535 Atlantic Boulevard 15-CVPR-2411 Letter to Steve Lindorff from Betsy Cosgrove
January 27, 2016
Memorandum for Steve Lindorff
Consultant for the City of Atlantic Beach
Re: Opposition to proposed Gate Convenience Store/Gas Station
As Glenn Shuck mentioned in his January 25 communication to you, Mayor Mitch Reeves asked that we,
the residents of the SaltAir neighborhood, share with you our concerns about the proposed convenience
store/gas station in our neighborhood at 535 Atlantic Blvd.
My comments are made as a spokesperson on behalf of the SaltAir neighborhood as well as a property
owner at 116 Poinsettia Street, one house from Sturdivant Avenue, directly in back of 535 Atlantic Blvd.
Our number one concern as a neighborhood is the negative impacts to our neighborhood outlined in Mr.
Shuck’s communication. However, we are also concerned with what we believe to be errors in reasoning
resulting in incorrectly applying the Land Development Regulations and object to actions taken. Further, we
are perplexed with the lack of questions apparently thus far asked of the applicant which are critical to
ensuring proper actions are taken.
#1: Gate did not properly apply for the use they intend to build
In the months prior to submitting their application, Gate clearly indicated in correspondence their interest is
to build a convenience store with gas pumps. This would be in concert with their published mission
statement. However, when making application to the City, Gate applied for “Automotive Service Station with
Minor Automated Service”.
* Email dated June 11,2014 From: D.Ross To: J.Hubsch
“Attached are photos of the Front and Rear of the new building concept that will be at the Atlantic
Boulevard location. The design is significantly more modern than the previous stations….” (Note:
pictures of Gate Convenience Store properties at Busch Drive and St.Johns Town Center were
attached.)
* Email dated September 18, 2014 From: D. Ross To: J.Hubsch
“….The development program consists of 10 fueling station (20 dispensing pumps) and the
convenience store comprising approximately 6,500 SF…..”
SaltAir Comments:
You cannot unlearn what you already know.
City staff knows that Gate intends to build a convenience store with gas fueling pumps because that is what
Gate stated to the City for the 24 months prior to application submission. The Building and Zoning
Department is to ensure the code is properly applied to the proper uses and to uphold the process to refer
requests for uses not named in the Land Development Regulations to the Community Development Board
for review
“Automotive Service Station with Minor Automated Service” is not a permitted use in Section 24-111 of the
Land Development Regulations. The closest permitted use in Sec. 24-111(b)(9) is “Automobile service
station with minor automotive repair and with accessory car wash.”
When City staff replied to the initial application they only questioned “what was minor automated service”.
Staff did not advise this was not a permitted use and if desired would need to be referred to the Community
Development Board. They also did not ask the right questions since the permitted use is “…with minor
automotive repair” not “minor automotive service”.
It is not lost on us that in Gate’s December 23, 2015 response that they try to even recraft what automotive
service is. A look on the internet will quickly take you to what is more typically defined as automotive
service. It is not just the simple offering of retail automotive supplies. It is not a store clerk helping you
jump your dead battery. It is “a series of maintenance procedures” including, but not limited to engine oil
change, replacement of oil, air and fuel filters, replacement of spark plugs, tuning of the engine, checking
and refilling fluids such as brake, power steering and automatic transmission. It also includes greasing and
lubricating components, inspection and replacement of timing belts. And this is service – not minor
automotive repair. Perhaps the Department of Agriculture should be consulted to help with the definition of
minor automotive repair since automobile repairs shops are regulated by them.
It is further noted the Staff asked no questions about the disconnect from what Gate had inquired about in
the months of correspondence versus the application submitted. In a meeting with the City Manager and
Building and Zoning Director Glenn Shuck and I were told that Gate applied for this use because 1.) a gas
station, by itself, is not limited to number of fueling positions in our code and 2.) it is important to Gate that
they are desirous to avoid review by the Community Development Board.
Gate makes statements throughout their response trying to influence the reader’s interpretation of our code
(i.e. “contrary to the express intent of the Code”, “it would be nonsensical..”). Do not be dissuaded.
They intend to build a convenience store with gas pumps.
Gate should be held to the permitted uses in Section 24-111 and to the proper procedure for variances
which may result in a referral of their application to the Community Development Board.
#2. Number of allowable fueling positions
Gate Petroleum in multiple correspondence with the City has indicated its desire to build a convenience
store with gas station as mentioned above. Questions have centered around how many gas pumps are
allowed. Mr. Hubsch had it right in the earliest dated correspondence available. Subsequent
correspondence, however, shows error in reasoning and error in appropriately applying code sections.
