STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLEARWATER YACHT CLUB, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2125

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

Pursuant to Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, held a formal hearing in this case on February 25, 1981, in Clearwater, Florida.

APPEARANCES

For Petitioner: George W. Greer, Esquire

302 South Garden Avenue Clearwater, Florida 33516

For Respondent: Thomas A. Bustin, Esquire

Post Office Box 4748 Clearwater, Florida 33518

BACKGROUND

On September 24, 1980, the Petitioner, Clearwater Yacht Club, filed an application with the City of Clearwater Building Department seeking the following administrative waivers of zoning regulations for its property located at 830 South Bayway Boulevard, Clearwater, Florida: (1) a variance from the clear space requirement contained in Section 30.07 (3)(c), Code of Ordinances, to permit the erection of a stockade type fence to enclose a storage area for small sailing craft, and (2) a variance of 42 inches in fence height from that prescribed in Section 32.02B, Code of Ordinances, to permit the erection of a 6 foot fence in the building setback area abutting Bayway Boulevard. This application was denied by the City of Clearwater Zoning Enforcement Officer on September 24, 1980. Pursuant to the provisions of Section 35.09(3), Code of Ordinances, the decision was appealed to the City of Clearwater Board of Adjustment and Appeal on Zoning which considered the request at its meeting on October 9, 1980. Upon the Board determining that a special exception in lieu of a variance was required, the request was continued until the Board's meeting on October 23, 1980. Thereafter, on October 10, 1980, the Petitioner filed an amended application with the Building Department seeking a special exception on its property to permit the operation of a Type C Marina Facility within a CTF-28 Zone. This application was denied by the Zoning Enforcement Officer on October 17, 1980. The matter was again considered by the Board of Adjustment and Appeal on Zoning at its meeting on October 23, 1980. By a 3-2 vote, the Board denied the request.

The instant case arises from an appeal of that decision filed by Petitioner on October 31, 1980, pursuant to Section 35.10, Code of Ordinances. That Section provides a process for any party in interest to appeal a decision of the Board to a Zoning Appeal Hearing Officer. Under a contractual agreement entered into by the City of Clearwater and the Division of Administrative Hearings, and authorized by Section 35.10(E)(1), Code of Ordinances, and Section 120.65 (6), Florida Statutes, the undersigned Hearing Officer was designated as Zoning Appeal Hearing Officer.

The final hearing was scheduled for December 8, 1980, in Clearwater, Florida. However, by agreement of the parties, it was rescheduled to February 25, 1981. At the final hearing, Petitioner called William C. Gregg and John Bankston, both members of the Yacht Club, as its witnesses. Respondent, City of Clearwater, called John Richter of the City's Planning Department as its witness and offered Respondent's Exhibits 1-4; all were received into evidence except Exhibit 4, upon which a ruling was reserved. Additionally, two property owners adjacent to Petitioner, Robert J. Furr and Bert Jackson, testified in opposition to the application while a third simply desired clarification of the application from the City Planning Official. Finally, pursuant to Section 35.10(3), Code of Ordinances, the record of the Board's meetings on October 9 and 23, 1980, and its decision, and the exhibits submitted at said meetings were received into evidence.

The Petitioner has submitted proposed findings of fact and conclusions of law, and the same have been considered by the undersigned in the preparation of this order.

The issue presented for consideration is whether Petitioner is entitled to a special exception to operate as a Type C Marina.

Based on the evidence, the following facts are determined:

FINDINGS OF FACT

1. Petitioner is a private yacht club located on Lots 5-11 inclusive, Block D, Bayside No. 6, Unit A, 830 South Bayway Boulevard, Clearwater, Florida. Founded some five years ago, the club provides a wide array of boating and social functions for its membership. It sits on the north side of Bayway Boulevard and is approximately 50 feet east of Clearwater Pass Avenue. The property is rectangular shaped and has dimensions of approximately 420 feet by

   120 feet. The widest portion of the property fronts Clearwater Harbor to the north and Bayway Boulevard on the south.

