25-97 FAILED ON SECOND/FINAL READING - JULY 1, 1997
ORDINANCE NO. 25-97
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, CHANGING THE FUTURE LAND USE
MAP DESIGNATION FROM COMMERCE TO GENERAL
COMMERCIAL, AND REZONING FROM MIC (MIXED INDUSTRIAL
AND COMMERCIAL) DISTRICT TO GC (GENERAL COMMERCIAL)
DISTRICT, FOR LOT 1, OWEN'S COMMERCIAL SUBDIVISION,
AS THE SAME IS MORE PARTICULARLY DESCRIBED HEREIN,
LOCATED AT THE NORTHWEST CORNER OF ATLANTIC AVENUE
AND THE CSX RAILROAD, IMMEDIATELY WEST OF 1-95;
ELECTING TO PROCEED UNDER THE SINGLE HEARING
ADOPTION PROCESS FOR SMALL SCALE LAND USE PLAN
AMENDMENTS; AND AMENDING "ZONING MAP OF DELRAY
BEACH, FLORIDA, 1994"; PROVIDING A GENERAL REPEALER
CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE.
WHEREAS, the property hereinafter described is designated
on the Future Land Use Map (FLUM) in the Comprehensive Plan for the
City of Delray Beach, Florida, as Commerce; and
WHEREAS, the property hereinafter described is shown on the
Zoning District Map of the City of Delray Beach, Florida, dated
April, 1994, as being zoned MIC (Mixed Industrial and Commercial)
District; and
WHEREAS, at its meeting of May 19, 1997, the Planning and
Zoning Board for the City of Delray Beach, as Local Planning Agency,
reviewed this item at a public hearing and voted unanimously to
recommend denial of the small scale FLUM amendment and rezoning,
based upon a failure to make positive findings; and
WHEREAS, the City Commission of the City of Delray Beach,
Florida, finds that the change is not inconsistent with the
Comprehensive Plan; and
WHEREAS, it is appropriate that the Future Land Use Map in
the Comprehensive Plan be amended to reflect the revised land use
designation, and that the Zoning District Map of the City of Delray
Beach, Florida, dated April, 1994, be amended to reflect the revised
zoning classification.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF
THE CITY OF DELP~AY BEACH, FLORIDA, AS FOLLOWS:
FAILED ON SECOND/FINAL READING - JULY 1, 1997
Section 1. That the legal description of the subject
property is as follows:
Lot 1, Owen's Commercial Subdivision, according to
the Plat thereof as recorded in Plat Book 74, Pages
130-131 of the Public Records of Palm Beach County,
Florida.
The subject property is located at the northwest
corner of Atlantic Avenue and the CSX Railroad,
immediately west of 1-95; containing 0.39 acres
more or less.
Section 2. That the Future Land Use Map in the
Comprehensive Plan of the City of Delray Beach, Florida, is hereby
changed to reflect a land use designation of General Commercial for
the subject property.
Section 3. That the City of Delray Beach elects to make
this small scale amendment by having only an adoption hearing,
pursuant to Florida Statutes Section 163.3187(1) (c)4.
Section 4. That the Zoning District Map of the City of
Delray Beach, Florida, dated April, 1994, is hereby amended to
reflect a zoning classification of GC (General Commercial) District
for the ~ubject property.
Section 5. That the Planning Director of said City shall,
upon the effective date of this ordinance, amend the Zoning Map of
the City of Delray Beach, Florida, to conform with the provisions of
Section 4 hereof.
Section 6. That all ordinances or parts of ordinances in
conflict herewith be, and the same are hereby repealed.
Section 7. That should any section or provision of this
ordinance or any portion thereof, any paragraph, sentence, or word be
declared by a court of competent jurisdiction to be invalid, such
decision shall not affect the validity of the remainder hereof as a
whole or part thereof other than the part declared to be invalid.
- 2 - Ord. No. 25-97
FAILED ON SECOND/FINAL READING - JULY 1, 1997
SEction 8. That this ordinance shall become effective
thirty-one (31) days after adoption, unless the amendment is
challenged ~ursuant to Section 163.3187(3), F.S. If challenged, the
effective date of this amendment shall be the date a final order is
issued by the Department of Community Affairs, or the Administration
Commission, finding the amendment in compliance with Section
163.3184, F S. No development orders, development permits, or land
uses dependent on this amendment may be issued or commence before it
has become E~ffective. If a final order of noncompliance is issued by
the Adminissration Commission, this amendment may nevertheless be
made effect~ve by adoption of a resolution affirming its effective
status, a ccpy of which resolution shall be sent to the Department of
Community Affairs, Bureau of Local Planning, 2740 Centerview Drive,
Tallahassee, Florida 32399-2100.
PASSED AND ADOPTED in regular session on second and final
reading on this the day of , 1997.
MAYOR
ATTEST:
City Clerk
First Readirg June 3, 1997
June 17, 1997 (continued to date certain of 7/1/97)
Second Reading July_ 1_. 1997 (Motion to Approve FAILED ?O PASS)
- 3 - Ord. No. 25-97
FAILED ON SECOND/FINAL READING - JULY 1, 1997
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CJTY OF D£LRAY BEACH. FL
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' , * ~W OFFICES
I ennls' F. I cenlen
1280 Nodh Congress Avenue, Suite 104
W~t Palm Beach, Florida 33409
HAND-DELIVERED Telephone: (561) 684-2844
Facsimile: (561)684-9370 June 27, 1997
Hon. Jay Alperin, Mayor and Members
DELRAY BEACH CITY COMMISSION
Delray Beach City Hall
100 N.W. First Avenue
Delray Beach, Florida 33444
RE: OWENS-SHINE Applications for FLUM Amendment,
Rezoning - Response to City staff report
Dear Mayor Alperin and Commissioners:
On behalf of my client in this matter, Mr. David Shine and
the owner of the DELRAY BEACH FARH SUPPLY properties, Hrs. Helen
D. Owens, I respectfully ask you to review the attached items in
advance of this coming Tuesday night's final public hearing on the
referenced applications:
· My Memorandum to the Mayor and Commissioners,
responding to the City staff report (June 27, 1997).
· "DECLARATION OF RESTRICTIVE COVENANTS," executed by
Mrs. Owens and Mr. Shine and recorded in the Public
Records of Palm Beach County on June 27, 1997.
· "OFF SITE PARKING AGREEHENT," executed by Hr. Shine on
June 27, 1997. [Please note that at this writing,
neither Hrs. Owens nor the owner of the adjacent parking
tract have yet executed this Agreement.]
· City staff report, dated May 19, 1997.
We believe that the most serious objections that City staff
has raised - relating to parking and traffic impact issues - are
fully and successfully addressed by the two legal documents
referenced above. We look forward with great anticipation to
appearing before you again next Tuesday evening, July 1, to
present the merits of our requests.
S~rerely,
Den~nis P~ Koehler, Esquire
DPK/ns
encls.
pc w/encls: Ms. Diane Dominguez, Director, Planning & Zoning
Department
Susan Ruby, Esq., City Attorney
Mrs. Helen D. Owens
Mr. David Shine
Hessrs. Jim Kahn & Andre Groenho~f, KEITH & SCHNARS
' LAW OFFICES
I ennis I% l cehler, I .A.
Congress Business Center
1280 North Congress Avenue, Suite 104
West Palm Beach, Florida 33409
Telephone: (561) 684-2844
Facsimile:(561)684-9370
MEMORANDUM June 27, 1997
TO: Hon. Jay Alperin, Mayor and Members
DELRAY BEACH CITY COMMISSION
FROM: Dennis P. Koehler, Esqulre~
SUBJECT: OWENS-SHINE applications for FLUM Amendment, Rezoning for
"Country and Western Nightclub", 1701 w. Atlantic Avenue,
Delray Beach, FL - Response to critical staff report
I. INTRODUCTION. The purpose of this memorandum is to respond,
point-by-point, to the harsh criticisms that have been levelled
against the subject applications by the City's Planning staff in its
report of May 19, 1997. Staff's negative report is grounded almost
exclusively on an unfortunate - and incorrect - legal conclusion:
That voluntary deed restrictions limiting this very small (0.39 acre)
parcel's use to a nightclub only and its operating hours to evenings
only are "unenforceable." As a result, City staff has analyzed the
proposals' impacts on a "worst case" basis, reaching negative
conclusions (primarily about daytime traffic impacts) that are
completely unsupportable, if the proposed deed restrictions are in
fact deemed valid and enforceable.
We respectfully suggest that the "bottom line" for the City
Commission ought to be whether the requested FLUM Amendment and
Rezoning (to GC - General Commercial) for this tiny parcel, necessary
to allow the existing, 45 year old farm supply store to be converted
into a country and western nightclub, is reasonable and in the City's
best interests.
We contend that a successful country and western nightcl~_~b,
operating on West Atlantic Avenue in this area of the City just west
of 1-95 and the CSX railway and during the evening hours only,
· will provide an upgraded, more attractive commercial
appearance at this major gateway to the City;
· will be an improvement over the unsightly, industrial-type
uses that have long blighted the area north and west of the
subject site;
· will have a substantial, positive economic impact on the
City, both from increased employment and from increased
property and sales taxes;
· will actually contribute to traffic safety in the
vicinity, by decreasing peak hour industrial traffic (e.g.
semi-tractor trailer turning movements); and
· can serve as a catalyst for additional commercial
redevelopment along west Atlantic Avenue, between Swinton
Boulevard on the east and the 1-95 corridor on the west.
Finally, we contend that by entering into a City-approved "Off
Site Parking Agreement" with our neighbor to the west, the EASTERN
AUTO CARE CENTER, sufficient space will be made available (to be
provided exclusively by valet parking) to accommodate the proposed
nightclub's parking needs.
II. DISCUSSION.
The staff report is particularly disappointing to this writer,
since it seems to go well out of its way to discredit the major
assumptions on which the subject FLUM amendment and rezoning requests
are based. The Applicant and his consultants have thoroughly analyzed
the staff report. In the point-by-point analysis that appears below,
we have identified ten (10) major issue areas and negative conclusions
contained in this staff report with which the Applicant vociferously
disagrees. These criticisms are summarized and referenced by page
number(s) of the staff report, then followed by the Applicant's
response:
1. "While the Objective regarding [Future Land Element Policy A-
1.4] refers to vacant land ... [and while] the subject property is
only 0.39 acres, the proposed FLUM amendment will reduce the amount of
Commerce designated land [in the City.]" Staff report, p. 3.
RESPONSE: In our very first meeting with City Planner Jeff
Costello on March 24, 1997, we pointed out that Objective A-1 applies
only to "Commerce" designated property that is vacant. The subject
parcel has been improved and continually occupied as an active farm
supply business since 1952. It is obviously not "vacant."
We also point out that staff has conveniently ignored Policy A-
1.3 under this same Objective A-1 for "remaining vacant land" within
the City. This policy [appearing at p. III-G-19 of the Comprehensive
Plan's Future Land Use Element] declares:
"Additional strip commercial zoning on vacant land shall be
avoided. This policy shall not preclude rezoninqs on land
that at the time of rezoning has improvements on it."
(emphasis added)
Finally, Although City staff acknowledges the exceptionally small
size (0.39 acres) of the subject parcel, they fail to point out how
microscopically the amount of Commerce-designated land in the City -
246 acres, of which 160 are developed and 86 are vacant - will be
2
reduced, if the subject requests are granted: 0.39 of the City's 246
Commerce-designated acres will be lost, a reduction of just 16/100ths
of one percent (0.16%)! By any standard, this is a de minimus impact,
i.e. it is of no practical or statistical significance!
2. "The proposal is inconsistent with [Future Land Use Element]
Policy A-1.6. While the petitien involves a relatively small parcel,
its purpose is to accommodate a nightclub/entertainment use which will
compete with the redevelopment efforts in the City's Central Business
District. Further, as the property is located adjacent to and easily
accessible from 1-95, the use will be primarily a destination type use
and will not encourage customers to visit the City's downtown." p.3.
RESPONSE: This is an absolutely ludicrous statement! It's
difficult to comprehend exactly how a country and western nightclub
operating west of 1-95 will have any negative impacts whatsoever on
the ongoing (and tremendously successful) efforts to redevelop the
City's downtown area! If anything, the proposed nightclub will give
entertainment-seekers an additional reason to come to Delray Beach! On
May 19, we FAXed a memorandum to the Delray Beach CRA's Executive
Director, Mr. Chris Brown, asking him to respond to this outlandish
staff comment. To date, we have received no reply. In any event, we
challenge City staff to explain exactly how downtown redevelopment
will be "damaged" by adding another successful commercial enterprise
at this location west of 1-95, in an area of the City that (a)
currently supports an unattractive mix of commercial and industrial
activities and (b) repulses rather than attracts any form of
redevelopment!
3. Citing Traffic Element Policy A-5.3, which requires the City
to "guard against the overcommercialization of intersections," staff
concludes [at p. 4] that the subject proposal "is inconsistent with
this policy." Declaring that "the intersection of Atlantic and
Congress Avenue is commercialized with two gasoline stations, a carpet
store and shopping center," staff suggests that the subject
applications "will result in commercial zoning which can accommodate
high traffic generating commercial uses such as fast food restaurants,
nightclubs, convenience stores, and general retail uses."
RESPONSE: First, we reject staff's contention that approving the
Applicant's proposals will "overcommercialize" the intersection of
Atlantic and Congress Avenue, since the subject parcel is located one
(1) full City block east of this intersection. Second, Policy A-5.3
declares that the City "shall guard against" the overcommercialization
of intersections; this policy does not require the City to prohibit
all new commercial development at intersections. Third, that
"overcommercialization" which is to be "guarded against" requires
restricting high traffic generating land uses "to no more than two
adjoining streets." The subject parcel is located not two, but just
one (1) "adjoining street" east of Congress Avenue, on the east side
of Northwest 18th Avenue.
Finally, staff (for the first of many times throughout its
report) argues [also at p. 4] that the requested FLUM and rezoning
applications "can accommodate [a variety of] high traffic generating
commercial uses." This conveniently ignores the fact that the
Applicant is proposing, via a voluntary, binding "DECLARATION OF
RESTRICTIVE COVENANTS," to limit commercial development of the site to
a nightclub only, and further, to restrict the operating hours of that
nightclub to evening hours only!
At City Planner Jeff Costello's suggestion, the Applicant filed
a concurrent request to rezone the subject parcel to the CG district,
including with that application a detailed "concept site plan." That
plan illustrates how the existing DELRAY BEACH FARM SUPPLY building
will be converted to a nightclub use. As we shall see throughout the
remainder of this analysis, by rejecting the Applicant's proposed deed
restrictions as "unenforceable," City staff has literally created its
own self-fulfilling, worst-case development scenario, one that can't
be ignored unless the City Commission accepts the Applicant's
contention that the proposed deed restrictions are both viable and
enforceable!
4. In analyzing "Allowable Land Uses" under the parcel's existinq
"Commerce" desiqnation [at p. 5 of its report], City staff suggests
that the RT (Resort Tourism) zoning classification "allows uses [on
the subject site] that can become complementary to an industrial park
setting, such as hotel and conference facilities."
RESPONSE: It should be obvious to all that no hotel or
conference facility developer would (could) ever develop such intense
commercial uses on a parcel of land as small (0.39 acres) as the
DELRAY BEACH FARM SUPPLY tract! Before any hotel and conference
facility development can reasonably occur in this area of the City, a
prospective developer would first have to assemble land holdings of at
least five (5) acres in size. In the instant case, that would require
(at a minimum) the acquisition, demolition, and redevelopment of the
entire "Owens Commercial Subdivision" and the adjoining EASTERN AUTO
CARE CENTER properties. Once again, we respectfully suggest that this
critical staff comment should be rejected as immaterial and
irrelevant.
5. In analyzing "Land Use & Zoning Compatibility" issues at p. 5
of its report, City staff suggests - incredibly - that "the
compatibility of the proposed GC zoning with the adjacent industrial
uses is a concern," adding that "once the property is rezoned the
hours of operation cannot be regulated" and concluding that "GC zoning
allows [high traffic generating] uses that may be open during the
daytime."
RESPONSE: We find difficult to fathom the argument that an
attractive, well-landscaped, properly secured and successful country
and western nightclub operation at the subject location will in any
way present "incompatibility problems" to the existing array of
4
l ennis F. I Celllel
industrial-type uses that currently present such an unattractive image
in this mixed industrial and commercial area of the City! Staff's
attempt to justify their incompatibility argument by citing potential
traffic volume problems "during the daytime" is evidence, once again,
of their refusal to accept the viability and enforceability of the
deed restrictions that the Applicant is proposing, which limit the
commercial properties' use to evening hours only. The best evidence
of staff's arbitrary, capricious, "head in the sand" analysis is the
statement [appearing at p. 6 of the Staff Report]:
"While peak hour traffic generation of the industrial uses
may occur during the morning and evening hours, traffic to
a commercial business will be continuous with peak hours
coinciding with normal peak traffic hours."
It's difficult not to conclude that Staff has deliberately
distorted the Applicant's proposals in order to fabricate "traffic
reasons" for denying these requests!
6. In analyzing Traffic Concurrency issues (at pages 6 and 7 of
its report), City staff literally fills these pages with a "parade of
horribles" that are clearly based on a single, fatally flawed
assumption: That the Applicant cannot legally impose use-limiting and
operating hours restrictions on this property!
