STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE BEL CREST BEACH CABANAS ) AND YACHT CLUB, et al. )

)

Petitioner, )

)

vs. ) CASE NO. 82-1722

)

CITY OF CLEARWATER, )

)

Respondent. )

)

RECOMMENDED 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 October 1982 at Clearwater, Florida.

APPEARANCES

For Petitioner: William L. Lyman, Esquire

227 South Garden Avenue Clearwater, Florida 33516

For Respondent: Thomas A. Bustin, Esquire

City Attorney

Post Office Box 4748 Clearwater, Florida 32518

By letter dated June 16, 1982, The Bel Crest Beach Cabanas & Yacht Club, Inc., and Herbert W. Leonhardt and Evelyn W. Leonhardt, Petitioners, appealed the denial, by the Board of Adjustment and Appeal on Zoning, of its petition for a special exception to construct a Type A Marina on Lots 25 and 26, Block A, Bayside Subdivision No. 5, Clearwater, Florida. Specifically, Petitioners seek a special exception to construct four (4) finger piers extending seaward from the existing dock as remodeled. These finger piers will provide seven boat slips.

At the hearing the Chief Planner for the City of Clearwater testified in opposition to granting the exception, two witnesses testified in support of the

?etition, and six exhibits were admitted into evidence.

FINDINGS OF FACT

1. The upland property abutting the proposed marina is zoned CTF-28, which provides for the complete range of motel-hotel developments. Type A Marina facilities are permitted as a special exception in a CTF-28 district.

   
   

2. The property owned by Petitioners is presently occupied by a 17-room motel (Exhibit 5) and there are 15 available parking spaces. Petitioners

   propose to remove the seaward 16 feet of the existing 20-year-old dock, extend the remaining portion of this dock from its present length of 62 feet to 112 feet, and construct four finger piers two feet wide by 24 feet long extending seaward from this dock so as to provide seven boat slips. As private slips this would constitute a Class A marina.

   
   

3. Petitioners intend to convert the existing motel from sole ownership (husband and wife) to a cooperative association which will enter into long-term leases with proprietary lessees who purchase shares in the association. Specifically, the current owners will transfer title to the property to Tropical Palms Development Corporation, who in turn will transfer the property to The Bel Crest Beach Cabanas & Yacht Club, Inc., who will sell the leases (Exhibits 2 and 3).

   
   

4. A copy of the Proprietary Lease proposed for use in this endeavor was not presented to the Board of Adjustment and Appeal on Zoning, nor was the By- Laws of The Bel Crest Beach Cabanas & Yacht Club, Inc. These documents were presented at this hearing as Exhibits 4 and 5.

   
   

5. The Proprietary Lease (Exhibit 4) provides the dock is appurtenant to the unit and may not be conveyed, leased or subleased independent of the unit. Slips 1-7 are assigned to Units 7, 8, 9, 10, 11, 16 and 17, respectively (Exhibit 5). Petitioner Leonhardt testified that he would never allow the motel unit to be leased independent of the slip appurtenant to that unit. He also testified that the boat slips got little use from motel occupants. The existing dock, which is 62 feet long, contains berthing space for three or four boats, depending on the size of the boats. No evidence was presented concerning the parking problem, if any, resulting from the existing docking facilities.

   
   

6. Respondent's primary concern and the reason this application was denied by the Board of Adjustment and Appeal on Zoning is the effect the proposed marina will have on parking on Clearwater Beach. Vehicular parking is a serious problem confronting Clearwater Beach at this time. Further aggravation of this problem will adversely affect the public interest.

   
   

7. A special exception for a seven-slip, Class A marina was granted to the Sea Gull Motel located some 300 feet west of the Bel Crest motel less than one year ago. The Sea Gull converted to cooperative ownership in a plan similar to that proposed by Petitioners. At the Sea Gull hearing for a special exception the parking situation on Clearwater Beach was not raised.

   
   

8. Item 40 of the Proprietary Lease (Exhibit 4) contemplates more than one person may be named as lessee and provides joint lessees have only one vote, are jointly and severally liable for lessees' obligations, etc. Nowhere does the Proprietary Lease or By-Laws of the Association specifically preclude one owner- lessee occupying the boat slip while another owner-lessee occupies the motel unit.

   
   

9. Once converted to a cooperative, the Bel Crest will continue to operate as a motel run by the resident manager with the units owned by the shareholders in the Association. Currently, all units of the motel are owned by a single owner. The By-Laws and Proprietary Lease do not fully cover the situation regarding the boat slip when the unit appurtenant to that boat slip is rented by the usual overnight motel guest who has no use for a boat slip.

   
   

10. The proposed slips present no hazard to navigation or interfere with the enjoyment of the waters adjacent thereto by the boating public.

