STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY SCHUH, BRIAN SCHUH, CLARK ) HUBBARD, PAT A. WILSON, JONAS O. ) BRUMETT, DR. GILBERT JANELLI, and ) SAVE OUR NEIGHBORHOOD, an )

unincorporated association, )

)

Appellants, )

)

vs. ) CASE NO. 96-5590

) SOCIETY OF ST. VINCENT DEPAUL OF ) UPPER PINELLAS COUNTY, INC., and ) CITY OF CLEARWATER, )

)

Appellees. )

)

FINAL ORDER

On January 29, 1997, a final hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Appellants: Timothy A. Johnson, Jr., Esquire

Johnson, Blakely, Pope, Bokor Ruppel & Burns, P.A.

911 Chestnut Street

Clearwater, Florida 34617-1368

For the City: Leslie K. Dougall-Sides

Assistant City Attorney City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

For Applicant: R. Carlton Ward, Esquire

Richards, Gilkey, Fite, Slaughter, Pratesi & Ward, P.A.

Richards Building 1253 Park Street

Clearwater, Florida 34616

STATEMENT OF THE ISSUE

The issue in this case is whether the appeal from the decision of the Planning and Zoning Board granting the conditional use permit application of the Society of St. Vincent dePaul of Upper Pinellas County, Inc., in the Board’s Case No. CU 96-46 should be granted.

PRELIMINARY STATEMENT

On or about August 20, 1996, the Society of St. Vincent dePaul of Upper Pinellas County, Inc., (the Society) filed an application for conditional use approval for a proposed residential shelter for homeless persons as well as for a police substation facility at its property located at 1339, 1341 and 1345 Park Street in the City of Clearwater. The application was considered by the City’s Planning and Zoning Board (the Board) at meetings on October 15 and November 5, 1996. The Board approved the application, subject to certain conditions.

On November 18, 1996, Mary Schuh, Brian Schuh, Clark Hubbard, Pat A. Wilson, Jonas O. Brumett, Dr. Gilbert Janelli, and Save Our Neighborhood, an unincorporated association, filed a Notice of Appeal from the Board’s decision. 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 November 26, 1996, along with a copy of the record of the proceedings below. After the filing of responses to the Initial Order in the case, a Notice of Hearing was issued on December 23, 1996, scheduling final hearing for January 29, 1997, in Clearwater.

At final hearing, the tapes, minutes and exhibits from the Planning and Zoning Board proceeding were received into evidence.1 the Appellants called five witnesses and had Appellants’ Exhibits 1 through 8 admitted into evidence in their case-in-chief. Government Exhibit 1 was admitted into evidence during the Appellants’ presentation. The Applicant called three witnesses and had Applicant’s Exhibit 1 admitted into evidence. The City called one witness and had Government Exhibits 1 through

20 admitted in evidence. Appellants’ Exhibit 9 was admitted into evidence during the City’s presentation. The Appellants recalled two witnesses in rebuttal.

After the presentation of the evidence, the parties were given 15 days in which to file proposed final orders. Timely proposed final orders were filed by the Appellants and by the City.

FINDINGS OF FACT

1. The Society owns property in Clearwater zoned CG (General Commercial) and RM 12 (Residential Multi Family). The part of the property zoned CG fronts on the south side of Park Street and its adjacent western terminus; the part of the

   property zoned RM 12 fronts on Pierce Street and is adjacent to and south of the CG property.

   The Application

   
   

2. Since approximately 1991, the Society has operated a soup kitchen on the part of the property zoned CG fronting on Park Street. The soup kitchen is a permitted use at this location. The continued operation of the soup kitchen is not at issue in this proceeding.

3. The Society wishes to build and operate a 48-bed homeless shelter on the remainder of the property zoned CG located adjacent to the soup kitchen at the western terminus of Park Street, in conjunction with a new police substation facility. (There is an existing residence on some of the RM 12 property fronting on Pierce Street adjacent to and south of the existing soup kitchen; the remainder of the property facing Pierce Street will be used for new parking.) Both the residential shelter and the police substation facility are permittable conditional uses in CG and RM zones requiring an application for conditional use approval.

