STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN SCHULTZ, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0808

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, an appeal hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on April 30, 1986, in accordance with Section 137.013 of the City of Clearwater Land Development Code. The issue for determination in this proceeding is whether petitioner is entitled to a variance of 13 parking spaces at property located at 409 Mandalay Avenue on Clearwater Beach.

APPEARANCES

For Petitioner: Margot Pequignot

McMullen, Everett, Logan, Marquardt and Cline, P.A.

Post Office Box 1669 Clearwater, Florida 33517

For Respondent: Miles A. Lance

Assistant City Attorney Post Office Box 4748

Clearwater, Florida 33518-4748 FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. The petitioner owns property located at 409 Mandalay Avenue on Clearwater Beach. This property lies within the Beach Commercial zoning district (CB) which was created to allow for "tourist, convenience and neighborhood, oriented commercial land uses." Section 135.101, Land Development Code. Permitted uses within the CB District include indoor retail sales" and "restaurants." Section 135.104, Land Development Code.

   
   

2. Formerly, petitioner and his brother jointly owned this property along with the adjoining property located at 407 Mandalay Avenue. There was a common structure located on the two properties which was partially used as an eating establishment. The building was destroyed by fire in 1979. In 1982, the two brothers divided the jointly owned property, with petitioner taking title to 409 Mandalay Avenue. In May of 1984, petitioner and his brother desired to rebuild

   on the properties and each sought certain variances from the zoning code. Specifically, petitioner sought seven variances in order to construct a building to be utilized as a retail store on the first floor and two apartments on the second floor. His brother also sought certain variances to construct and utilize a separate, but similar building on 407 Mandalay. On May 24, 1984, the Board granted the variance requests of both brothers. According to the minutes of the Board meeting, variances would be required no master what type of structures were built due to the size of the lot. Among the specific variances requested by the petitioner was a request for a variance of 17 parking spaces.

   The Board granted this requested variance, with the condition that the property be utilized for a retail store with two apartments. Petitioner's brother's requested variance with regard to parking spaces was similarly conditioned. In granting these requested variances from the parking space requirements, the Board found that there were "practical difficulties or unnecessary hardships in complying with the Zoning Code." The new buildings were constructed in 1984.

   The property located at 407 Mandalay Avenue was sold by petitioner's brother and is now being utilized as a retail swimwear store, with two apartments on the second floor. Customers of the swimwear store rarely utilize the parking spaces available on site and generally arrive and depart with the pedestrian traffic in the area.

   
   

3. In January of 1985, petitioner again appeared before the Board seeking a variance of 18 parking spaces in order to utilize his property as a cafe and second floor duplex. Petitioner informed the Board that he wished to replace the restaurant business he operated prior to the 1979 fire, that the business would rely heavily on walk in trade and that he did not feel parking would be a problem. The Board found that there were "not practical difficulties or unnecessary hardships that cannot be overcome" and denied the requested variance.

   
   

4. In January of 1986, petitioner filed a third parking variance application for 13 spaces, noting that the intended use of the property was for carry out food sales. The application notes that the special conditions or circumstances applicable to the property are that the lot is 25 feet wide. At the hearing before the Board, the Board was informed that the McDonald's chain desired to lease petitioner's property to operate a walk up oarry out fast food business, with no customer seating being provided. The Board was further informed that four to six employees would be required to operate the business, that many of McDonald's employees are young people who do not have cars and that McDonald's would, if necessary, find additional parking space to accommodate their employees. The Board concluded that the applicant had failed to demonstrate a necessity for the variance requested and had failed to establish that a hardship existed. The Board further noted its desire to be consistent with previous actions taken not only with the applicant but with similar requests.

   
   

5. The ground floor of the building on petitioner's property contains 1,500 square feet, and has an outside courtyard comprised of 775 square feet. The courtyard is not to be used for customer seating. The Land Development Code requires that, for carry out, drive through or other fast food restaurants, there be 13 parking spaces per one thousand square feet of gross floor area including any outdoor seating area. Section 136.022(f)(4)b 6. Establishments within the Beach Commercial District utilized for restaurants or retail sales are permitted a 50 percent reduction in the required number of parking spaces. Thus, petitioner's use of his property as a fast, food carry out restaurant, without utilizing the courtyard as a seating area for patrons, would require less than ten parking spaces in addition to the two spaces required for the

   second floor duplex. By prior agreement with the owner of the adjoining property, petitioner currently has four parking spaces.