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Section 131.099, Clearwater Building and Zoning Regulations, provides that special exceptions for marina facilities are permitted in a CTF-28 district. Section 131.016 contains guidelines to consider in determining whether to approve any regulated special exception which include:

    
    

    1. Ingressand egress to the property and proposed structures thereon with particular reference to automobile 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 subsection (1) above, and economic, noise, glare or odor effects of the special exception on adjoining properties and properties generally

       in the district;

       * * *

       (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.

       
       

       In granting any special exception

       the board of adjustment may prescribe appropriate conditions and safeguards in conformity with this chapter.

       Violations of such conditions and safeguards, when made a part of the terms under

       which the special exception is granted, shall be deemed to be a violation of this chapter and punishable as provided by this chapter.

       
       

13. The law is well settled that a special exception request should be granted unless to do so would adversely affect the public interest. Oldham v. Peterson, 398 So.2d 875 (Fla. 5 DCA 1981); Rural New Town, Inc. v. Palm Beach County, 315 So.2d 438 (Fla. 4 DCA 1979). The public interest here involved is to preclude the installation of these proposed boat slips from aggravating the vehicular parking situation on Clearwater Beach.

    
    

14. The fact that special exceptions have been granted to other motels in the immediate vicinity makes the proposed use reasonably compatible with uses in the surrounding areas. However, reasonable assurances have not been provided

    that the availability of off-street parking in the vicinity will not be adversely affected by the granting of this special exception absent strict safeguards and conditions to the granting of this special exception.

    
    

15. Serious questions concerning motel-associated marinas include:

    
    

    1. Since the proposed slips will get little use from motel guests, who will moor his boat there?

    2. If none other than the nightly occupant of the motel unit to which the dock is appurtenant can moor his boat at this marina and the nightly motel guest has little need for a boat slip, why do Petitioners want to construct

       a Class A marina?

       
       

16. The Proprietary Lease provides generally that the dock is appurtenant to the motel unit and may not be conveyed, leased or subleased independent of the unit. It does not necessarily require the absentee proprietary lessee of a unit, to which a dock is appurtenant, to charge the hotel guest at his unit the same fee whether he uses the dock or not. Nor does it necessarily preclude an interpretation of this clause that it does not apply to a sublease to an overnight motel guest who arrives and departs by automobile. Until such time as the Proprietary Lease is modified to eliminate the possibility that construction of this Class A marina will add to the off-street parking problem at Clearwater Beach in the vicinity of the Bel Crest motel, this special exception should be denied.

    
    

17. Petitioner Leonhardt testified that the dock space would remain appurtenant to the unit and would never be separated from the unit. No evidence was presented that a unit with appurtenant dock could not be leased to two people, one of whom would use the unit and the other keep his boat at the dock. Both would require vehicular access and such a combination lessee would exacerbate the existing parking problem. Nor was evidence presented that the Proprietary Lease would prevent a proprietary lessee from "lending" his dock space to his friends whose visits to the boat moored at this dock could further aggravate the parking situation.

    
    

18. Appropriate conditions and safeguards can be prescribed to eliminate parking problems that could result from granting this special exception. The effectiveness of these conditions and safeguards may depend upon the enforcement capabilities of the city if the conditions are not self-enforcing. No evidence was presented regarding the capability of the city to enforce those conditions and safeguards deemed necessary to keep this proposed project from exacerbating the Clearwater Beach parking problem. Once the parking situation is resolved, the special exception requested to construct a Class A marina should be granted. It is

ORDERED that the appeal be granted and Petitioners be granted a special exception to construct a Class A marina for the use and benefit of the owners and lessees at the facility appurtenant to this marina subject to the following conditions:

1. That each of the seven slips be assigned to a specific motel unit to be sold;

2. That the Proprietary Lease be modified to provide that proprietary lessee of units with appurtenant slips can use these slips for their own boats only while in occupancy of the units and other boats moored at these slips shall at all times be under the direction and control of the occupant of the motel unit at the time the boats are moored at the slip appurtenant to the unit; and

   
   

3. The wording of these conditions be modified, if necessary, and approved by the City Planning and Zoning Board to ensure the construction and operation of this marina will not create additional parking problems in the vicinity of the Bel Crest motel by permitting one other than the current occupant of the motel unit to moor a boat at the slip appurtenant to that unit.

DONE AND ORDERED this 23rd day of November, 1982, at Tallahassee, Florida.

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 23rd day of November, 1982.

COPIES FURNISHED:

William L. Lyman, Esquire

227 South Garden Avenue Clearwater, Florida 33516

Thomas A. Bustin, Esquire City Attorney

Post Office Box 4748 Clearwater, Florida 33518

Ms. Lucille Williams City Clerk

City of Clearwater Post Office Box 4748

Clearwater, Florida 33518

Docket for Case No: 82-001722

Orders for Case No: 82-001722