STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KERRY B. LAWSON, )

)

Appellant, )

)

vs. )

) CASE NO. 87-2546

CITY OF CLEARWATER, )

)

Appellee, )

and )

) VILLAS OF SUNSET GROVE ) HOMEOWNERS ASSOCIATION, )

)

Intervenor. )

)

FINAL ORDER

Pursuant to notice, a hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on August 19, 1987, in Clearwater, Florida, in accordance with Section 137.013 of the City of Clearwater Land Development Code. The issue for determination in this proceeding is whether Kerry B. Lawson is entitled to conditionally use property located at 2002, 2004 and 2006 Sunset Grove Lane for the operation of a Level I Group Care Facility.

APPEARANCES

For Appellant: Kerry B. Lawson 641 Michigan Blvd.

Dunedin, Florida 33528

For Appellee City: M. A. Galbraith, Jr.

City Attorney

Post Office Box 4748 Clearwater, Florida 33518-4748

For Intervenor Villas

of Sunset Grove William Rambaum, Esquire Homeowners' 2475 Enterprise Road, Suite 109

Association: Clearwater, Florida 34623 FINDINGS OF FACT

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

1. On or about April 27, 1987, Dawn Kochtan submitted an application to the Planning and Zoning Board for a conditional use of the property located at 2002, 2004 and 2006 Sunset Grove Lane as an adult congregate living facility for

   nine elderly persons. At the hearing before the undersigned, Kerry B. Lawson, who had acquired ownership of the property, was substituted for Dawn Kochtan as the applicant/appellant.

   
   

2. The subject property is located in the Villas of Sunset Grove, a residential community consisting of some 80 residential units which are divided up into several one-story buildings, all substantially similar in exterior appearance. The three units which are the subject of this conditional use application are adjacently located in one building consisting of a total of six units. Many of the units within the Villas of Sunset Grove are currently tenant, as opposed to owner, occupied. The Declaration of Covenants, Conditions and Restrictions for the Villas contains use restrictions for the subdivision. These include the requirements that each unit be used as a residence for a single family and for no other purpose and that no business of any kind be conducted in any residence.

   
   

3. The applicant Kerry B. Lawson owns ten residential units within the Villas of Sunset Grove. He desires to utilize his three adjacent units at 2002, 2004 and 2006 Sunset Grove Lane as an adult congregate living facility to house eight elderly residents and a resident supervisor. While no exterior changes to the units are proposed, there will be some interior structural changes so that the three units will be converted to one unit. The interior changes would include the removal of two kitchens, so as to provide more activity areas, and the provision of fire doors. No exterior signs advertising the facility are contemplated. If the rate of liability insurance coverage increases as a result of the existence of an adult congregate living facility within the Villas, the applicant Lawson is willing to pay the difference.

   
   

4. The subject property is zoned as RM-12, which is a multiple-family residential "twelve" district. Among the permitted uses within this zoning district is "family care." Level I and Level II group care, as well as congregate care, may be permitted as conditional uses. Sections 135.040 and 135.041, Land Development Code. "Family care" and "group care" are both defined as residential uses involving a building designed to be occupied by a certain number of "related or unrelated" individuals in addition to supervisory individuals. The difference between "family care" and the various levels of "group care" is the number of individuals occupying the particular dwelling unit. A "family care" residential use includes a facility for not more than five related or unrelated individuals in addition to not more than two resident supervisory individuals. A Level I group care residential use includes a facility designed to accomodate six to ten cared-for individuals plus not more than two resident supervisors. Section 137.005, Land Development Code.

   
   

5. The Land Development Code sets forth general standards and supplementary standards by categories of use which must be met before a conditional use is authorized. The only standard in dispute in this proceeding is the requirement that the intended conditional use be "reasonably compatible" with the surrounding uses. The general standard is that

   
   

   "The use shall be reasonably compatible with surrounding uses as measured by building setbacks, open spaces, hours of operation, building and site appearance, architectural design and other

   factors which may be determined appropriate to assess the compatibility of uses." Section 136.025(b)(7).

   
   

6. The corresponding supplemental standard applicable to Level I group care facilities reads as follows:

   
   

   "The use shall be reasonably compatible with the surrounding neighborhood as measured by building size, location and state of repair." Section 136.025(c)(14)c.

   
   

7. In addition, the Code provides that conditional uses are to be approved only upon a determination that the application and evidence presented "clearly indicate" that

   
   

   "The use shall be compatible with the surrounding area and not impose an excessive burden or have a substantial negative impact on surrounding or adjacent uses or on community facilities or services." Section 137.011(d)(6).

