PALM BEACH COUNTY PLANNING, ZONING AND BUILDING DEPARTMENT ZONING DIVISION

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1 PALM BEACH COUNTY PLANNING, ZONING AND BUILDING DEPARTMENT ZONING DIVISION Application No.: ZV/DOA Control No.: Applicant: Christopher Doyle Owners: Christopher Doyle Water Club Assoc Ltd Water Club Associates Ltd Agent: Gary M. Brandenburg and Associates - Gary Brandenburg Telephone No.: (561) Project Manager: Carrie Rechenmacher, Senior Site Planner Location: Southwest corner of PGA Blvd and Ellison Wilson Road (Hatties Landing) TITLE: a Type II Zoning Variance REQUEST: to allow extended hours of operation for a commercial use adjacent to a residential zoning district; to allow easement encroachment into the right-of-way buffer; to allow reduction of a right-of-way buffer; and to allow a reduction of an incompatibility buffer. TITLE: a Development Order Amendment REQUEST: to reconfigure site plan APPLICATION SUMMARY: Proposed is a Development Order Amendment (DOA) for the Hatties Landing Multiple Use Planned Development (MUPD). The 3.85-acre site was last approved by the Board of County Commissioners (BCC) on May 14, 2002 to allow for the existing 2-story 8,000 square foot (SF) restaurant with outdoor seating, and 3-story 30,920 SF multiple use building. The applicant is proposing a modification to the site plan that would allow the 2,510 square foot professional office and the 2-story 9,294 SF restaurant and outdoor seating to remain, and add a 780 SF pick-up window, 10,174 SF of outside and covered seating area, in Phase I and 7,060 SF in Phase II, and SF retail kiosks providing an overall total of 32,006 SF (-6914). In addition, the applicant is requesting a Type II variance to allow hours of operation within 250 feet of a residential use to continue from 11:00 pm to 3:00 am on Thursday, Friday, Saturday and Holidays, and 3 additional variances to allow landscape buffer reductions and easement encroachment to address the existing landscaping along the perimeter of the site. A total of 132 parking spaces will be provided and 2 access points from Ellison Wilson Road with the north access limited to ingress only are proposed. ISSUES SUMMARY: o Project History The 1.76-acre site was rezoned from the Residential Medium (RM) Density Zoning District to the General Commercial (CG) Zoning District (R ) and approved with a special exception as a Planned Commercial Development (PCD) by the BCC on January 4, 1985 (R ). A resolution correcting the legal description was approved by R and R and approved by the BCC December 5, ZC March 4, 2010 Page 204

2 On April 4, 2002, the Board of County Commissioners approved Small Scale Amendment No. 01- SCA-26-COM-1 Ordinance which changed the Comprehensive Plan designation of several small parcels from High Residential 12 (HR12) to Commercial High (HR12). Concurrent with the Land Use change at the same hearing the BCC approved R to add 2.2- acres of land to the subject property for a total of 3.97-acres and rezone the combined parcels to the Multiple Use Planned Development (MUPD) zoning district. The preliminary development plan indicated the existing two story 8,000- square foot Panama Hattie's restaurant connected to a proposed three story 30,920- square foot multiple use building. The proposed building consisted of 6,500 square feet of retail, 15,420- square feet office, and a 10,000 square foot restaurant. The proposal never came in for final site plan approval and therefore the site plan was never implemented. o Consistency with Comprehensive Plan The Planning Division has reviewed the Development Order Amendment request to reconfigure the site plan and has found the request to be consistent with the site's CH/12 FLU designation. A 2.22 acre portion of this 3.97 acre site was subject of a concurrent Small Scale Land Use Amendment (01- SCA 26 COM 1, PGA/Ellison Wilson) changing the FLU designation from High Residential 12 (HR- 12) to Commercial High with an underlying High Residential 12 (CH/12) approved April 4, The Planning Division has determined the request is consistent with the entire site s proposed CH/12 Future Land Use designation. The LUAB public hearing for the amendment held on January 26, 2001 added the condition that Non-residential uses on the site shall be limited to office and restaurant uses. Restaurant uses shall be excluded from the southern most 100 feet of the site. As a result a condition imposed by the LUAB the petitioner asked the BCC to remand the proposed amendment back to the LUAB/LPA. The proposed amendment was reheard by the LUAB on September 14, Staff recommended approval of the proposed amendment subject to the following FLU conditions: Non-residential uses on the site shall be limited to office, restaurant uses and a maximum of 6,500 square feet of ancillary retail space. Retail and restaurant uses shall be prohibited from the southernmost 100 feet of the site. The proposed request is consistent with this condition. See Planning comments for additional information. o Compatibility with Surrounding Land Uses The site is located on the east side of the Intracoastal Waterway at the southwest corner of PGA Boulevard and Ellison Wilson Road. There are retail, office and residential uses within the municipal boundary of the City of Palm Beach Gardens on the north, east and west sides surrounding the subject site with a Commercial High (CH) FLU Designation and corresponding General Commercial District (CG) Zoning District: To the west across the intracoastal waterway is another restaurant with outdoor entertainment and a dock and floating bar and south of this are single family homes in the RS Zoning district LR3 FLU designation. Residential uses with a HR-12 Future Land Use designation and Multi-Family Residential District (RM) are to the south and current support 2 single family homes. The ULDC requires a 20-foot MUPD Incompatibility buffer adjacent to the south property line with a 6- foot wall, or other condition as approved by the BCC. Staff recommends allowing the 6-foot fence to remain and to add 1 additional Palm Tree every 20 linear feet along the property line, and a minimum 20-foot buffer to provide additional screening for the adjacent residential uses with the exception of the existing storage building. The property owner is applying for a variance for the landscape buffer adjacent to the existing storage building. In addition, Zoning staff recommends a condition for the first 100-feet of the south property line be limited to parking, access and signage, (Site Design Condition 2) and use of the existing storage building for the water taxi only. (Use Limitation Condition 2) No other uses shall occur in this area in order to minimize the impacts from commercial activities to adjacent residential uses. Landscape Condition 3 has been modified to also indicate that should the building be removed the buffer will be installed according to code and conditions of approval. ZC March 4, 2010 Page 205

