STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLEARWATER BAY MARINE WAYS, INC., )

)

Appellant, )

)

vs. ) CASE NO. 93-7070

)

CITY OF CLEARWATER, )

)

Appellee. )

)

FINAL ORDER

On February 17, 1994, a final hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Appellant: David A. Bacon, Esquire

Bacon, Bacon, Johnson, Goddard & Moody 2959 First Avenue North

St. Petersburg, Florida 33733-3576

For Appellee: Miles A. Lance, Esquire

Assistant City Attorney City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

STATEMENT OF THE ISSUE

The issue in this case is whether the evidence sustains the decision of the City of Clearwater Development Code Adjustment Board (the Board) to deny the application of the Appellant, Clearwater Bay Marine Ways, Inc., for a 62-space parking requirement variance (200 spaces instead of the 262 required under the Code) for its property located at 900 North Osceola Avenue, Clearwater, Florida. (The variance is required as a result of the Appellant's desire to use a part of the property as a cruise ship docking facility.)

PRELIMINARY STATEMENT

On or about October 25, 1993, the Appellant, Clearwater Bay Marine Ways, Inc., applied to the City of Clearwater Development Code Adjustment Board (the Board) for an 81-space parking requirement variance (128 spaces instead of the

209 required under the Code) for its property located at 900 North Osceola Avenue, Clearwater, Florida. After filing the application, the site plan was modified, and the variance application was modified to request a 62-space variance (200 spaces instead of the 262 required under the Code). Staff reviewed the application and, on the condition that the applicant secure additional parking if "deemed necessary by the City," recommended that the Board

grant the variance application. However, when it was considered by the Board at a public hearing on November 17, 1993, the Board denied the application. A timely appeal was filed on December 1, 1993.

Under Section 36.065 of the City of Clearwater Land Development Code (the Code), the appeal was forwarded to the Division of Administrative Hearings on December 13, 1993, along with a copy of the record of the proceedings below. On January 6, 1994, a Notice of Hearing was issued scheduling final hearing for February 17, 1994.

At the final hearing, the record of the proceeding below was received, as required by Section 36.065(5)(c) of the Code. Additional evidence also was received, as permitted by Section 36.065(5)(d) and (6)(a) of the Code.

Summations were heard, as permitted by Section 36.065(5)(b) of the Code. In addition, the parties were permitted to file post-hearing proposed findings of fact and conclusions of law under Section 36.065(5)(h) of the Code.

FINDINGS OF FACT

1. On or about October 25, 1993, the Appellant, Clearwater Bay Marine Ways, Inc., applied to the City of Clearwater Development Code Adjustment Board (the Board) for an 81-space parking requirement variance (128 spaces instead of the 209 required under the Code) for its property located at 900 North Osceola Avenue, Clearwater, Florida. After filing the application, the site plan was modified, and the variance application was modified to request a 62-space variance (200 spaces instead of the 262 required under the Code).

   
   

2. The variance is required as a result of the Appellant's plan to have Adventure Seaways Corporation use a part of the property for use as a docking facility for its 600-passenger cruise ship, the Majestic Empress.

   
   

3. The City of Clearwater Development Code (the Code) has no parking space requirements specifically designed for cruise ship operations. To establish the parking space requirements, it was decided to utilize Section 42.34(6)(d)2.c. of the Code, which addresses certain "retail sales and service uses," and states:

   
   

   Theaters, indoor and outdoor recreation centers, swimming pools, skating rinks and other public or private recreation and amusement facilities: One parking space per three customers or patrons computed on the basis of maximum servicing capacity at any one time, as determined by the requirements of the city, plus one additional space for every two persons employed on the premises at peak period of use. Specific provisions over and above the standard may be required for uses such as movie theaters involving successive changes of patrons with a corresponding overlap in parking required.

   
   

   Under that provision, it was calculated that 200 spaces would be needed for peak capacity for the 600-passenger cruise ship. An additional 62 parking spaces are needed for other uses proposed in the site plan (including boat slips, a dive charter operation, a sail charter operation, a 2,800 square foot parts and service business and three work bays), for a total of 262 parking spaces for the overall site plan.

4. The evidence was that no adjustments to the calculation under the "one space per three customers or patrons" formula were "determined by the requirements of the city," and that no additional spaces were required for "persons employed on the premises." (There was some evidence that the Adventure Seaways employees will park off-site.) Nor was there any evidence that there were any "[s]pecific provisions over and above the standard required for . . . successive changes of patrons with a corresponding overlap in parking required."

