PALM BEACH COUNTY PLANNING, ZONING AND BUILDING DEPARTMENT ZONING DIVISION ZONING COMMISSION VARIANCE STAFF REPORT 09/03/2015

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1 PALM BEACH COUNTY PLANNING, ZONING AND BUILDING DEPARTMENT ZONING DIVISION ZONING COMMISSION VARIANCE STAFF REPORT 09/03/2015 APPLICATION NO. CODE SECTION REQUIRED PROPOSED VARIANCE ZV (V1) 3.D.3.A.2.a Commercial Hours of Operation 6:00 a.m. to 11:00 p.m. within 250-feet of a residential zoning district. SITUS ADDRESS: S Jog Rd Delray Beach AGENT NAME & ADDRESS: Josh Nichols Jon E Schmidt & Associates 2247 Palm Beach Lakes Blvd West Palm Beach, FL OWNER NAME & Sweet T Fields LLC ADDRESS: 7412 Stonegate Blvd Pompano Beach FL PCN: ZONING DISTRICT: CG BCC DISTRICT: 05 PROJECT Roger Ramdeen, Senior Site Planner MANAGER: LEGAL AD: 6:00 a.m. to 12:00 a.m. within 250-feet of a residential zoning district. increase 1 hour within 250-feet of a residential district. ZV Title: Resolution approving a Type II Variance application of Doherty Florida West Delray, LLC by Jon E Schmidt & Associates, Agent. Request: to allow extended hours within 250 feet of a residential district. General Location: Southeast corner of Jog Road and West Atlantic Avenue (ATLANTIC SQUARE APPLEBEES) ( ) LAND USE: CH/8 S/T/R: CONTROL #: LOT AREA: 0.27 acres +/- (Affected area) acres +/- (Overall MUPD) LOT DIMENSIONS: See Site Plan (Figure 4) CONFORMITY OF Yes CONFORMITY OF N/A LOT: ELEMENT: TYPE OF ELEMENT: Hours of operation ELEMENT SIZE: N/A BUILDING PERMIT #: CONSTRUCTION STATUS: APPLICANT REQUEST: B Built NOTICE OF VIOLATION: C To allow extended hours within 250 feet of a residential district. RECOMMENDATION: Staff recommends denial of the request, based upon the application of the standards enumerated in Article 2, Section 2.B.3.E of the Palm Beach County Unified Land Development Code (ULDC), which an Applicant must meet before the Zoning Commission (ZC) can authorize a variance. Should the ZC choose to approve the request, Staff recommends the approval be subject to the 7 Conditions of Approval as indicated in Exhibit C. ZC 09/03/2015 Page 205

2 PUBLIC COMMENT SUMMARY: At the time of publication, Staff had received 1 contact from the public regarding this project (Exhibit F), a letter from the Alliance of Delray Residential Associations, Inc. recommending approval with a condition limiting the hours for outdoor music to 11:00 p.m. APPLICATION SUMMARY: Proposed is a Type II Variance for for the Atlantic Square Multiple Use Planned Development (MUPD). The acre parcel of land was last approved by the Board of County Commissioners (BCC) on January 23, 2003 to allow a funeral home within the existing 173,371 square foot (sq. ft.) shopping center. The Applicant is requesting a Type II Variance to allow extended hours within 250 feet of a residential district from 11:00 p.m. to 12:00 a.m for a Type II Restaurant (Applebees) located along Jog Road. There is a separate application (DOA ) that proposes to add 653 sq. ft. of outdoor seating for a total of 5,859 sq. ft. and to modify a Use Limitation Condition of Approval for the hours of operation. The DOA application is being considered by the BCC on August 27, 2015 and this Type II Variance application is contingent upon the BCC approval of the Use Limitation Condition of Approval modification. The preliminary site plan indicates 174,025 total sq. ft. with multiple commercial uses. Access remains from Jog Road and Atlantic Avenue. No other changes to the site plan are proposed as part of this application. PROJECT HISTORY: Application No. Request Resolution Approval Date Z/SE Rezoning from Specialized Commercial (CS) and Agricultural (AG) Zoning Districts to General Commercial (CG) and a Special R R /23/1981 and adopted on 08/25/1981 Exception to allow an a large scale community shopping center in excess of square feet of total floor area including and onsite water and sewage treatment plant DOA (A) Development Order Amendment to delete a R /1/1983 Condition of Approval (Engineering) restricting a median opening on Delray Z/DOA (B) DOA (C) DOA (D) DOA (E) West Road. Rezoning from Agricultural Residential (AR) Zoning District to CG and a Special Exception to amend and expand the site plan for a planned Commercial Development, including a large scale community shopping center in excess of square feet of total floor area Special Exception to amend the site plan for a large scale community shopping center in excess of 50,000 square feet of total floor area and a planned commercial development to include an automobile service station, including gasoline pump island facilities and a car wash Revocation of the Special Exception for an automobile service station, including gasoline pump island facilities and a car wash Development Order Amendment to allow two fast food restaurants as Requested Uses DOA (F) Development Order Amendment to redesign the site plan, modify/delete Conditions of Approval and add building square footage. DOA (F) DOA (G) Corrective Resolutions for to amend Exhibit C Conditions of Approval that inadvertently contained errors. Development Order Amendment to allow a Funeral Home R R ZC 09/03/2015 Page /19/1985 R /25/1985 R /04/1989 R /27/1995 R /07/1999 R R /07/1999 R /23/2003