3 o Modification of Conditions The applicant has requested to abandon the conditions of resolution R since a final site plan was never approved and the property owner no longer wishes to build the 3 story 30,920 square foot multi use building and parking garage. The site however has been utilized for an expansion to the restaurant to include existing outdoor seating, boardwalks, a fire pit, tiki hut and outside serving areas. Code enforcement violation has been cited to the property owner for all illegal structures. Site Design Condition 1 requires building permit approval prior to final site plan approval. The applicant is currently working with the Building Department to obtain the required permits. o Traffic Total net new traffic (increase over existing 3,245 trips per day) expected from this project is 1,496 trips per day, 123 trips in the PM peak hour. Additional traffic is subject to review for compliance with the Traffic Performance Standard. See traffic comments for additional information. o Landscape/Buffering The applicant has applied for variances for all of the buffers due to easement and structure encroachments along the north, south and east property lines. The Intracoastal water way is on the west property line. The redevelopment of the site requires a 20-foot MUPD incompatibility buffer along the southern property boundary. Staff is providing a condition to allow a fence to remain in lieu of the wall requirement, along the south property line however the buffer width shall be 20 feet and additional trees are required by condition. (See Landscape Condition 3) A condition for the east property lines requires the buffer to be increased at final DRO south of the existing structure. (See Landscape Condition 2) o Signs Conditions are recommended to address a proposed sign fronting on Ellison Wilson Boulevard. There is no access on PGA to the subject site therefore the Hattie s main entry sign is considered non-conforming. Article 8.A.1.C.1. considers previously permitted signs that do not meet the current standards of this Code as nonconforming structures, allowing no enlargements, alterations or relocation except in conformance with the Code. The sign face however, may be replaced. Staff therefore does not recommend any conditions to address the existing freestanding sign fronting on PGA Boulevard. Freestanding signs fronting on Ellison Wilson Road shall be limited to 1 monument sign with a maximum sign height of 8-feet and maximum sign face area per side of 80-square feet. (Sign Condition 1) o Variance CODE SECTION DETAIL REQUIRED PROPOSED VARIANCE V1. 3.D.3.A.2.a Commercial Hours of Operation 6 AM to 11 PM 6 AM to 3 AM Thursday to Saturday 6 AM to 3 AM Thursday to Saturday no change balance of V2. 3.E.3.B.2.c MUPD Landscape Buffers east Property line V3. 3.E.3.B.2.c MUPD Landscape Buffers. South Property Line V4. 7.F.1.A Landscape - Buffer Types Right-of-way- North Property Line no easement overlap within right-of-way buffer 5 foot easement overlap within right-of-way buffer week 5 foot easement overlap 15 foot buffer 5 foot buffer reduction of 10 feet 20 foot wide buffer 0 to 20 foot buffer along north property line adjacent to PGA Blvd. reduction varies from 0 to 20 feet ZC March 4, 2010 Page 206

4 (V1) 3.D.3.A.2.a. -The ULDC requires commercial uses located within 250 feet of a residential district shall not commence business activities later than 11:00 PM. The property owner would like to have extended hours especially for the open-air restaurant seating area until 3 AM on Thursday through Saturday and holidays. Staff is recommending a condition that the full service restaurant also remains open also during these extended hours. Staff is also recommending a condition that the drum circle not continue later than 9:30 PM. (V2) Article 3.E.B.2.c.1 MUPD Buffer Easement Overlap- East Property Line. Article 3 requires that no easements overlap a right-of-way buffer for an MUPD. The variance is to address the existing condition of the affected area where an office building existing since 1956 encroaches into the buffer. Landscape Condition 3 requires the buffer to be expanded so there is no easement overlap south of the existing structure and up to the south access point. Should the building be demolished then the landscaping would have to comply with buffer requirements. (V3) Article 3.E.B.2.c MUPD Buffer South Property Line. MUPD Buffer standards require a Type 3 incompatibility buffer adjacent to a residential use and Land Use district or other buffer by BCC condition of approval. Landscape Condition 2 requires a 20 foot buffer but allows the existing fence to remain and requires additional palm trees 20-feet on center. The variance request is to allow the buffer to be reduced where the existing structure is located, should the building be demolished then the landscaping would have to comply with buffer requirements. (Landscape Condition 2) (V4) Article 7.F.7.A MUPD R-O-W Buffer North Property Line. The ULDC requires a 20-foot wide right-of-way buffer adjacent to a right-of-way greater than 99-feet in width. The existing landscape buffer along the north property line adjacent to PGA Boulevard varies in width from 0 to 20-feet due to right-of-way dedications, configuration of the site, and location of the existing structures. The variance request is to allow the buffer to remain with structure encroachments. Reconfiguration of the site or parking areas would require compliance with the Code buffer requirements. Photo 1 RW PGA Blvd buffer facing W ZC March 4, 2010 Page 207

