CITY OF HALLANDALE BEACH, FLORIDA
DATE: July 21, 2008
TO: D. Mike Good, City Manager
FROM: Richard D. Cannone, Director, Development Services Department
SUBJECT: Application #08-64-Administrative Appeal by Ameen Abdel
637 Foster Road
REQUEST
Eleftheria Zachariades, Esquire, of Siemon & Larsen, representing Ameen Abdel is requesting an Administrative Appeal from a zoning determination regarding a nonconforming structure located at 637 Foster Road.
BACKGROUND
Prior to vacating 636 Foster Road, the Applicant filed for building permits with the Building Division for an interior modification to convert a laundromat into a convenience store at 637 Foster Road. The plans were initially rejected on cursory review as the floor area was calculated at 1,986 square feet and the Foster Road Overlay District requires that the minimum floor area for a convenience store be a minimum of 2,000 square feet. The applicant stated that there was an error on the plans and requested that the City conduct a field inspection with the applicant. The applicant’s architect and the Building Official conducted a field inspection of the subject property and it was verified that the square footage was greater than 2,000 square feet.
Upon re-submittal, the plans were routed to the Planning and Zoning Division for a detailed review and it was determined that the structure was nonconforming, which means that a use cannot be changed to a more intense use that would exacerbate the nonconformity. Additionally, Staff found the use to be “abandoned”, as defined by the Code of Ordinances.
Staff met with the applicant and explained that in order to open a convenience store at that location the applicant would be required to file a Minor Development application along with a Variance/Redevelopment Area Modification for those code requirements that could not be met.
Staff further explained that the use is considered “abandoned” as defined by Code Section 32-8 which states, “to discontinue a use for more than 180 consecutive days”. Therefore, in order to re-establish a use, the applicant would be required to file a Minor Development application along with a Variance/Redevelopment Area Modification for those code requirements that could not be met.
Subsequent to this determination, Staff was contacted by Mr. Abdel’s attorney regarding the property’s abandonment status and contends that the use has not been abandoned and therefore retains its “legal non-conforming” status.
DISCUSSION
Section 32-8 defines a Nonconforming Structure as “a structure or building lawfully existing at the time of the passage of this chapter or amendment to this chapter, which does not conform to the site development standards of area, height, lot coverage, yard setbacks, lot location, or other like requirements of this chapter.”
Section 32-926, Nonconforming Structures further states that “such structure, except as otherwise specifically provided, may be continued so long as it remains otherwise lawful, subject to the following provisions:
(1) Alteration, extension, enlargement, or expansion of nonconforming structure. No such alteration, extension, enlargement, or expansion of a nonconforming structure shall be permitted in a way which increases its noncompliance with present property development and use standards of the zoning district in which it is located; but any nonconforming structure or portion may be altered to decrease its noncompliance with present property development and use standards of the zoning district in which it is located. Nothing in this subsection shall prohibit the director from ordering the compliance with all applicable building construction and safety related codes.
FINDING: The subject structure currently has 4 apartments on the second floor and was last used as a laundromat on the first floor. The applicant is proposing to alter the interior of the building to provide space for a convenience store. As outlined in the chart below the proposed change would further exacerbate the nonconforming status as the proposed alteration would provide for a greater intensity of development standards.
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FOSTER ROAD OVERLAY DISTRICT DEVELOPMENT STANDARDS
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Required |
Provided |
Deficiency |
|
Mixed Use/ Min Lot Size |
10,000 sq. ft |
13,125 sq. ft |
0 |
|
Minimum Floor Area for 1BR |
700 sq ft |
555.96 sq ft |
144.04 sq ft |
|
Landscaping |
30% (3937.5 sq ft) |
23.8% (3128.93 sq ft) |
6.2% (808.57 sq ft) |
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Landscape Buffering Front Rear Side |
10 ft 5 ft 5 ft |
2.5 ft 6.25 ft 3.6 ft |
7.5 ft 0 1.4 ft |
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Yard Setbacks Front NW Side SE Side Rear |
2-10 ft 0 ft 0 ft 20 ft |
0 ft 25 ft 0.3 ft 15 ft |
2-10 ft 0 ft 0 ft 5 ft |
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Trees |
9
|
0
|
9
|
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Dumpster Enclosure |
1(of masonry construction) |
1 Wooden |
1 |
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PARKING REQUIREMENTS |
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Bldg 1 |
Bldg 2 1st Floor
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Bldg 2 2nd Floor |
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Current Use |
Commercial Barber Shop |
Commercial Laundromat |
Residential 4 1-BR Units |
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Parking Ratio |
1:200 |
1:200 |
1.5 spaces per unit |
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Required |
5.06 |
10.55 |
6 |
|
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Proposed Use |
Commercial Barber Shop |
Commercial Convenience Store |
Residential 4 1-BR Units |
|
|
Parking Ratio |
1:200 |
1:150 |
1.5 spaces per unit |
|
|
Required |
5.06 |
14.06 |
6 |
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Total Required |
26 spaces |
|||
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Provided |
17 spaces (not 9ft x 19ft) |
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Deficiency |
9 spaces |
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In addition,
As outlined above, Staff finds that this proposed alteration is not permitted by this provision as “no such alteration, extension, enlargement, or expansion of a nonconforming structure shall be permitted in a way which increases its noncompliance with present property development and use standards of the zoning district in which it is located.”
