STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM GOODWIN, )

)

Appellant, )

)

vs. ) CASE NO. 87-5317

)

CITY OF CLEARWATER, )

)

Appellee. )

)

FINAL ORDER

By letter dated November 16, 1987, William Goodwin, Appellant, appeals the decision of the Development Code Adjustment Board denying him a variance of six parking spaces for the operation of an oyster bar at Clearwater Beach Seafoods,

37 Causeway Boulevard, Clearwater, Florida.

APPEARANCES

For Appellant: William Goodwin, pro se

37 Causeway Boulevard Clearwater, Florida 34630

For Appellee: Miles A. Lance, Esquire

City Hall

Post Office Box 4748 Clearwater, Florida 34618-4748

At the commencement of this appeal, the evidence submitted to the Adjustment Board was admitted into evidence. Thereafter, the Appellant called two witnesses, and two exhibits were admitted into evidence. Appellee called no witnesses and submitted no additional evidence.

Although these proceedings are denominated a request for variance of six parking spaces at Appellant's business location, the true nature of this appeal is for a modification in the hours of operation of the oyster bar opened by Appellant in 1976 from 5 p.m. until midnight to 11 a.m. until midnight.

FINDINGS OF FACT

1. In 1976, Appellant applied for and was granted a variance of six parking spaces to authorize the opening of a raw oyster bar at 37 Causeway Boulevard, Clearwater, Florida. The variance limited the hours of the raw oyster bar from 5 p.m. to midnight.

   
   

2. Appellant's primary business is the operation of Clearwater Beach Seafoods which at present consists of a retail fish market open from 9 a.m. to 6 p.m., a raw oyster bar open from 5 p.m. until midnight, and a restaurant opened from 5 p.m. to midnight.

3. This facility is located at the Clearwater Beach Marina on property owned by the City of Clearwater and leased to Appellant for the purposes above noted. City-owned parking facilities surround the property occupied by Appellant.

   
   

4. At the time Appellant applied for and was granted the variance of six parking spaces to allow the raw oyster bar to open, the city-owned metered parking spaces surrounding Appellant's business provided for 12-hour parking. This allowed people to park their cars in those metered spaces and proceed to the beach for the day. By limiting Appellant's operating hours to opening at 5 p.m., the oyster bar was expected to have little impact on parking as there would be little demand from beach- goers for parking after 5 p.m.

   
   

5. Subsequent to Appellant receiving the variance for the oyster bar, the City changed the marina parking meters from a 12-hour limit to a one hour limit thereby inhibiting the use of these parking facilities by beach-goers. Special parking permits can be obtained for those patrons of the charter boats who take half-day or whole-day chartered trips. As a result of this change in parking limits, more parking is available at the marina for those persons having business at the marina, including those patronizing the businesses located at the marina.

   
   

6. Appellant's principal business is the retail fish market. In conjunction with this business, Appellant allows patrons to take out sandwiches or raw oysters during the hours the fish market is open. Many of these patrons of the take-out facility take the food to the open, but covered, raw oyster bar area where tables and seating are provided.

   
   

7. It is to better accommodate those patrons presently taking food from the take-out counter as well as to relieve congestion in the fish market that Appellant has made the current request for a variance in the hours of operation. Appellant's lease with the City of Clearwater currently authorizes the operation of the raw oyster bar from 11 a.m. to midnight, but the variance limits the opening hour to 5 p.m. If the requested variance is granted, Appellant will be able to have a waiter at the raw oyster bar facility from 11 a.m. to police the area and to take orders from customers desiring to have lunch at the facility rather than requiring those customers to first go to the fish market for their food. By keeping these customers out of the fish market, the small public area there would be less crowded.

   
   

8. The Land Development Code of the City of Clearwater has no provision for modifying restrictions placed on variances other than repeat the variance request.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The situation here presented is unique. This is not the normal variance request, as the parking variance was granted to the Appellant some two years ago when the raw oyster bar was opened. That issue having been concluded is now res adjudicata. Because there is no provision in the Land Development Code for modifying any conditions placed on variances, to obtain such relief one is forced to pursue a second variance procedure. This factor should be considered in processing the instant request.

11. Standards for approval of variance requests are contained in Section 131.012(d), Land Development Code, which provides a variance shall not be granted by the Development Code Adjustment Board, unless the application and evidence presented clearly support the following conclusions:

    
    

    1. The variance requested arises from a condition which is unique to the property in question and is neither ordinarily or uniformly applicable to the zoning district nor created by an action or actions of the property owner, predecessor in title, or the applicant. Any mistake made in the execution of a building permit or work performed without the benefit of a permit shall not be considered to be situations which support the granting of a variance.