5 Photo 2 fence S PR Line Photo 3 RW PGA blvd facing E ZC March 4, 2010 Page 208

6 Photo 4 W PL facing water Photo 5 Building D ZC March 4, 2010 Page 209

7 Photo 6 Main Sign PGA Blvd ZC March 4, 2010 Page 210

8 o Code Enforcement A Code Enforcement violation was issued to the property owner October 30, Zoning Code references included Art 3, 4, 5, 8, and Florida Building Code as follows: 1. Violation: Article 2.B.1.2. Expansion of a use inconsistent with the BCC Resolution approval R Solution: This Development Order Amendment and Building Permit approvals will address and correct this violation. 2. Violation: Article 4.B.1.A.79. Lounge, Cocktail: A cocktail lounge shall not be located within 250-feet of a residential district unless approved as a requested use in a MUPD. The agent represents that this is not a coctail lounge but an extension of the restaurant. Solution: Staff recommends a condition requiring single ownership and the restaurant remain open while the outdoor areas are open and food from the full service restaurant always be available during hours of operation. The ULDC allows a maximum of 30% of the gross floor area or business receipts of the principal use or uses, however uses called out in the use matrixes of the applicable district must be reviewed as a separate use. In this case, if this were considered a cocktail lounge then the use would be required to receive a Requested Use approval for a Cocktail Lounge in the MUPD zoning district. A Land Use Condition imposed in 2002 limits the site to restaurant and retail uses so the cocktail lounge would not be permitted without a Future Land use amendment. A lounge is a typical portion of a restaurant use and as long as the restaurant ZC March 4, 2010 Page 211

9 remains open and food is served inside and outside the restaurant use would be compliant with conditions of approval. 3. Violation: Article 3.D.3.A.2: Commercial Districts: Hours of Operation. The business is located adjacent to a residential district and is being operated in excess of the allowable times. Commercial uses adjacent to a residential district shall not commence business activities, including deliveries and stocking, prior to 6:00 AM nor continue business activities later than 11:00 PM daily. Solution: The applicant seeks a variance to allow the restaurant to remain open Thursday through Saturday and holidays until 3:00 AM. (4 hour variance). 4. Violation: Article 3. Table 3.D.1.A. Propety Development Reguations Table. A 1260-square foot covered area is located within the setbacks of the property. Solution: The applicant has provided a revised survey indicating the property line in the center of the Intracoastal Waterway. The structure therefore would not be in violation of the property develoment regulations in regard to setbacks. However, the property owner must obtain building permits for all structures prior to final DRO approval of the subject site plan. 5. Violation: Article 5.E. Performance Standards- Section 4. Nuisances - B. Noise Limitations and Prohibitions. Playing a musical instrument which generates excessive noise at the property line of residential land is prohibited. Solution: The following chart indicates noise levels permitted from the residential property line. The property owner shall be in compliance with the following noise thresholds of the performance standards of the ULDC. Table 5.E.4.B-14, Maximum Sound Levels Receiving Land Use Type Sound Source Time of Day Residential Fixed mechanical equipment Any time Residential Residential Commercial Nonresidential Non-Residential Ord Permanent Generator All other sources All sources Permanent Generator See Art. 5.B.1.A.18 7 AM to 8 PM 8 PM to 10 PM 10 PM to 7 AM Any time See Art. 5.B.1.A.18 Maximum Sound Level USA 60 db 75 db 60 db 55 db 50 db 70 db 75 db RSA 60 db 75 db 55 db 50 db 50 db 70 db 75 db 6. Violation: Article 8.C.1. Banners, streamers, pennants, balloons and other signs made of lightweight fabric, plastic or similar material, are prohibited. Solution: All the illegal and prohibited signs are removed. 7. Violation: Building Code. No building or structure shall be used or occupied, and no change in the existing occupancy classification of a building or structure or portion thereof shall be made until the building official has issued a Certificate of Occupancy. Solution: Staff has added a condition that the property owner shall have a building permit for all structures prior to final DRO approval. 8. Violation: Building Code. The parking area is not American Disabilities Assocation (ADA) compliant. No ADA accessible route to the seating area is provided. The restrooms are not ADA compliant; the seating area is not accessible (sand surface); and the guard rails at the sea wall are not code compliant. ZC March 4, 2010 Page 212

10 Solution: The property owner shall verify that all structures on site and the parking area have building permits and be ADA compliant prior to final site plan approval. o Development Order Amendment Changed Circumstances The parcel is uniquely located in the shadow of the PGA/Intracoastal Bridge. The property also has an extreme elevation differential from the Intracoastal to Ellison Wilson Road. All four corners of the PGA/Intracoastal Bridge have restaurant/lounges. These other establishments are in the jurisdiction of Palm Beach Gardens, which allows later hours of operation until 3 AM. Typically, people have purchased food or drink from Panama Hattie s Restaurant in Building A which was built in 1986 and then take it outside to the docks to enjoy the view of the Intracoastal Waterway. Over the years the restaurant has expanded to satisfy customer demand. The current use evolved adding parcels including the office building F built in 1956 and storage buildings and Building E a water taxi service. The property to the south was acquired by the applicant in 2001 from the Busch family. The Busch family operated a marine engine repair facility at the site and in later years a marine canvas shop. The neighborhood and the Busch facility were constructed in approximately The assembled parcels were approved by the BCC for an extensive expansion to the existing 8,000 square foot restaurant in May 2002 consisting of additional restaurants, office, retail, marina uses housed in a 3-story 30,920-square foot multi-use structure and a parking garage. The facility was approved as an MUPD via R The applicant states that with the current economic climate and changes in the economy have made the project impractical. The applicant seeks to modify the MUPD to conform the approval to what currently exists on the site and to make the uses legal through the development order amendment, variances, and building permit approvals. TABULAR DATA EXISTING PROPOSED Property Control Numbers Land Use Designation: Zoning District: Commercial High, with an underlying HR-12 (CH/12) High Residential (HR-12) Multiple Use Planned Development District (MUPD) Same Tier: Urban Suburban Same Use: Office, Business or Professional Restaurant, Type II with outdoor Serving areas Retail Sales, General Same Commercial High, with an underlying HR-12 (CH/12) High Residential (HR-12) Same Acreage: 3.85 acres 5.07ac (+1.21 submergedincluded for setback purposes) ZC March 4, 2010 Page 213

