STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLEARWATER BEACH ASSOCIATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1478

)

JAMES R. GRAY/ROY PEARL, )

)

Applicants and Respondents, ) and )

)

CITY OF CLEARWATER, )

)

Respondent. )

)

ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 25 June 1981 at Clearwater, Florida.

APPEARANCES

For Petitioner: Paul Jackson

723 Bay Esplanade

Clearwater, Florida 33515

For Applicants: Thomas G. Hersem, Esquire

2905 West Bay

Belleair Bluffs, Florida 33540

For Respondent: Thomas A. Bustin, Esquire

City Attorney

City of Clearwater Post Office Box 4748

Clearwater, Florida 33518

This is an appeal from the actions of the Clearwater Board of Adjustment and Appeal on Zoning in approving the application of James R. Gray and Roy Pearl to place a portable 8' x 10' building on beach property owned by Gray which is zoned CTF-28. The Board approved the application as a special exception authorized for commercial recreation facilities in areas zoned CTF-28. As grounds for the appeal it is alleged the application does not meet the requirements for a special exception to the authorized uses, the application was improperly accepted by the Board because it was outside the Board's jurisdiction, the building could be placed beyond the coastal setback construction line, and the case could have adverse precedent-setting values.

At the hearing, four witnesses were called by Appellant, three witnesses were called by Applicant and six exhibits were admitted into evidence. There is little, if any, dispute regarding the facts here involved. Proposed findings submitted by the parties and not incorporated herein were not supported by the evidence or were deemed immaterial to the conclusions reached.

FINDINGS OF FACT

1. James R. Gray owns Lots 10, 11, 12 and 13, Clearwater Beach Park, as recorded in Plat Book 10, p. 42, of the official Records of Pinellas County. These lots are located on Clearwater Beach in an area zoned CTF-28.

   
   

2. For the past several years beach chairs, umbrellas and cabanas have been rented for use in the vicinity of these lots and a portable 4' x 8' building standing on these lots has been used to store the chairs, umbrellas and cabanas when not rented. Gray proposes to replace the 4' x 8' building with an 8' x 10' portable aluminum shed from which to operate the business of renting beach equipment and expand it to include the sale of suntan lotion, soft drinks, and related items. The business will be operated by Roy Pearl, a co-applicant with Gray in these proceedings.

   
   

3. Gray and Pearl applied for a building permit to erect the portable shed and their application was rejected by the City of Clearwater Building Department on the basis that the proposed use of the property was not in conformity with the Building and Zoning Regulations and did not fit the special exceptions provided by Section 131.099 of the Zoning Regulations. The latter determination was made by the Clearwater Planning Department.

   
   

4. Gray then submitted on a City of Clearwater form an Application-- Request for Special Exception to the Clearwater Board of Adjustment and Appeal on Zoning, which, as noted above, approved the application.

   
   

5. The area in question comprises a private beach; and businesses in the vicinity consist of motels, hotels, apartments and restaurants. An 8-unit motel occupies part of the site involved.

   
   

6. The location of the proposed portable aluminum shed is on Lots 12 and 13, approximately 150 feet seaward of the seawall which separates the beach from the business establishment seaward of Gulf View Boulevard. Approximately 150 feet south of this proposed location is a similar storage shed operated in conjunction with a sailboat rental business.

   
   

7. Some of the hotels and motels on Clearwater Beach rent umbrellas, chairs and cabanas, some of which are stored when not in use in storage sheds located more than 100 feet from the main building. On the public beach the City of Clearwater operates a concession which provides the same services proposed by applicant.

   
   

8. The chairs, umbrellas, and cabanas are utilized by guests of the motels and apartments located in the vicinity and by tourists who are using this area of the beach for sunbathing or swimming.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

10. Uses permitted in areas zoned CTF-28 are contained in Section 131.098, Clearwater Code of Building and Zoning Regulations. These uses may generally be described as multiple unit residential such as motels, apartments, boardinghouses, and townhouses with restaurants and churches also permitted.

    
    

11. Special exceptions, which the applicant was advised by the Building Department he should obtain from the Planning Department, are contained in Section 131.099 of these Zoning Regulations. Of the seven exceptions there listed the one most like the use proposed here is "(5) Commercial recreation facilities."

    
    

12. Appellant contends that the proposed use does not qualify as commercial recreation facilities and presented the head of the City of Clearwater Planning Department to opine that renting umbrellas, etc. from the proposed shed did not constitute a commercial recreation facility. In his opinion, the type enterprise included within this definition must be a "facility" at which recreational activities are performed. He would include such things as skating rinks, swimming pools, bowling alleys, miniature golf courses, etc. but not an activity leasing recreation equipment without also providing the facility at which the recreation takes place.

