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Thread: The code and the "convenience store/service station"

  1. #1
    Member
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    The code and the "convenience store/service station"

    As a home owner, with much frustration and a number of regrets, I recently graduated from Planning and Zoning kindergarten. The mayor and council has rezoned the lot bordering my home in a new subdivision located in an "overlay district" from R-3 to C-2 to allow for a 24/7 convenience store/automobile service station to butt right up to us.

    Apellate case law all over the country has concluded that convenience stores are "automobile service stations".

    Here is the city code:

    ARTICLE IX. SPECIAL PROVISIONS
    Section 96. Automobile service stations.
    Within the districts permitting automobile service stations, the following requirements shall apply:
    96.1Location. The property on which an automobile service station is located shall not be within one hundred (100) feet of any residential district, or any property containing a school, public playground, church, hospital, public library, institution for children or dependents.

    After a state court determines that the "convenience store" who wants to be my neighbor is an "automobile service station" and orders the city to abide by and enforce their own code and not allow it...does all the city have to do is amend the code or find a good reason to ignore it through the use of other definitions, provisions,
    variances, etc.?

    As planners and thinkers dealing with these issues, your thoughts,
    comments, and recommendations would be greatly appreciated.

    Thanks,
    Tom

  2. #2
    Cyburbian KSharpe's avatar
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    Quote Originally posted by tmilner View post
    As a home owner, with much frustration and a number of regrets, I recently graduated from Planning and Zoning kindergarten. The mayor and council has rezoned the lot bordering my home in a new subdivision located in an "overlay district" from R-3 to C-2 to allow for a 24/7 convenience store/automobile service station to butt right up to us.

    Apellate case law all over the country has concluded that convenience stores are "automobile service stations".

    Here is the city code:

    ARTICLE IX. SPECIAL PROVISIONS
    Section 96. Automobile service stations.
    Within the districts permitting automobile service stations, the following requirements shall apply:
    96.1Location. The property on which an automobile service station is located shall not be within one hundred (100) feet of any residential district, or any property containing a school, public playground, church, hospital, public library, institution for children or dependents.

    After a state court determines that the "convenience store" who wants to be my neighbor is an "automobile service station" and orders the city to abide by and enforce their own code and not allow it...does all the city have to do is amend the code or find a good reason to ignore it through the use of other definitions, provisions,
    variances, etc.?

    As planners and thinkers dealing with these issues, your thoughts,
    comments, and recommendations would be greatly appreciated.

    Thanks,
    Tom
    Sorry you're having a hard time, Tom. The city could possibly amend the code, but typically that would only apply to future cases, not one in which action has already been taken. In terms of variances, usually variances cannot be issued for this a use. Variances are for things like setbacks and other dimensional standards. Plus, you typically have to prove some "hardship" in order to qualify (the topography of the lot, or such). I would think you'd be in the pink once the court ruled, but I'd like to hear some other opinions on this one.
    Do you want to pet my monkey?

  3. #3
    Cyburbian
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    Are you taking about a ZBA (Zoning Board of Appeals) or an appelate court?

    You mentioned an overlay district was involved, which is a tool used to allow additional uses/requirements/variations within select areas that would ordinarily not be covered under conventional zoning. It sounds like the overlay district eitherdefines the convenience store as a permitted use and/or allows it to be built right next to the residential property.

    As an alternative to the overlay district, the municipality could amend the code, in which case all convenivence stores could now be built next to residential uses, etc. However, without any screening or buffering, this otherwise incompatible use could be creating a nuisance to its neighbors, damaging the safety, general welfare, etc.

    A municipal code amendment typically requires recommendations by the zba/plan commission and adoption by the village board/city council (and can only be done for future situations not yours). The convenience store might also be a special use within your residential zoning district, in which case it just needs to be approved through the zba or plan commission.

  4. #4
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    The Code and the "Convenience Store/Service Station"

    Thanks for the posts. It is good to know some one is listening. Let me state the case a little clearer this time. The "convenience store" is a permitted use in both the under lying district and the overlay district.
    An "automobile service station" is a "use allowed only by special exception".) The code states they will allow an, "Automobile service station, provided no automobile repair is performed and the requirements in Section 96 are met." Section 96 states, "The property on which an automobile service station is located shall not be within one hundred (100) feet of any residential district".

    There are state appellate court decisions recorded in case law in various parts of the country that have determined that "convenience stores" are "gas stations", they are servicing automobiles.