11 acres Square Footage: 11,804 (approved and existing) 32,006 sf (+20,202 existing, approvals pending) Parking: 83 spaces 132 (+49) spaces Access: Ellison Wilson Road (2) Same - north access, ingress only PUBLIC COMMENT SUMMARY: At the time of publication, staff had received 2 phone calls from the public regarding this project. The calls were from residents of Pirates Cove across the water way to the west and were objecting to the extension of hours and increase of activity to the subject site. RECOMMENDATION: Staff recommends approval of the request subject to 4 Conditions of Approval as indicated in Exhibit C-1 and 20 Conditions of Approval as indicated in Exhibit C-2. MOTION: To adopt a resolution approving a Type II Zoning Variance to allow extended hours of operation for a commercial use adjacent to a residential zoning district; to allow easement overlap into the right-of-way buffer; to allow reduction in width of a right-of-way buffer; and to allow a reduction of a Type III Incompatibility buffer subject to the Conditions of Approval as indicated in Exhibit C-1. MOTION: To recommend approval of a Development Order Amendment to reconfigure the site plan subject to Conditions of Approval as indicated in Exhibit C-2. ZC March 4, 2010 Page 214

12 Figure 7 Land Use Atlas Map ZC March 4, 2010 Page 215

13 Figure 2 Zoning Quad Map ZC March 4, 2010 Page 216

14 Figure 3 Aerial ZC March 4, 2010 Page 217

15 Figure 4 Preliminary Site Plan: November 23, 2009 ZC March 4, 2010 Page 218

16 Figure 5 Preliminary Regulating Plan STAFF REVIEW AND ANALYSIS ZC March 4, 2010 Page 219

17 PLANNING DIVISION COMMENTS: FUTURE LAND USE (FLU) PLAN DESIGNATION: Commercial High with an underlying High Residential 12 unit per acre and High Residential 12 units per acre. TIER: The subject site is in the Urban/Suburban Tier. FUTURE ANNEXATION AREAS: The subject site is within the future annexation area of the City of Palm Beach Gardens and the Village of North Palm Beach INTERGOVERNMENTAL COORDINATION: The subject site is within one mile of the City of Palm Beach Gardens, the Town of Juno Beach and the Village of North Palm Beach CONSISTENCY WITH FUTURE LAND USE (FLU) PLAN DESIGNATION: The Planning Division has reviewed the Development Order Amendment request to reconfigure the site plan and has found the request to be consistent with the site's CH/12 FLU designation. The proposed request for 32,006 s.f. is consistent with the maximum Floor Area Ratio (FAR) of.50 (PDD) allowed for a 3.86 acre project with a CH FLU designation (3.86 ac x 43,560 x.50 = 84,071 s.f. maximum). A second survey showing acres was submitted , which included an additional 1.22 acres. This 1.22 acre portion of the subject site is below sea level and does not count toward the FAR calculation. A portion of this site was the subject of a small-scale land use amendment in 2001 known as PGA/Ellison Wilson (SCA ) to change the land use designation on a 2.14 acre portion of the subject site from HR-12 to CH/12. This amendment was adopted April 4, 2002 by Ordinance with one condition of approval which states: Non-residential uses on the site shall be limited to office, restaurant uses and a maximum of 6,500 square feet of ancillary retail space. The site plan associated with this proposal is consistent with this condition. SPECIAL OVERLAY DISTRICT/NEIGHBORHOOD PLAN/PLANNING STUDY AREA: The subject site is located in the coastal high hazard area (CHHA). The Palm Beach CHHA is the designated evacuation zone for Plan A-Hurricane Categories 1-2. Palm Beach County prohibits additional densities in the CHHA and does not fund infrastructure improvement or expansion that facilitates density increases beyond Future Land Use Atlas densities and adjacent densities. The current request is consistent with the restrictions associated with the CHHA. FINDINGS: The request is consistent with the previous condition of approval associated with Ordinance , the CH/12 land use designation of the Palm Beach County Comprehensive Plan and the CHHA. PREVIOUS PLANNING CONDITIONS OF APPROVAL: Previous approval and conditions associated with Resolution are abandoned at applicant's request ENGINEERING COMMENTS: REQUIRED ENGINEERING RELATED PERMITS The property owner shall obtain an onsite Drainage Permit from the Palm Beach County Engineering Department, Permit Section, prior to the application of a Building Permit. The property owner shall obtain a Turnout Permit from the Palm Beach County Engineering Department, Permit Section, for access onto Ellison Wilson Road. TRAFFIC IMPACTS Petitioner has estimated the build-out of the project to be December 31, ZC March 4, 2010 Page 220