3 SURROUNDING LAND USES: (Affected Area) NORTH: FLU Designation: Commercial High, with an underlying HR-8 (CH/8) Zoning District: General Commercial District (CG) / Special Exception (SE) Supporting: Commercial (Bank Atlantic, Control No ; and West Boca Estate, Control No ) SOUTH: FLU Designation: Commercial High, with an underlying HR-8 (CH/8) Zoning District: Multiple Use Planned Development District (MUPD) Supporting: Commerical (Atlantic Plaza II, Control No ; and Floral Lakes, Control No ) EAST: FLU Designation: Commercial High, with an underlying HR-8 (CH/8) Zoning District: Multi-Family Residential (Medium Density) District (RM) Supporting: Residential (Floral Lakes, Control No ) WEST: FLU Designation: High Residential (HR-18) Zoning District: Multi-Family Residential (Medium Density) District (RM) Supporting: Residential (King s Point, Control No and ) Findings of Fact: Article 3.D.3.A.2.a requires all commercial uses located within 250 feet of a residential district to not commence business activities prior to 6:00 a.m., or continue later than 11:00 p.m. The Type II Restaurant is within the approved Atlantic Square MUPD located at the southeast corner of Atlantic Avenue and Jog Road. As shown below, it is also located approximately 195 feet (ft.) of a residential use and 121 ft. to the residential zoning district which extends into the centerline of Jog Road (120 ft. ROW). Staff also notes that there is a Development Order Amendment application (DOA ) currently in process with a request to modify the hours of operation condition to exclude the Type II Restaurant. This request received a recommendation of approval from the ZC on August 6, 2015 and is on the August 27, 2015 BCC Agenda for consideration. Should the BCC approve the request, the Type II Restaurant would be allowed to remain open until 11:00 p.m. as allowed by Code. The Staff recommendation is for approval of the DOA. Approximately 195 feet from the proposed outdoor seating area to the nearest residential use. ZC 09/03/2015 Page 207