RESPONSE: We ask again, why does the City's planning staff refuse
to accept the legality and enforceability of deed restrictions? Some
other examples of staff's outrageously negative traffic comments on
these pages include:
"A rezoning approval to general commercial may result in
daily traffic increases of: 113% for retail, 727% for
convenience store, and 801% for fast food restaurant." p. 7
The Applicant is proposing NONE of these uses, nor would any of
them be possible after the nightclub only/evening hours only deed
restrictions have been imposed!
After pointing out (at p. 6) that traffic exiting the proposed
nightclub "must first go west and make a U-turn at Congress and
Atlantic Avenue," staff concludes:
"In the AM peak hour (7:30 AM to 8:30 AM) the left turn lane
storage is inadequate ... [and] in the PM peak (4:30 PM to
5:30 PM) the left turn storage fails an average of 5 of 25
cycles or approximately 20% of the time."
If the deed restrictions that the Applicant is proposing are
accepted and imposed, then these daytime peak hour U-turn traffic
movements and conflicts disappear completely! The only way to accept
Staff's gross traffic impact exaggerations is to completely deny the
5
legality and enforceability of the Applicant's proposed deed
restrictions.
7. At pages 8 and 9 of its report, staff cites certain zoning
Code standards [Sections 3.3.2.C and D] and argues that the proposed
GC Zoning "would allow inappropriate commercial zoning on a developed
parcel of land;" that since "there is no ability to aggregate
additional land to provide a well-planned commercial development ....
rezoning the property to GC would be inconsistent with these zoning
performance standards;" and that because the "GC zoning designation
allows uses that are much more intense than those allowed in the MIC
zone district, a finding of compatibility with adjacent and nearby
land uses cannot be made."
RESPONSE: The rezoning standard of Section 3.3.2.C, identical to
Comprehensive Plan Policy A-1.3 [cited at p. 3, infra], clearly states
that the policy against "additional strip commercial zoning" on vacant
properties "shall not preclude rezonings on land that at the time of
rezoning has improvements on it." It's true that the Applicant has "no
ability to aggregate additional land to provide a[n arguably] true
well-planned commercial development," since all required facilities,
including parking, cannot be provided on this small site. But the
Applicant's proposed OFF SITE PARKING AGREEMENT will adequately
address this zoning performance standard.
Noting their "concern" that the OWENS/SHINE proposals may be
incompatible with the adjacent industrial uses(!), staff again raises
a red flag that doesn't exist: "The GC zoning designation allows uses
that are much more intense than those allowed in the MIC zone
district." As the Applicant's consulting engineer has reported, the
actual "intensity increase" for a nightclub over the maximum allowable
under the existing MIC District is not 801%, as staff argues, but just
67%: The maximum number of daily trips generated by the proposed
country and western nightclub will be 588 ADTs; this is 67% more than
the maximum number (352 ADTs) possible under the parcel's current MIC
zoning. The only way that the staff's criticism holds water is if the
Applicant's proposed deed restrictions are rejected as illegal and
enforceable.
8. At page 11 of its report, staff once again rejects out-of-hand
the Applicant's offer "to voluntarily limit the hours of operation,"
declaring that such voluntary limits are -
"... unenforceable as a condition of rezoning. Once the
property is rezoned, any of the uses permitted in the GC
district may apply to establish at this location, and the
City would have no ability to restrict the hours of
operation."
RESPONSE: First, the applicant is not proposing that its
suggested deed restrictions be imposed "as a condition of a rezoning."
It is well-established in zoning law throughout the United States and
6
Florida that zoning bodies may not impose conditions of approval on
requests for "straight rezoning," as that would constitute illegal
contract zoning. That is not what the Applicant is here proposing! It
is perfectly acceptable, legal and enforceable for a rezoning
applicant to voluntary commit itself to certain self-imposed use
limitations and restrictions, so long as those restrictions are not
imposed subsequent to the rezoning. Hartnett v. Austin, 93 So.2d 86
Fla. S.Ct. (December 5, 1956). These voluntary restrictions, executed
and recorded on June 27, 1997, include a provision (Article V) that
specifically authorizes enforcement by the City of Delray Beach.
"Voluntary commitments" like these are routinely accepted by other
local zoning authorities throughout Palm Beach County, and have never
been held "unenforceable" by the courts.
9. In critiquing [at p. 12] the Applicant's proposal to utilize
a City-authorized OFF SITE PARKING AGREEMENT to help satisfy the
proposed nightclub's parking needs, City staff suggests - again
incorrectly - that such an agreement "ties the properties together and
they cannot be sold separately for as long as the parking need
exists."
RESPONSE: This statement is wrong. In reaching its conclusion,
City staff has conveniently ignored the standard, "boilerplate"
provision contained in the City Attorney's own OFF SITE PARKING
AGREEMENT format, FAXed to the Applicant's legal counsel on April 1,
1997. We have since tailored the Applicant's proposed Agreement with
the adjoining EASTERN AUTO CARE CENTER properties to read [in
paragraph 3.c] as follows:
"In the event that EASTERN [the parking provider] ever
sells, transfers, or otherwise disposes of the Eastern
Parcel and as a result of such sale, transfer or disposal
the parking spaces referred to in paragraph 3.a above are
for any reason no longer available, they shall be provided
elsewhere by SHINE in accordance with the then current
regulations pertaining to parking which exists at the time
of transfer, sale or disposal referred to above, subject to
CITY approval."
The City Attorney's Office obviously anticipated the problem that
the planning staff has cited in its report, and through the OFF SITE
PARKING AGREEMENT, has provided for its resolution! If for any reason
the parking spaces made available under the proposed Agreement become
unavailable, "they shall be provided elsewhere" by the Applicant, all
subject to City approval. If the required parking cannot be provided
elsewhere, or if the City refuses to grant its approval, the use then
(a) falls out of compliance with the City's parking regulations
(failure to provide required parking) and (b) can be shut down by City
codes enforcement action. As Article V of the Agreement clearly
states, it "may be enforced by any of the parties thereto, including
but not limited to the City."
l enni F. l celller,
10. Also at p. 12 of its report, City staff suggests that "if
the property owners decide to dissolve the agreement, the City will be
left with a parcel that has a commercial zoning designation and severe
parking shortage."
RESPONSE: We answer by asking a question: What would the City
do if any other commercially zoned parcel "lost" its required parking
and as a direct result, faced a severe parking shortage? We can only
presume that the owner of that commercial venture would be directed by
the City's Code Enforcement Division to (within a reasonable time
period) either (a) provide adequate replacement parking, or (b) shut
down its commercial business operations entirely. There is nothing in
the OFF SITE PARKING AGREEMENT that the Applicant is proposing that
would limit or preclude the City from taking all necessary steps
available under the City's land development regulations to enforce its
commercial parking requirements. In fact, the reverse is true. Once
again, City staff's negative arguments fail to withstand scrutiny, and
must be rejected as arbitrary and unreasonable.
III. CONCLUSIONS.
The "Assessment and Conclusion" portion of the City staff's
report, appearing at p. 13, is nothing more than a rehash of the
unsubstantiated arguments and implausible conclusions that staff has
offered throughout its negative report. The only way that these
critical comments can be accepted is if the City Commission buys into
Staff's arguments/conclusion that the deed restrictions proposed have
no legal value and are unenforceable, and that the use of an OFF SITE
PARKING AGREEMENT is also unacceptable. Staff has quite literally
"made a mountain out of a molehill" in seeking to discredit what
promises to be an exciting and successful commercial venture in a
highly visible, "gateway" portion of the City that is at present
burdened by unsightly heavy industrial uses and their impacts.
As we stated in this report's introductory paragraphs, the real
question to the City Commission is whether it believes that it makes
good economic and business sense at this highly visible commercial
location for the City to replace an obsolete farm and feed supply
store with a modern and successful nightclub.
It's true that the City's present "Commerce" FLUM designation and
MIC zoning district classification for the DELRAY BEACH FARM SUPPLY
property doesn't authorize the type of progressive commercial activity
the Applicant is proposing. Absent any substantive, fact-based
reasons for recommending denial, staff has regressed to making bogus
arguments that attack the Applicant's credibility.
In deciding these matters, we respectfully suggest that the City
Commission's responsibility is to evaluate, weigh and balance all of
the competing interests, including the City staff's negatives against
the strong array of positives offered by the Applicant. There is no
extraordinary burden of proof on either the Applicant or the City
8
I ennis I% I celllef,
Commission that must be satisfied before these requests may be
approved. One of your public hearing participants [Ms. Jean Beer,
before the Planning & Zoning Board on May 19] incorrectly suggested
that "there must be a compelling need" before any request to amend the
City's Comprehensive Plan can be approved. That is untrue.
Ms. Beer, though a very knowledgable lay person, is obviously
unaware of or doesn't understand the legal burden of proof in all
Comprehensive Plan amendment and rezoning cases in Florida:
Applicants must support their requests with "competent, substantial
evidence," and the City Commission's decision, whether to approve or
deny, must be (at least) based on "fairly debatable evidence." Mrs.
Beer's "compelling need" test simply doesn't exist under Florida law,
and must be rejected by the City Commission.
IV. RECOMMENDATION. The Applicants respectfully ask the City
Commission to approve their request for a Future Land Use Map
Amendment from Commerce to General Commercial, and their rezoning
request from MIC to GC based upon positive findings with respect to
Chapter 3 (Performance Standards) of the Land Development Regulations,
policies of the Comprehensive Plan, and LDR Sections 2.4.5(D)(5)(b)
and (c).
DPK/ns
9
I enni I cehleF,
This Instrument Prepared By:
DENNIS P. KOEHLER, ESQ.
DENNIS P. KOEHLER, P.A.
]280 N. Congress Avenue, Suite 104
West Palm Beach, FL 33409
Telephone (561) 68~2844
Facsimile (561) 68~9370
DECLARATION OF RESTRICTIVE COVENANTS
THIS DECLARATION, made this ~7~ day of ~~-~ , 1997,
hereinafter set forth by HELEN D. OWENS ("OWENS"), whose address is
1701 West Atlantic Avenue, Delray Beach, Florida 33444, and DAVID
SHINE ("SHINE"), whose address is 15180 Monroe Road, Delray Beach
Florida, 33445 (hereinafter together referred to as "Declarants").
WI TNE S SETH:
WHEREAS, Declarant OWENS is Owner and Landlord of DELRAY BEACH
FARM SUPPLY, INC., an existing commercial business located at 1701
west Atlantic Avenue in the City of Delray Beach, Florida ("Owens
Property"), more particularly described in Exhibit "A," attached
hereto and incorporated by reference herein; and
WHEREAS, Declarant SHINE entered into a long-term Lease Agreement
with OWENS on March 14, 1997 for the Owens Property, for the purpose
of redeveloping and operating it as a nightclub with live
entertainment during the evening hours only; and
WHEREAS, Declarants voluntarily and of their own free will, and
not as a condition of rezoning or any other government approvals,
desire to develop and use the Owens Property exclusively as a
nightclub during the evening hours only, i.e. between 6:30 p.m. and
2:30 a.m. daily, including weekends and holidays; and
ARTICLE IV
These covenants, conditions and restrictions shall upon execution
be recorded in the Public Records of Palm Beach County, Florida, but
shall not become effective unless and until after the Owens Property
has been rezoned to the CITY's GC - General Commercial zoning district
classification.
ARTICLE V
Subject to the foregoing, these covenants, conditions and
restrictions shall run with the land and shall be binding upon the
Declarants, their successors and assigns, and all parties claiming by,
through or under it shall be taken to hold, agree and covenant with
the Declarants, their successors and assigns, to conform to and
observe said restrictions as to the use of the subject property and
the construction of improvements thereupon; and further, the
Dectarants, their successors and assigns and the CITY shall have the
right to enforce the said covenants, conditions and restrictions,
including the right to sue for and obtain an injunction prohibitive or
mandatory, to prevent the breach of said covenants, conditions,
restrictions, without showing of special damages.
ARTICLE VI
These covenants, conditions and restrictions shall be binding
upon the property herein described, upon the Declarants and their
heirs, successors and assigns, and upon all transferors and
transferees of the title to the property described herein, and upon
execution shall be recorded in the Public Records of Palm Beach
County, Florida.
ARTICLE VII
The original deed of conveyance out of Declarant OWENS, her
heirs, assigns or successors, and all subsequent transfers,
assignments or deeds of conveyance out of subsequent owners of the
subject property, shall, during the term of these covenants,
conditions and restrictions, contain conspicuous language specifically
subjecting the Owens Property to these covenants, conditions and
restrictions and to their date of recordation in the Public Records of
Palm Beach County, Florida.
ARTICLE VIII
These covenants may not be extinguished or amended in whole or in
part except by agreement of the Declarants, their heirs, successors or
assigns, and then only after approval by the City of Delray Beach,
Florida.
IN WITNESS WHEREOF, Declarant HELEN D. OWENS and Declarant DAVID
SHINE, the parties hereto, have signed, sealed and delivered these
presents as their own free act and deed as of the day and year first
above written.
HELEN D. OWENS
IN q~E PRESENCE OF:
':A 2 /.z'~,,~~ Helen D. Owens
STATE OF FLORIDA )
COUNTY OF PALM BEACH )
The~foregoing instrument was acknowledged before me this
~ day of ~//~_ , 1997 by Helen D. Owens, and that he/she is
personally ~nown to me or who has produced
a~i~entificaqion an~-who did (did not) take an oath.
4
DAVID SHINE
David Sh~no
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this
~ day of ~t~ , 1997 by David Shine, and that he/she
or who has produced
personall kno e
a~d~tification and who did (di~ot) take an oa%h.
Notar~ Public, State of Florida
NOTARY SEAL Co~ission No.
e
My co~ission
Exhibit "A"
Legal Description
Lot 1, "Owens Commercial Subdivision", according to the Plat thereof,
as recorded in Plat Book 74, Pages 130-131 of the Public Records of
Palm Beach County, Florida.
6
This Instrument Prepared By:
BENNIS P. KOEHLER, ESQ.
DENNIS P. KOEHLER, P.A.
1280 N. Oongres$ Avenue, Suite 104
West Palm Beaoh, FL 33409
Telephone (58t) 884-2844
Facsimile (581) 884-9370
OFF SITE PARKING AGREEMENT
THIS AGREEMENT made this day of , 1997, by and
between GALE D. MORRELL, as Trustee under the Trust
Agreement dated June 11, 1990, whose address is 1351 Shenandoah Drive,
Rochester Hills, Michigan 48306-3854 ("EASTERN TRUST"); HELEN D.
OWENS, whose address is 1701 W. Atlantic Avenue, Delray Beach, Florida
33444, ("OWENS"); DAVID SHINE, whose address is 15180 Monroe Road,
Delray Beach, Florida 33445 "("SHINE"); and the CITY OF DELRAY BEACH,
FLORIDA ("CITY").
W I TNE S SETH:
WHEREAS, EASTERN TRUST is the owner of the Eastern Auto Care
Center ("Eastern Parcel"), located at 1601 W. Atlantic Avenue in the
CITY, which parcel includes a parking lot approved for 120 parking
spaces ("Parking Tract"), more particularly described in Exhibit "A",
attached hereto and incorporated by reference herein; and
WHEREAS, OWENS is the owner and lessor of Delray Beach Farm
Supply, Inc., an existing commercial business located directly east of
the Eastern Parcel at 1701 W. Atlantic Avenue in the CITY ("Owens
Property"), more particularly described in Exhibit "B," attached
hereto and incorporated by reference herein; and
WHEREAS, SHINE has entered into a long-term lease agreement with
OWENS for the Owens Property more particularly described in Exhibit
1
"B," for the purpose of redeveloping and operating it as nightclub
with live entertainment during the evening hours only, i.e. between
6:30 p.m. and 2:30 a.m. daily, including weekends and holidays; and
WHEREAS, SHINE and OWENS have applied to the City of Delray
Beach, Florida for those certain development orders and permits
necessary to allow development of a nightclub with live entertainment
on the Owens Property; and
WHEREAS, EASTERN TRUST wishes to make provisions for the use by
OWENS and SHINE of the Eastern Parcel's Parking Tract to service the
aforementioned nightclub, as shown on the attached conceptual site
plan ("the Plan"), attached hereto as Exhibit "C;" and
WHEREAS, for explanation and convenience but not to specifically
locate any buildings, structures, improvements or features, the
attached Exhibit "C" shows the relative locations of the properties
described in Exhibits "A" and "B;" and
WHEREAS, it is the desire of EASTERN TRUST, OWENS and SHINE to
each operate and maintain their respective properties with integration
of certain common areas for their mutual benefits as to parking.
NOW THEREFORE, in consideration of Ten Dollars ($10.00) and other
good and valuable consideration, EASTERN TRUST, OWENS and SHINE hereby
agree as follows:
1. The recitations set forth above are incorporated as if fully
set forth herein.
2. EASTERN TRUST hereby grants to OWENS and SHINE the right to
use and occupy the Eastern Parcel's Parking Tract for parking during
the evening hours only, i.e. between 6:30 p.m. and 2:30 a.m. daily,
including weekends and holidays, including but not limited to, the
right of ingress and egress to the Parking Tract.