4. As proposed, the police substation facility would base a force of six specially trained volunteers to use community policing and bicycle patrol methods to supplement current police strength in the area. Initially, the operation will be financed by a federal Department of Justice COPS grant; the City has committed to continue funding for future years.

5. As proposed, the residential homeless shelter would serve primarily single males and females, but there will be a separate 4-to-6 bed component for use by families as needed. The average length of stay at the shelter is projected to be eight days. Restrooms will be available during day and evening hours for use of residents.

6. The shelter will operate under the terms of a Clearwater Homeless Intervention Project (CHIP) community block grant. Funding under the grant is contingent on the establishment of the proposed police substation. Under the grant, users of the soup kitchen would be required to register. Registrants will undergo a police background check and will be “trespassed” from the facility and not allowed to use either the soup kitchen or the shelter if a criminal record is discovered. If eligible, registrants will be required to enter the CHIP program. (Not all users of the soup kitchen are homeless, and entry into the CHIP program will not be required if local residence can be proven.)

7. Upon entry into the CHIP program, shelter residents would be required to participate in CHIP intervention programs. These would include mental health and drug and alcohol abuse counseling and treatment (where appropriate), job skill training and assistance in obtaining employment, and assistance in obtaining housing. The goal of the CHIP program is to transition participants back into productive jobs and permanent housing.

8. Participants in CHIP would have to follow the

   requirements of its programs, as well as follow “good citizenship” house rules of the homeless shelter (which includes the requirement to remain sober), in order to continue to receive the services of the homeless shelter and soup kitchen. The unacceptable behaviors of some current users of the soup

   kitchen-including public urination and defecation, public drinking, panhandling and solicitation for prostitution--would not be tolerated. If a program participant violates CHIP’s rules, “he/she will be restricted from returning to the shelter for some period of time depending on the number of times and severity of offenses.”

   Board Action

   
   

9. The Planning and Zoning Board considered the Society’s conditional use approval application at length at its meeting on October 15, 1996, but continued the matter to give its staff time to answer questions raised at the meeting. Staff provided additional information, and the application was considered again at length at the Board’s meeting on November 5, 1996. By a vote of 4-3, the Board approved the application subject to the following conditions, which were designed in large part to address concerns of the Appellants:

1. The applicant shall obtain the requisite building permit, certificate of occupancy and occupational license within nine months from the date of this public hearing;

2. All site lighting shall be equipped with a 90 degree mechanism, with the light being directed downward and away from adjoining residential properties and street rights-of-way, and additional lighting will

   be installed to better illuminate the perimeter of the site adjacent to non-residential areas prior to issuance of the requisite occupational license;

3. A sidewalk interconnection to Cleveland Street shall be constructed to reduce pedestrian traffic in surrounding residential areas;

4. The residential shelter is only allowed while the police substation and other referral services are provided at this location;

5. Approval shall be for a trial period of three years from the date of this public hearing, after which a new conditional use permit review will be required for the residential shelter use;

6. Efforts shall be made on behalf of the CHIP organization to contact specified neighborhood representatives to coordinate and communicate issues and information on a regular basis; and

7. Fencing to the maximum height allowed by City code shall be installed on all sides of the property to control site access prior to the issuance of a Certificate of Occupancy.

The Appellants raise no issue as to the approval of the proposed police substation facility as a conditional use; they only oppose the decision to approve the proposed homeless shelter as a conditional use.

Compatibility with Surrounding Area

1. The area in which the subject property is located could not be characterized as a residential neighborhood. (A residential shelter would not be a permittable conditional use in a single-family zoning district.) Rather, it is in an area of mixed land use. Existing land uses within 1000 feet of the site include office, school, utility facilities, park, indoor retail, motel, restaurant, bar/tavern, personal services, and vehicular service, in addition to single-family residential and multi- family residential.