4 Application No. Z/SE /25/1981 DOA (A) 12/1/1983 Z/DOA (B) 02/19/1985 DOA (C) 06/25/1985 DOA (D) 04/04/1989 DOA (E) 04/27/1995 DOA (F) 01/07/1999 Request Rezoning to General Commercial (CG) and a Special Exception to allow an a large scale community shopping center in excess of square feet of total floor area including and onsite water and sewage treatment plant Development Order Amendment to delete a Condition of Approval (Engineering) restricting a median opening on Delray West Road. Rezoning from Agricultural Residential (AR) Zoning District to CG and a Special Exception to amend and expand the site plan for a planned Commercial Development, including a large scale community shopping center in excess of square feet of total florr area Special Exception to amend the site plan for a large scale community shopping center in excess of 50,000 square feet of total floor area and a planned commercial development to include an automobile service station, including gasoline pump island facilities and a car wash Revocation of the Special Exception for an automobile service station, including gasoline pump island facilities and a car wash Development Order Amendment to allow two fast food restaurants as Requested Uses Development Order Amendment to redesign the site plan, modify/delete Conditions of Approval and add building square footage (Home Depot) HOURS OF OPERATION No conditions for Hours of operation No conditions for Hours of operation No conditions for Hours of operation No limitations on the hours were limited in the ULDC. The Applicant proposed 24 hour operation. Hours were discussed at length at the Zoning Commission to limit 7:30 a.m.- 11:00 p.m. and 6:00 a.m.-11:00 p.m, the limitations were not included in motion The BCC approved hours of operation limitations 6:00 a.m. to 11:00 p.m. added for the Car Wash Only Hours of operation limitation removed The Zoning Commission hearing was postponed so the applicant could meet with the surrounding residential communities. Their concerns included limitations on the hours of operation. Staff proposed hours of operation conditions to the ZC and BCC to be limited 6:00 a.m. to 10:00 p.m. for the fast food restaurants only At the Zoning Commission hearing the hours of operation were discussed for the proposed Home Depot. The Zoning Commission modified the recommendation to limit the hours only for Home Depot and the restaurant and modified it to encompass the entire shopping center. The BCC adopted the modifications to the hours to change from only the Fast Food Restaurants, to the entire Shopping Center, and limit it from 6:00 a.m. to 10:00 p.m. ZC 09/03/2015 Page 208

5 DOA (G) 01/23/2003 Development Order Amendment to allow a Funeral Home and modify conditions of Approval The Applicant requested a modification to the Conditions of Approval to exclude the funeral home so that they may allow for funeral home transfer services. The BCC adopted the modification that limits the shopping center, excluding the Funeral Home, 6:00 a.m. to 10:00 p.m. ANALYSIS OF ARTICLE 2, SECTION 2.B.3.E VARIANCE STANDARDS When considering a Development Order application for a Type II Variance, the Zoning Commission shall consider Standards 1 through 7 listed under Article 2.B.3.E of the ULDC. The Standards and Staff Analyses are as indicated below. A Type II Variance which fails to meet any of these Standards shall be deemed adverse to the public interest and shall not be approved. 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 YES: Hours of operation: There are special conditions and circumstances which exist for this development. The Type II Restaurant (Applebee s) is an existing use and is located within an MUPD at the intersection of Atlantic Avenue and Jog Road. MUPD s are located within more intense corridors and contain higher intensity uses, such as Type II Restaurants. The proposed Applebee s outdoor seating area is located approximately 195 feet to the nearest residential use and is also separated by a six lane road (Jog Road) and landscape buffers. Looking east from Jog Road Looking west from Jog Road ZC 09/03/2015 Page 209

6 2. Special circumstances and conditions do not result from the actions of the Applicant: V1 NO: The Type II Restaurant was constructed in 2001 and is located within 250 feet of a residential district. Although it is separated by Jog Road which is a six lane major collector road, it was not evaluated as part of the 2003 DOA for a modification to the conditions to be excluded from the hours of operation condition. In addition, the Property Owner has been issued a Notice of Violation (Case: C ) for violating the Condition of Approval for the hours of operation which limits the Type II Restaurant to 10:00 p.m. 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: V1 NO: Granting the variance will confer upon the applicant a special privilege for other structures in the same zoning district. 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: V1 NO: Literal interpretation and enforcement of the terms and provisions of this Code does not deprive the Applicant of rights commonly enjoyed by other parcels of land in the same zoning district, and does not work an unnecessary and undue hardship. The restaurant was constructed in 2001 and the hours of operation limitation were applicable at that time. 5. Grant of variance is the minimum variance that will make possible the reasonable use of the parcel of land, building or structure: V1 YES: Without granting of the variance, the restaurant would have to be closed for business at 11:00 p.m. The additional hour may allow for more patrons to enjoy the ability to dine a little later. 6. Grant of the variance will be consistent with the purposes, goals, objectives, and policies of the Comprehensive Plan and this Code: V1 YES: The requested variance is the minimum variance required to comply with the purposes, goals, objectives, and policies of the Comprehensive Plan and this Code. 7. Granting the variance will not be injurious to the area involved or otherwise detrimental to the public welfare: V1 YES: Granting of the Type II Variance will not be injurious to the area or detrimental to the public welfare. Should the ZC approve the variance, as an additional level of protection for the public welfare, Staff recommends the Conditions of Approval as contained in Exhibit C which limits the hours for music in the outdoor seating area to 11:00 p.m. ZC 09/03/2015 Page 210