2
3. EASTERN TRUST, OWENS and SHINE further agree as follows:
a. The parking spaces currently existing on the Eastern Parcel's
Parking Tract that are subject to this Agreement shall be assigned for
that purpose according to a plan approved by the CITY, which plan
shall require security and valet parking services. This Parking and
Security Plan is attached as Exhibit "D."
b. SHINE shall maintain the aforementioned Parking Tract
according to the Parking and Security Plan in a neat, clean and
sanitary condition, free from all garbage, trash, litter and debris
and provide whatever maintenance is required thereon, including, but
not limited to asphalt repair or repaying, painting lines thereon to
clearly mark the parking spaces, and replacement of any landscape
materials that may be damaged or destroyed by OWENS' and SHINE's use
of the Parking Tract.
c. In the event that EASTERN TRUST ever sells, transfers, or
otherwise disposes of the Eastern Parcel and as a result of such sale,
transfer or disposal the parking spaces referred to in paragraph 3.a
above are for any reason no longer available, they shall be provided
elsewhere by SHINE in accordance with the then current regulations
pertaining to parking which exist at the time of transfer, sale or
disposal referred to above, subject to CITY approval.
4. SHINE further agrees to pay to EASTERN TRUST as additional
consideration a rent of ONE HUNDRED DOLLARS ($100.00) for each month
that this Agreement remains in full force and effect, payable on the
first day of the first full month after the nightclub has received a
certificate of occupancy from. the CITY and on the first day of each
month thereafter until this Agreement is modified or terminated.
5. In the event that SHINE defaults in the payment of any rent
due hereunder or defaults on any other obligations under this
Agreement, and fails to cure such default within fifteen (15) days
3
after notice thereof, EASTERN TRUST may, at its option, proceed with
any and all of its remedies provided by Law and this Agreement,
including, but not limited to, the termination of this Agreement.
SHINE shall cease all use of the Parking Tract within thirty (30) days
after receiving notice of termination of this Agreement from EASTERN
TRUST, which may take possession of the Parking Tract on said date and
recover all rents and damages accrued or accruing hereunder.
6. For the payment of additional consideration of Ten Dollars
($10.00), receipt of which is hereby acknowledged,-OWENS and SHINE
shall, and hereby agree to indemnify and hold both EASTERN TRUST and
the CITY harmless from and against any and all judgments, damages,
claims and demands, losses, liabilities and other costs and expenses,
including reasonable attorney's fees incurred in the defense thereof,
that may be incurred by reason of any loss, damage or injury to any
person or property resulting directly or indirectly by reason of the
use and occupancy of the aforesaid parking spaces that are the subject
of this Agreement, or by the reason of the act, or failure to act of
OWENS, SHINE and EASTERN TRUST or their agents, employees or
representatives; and further shall, and hereby agree, to indemnify and
hold the CITY harmless from and against any and all losses, claims,
demands, costs, and expenses to which the CITY may become subject by
reason of the failure of EASTERN TRUST, SHINE or OWENS to perform or
observe any covenants, terms, conditions and provisions hereof.
7. SHINE agrees to obtain and keep in force throughout the term
of this Agreement a Commercial General Liability policy of combined
single limit for liability insurance and a Liquor Legal Liability
policy both including Gale D. Morrell, Trustee (Owner) as Additional
Insured, insuring EASTERN TRUST (and naming EASTERN TRUST as
additional assured thereupon) against any liability arising out of the
use, occupancy or maintenance of the Parking Tract. Such insurance
shall be in an amount not less than THREE MILLION DOLLARS
($3,000,000.00) per occurrence. The policy shall ensure performance
by SHINE of the indemnity provisions of Paragraph 4 herein.
4
8. Each party, except the CITY, shall pay all real property
taxes, charges and assessments levied or imposed on their respective
properties and all other taxes as may be imposed on them in the
future.
9. The CITY, by entering into this Agreement, accepts no
obligation to provide maintenance, nor does the CITY accept any
liability whatsoever associated with the use of the said Parking
Tract. The CITY's interest is solely to assure that its code of
ordinances regarding the number of required parking spaces is met.
10. This Agreement shall not be terminated, altered, limited,
changed or modified unless in writing and signed by all of the parties
hereto. This Agreement shall be binding upon, and run to the benefit
of, each party, its successors, assigns, or heirs, as the case may be.
This Agreement may be enforced by any of the parties thereto,
including but not limited to the CITY.
11. This Agreement may be recorded in the Public Records of Palm
Beach County, the expense of such recording to be borne by SHINE. In
the event this Agreement is ever revised, SHINE shall bear the expense
of recording said revision.
IN WITNESS WHEREOF, the parties hereto have executed these
presents and affixed their seals hereto as of the day and year first
above written.
[SPACE PURPOSELY LEFT BLANK]
5
TRUST
IN THE PRESENCE OF:
By:
Gale D. Morrell, Trustee
STATE OF MICHIGAN )
COUNTY OF )
The foregoing instrument was acknowledged before me this
day of , 1997 by Gale D. Morrell as Trustee, and that
he/she is personally known to me or who has produced
as identification and who did (did not) take an oath.
Notary Public, State of Michigan
NOTARY SEAL Commission No.
My commission expires:
HELEN D. OWENS
IN THE PRESENCE OF:
By:
Helen D. Owens
STATE OF FLORIDA )
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this
day of , 1997 by Helen D. Owens, and that he/she is
personally known to me or who has produced
as identification and who did (did not) take an oath.
Notary Public, State of Florida
NOTARY SEAL Commission No.
My commission expires:
My commission expires:
DAVID SHINE
IN~ OF: ~ c ~
STATE OF FLORIDA )
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this
day of ~/~t~_ 1997 by David Shine, and that he/she is
personally known to me or who has produced
a's z---i-~entification a--~-fl-~ who did (didst) take an oath.
NOT~Y SEAL Commission No. ~"~. D~,P.~r $
My commission exni~~ No~,Sm~.fF~ ~
CITY OF DELRAY BEACH, FLORIDA
ATTEST: By:
Jay Alperin, Mayor
City Clerk
Approved as to Form:
City Attorney
7
Exhibit
LEGAL DESCRIPTION - The Eastern Parcel_
Exhibit "B"
LEGAL DESCRIPTION -- The Owens Property
LOT 1, 'OWENS COMMERCIAL SUBDIVISION', ACCORDING TO THE PLAT
THEREOF AS RECORDED IN PLAT BOOK 74, PAGES 130-131 OF THE PUBLIC
RECORDS OF PALM BEACH COUNTY, FLORIDA.
SAID LANDS LYING IN THE CITY OF DELRAY BEACH, PALM BEACH
COUNTY, FLORIDA, CONTAINING 16,975 SQUARE FEET (0.3897 ACRES),
MORE OR LESS.
Exhibit
PARKING AND SECURITY PLAN
LOCATION MAP
I
I
P~LLEL SPACES ~q:~
~o~ ~,c~ '
.......................................................... ~ /} =
IIIiil1¢1 ~R I!'U"I~I~ !till ' -
~ : : ~ L~
~1~ : ~ ................. i :
~ ~ ~ , - :
~ ~ -
"'~
~c
B~SED ON BUILDING PLANS NOT CER~D SUR~Y
IN~NDED FOR ILLUST~TI~ P~OSES
CONCEPTUAL VALET PARKING PLAN
Alt patrons will be required to utilize valet park/ng. Entw into the night club will require a valet
parking stub.
The valet drop offand pick up will be on tile Owens Club Site along the west face of the building and
signed for that purpose. No patrons will be permitted to enter the Eastern Auto Care (EAC) lot to
pm'k or pick up their vehicles.
The valet parking system will be operated by a professional valet parking sen, ice and staff The valet
parking operations will utilize the northeast driveway of the EAC property with the southern
driveway blocked with tile use of a removable barricades. The removable barricades will maintain
emergency access to the fire lanes around all buildings on the EAC property.
Parking will begin at the rear of the EAC property to minimize interference with any business
remainh~g open after during the early arrival period for club patrons. After the business hours for the
EAC tenants, the barricades will be erected at south driveway coupled with portable signs to direct
club patrons to the valet drop-off area. Subject to City approval, signs wilt be erected prohibiting
parking on the swales along N.W. 18th Avenue to prevent damage. Any cars left overnight will be
relocated to the Owens property by the valet service at the close of business.
_C__ommunications
EAC manager will co~m~unicate in writing directly to the club m,'mager to resolve any questions or
complaints..Club will respond in writing within 24 hours to m~y written inquiries.
Security.
Patron. s will be prohibited to enter the EAC par'king area. No keys will be relea_qed by the valet
service. A security ~ard will be located on the EAC property during operating hours to secure cars
and business. Guard will use as a base of operations the north driveway to further prevent
unauthorized c~s to enter the lot. Guard will be equipped with a radio and/or will phone to contact
the police or club, if necessary.
Parking
The EAC property currently provides 109 accessible parking spaces.
Valet parking can result in effective eight (8) feet wide stalls which will increase' overall parking by
a minimum of six (6) spaces for regular parking spaces.
Parallel parking stalls placed in a row providing an eight (8) foot width m~d twenty-two foot length
can be located along the rear of the north and west parking rows. These will result in a gain of
twenty-two (22) spaces.
The overall n~mum parking capacity of the EAC property with valet parking services will total an
approximate 139 spaces. Seven (7) spaces can be positioned on the Owens property exclusive of the
Yalet lane increasing p,~.king capacity between these properties to 1.46 spaces. Additional spaces
could be gained by utilizing the other two buildings north of the Owens property.
~le: o:\1 ~;SSS~valet.wpd
dc,,,' J. C, /" l 'J 'J ," ib;U~, t,t, lL~qi:;,"'.Z"Zt CITY tIIF DELRa'"¢ BEA,:-:H F"~GE 13_:I
The item before t~e Board is that of making a recommendation te the Ci~.
Commission on a' Privately-sponsored SmalPScale Future Land Use Map
Amendment from~Commerce to General Commercial and a rezoning from
MIC (Mixed lnduCrial and Commercial) to GC (General Commercial).
The subject propb~ is located at the no~hwest corner of Atlantic Avenue
and the CSX Railroad, immediately west of l-gd.
..........................
[~ ¢~E~J :~;~: ~,: ,k:(:;:; ~:~,~;;~::,:~:::~:¢:~:::?~:~:~.t-~.:.~..:.?~.:,...:. ~:, ,:.:-:~ :.:.:.:~,?... ~...................., ~ .........................
The subject prope~ consists of Lot 1, Owens Commercial Subdivision, containing 0.39
acres, at the south end of the overall 3 lot subdivision. Lot 1 contains a 7,173 8q.~.
building which was con~tru~ed in 1952 and is currently occupied by a farm supply store
(Delray Beach Farm S~pply, Inc.). The balance of the Owens Commercial Subdivision
consists of Lot 2 (middl~ lot) containing an 8,505 sq.~. industrial building (constructed in
1974), and Lot 3 (nO~hernmost lot) containing a 10,740 sq.~. industrial building
(constructed in 1962; ~additions constructed 1965 and 1968). The businesses that
currently exist on Lots i2 and 3 are as follows: Lot 2 -- Econo Auto Paint; and, Lot 3 --
Tile and Marble ~o(esale, Inc., Modern Mica Design, Excellent Auto, Inc. and a
contrabtor's o~ce (Warren Clyde Kidd, Jr.).
On November 12, 19~2, the subject prope~ along with other propedies within the
vicini~ no~h of Atlanti6 Avenue, east of Congress Avenue and west of the CSX railroad
. we[e annexed into the Ci~ of Delray Beach with an initial zoning designation of C-3
~olesale and Light Industrial District).
in 1972, the prope~ie~ zoned C-3 were rezoned to L! (Light Industrial). In March of
1977, the Ci~ Council (now Ci~ Commission) approved a conditional use request to
establish an automobile paint body and repair shop (Econo Auto Painting) within the
· existing .warehouse ¢, building in the middle of the overall development.
In late 1977, ~he subj%t prope~ along with other propedies in this area was rezoned
from LI to M! (Medium,Industrial).
With the adoption of~the Ci~'s Comprehensive Plan and Future Land Use Map in
Novembar, 1989, the ~and use designation of the prope~ was changed from Industrial
to Commerce. Subsequently, with the Ci~ide rezonings and adoption of the Land
Development Regulations in October 1990, th~ prope~ was rezoned from MI to MIC
(Mixed Industrial and Commercial).
On November 15, 19~4, the Ci~ Commission approved the final plat for the Owens
Commercial SubdivisiCn. In conjunction with the plat a cross-parking and drainage
'agreement was executed as the plat also subdivided required parking spaces and
drainage flows narosa~prope~
~5/'15/1997 15:~35 5E, t 24:372'21 C:ZTY OF DELRAY E;EACiH PAGE
'Planning and Zoning Board Staff Repo~
'Small-Scale FLUM Amendmeht from Commerce to General Commercial and Rezoning from MIC to GC
Page 2
On April 4, 1997, a request for a Future Land Use Map amendment and Rezoning to
GC (General Commercial) for Lot 1 was submi~ed and is now before the Board for
action.
The proposal is to change the Future Land Use Map designation for the prope~ from
Commerce to General Commercial and rezone the prope~ from MIC (Mixed Industrial
and Commercial) to GC (General Commercial). The subject prope~ is currently
occupied by a fa~ supply store (Delray Beach Farm Supply, Inc.). The building
contains 5,380 sq.~. or,wholesale/warehouse space and 1,793 sq.~. of retail space. If
the FLUM amendment~ and rezoning are approved, it is anticipated-that a site plan
modification request wil) follow to establish a countw and western bar.
E~oridaS~tutes 163.8181 ~ 8mall 8sale Land USe Map Amendmen~
This Future Land USe Map Amendment is being processed as a Small-Scale
Development pursuant~to Florida Statutes 163,3187. This statute states that any local
government comprehensive land use amendments directly related to proposed small
scale development activities may be approved without regard to statutow limits on the
frequency of consideration of amendments (~ice a yea0, subject to the following
conditions:
The amendment does not exceed 10 acres of land;
The cumulative effect of the amendment¢ processed under this section shall not
exceed 120 acres within designated redevelopment and tra~c concurrency
exception areaS, or 80 acres annually in areas lying outside the designated
areas; and,
The proposed amendment does not involve the same prope~, or the same
owner's prope~ within 200 feet of prope~, granted a change within a pedod of
12 months.
The Future Land Use ~ap amendment involves a 0.39 acre area, thus the total area is
less than the 10 acre maximum. The amendment to General Commercial is being
processed concurrenUy with a rezoning request to GC (General Commercial) to
f~olllt~te establishing ~a oount~ and western bar within th~ existing building es a
pertained use. The pr°pe~ i8 not located within a designated redevelopment or
concurrency ex~pti0n area. This amendment along with other small-scale
amendments processbd thi~ year, outside the designated areas, will not exceed 60
a=res, This prope~ ~a8 not previous!y baen considered for a land use amendment nor
has the same prope~ owner's propedies been granted a land use change within 200
05/15/1')')7 15:85 5612q:':-:7221 CifTY
Planning and Zoning Board Siaff Report
Small-Scale FLUM Amendment from Commerce to General Commercial and Rezonlng from MIC to GC
Page 3
feet or within the last year. Therefore, the property meets the criteria for processing as
a small-scale amendment.
COMPREHENSIVE PLAN POLIGIES:
A review of the objectives and policies of the adopted Comprehensive Plan was
conducted and the following applicable policy was found.
..Future Land Use Element Policy A-1.4; "Commerce" Land Use which involves a
mix of tight industrial, c°mmercial uses~ and research and development are the
most needed land uses during the City's final stage of build-out. Thus, changes
to the Land Use Map Which diminish this land use are discouraged.
~ While the Objective rdgarding this policy:mfer,S t,°,'vaca, nt.'!and ~t is also relevant to
developed Commerce-designated land. Ci~ stab" conducted an inventory of Commerce
designated parcels, both vacant and developed. There is a total of 246 acres, of which
160 are developed and 86 are vacant. The 246 acres represents approximatety 3% of
the City's total acreage. While the subject Erope,rty is only, 0.39 acres, the 13roposed_'
~EEUM a ,~, endment
article in Florida Trend estimated that 9 out of every 10 jobs in Florida are created by
small .firms. According to a 1995 business profile of Delray Beach, conducted by Urban
Decision Systems, approximately 90% of "commerce" type businesses in the City are
relatively small, employing 20 or fewer people. This indicates that even the smaller
parcels within the City are important in terms ef satisfying this policy regarding
Commerce land uses.
Future Land Use Element Policv A-1.6 - T.,o encouraae redevelopment of the City's
C_entraJ Buszness District, Future Land Use Map amendments to Commercial
designations "'in outlying--areas of the City's Planning Area, shall not be
considered ........
_The proposal is inconsistent with this policy. While the petition involves a relatively
small parcel, its purpose is to accommodate a night club/entertainment use which v~ill
c~,mpete with t~e re~16veloDment efforts in the Cis Central Bu .... -
~.~ p~uper~y ~s ~o~ate(~ a~jacen[ to and ~s easily accessible from !-95, the use will be
p, rima.rily a d_e. stinatio.:n type. use .and will,not encourage customers to visit the bi~v's
~_,o,w,,ntow.ni, I,,nere, ar~ exis!in,cI cgmmerciall¥ zoned nrooerties throU~qhou[ the 'City tidal
can easit accommodate the r ...... · " '" '~'--
- Y ........ ~ ooosed use. if the amendment ~s approved, similar
requests to accommodate commercial uses~"long this section of Atlantic Avenue/N.W.
18th Avenue ma)/,occur_.
Traffic Element policy A-S.;) . The City ahall ~ the
overcommerciallzati0n of intersections by restricting land uses which are high
traffic generators to ho more than two adjoining streets.
F_.~5.,."lS/'1'_R97 15:05 5E, 124:37221 CTTY L-IF DEL. RAY E'AC:H PAGE 06
Planning and Zoning Board Staff Report
Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC
Page 4 :
The proposal is inconsistent with this polic[. The subject property is located within 700
Ireet of the intersection of Congress and Atlantic Avenues, and 200 feet of the
intersection of Atlantic Avenue and N.W. 18th Avenue. The intersection of A,tlant!c an_d.