2. Perhaps most significant for purposes of the decision in this case, the proposed property is located next to the Society’s soup kitchen, which is a permitted use that has been existence at the site since approximately 1991. There clearly was evidence to sustain the Board’s decision that a homeless shelter next to an existing soup kitchen is a compatible use. It may well be that the homeless shelter would not be compatible with the surrounding area if it were not for the pre-existing soup kitchen, but those are not the facts.

3. The Appellants question the compatibility of a homeless shelter next to a bar and near convenience stores where beer and wine can be purchased, since almost 60% of homeless individuals in upper Pinellas County in 1995 were abusers of alcohol. But there was no evidence that there are any possible locations for a homeless shelter in the City of Clearwater where beer and wine cannot be purchased relatively conveniently. (There probably are residential areas where it would be relatively inconvenient to buy beer and wine, but a homeless shelter would not be permittable there.) Besides, the presence of the soup kitchen next door is enough to sustain the Board’s decision that the homeless shelter is a compatible use, even with the nearby bar and convenience stores where beer and wine can be purchased.

   Adverse Impacts from Soup Kitchen

   
   

4. All of the adverse impacts on nearby property complained of by the Appellants are impacts from the operation of

   the soup kitchen. The homeless who trespass by walking through private property near the subject property from Cleveland Street, and from other directions, to the soup kitchen are, obviously, users of the soup kitchen. Other adverse impacts from users of the soup kitchen include: damage to and burglary of and sleeping in and on private property near the subject property; monopolizing the nearby Cleveland Street bus stop; loitering and littering and drinking in public on both private and public property in the area; urinating and defecating and panhandling and soliciting for prostitution on both private and public property in the area.

5. These adverse impacts from the operation of the soup kitchen, in addition to the mere presence in public of those homeless users of the soup kitchen who look and smell bad, are what has caused properties closest to the soup kitchen to decline in value. The evidence was that, on the average over a larger radius of 1000 feet from the soup kitchen, there is no trend of decreasing property values as a result of the presence of the soup kitchen at this time; but, in fairness, that is not to say that, even over this larger area, the presence of the soup kitchen, and those who use it, would not adversely impact the potential to increase property values, for example from efforts at redevelopment and revitalization in the area.

   Positive Impact of Homeless Shelter

   
   

6. Given the pre-existence of the Society’s soup kitchen,

   there was sufficient evidence to sustain the Board’s decision that the proposal to build and operate a homeless shelter next door, especially with the conditions imposed by the Board, would have a positive impact on the neighborhood.

7. There was sufficient evidence to sustain the Board’s decision that, with the homeless shelter, 48 of the homeless now living in the streets and causing negative impacts on the neighborhood will be off the streets and, as long as they follow the rules of the shelter, will not be contributing to those impacts. Cf. Finding 13, supra.

8. As conditions on its approval of the application, the Board has required: (1) that a sidewalk interconnection to Cleveland Street be constructed to reduce pedestrian traffic in surrounding residential areas; (2) that additional lighting be installed to better illuminate the perimeter of the site adjacent to non-residential areas prior to issuance of the requisite occupational license; and (3) that fencing to the maximum height allowed by City code be installed on all sides of the property to control site access prior to the issuance of a Certificate of Occupancy. These measures also should help ameliorate the negative impacts of both the residents of the homeless shelter and other users of the soup kitchen.2

9. There also was evidence that there has been a substantial decrease in crime in the vicinity of new homeless shelters in Orlando and Jacksonville, Florida. The Board was

   entitled to infer from this evidence that a similar decrease in crime would occur in the vicinity of the Society’s proposed homeless shelter. (Also supporting such an inference was evidence that virtually no complaints have arisen out of the operation of the 15-bed emergency shelter which the Salvation Army has operated at 900 Pierce Street for the preceding 18 months and at another location for the 18 months before that, or out of the operation of any homeless shelter operated by Barbara Green of Everybody’s Tabernacle Homeless Emergency Project over the last 30 years.3

10. In the face of this evidence, the Appellants could only respond by raising the specter of an influx of homeless from all over Pinellas County (and even the country) attracted by the combination of the soup kitchen and the homeless shelter, in numbers that will exceed the homeless shelter’s capacity. There was no evidence on which to base such a projection, and the Board was entitled to treat this concern as being speculative.