    I am going to court to have a binding decision made in my case that declares that a "convenience store" is an "automobile service station" and based on the city code, the city can't allow one of the top 50 privately owned companies in Georgia to plop down almost $2,000,000.00 for a two acre lot and start "servicing automobiles" even if they already have a contract on the land, which is the case.

    I want the state of Georgia to tell the city that the "convenience store" cannot stand beside their gas pumps, air compressors, auto vacuums, car washes, not to mention their "self service signs" and shelves stocked with motor oil and antifreeze and insist they are not an "automobile service station".

    I hope as both the previous posts stated that the code cannot be amended or any "special exceptions" to the already existing special
    exceptions be introduced to negate the decision of the court. I greatly welcome more comments. You can make them as long and learned as you want. From a planners stand point please demonstrate how lost a cause mine is if that is your point of view.
    Because, some where "down in Georgia" there is a judge who may
    be reading your posts.

    Thanks,
    Tom

  5. #5
    Cyburbian
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    This is a forum open to anyone...not a deposition in a court case. The responses within this thread are merely opinons from planners and non-planners alike and cannot be substituted for expert-witness testimony in a court of law.

    IMO, I think that convenience stores and gas stations are considered similar uses because they are typically open 24hours a day, emit a higher degree of glare from cars parked temporarily as well as canopy lighting, and have a higher deciber level, all of which may be considered nuisances to the abutting property, especially if the abutting uses are residential.

    Is your house located within a residential district (or is it an existing residential use within a non-residential zoned district)? What actions have you taken so far with the city? Have you addressed your concerns before the appropriate advisory body (plan commission, zba, etc?). Has the city granted a variance to permit this special use next to you? Is this development part of a larger PUD? What unique characteristics does the overlay allow? Have you filed a petition and had other neighbors to support you?
    Before going to the state courts, would the county court system have any authority (I don't know anything about Georgia's Compiled Statutes). Bottom line, we need more about the who, what, when, why, where, how before we can advise you what to do next.

    Taking this to court should be the last resort and should only be used when all other options have been exhausted. I would suggest you meet with the city staff first and express your grievances before spending time and money to get a court order.

    Hope this helps-

  6. #6
    Cyburbian hilldweller's avatar
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    Quote Originally posted by tmilner View post

    I hope as both the previous posts stated that the code cannot be amended or any "special exceptions" to the already existing special
    exceptions be introduced to negate the decision of the court. I greatly welcome more comments. You can make them as long and learned as you want. From a planners stand point please demonstrate how lost a cause mine is if that is your point of view.
    Because, some where "down in Georgia" there is a judge who may
    be reading your posts.

    Thanks,
    Tom
    insert nrschmid disclaimer
    Looks like you've got a good case against the town. You should look into whether special exception means a special permit as in a separate approval from zoning, which is quite common. If so, the town would likely be required to produce a "finding of facts" in order to grant the use. Granting special exceptions arbitrarily are generally less common and may conflict with case law.

  7. #7
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    Thanks! It Helps!

    We did the petition, phone calls, emails, and four public hearings to get the request for rezoning from R-3 to C-2 at least reduced to C-1. They still gave the corner lot behind us a C-2 zoning while denying publicly that the convenience store was interested in it.

    I stood before the mayor and council in this last meeting and asked them to take the city code and the overlay district code and deny the request for rezoning. The mayor responded, " I can't do that, you are asking me to break a promise". I stated, "I am not asking you to break a promise". He said, "yes you are, I made promises to these people". I replied, "your promises are not the city code". He then closed the meeting, and a city councilman ran back and forth between the closed meeting and the land owners lawyer and real estate agent, who were in cell phone contact with the owners in the Bahamas and cut the deal. How is that for procedure. The last thing he said to me was, "if it gets too loud, call me."

    That gives you a little bit of the who, when, where, and how.
    If it wasn't for the part of the code that refers to "automobile service
    stations" not being allowed to locate on property that is within 100'
    of me, I would sit down and shut up. My preference, like most people is not to have this operation located next to me. But, if the code allows it, and the city approves it, I have to accept it.

    Thanks,
    Tom

  8. #8
    Cyburbian
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    That's pretty screwed up. I would consult an attorney (preferably one who specializes in land use cases) and take it from there.

  9. #9
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    Special Exceptions

    Quote Originally posted by hilldweller View post
    insert nrschmid disclaimer
    Looks like you've got a good case against the town. You should look into whether special exception means a special permit as in a separate approval from zoning, which is quite common. If so, the town would likely be required to produce a "finding of facts" in order to grant the use. Granting special exceptions arbitrarily are generally less common and may conflict with case law.
    I believe that is the case. At least I hope so, because the court will look at the code and their "findings of facts" to rule. The findings are key. They will not care about hearing my rantings and ravings. I will go and check the code. Great Point!