* Email Dated Jan. 7, 2014 From: J. Hubsch To: D. Ross
“…If you look at Section 24.111.b.15, it says, “Those uses listed as permitted uses and
uses-by-exception in the commercial limited (CL), and commercial professional, and office
(CPO) zoning districts” are allowed in CG. So the retail sale of gasoline is allowed in CG
and a use-by-exception isn’t necessary. If your clients wish to go beyond the 6 fueling
pumps allowed, we will have to check with our city attorney to see if that is possible.
SaltAir Comments:
Section 24.111(b)(15) incorporates the uses-by-exception in the Commercial Limited Zone (24-110) thereby
giving the use-by-exception in Section 24-111(c)(4) the same dignity as any other permitted use
enumerated in paragraphs under Section 24-111. Section 24-111(c)(4) states “Convenience food stores
with retail sale of gasoline limited to six (6) fueling positions.” We agree with this email of Mr. Hubsch that
the maximum number of fueling positions to be allowed should be six (6).
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* Email dated April 25, 2014 From: D. Ross To: J. Hubsch
“In a bind to find out answer regarding the number of permissible pumps for proposed gas
station….Our client needs a minimum of 8 fueling stations (16 dispensers, 2 per fueling
station. Can you confirm the pump number today?”
* Email dated April 25, 2014 From: J. Hubsch To: D. Ross
“I wish it was that easy. Fueling stations aren’t specifically listed as allowed in CG.
However, they are listed as a use-by-exception in our CL district. Our code says, “Those
uses listed as permitted uses and uses-by-exception in the commercial limited (CL), and
commercial, professional, and office (CPO) zoning districts” are allowed in CG. Since CL
allows up to 6 fueling stations as a use-by-exception, we know that up to 6 is allowable in
CG. Beyond that isn’t really defined or restricted.
Since your clients want to go above what is defined as the max in CL, I thought the most
practical analysis would be to look at CCG-2 in CJ’s code, which our CG district is very
similar to. Since COJ’s doesn’t cap a max, I though we could use that to allow the 8.
Sound good?”
SaltAir Comments:
Mr. Hubsch is in error in applying the code if Gate is to build a retail convenience store in
conjunction with a gas station.
As noted earlier, the uses described in Sec. 24-110 Commercial Limited use-by-exceptions are elevated to
the same dignity as all other permitted uses in Sec. 24-111 per Sec. 24-111(15). Section 24-111(c)(4)
states “Convenience food stores with retail sale of gasoline limited to six (6) fueling positions.”
Even using Mr. Hubsch’s flawed logic the maximum number of fueling positions would still be six:
Per Mr. Hubsch’s April 25, 2014 email our Commercial General district only states what is allowed in the
Commercial Limited district as a use-by-exception. That number is six (6).
If CG is silent ostensibly allowing any number of fueling positions and CL limits the fueling positions to six
(6), there is conflict. Is it unlimited or is it limited to six (6)?
The Charter and Ordinances are very clear on how conflict is to be resolved. Section 24-2(b) states:
Where any provision of this chapter imposes restrictions that are different from those imposed by
any other provision of this chapter, or any other ordinance, rule or regulation, or other provision of
law, whichever provisions are the more restrictive or impose higher standards shall control.
(emphasis added)
Further, in Section 24-16 which describes Construction of language, paragraph (h) states:
In the event that the provisions, as set forth within this chapter, conflict with those of any other
federal law, Florida Statute, local ordinance, resolution or regulation, including the comprehensive
plan for the City of Atlantic Beach, or any other applicable law, the more stringent standard,
limitation or requirement shall govern to the extent of the conflict, and further provided that such
other requirement is not in conflict with the adopted comprehensive plan. (emphasis added)
Six (6) fueling positions is less than “unlimited” and therefore must be applied.
Whether there is to be a convenience store with a retail gas station or a gas station with a retail
convenience store, no more than six (6) fueling positions (3 fueling stations/6 dispensers) is what the code
allows.
# 3 – Sale of Alcoholic Beverages and Hours of Operation
Gate has stated in its application they plan to sell beer and wine at its retail space at 535 Atlantic Blvd. In
addition, in their December 23, 2015 response to the City, the applicant (Gate) states “the service station
and retail sales uses will be open 24 hours.” They go on to try to make an argument why they should be
allowed to stay open 24 hours per day.
SaltAir Comments:
If beer and wine is to be sold, Gate cannot remain open 24 hours per day seven days a week.
Gate has made an application for Automotive Service Station which indicates the primary purpose will be as
a gas station. Section 3-2 (b) specifically states that the “licensed premises where any alcoholic beverages
are kept, except for restaurants, grocery stores and markets where the primary business is the sale or
serving of food, shall be closed for business between the hours of 2:00 am and 7:00 am all days of the
week.”
