STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK A. BARLOW and )

BETTY J. BARLOW, )

)

Appellants, )

)

vs. ) CASE NO. 84-1273

)

THOMAS PELLERIN and )

CITY OF CLEARWATER, )

)

Respondents. )

)

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 May 29, 1984, at Clearwater, Florida.

APPEARANCES

For Appellants: Frank A. Barlow, pro se

1311 South Washington Avenue Clearwater, Florida 33516

For City of Thomas A. Bustin, Esquire Clearwater: City Attorney

Post Office Box 4748 Clearwater, Florida 33518

For Pellerin: Duane Piersen, M.D.

1010 Jefford Street

Clearwater, Florida 33516

By this appeal Frank A. and Betty J. Barlow seek to reverse the decision of the Board of Adjustment and Appeal on Zoning to grant a special exception to operate a Level II group health facility at 1131 Lakeview Road, Lakeview Heights, Clearwater, Florida.

At the commencement of the hearing the tapes and evidence presented at the Board hearing were admitted into evidence. Thereafter, the City of Clearwater called one witness, Duane Pierson testified in support of the special exception, Appellants called six witnesses, and four exhibits were admitted into evidence with Exhibit 4 being a late-filed exhibit requested by the Hearing Officer.

FINDINGS OF FACT

1. Duane Pierson, M.D., purchased the property known as 1131 Lakeview Road, Clearwater, Florida, from Thomas Pellerin conditional upon the Board of Adjustment and Appeal on Zoning granting a special exception to operate a Level II group health facility at this site. When the Board granted the special exception, Pierson consummated the purchase. This property is zoned RM-8.

   
   

2. Duane Pierson is a psychiatrist and runs a nonprofit corporation that provides services to disturbed young people. The residence at 1131 Lakeview Road is a three-bedroom, two-bath house in which Pierson's group is licensed to house six youths under 18 years of age in a halfway house. These boys and young men are those no longer requiring a very restrictive environment but who are not ready for a full return to society. Many of these youths have been in foster homes where they were unable to cope with the living conditions, some have been abused by parents, and all are classified as disturbed. None of the clients in the proposed facility is considered violent or has abused others. Some will go to a public school each day while those who are out of school will go to work each day. They will have meals prepared for them at this residence, will have a house manager who supervises their activities, sociologists and mental health technicians to aid with the patients' problems, and a night warden who will see the clients remain in the home at night.

   
   

3. None of these clients is deemed to be a danger to the community or to the grammar school adjacent to this residence. The effect on the community in the vicinity would be the same as if a large family of teenage boys moved into the residence.

   
   

4. The neighborhood in the vicinity of this proposed facility has been designated a blighted area so as to qualify for certain tax credits to businesses.

   
   

5. Those witnesses opposing the special exception expressed concerns for the safety of the young children in the grammar school adjacent to this facility, expressed concern that their property values would drop because of the presence of this facility, expressed concern that traffic would be increased as a result of this facility and this would create more danger to the grammar school children, and expressed concern that the youths in the facility would create a danger to the community. No evidence to support these concerns was presented, nor was any evidence presented to rebut the testimony of Dr. Pierson that the facility would create no danger to the community.

   
   

6. One witness testified that such a facility was not permitted in an area designated as a blighted area and cited Section 163.3177, Florida Statutes, as authority for this position. Section 163.3177 contains the required and optional elements of a comprehensive plan for local development. That section does not address Level II group health facilities being excluded from blighted areas.

   
   

   CONCLUSIONS OF LAW

   
   

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

8. Group care facilities are defined in Section 131.006, Building and Zoning Regulations of Clearwater, and the proposed facility comports with that definition.

   
   

9. Section 131.016(18), Building and Zoning Regulations of Clearwater, provides that group care facilities are permitted as special exceptions where specifically provided for in the respective zoning districts.

   
   

10. Section 131.048 of the Clearwater Cede includes family care facilities as regulated in Section 131.2056 as a permitted use in RM-8 zoned districts. Section 131.2056 includes family, group, and congregate care facilities and individual categories of use and provides in part:

    
    

    Other group home populations not otherwise specifically provided for above and characterized by a higher degree of transiency and greater need for therapeutic care shall be permitted only in the level II group care facilities. . . .

    
    

11. The proposed use is compatible with the zoning prescribed for the area. In such a case the burden is upon the appellant to demonstrate by competent substantial evidence that the special exception is contrary to the public interest. Rural New Town, Inc. v. Palm Beach County, 315 So.2d 478 (Fla. 4th DCA 1975). This the Appellants have not done. It is therefore

ORDERED that the appeal of Frank A. and Betty J. Barlow from the granting of a special exception to operate a Level II group care facility at 1131 Lakeview Road, Clearwater, Florida, be dismissed and the granting of the special exception affirmed.

DONE AND ORDERED this 25th day of June, 1984, 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 25th day of June, 1984.

COPIES FURNISHED:

Thomas A. Bustin, Esquire City Attorney

Post Office Box 4748 Clearwater, Florida 33518

Frank A. and Betty J. Barlow 1311 South Washington Avenue

Docket for Case No: 84-001273RX

Orders for Case No: 84-001273RX