   
   

2. The yacht club is situated within an area currently zoned by the City as CTF-28 (high density commercial-tourist). This District provides for a complete range of motel-hotel developments with a major emphasis on tourism. The primary permitted uses and structures within the CTF-28 District are combination hotel, motel, apartment and business buildings, apartment houses, townhouse developments and restaurants.

   
   

3. A number of special exceptions to the permitted uses are authorized within a CTF-28 District. These include, inter alia, three types of marina facilities, namely, Type A (pleasure craft docking), Type B (launching ramp site, commercial) and Type C (private marina). The City has never classified Petitioner under any of these categories.

4. Upon obtaining a Type C classification, a property owner may engage in

   12 separate uses of the property as a matter of right, and a thirteenth upon obtaining specific Board approval. These include: (a) sales and service facilities, (b) boat slips (excluding covered boat slips or dry storage unless specific Board approval is obtained), (c) boat handling equipment, (d) boat and gear storage, (e) launching facilities, (f) fuel station, (g) lockers and sanitary facilities, (h) restaurant facilities (not advertised), (i) club house,

   (j) motel or boatel, (k) recreational facilities (not commercial), (l) park or picnic area, and (m) automobile parking. Petitioner now engages in all permitted activities except items (a), and (j). It does not wish to engage in the latter three uses even if the application is granted. All activities presently conducted are done so in a manner consistent with the requirements of the Zoning Ordinance.

   
   

5. On the east side of Petitioner's property is a multi-story restaurant and lounge while to the west lies a 4-story condominium complex (Bayside 17). Directly across Bayway Boulevard and to the south are two high-rise condominium complexes, one of which is still under construction. Boat docking facilities are located on the waterfront throughout the area, including that of Petitioner and adjacent property owners.

   
   

6. The area may be generally described as a combination of high density residential and commercial buildings and structures catering to the tourist or part-time resident. The proposed reclassification is compatible with the surrounding properties and the character of the land. Its uses fit within the general scheme of zoning for a CTF-28 District, and are consistent with the Land Use Plan.

   
   

7. The chief concern of the adjacent property owners who testified is a fear that reclassification of the property will diminish the view of the water now enjoyed across the clear space on the west side of Petitioner's property. However, since no change in the use of the property will be made by virtue of reclassification, the existing view should not be impaired.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the cause and the parties thereto pursuant to Section 120.65(6), Florida Statutes, and Section 35.10, Code of Ordinances.

   
   

9. Section 35.10(D)(1), Code of Ordinances, prescribes the pertinent guidelines to be followed by a Zoning Appeal Hearing Officer in rendering a decision:

   
   

   1. The Hearing Officer will review the record and testimony presented at public hearing relative to the established guidelines for consideration of variance or special exception, as set forth in Appendix A, Zoning, Code of Ordinances, Section 35.09 (5), (6), (7) and (8), as is applicable.

      
      

      Subsection 35.10(D)(2) specifies additional guidelines to be observed:

      
      

   2. The Hearing Officer shall further be guided by the City Comprehensive Plan, related

      portions of the City Code of Ordinances and established case law.

      
      

      Accordingly, the decision of a Zoning Appeal Hearing Officer must rest upon the record adduced at the public hearing, the City Comprehensive Plan, applicable sections of the Zoning Ordinance and, where pertinent, statutory and established case law.

      
      

10. Section 163.170(6), Florida Statutes (Supp. 1980) defines a special exception as:

    
    

    . . .a use that would not be appropriate generally or without restriction throughout the particular zoning district or classification, but which, if controlled as to number, area, location, or relation to the neighborhood, would not adversely affect the public health, safety, comfort, good order, appearance, convenience, morals and the general welfare.

    
    

    Stated differently, a special exception is an exception from the general provisions of a zoning ordinance contained in the ordinance itself that is permissible unless shown to be contrary to the public interest.