Therefore, if Gate at Atlantic Beach, an Automotive Service Station, ultimately becomes a licensed premise
to sell beer and wine, the entire licensed premise at 535 Atlantic Blvd. must be closed from 2:00 am to 7:00
am all days of the week because the primary business is not the sale or service of food.
In actuality, Gate should NOT be allowed to sell ANY beer or wine at the new convenience store as
they do not meet the requirements in Section 3-4 – Premises where retail sales for off-premise consumption
are permitted.
Section 3-4 (a) states that retail sale of beer and wine shall be permitted only upon licensed premises that
meet the requirements of subparagraphs (1) and (2):
(1) “Business within CG abutting Atlantic Boulevard….” AND
(2) Establishments in locations presently open for business and where a current valid license
exists as of the effective date of the ordinance.
Although the proposed project is located on Atlantic Boulevard and therefore would meet the requirement of
paragraph (1), the proposed project does NOT meet the requirement of paragraph (2). The proposed retail
space is not presently open for business and will not have a beverage license as of May 10, 2004 – the
date of the ordinance.
Section 24-16(f)(1) states: "And" indicates that all the connected items, conditions, provisions or events
shall apply. This means that in order for a business to be able to sell beer and wine both conditions of
Section 3-4(a) must be met. Gate will not have a have a valid license at this location as of May 10, 2004 so
therefore cannot sell beer and wine at any retail business they build at 535 Atlantic Blvd.
#4 – Pedestrian and Vehicular Safety on Proposed Gate Project premises
In the correspondence exchange between the City and Gate prior to their application submission, Gate
brings up they might need a variance because the depth of the property is not adequate to ensure
pedestrian and vehicular safety.
* Email dated June 4, 2014 From D. Ross To J. Hubsch
“….We also need to look into the depth of the site. The Client wants us to look into seeking a rear
setback reduction form 10’ to 5’ for the building in order to increase the distance between the
building and pumps to enhance visibility and improve pedestrian and vehicle safety. The distance
we can accommodate today is below the Client’s typical and preferred preference.
* Email dated June 11, 2014 From D.Ross To J Hubsch
“….The setback deviation is a function of the inadequate depth of the property. As you can see
from the Front image, years of data tells us that the more space between the gas pumps and the
building the better for vehicular circulation and pedestrian safety. Our current design provides
significantly less distance than what the Client prefers….”
* Email dated November 4, 2014 From D.Ross To J. Hubsch
“…On another note, back in June we traded emails about allowing a 4 ft screen wall (for the ground
mounted air conditioning units) to be located 5 feet into the rear setback. Our design has
progressed and we have moved the air conditioning units to the roof with the rear building face now
a feet from the property line. It does not sound like much, but 5 feet greatly improves traffic flow
and safety between the drives, fueling position area and the front of the building. It looks like at a
minimum we will be seeking a 5 ft variance to encroach into the rear setback.”
SaltAir Comments/Objections:
Gate is to be commended to have brought up their concern about the inadequacy of the depth of the lot to
appropriately position the convenience store with gas pumps they want to build. However, when they finally
submit the application to the city, no variance was requested to make the property safe for pedestrians and
vehicular traffic.
Why? How were these safety concerns solved? City staff asks no questions with regard to this.
Throughout the Charter and Comprehensive Plan it is stated all development “shall be held to be the
minimum requirements for the promotion of the health, safety and general welfare of the community.” It is
paramount that these safety concerns are addressed. By Gate’s own admission, the depth of the lot is
inadequate for the proposed use. The Building and Zoning Department must deny the permit on this one
element alone as it does not promote the safety and general welfare of the community.
Mr. Lindorff, at the very minimum this project should be referred to the Community Development Board for
review for any one of multiple reasons:
1. What Gate has applied for is not a permitted use.
2. A convenience store with retail gas is to be limited to six (6) fueling positions – Gate has asked
for 14.
3. Gate has said they plan to have 24 x 7 operating hours although Sec. 3-2(b) does not allow for
that if beer and wine is to be sold at the premises.
4. They are planning to sell beer and wine but they do not qualify under Sec. 3-4
In addition, The Atlantic Beach Charter as well as the Land Use Regulations in Section 24-111 (b) states in
discussing Permitted Uses, “ Such uses shall not include…uses that have the potential for negative impacts
to surrounding neighborhoods…” Mr. Shuck’s January 25 memorandum to you clearly outlines those
negative impacts to our neighborhood.
At the end of the day a gas station with or without a convenience store is not an appropriate use for the 535
Atlantic Blvd. location due to the potential of negative impacts to the surrounding neighborhood.
Thank you for your time and consideration. I will look forward to hearing from you.
Betsy C. Cosgrove
116 Poinsettia Street
Atlantic Beach, FL
(904) 677-0877