Con.qre_ss _Avenue is commercialized with two ,gasoline-stati,o,r~s, _a carl3et~to_r~__a._n.d_ a,
sho p,!ng cent_e_r,.-TT ~s amendment and re~'~ni'n~] to GO will result in commercial
P
~:oning'within'"an industrial area,which is not easily.acqes~Lble from At.l.antio Avenue, and
Wl~ich:: can, accommodate: high:i traffic:::.cleneratihg ~ COmmercial, us,,,es ~such as,,, fast food /~.c~ ~,'
restaura~!s, ,night clubS~ conve,nience st~,r, es~ and g,enera! re,ta~! uses. VVh~le the MIC
~oning ali6~s ~etail' Usesl they are limited t° no more tt~n 25% of the~otal floor area of
the building and typi,cally involve items that can be manufactured, fabricated or
assembled within the MIC district.
Land Use Analysis: ,.
Pursuant to Land Development Regulations Section 3,1,1(A) (Futu~'e Land Use
Map), ali land uses and resulting structures must be allowed in the zoning district
within which the land is situated and, said zoning must be consistent with the
land use designation as shown on the Future Land Use Map,
The proposed General Commercial Future Land Use Map designation will allow the
following zoning classifications: GC (General Commercial), PC (Planned Commercial),
AC (Automotive Commercial), NC (Neighborhood Commercial), POC (Planned Office
Center), POD (ProfesSional and Office District), RT (Resort Tourism), CF (Community
Facilities), OS (Open Space), and OSR (Open Space and Recreation).
In conjunction with the Future Land Use Map amendment to General Commercial, a
rezoning to GC (General Commercial) is being sought. The FLUM amendment a_n_d
rezoning to G,,,,c are ,being processed concurrent? to facilitate establishing a Co_untry and,
~ester-n~ bar_. Within :the GC Zone diStrict,-~ight clubs and bars aTe"ailowed ~s a
permitted use. Based upon the above, a positive finding with., respe, ct to cons!stench/'
with t, he propos_ed ,FLUM and zonin9 desig,nations can be made___~.
Ad_iacent Future. Land Use MaD Designations, Zonin_a Designations & Land Uses:
North and W_eat: North and west of the property has a Future Land Use Map
designation of Commerce and is zoned MIC (Mixed Industrial and Commercial). The
existing land uses inblude automobile paint, body and repair shops (Econo Auto
Painting, Eastern Autoi Care Center/NTW Tires, ~tc.).
South: South, across Atlantic Avenue, has a FLUM designation of Commerce and is
zoned MIC (Mixed IndUstrial and Commercial). The existing land use is the CSPJRinker
concrete products mar~ufacturing facility.
05/15/1997 15:F_'15 561:2.437'231 C]:T¥ L-iF r)ELRAY REACH PAGE 07
Planning and Zoning Board Staff Report
Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC
Page 5
East: East of the property, across the CSX railroad tracks, has a Future Land Use Map
designation of General Commercial and is zoned GC. The existing land use is a
contractor's office (George B. Wittmer Associates, Inc.)
Allowable_ Land Uses;
The current Commerce FLUM designation allows the following zoning classifications:
RT (Resort Tourism), !PCC (Planned Commerce Center), MIC (Mixed Industrial and
Commercial) and LI '.(Light industrial). With the exception of RT, these zoning
designations are primarily intended for industrial type uses such as manufacturing,
fabrication, assembly, itc. which allows a mix of service and commercial uses. The RT
allows uses that can be complementa~ to an industrial park sefling, such as.hotels and/
onferen~e faci,li,tieS~,~.;~he subject prope~ is currently zoned MIC which allows a
Under the proposed General Commercial FLUM designation, commercial developments
under a varie~ of zoning designatioh~ (GC, PC, NO , AC, RT, POC and POD) are
allowed. The applicant has requested a zonin~ designation of G~ (General
Commercial), which permitS~'~igh~intensi~ commercial useS SUch as ~asoline,stations,
night clubs, c~ngenience ,stores, and fast food-restaUrantS; ~ig~ tur~0Ver sit-dgW~
restaurants as well as O~ce and other retail us~s.
Land Use & Zoning ComoatibiliW:
As described in the Future Land Use Element of the Comprehensive Plan, the
Commerce land use designation is applied to prope~ which is developed, or is to be
developed, in such a: manner as to accommodate a mix of industrial, se~ice, and
limited commercial us:es. This may be done either through development of existing
parcels or through a planned concept, The proposed General Commercial land use
designation is to be applied to land which is, or should be, developed for general
commercial purposes ~.g. retail, o~ce, se~ices.
The adjacent prope~ies to the no~h, south and west have a Commerce land use
designation, are zoned MIC, and contain industrial uses. The prope~ to the east is
zoned GC but is occupied b~ a contractor's o~ce~ which is compatible With industrial
~pe uses. ~lso, it is; separated from the subject industrial area by the CSX railroad
tracks and takes acceSs from Lake Ida Road.
The ~ompatibiliN. of:-the orooosed.-GC..zoning~with the, ~diacent' industrial~uses i{ ~
~ncernTas rezoning to GC allows high tra~c generating commercial uses, while the
MIC zoning allows industrial uses which general¥ have Iow tra~c volumes. The
~pplicant has stated that the business hours are limited to the evening hours (~0 p.m.
to 2:00 a.m.) at whichtime the adjacent industrial uses are closed. However, once-the?
~6b'e~"i~0~'~d th'e'' h&~r~0f::0~'e~ati0~'~pnnot be r~eulat~;~)The GC zonin~ allows
uses that may be open during the da~ime and evenings, are high tra~c generators,
t~15/15,/19'~? 15:E15 5E, 1243721! CITY CF D£LF,:AY B:£AC',H PAGE EIB
Planning and Zoning Board Staff Report
~mall~Scale FLUM Amendment from Commerce to General Commercial and Rezoni.ng from MIC to.
and have a greater parl~mg demand. Commercial uses which would I-'~oc 'to at or near a
· 1
busy intersection such ias this (ge. gasoline station, convenlence store), are typioa ly
open 24 hours. While! peak hour traffic generation of the industrial uses may occur
during the morning and evemng hours, traffic-,to':'a'¥commerc~al~busmess~;w~llxbe~'
! .... t I ~ '~'-- :'"" ' ' -
· contlnuous.::w?h~peakhO.u, rs...C_,01nc~d~n.q.w!~h;~o'rmal.p_e_a~cLbo~tr~. Based upon the
~' the p¢O~-osed-land "-U% designa(ion will be inConSistent w~th the existing
Commerce designation ion surrounding properties.
CONCURRENCY: Facilities which are provided by, or through, the City shall be
provided, to new deYelopment concurrent with issuance of a Certificate of
Occupancy. These facilities shall be provided pursuant to levels of service
established within the Comprehensive Plan.
Water and Sewe, r;
Q Water service exist~ via a service lateral connection to an 8" water main along N.W.
18th Avenue. Adec~uate fire suppression is provided via existing hydrants along the
west side of N.W. li8th Avenue. No off-site water main extensions and/or upgrades
are required with this development proposal.
Q Currently, there are no sewer mains installed to serve the properties along this
section of N.W. 18~h Avenue. Sewage for the existing wholesale/retail operation is
accommodated vial, an existing on-site septic system. The proposed land use and
zoning change will allow uses that have a much greater demand on sewage
facilities, such as rbstaurants. The proposed conversion of the structure to a night
~/~ club will ara minimum require upgrading of the existing septic system. Given the · intensity, of the pro.hosed night club use, installation of a lift station and a force main
to connect to the 'exit(lng main along Congress Avenue may be required. --
Pursuant to the Comprehensive Plan, treatment capacity is available at the City's Water
· Treatment Plant and !he South Centoal County Waste Wa~(~r Treatment Plant for the
City at build-out.
i
With FLUM amendment and rezoning requests drainage plans are not required. The
site was originally eng."ineered to drain into swale areas along N.W. 18th Avenue. Over
time the swale areas ]have been destroyed and paved. If the FLUM amendment and
rezoning .is .approved,! a site plan modification submittal will follow. At that time, plans
must be provided whkJh indicate removal of the paving and the installation of swales.'"
The current use of a farm supply/feed store generates approximately 50 daily trips, The
propoeed use of a cduntry and western bar would generate
05/'15/1997 15:05 561'2~37'?CJl CITY FIF DELRAY BEACH
P~mnnfng and Zon~n~ Board :S~ff RepoR
Small-Scale FLUM AmendCent from Commerce to General Commercial and Rezoning from MIC to GC
Page 7
trips, a net increase of 538 trips. The traffic study indicates this specific project can
meet traffic concurrency. However, as the proposal before the Beard is ~e rezone the
parcel to Generat Commercial, and ~ce rezoned an~,,use in the GC zone district coU~
be established,~hese numbers are of~i~le significan~'~ The ~~his action muse
~ddreSs the pote~ai"i~"~"{~'-~¥'~"'~se undo{ the GC district as there' is n~,
guarantee.~hat.this pro~ed~ use.will be established or that it will nOt be replaced
f~ur~ with~m~re intense-use allowed u~der th~: ~~6~7~ C~/~~.
While the current use of the prope~ (fa~ supply/feed store~generates approximately
50 trips, the maximum deve opme~~~_current ~lQ..zon~ng_(~%
i~strial,?~ ~F~l?.~_0Uld_generate a roximatel 352 dali tri~ The maximum
development potential under the proposed GC zoning designation is significantly
higher. For example,~ a retail use will generate approximately 750 trips, a fast food
restaurant 3,174 daily~ trips, and a convenience store 2,911 daily trips. Therefore, a
rezoning approval to ~eneral Commercial may result in daily tra~o increases of: 113%
for retail, 727% for co,~venience store, and 801% for fast food restaurant.
This increase in traffic is~t concern i n t ' f the site and the
festriction's 0f right t~r~--'~-i~-at 't6e 15tersection of Atlantic Avenue and N.W. 18th
Avenue. The "right (Urn only" sign was installed to prevent vehicles on N.W. 18th
Avende from making left turns onto eastbound Atlantic Avenue, due to the intersection's
proximiW to the railroad tracks, 1-95 interchange, and the Atlantic/Congress intersection.
~th the restriction to right turn only at N.W, !8th Avenue and Atlantic Avenue all trips
desiring to go eastbodnd on Atlantic Avenue from the site must first g~ west
~ U-tUrn a~ Conar~ss; and,Atlant~A~Ue." An analYsis of the Westbound left turn
~tora~e~Uring peak flours was conducted °n Wednesday May 7~ and Thursday May
~ 8th. The results of the analysis indicate that in the AM peak hogr (7:~0 AM to 8:30
~,¢1 the leff...turn laqe' sto~age~__in¢dequaje (o~e~ow8 i~t'~-Westb~und-t~avel"l'anes) an
average of 20 out of 25 cycles or 80% of the time. In the PM peak (4:30 PM to 5:3~
PM) the left ~.urn stora~¢~ai.ls an average of 5 o~ 2~ ~c!e~or ap~b~imately-2o%
time. The tra~8 stud~ submi~-ed With this proposal indi~tes that the tra~o distribution
will be primarily from; 1-95 to and from the site. However, as previously indicated,
eastbound tra~c most first go west and make a u-turn, thus impacting the
.r Congress/Atlantic intersection. The appli~nt argues that since the proposed u~e will,
¢~r./,F operate at niaht,it will hot affect t~e intersection at these oeak hOUrs. '~ain a reZcning
{cannot be t~ed to e smele us~; therefore it must be evaluated in te~s of all potential
Uses, many of which 8ould ~gnificantly affect this intersection at peak hours. Fu~her,
:
t~15/15/1997 15:i)5 5~,12~37221 ,=:ITY OF DELRAY £:EAOH' PAGE 18
Planning and Zoning Board Siaff RepoR
Small-$c~le PLUg Amendmen~ from Oomm~¢e ~o General Comme~¢Ia~ and Rezoning [~om WIG ~o GO
Page 8 ,
Park~ an_d Recreation;;
Park and dedication requirements do not apply to nonresidential uses. Thus, there will
be no impact on this level of service standard.
Trash generated eachlyear by the proposed commercial use would be equal to or
slightly greater than trash generated from the uses allowed by the applicable zoning
districts of the Commerce land use designation (MIC, PCC, LI, RT). The development
of these properties under the General Commer.cial land use designation should not
create an adverse impact on this level of service standard.
REQUIRED FINDINGS: (Chapter 3)
Pursuant to Sectioh 3.1,t (Requil'ed Findings), prior to the approval of
development applications, certain findings must be made in a form which is part
of the official recocd. This may be achieved through information on the
application, the staff.' report, or minutes, Findings shall be made by the body
which has the authority to approve or deny the development application. These
findings relate to the Future Land Use Map, Concurrency, Comprehensive Plar~
Consistency and compliance with the Land Development Regulations,
I=uture Land Use Map, Concurrency and Comprehensive Plan Consistency were
previously discussed Under the Future Land Use Map Analysis section of this report.
Compliance with resp;ect to Compliancs with the Land Development Regulations
(Standards for Rezoding Actions, Rezoning Findlngs) are discussed below,
OONSISTENCY~ compliance with the performance standards set forth in Section
3.3.2 (Standards for Rezoning Actions) along with required findings in Section
2.4,5(D)(5) (Re.z. oning Findings) shall be the basis upon which a finding of overall
consistency is to be made. Other objectives and policies found in the adopted
Comprehensive Plan may be used in the making of a finding of overall
consistency.
.Section 3.3.2 (Standards for Rezoning Actions): Standards A and B are not
applicable, The app!icable performance standard of Section 3,3.2 Is as follows:
(C) Additional strip commercial zoning on vacant properties shall be avoided.
This policy shall not preclude rezonings on land that at the time of
rezoning has improvements on it. Where existing strip commerclal areas
or zoning exists, along an arterial street, consideration should be given to
0~,/15/1LP'q7 1._. FIE 561=4._-,,-..'=1 CITY I-IF D£LRAY 2;EACH PA6E 11
Pl~nnin§ aad Zoning Boar~ Staff Repo~
$malk$cale PLUM Amendmen[ f~om Comme~¢~ ~0 6eneml Oommemial and Rezoning Imm MtO to
Page 9
increasing the depth of the commercial zoning in order to provide for better
project desigm
The proposed GC zoning would allow inappropriate commercial zoning on a
developed parcel of land. The subject"property is one parcel of an overall 3
parcel subdivision with an overall width of 670 feet and a depth of Only 100 feet.
The properties !currently have back-out parking onto N.W. 18th Avenue, and
substandard parking lots between the buildings. As a!! the properties are
developed and are located between the CSX railroad and N.W. 18th Avenue,
there is no ability to aggregate additional land to provide a well-planned
commercial de~'elopment. Thus, rezoning the property to GC would be
inconsistent with~ this performance standard.
(D) That the rez..oqing shall result in allowing land uses which are deemed
compatible with adjacent and nearby land uses both existing and
proposed; or !that if an incompatibility may occur, that sufficient
regulations exist to properly mitigate adverse impacts from the new use,
The properties tb the north, south and west are industrial in character and are
zoned MIC, whiie to the ~ast is zoned GO, and contains a contactor's office.
Compatibility with the adjacent industrial uses is a concern. As previously stated
under the Futulre Land Use Map Analysis of this report, the GC zoning
designation allows uses that are much more intense than those allowed in the
MIC zone distric.'t. Given the limited on-site parking that is available, and the
potential conflicts between commercial and industrial traffic, a positive finding
with respect to tl~is standard cannot be made.
Section 2,4,5(D)(5) (Rezoning Fin_dings}:
Pursuant to Section 2.4.5(D)(5) (Findings), in addition to provisions of Section
3.t;1, the City CommiSsion must make a finding that the rezoning fulfills one of
the reasons for whidh the rezoning change is being sought, These reasons
Include the following:
a. That the zoning had previously been changed, or was originally
established, in error;
b. That there has ;been a change in circumstances which make the current
zoning inappropriate; and,
c. That the requested zoning is of similar Intensity' as allowed under the
Future Land use Map and that it is more a_o_Droprial_ to_ for the property based
upon circumstances particular to the site and/or neighborhood.
CITY Ill? DELRAY £;EA¢:H PAGE 1'2
Planning and Zoning Board ~taff Report
Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC
Page 10 ~
The applicant has submitted a justification statement which states the following:
· The subjec! property has operated as a farm supply store for the past forty-
four years,i The store was established when Delray had a farming
community 'and the location was appropriate. However, the urbanization of
Delray Bea..ch makes current use inappropriate at this location. The
property owner has seen Atlantic Avenue expanded many times and
developed ,~ a commercial com'dor.
This reques, t is to change a smafl 0.38 acre parcel of land to a commercial
zoning reflecting the highest and best use of use of the property. There
currently e~ists sim#ar commercial zoning immediately to the east, and
fronting onl both sides of Atlantic Avenue at three quadrants of the
intersectioni of Congress Avenue, The other quadrant of Congress and
Atlantic is also commercial zoned, PC.
· The requesied rezoning to GC is best suited for this small parcel and not
planned co.m, mercial designations.
· The request, ed zoning district is intended for applications on arterials such
as Atlantic Avenue.
· This request is compatible with adjacent areas.
· No residential areas will be disturbed.
· Current reglulations permit uses which will generate more traffic than the
proposed use,
· The propel, ed use will upgrade the frontage along the major entryway of
Delray Beach.