18 Total net new traffic (i.e. increase over existing) expected from this project is 1,496 trips per day, 123 trips in the PM peak hour. Additional traffic is subject to review for compliance with the Traffic Performance Standard. There are no improvements to the roadway system required for compliance with the Traffic Performance Standards. ADJACENT ROADWAY LEVEL OF SERVICE (PM PEAK) Segment: PGA Blvd. from Prosperity Farms to Ellison Wilson Existing count: 3,245 Background growth: 259 Project Trips: 62 Total Traffic: 3,565 Present laneage: 6LD LOS D capacity: 4,680 Projected level of service: C PALM BEACH COUNTY HEALTH DEPARTMENT: No Staff Review Analysis ENVIRONMENTAL RESOURCE MANAGEMENT COMMENTS: VEGETATION PROTECTION: The site has been developed. The proposed modifications will not increase the intensity of the site. WELLFIELD PROTECTION ZONE: The parcel is not located with a Wellfield Protection Zone. IRRIGATION CONSERVATION CONCERNS AND SURFACE WATER: All new installations of automatic irrigation systems shall be equipped with a water sensing device that will automatically discontinue irrigation during periods of rainfall pursuant to the Water and Irrigation Conservation Ordinance No Any non stormwater discharge or the maintenance or use of a connection that results in a non stormwater discharge to the stormwater system is prohibited pursuant to Palm Beach County Stormwater Pollution Prevention Ordinance No ENVIRONMENTAL IMPACTS: There are no significant environmental issues associated with this petition beyond compliance with ULDC requirements. OTHER: FIRE PROTECTION: The Palm Beach County Department of Fire Rescue will provide fire protection. SCHOOL IMPACTS: No Staff Review Analysis PARKS AND RECREATION: No comments. CONCURRENCY: Concurrency is approved for 20,660 square feet of Type 2 restaurant, 1200 square feet of retail, general, 2,510 square feet of office and a 576 square foot water taxi service storage building. All of the facilities are presently on-site and serving the existing use. WATER/SEWER PROVIDER: Palm Beach County Water Utilities (PBCWU). FINDING: The proposed Zoning Map Amendment complies with Article 2.F of the ULDC, Concurrency (Adequate Public Facility Standards). ZC March 4, 2010 Page 221

19 FINDINGS: Type II Concurrent Variance Standards: The Zoning Commission shall consider and find that all 7 criteria pursuant to Article 2.B.-3.E and listed below have been satisfied by the applicant prior to making a motion for approval, of a zoning variance: 1. Special conditions and circumstances exist that are peculiar to the parcel of land, building or structure that are not applicable to other parcels of land, structures or buildings in the same zoning district: V1. Article 3.D.3.A. (4) Hours of Operation. The ULDC requires commercial uses located within 250 feet of a residential district to not commence business activities later than 11:00 PM. The property owner would like to have extended hours especially for the open-air restaurant seating area until 3:00 AM on Thursday through Saturday and holidays. However, staff recommends a Use Limitation Condition 2 that the drum circle that gathers on Thursday night stop at 9:30 PM. Staff is also recommending a Site Design Condition 3 that the full service restaurant also remains open during these extended hours and that the property must remain under one ownership and not operate independently from the restaurant. (Site Design Condition 4.) Location is the primary special circumstance of this site. The property is located on the southeast corner of the Intracoastal Waterway and PGA Boulevard. Because of the PGA Boulevard waterway overpass and draw bridge the restaurant is considerably lower than the right-of-way and has an extreme elevation differential from the Intracoastal to Ellison Wilson Road. (See Photo 1) All four corners of the PGA/Intracoastal Bridge have restaurant/lounges. These other establishments are in the jurisdiction of Palm Beach Gardens, which allow later hours of operation. The location along the waterway provides an ideal location for a restaurant with the quintessential Florida tropical waterway atmosphere. Patrons historically have purchased food or drink from Panama Hattie s and then take it outside to the docks to enjoy the view of the Intracoastal Waterway. The current use evolved over the years and has expanded to satisfy customer demand. The property was approved by the BCC for an extensive expansion to the restaurant in May 2002 consisting of additional restaurants, office, retail, marina uses, and a parking garage as an MUPD via R The applicant states that with the current economic climate and changes in the economy have made the project impractical. The applicant seeks to modify the MUPD to conform the approval to what is currently exists on the site although not all uses are legal, and subject to Code Enforcement as highlighted elsewhere in this report. The applicant agrees to Site Design Condition 2 requiring a 100-foot buffer zone on the south portion of the subject property with no restaurant uses allowed in this area. The only building within the 100-foot area is a storage building for the water taxi operation and access and parking are also indicated in this area. The condition, also consistent with FLU condition of 2002, requires that no new structures shall be approved 100-feet from the south property line other than a bus shelter or bench and proposed signage adjacent to Ellison Wilson Road and required lighting and parking. Staff also recommends a 20-foot buffer along the south property line, to allow the existing fence to remain, and 1 additional Palm tree for every 20 linear feet and 3 tiers of shrubs on the exterior side of the fence. South of this 100 foot strip are 2 singlefamily homes one of which is vacant and both are separated by fencing and landscaping. V.2. Article 3.E.B.2.c.1. Easement Overlap (East Property Line) requires that no easements overlap a right-of-way buffer for an MUPD. The variance is to address the existing condition of the affected area where an office building existing since 1956 encroaches into the buffer. Landscape Condition 3 requires the buffer to be expanded so there is no easement overlap south of the existing structure and up to the south access point. ZC March 4, 2010 Page 222