    
    

11. Under the above statutory authority, the City of Clearwater has established special exceptions within particular zoning districts. As is pertinent here, a number of special exceptions are permitted within the CTF-28 District, in which Petitioner's property is located, and are enumerated in Section 17.03, Code of Ordinances. Subsection 17.03(4) therein specifically authorizes "Marina facilities, Types A, B, and C". At issue here is whether Petitioner is entitled to a Type C Marina classification.

    
    

12. In determining whether an applicant is entitled to a special exception, it is necessary only to ascertain whether the applicant factually qualifies for the legislatively established exception. Unlike a variance, it is unnecessary to prove hardship, unique circumstances or any of the other elements entitling a person to a variance; rather, one must only show that certain facts or circumstances specified in the ordinance are found to exist. Mayflower Property, Inc. v. City of Fort Lauderdale, 137 So.2d 849, 852 (Fla. 3d DCA 1962). The general rule is that once a showing of compliance with conditions of the zoning ordinance is made, an applicant is entitled to the exception unless the zoning authority or others in opposition demonstrate that according to the standards in the ordinance, such use would adversely affect the public interest. Rural New Town, Inc. v. Palm Beach County, 315 So.2d 478, 480 (Fla. 4th DCA 1975); City of Naples v. Central Plaza of Naples, Inc., 303 So.2d 423, 425 (Fla. 2d DCA 1974).

    
    

13. Consistent with the above standards, it follows that the burden of proof is on the applicant to show that all conditions set forth in the ordinance have been met. Having done so, the burden then shifts to those in opposition to demonstrate by competent substantial evidence that the special exception is adverse to the public interest. Rural New Town at 480, supra.

    
    

14. Section 35.09(6), Code of Ordinances, requires the Board of Adjustment and Appeal on Zoning to grant a special exception only upon making a finding of fact that the proposed use is consistent with the intent of the Land Use Plan

    and Zoning Ordinance, and with the public interest. Further, in considering requests for special exceptions, Section 35.09 (7), Code of Ordinances, requires that the Board give consideration to the following factors, where applicable:

    
    

    1. Ingress and egress to property and proposed structures thereon with particular reference to automotive and pedestrian safety and convenience, traffic flow and control, and access in case of fire or catastrophe.

    2. Off-street parking and loading areas where required, with particular attention to the

       items in A above, and economic, noise, glare, or odor effects of the special exception on adjoining properties and properties generally in the district.

    3. Refuse and service areas, with particular reference to the items in (a) and (b) above.

    4. Utilities with reference to locations, availability, and compatibility.

    5. Screening and buffering with reference to type, dimensions, and character.

    6. Signs, if any, and proposed exterior lighting with reference to glare, traffic safety, economic effect, and compatibility and harmony with properties in the district.

    7. Required yards and other open space.

    8. Height.

    9. Landscaping.

    10. Renewal and/or termination dates.

    11. That the use will be reasonably compatible with surrounding uses in its function, its

    hours of operation, the type and amount of traffic to be generated, and building size and setbacks, its relationship to land values, and other factors that may be used to measure compatibility.

    
    

15. The Zoning Ordinance mandates the use of the same factors by the Zoning Appeal Hearing Officer, where applicable, when rendering his decision. See Subsections 35.10(D)(1) and (2), supra.

    
    

16. In reviewing the decision of the Board below, which has been made a part of this record, it Is apparent that no discernible consideration was given to the above factors in denying the application. Neither was any visible consideration given to the Land Use Plan as required by the Ordinance, or whether the application was contrary to or consistent with the public interest. 1/ By the same token, other than oblique references to the public interest, the parties herein have made no specific reference to these considerations or the Land Use Plan in either their evidentiary presentations or argument.

    
    

17. Notwithstanding the above deficiencies, it is concluded Petitioner has met its burden of showing compliance with the conditions set forth in the ordinance. In reaching this conclusion, it is noted that Petitioner is functioning as a private, non-commercial type marina in a manner compatible with the uses specified for a Type C Marina in Subsections 35.09(8)(h)(3)(a)-(m), Code of Ordinances. Of the thirteen enumerated uses, Petitioner engages in no less than ten. This was undisputed. Moreover, classification as an A or B

    Marina is inappropriate because (1) the operations of Petitioner clearly exceed the scope and purpose established for Type A, and (2) the Type B Marina contemplates a commercial type operation.