· The applicant will voluntarily limit the hours of operation to night time only to
reduce traffic impacts,
Comment: The justific',ation statement appears to address Items "b" and "c" as the
basis for which the reZoning should be granted -- that there has been a change in
circumstances which make the current zoning inappropriate, the rezoning is of similar
intensity as allowed under the Future Land Use Map and it is more appropriate for the
property based upon ~ircumstances particular to the site. Those arguments are
discussed below. '
The change in circumstances referred to by the applicant is that the urbanization of the
City has made a farm ~.upply store obsolete. This argument might make sense if the
property were zoned Agricultural and had uses limited to agricultural related activities.
However, that is clearlylnot the case in this situation. The property has a land use and
zoning designation thatI allows for a variety of ether uses. It is located in an industrial
area with a number ofi viable businesses that have been successfully operating for
many years. The appl!cant's argument is applicable only to the use that is currently
occupying the buildingI A change in the economic circumstances of a parti6ular
business is not a valid basis to alter the land use and zoning designations of the
...... ~-,1~'~.:,,~1 CIYY C.!F DELR~Y BE~CH P'~GE 12
Planning and Zoning Board Staff Report
Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC
Page 11
property on which it is located. The fact that Delray Beach has become more urbanized
· ~ ~
makes those Inctustr al uses more valuable to the City s continued economic health.
The purpose and intent of the GC zone district states that the GC zoning is app['opriate
for small parcels which are best suited for general retail and office uses, and along
arterial and collector sti'eets. However;',.~thiS~argumentfcannot bei use~d!t0 §upp0rt th.e! ~"//'~"~
establishment of'a 7;173:sq,fti 'night"clUb-6~reStaurant on a parcel that is'lesS., than a
haf:an::acre in size. :,Further, while the property fronts an arterial ~treet, it is only
accessible from a local' street containing industrial uses. As the property is within an
industrial area and contains minimal parking, it is not well-suited for general commercial
uses. Compatibility of ~he GC zoning with the adjacent M1C zoning and uses must also
be taken into consideration as discussed previously in this report.
With regard to traffic, the applicant's contention that the MIC zone district contains
permitted uses that will generate more traffic that the proposed night club use is not
valid. As noted in the Section of the report dealing with traffic, most of the uses allowed
in GC zoning are much~ higher traffic generators than industrial type uses. With regard
to the statement thatl the use will upgrade the property frontage, it is noted that
landscape upgrades were required as part of the subdivision plat approved in 1994,
however, that landscaping has not been installed. Finally,~,the offer, by the applicant to
Wolunt?il7 limit the hours of operation is unenforceable a~a condition of a mzoninu..__
Once the property is rexoned, any of-the uses permitted in the (30 district may apply to
establish at this location, and the Oity would have no abilit~ to re,trier tho hours of
operation.
Based upon the above, a finding cannot be made that the rezoning fulfills any of the
reasons for which a rezoning should be granted.
COMPLIAN~;E_WITH LAND DEVELOPMENT REGULATIONS:
Parkin~
The existing development has 3 separate parcels which share 28 parking spaces. This
is accomplished through cross-access easements and a cross-parking agreement
between the 3 parcelsI However, while 28 spaces are available, a total of 96 spaces is
required by code to i accommodate the current uses. Thus, there is an existing
deficiency of 68 spaces. Uses allowed i.n. the GC zoning district typically have a higher
parking requirement ihan industrial uses. For example, pursuant to LDR Section
4.6.9(C)(5)(a), industrial uses require 3 spaces per ~,000 sq.ft., and 1 space for each
1,000 sq.ff, of storage area. By contrast, restaurants, night clubs and lounges are
'required to provide 12 spaces per t,000 sq.ff, up to 6,000. sq.ff., then 15 spaces per
1;000 sq.ff, over 6,000 sq.ff. Based upon the above, the proposed night club requires
90 parking spaces. ,~ssuming that a third of the 28 existing spaces (9 spaces) are
allocated to the subjebt property, the on-site parking deficiency would increase to 149
spaces. The applicant proposes to provide required parking off-site via an off. site
Planning and Zoning Board Staff ReDoK
Small-Scale FLUM Amendment from Commerce to General Commercial and Rezonlng from MIC to GC
Page 12
parking agreement with the Eastern Auto Care Center/N~ Tires development on the
west side of N.W. 18th~ Avenue.
The justification for utilizing the off-site spaces is based upon the different hours of
operation be~een the night club and the industrial uses. Pursuant to LDR Section
4.6.9(E)(5), an off-site~parking agreement may be approved so long as it provides that
"the land comprising (he alternate off-street parking area shall never be disposed of
except in conjunction ~ith the transfer or sale of the building which the parking area is
intended to se~e, so (cng as the parking facilities are required". The agreement must
run with the land and is binding on owners, successors, heirs, administrators and
assigns, tn brief, the cgreement ties the prope~ies together and they cannot be sold
separately for as long as the parking need exists, For this reason, off-site parking
agreements to utilize crivate prope~ have been yew di~cult to obtain. As previously
noted, the proposed GC~ing allows a variety of uses with operating hours similar to
the industrial uses which would create conflicts amon~ users of the ~~aces.
In essence, the Ci~ i~ being asked to change the land use and zoning designation of
this parcel to allow a ~se that will create afar greater parking.demand t~an the current
zoning allows, on a site that is already seVerely'defiCient in parking. Th~s request i8 to
be based on the submission and approval of an agreement that will legally bind the
s~ject prOp~ to the adjacent industrial prope~, and proposes to limit the hours of .~&
operation accordingly. The Ci~ would be responsible for enforcing this agreement. If
the prope~ owners decided to dissolve the agreement, the~i~ will be left with a parcel
that has a c~mmercia~ Zoning designation and severe parkin~hoda~
The development proposal is not within a geographical area requiring review by the
C~ (Community Redevelopment Agency, DDA (Downtown Development Authori~), or
the HPB (Historic Preservation Board).
8~cial Oou~esy and Neighborh~od Notice~:
Cou~esy notices were provided to the following homeowners associations and civic
organizations:
Q Chatelaine : Q RainberwLake
~ Delray Shore8 ; Q Ralnber~ Woods South
Q Hamlet ~, Q She~ood Forest
Q High Po[nt Sections 1-7 Q The Sudan
Q Highland Trailer Par~ ~ Sunset Pines
Q Pines of DeJray No~ ~ United Prope~y Ownem
Q Presidents Council Q ~ndy Creek
~ Progressive Residen{s of Delray (PROD) ~ Woodlake
~ Rainber~ Bay
Planning and Zoning Board ~taff Report
Small-Scale FLUM Amendme,'n[ from Commerce to General Commercial and Rezonlng from MIC to GC
Page 13
Public_ Notice:
Formal public notice has been provided to property owners within a 500' radius of the
subject property. Letters of objection, if any, will be presented at the Planning and
Zoning Board meeting.
With the Future Land Use Map Amendment from Commerce to General Commercial
positive findings with respect to compatibility are unable to be made. The proposal
does not comply with Future Land Use Element Policies A-1.4 and A~1,6, and Traffic
Element Policy A-5.3i T. heproposed FLUKY amendment will reduce the City's
"Commerce" land usel inventory, will accommodate a..zo_ning__d_es_ign__a_iotjD_p__that will
cornpete with the Ci~!s Central Business District, and will further commercialize the
Atla.n. tic and Congress! Avenue___E intersectio~n. ~ C,ompatibi,[itY ~)f the GC zo,n_in,q'and :its
potential uses with th~ adjacent industrial uses' is 'a concern es eciali with regard to
raffic and parking impacts. Eastbound vehicles are required to first head westbound
on Atlantic, and then m'ake u-turns at the intersection of Atlantic and Congress. There
are concerns that a g~eneral commercial use at this location will severely impact the
s~t_ac_ki .ng. distance (queUing) of the westbound left turn la.ne at the Congress and Atlantic
intersection. The stacking distance of the turn lane is insufficient to accommodate the
~mffic volumes generated 6y the commercial use. Further, the ability to expand the turn
lane (lengthening storage capacity) is limited as the turn lane for N.W. 18th Avenue
begins just east of the '.left turn lane.
The site is part of an~ industrial development that was constructed under antiquated
development standards and does not conform to current code requirements. Most
significant of these is ~e parking .deficiency of 68 spaces. The existing deficiencies will
only be exacerbated b~y an intensification of the uses. The conversion of the existing
wholesale/retail buildir~g to a night club, ~--~1 increase the on-site parking shortage to
149 spaces. While th,e applicant has offered to limit the hours of operation and provide
off-site parkin-g agreements, limiting the hours of operation and the uses is not
enforceable.~ Off-site parking agreements restrict the long-term use and marketability of
the properties involved and should not be used to justify a zoning change.. Finally, a
positive finding canno,t be m~de witl~ regard to any of the three reasons listed in I=DR
Section 2.4.5(D)(5) fo~' which a rezoning should be granted. A change in the economic
circumstances of a particular, business is not a valid basis to alter the land use and
zoning designations of the property on which it is located, There are other permitted
uses in the MIC zon~ district that can be accommodated an~would be viable at this
F~5,."'].5/1'-397 15:05 5E, l'243722:]. C:ITY CIF DELRAY BEACH PAGE
Planning and Zoning Board: 8taft Report
8mall-Scale FLUM Amendmen[ from Commerce to General Commercial and Rezoning from MIO [o GO
Page 14
A.' Continu~ with dffection.
B. Recommend approval of the Future Land Use Map Amendment from Commerce
to General Commercial, and the rezoning request from MIC to GC based upon
positive findings with respect to Chapter 3 (Performance Standards) of the Land
Development P,.egulations, policies of the Comprehensive Plan, and LDR
Sections 2,4.5(D)(5)(b) and (c).
C. Recommend de, nial of the Future Land Use Map Amendment from Commerce to
General Commercial, and the rezoning request from MIC to GO based upon a
failure to make positive findings with respect to Chapter 3 (Performance
Standards) of the Land Development Regulations, policies of the Comprehensive
Plan, and LDR Sections 2.4.5(D)(5), and based upon deficiencies in the storage
capacity of the turn lane at the Congress Avenue and Atlantic Avenue
intersection, and deficiencies in on-site parking that is available for the subject
property.
Recommend to the Ci~ Commission denial of the Small-Scale Future Land Use Map
Amendment from Commerce to General Commercial and the rezoning request from
MIC to GO based upop a failure to make positive findings with respect to Future Land
Use Element Policies~A-1.4, and Tra~c Element Poliw A-5.3 of the Comprehensive
Plan, LDR Section 3.~.2(C) (Performance Standard~), and LDR S~otion 2.4.5(D)(5)
(Findings), and based~upon deficiencies in the storage oapaoi~ of the turn lane at the
Congress Avenue and Atlantic Avenue intersection, and deficiencies in on-site parking
that is available for the subject prope~.
A~achments:
Q Future Land Use Map
Q Zoning Map
Q Su~ey
MEMORANDUM
TO: MAYOR AND CITY COMMISSIONERS
FROM: CITY MANAGER~'~(
SUBJECT: AGENDA ITEM # ~- REGULAR MEETING OF JULY 1, 1997
SECOND READING AND QUASI -JUDICIAL PUBLIC HEARING FOR
ORDINANCE NO. 25-97 (SMALL SCALE FUTURE LAND USE MAP
AMENDMENT AND REZONING FOR DELRAY BEACH FARM SUPPLY)
DATE: JUNE 23, 1997
This is second reading and a quasi-judicial (as to zoning) public
hearing for Ordinance No. 25-97 which changes the Future Land Use
Map (FLUM) designation from Commerce to General Commercial for the
Delray Beach Farm Supply property, and rezones it from MIC (Mixed
Industrial and Commercial) District to GC (General Commercial)
District. The site is located at the northwest corner of Atlantic
Avenue and the CSX Railroad, immediately west of 1-95, and
contains 0.39 acres.
The property is currently occupied by a farm supply store. If the
FLUM amendment and rezoning are approved, it is anticipated that a
site plan modification request will follow to establish a country
and western bar. Please refer to the staff report for additional
background and analysis.
The Planning and Zoning Board considered this matter at a public
hearing on May 19, 1997, and voted unanimously to recommend that
the request be denied based upon a failure to make positive
findings with respect to Future Land Use Element Policies A-1.4
and A-1.6, and Traffic Element Policy A-5.3 of the Comprehensive
Plan, LDR Section 3.3.2(C) (Performance Standards), and LDR
Section 2.4.5(D) (5) (Findings), and based upon deficiencies in the
storage capacity of the turn lane at the Congress Avenue and
Atlantic Avenue intersection, and deficiencies in on-site parking
that is available for the subject property.
At second reading of Ordinance No. 25-97 on June 17th, the
applicant requested and the Commission granted a postponement of
the formal hearing to the date certain of July 1, 1997.
I recommend that Ordinance No. 25-97 be denied on second and final
reading based upon the recommendation of the Planning and Zoning
Board.
r e f: a g me mo 9 ~,,~///U£. E/J, ~ ~3~42~ ~ ~ ~?~'~
TO: DAVID T. HARDEN, CITY MANAGER
DEPART~NO ZONING
/SBldlOR =~NNER
SUBJECT: MEETING OF JUNE 3, 1997
~MALL-SCALE FUTURE ~ND USE MAP AMENDMENT FROM
COMMERCE TO GENE~L COMMERCIAL. AND REZONING
FROM MIC (MIXED INDUSTRIAL AND COMMERCIAL) TO GC
(GENE~L COMMERCIAL) FOR PROPER~ LOCATED AT THE
NORTHWEST CORNER OF AT~NTIC AVENUE AND THE CSX
~ILROAD. IMMEDIATELY WEST OF 1-95.
The action requested of the City Commission is that of approval on
first reading of an ordinance changing the Future Land Use Map
designation from Commerce to General Commercial, and rezoning
from MIC (Mixed Industrial and Commercial) to GO (General
Commercial) for the Country and Western Bar of Delray Beach.
The subject property is located at the northwest corner of Atlantic
Avenue and the CSX Railroad, immediately west of 1-95.
The subject property consists of Lot 1, Owens Commercial Subdivision,
containing 0.39 acres, at the south end of the overall 3 lot subdivision. The
subject property is currently occupied by a farm supply store (Delray Beach Farm
Supply, Inc.). The building contains 5,380 sq.ft, of wholesale/warehouse space
and 1,793 sq.ft, of retail space. The proposal is to change the Future Land Use
Map designation for the property from Commerce to General Commercial and
City Commission Documentation
Meeting of May 6, 1997
Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC
to GC for the Country & Western Bar of Delray Beach
Page 2
rezone the property from MIC (Mixed Industrial and Commercial) to GC (General
Commercial). If the FLUM amendment and rezoning are approved, it is
anticipated that a site plan modification request will follow to establish a country
and western bar. Additional background and an analysis of the request is found
in the attached Planning and Zoning Board Staff Report.
At its meeting of May 19, 1997, the Planning and Zoning Board held a public
hearing in conjunction with review of the requests. There was public testimony
both in support of and opposition to the requests. The Board had concerns with
potential parking and traffic problems; and that there was no compelling reason
to change the FLUM designation and zoning. The Board then voted 7-0 to
recommend to the City Commission denial of the Small-Scale Future Land Use
Map Amendment from Commerce to General Commercial and the rezoning
request from MIC to GC based upon a failure to make positive findings with
respect to Future Land Use Element Policies A-1.4 and A-1.6, and Traffic
Element Policy A-5.3 of the Comprehensive Plan, LDR Section 3.3.2(C)
(Performance Standards), and LDR Section 2.4.5(D)(5) (Findings), and based
upon deficiencies in the storage capacity of the turn lane at the Congress
Avenue and Atlantic Avenue intersection, and deficiencies in on-site parking that
is available for the subject property.
As this is a quasi-judicial matter, it is recommended that the City Commission
defer taking testimony, and approve the item on first reading. It is further
recommended that on second reading the City Commission deny the Small-
Scale Future Land Use Map Amendment from Commerce to General
Commercial and the rezoning request from MIC to GC based upon a failure to
make positive findings with respect to Future Land Use Element Policies A-1.4
and A-1.6, and Traffic Element Policy A-5.3 of the Comprehensive Plan, LDR
Section 3.3.2(C) (Performance Standards), and LDR Section 2.4.5(D)(5)
(Findings), and based upon deficiencies in the storage capacity of the turn lane
at the Congress Avenue and Atlantic Avenue intersection, and deficiencies in on-
site parking that is available for the subject property.
Attachments:
· P & Z Staff Report and Documentation of May 19, 1997
· Ordinance by Others
PLANNING AND ZONING BOARD
CITY OF DELRAY BEACH ---STAFF REPORT---
MEETING DATE: May 19, 1997
AGENDA ITEM: VI.E.
ITEM: Future Land Use Map Amendment from Commerce to General Commercial and
Rezoning from MIC (Mixed Industrial & Commercial) to GC (General Commercial) for
the Country & Western Bar located at the northwest corner of West Atlantic Avenue
and the C.S.X. Railroad.
GENERAL DATA:
Owner. ......................................... Helen Owens
Applicant ...................................... David Shine
Agent ........................................... Dennis P. Koehler, P.A.
Location ....................................... Northwest corner of West Atlantic
Avenue and the C.S.X. Railroad.
Property Size ............................... 0.39 Acres
Current Future Land Use Map ...... Commerce
Proposed Future Land Use Map.. General Commercial
Current Zoning ............................. MIC (Mixed Industrial &
Commercial)
Proposed Zoning .......................... GC (General Commercial)
Adjacent Zoning ................. North: MIC
East: GC
South: MIC
West: MIC
Existing Land Use ........................ Farm Supply Store
Proposed Land Use ..................... Conversion of the existing 7,173
sq.ft, building into a Country and
Western night club.