   
   

5. The Adventure Seaways Corporation plans two excursions of the Majestic Empress a day, one during the day and one in the evening. It is expected that the ship would sail at full capacity only approximately one day a week, on Saturday. At peak capacity, it is expected that 30 percent of the passengers will arrive at the docking facility by tour bus. During the day cruise, the buses would leave the facility and return at the end of the cruise to drop off passengers for the evening cruise and pick up off-loading day cruise passengers. They would not remain at the facility during the times other cruise ship passengers would have their cars parked at the facility.

   
   

6. Using only the "one space per three customers or patrons" formula under Section 42.34(6)(d)2.c. of the Code, the 70 percent of the total complement of passengers, who are expected to arrive by personal vehicle on peak days, would require only 140 parking spaces (420 passengers divided by three per parking space), well below the 200 spaces allocated to the cruise ship operation under Clearwater Bay Marine Ways site plan.

   
   

7. Since Adventure Seaways has not been able to use the Majestic Empress at the Clearwater Bay Marine Ways facility without the parking space variance, it has transferred a smaller cruise ship, the Crown Empress, from its docking facility at Johns Pass on Treasure Island in the interim. The Crown Empress's capacity is only 400 passengers, and no parking space variance is required to use it at the Clearwater Bay Marine Ways facility. Meanwhile, Adventure Seaways has received temporary permission to utilize the Majestic Empress at the Johns Pass facility on the condition that it make greater than normal use of tour buses to transport passengers to and from the Johns Pass docking facility.

   
   

8. Adventure Seaways purchased the Majestic Empress after being encouraged by City officials about the prospects of being able to utilize the Clearwater Bay Marine Ways facility. After purchasing the vessel, it had the vessel reconfigured to reduce its draft to accommodate the shallow waters it would have to navigate getting to and from the facility. Adventure Seaways also closed in the top deck of the vessel to meet Code requirements for noise control. Neither the special shallow draft configuration nor the noise control measures are required for utilization of the Johns Pass facility.

   
   

9. Part of the encouragement by City officials about the prospects of Adventure Seaways being able to utilize the Clearwater Bay Marine Ways facility included assurances that the City would help Adventure Seaways gain access to additional parking, or develop or acquire additional parking, in the vicinity, if needed. Another option would be to utilize off-site parking and transport passengers to and from the Clearwater Bay Marine Ways facility by bus.

   CONCLUSIONS OF LAW

   
   

10. The standards for approval of an application for a variance are set out in Section 45.24 of the City of Clearwater Land Development Code (the Code), which provides:

    
    

    A variance shall not be granted 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 nor uniformly applicable to the zoning district, and is not created by an action of the property owner, predecessor in title, or the applicant. . . ..

    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 subsection (2) of this section 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 or 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 the public safety in any way, 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.

1. Appeals from decisions of the Board are governed by Section 36.065 of the Code, which provides in pertinent part:

   
   

   1. Purpose. It is the purpose of this section to provide an administrative process for appealing decisions rendered on variances and conditional uses by the development code adjustment board and the planning and zoning board respectively, prior to any available recourse in a court of law. In particular,

      it is intended that such administrative relief be provided in the most professional, objective and equitable manner possible through the appointment of a hearing officer to adjudicate

      matters as provided in this section. The function of the hearing officer shall be to serve as the second step of a two-step administrative process relating to variances and conditional uses.

      * * *

      1. Conduct of the hearing. Conduct of the hearing before the hearing officer shall be as follows:

         * * *

         1. The hearing officer shall have the authority to determine the applicability and relevance of all materials, exhibits and testimony and to exclude irrelevant, immaterial or repetitious matter.

         2. The hearing officer is authorized to administer oaths to witnesses.

         3. A reasonable amount of cross examination of witnesses shall be permitted at the discretion of the hearing officer.

         * * *

      2. Decision. The decision of the hearing officer shall be based upon the following criteria and rendered as follows:

      1. The hearing officer shall review the record and testimony presented at the hearing before the board and the hearing officer relative to the guidelines for consideration of conditional uses or variances as contained in chapter 41, article II, or chapter 45, respectively. Although additional evidence may be brought before the hearing officer, the hearing shall not be deemed a hearing de novo, and the record before the board shall be incorporated into the record before the hearing officer, supplemented by such additional evidence as may be brought before the hearing officer.