(2) Replacement, restoration and reconstruction of nonconforming structure. If any existing nonconforming structure, as provided for in this section, is destroyed by any means, including fire, flood, wind, explosion, act of God, or act of a public enemy by less than 50 percent of its total appraised value according to the latest records of the county property appraiser, such structure shall be permitted to be replaced, restored or reconstructed according to the property development standards in effect at the time of its original construction; except that replacement, restoration and reconstruction can only occur in compliance with those building, plumbing, electrical, gas, fire and other construction and safety related regulations in effect at the time of application for a permit to allow replacement, restoration, or reconstruction. In no event shall the destroyed nonconforming structure be replaced to a degree or level greater than the original structure as to height, lot coverage, total floor area, yard setback requirements or other applicable property development regulations at the time of original construction.
FINDING: This subsection is not applicable as the structure was not destroyed.
(3) Repairs and maintenance of nonconforming structures. Routine repairs and maintenance of nonconforming structures on fixtures, wiring or plumbing or on the repair or replacement of walls shall be permitted.
FINDING: This subsection is not applicable as the permit was not for routine repairs and maintenance.
(4) Change in location of nonconforming structure. Should any nonconforming structure be moved for any reason to any distance whatever from its original permitted location, it shall thereafter conform to the regulations for the zoning district in which it is located after it is moved.
FINDING: This subsection is not applicable as the nonconforming structure is not being moved.
(5) Accessory or incidental structures. Structures normally accessory to or incidental to a permitted structure or permitted use in the zoning district in which the nonconforming structure is located may be permitted as accessory structures to the nonconforming structure.
FINDING: This subsection is not applicable as this is not an accessory or incidental structure.
(6) Abandonment of nonconforming structure. The abandonment of a nonconforming structure for a period of 180 consecutive days shall render the nonconforming structure status of the specific nonconforming structure null and void.
FINDING: Section 32-08 defines abandonment “to discontinue a use for more than 180 consecutive days. Although the structure is considered a “mixed use structure” it is Staff’s interpretation of this provision that the term “specific” defines the specific portion of the structure that has been abandoned. In the case of this determination, that status of the specific nonconforming structure that has abandon its use is the laundry mat.
Additionally, Section 32-925(7) Abandonment of use, stipulates that:
The abandonment of a nonconforming use for a period of 180 consecutive days shall render the nonconforming use status of the specific nonconforming use null and void. In the factual determination or whether a nonconforming use has been abandoned, the following factors shall be used, but are not limited to:
a. An intent to abandon the nonconforming use through removal of stock in trade or removal of operating equipment.
b. Some overt act or failure to act which carries with it a sufficient implication that the owner neither claims nor retains any interest in the abandoned property as it stood before the abandonment has occurred. The mere renewal and maintenance of an active occupational license, without more, shall not raise any presumption that the nonconforming use has not been abandoned.
Although the applicant has an existing valid occupational license for a Laundromat, Staff has determined that the use is abandoned as of May 30, 2007. This determination is based upon that fact the Water Account Records show that as of May 30, 2007 there has been no water usage for the Laundromat. Staff also notes that the property owner property owner has failed to apply for a business tax license for the four apartments as it is a requirement for multifamily rental with 3 or more units.
Based on these facts, Staff finds that this specific portion of the nonconforming structure has abandoned its use as defined by the code and is now considered an illegal nonconforming structure. Furthermore, it is Staff determination that in order to bring this property back into legal status, the applicant is required to complete the Minor Development Review process and comply with the Zoning and Land Development Code requirements for the B-L Zoning District, the Foster Road Corridor Overlay District, and the land use proposed. For those code requirements that cannot be met, a variance shall be required.
RECOMMENDATIONS
Based upon the aforementioned findings of fact, Staff recommends that the following administration determination be upheld:
1. That although a convenience store is permitted on the subject property, the applicant would not be able to locate a convenience store within the existing nonconforming structure as it is a more intense use and not permitted by the City of Hallandale Beach Code of Ordinance based upon the finding of fact contained herein.
2. That the structure has abandoned its use as a laundromat and is now an illegal nonconforming structure based upon the finding of fact contained herein. In order to bring this property back into legal status, the applicant is required to complete the Minor Development Review process and comply with the Zoning and Land Development Code requirements for the B-L Zoning District, the Foster Road Corridor Overlay District, and the land use proposed. For those code requirements that cannot be met, a variance shall be required. Additional applications may be required depending on the use proposed.
Reviewed and Concur:
_______________________ __________
D. Mike Good, City Manager Date
_____ Approved _____ Denied _____ Hold for Discussion
COMMENTS:_____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________