Water Service .............................. Existing via a service lateral
connection to an existing 8" main
along N.W. 18th Avenue.
Sewer Service .............................. Existing via a septic system.
VI.E.
The item before the Board is that of making a recommendation to the City
Commission on a privately-sponsored Small-Scale Future Land Use Map
Amendment from Commerce to General Commercial and a rezoning from
MIC (Mixed Industrial and Commercial) to GC (General Commercial).
The subject property is located at the northwest corner of Atlantic Avenue
and the CSX Railroad, immediately west of 1-95.
The subject property consists of Lot 1, Owens Commercial Subdivision, containing 0.39
acres, at the south end of the overall 3 lot subdivision. Lot 1 contains a 7,173 sq.ft.
building which was constructed in 1952 and is currently occupied by a farm supply store
(Delray Beach Farm Supply, Inc.). The balance of the Owens Commercial Subdivision
consists of Lot 2 (middle lot) containing an 8,505 sq.ft, industrial building (constructed in
1974), and Lot 3 (northernmost lot) containing a 10,740 sq.ft, industrial building
(constructed in 1962; additions constructed 1965 and 1968). The businesses that
currently exist on Lots 2 and 3 are as follows: Lot 2 -- Econo Auto Paint; and, Lot 3 --
Tile and Marble Wholesale, Inc., Modern Mica Design, Excellent Auto, Inc. and a
contractor's office (Warren Clyde Kidd, Jr.).
On November 12, 1962, the subject property along with other properties within the
vicinity north of Atlantic Avenue, east of Congress Avenue and west of the CSX railroad
were annexed into the City of Delray Beach with an initial zoning designation of C-3
(Wholesale and Light Industrial District).
In 1972, the properties zoned C-3 were rezoned to LI (Light Industrial). In March of
1977, the City Council (now City Commission) approved a conditional use request to
establish an automobile paint body and repair shop (Econo Auto Painting) within the
existing warehouse building in the middle of the overall development.
In late 1977, the subject property along with other properties in this area was rezoned
from LI to MI (Medium Industrial).
With the adoption of the City's Comprehensive Plan and Future Land Use Map in
November, 1989, the land use designation of the property was changed from Industrial
to Commerce. Subsequently, with the Citywide rezonings and adoption of the Land
Development Regulations in October 1990, the property was rezoned from MI to MIC
(Mixed Industrial and Commercial).
On November 15, 1994, the City Commission approved the final plat for the Owens
Commercial Subdivision. In conjunction with the plat a cross-parking and drainage
agreement was executed as the plat also subdivided required parking spaces and
drainage flows across property lines.
Planning and Zoning Board Staff Report
Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC
Page 2
On Apdl 4, 1997, a request for a Future Land Use Map amendment and Rezoning to
GC (General Commercial) for Lot 1 was submitted and is now before the Board for
action.
The proposal is to change the Future Land Use Map designation for the property from
Commerce to General Commercial and rezone the property from MIC (Mixed Industrial
and Commercial) to GC (General Commercial), The subject property is currently
occupied by a farm supply store (Delray Beach Farm Supply, Inc.). The building
contains 5,380 sq.ft, of wholesale/warehouse space and 1,793 sq.ft, of retail space. If
the FLUM amendment and rezoning are approved, it is anticipated that a site plan
modification request will follow to establish a country and western bar.
Florida Statutes ~63.3187- Small Scale Land Use Ma.o Amendments:
This Future Land Use Map Amendment is being processed as a Small-Scale
Development pursuant to Florida Statutes 163.3187. This statute states that any local
government comprehensive land use amendments directly related to proposed small
scale development activities may be approved without regard to statutory limits on the
frequency of consideration of amendments (twice a year), subject to the following
conditions:
The amendment does not exceed 10 acres of land;
The cumulative effect of the amendments processed under this section shall not
exceed 120 acres within designated redevelopment and traffic concurrency
exception areas, or 60 acres annually in areas lying outside the designated
areas; and,
The proposed amendment does not involve the same property, or the same
owner's property within 200 feet of property, granted a change within a period of
12 months.
The Future Land Use Map amendment involves a 0.39 acre area, thus the total area is
less than the 10 acre maximum. The amendment to General Commercial is being
processed concurrently with a rezoning request to GC (General Commercial) to
facilitate establishing a country and western bar within the existing building as a
permitted use. The property is not located within a designated redevelopment or traffic
concurrency exception area. This amendment along with other small-scale
amendments processed this year, outside the designated areas, will not exceed 60
acres. This property has not previously been considered for a land use amendment nor
has the same property owner's properties been granted a land use change within 200
Planning and Zoning Board Staff Report
Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC
Page 3
feet or within the last year. Therefore, the property meets the criteria for processing as
a small-scale amendment.
COMPREHENSIVE PLAN POLICIES:
A review of the objectives and policies of the adopted Comprehensive Plan was
conducted and the following applicable policy was found.
Future Land Use Element Policy A.1.4: "Commerce" Land Use which involves a
mix of light industrial, commercial uses, and research and development are the
most needed land uses during the City's final stage of build-out. Thus, changes
to the Land Use Map which diminish this land use are discouraged.
While the Objective regarding this policy refers to vacant land it is also relevant to
developed Commerce-designated land. City staff conducted an inventory of Commerce
designated parcels, both vacant and developed. There is a total of 246 acres, of which
160 are developed and 86 are vacant. The 246 acres represents approximately 3% of
the City's total acreage. While the subject property is only 0.39 acres, the proposed
FLUM amendment will reduce the amount of Commerce designated land. A May, 1995
article in Florida Trend estimated that 9 out of every 10 jobs in Florida are created by
small firms. According to a 1995 business profile of Delray Beach, conducted by Urban
Decision Systems, approximately 90% of "commerce" type businesses in the City are
relatively small, employing 20 or fewer people. This indicates that even the smaller
parcels within the City are important in terms of satisfying this policy regarding
Commerce land uses.
Future Land Use Element Policy A-1.6 - To encourage redevelopment of the City's
Central Business District, Future Land Use Map amendments to Commercial
designations in outlying areas of the City's Planning Area, shall not be
considered.
The proposal is inconsistent with this policy. While the petition involves a relatively
small parcel, its purpose is to accommodate a night club/entertainment use which will
compete with the redevelopment efforts in the City's Central Business District. Further,
as the property is located adjacent to and is easily accessible from 1-95, the use will be
primarily a destination type use and will not encourage customers to visit the City's
downtown. There are existing commercially zoned properties throughout the City that
can easily accommodate the proposed use. If the amendment is approved, similar
requests to accommodate commercial uses along this section of Atlantic Avenue/N.W.
18th Avenue may occur.
Traffic Element Policy A-5.3 - The City shall guard against the
overcommercialization of intersections by restricting land uses which are high
traffic generators to no more than two adjoining streets.
Planning and Zoning Board Staff Report
Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC
Page 4
The proposal is inconsistent with this policy. The subject property is located within 700
feet of the intersection of Congress and Atlantic Avenues, and 200 feet of the
intersection of Atlantic Avenue and N.VV. 18th Avenue. The intersection of Atlantic and
Congress Avenue is commercialized with two gasoline stations, a carpet store and a
shopping center. This FLUM amendment and rezoning to GC will result in commercial
zoning within an industrial area which is not easily accessible from Atlantic Avenue, and
which can accommodate high traffic generating commercial uses such as fast food
restaurants, night clubs, convenience stores, and general retail uses. While the MIC
zoning allows retail uses, they are limited to no more than 25% of the total floor area of
the building and typically involve items that can be manufactured, fabricated or
assembled within the MIC district.
Land Use Analysis:
Pursuant to Land Development Regulations Section 3.1.1(A) (Future Land Use
Map), all land uses and resulting structures must be allowed in the zoning district
within which the land is situated and, said zoning must be consistent with the
land use designation as shown on the Future Land Use Map.
The proposed General Commercial Future Land Use Map designation will allow the
following zoning classifications: GC (General Commercial), PC (Planned Commercial),
AC (Automotive Commercial), NC (Neighborhood Commercial), POC (Planned Office
Center), POD (Professional and Office District), RT (Resort Tourism), CF (Community
Facilities), OS (Open Space), and OSR (Open Space and Recreation).
In conjunction with the Future Land Use Map amendment to General Commercial, a
rezoning to GC (General Commercial) is being sought. The FLUM amendment and
rezoning to GC are being processed concurrently to facilitate establishing a country and
western bar. Within the GC zone district, night clubs and bars are allowed as a
permitted use. Based upon the above, a positive finding with respect to consistency
with the proposed FLUM and zoning designations can be made.
Ad_iacent Future Land Use Map Designations. Zoning Designations & Land Uses:
North and West: North and west of the property has a Future Land Use Map
designation of Commerce and is zoned MIC (Mixed Industrial and Commercial). The
existing land uses include automobile paint, body and repair shops (Econo Auto
Painting, Eastern Auto Care Center/NTW Tires, etc.).
South: South, across Atlantic Avenue, has a FLUM designation of Commerce and is
zoned MIC (Mixed Industrial and Commercial). The existing land use is the CSFURinker
concrete products manufacturing facility.
Planning and Zoning Board Staff Report
Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC
Page 5
East: East of the property, across the CSX railroad tracks, has a Future Land Use Map
designation of General Commercial and is zoned GC. The existing land use is a
contractor's office (George B. Wittmer Associates, Inc.)
Allowable Land Uses:
The current Commerce FLUM designation allows the following zoning classifications:
RT (Resort Tourism), PCC (Planned Commerce Center), MIC (Mixed Industrial and
Commercial) and LI (Light Industrial). With the exception of RT, these zoning
designations are primarily intended for industrial type uses such as manufacturing,
fabrication, assembly, etc. which allows a mix of service and commercial uses. The RT
allows uses that can be complementary to an industrial park setting, such as hotels and
conference facilities. The subject property is currently zoned MIC which allows a
mixture of industrial, service and commercial type uses.
Under the proposed General Commercial FLUM designation, commercial developments
under a variety of zoning designations (GC, PC, NC , AC, RT, POC and POD) are
allowed. The applicant has requested a zoning designation of GC (General
Commercial), which permits high intensity commercial uses such as gasoline stations,
night clubs, convenience stores, and fast food restaurants, high turnover sit-down
restaurants as well as office and other retail uses.
Land Use & Zoning Compatibility_:
As described in the Future Land Use Element of the Comprehensive Plan, the
Commerce land use designation is applied to property which is developed, or is to be
developed, in such a manner as to accommodate a mix of industrial, service, and
limited commercial uses. This may be done either through development of existing
parcels or through a planned concept. The proposed General Commercial land use
designation is to be applied to land which is, or should be, developed for general
commercial purposes e.g. retail, office, services.
The adjacent properties to the north, south and west have a Commerce land use
designation, are zoned MIC, and contain industrial uses. The property to the east is
zoned GC but is occupied by a contractor's office, which is compatible with industrial
type uses. Also, it is separated from the subject industrial area by the CSX railroad
tracks and takes access from Lake Ida Road.
The compatibility of the proposed GC zoning with the adjacent industrial uses is a
concern as rezoning to GC allows high traffic generating commercial uses, while the
MIC zoning allows industrial uses which generally have Iow traffic volumes. The
applicant has stated that the business hours are limited to the evening hours (6:30 p.m.
to 2:00 a.m.) at which time the adjacent industrial uses are closed. However, once the
property is rezoned the hours of operation cannot be regulated. The GC zoning allows
uses that may be open during the daytime and evenings, are high traffic generators,
Planning and Zoning Board Staff Report
Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC
Page 6
and have a greater parking demand. Commercial uses which would locate at or near a
busy intersection such as this (i.e. gasoline station, convenience store), are typically
open 24 hours. While peak hour traffic generation of the industrial uses may occur
during the morning and evening hours, traffic to a commercial business will be
continuous with peak hours coinciding with normal peak traffic hours. Based upon the
above, the proposed land use designation will be inconsistent with the existing
Commerce designation on surrounding properties.
CONCURRENCY: Facilities which are provided by, or through, the City shall be
provided to new development concurrent with issuance of a Certificate of
Occupancy. These facilities shall be provided pursuant to levels of service
established within the Comprehensive Plan.
Water arid Sewer:
Water service exists via a service lateral connection to an 8" water main along N.W.
18th Avenue. Adequate fire suppression is provided via existing hydrants along the
west side of N.W. 18th Avenue. No off-site water main extensions and/or upgrades
are required with this development proposal.
El Currently, there are no sewer mains installed to serve the properties along this
section of N.W. 18th Avenue. Sewage for the existing wholesale/retail operation is
accommodated via an existing on-site septic system. The proposed land use and
zoning change will allow uses that have a much greater demand on sewage
facilities, such as restaurants. The proposed conversion of the structure to a night
club will at a minimum require upgrading of the existing septic system. Given the
intensity of the proposed night club use, installation of a lift station and a force main
to connect to the existing main along Congress Avenue may be required.
Pursuant to the Comprehensive Plan, treatment capacity is available at the City's Water
Treatment Plant and the South Central County Waste Water Treatment Plant for the
City at build-out.
With FLUM amendment and rezoning requests drainage plans are not required. The
site was originally engineered to drain into swale areas along N.W. 18th Avenue. Over
time the swale areas have been destroyed and paved. If the FLUM amendment and
rezoning is approved, a site plan modification submittal will follow. At that time, plans
must be provided which indicate removal of the paving and the installation of swales.
Traffic:
The current use of a farm supply/feed store generates approximately 50 daily trips. The
proposed use of a country and western bar would generate approximately 588 daily
Planning and Zoning Board Staff Report
Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC
Page 7
trips, a net increase of 538 trips. The traffic study indicates this specific project can
meet traffic concurrency. However, as the proposal before the Board is to rezone the
parcel to General Commercial, and once rezoned any use in the GC zone district could
be established, these numbers are of little significance. The analysis of this action must
address the potential impact of the worst case use under the GC district as there is no
guarantee that this proposed use will be established or that it will not be replaced in the
future with a more intense use allowed under the GC.
While the current use of the property (farm supply/feed store) generates approximately
50 trips, the maximum development potential under the current MIC zoning (75%
industrial, 25% retail) would generate approximately 352 daily trips. The maximum
development potential under the proposed GC zoning designation is significantly
higher. For example, a retail use will generate approximately 750 trips, a fast food
restaurant 3,174 daily trips, and a convenience store 2,911 daily trips. Therefore, a
rezoning approval to General Commercial may result in daily traffic increases of: 113%
for retail, 727% for convenience store, and 801% for fast food restaurant.
This increase in traffic is of significant concern given the location of the site and the
restrictions of right turn only at the intersection of Atlantic Avenue and N.W. 18th
Avenue. The "right turn only" sign was installed to prevent vehicles on N.W. 18th
Avenue from making left turns onto eastbound Atlantic Avenue, due to the intersection's
proximity to the railroad tracks, 1-95 interchange, and the Atlantic/Congress intersection.
With the restriction to right turn only at N.W. 18th Avenue and Atlantic Avenue all trips
desiring to go eastbound on Atlantic Avenue from the site must first go west and make
a u-turn at Congress and Atlantic Avenue. An analysis of the westbound left turn
storage during peak hours was conducted on Wednesday May 7th and Thursday May
8th. The results of the analysis indicate that in the AM peak hour (7:30 AM to 8:30 AM)
the left turn lane storage is inadequate (overflows into westbound travel lanes) an
average of 20 out of 25 cycles or 80% of the time. In the PM peak (4:30 PM to 5:30
PM) the left turn storage fails an average of 5 of 25 cycles or approximately 20% of the
time. The traffic study submitted with this proposal indicates that the traffic distribution
will be primarily from 1-95 to and from the site. However, as previously indicated,
eastbound traffic must first go west and make a u-turn, thus impacting the
Congress/Atlantic intersection. The applicant argues that since the proposed use will
operate at night it will not affect the intersection at these peak hours. Again, a rezoning
cannot be tied to a single use, therefore it must be evaluated in terms of all potential
uses, many of which could significantly affect this intersection at peak hours. Further,
while project distribution may change given the different uses it is anticipated a general
commercial use will generate more trips than uses allowed under the existing zoning
and therefore increase impacts on this intersection. Given the current operating
conditions at the intersection adoption of any land use designation or zoning
designation which intensifies the traffic volumes in this area is inappropriate.
Planning and Zoning Board Staff Report
Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC
Page 8
Parks and Recreation:
Park and dedication requirements do not apply to nonresidential uses. Thus, there will
be no impact on this level of service standard.
Solid Waste:
Trash generated each year by the proposed commercial use would be equal to or
slightly greater than trash generated from the uses allowed by the applicable zoning
districts of the Commerce land use designation (MIC, PCC, LI, RT). The development
of these properties under the General Commercial land use designation should not
create an adverse impact on this level of service standard.
[
I
REQUIRED FINDINGS: (Chapter 3)
Pursuant to Section 3.t.1 (Required Findings), prior to the approval of
development applications, certain findings must be made in a form which is part
of the official record. This may be achieved through information on the
application, the staff report, or minutes. Findings shall be made by the body
which has the authority to approve or deny the development application. These
findings relate to the Future Land Use Map, Concurrency, Comprehensive Plan
Consistency and Compliance with the Land Development Regulations.
Future Land Use Map, Concurrency and Comprehensive Plan Consistency were
previously discussed under the Future Land Use Map Analysis section of this report.