    2. The particular physical surroundings, shape or topographical conditions of the property involved and the strict application of the provisions of this development code would result in an unnecessary hardship upon the applicant.

    3. The variance is the minimum necessary to overcome the unnecessary hardship referred to in preceding recital "2" for the purpose of making reasonable use of the land.

    4. The request for a variance is not based primarily upon the desire of the applicant to secure a greater financial return from the property.

    5. The granting of the variance will not be materially detrimental or injurious to other property or improvements in the neighborhood in which the property is located.

    6. The granting of the variance will not impair an adequate supply of light of ventilation to adjacent property, detract from the appearance of the community, substantially increase the congestion in the public streets, increase the danger of fire, endanger public safety in any way, or substantially diminish or impair the value of surrounding property.

    7. The variance desired will not adversely affect the public health, safety, order, convenience, or general welfare of the community.

    8. The granting of the variance desired will not violate the general

       spirit and intent of this development code.

12. Applying these standards to the request here involved, it is immediately obvious that this property is unique with respect to parking. The land on which the business is located is owned by the City of Clearwater and sits in the middle of a huge city-owned parking lot. Whether the City leases some parking to the Appellant was not adduced at the hearing or on appeal; however, a waiver of parking requirements was granted for the raw oyster bar two years ago and remains in effect. In regard to the ownership of the property, this application is different from variance requests by the operators of other businesses which own the property on which the business is located.

    
    

13. The physical surrounding of Clearwater Beach seafood, as noted above, is a big parking lot. Presumably, the City could lease to Appellant parking spaces for this facility, but such action could cause more problems than it would solve. Being unable to acquire additional parking spaces from his landlord does create some hardship on Appellant; however, again, that issue was settled at the initial variance request.

    
    

14. Likewise, subsections (4), (5), (7) and (8), quoted above, were resolved in Appellant's favor when the parking variance was granted two years ago and should not be revisited.

    
    

15. The only material issue remaining is whether the modification of the variance to change the opening hours from 5 p.m. to 11 a.m. will substantially increase congestion and aggravate the serious parking problem on Clearwater Beach. In this regard, Appellant testified that most of his business at the raw oyster bar comes from pedestrian traffic while members of the Development Code Adjustment Board, at the initial hearing, opined that patrons would drive to the facility for lunch if the hours of operation are modified.

    
    

16. When the original variance of six parking spaces was granted to the Appellant, meters surrounding Clearwater Beach Seafoods allowed 12-hour parking. This long-term parking obviously affected the Board in restricting the hours of operation so as to commence after competition for parking from beach-goers abated. Now that the parking meters limit parking to one hour, beach-goers will not likely compete for this parking. Accordingly, the primary basis for the restriction in hours of operation for the raw oyster bar when the variance was granted, may have gone with the 12-hour parking meters. To insure the modification of opening hour as requested will not aggravate the parking problems and will not violate the spirit and intent of the development code.

The modification in opening hour will be for a limited period of one year after which Appellant may reapply to the Board for a permanent variance in the operating hours of the raw oyster bar. It is,

ORDERED that the variance in six parking spaces granted to William Goodwin, d/b/a Clearwater Beach Seafoods, authorizing a raw oyster bar to operate at the facility from 5 p.m. to midnight be amended to authorize operation of the raw oyster bar from 11 a.m. to midnight for a period of one year from the date of this Order. Prior to the expiration of this one year period, but after sufficient time has elapsed to determine what, if any, effect this change of operating hours has on the parking problems at the Clearwater Beach Marina, William Goodwin, d/b/a Clearwater Beach Seafoods, shall reapply to the Development Code Adjustment Board for a permanent variance in operating hours or the operating hours for the raw oyster bar will revert to 5 p.m. to midnight.

DONE and ORDERED this 25th day of March, 1988, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1988.

COPIES FURNISHED:

William Goodwin Clearwater Beach Seafoods

37 Causeway Boulevard

Clearwater Beach, Florida 34630

Miles A. Lance, Esquire City Hall

Post Office Box 4748 Clearwater, Florida 43618-4748

City Clerk

City of Clearwater City Hall

Post Office Box 4748 Clearwater, Florida 43618-4748

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 87-005317

Orders for Case No: 87-005317