    
    

13. The City Attorney was also called as a witness by Appellant and testified that he had advised the Board of Adjustment and Appeal on Zoning that the ruling on the appeal was beyond their jurisdiction. This opinion was obviously based upon his definition of commercial recreation facilities because Section 121.016(c) of the Zoning Regulations expressly directs the Board to hear appeals from any decision or action of the Building Director and determine the rights of the applicant. Here the Building Director advised the applicant he needed to get a special exception from the Planning Department before the required permit could issue. When the applicant went to the Planning Department he was advised that the proposed use of the property was not covered by the special exceptions for CTF-28 zoning. The Building Department then denied his permit application. The appeal to the Board perforce included an appeal from both of these determinations. Section 131.016(f) of the Zoning Regulations provides:

    
    

    After a review of an application and hearing thereon if the board finds as a fact that the proposed use is consistent with the general zoning plan and with the public interest, the board may permit special exceptions or uses. No special exceptions or special uses shall be granted except by an affirmative vote of four

    (4) members of the board.

    
    

14. Nowhere in Clearwater Code of Building and Zoning Regulations is the phrase "commercial recreation facility" defined. Since the proposed use of the property is obviously a commercial one, as opposed to a private or non-business usage, the only definitions in question are of the words "recreation" and "facility." The former is defined in Webster's New Collegiate Dictionary (1977) as:

    
    

    to create anew, restore, refresh: refreshment of strength and spirits after work; also: a means of refreshment or diversion.

    Sitting in a beach chair or lying on the beach under an umbrella clearly fits into this definition of "recreation."

    
    

    "Facility" is defined in Webster's as:

    1: The quality of being easily performed 2: ease in performance: APTITUDE

    3: readiness of compliance

    4 a: something that promotes the ease of an action, operation, or course of conduct--usu. used in pl. <provide books and other facilities for independent study>

    b: something (as a hospital) that is built, installed, or established to serve a

    particular purpose.

    
    

15. While the b definition above quoted is apparently the applicable definition, the proposed building is a facility in which chairs, umbrellas, etc. (recreational equipment) are stored and from which this recreational equipment is rented. The use of the chairs, umbrellas, etc. will certainly facilitate the restoration of a tired body on the beach and this equipment could be called "recreation facilities" under the definitions above quoted.

    
    

16. The above exercise merely demonstrates that the only definition of the phrase "commercial recreation facility" is not readily apparent and different people could arrive at differing definitions. As noted above, the Board is charged with the duty of making a factual determination whether the proposed use is consistent with the general zoning plan and with the public interest. Substantial evidence was presented that the proposed use is consistent with the usage in other sections of Clearwater Beach and with usage adjacent to the proposed site. Also, substantial evidence was presented that the usage proposed is consistent with the public interest. Many tourists desire to rent umbrellas, chairs and cabanas to "recreate" on Clearwater Beach. Since this finding of the Board is supported by substantial competent evidence and not clearly erroneous, it is incumbent upon the Hearing Officer to affirm this determination rather than substitute his interpretation of the evidence for that of the Board.

    
    

17. Here the Board is the administrative agency primarily charged with the responsibility to protect the public interest and to have expertise in the field of zoning to do so. As the agency charged with administering the zoning regulations, the Board's interpretation of these regulations is entitled to great weight and should be followed unless there are compelling indications that it is wrong. E. I. Du Pont de Nemours & Co. v. Collins, 432 U.S. 46 53 L.Ed. 100 97 S. Ct. 2229 (1977).

From the foregoing it is concluded that the proposed use of the property by the applicant is consistent with the general zoning plan and with the public interest. Accordingly, the appeal is dismissed and the action of the Board of Adjustment and Appeal on Zoning approving the application is affirmed.

Done and entered this 27th day of July, 1981.

K. N. AYERS, 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 27th day of July, 1981.

COPIES FURNISHED:

Mr. Paul Jackson 723 Bay Esplanade

Clearwater, Florida 33515

Thomas G. Hersem, Esquire 2905 West Bay

Belleair Bluffs, Florida 33540

Thomas A. Bustin, Esquire City Attorney

City of Clearwater Post Office Box 4748

Clearwater, Florida 33518

Docket for Case No: 81-001478

Orders for Case No: 81-001478