    
    

18. The eleven considerations set forth in Section 35.09(7), supra, must obviously come into play when an exception permits a property owner to engage in a new or different use, and one not previously enjoyed. Under these circumstances, the intended use should be evaluated in conjunction with the factors, and a determination made as to how, if any, the use A is affected by these considerations. In the instant case, which is perhaps unusual, no change in the use of the property will be authorized or made if the application is granted. Rather, we have a continuation of the status quo, with no change in the relationship of the subject property to the other governmental and private uses.

    
    

19. Finally, the evidence of record discloses that the club's facilities are aesthetically pleasing, in good taste, and in harmony with the character of the surrounding land. The uses contemplated by a C Marina, as restricted below, ensure the preservation of the neighborhood integrity, are consistent with the general pattern of land development in the area, and are compatible with the intent of the Land Use Plan.

    
    

20. From the foregoing, it is concluded that Petitioner has met its burden of showing that it factually qualifies for the legislatively established exception.

    
    

21. The Petitioner having demonstrated its entitlement to the permitted use, the burden of proof must then shift to those opposing the application to show that the special exception is adverse to the public interest. Rural New Town at 480, supra. The objection of the City, and the two property owners who testified, focused upon a potential deterioration of the view of the water if the application were granted. The objection is based upon their belief that Petitioner may store boats on the west end of its property, which is now subject to clear space requirements. This argument is deemed speculative, however, because dry storage authority is obtained only by variance, and then only after specific approval of the Board. See Section 35.09(8)(h)(3)(b), Code of Ordinances. Moreover, this concern is beyond the scope of this proceeding. Because no competent and substantial evidence has been presented to show the public interest is adversely affected by the granting of the application, or that the exception is inconsistent with the intent of the Land Use Plan, it should be approved. Rural New Town, supra; City of Naples, supra.

    
    

22. Section 35.09(7), supra, provides in pertinent part:

    
    

    In granting any special exception, the board of adjustment may prescribe appropriate conditions and safeguards in conformity with this ordinance.

    
    

    Therefore, such restrictions or other safeguards as are appropriate and necessary may be incorporated into any grant of a special exception.

    
    

23. Here the Petitioner expressed no interest in conducting the following permitted uses on its property: (1) sales and service facilities, (2) fuel station and (3) motel or boatel. In view of its express waiver of these uses, and the failure to adduce any evidence in support of activities other than those

    now engaged in, the grant of a special exception should contain restrictions against Petitioner providing those functions.

    
    

24. Having considered the argument of counsel relative to the admissibility of Respondent's Exhibit 4, the same is hereby received in evidence.

NOW, THEREFORE, in consideration of the foregoing findings of fact and conclusions of law, it is

ORDERED that the application of Clearwater Yacht Club for a special exception to operate as a Type C Marina on Lots 5-11 inclusive, Block D, Bayside No. 6, Unit A, 830 South Bayway Boulevard, Clearwater, Florida, is hereby granted provided, however, that the applicant shall not engage in those permitted uses described in Sections 35.09(8)(h)(3)(a), (f) and (j), Code of Ordinances.

DONE and ORDERED this 18th day of March, 1981, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1981.

ENDNOTE

1/ After a limited discussion at its meeting on October 23, 1980, which dealt mainly with procedural aspects of the application, the Board approved a motion to deny the request by a 3-2 vote without orally debating or considering the criteria established by the ordinance.

COPIES FURNISHED:

George W. Greer, Esquire

302 South Garden Avenue Clearwater, Florida 33516

Thomas A. Bustin, Esquire Post Office Box 4748 Clearwater, Florida 33518

City Clerk

City of Clearwater

112 South Osceola Avenue Clearwater, Florida 33518

Docket for Case No: 80-002125

Orders for Case No: 80-002125