STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MURRAY O'NEIL, et al., )

)

Petitioner, )

)

vs. ) CASE NO. 82-1723

)

CITY OF CLEARWATER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Office, K. N. Ayers, held a public hearing in the above- styled case on 25 October 1982 at Clearwater, Florida.

APPEARANCES

For Petitioner: Neil R. Covert, Esquire

Gormin, Georghegan, Covert & Green, P.A. 1212 South Highland Avenue

Clearwater, Florida 33516

For Respondent: Thomas A. Bustin, Esquire

City Attorney

Post Office Box 4748 Clearwater, Florida 33518

By letter dated June 16, 1982, Murray R. O'Neil, et al., Petitioners, appealed the denial of their application for a special exception to construct a Type A Marina on their property described as Lots 8, 9 and 10, Block A, Bayside Subdivision No. 5, Clearwater Beach, Florida. In their application for special exception to the Building and Zoning Regulations of the City of Clearwater, Petitioners seek to construct a boardwalk-like dock extending nine feet waterward of the seawall and 183 feet long, with six finger piers for boat slips extending 20 feet from the dock, and additional mooring pilings extending 32 feet seaward of the end of the finger piers. The Board of Adjustment and Appeal on Zoning denied the application, and it is from that denial that the Petitioners now seek the granting of this appeal in favor of the Petitioners.

At the hearing one witness was called by Petitioners; one witness was called by Respondent; Exhibit 1, a plan of the proposed dock; and a tape of-the proceedings before the Board of Adjustment and Appeal on Zoning were received into evidence. Also received into evidence as a late-filed exhibit and marked Exhibit 2, is a copy of the Declaration of Condominium of Beach Moorings Condominium. This document was not presented to the Planning and Zoning Board or to the Board of Adjustment and Appeal on Zoning when this application was considered by those boards.

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 16-room motel with 15 designated parking spaces and fronts on the water. Riprap extends approximately six feet from the seawall and Petitioners propose to install a dock nine feet wide covering this riprap and extending some 83 feet, with six finger piers extending seaward from the seawall to provide the 12 boat slips for which this special exception pertains.

   
   

3. Petitioners intend to convert the existing motel from single ownership to a condominium and sell the motel rooms as units to separate owners but continue to operate the facility as a motel. (Art. 12.1, Exhibit 2.) The Declaration of Condominium (Exhibit 2) which was received as a late-filed exhibit, is incomplete in that Exhibits A, B, C and D, which the Declaration states are made a part of the Declaration, were not attached to the copy of Exhibit 2 which was received.

   
   

4. The proposed boat slips or dock is designated in the Declaration as Limited Common Elements. Art. 2.12 of Exhibit 2 provides that:

   
   

   Limited Common Elements, if any, are those portions of the Common Elements which are reserved for or attributable to the exclusive use

   of a certain Unit Owner whether such use is assigned as an appurtenance to a Unit or separate thereto including, but not limited to, boat docks assigned as appurtenances to specific individual units.

   
   

5. The boat slips presumably are assigned to specific motel units as appurtenances thereto. (Art. 6.1, Exhibit 2.) Article 12.2 provides no unit owner or lessee of a unit owner may lease or sublease any Limited Common Element including, but not limited to, any boat dock assigned as an appurtenance to a specific unit. Similar provisions are made for the existing automobile parking spaces which are also designated Limited Common Elements and appurtenant to a specific unit (Art. 6.2, Exhibit 2). 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.

   
   

6. A special exception for a seven-slip Class A marina was granted to the Sea Gull Motel, located in the same general area, less than one year ago. The Sea Gull converted to cooperative ownership instead of into a condominium as Petitioners here propose. The Sea Gull continues to operate as a motel, with multiple ownership of the units, just as Petitioners propose.

   
   

7. Absent Exhibits A, B, C and D to Exhibit 2, it is not possible to tell which boat slip is appurtenant to which motel unit or that one slip may not be appurtenant to more than one motel unit. Since multiple ownership of a single

   unit is contemplated by the developer (Art. 13.2.3, Exhibit 2) the possibility exists that one of the joint owners could occupy the motel unit while another occupied the boat slip appurtenant to the unit.

   
   

8. The proposed slips propose no/hazard to navigation or interfere with the enjoyment of the waters adjacent thereto by the general public.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 131.099, Clearwater Building and Zoning Regulations, provides that a special exception for marina facilities is 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. Ingress and egress to 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, 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.

      
      

2. 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.

3. 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 area. 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.

   
   

4. The Declaration of Condominium provides that no unit owner or lessee may lease or sublease any boat dock assigned as an appurtenance to a specific unit. This does not preclude the unit owner or lessee from allowing a guest to use the boat dock appurtenant to that unit. Nor does it preclude a subsequent unit owner from interpreting the word "lessee" not to include the overnight motel guest who arrives and departs by automobile. Absent Exhibit A through D of Exhibit 2 it cannot be ascertained that the designation of Limited Common Elements and proscription on separating the motel unit from the boat dock appurtenant thereto guarantees that the granting of this special exception will not adversely affect the public interest by its effect on vehicular parking. Little evidence regarding the Articles of Incorporation and By-Laws of the condominium association was presented at this hearing.

   
   

5. Unless the granting of this special exception will adversely impact on vehicular parking on Clearwater Beach in the vicinity of the Beach Moorings and therefore be contrary to the public interest; the special exception should be granted. 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 project from aggravating 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 as applied for, 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 12 slips be assigned to a specific motel unit to be sold;

   
   

2. That the Declaration of Condominium, Articles of Incorporation and By- Laws of the Beach Moorings Condominium be modified, if necessary, to provide that the unit owners and lessees of the units with appurtenant boat 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 boat is moored at the slip appurtenant to the unit; and

   
   

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

Thomas A. Bustin, Esquire Post Office Box 4748 Clearwater, Florida 33516

Neil R. Covert, Esquire Gormin, Georghegan, Covert

& Green, P.A.

1212 South Highland Avenue Clearwater, Florida 33516

Ms. Lucille Williams City Clerk

Post Office Box 4748 Clearwater, Florida 33516

Docket for Case No: 82-001723

Orders for Case No: 82-001723