Compliance with respect to Compliance with the Land Development Regulations
(Standards for Rezoning Actions, Rezoning Findings) are discussed below.
CONSISTENCy; Compliance with the performance standards set forth in Section
3.3.2 (Standards for Rezoning Actions) along with required findings in Section
2.4.5(D)(5) (Rezoning Findings) shall be the basis upon which a finding of overall
consistency is to be made. Other objectives and policies found in the adopted
Comprehensive Plan may be used in the making of a finding of overall
consistency.
Section 3.3.2 (Standards for Rezonin_= Actions): Standards A and B are not
applicable. The applicable performance standard of Section 3.3.2 is as follows:
(C) Additional strip commercial zoning on vacant properties shall be avoided.
This policy shall not preclude rezonings on land that at the time of
rezoning has improvements on it. Where existing strip commercial areas
or zoning exists along an arterial street, consideration should be given to
Planning and Zoning Board Staff Report
Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC
Page 9
increasing the depth of the commercial zoning in order to provide for better
project design.
The proposed GC zoning would allow inappropriate commercial zoning on a
developed parcel of land. The subject property is one parcel of an overall 3
parcel subdivision with an overall width of 670 feet and a depth of only 100 feet.
The properties currently have back-out parking onto N.W. 18th Avenue, and
substandard parking lots between the buildings. As all the properties are
developed and are located between the CSX railroad and N.W. 18th Avenue,
there is no ability to aggregate additional land to provide a'well-planned
commercial development. Thus, rezoning the property to GC would be
inconsistent with this performance standard.
(D) That the rezoning shall result in allowing land uses which are deemed
compatible with adjacent and nearby land uses both existing and
proposed; or that if an incompatibility may occur, that sufficient
regulations exist to properly mitigate adverse impacts from the new use.
The properties to the north, south and west are industrial in character and are
zoned MIC, while to the east is zoned GC, and contains a contactor~s office.
Compatibility with the adjacent industrial uses is a concern. As previously stated
under the Future Land Use Map Analysis of this report, the GC zoning
designation allows uses that are much more intense than those allowed in the
MIC zone district. Given the limited on-site parking that is available, and the
potential conflicts between commercial and industrial traffic, a positive finding
with respect to this standard cannot be made.
Section 2.4.5(D)(5) (Rezoning Findings):
Pursuant to Section 2.4.5(D)(5) (Findings), in addition to provisions of Section
3.1.1, the City Commission must make a finding that the rezoning fulfills one of
the reasons for which the rezoning change is being sought. These reasons
include the following:
a. That the zoning had previously been changed, or was originally
established, in error;
b. That there has been a change in circumstances which make the current
zoning inappropriate; and,
c. That the requested zoning is of similar intensity as allowed under the
Future Land Use Map and that it is more a_Dpropriate for the property based
upon circumstances particular to the site and/or neighborhood.
Planning and Zoning Board Staff Report
Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC
Page 10
The applicant has submitted a justification statement which states the following:
· The subject property has operated as a farm supply store for the past forty-
four years. The store was established when Delray had a farming
community and the location was appropriate. However, the urbanization of
Delray Beach makes current use inappropriate at this location. The
property owner has seen Atlantic Avenue expanded many times and
developed as a commercial corridor.
This request is to change a small O. 38 acre parcel of land to a commercial
zoning reflecting the highest and best use of use of the property. There
currently exists similar commercial zoning immediately to the east, and
fronting on both sides of Atlantic Avenue at three quadrants of the
intersection of Congress Avenue. The other quadrant of Congress and
Atlantic is also commercial zoned, PC.
· The requested rezoning to GC is best suited for this small parcel and not
planned commercial designations.
· The requested zoning district is intended for applications on arterials such
as Atlantic Avenue.
· This request is compatible with adjacent areas.
· No residential areas will be disturbed.
· Current regulations permit uses which will generate more traffic than the
proposed use.
· The proposed use will upgrade the frontage along the major entryway of
Delray Beach.
· The applicant will voluntarily limit the hours of operation to night time only to
reduce traffic impacts.
Comment: The justification statement appears to address Items "b" and "c" as the
basis for which the rezoning should be granted -- that there has been a change in
circumstances which make the current zoning inappropriate, the rezoning is of similar
intensity as allowed under the Future Land Use Map and it is more appropriate for the
property based upon circumstances particular to the site. Those arguments are
discussed below.
The change in circumstances referred to by the applicant is that the urbanization of the
City has made a farm supply store obsolete. This argument might make sense if the
property were zoned Agricultural and had uses limited to agricultural related activities.
However, that is clearly not the case in this situation. The property has a land use and
zoning designation that allows for a variety of other uses. It is located in an industrial
area with a number of viable businesses that have been successfully operating for
many years. The applicant's argument is applicable only to the use that is currently
occupying the building. ^ change in the economic circumstances of a particular
business is not a valid basis to alter the land use and zoning designations of the
Planning and Zoning Board Staff Report
Small-Scale FLUM Amendment[ from Commerce to General Commercial and Rezoning from MIC to GC
Page 11
property on which it is located. The fact that Delray Beach has become more urbanized
makes those industrial uses more valuable to the City's continued economic health.
The purpose and intent of the GC zone district states that the GC zoning is appropriate
for small parcels which are best suited for general retail and office uses, and along
arterial and collector streets. However, this argument cannot be used to support the
establishment of a 7,173 sq.ft, night club or restaurant on a parcel that is less than a
half an acre in size. Further, while the property fronts an arterial street, it is only
accessible from a local street containing industrial uses. As the property is within an
industrial area and contains minimal parking, it is not well-suited for general commercial
uses. Compatibility of the GC zoning with the adjacent MIC zoning and uses must also
be taken into consideration as discussed previously in this report.
With regard to traffic, the applicant's contention that the MIC zone district contains
permitted uses that will generate more traffic that the proposed night club use is not
valid. As noted in the section of the report dealing with traffic, most of the uses allowed
in GC zoning are much higher traffic generators than industrial type uses. With regard
to the statement that the use will upgrade the property frontage, it is noted that
landscape upgrades were required as part of the subdivision plat approved in 1994,
however, that landscaping has not been installed. Finally, the offer by the applicant to
voluntarily limit the hours of operation is unenforceable as a condition of a rezoning.
Once the property is rezoned, any of the uses permitted in the GC district may apply to
establish at this location, and the City would have no ability to restrict the hours of
operation.
Based upon the above, a finding cannot be made that the rezoning fulfills any of the
reasons for which a rezoning should be granted.
COMPLIANCE WITH LAND DEVELOPMENT REGULATIONS;
Parkina
The existing development has 3 separate parcels which share 28 parking spaces. This
is accomplished through cross-access easements and a cross-parking agreement
between the 3 parcels. However, while 28 spaces are available, a total of 96 spaces is
required by code to accommodate the current uses. Thus, there is an existing
deficiency of 68 spaces. Uses allowed in the GC zoning district typically have a higher
parking requirement than industrial uses. For example, pursuant to LDR Section
4.6.9(C)(5)(a), industrial uses require 3 spaces per 1,000 sq.ft., and 1 space for each
1,000 sq.ft, of storage area. By contrast, restaurants, night clubs and lounges are
required to provide 12 spaces per 1,000 sq.ft, up to 6,000 sq.ft., then 15 spaces per
1,000 sq.ft, over 6,000 sq.ft. Based upon the above, the proposed night club requires
90 parking spaces. Assuming that a third of the 28 existing spaces (9 spaces) are
allocated to the subject property, the on-site parking deficiency would increase to 149
spaces. The applicant proposes to provide required parking off-site via an off-site
Planning and Zoning Board Staff Report
Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC
Page 12
parking agreement with the Eastern Auto Care Center/NTW Tires development on the
west side of N.W. 18th Avenue.
The justification for utilizing the off-site spaces is based upon the different hours of
operation between the night club and the industrial uses. Pursuant to LDR Section
4.6.9(E)(5), an off-site parking agreement may be approved so long as it provides that
"the land comprising the alternate off-street parking area shall never be disposed of
except in conjunction with the transfer or sale of the building which the parking area is
intended to serve, so long as the parking facilities are required". The agreement must
run with the land and is binding on owners, successors, heirs, administrators and
assigns. In brief, the agreement ties the properties together and they cannot be sold
separately for as long as the parking need exists. For this reason, off-site parking
agreements to utilize private property have been very difficult to obtain. As previously
noted, the proposed GC zoning allows a variety of uses with operating hours similar to
the industrial uses which would create conflicts among users of the parking spaces.
In essence, the City is being asked to change the land use and zoning designation of
this parcel to allow a use that will create a far greater parking demand than the current
zoning allows, on a site that is already severely deficient in parking. This request is to
be based on the submission and approval of an agreement that will legally bind the
subject property to the adjacent industrial property, and proposes to limit the hours of
operation accordingly. The City would be responsible for enforcing this agreement. If
the property owners decided to dissolve the agreement, the City will be left with a parcel
that has a commercial zoning designation and severe parking shortage.
The development proposal is not within a geographical area requiring review by the
CRA (Community Redevelopment Agency, DDA (Downtown Development Authority), or
the HPB (Historic Preservation Board).
Special Courtesy and Neighborhood Notice~:
Courtesy notices were provided to the following homeowner's associations and civic
organizations:
13 Chatelaine O Rainberry Lake
Q Delray Shores O Rainberry Woods South
r-t Hamlet O Sherwood Forest
O High Point Sections 1-7 O The Sudan
O Highland Trailer Park ~ Sunset Pines
I~ Pines of Delray North O United Property Owners
O Presidents Council ~l Windy Creek
O Progressive Residents of Delray (PROD) O Woodlake
O Rainberry Bay
Planning and Zoning Board Staff Report
Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC
Page 13
Public Notice:
Formal public notice has been provided to property owners within a 500' radius of the
subject property. Letters of objection, if any, will be presented at the Planning and
Zoning Board meeting.
With the Future Land Use Map Amendment from Commerce to General Commercial
positive findings with respect to compatibility are unable to be made. The proposal
does not comply with Future Land Use Element Policies A-1.4 and A-1.6, and Traffic
Element Policy A-5.3. The proposed FLUM amendment will reduce the City's
"Commerce" land use inventory, will accommodate a zoning designation that will
compete with the City's Central Business District, and will further commercialize the
Atlantic and Congress Avenues intersection. Compatibility of the GC zoning and its
potential uses with the adjacent industrial uses is a concern, especially with regard to
traffic and parking impacts. Eastbound vehicles are required to first head westbound
on Atlantic, and then make u-turns at the intersection of Atlantic and Congress. There
are concerns that a general commercial use at this location will severely impact the
stacking distance (queuing) of the westbound left turn lane at the Congress and Atlantic
intersection. The stacking distance of the turn lane is insufficient to accommodate the
traffic volumes generated by the commercial use. Further, the ability to expand the turn
lane (lengthening storage capacity) is limited as the turn lane for N.W. 18th Avenue
begins just east of the left turn lane.
The site is part of an industrial development that was constructed under antiquated
development standards and does not conform to current code requirements. Most
significant of these is the parking deficiency of 68 spaces. The existing deficiencies will
only be exacerbated by an intensification of the uses. The conversion of the existing
wholesale/retail building to a night club, will increase the on-site parking shortage to
149 spaces. While the applicant has offered to limit the hours of operation and provide
off-site parking agreements, limiting the hours of operation and the uses is not
enforceable. Off-site parking agreements restrict the long-term use and marketability of
the properties involved and should not be used to justify a zoning change. Finally, a
positive finding cannot be made with regard to any of the three reasons listed in LDR
Section 2.4.5(D)(5) for which a rezoning should be granted. A change in the economic
circumstances of a particular business is not a valid basis to alter the land use and
zoning designations of the property on which it is located. There are other permitted
uses in the MIC zone district that can be accommodated and would be viable at this
location.
Planning and Zoning Board Staff Report
Small-Scale FLUM Amendment from Commerce to General Commercial and Rezoning from MIC to GC
Page 14
A. Continue with direction.
B. Recommend approval of the Future Land Use Map Amendment from Commerce
to General Commercial, and the rezoning request from MIC to GC based upon
positive findings with respect to Chapter 3 (Performance Standards) of the Land
Development Regulations, policies of the Comprehensive Plan, and LDR
Sections 2.4.5(D)(5)(b) and (c).
C. Recommend denial of the Future Land Use Map Amendment from Commerce to
General Commercial, and the rezoning request from MIC to GC based upon a
failure to make positive findings with respect to Chapter 3 (Performance
Standards) of the Land Development Regulations, policies of the Comprehensive
Plan, and LDR Sections 2.4.5(D)(5), and based upon deficiencies in the storage
capacity of the turn lane at the Congress Avenue and Atlantic Avenue
intersection, and deficiencies in on-site parking that is available for the subject
property.
Recommend to the City Commission denial of the Small-Scale Future Land Use Map
Amendment from Commerce to General Commercial and the rezoning request from
MIC to GC based upon a failure to make positive findings with respect to Future Land
Use Element Policies A-1.4 and A-1.6, and Traffic Element Policy A-5.3 of the
Comprehensive Plan, LDR Section 3.3.2(C) (Performance Standards), and LDR
Section 2.4.5(D)(5) (Findings), and based upon deficiencies in the storage capacity of
the turn lane at the Congress Avenue and Atlantic Avenue intersection, and
deficiencies in on-site parking that is available for the subject property.
Attachments:
[3 Future Land Use Map
El Zoning Map
13 Survey
/--WEST R/W LINE
Il 'OWEN'S COMMERCIAL / c.s.x.~,o,o
1
I SUBDIVISION'T4, 130-131,
I (P.B. PGS. P.B.C.R.)
'1
I
. ~EAST ./, L~ LOT 2
EDCE OF
ROAOWA'f
, I STORY C.B.S. OVERHEAD
, WAREHOUSE
WIRES ,
' I STEPS ,
ASPRALT LInC FENCE
, LMC FENCE ORIVEWAY 0.6' WEST
IRON ROD
FOUNO ---~
. u,s ,,c,, \ I N89'30'36'E
WO0~ I OVERHEAD LINK FENCE ASPNALT
POWER POLE ,i /-.- liNES PAO
- "r"'-- ..... POWER POLE ENCROACHI
I ...... 'l 0.37' EAST OF PNOPERT
HYORANT
I 64J0' O.SO' EAST OF BUH
m I ~ WOOD
~ LOT I
~,o~a ~E I co co , x
, ,
i ~J I STORY C.B.So AND METAL CONI~.CTOR,
I ~ W~REHOUSE .L~
I
0 '
zO : 6.4' EAST OF PROP[
i I ENQ:IOAC;
64.00' '1 0.43' EAST OF PROPER
i ~ COVEREO CONC WALK COVEREO CONC IALK
I I FreER OPTC
CENTERLII~.--,,,,,~ ~,~ ~ 6'CNA!H~ ASPHALT UNK FENCE
I LI~ FENCE I~IVEWA¥ , ~ 0.4' EAST
I I ~ I
$.Wo CORNER ' I ,..- -"' PCP NO. 2580
S,E. ONE OUARTER OF ~ L,-' '"" '"' 5JY OFFSET NORTH
$.F.. ONE-QUARTER OF THE
NE. ONE-OUARTER OF
SECTION
~u4o ~ASHER BOX UGHT POLE
0.$5' CONC
rou.o w IRo..oo cu.a · ~TTEN
I~.& 74, POS. BO-DL P.8.C.RJ (~S~ P~ I ~"
I'1~',' 23 '97 16:41 [,EItltZS P kOEHLER. P.M. 71 P.£
~W OFFICES
I ennls I cehle I%A.
C~m$$ ~.lneM Center
12~ No~h C~ng~al Avenue, 8ul~ 1~
W~t Palm ~ach, Rod~ 3~09
Tel~hone: ($61) e~4-3~44
May 23, 1997
Hon. Jay A1perin, Mayor
CITY OF DE~Y BEA~
100 N.W. let Argue
Delrey Beach, FL 33444
RE: ~-SHI~ applications for Comprehensive Plan ~en~ment,
Rezoning (Country an~ western nightclub) - DELRAY BEACH
F~M SUPPLY, INC. property
Dear May~r Alper~n:
I'm writing this letter to a~vise you that although your Planning
~ Zoning Boar4 ~mirm~ Mr. Bill Schwartz described our presentation
last Monday evening (May 19) as "the best he's ever seen," we were
ultimately ~success~l in seeking the P&Z Board's reco~endation of
approval in the referenced matter.
Particularly f~strating to me was City staff's refusal to take
seriously our central ar~ent: That by voluntarily imposing deed
restrictions on th~s very small (0.39 acre) parcel, limiting its CG
use to a nightclub oDen to the Dubllc during evening hours only, the
"parade o~norrlbly unacceptable l~acts" offered by st~f as reasons
for re~ecting our proposals would be eliminated completely. As William
Shakespeare might have put it, staff's report was "much ado about
nothingS" [It's frankly galling to ms as a veteran land use attorney
to see gover~mnt plm~ers go so far out of their way to trash what
promises to be a most exciting development pro]ect.]
It's t~e that I did not vigorously attack the staff report
during the Pla~ing & Zoning Board meeting on May 19. We chose
instea~ to fo~s on the positive merits of our propect. But
obviously, that wasn't enough for the Pla~lng & Zoning Board, even
though several of the m~bers appeared to vote reluctantly with the
majority.
I will keep you posted ms my clients and our developm.nt team
~ntensi~ ~r efforts to make our re~ests acceptable to you and the
other m~bers of the City Co~issio~
DPK/ns Ms. Hele~ Owens
Mr. David Shine
Ben S. Kennedy, Esq.