      2. The hearing officer shall be guided by the city comprehensive plan, relevant portions of this Code and established

         case law.

      3. The burden shall be upon the appellant to show that the decision of the board cannot be sustained by the evidence

         before the board and before the hearing officer, or that the decision of the board departs from the essential requirements of law.

      4. The hearing officer's determination shall include appropriate findings of fact, conclusions of law and decision

      in the matter of the appeal. The hearing officer may affirm or reverse the decision of the board, and may impose such reasonable conditions as the board may have imposed.

      
      

2. These provisions appear to provide for a curious hybrid proceeding that is an appellate review on the one hand, in the sense that the issue is whether the evidence sustains the board's decision, and a de novo proceeding on the other hand, in the sense that additional evidence can be adduced at the appeal hearing. In other words, whether the Board's decision is sustainable under the pertinent law is tested not only against the evidence presented before it but also against the evidence presented before the hearing officer.

   
   

3. It is concluded that the Appellant has not met its burden of proving that the evidence does not sustain the Board's decision that the application and evidence do not clearly support the conclusion that the standards for approval set out in Section 45.24 of the Code have been met.

   
   

4. The application and evidence presented do not clearly support the conclusion that the variance requested arises from a condition which is not created by the Appellant's action. The "condition" from which the variance request arises is the proposed use of the 600-passenger Majestic Empress. If Adventure Seaways proposed to use the Crown Empress or a similar, smaller vessel, no parking space variance would be needed.

   
   

5. The Appellant has made an argument in the nature of equitable estoppel in support of its application for a variance. Essentially, the Appellant's argument is that Adventure Seaways was encouraged by City officials about the prospects of being able to utilize the Clearwater Bay Marine Ways facility. Based on this encouragement, Adventure Seaways purchased the Majestic Empress and had it reconfigured to reduce its draft to accommodate the shallow waters it would have to navigate getting to and from the facility. Adventure Seaways also closed in the top deck of the vessel to meet Code requirements for noise control.

   
   

6. It is doubtful whether allegations of "encouragement by City officials" would be enough to establish an equitable estoppel against the City. It also is noted, as found, that part of the encouragement by City officials about the prospects of Adventure Seaways being able to utilize the Clearwater Bay Marine Ways facility included assurances that the City would help Adventure Seaways gain access to additional parking, or develop or acquire additional parking, in the vicinity, if needed. This "encouragement" presumes the

   possibility that additional parking might be necessary. In any case, it is not necessary to reach a conclusion of law on the issue of equitable estoppel because Section 36.065 of the Code does not confer any equity jurisdiction. Any claim of equitable estoppel would have to be pursued in a court of competent jurisdiction.

   
   

7. As set out in paragraphs 2 through 5 of the Findings of Fact, an argument could be made that the 262-space parking requirement was calculated incorrectly and that, if correctly calculated, would not necessitate any variance. But this proceeding is on an application for a variance from an already established 262-space parking requirement, not a proceeding to properly establish the parking space requirement for the site plan. The latter is not a permissible purpose to be served by this proceeding. See Section 36.065 of the Code. Instead, Section 35.10 of the Code would appear to establish the proper procedure for obtaining an administrative determination of questions concerning the application of parking space requirements to the Appellant's site plan. It provides that the Code administrator makes those decisions, with the possibility of further review and an opinion or ruling by the city attorney.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of Law, the decision of the City of Clearwater Land Development Code Adjustment Board denying the application of the Appellant, Clearwater Bay Marine Ways, Inc., for a 62-space parking requirement variance for its property located at 900 North Osceola Avenue, Clearwater, Florida, is affirmed.

DONE AND ORDERED this 28th day of March, 1994, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1994.

COPIES FURNISHED:

David A. Bacon, Esquire Bacon, Bacon, Johnson,

Goddard & Moody

2959 First Avenue North Post Office Box 13576

St. Petersburg, Florida 33733-3576

Miles A. Lance, Esquire Assistant City Attorney City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

Cynthia Goudeau City Clerk

City of Clearwater Post Office Box 4748

Clearwater, Florida 34618-4748

Docket for Case No: 93-007070

Orders for Case No: 93-007070