotive repair,heavy, shall mean the repair,rebuilding or reconditioning of motor vehicles or
parts thereof, including collision service,painting and steam cleaning of vehicles. [Section 24-17,
Definitions]
• Nonconforming use shall mean the use of a structure or building or portion thereof, or land or
portion thereof, which does not conform with the land development regulations and / or
comprehensive plan future land use map designation applicable to the lands in which the use is
located, but which was legally established prior to the effective date of such land development
regulations or comprehensive plan. [Section 24-17, Definitions]
• The nonconforming use of neighboring lands, structures, or buildings in the same zoning district,
or the permitted use of lands, structures or buildings in other zoning districts shall not be
considered as justification for the approval of a use-by-exception. [Section 24-63(j), Use-by-
Exception]
• Nonconforming uses [Section 24-85(d), Nonconforming Lots, Uses and Structures]
(1) Uses of land which were lawfully created at the time such uses were established, but
which would not be permitted by the restrictions imposed by these land development
regulations or by restrictions imposed by the comprehensive plan, may be continued so
long as they remain otherwise lawful and in compliance with the provisions of this
section.
(2) A nonconforming use shall not be moved in whole or in part to any other portion of the
lot or parcel on which such nonconforming use is located, nor shall a nonconforming use
be expanded or enlarged.
(3) In the event that a nonconforming use of land is discontinued or abandoned for a period
of six (6) months or longer, any subsequent use of such land shall conform to the
applicable zoning district regulations as set forth within this chapter as well as applicable
provisions of the comprehensive plan.
• A use-by-exception may be approved only for those uses and activities, which are expressly
identified as a possible use-by-exception within a particular zoning district. [Section 24-63, Use-
by-Exception]
Attached are copies of the following:
• Regarding 25 Dudley Street...
o Atlantic Beach Local Business Tax Receipt issuance history for 25 Dudley Street(subject
property).
o Bill of Sale for business known as C & C Garage a/k/a C & C Garage & Tire at 25
Dudley Street,dated August 30,2007.
o Duval County Business Tax Receipt (#1000020485), valid September 1, 2008 through
September 30,2009,for C&C Garage Inc at 25 Dudley Street.
o FL-ACS Motor Vehicle Repair Registration Certificate (MV71643), valid September 24,
2008 through September 24,2010,for C&C Garage Inc at 25 Dudley Street.
o US-Dept of Treasury/IRS notice of Employer Identification Number (27-4573155) for
Chaney's NAPA Auto Care&Body Works LLC,dated January 18,2011.
o FL-DOR Resale Certificate for Sales Tax, valid through December 31, 2011, for
Chaney's NAPA Auto Care & Body Works LLC at 25 Dudley Street, dated February 2,
2011.
o FL-ACS Motor Vehicle Repair Registration Certificate (MV82756), valid February 22,
2011 through February 22, 2013, for Chaney's NAPA Auto Care Center&Body Works
LLC at 25 Dudley Street.
2
o Duval County Business Tax Receipt (#1000044130), valid September 1, 2011 through
September 30, 2012, for Chaney's NAPA Auto Care Center & Body Works LLC at 25
Dudley Street.
• Regarding 44 Dutton Island Road West...
o Atlantic Beach Local Business Tax Receipt issuance history for 44 Dutton Island Road
West(adjacent property).
o Bill of Sale for right, title and interest in shares of businesses known as East Coast
Custom&Collision, Inc and Atlantic Beach Custom&Collision, Inc at 44 Dutton Island
Road West,dated June 10,2009.
o City of Atlantic Beach Water & Sewer Bill for 44 Dutton Island Road W, dated
September 14,2011.
3
2012 Florida Annual Resale Certificate for Sales Tax DR-13A
R.10/11
`PART„E T THIS CERTIFICATE EXPIRES ON DECEMBER 31, 2012
()F RE\'[NUE
Business Name and Location Address Certificate Number
GB&M ENTERPRISES LEVY ROAD IND'L PA 26-8012250356-6
GB&M ENTERPRISES LEVY ROAD INDUSTRIAL PA
155 LEVY RD 157
ATLANTIC BEACH FL 32233-2641
This is to certify that all tangible personal property purchased or rented,real property rented,or services purchased by the above business are being
purchased or rented for one of the following purposes:
• Resale as tangible personal property. • Re-rental as real property. • Incorporation as a material,ingredient,or
• Re-rental as tangible personal property. • Incorporation into and sale as part of the repair of component part of tangible personal property
• Resale of services. tangible personal property by a repair dealer. that is being produced for sale by manufacturing,
• Re-rental as transient rental property. compounding,or processing.
This certificate cannot be reassigned or transferred. This certificate can only be used by the active registered dealer or its authorized employees.
Misuse of this Annual Resale Certificate will subject the user to penalties as provided by law. Use signed photocopy for resale purposes.
Presented to: Presented by:
(Insert name of seller on photocopy) (date) Authorized Signature(Purchaser) (date)