11. There was evidence that, unlike some other communities, Pinellas County uses a decentralized method of shelter location at spots throughout the County and that this policy has succeeded in avoiding overburdening any one area. The Board was entitled to infer from this evidence that the addition of the Society’s proposed homeless shelter would cause all of the homeless in Pinellas County to abandon the many other shelters in the County

    to live on the streets in the vicinity of the Society’s proposed shelter while admission.

12. The Board also was entitled to infer that, logically, if the homeless shelter attracts any additional homeless, it will attract those hopeful of acceptance into the CHIP program and that these individuals would be willing to abide by the strict rules of behavior required of homeless person wanting to be accepted.

    Positive Impact of the Police Substation

    
    

13. In addition to the evidence on the positive impact of the proposed homeless shelter itself, there clearly was evidence to sustain the Board’s decision that the combined proposal of a homeless shelter and a police substation facility will would have a positive impact on the neighborhood. As proposed, the police substation would base a force of six specially trained volunteers to use community policing and bicycle patrol methods to supplement current police strength in the area. The Board clearly was entitled to infer from this evidence that crime and other negative impacts to the neighborhood likely will be reduced from current levels.

    Three-Year Trial Period

    
    

14. As an additional protection for the neighboring property owners, the Board attached a three-year trial period as a condition to its approval, after which a new conditional use permit review will be required for the residential shelter use.

    The Commission’s Decision

    
    

15. The Appellants argue that policy allegedly set by the City Commission requires the reversal of the Board’s decision. They argue that this policy is reflected in a Commission decision to deny an application to amendment the City’s comprehensive plan to change the future land use designation of the property adjacent and immediately to the west of the subject property from commercial to public facility to allow for use as a church and school. The evidence actually reflects the City Commission’s concern that the existence of a church and school on the site would make it more difficult for commercial properties within 200 feet to obtain condition use approval for the sale of alcoholic beverages for lounges and restaurants. The City’s decision not to amend its comprehensive plan did not establish policy to control the conditional use approval at issue in this case.

    CONCLUSIONS OF LAW

    
    

    
    

16. Under Section 36.065(6) of the City of Clearwater Land Development Code (the Code):

    1. The hearing officer4 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.

    In this case, the Appellants argue that “the decision of the board cannot be sustained by the evidence before the board and before the hearing officer.”5

17. Section 41.033 of the Code provides, in pertinent part:

    
    

    A conditional use shall be approved by the board only upon determination that the application and evidence presented clearly indicate that:

    
    

    1. The use complies with the land use plan.

    2. The use complies with all other applicable provisions of this development code.

    3. The use complies with the applicable conditional use standards for the proposed use contained in division 3 of this article.

    4. The use shall be consistent with the community welfare and not detract from the public’s convenience at the specific location.

    5. The use shall not unduly decrease the value of neighboring property.

    6. 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.

    
    

    The Appellants argue in this case that the evidence before the board and before the hearing officer cannot sustain the board’s decision that the application for conditional use approval in this case met the requirements of Section 41.033(2), (3), (4),

    1. and (6) of the Code.

       
       

18. As for Section 41.033(2) and (3) of the Code, other

    provisions of the Code applicable in this case include Section 41.052, which provides in pertinent part:

    The standards in this section shall apply to all uses which are identified in this development code as conditional uses.

    Only those uses which comply with all of the standards contained in this section may be approved.