20 The 2,510 square foot office building which serves as a boat brokerage is located on the east portion of the site was built in 1956 and is located 21-feet from the base building line. Redevelopment of the site requires a 15-foot landscape buffer adjacent to any right-of-way that is less that 99-feet in width with no easement overlap permitted pursuant to MUPD landscape standards. The applicant does not intend to demolish this structure and so there is an overlap at the structure location. However, a buffer with no easement overlap and additional landscaping outside of the easement may be placed on the remaining east perimeter of the site to meet the minimum code requirements. Therefore no variance is requested for the planting standards for the right-of-way buffer. Pursuant to Article 1.F.3. Nonconforming Structure the nonconforming structure may be maintained but not substantially altered, repaired or restored except in conformity to the ULDC. Therefore the variance shall only be granted for the buffer and structure encroachment but not a variance for the structure. Major renovations (over 30% assessed value) to the structures would required conformance with the current Code. V.3. Article 3.E.B.2.c. (South Property Line) MUPD Buffer standards require a MUPD buffer adjacent to a residential use or residential Future Land Use district provide a Type 3 incompatibility buffer or other buffer by condition of approval. Landscape Condition 2 allows the existing fence to remain but requires additional palm trees 20-feet on center. The variance request is to allow a reduction in the south buffer area to accommodate the existing boat house structure. The building constructed in 1952 which encroaches the buffer area, has been used for marina purposes for over 50 years. It is now used for water taxi storage. The applicant indicates a 20- foot buffer along the south property line with the exception of the encroachment of this structure. Staff recommends a condition that the nonconforming structure only be used for the water taxi storage and that a 20-foot incompatibility buffer is provided on the south portion of the site. V.4. Article 7.F.7.A. Width of R-O-W buffer. (North Property Line) The ULDC requires the 20-foot wide right-of-way buffer adjacent to a right-of-way greater than 99-feet in width. The existing landscape buffer along the north property line adjacent to PGA Boulevard varies in width from 0 to 15-feet due to right-of-way dedications and location of the existing structures. The variance request is to allow the buffer to remain. The north buffer is 0-feet on the western portion where it is located under the bridge. There is a steep berm and the property owner has redesigned the parking lot to allow for a 15-foot buffer where the site grade is even with the right-of-way. The structures that totally encroach the buffer are located immediately adjacent to the PGA Boulevard right-of-way and adjacent to the elevated portion of the bridge. There is no need for a landscape buffer or setback at this location. In particular, this has proven to be the most convenient spot on site to have live bands, as the noise is channeled by the bridge and restaurant away from the neighbors. 2. Special circumstances and conditions do not result from the actions of the applicant: V.1. There are a number of factors that are not a result of the applicant due to existing structures and configuration of the parcel. The applicant had a comprehensive expansion approved for the subject site in 2002 (R and R ). The approved plan allowed additional restaurants, office, and retail uses and included a parking garage. The applicant states that economic factors have made the project impractical. In addition, the ULDC requires commercial uses located within a 250 feet of a residential district to not commence business activities later than 11:00 PM. The proprietor wants to have extended hours for the open-air restaurant seating area. Site Design Condition 3 requires the full service restaurant to remain open and available to serve food at all times that the outdoor seating and covered lounge areas are open. Site Design condition 4 requires the outdoor seating and covered lounge areas shall not operate independently from the restaurant. Site Design condition 2 requires that no new structures shall be approved 100 (one-hundred) feet from the south property line other than a bus shelter or bench and proposed signage adjacent to Ellison Wilson Road. Required parking, lighting and access is permitted in this area The property owner maintains ZC March 4, 2010 Page 223