   
   

8. The City Planning Director recommended that the conditional use application be approved, with certain conditions. At the hearing before the Planning and Zoning Board (and at the hearing before the undersigned), several residents and members of the homeowners' association of the Villas of Sunset Grove testified and petitioned in opposition to the application for conditional use. Their concerns included an increase in insurance rates, the non-payment of maintenance assessments by the applicant, the operation of a business within a residential area, a change in the character of their residential neighborhood, and the deed restrictions applicable to the Villas. The Planning and Zoning Board voted unanimously (6-0) to deny the application for a conditional use.

   The comments made by individual Board members indicate that they were influenced by the opposition of the neighbors and the potential violations of the deed restrictions.

   
   

9. Residents of adult congregate living facilities are typically elderly, do not own automobiles, do not have frequent visitors and generally lead a very quiet existence. Such facilities require State licensure and must comply with the statutory and regulatory requirements administered by the Department of Health and Rehabilitative Services. Chapter 400, Part II, Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

10. No use identified in the City of Clearwater's Land Development Code as conditional may be authorized unless the general and specific standards for approval are met. It is the applicant's burden to demonstrate compliance with each of the enumerated standards. The evidence indicates that the only standard in dispute in this proceeding is whether the proposed use of three adjacent residential units as an adult congregate living facility housing nine individuals, denominated by the Code as a Level I group care facility, is compatible with the surrounding land uses in the area.

11. It is instructive to note that if the applicant desired to utilize his units within the Villas as an adult congregate living facility for five unrelated individuals and two supervisors, he could do so as a permitted use. Whether or not such a use would constitute a violation of the deed restrictions or covenants for the Villas is not an appropriate issue for resolution by the Planning and Zoning Board or this Hearing Officer. The appropriate issue for determination in this proceeding is whether the City of Clearwater Land Development Code permits approval of a conditional use of the property as proposed by the applicant.

    
    

12. The Code's specific allowance of a Level I and Level II group care facility, and other congregate care facilities, within multiple-family residential "twelve" districts constitutes a recognition that such a use may be a compatible use if it otherwise conforms with applicable standards. The City of Clearwater has explicitly recognized and sanctioned the objective of deinstitutionalization through the placement of persons in need of special services in normal residential environments. See Section 136.020(f), Land Development Code.

    
    

13. In determining whether a proposed use is compatible with surrounding uses, the Code is instructive as to the factors to be measured. These factors include such considerations as building and site appearance, hours of operation and burdens or negative impacts upon surrounding or adjacent uses. Here, the evidence demonstrates that while there will be some interior changes accomplished within the three units to make them suitable as a group care facility, no exterior changes will be made so as to distinguish these three units from the remainder of the residential community. The "hours of operation" of the proposed facility will be no different than what would occur in any residential unit or dwelling. There has been no indication that the housing of eight unrelated elderly individuals, along with one resident supervisor, in three units combined to make one unit will create any burden, hardship or negative impact upon neighboring residents or surrounding uses. The personal opinions of the neighboring residents as to the uses they prefer in their neighborhood are not controlling in zoning decisions absent a demonstration of hardship, burden or negative impacts. None have been demonstrated in this proceeding. Compatibility is to be measured by the existing uses in the surrounding area, as well as other standards adopted and contained within the Land Development Code, and is not to be measured against the private and personal opinions or preferences of the individual neighbors.

    
    

14. Having demonstrated that a Level I group care facility would sufficiently comply with all the general and specific standards for approval as a conditional use, as set forth in the City's Land Development Code, the subject application for such a use is entitled to approval, with certain conditions as authorized by Section 137.011(e).

FINAL ORDER

Based upon the findings of fact and conclusions of law recited herein, it is ORDERED that the application of Kerry B. Lawson to conditionally use the property located at 2002, 2004 and 2006 Sunset Grove Lane as a Level I group care facility is approved with the following conditions:

1. that a Declaration of Unity of Title be recorded prior to issuance of a certificate of occupancy;

2. that internal structural changes be made in the units to provide access between the three units and the removal of two kitchens;

   
   

3. that approval is limited to a maximum of nine persons (including the resident supervisor) residing in the facility at any one time; and

   
   

4. that the use permit be obtained no later than six (6) months from the date of this Order.

DONE and ORDERED this 25th day of September, 1987, in Tallahassee, Florida.

DIANE D. TREMOR

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 September, 1987.

COPIES FURNISHED:

Kerry B. Lawson William Rambaum, Esquire

641 Michigan Blvd. Suite 109

Dunedin, Florida 33528 2475 Enterprise Road

Clearwater, Florida 34623

M. A. Galbraith, Jr. Cynthia Goudeau, City Clerk

City Attorney City of Clearwater

Post Office Box 4748 Post Office Box 4748 Clearwater, Florida 33518-4748 Clearwater, Florida 33518

Docket for Case No: 87-002546

Orders for Case No: 87-002546