Mr. Jim Kahn, KEITH & SCHNARS
_TI_III 1P, "37 11;16 DEftItI'3 P I<OEHL£R, P.R." F'.i
LAW OFFICES
· , . ,'"
DENNIS P KOEHLER P A
1~.80 North Congrsss Avenue, Suite
West Palm Beach, Florida 33~09
Tmlephone: (56~) 684-2844
F~csimiie: (S6~) 68~-9370
FAX COVER SHEET
TO:~~
FROM: DE~IS P. KOE~LER~ E~QUIRE
NO. OF PAGES: ~ PLUS COVER SHEET
DATE & TIME OF T~SMISSION:
INITIALS OF PERSOR SENDING FAX: ~, ~,.
.IIJlt 13 '97 11:16 DEItlII$ P k,)EHLER, P.~.' F'.Z
LAW OFFICES
ennl$ l cehler,
¢ongm~ Bu~lne~ Cen~r
1280 No~h Cong~$$ Avenue, Suite 104
W~t Pelto ~&ch, Florida 33409
Telephone: (681) 684-2~4
Fa~imlle: (661) 684-9370
BY FAX
June 13, 1997
Hon. Jay Alperin, Mayor and Members
DELRAY BEACH CITY COMMISSION
Delray Beach City Hall
100 N.W. First Avenue
Delray Beach, Florida 33444
RE: OWENS-SHINE Applications for Comprehensive Plan Amendment,
Rezoning ("Country and Western Nightclub"), City Ordinance
No, 25-97 (proposed) - Positive responses to City staff
concerns
Dear Mayor A1perln and Commissioners:
As we prepare for this coming Tuesday evening's final public
hearing before the city Commission on the referenced applications,
I wanted to share some exciting news with you: City Attorney
Susan Ruby confirmed during a meeting with me on June 12 that if
properly drafted and executed, the two (2) legal documents that my
clients are proposing to address your planning staff's major
concerns - an "OFF SITE PARKING AGREeMeNT" and a "DECLARATION OF
RESTRICTIVE COVENANTS"- will be both legal and enforceable by %he
City.
The OFF SITE PARKING AGREEMENT is based on a standard form
supplied to me several months ago by Ms. Ruby, It will require
tke proposed country and western nightclub's patrons to park their
vehicles (via a valet parking service) on the adjacent, existing
parking tract of the EASTERN AUTO CARE CENTER. This Agreement is
presently undergoing final review by the EASTERN AUTO CARE
CENTER's owners in Nlchigan. We plan to present this Agreement to
you on Tuesday evening.
The DECLARATION OF RESTRICTIVE COVENANTS, we believe, is
critically important to our prospects for approval. We have
carefully crafted this Declaration to address City Attorney Ruby's
concerns. This document, which will be executed and recorded
~rior to next Tuesday evening's City Commission meeting, will
restrict the property's commercial use to a nightclub only, open
only during the evenin~ hours.
At present, no country and western nightclubs are located
anywhere between Port Lauderdale and West Palm Beach. My client
Hr. Shine's investor-partners hope to establish not only a popular
and successful nightclub at the DELRAY BEACH FARM SUPPLY location;
they are considering making the nightclub the location for a made-
for-TV movie and a possible TV series!
Il_lit ±~I "97 1i: 17 DEitflI$ P t',:OEHLER, P.R. ) F'. :-:
None of this will be possible, of course, without your
approval this coming Tuesday evening. We look forward to
presenting the merits of our requests to you at that time.
Si~rely, ~ .
Denni~ P. Koehler, Esquire
DPK/ns
pc:. Mrs. Helen Owens
Mr. David Shine
Mr. Leo Wilson
Messrs. Jim Kahn & Andre Groenhoff, KEITH & SCHNARS
Dennis I celller,
MEMORANDUM
TO: MAYOR AND CITY COMMISSIONERS
FROM: CITY MANAGER~
SUBJECT: AGENDA ITEM #lO.~.- REGULAR MEETING OF JUNE 17, 1997
SECOND READING AND QUASI-JUDICIAL PUBLIC HEARING FOR
ORDINANCE NO. 25-97 (SMALL SCALE FUTURE LAND USE MAP
AMENDMENT AND REZONING FOR DELRAY BEACH FARM SUPPLY)
DATE: JUNE 13, 1997
This is second reading and a quasi-judicial (as to zoning) public
hearing for Ordinance No. 25-97 which changes the Future Land Use
Map (FLUM) designation from Commerce to General Commercial for the
Delray Beach Farm Supply property, and rezones it from MIC (Mixed
Industrial and Commercial) District to GC (General Commercial)
District. The site is located at the northwest corner of Atlantic
Avenue and the CSX Railroad, immediately west of 1-95, and
contains 0.39 acres.
The property is currently occupied by a farm supply store. If the
FLUM amendment and rezoning are approved, it is anticipated that a
site plan modification request will follow to establish a country
and western bar. Please refer to the staff report for additional
background and analysis.
The Planning and Zoning Board considered this matter at a public
hearing on May 19, 1997, and voted unanimously to recommend that
the request be denied based upon a failure to make positive
findings with respect to Future Land Use Element Policies A-1.4
and A-1.6, and Traffic Element Policy A-5.3 of the Comprehensive
Plan, LDR Section 3.3.2 (C) (Performance Standards) , and LDR
Section 2.4.5(D) (5) (Findings), and based upon deficiencies in the
storage capacity of the turn lane at the Congress Avenue and
Atlantic Avenue intersection, and deficiencies in on-site parking
that is available for the subject property.
At first reading on June 3rd, the ordinance was passed by a vote
of 4 to 0 for the purpose of moving it to the formal hearing. I
recommend that Ordinance No. 25-97 be denied on second and final
reading based upon the recommendation of the Planning and Zoning
Board.
ref:agmemo9 ~ ~L~ ~ ~~ /! /~g7 ~ ~/~./',7.
17 '97 15:18 DEItltZ!~ P t~OEHLER, P.A. ~ F'.£
MW OFFICES
eflni$ eflle
¢ongmse Bu$ineu Center
1~0 No~h Cengr~s Avenue,
West Palm Be&oh, Florida 35~9
BY ~AX Facsimile: ($$1) 6e4.a$70
June 17 1997 "~'~
Hon. Jay Alperin, Mayor and Members
DELRAY BEAC~ CITY COMMISSION
Delray Beach City Hall
100 N.W. First Avenue
Delray Beach, Florida 33444
RE: O~NS-SHI~ Applications for FLUM amendment· Rezoning -
Petitioners' re,est for postponement
Dear Mayor Alperin and Co~lssioners:
On behalf of my client, Mr. David Shine and the owner of the
properties that are the subject of the referenced applications,
Mrs. ~elen D. Owens, I respect~lly ask the Delray Beach City
Co~lssion to postpone tonight's final public hearing in these
matters until your next regularly-scheduled City Commission
meeting on Tuesday, ~91y 1, 1997.
As reasons therefore, we offer the following: city staff has
in its report raised serious concerns about traffic and parking
issues. We had hoped to effectively addre~s' these issues by
creating two binding legal documents: An OFF SITE PARKING
AGREEMENT and a DECLA~TION OF RESTRICTIVE COVENANTS.
Unfortunately· at this writing they have not yet been approved and
executed by the private parties involved. We believe that these
problems can be resolved if our request for postponement is
granted.
We apologize to you, City staff and those concerned citizens
of Delray Beach who may be inconvenienced by this postponement
request, we believe, however, that a brief postponement in this
matter will best serve the overall public interest.
I will be present in the City Commission chambers this
evening to personally present this postponement re, est and answer
any questions that you may have.
~~S. rely,
pc: Ms. Diane Dominguez, Pla~ing & Zoning Director Mrs. Helen D. Owens, c/o Ben Kennedy· Esq.
Mr. Gale D. Morrell, Trustee, c/o Mr. Steve Morrell
Mr. David Shine
Mr. Leo wilson
DENNIS P , KOEHLER. P . A.
Congress Business Center
1280 North Congress Avenue, Suite 104
West Palm Beach, Florida 33409
Telephone: (561) 684-2844
Facsimile: (561) 684-9370
FAX COVER SHEET
~Ben Kennedy, Esq. c/o Helen Owens
r. Steve Morrell c/o Gale Morrell
~Hr.Hr. Leo Wilson
~FAX (561) 750-8597
~FAX (561) 243-8533
AX (561) 640-0469
AX [561) 776-0263
FROM: DENNIS P. KOEMLgRr ESQUIRE~
NO. OF PAGES: PLUS COVER SHEET
MEMORANDUM
TO: MAYOR AND CITY COMMISSIONERS
FROM: CITY MgAIAGER~
SUBJECT: AGENDA ITEM # /~- REGULAR MEETING OF JUNE 3, 1997
FIRST READING FOR ORDINANCE NO. 25-97 (SMALL SCALE
FUTURE LAND USE MAP AMENDMENT AND REZONING FOR DELRAY
BEACH FARM SUPPLY)
DATE: MAY 30, 1997
This is first reading for Ordinance No. 25-97 which changes the
Future Land Use Map (FLUM) designation from Commerce to General
Commercial for the Delray Beach Farm Supply property, and rezones
it from MIC (Mixed Industrial and Commercial) District to GC
(General Commercial) District. The site is located at the
northwest corner of Atlantic Avenue and the CSX Railroad,
immediately west of 1-95, and contains 0.39 acres.
The property is currently occupied by a farm supply store. If the
FLUM amendment and rezoning are approved, it is anticipated that a
site plan modification request will follow to establish a country
and western bar. Please refer to the staff report for additional
background and analysis.
The Planning and Zoning Board considered this matter at a public
hearing on May 19, 1997, and voted unanimously to recommend that
the request be denied based upon a failure to make positive
findings with respect to Future Land Use Element Policies A-1.4
and A-1.6, and Traffic Element Policy A-5.3 of the Comprehensive
Plan, LDR Section 3.3.2(C) (Performance Standards), and LDR
Section 2.4.5(D) (5) (Findings), and based upon deficiencies in the
storage capacity of the turn lane at the Congress Avenue and
Atlantic Avenue intersection, and deficiencies in on-site parking
that is available for the subject property.
Since this is a quasi-judicial matter, I recommend that the
Commission pass the ordinance on first reading for the purpose of
moving it to the formal hearing which will be scheduled for June
17, 1997. The taking of testimony and formal consideration should
occur at that time.
ref: agmemo9
CITY OF DELRAY BEACH, FLORIDA'
Boca Raton News, Monday, June 9,
1997
NOTICE OF LAND USE CHANGE
The City. Commission of the City of Delray Beachl Florida, will
consider a proposed., change to the Future Land Use Map for a
0.39 acre parcel of land described as Lot 1, Owen's Commercial
.Subdivision, recorded in Plat Book 74, Pages 130-131 of the
Public Records of Palm Beach County, located at the northwest
corner of Atlantic Avenue and the CSX Railroad, immediately
west of Interstate-95. The proposal involves a Small Scale Future
Land Use Map amendment FROM Commerce TO General.
Commercial. ..
The City Commission will conduct a public Hearing on TUES-
DAY, JUNE 17 1997 AT 7:00 RM. (or at any continuation of such
meeting which is set by the CommisSion), in the Commission
Chambers at City Hall, 100 N.W. 1st Avenue, Delray Beach,
Florida. At this meeting the City Commission will consider adopt-
ing this small scale amendment to the Future Land Use Map. The
title of the enacting ordinance is as follows:
' ORDINANCE NO. 25-97
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, CHANGING THE FUTURE LAND
USE MAP DESIGNATION FROM COMMERCE TO GENERAL
COMMERCIAL, AND REZONING FROM MIC (MIXED INDUS-
TRIAL AND COMMERCIAL) DISTRICT TO GO (GENERAL'
COMMERCIAL) DISTRICT, FOR LOT 1, OWEN'S COMMER-
CIAL SUBDIVISION, AS THE SAME IS MORE PARTICULARLY
DESCRIBED HEREIN, LOCATED AT THE NORTHWEST OCR-
NER OF ATLANTIC AVENUE AND THE CSX RAILROAD, IMME-
DIATELY WEST OF 1-95; ELECTING TO PROCEED UNDER ']'HE
SINGLE HEARING ADOPTION PROCESS FOR SMALL SCALE
LAND USE PLAN AMENDMENTS; AND AMENDING "ZONING
MAP OF DELRAY BEACH, FLORIDA, 1994"; PROVIDING A
GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN
EFFECTIVE DATE.
All interested citizens are Invited to attend the Public hearing and
comment upon the proposed Land Use Map Amendment or sUb-
mit their comments In writing on or before the date of.this hearing
to the Planning and Zoning Department. For further Information or
to obtain copies of the proposed amendment, please contact Jeff
Costello at the Planning and 7.,onlng Department, City Hall, 100
N.W. 1st Avenue, Delray Beach, Florida 33444 (Phone 407/243-
7040), between the hours of 8:00 a .m. and 5:00 p.m., Monday
through Friday, excluding holidays.
PLEASE BE ADVISED THAT IF A PERSON DECIDES TO
APPEAL ANY DECISION MADE BY THE CITY COMMISSION
WITH RESPECT TO ANY MATTER CONSIDERED AT THIS
HEARING, SUCH PERSON WILL NEED A RECORD OF THESE
PROCEEDINGS, AND FOR THIS PURPOSE MAY NEED TO
ENSURE THAT A VERBATIM RECORD INCLUDES THE TESTI-
MONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE
BASED. THE CITY DOES NOT PROVIDE NOR PREPARE SUCH
RECORD. PURSUANT TO F. S. 286.0105.
PUBLISH: BOCA RATON NEWS ' CITY' OF DELRAY BEACH
June 9, 1997 Alison MacGregor Harty
Ad #757526 C!ty Clerk
Boca Raton News, Friday Jun(~ 6, 1997 ~lrB
I~RM W PIILI~ NIMIM
A ~kJUDICIAL ~BLIC H~R.
lNG ~11 ~ ~ m ~ W~ ~
~Y, ~ 17, t~ (~ ~ ~y
~ by ~ ~m~), in ~ C~
A~, ~y ~h, FWd,
d~ my ~ ~
~e
p~., ~y ~ r~y, ~
~. NI ~ ~ ~
AN ORDI~KE OF THE Cl~ ~
MINION ~ THE CITY ~ DEL~Y
BEACH, FLORID~ REZONiNG AND
P~CING ~ND ~ESENTLY
Z~ED ~ (PROFE~I~AL AND
OFFICE DISTRICT) AND
(MEDIU~ ~ITY RESIDENTIAL
DISTRI~ IN THE NC
(NEIGHBOR~D C~ERCIAL
DISTRICT~ ~iD ~ND BEING
~TED AT THE KRTHEAST COR-
NER OF ~TH FEDE~L
WAY AND ~ ~T AVENUE,
~RE PARTICU~RLY
~RIBED HEREIN; ~ENDING
~ONING ~P OF ~[R*Y BE~CH,
F~IO~ ~; P~OYdDIflG A
GENE~L REPULER C~USE,
~VING C~USE, ~O AN EFFEC.
TIVE DATE.
AN ORDI~NCE ~ THE CITY ~
MINION OF THE CI~ OF ELR~Y
BEACH, FLORIDA, CHANGING THE
FUTURE ~ND USE ~P DESIGNA.
TI~ FROM C~ERCE TO GEN-
E~[ ~EK~AL, ~D REZO~
lNG FR~ MIC (MIXED INDUSTRB-
~ AND ~ERCIAL) DtSTRICT
TO K (GENERAL C~ERCiAL)
DISTRICT, FOR LOT 1, OWEN'S
~ERCtAL SUBDIVISION,
THE ~E IS ~RE PARTI~R-
LY ~KK~EO HE~N, L~TED
AT THE ~RTH~ST ~RNER OF
AT~NTIC AVENUE AND THE CSX
~LR~D, IMEDIATELY
~ I~; ELECTING TO ~EED
UN~R THE SINGLE H~RING
A~PTi~ PR~E~ FOR WLL
~LE ~ND USE P~N MEN~
~ENTS; AND MENDING ~ING
~P OF DEL~Y BEACH, FLORI-
~ ~; ~OV~D~NG A GENERAL
REPEALER C~SE, A ~VING
C~USE, AND AN EFFECTIVE
~TE.
~l~by
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FILE #: 97-122 & 97-123
PROJECT NAME: COUNTRY & WESTERN BAR OF DELRAY BEACH
LEGAL DESCRIPTION:
Lot 1, Owen's Commercial Subdivision, according to the Plat
thereof as recorded in Plat Book 74, Pages 130-131 of the
Public Records of Palm Beach County, Florida.
SOURCE of Legal Description: SURVEY
VERIFICATION REQUEST NEEDED BY: MAY 19, 1997
LEGAL DESCRIPTION IN ORDINANCE (NO) VERIFIED PRIOR TO SECOND
READING:
VERIFIED BY: DATE:
VERIFICATION REQUEST NEEDED BY:
LEGCOUNT
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KEITH g SCHNARS P A
ENGINEERS - PLANNERS - SURVEYORS
6500 N. ANDREWS A~, Ft. LAUDERDALE, FL. 33309-2B2 (954) 776-186
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BOUNDARY SURVEY
LOT I, 'OWENS COMMERCIAL SUBDIVISION'
(PLAT BOOK 74, PAGES 1:30-131)
CITY OF DELRAY BEACH PALM BEACH COUNTY FLORIDA
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