21 that Panama Hattie s who employs 104 individuals part or full time and needs the additional flexibility to stay in business and remain economically viable. V.2. V.3. V.4. In October of 1998 the applicant bought this additional parcel that supported the office building adjacent to the Panama Hattie s and Ellison Wilson Road frontage. The office building existed in the current configuration at that time and since then; the County has acquired additional right-of-way along Ellison Wilson Road. The applicant s proposed amendment requires the establishment of a 15-foot landscape buffer and a 10-foot utility easement. There is not sufficient room to the new edge of the right-of-way due to the building encroachment into the landscape buffer. The property to the south was acquired by the applicant in 2001 from the Busch family. The Busch family operated a marine engine repair facility at the site and in later years a marine canvas shop. The neighborhood and the Busch facility were constructed in approximately It was a collection of small single-family houses with private streets that ended at the Intracoastal. Each street ended with a boat ramp into the Intracoastal for uses of the homes in the development. There were 3 such boat ramps on the combined parcels purchased by the applicant. Busch Marine was immediately adjacent to one such ramp. The ramp exists today and extends into the covered shed creating the conflict with the required incompatibility landscape buffer. The PGA right-of-way expansion and construction of the bridge infringed on the property s northern border. The buffer is 0-feet on the west portion virtually located under the bridge. There is a steep berm and the property owner has redesigned the parking lot to allow for a 15- foot buffer where the site grade is even with the right-of-way. The right-of-way was expanded due to eminent domain proceedings. 3. Granting the variance shall not confer upon the applicant any special privilege denied by the Comprehensive Plan and this code to other parcels of land, structures or buildings in the same zoning district: V.1. Granting of the variance would not confer upon the applicant any special privilege; instead, use of the proposed variance will allow the continuation of a reasonable use of the property. The other three corners of the PGA/Intracoastal Bridge have commercial uses that allow late night operations. To the west is the Waterway Café; to the northwest is River House, with an outside tiki bar and marina uses; to the north of PGA Boulevard is Season 54 Restaurant; and to the east is a large commercial project extending to US Highway One. The agent indicates that the Waterway, Season s 54, and River House are covered by the city code of Palm Beach Gardens that allows sales of alcoholic beverages until 3 AM. The residential use to the south is separated by the 100-foot area allowing no commercial activities and staff has provided conditions to ameliorate negative impact from the expansion. The continuation of uses on the site will comply with the intent of the ULDC and will not be disruptive of the surrounding property. The area has evolved as an entertainment hub that takes advantage of waterway views around the PGA bridge structure. V.2. The Comprehensive Plan and ULDC recognize that right-of-way expansion into properties with existing buildings requires flexibility. The southern residential uses will be separated by a 100 foot buffer that will not contain any restaurant uses. In addition, the applicant will install a 20 foot Type II buffer that consists of a 6-foot high privacy fence. The outside of the fence will have a three-tiered hedge material plan. The granting of this variance will allow the owner to continue to provide a popular Intracoastal access point, and allow the business to compete with nearby similar commercial uses. V.3. The structure was built under the original design of the neighborhood and has existed at the site for more than 50 years. Staff has provided a condition that the use of the structure will be limited to storage for the applicant s water taxi service boats. Consequently, the use will be minimal compared to the commercial marina that existed on the site. ZC March 4, 2010 Page 224

22 V.4. Allowing the right-of-way buffer to be reduced is consistent with mitigation of structures adjacent to expanded right-of-ways, flyovers, and bridge structures. 4. Literal interpretation and enforcement of the terms and provisions of this Code would deprive the applicant of rights commonly enjoyed by other parcels of land in the same zoning district, and would work an unnecessary and undue hardship: V.1. Literal interpretation and enforcement of the terms and provisions of this Code would work an unnecessary and undue hardship. The owner proposes to continue to use the existing structures in the outdoor seating area, tiki hut, and converted older buildings. The buildings and structures will have to be improved as required by the zoning and building department ordinances and conditions of approval. These previously built structures allow the patrons maximum access to the Intracoastal Waterway in a very relaxed and unique atmosphere. Many residents find this relaxed semi-beach atmosphere an attractive option as compared to waterfront restaurants that have a more structured environment. As mentioned earlier, the other three corners of the PGA/Intracoastal Bridge have commercial uses that allow late night operations. To the west is the Waterway Café; to the northwest is River House, with an outside tiki bar and marina uses; to the north of PGA Boulevard is Season 54 Restaurant all of which are open until 3 AM and are in the jurisdiction of Palm Beach Gardens. To the east is a large commercial project extending to US Highway One. It would be an undue hardship to not be able to operate the same hours as the other establishment at the same intersection. V.2. V.3. V.4. The literal interpretation of this provision would require demolition of the building and would be unnecessary and create an obvious hardship. Literal interpretation would require the demolition of the structure that has been in place from the original construction of the neighborhood, depriving applicant of the use of the structure to service the water taxi operation that has been in place for several years. The literal interpretation of this Code would require demolition of the entire northern seating area; even then the existing main restaurant building would encroach 3-foot into the setback. Pursuant to Article 1 renovations of any of the structures may only be in accordance with the percentages of the Code (30%) or the structures would have to meet setbacks and be removed from the buffer areas. 5. Grant of variance is the minimum variance that will make possible the reasonable use of the parcel of land, building or structure: V.1. Grant of variance is the minimum variance that will make possible the reasonable use of the parcel of land and existing structures. The requested variance is to allow a commercial operation after 11:00 p.m. within 250 feet of a residential use. This is the minimum variance since the commercial use must close at 11:00 p.m. Sunday through Wednesday. The applicant states that closing the restaurant at 3:00 a.m. Thursday through Saturday, is the minimum variance needed to allow the restaurant/lounge to remain competitive with the other restaurants on the other 3 corner restaurants and provide the unique old Florida Intracoastal atmosphere that currently exists. The agent for the owner indicates that the property owner has a history of making modification to the uses on-site when any issues by neighbors are brought to his attention and will continue to be responsive to the concerns of his neighbors. The existing structures do not allow for alternative designs and the majority of the most attractive portion of the property is on the waterfront. Staff has provided Site Design Condition 2. limiting uses along the 100-foot south area of the site and increasing the buffer on the south and on the east portion of the site where feasible. V.2. The overlap of the easement and landscape buffer is the minimum variance necessary to allow continued use of the existing building. The buffer on the east portion of the site will be increased from the existing structure south with no easement overlap. ZC March 4, 2010 Page 225