    * * *

    1. The use shall be consistent with the community character of the properties surrounding the use. The criteria in this subsection shall be utilized to determine whether the use satisfies this standard:

       
       

       1. Whether the use is compatible with the surrounding natural environment;

       2. Whether the use will have a substantial detrimental effect on the property values of the properties surrounding the conditional use;

       3. Whether the use will be compatible with the surrounding uses as measured by building setbacks, open space, hours of operation, building and site appearance, architectural design and other factors which may be determined appropriate to assess the compatibility of uses;

       4. Whether the traffic generated by the use is of a type or volume similar to traffic generated by the surrounding uses.

19. The key to properly deciding this appeal is the recognition that much of what the Appellants object to already exists as a result of the Society’s existing soup kitchen, and denying this application for a homeless shelter and police substation will not change those conditions. Meanwhile, as found, there was sufficient evidence both before the Board and before the hearing officer to sustain the Board’s decision that granting the application will help alleviate the Appellants’ complaints, not exacerbate them, especially in view of the conditions placed on the conditional use approval granted by the

Board. The requirement of a three-year trial period, after which a new conditional use permit review will be required for the residential shelter use, is an additional protection for the neighboring property owners.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of Law, the appeal is denied, and the Board’s decision is upheld.

DONE AND ORDERED this 26th day of February, 1997, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301-3060

(904) 488-9675 SUNCOM 2278-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1997.

ENDNOTES

1/ The materials referred to the Division of Administrative Hearings (DOAH) on November 26, 1996, were supplemented with certified copies of Board minutes.

2/ The Appellants make much of the Society’s need for a small easement from a neighboring property owner in order to comply with the sidewalk condition. But the possibility that the Society will not be able to comply with the condition is not a ground to overturn the Board’s decision. Rather, it would be a compliance issue that is more appropriately resolved in another forum.

3/ In fairness to the Appellants’ position, it should be pointed out that none these homeless shelters had a soup kitchen attached.

4/ The Division of Administrative Hearings (DOAH) has entered into a contract to serve as “hearing officer” under the City’s Code. As a result of Chapter 96-159, Laws of Florida (1996), former DOAH hearing officers are now called administrative law judges. The City’s Code has not yet been revised to reflect the title change.

5/ Under this curious hybrid procedure, a board decision apparently can be sustained even if not sustainable by the evidence before the board if sustainable by a combination of the evidence before the board and the evidence before the hearing officer (and never before seen by the board). The opposite corollary to this curious procedure is that the board’s decision can be reversed as not sustainable by the evidence based upon evidence presented for the first time before the hearing officer.

COPIES FURNISHED:

Timothy A. Johnson, Jr., Esquire Johnson, Blakely, Pope, Bokor

Ruppel & Burns, P.A.

911 Chestnut Street

Clearwater, Florida 34617-1368

Leslie K. Dougall-Sides Assistant City Attorney City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

R. Carlton Ward, Esquire

Richards, Gilkey, Fite, Slaughter, Pratesi & Ward, P.A.

Richards Building 1253 Park Street

Clearwater, Florida 34616

Cynthia Goudeau City Clerk

City of Clearwater Post Office Box 4748

Clearwater, Florida 34618-4748

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitle to judicial review by common law certiorari review in circuit court. See Section 36.065(6)(g), City of Clearwater Land Development Code.

1 The materials referred to the Division of Administrative Hearings (DOAH) on November 26, 1996, were supplemented with certified copies of Board minutes.

2 The Appellants make much of the Society’s need for a small easement from a neighboring property owner in

order to comply with the sidewalk condition. But the possibility that the Society will not be able to comply with the condition is not a ground to overturn the Board’s decision. Rather, it would be a compliance issue that is more appropriately resolved in another forum.

3 In fairness to the Appellants’ position, it should be pointed out that none these homeless shelters had a soup

kitchen attached.

4 The Division of Administrative Hearings (DOAH) has entered into a contract to serve as “hearing officer” under the City’s Code. As a result of Chapter 96-159, Laws of Florida (1996), former DOAH hearing officers are now called administrative law judges. The City’s Code has not yet been revised to reflect the title change.

5 Under this curious hybrid procedure, a board decision apparently can be sustained even if not sustainable by the

evidence before the board if sustainable by a combination of the evidence before the board and the evidence before the hearing officer (and never before seen by the board). The opposite corollary to this curious procedure is that the board’s decision can be reversed as not sustainable by the evidence based upon evidence presented for the first time before the hearing officer

Docket for Case No: 96-005590

Orders for Case No: 96-005590