7 CONDITIONS OF APPROVAL Exhibit C Type II Variance - Standalone ALL PETITIONS 1. The approved Preliminary Site Plan is dated June 11, Modifications to the Development Order inconsistent with the Conditions of Approval, or changes to the uses or site design beyond the authority of the Development Review Officer as established in the Unified Land Development Code, must be approved by the Board of County Commissioners or the Zoning Commission. (ONGOING: ZONING - Zoning) VARIANCE 1. This Variance is approved for the Type II Restaurant. Any change to the use(s) shall require reconsideration of the Variance by the Zoning Commission. (ONGOING: ZONING - Zoning) 2. Hours of business operation for the Type II Restaurant shall be limited to the hours of 6:00 a.m. to 12:00 a.m. daily. (ONGOING: ZONING - Zoning) 3. The Type II Restaurant shall have no outdoor music or entertainment past 11:00 p.m. within the outdoor seating area. (ONGOING: ZONING - Zoning) 4. In Granting this Approval, the Zoning Commission relied upon the oral and written representations of the Property Owner/Applicant both on the record and as part of the application process. Deviations from or violation of these representations shall cause the approval to be presented to the Board of County Commissioners for review under the compliance Condition of this Approval. (ONGOING: ZONING - Zoning) 5. Failure to comply with any of the Conditions of Approval for the subject property at any time may result in: a. The Issuance of a Stop Work Order; the Issuance of a Cease and Desist Order; the Denial or Revocation of a Building Permit; the Denial or Revocation of a Certificate of Occupancy; the Denial of any other Permit, License or Approval to any developer, owner, lessee, or user of the subject property; the Revocation of any other Permit, License or Approval from any developer, owner, lessee, or user of the subject property; the Revocation of any concurrency; and/or, b. The Revocation of the Official Map Amendment, Conditional Use, Requested Use, Development Order Amendment, and/or any other Zoning Approval; and/or, c. A requirement of the development to conform with the standards of the Unified Land Development Code at the time of the finding of non-compliance, or the addition or modification of Conditions reasonably related to the failure to comply with existing Conditions; and/or d. Referral to Code Enforcement; and/or e. Imposition of entitlement density or intensity. Staff may be directed by the Executive Director of PZ&B or the Code Enforcement Special Master to schedule a Status Report before the body which approved the Official Zoning Map Amendment, Conditional Use, Requested Use, Development Order Amendment, and/or other zoning approval, in accordance with the provisions of Section 2.E of the ULDC, in response to any flagrant violation and/or continued violation of any condition of approval. (ONGOING: ZONING - Zoning) DISCLOSURE 1. All applicable state or federal permits shall be obtained before commencement of the development authorized by this Development Permit. ZC 09/03/2015 Page 211

8 Figure 1 - Land Use Map ZC 09/03/2015 Page 212

9 Figure 2 - Zoning Map ZC 09/03/2015 Page 213

10 Figure 3 - Aerial ZC 09/03/2015 Page 214

11 Figure 4 - Preliminary Site Plan dated June 11, 2015 ZC 09/03/2015 Page 215

12 Exhibit D - Disclosures ZC 09/03/2015 Page 216

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20 Exhibit E Applicant s Justification Statement ZC 09/03/2015 Page 224

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25 Exhibit F Letter from the Alliance of Delray Residential Associations, Inc. ZC 09/03/2015 Page 229