23 V.3. V.4. Reducing the incompatibility buffer to 5-feet for 24-foot length of the building is the minimum required variance. When this area was first developed, a marine repair shop was part of the development, and existed for 50 years compatibly with residential neighbors therefore the use has not increased in incompatibility but rather decreased due to the larger buffer provided on the south property line. This is the minimum variance for the right-of-way buffer width to allow the existing structure to remain and to compensate for the right-of-way taking along PGA Boulevard. 6. Grant of the variance will be consistent with the purposes, goals, objectives, and policies of the Comprehensive Plan and this Code: V.1. V.2. V.3. V.4. This proposal will be consistent with the goals and objectives of the Comprehensive Plan by the utilization of the MUPD section of the ULDC to allow a mix of uses in a fashion that permits commercial and neighboring residential to co-exist with minimal interference. Granting this variance is consistent with the County s policies on handling expanding right-ofway and existing buildings. Granting this variance will be consistent with ULDC nonconforming structures and the County s policy toward existing structures and uses. The buffer will be conforming where possible. This proposed variance is consistent and generally within the goals of maintaining the right-ofways buffer. In this instance the buffer would be unnecessary since it is adjacent the elevated PGA Bridge. 7. Granting the variance will not be injurious to the area involved or otherwise detrimental to the public welfare: V.1. V2. V. 3. V. 4. Granting of the variance will not be injurious to the area involved or otherwise detrimental to the public welfare. The proposed variance approval will be consistent with the existence of an entertainment hub at the PGA/Intracoastal Bridge and in keeping with the hours of operation of competing uses on the other three corners. The residential property to the south will be protected by an enhanced buffer and conditions restricting the uses within 100 feet of the south property line. The residences to the south have historically been adjacent to commercial uses such as Busch Marine Repair, marina and restaurant uses for many years and may also potentially be developed in the near future. The uses on the subject site have proven not to be injurious to the public welfare. FINDINGS: Development Order Amendment: When considering a development order application for a conditional or requested use, or a development order amendment, the BCC and ZC shall consider standards 1 9 indicated below. A conditional or requested use or development order amendment which fails to meet any of these standards shall be deemed adverse to the public interest and shall not be approved. Staff has reviewed the request for compliance with the standards that are expressly established by Article 2.B.- 2.B and provides the following assessment: 1. Consistency with the Plan The proposed use or amendment is consistent with the purposes, goals, objectives and policies of the Plan, including standards for building and structural intensities and densities, and intensities of use. The proposed and existing uses are consistent with the CH-12 land use category. The Board of County Commissioners approved a change to the southerly 2.22 acres of the site to CH-12 ZC March 4, 2010 Page 226

24 from RM in April 2002 with the intention that the property be developed under the standards of MUPD provisions of the ULDC. The provision of restaurant use, retail, water taxi, and dockage are consistent with the Commercial High designation of the property. The site has commercial land uses on three (3) sides. Any potential incompatibility is addressed by conditions of approval. 2. Consistency with the Code - The proposed use or amendment complies with all applicable standards and provisions of this Code for use, layout, function, and general development characteristics. The proposed use also complies with all applicable portions of Article 4.B, SUPPLEMENTARY USE STANDARDS. The proposed site configuration decreases the intensity of use of a previously MUPD approved in 2004 that complied with all applicable standards at that time. The reconfigured site plan also complies with all standards and brings existing uses on the site into compliance with the ULDC. There is a concurrent variance application with this petition to allow hours of operation to extend from 1:00 pm allowed within 250 feet of a residential district to 3:00 am on Thursday through Saturday and holidays. Also requested are variances to allow structures to remain in the required landscape buffers and a utility easement overlap along Ellison Wilson Road. Staff supports the requests with conditions assuring this is the minimum variance required with causing undue hardship to the property owner. 3. Compatibility with Surrounding Uses The proposed use or amendment is compatible and generally consistent with the uses and character of the land surrounding and in the vicinity of the land proposed for development. To the north of the site separated by PGA Boulevard is Seasons 54 Restaurant; to the west of the site is the Waterway Café, also a restaurant focusing on Intracoastal Waterway frontage with a floating tiki hut/bar on the Intracoastal that offers live entertainment. To the east is a commercial development that runs east to U.S. Highway One from Ellison Wilson Road, along the PGA frontage. To the south are scattered residential uses, that will inevitably be redeveloped in the future to uses oriented towards the Intracoastal. However staff has provided conditions of approval to mitigate the impact to the southern residential uses 4. Design Minimizes Adverse Impact The design of the proposed use minimizes adverse effects, including visual impact and intensity of the proposed use on adjacent lands. The site is totally isolated from the north by PGA Boulevard and the bridge. The design maximizes the ability of the public to gain access to the Intracoastal and expands the existing restaurant use along the Intracoastal frontage to the south. A similar use exists to the west across the Intracoastal. The proposed design harmonizes with the uses at all four corners of the Intracoastal and PGA Boulevard. The original restaurant has been in this location since 1986 and the office building since Staff has provided conditions of approval to mitigate the impact to the southern residential uses for the expansion and restricts uses within 100 feet of the south property line and requires appropriate buffering, screening and landscaping through additional landscape conditions as well as ULDC landscape requirements. 5. Design Minimizes Environmental Impact The proposed use and design minimizes environmental impacts, including, but not limited to, water, air, storm water management, wildlife, vegetation, wetlands and the natural functioning of the environment. The site was previously developed as a restaurant, office building and scattered single-family residences. The proposed uses and site reconfiguration will not impact any natural features or cause additional environmental impacts. The intensity of the site will decrease by 6,914 square feet and there will no longer be a 3 story structure as previously approved for the MUPD retail and restaurant complex. 6. Development Patterns The proposed use or amendment will result in a logical, orderly and timely development pattern. More intensive development was previously determined to be in accordance with this criterion however due to the economic climate the property owner did not wish to pursue the larger 3- ZC March 4, 2010 Page 227