   
   

   CONCLUSIONS OF LAW

   
   

6. In this proceeding, petitioner seeks approval for a variance from the parking space requirements for a fast food, carry out restaurant on Clearwater Beach. The Code requires 10 parking spaces for such a business, along with two more for the upstairs apartments. Petitioner already has four parking spaces available, so the total variance required under the Code is 8 parking spaces. Petitioner presently holds a variance for 17 parking spaces if he desires to utilize his property as a retail establishment. This variance was granted prior to the effective date of the new Land Development Code, which now only requires retail sales businesses to provide 6 parking spaces per 1,000 square feet of gross floor area (Section 136.022) reduced by 50 percent for the Beach Commercial District.

   
   

7. Because the previously granted variance was conditioned on retail sales use of the property, and because the Code's parking requirements vary with the nature of the use to which the property is put, a new approval is required for a parking space variance for a different use. However, the variance required is not with regard to use. The use to which petitioner desires to devote his property is a permitted use for that property under the Land Development Code, to wit: a restaurant. Such use is authorized "by right" under the Land Development Code, and requires no variance or other form of approval from the Board. The only variance required is with regard to the number of parking spaces necessary for a carry out, fast food restaurant.

   
   

8. In order to obtain a variance from the provisions of the Land Development Code, an applicant must demonstrate a hardship and must present evidence of compliance with the eight standards for approval contained in Section 137.012(d) of the Code. Here, petitioner has demonstrated that a parking space variance is necessary due to the narrow width of his property and that, without such a variance, he will be prohibited from utilizing his property as a restaurant, a use for which the property is zoned. The evidence also demonstrates that petitioner expects patrons of the restaurant to be "walk-ins" from the existing pedestrian traffic on the beach who will carry out their food, thus obviating the need for customer parking spaces. The purpose for creating the Beach Commercial District was "to provide a commercial zoning district for Clearwater Beach which allows for tourist, convenience and neighborhood oriented commercial land uses." Section 135.101, Land Development Code. A fast food, carry-out restaurant would certainly satisfy the spirit and intent of the code, as far as use goes.

   
   

9. It must be remembered that petitioner presently holds a parking space variance for 17 spaces. However, that variance is conditioned upon use of the property as a retail store. Whether the instant proceeding be viewed as a request for a lesser variance, 8 or 12 spaces as opposed to 17 spaces, or a request to lift the condition placed on the previously granted variance, it is concluded that the petitioner has demonstrated compliance with the applicable standards for a variance approval. The anticipated use of the property is a permitted use within the CB Zoning District. There simply is no evidence to show that a parking variance for a carry out restaurant use would be more detrimental or injurious to other property in the neighborhood, increase congestion in the public street or otherwise adversely affect the public health, safety, order, convenience or general welfare of the community to any greater extent than a parking variance for a retail store on that property.

10. While the Board is empowered to impose conditions and restrictions upon property benefited by a variance, the imposition of such conditions or restrictions must be for the purpose of reducing or minimizing the

"potentially injurious effect of such variance upon other property in the neighbor- hood, and to carry out the general purpose and intent of this development code."

Section 137.012(e), Land Development Code.

There was absolutely no evidence that the use of petitioner's property as a fast-food, carry out restaurant without the required number of parking spaces would create a negative impact upon other property or traffic congestion in the area. When considering the purpose and intent of the Beach Commercial District to allow for tourist, convenience and neighborhood- oriented commercial land uses, and the absence of any evidence that a walk in, carry out eating establishment or the lack of parking spaces for such an establishment would adversely affect property in the neighborhood, it is concluded that petitioner is entitled to a parking space variance for his property.

FINAL ORDER

Based upon the findings of fact and conclusions of law recited herein, it is ORDERED that petitioner's request for a variance of eight (8) parking spaces for property located at 409 Mandalay Avenue on Clearwater Beach be GRANTED.

DONE and ORDERED this 17th day of June, 1986, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1986.

COPIES FURNISHED:

Miles A. Lance Assistant City Attorney City of Clearwater

P. O. Box 4748 Clearwater, Florida 33518

Cynthia Goudeau City Clerk

P. O. Box 4748

Clearwater, Florida 33518

Margot Pequignot, Esquire McMullen, Everett, Logan

Marquardt and Cline, P.A.

P. O. Box 1669 Clearwater, Florida 33517

Docket for Case No: 86-000808

Orders for Case No: 86-000808