    Tom

  10. #10
    Cyburbian hilldweller's avatar
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    Quote Originally posted by tmilner View post
    We did the petition, phone calls, emails, and four public hearings to get the request for rezoning from R-3 to C-2 at least reduced to C-1. They still gave the corner lot behind us a C-2 zoning while denying publicly that the convenience store was interested in it.

    I stood before the mayor and council in this last meeting and asked them to take the city code and the overlay district code and deny the request for rezoning. The mayor responded, " I can't do that, you are asking me to break a promise". I stated, "I am not asking you to break a promise". He said, "yes you are, I made promises to these people". I replied, "your promises are not the city code". He then closed the meeting, and a city councilman ran back and forth between the closed meeting and the land owners lawyer and real estate agent, who were in cell phone contact with the owners in the Bahamas and cut the deal. How is that for procedure. The last thing he said to me was, "if it gets too loud, call me."

    That gives you a little bit of the who, when, where, and how.
    If it wasn't for the part of the code that refers to "automobile service
    stations" not being allowed to locate on property that is within 100'
    of me, I would sit down and shut up. My preference, like most people is not to have this operation located next to me. But, if the code allows it, and the city approves it, I have to accept it.

    Thanks,
    Tom
    Welcome to the sickening world of local government.

  11. #11
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    slam dunk

    It is a little disturbing that in my part of Florida there is a tendency to slam low density residential up against commercial land uses (or vice versa). This seems to be done by spot rezoning or just plain traditional Euclidean zoning without regard to transition zones or buffering.

    Happening alot lately!

  12. #12
    Cyburbian
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    Quote Originally posted by Ridgeman View post
    It is a little disturbing that in my part of Florida there is a tendency to slam low density residential up against commercial land uses (or vice versa). This seems to be done by spot rezoning or just plain traditional Euclidean zoning without regard to transition zones or buffering.

    Happening alot lately!
    Are we talking about slamming land uses or zoning districts here? I thought spot zoning, which no one likes to mention directly by it's name, is the negative by-product which may result when communities arbitrarily zone parcel(s) to a specified district in order to promote a desired result. These desired results may include, but not be limited to, strip commercial, neighborhood commercial, open space preservation, etc.
    In the original argument, the proposed use was a permitted use within the zoning district, with a notable setback exception. IMO, I don't think the city wanted to have a desired result for the city...the mayor wanted to fill his pockets

    On a separate note, was buffering (including tools such as berms, landscaping, walls, etc.)a common tool used in the early "traditional" examples of Euclidean zoning? I thought it was either setbacks between two incompatible uses or transition zones. Personally, I don't really see a problem with having some incompatible uses next to each other, but then again I grew up and still live in communities which were built out before zoning even took off.

  13. #13
    Cyburbian Cardinal's avatar
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    From your description of the meeting I would also recommend that you consult an attorney, and review the actions of the mayor and council for violations of your state's open meetings law.

    A convenience store does not necessarily have to dispense gas. It was not uncommon decades ago for there to be a "corner store" which might sell a limited numer of grocery and pharmacy items. Of course, the reality is that now they are almost always built, in US Censuc terms, as "gas stations with convenience stores." Which brings up another thing to check. How does your code define "convenience store?" If the code is old, I suspect the intent may have been to allow corner stores, and not necessarily gas stations.

    Again, you do want to consult an attorney, and fast. If construction starts, you have a much smaller chance of getting anything changed.
    Anyone want to adopt a dog?

  14. #14
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    Meeting procedures and definitions!

    Thanks for the comments Cardinal.

    But, there is no point in appealing any of the out of order meetings and or poor zoning decisions. After the court points out they were out of order, you go back into another public hearing with the same minds, thinking the same way, dealing with you in the same manner. A lawyer can make them dot i's and cross t's as far as procedure goes, but they go right back and do what they want.

    The code defines "automobile service station" but it gives no definition for a convenience store, it just allows them. I do believe the convenience store is a special exception however.

    They haven't approved the site plan, so they aren't building yet.
    Part of the problem is you have to bring the city ordinances up in the
    public hearing in which the site plan is approved and the special exception is granted. You have to mention all of them in order for the state court of appeals to make a ruling about their proper use at the appellate hearing. I am concerned they will see what I see in the code and amend it, redefine it, and put the thing next to me.
    Then we will have to do the arbitrary and capricious thing in court.
    Thanks,
    Tom

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