STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANISLAW BUDZINSKI and ) KAZIMIERA BUDZINSKI, )

)

Petitioners, )

)

vs. ) Case No. 97-1109

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

A hearing was held in this case in Clearwater, Florida, on April 16, 1997, before Arnold H. Pollock, an Administrative Law Judge, with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Milton A. Galbraith, Jr., Esquire

Kutchins, Bishop and Schultz, P.A. 3973 Tampa Road

Post Office Box 1063 Oldsmar, Florida 34677

For Respondent: Leslie K. Dougall-Sides, Esquire

Assistant City Attorney Post Office Box 4748

Clearwater, Florida 34618-4748 STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Petitioners should be granted a permit to erect an awning over an existing deck at Britt's Cafe located at 201 South Gulfview Boulevard, in Clearwater Beach.

PRELIMINARY MATTERS

On February 11, 1997, Lior Hason, owner and operator

of Britt's Cafe, in Clearwater Beach, Florida, sent a letter to the City of Clearwater in which he asked for a variance regarding a set-back of 12.5 feet to allow an awning/canopy 2.5 feet from South Gulfview Boulevard on the right of way where a 15 foot set-back is required.

The request was reviewed by the staff of the City's Development Code Adjustment Board and recommended for approval. However, the Board voted to reject the application and the applicant appealed. This hearing followed.

At the hearing, Lior Hason, on behalf of the Budzinskis, the owners of the real estate, testified in support of the application. Petitioner also introduced Petitioner's Exhibits One through Five. Respondent presented the testimony of Stephen C. Sarnoff, a central permitting specialist for the City of Clearwater; John Richter, a senior planner with the city; and David S. Shuford, central permitting director and development code administrator with the city. Respondent also introduced Respondent's Exhibits A through D.

Counsel for the City requested official recognition of Sections 36.035, 36-038 and 41.221, and Chapter 45, Clearwater City Code. The request was granted.

A transcript of the proceedings was furnished.

Subsequent to the receipt thereof, counsel for both parties submitted Proposed Findings of Fact which were carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Lior Hason is the owner of Britt's Cafe, a restaurant which occupies property owned by the Petitioner's Stanislaw and Kasimiera Budzinski. On or about December 19, 1995, Harry S. Cline, an attorney for Mr. Hason and the Budzinskis, filed an application for a variance from the City of Clearwater's Development Code, for the purpose of eliminating three required parking spaces from the front of the subject property for the construction of an outdoor cafe at 201 South Gulfview Boulevard. The Code requires one parking space per 200 square feet of gross floor area, and a variance was required to remove three existing parking spaces from the unit's parking space inventory.

   
   

2. The matter was brought before the City's Development Code Adjustment Board at its January 11, 1996 meeting. Mr. Cline appeared at the meeting on behalf of the applicant and presented the project. No one else was present to speak in support of or in opposition to the

   request. However, four letters in opposition from neighboring business owners were submitted. Notwithstanding these objections, the Board determined that the applicant had substantially met all standards for approval listed in the City's Land Development Code; and upon vote of the Board, the application was approved, subject to certain conditions, by a three to two majority.

3. Mr. Hason entered into discussions with City officials to determine what was necessary. Official City reaction was initially favorable. Mr. Hason was advised of the requirements for the project and had plans drawn which called for a deck with a 35 to 36 inch railing with landscaping around it, and with posts and lights. When the plans were submitted to the City officials, the only change suggested was to raise the railing height to 45 inches, which was done, after which the City approved the plans and the permit was granted. The deck was then constructed exactly according to the approved plans.

   
   

4. At some time during 1996, Mr. Hason discussed with some City employees putting an awning over the deck.

   During these discussions, the City employees sent Mr. Hason a copy of Section 41.221(1)(c), Clearwater City Code, which provides for awnings to be removable. Mr. Hason considered the sending of this Code provision to be tantamount to a favorable reply to his inquiry, and, based on that, he finalized his plans for the installation of a removable awning.

   
   

5. The proposed awning is designed in such a fashion as to be extendible and retractable on a frame, capable of easily being pulled up against the front of the building like a drapery. With a minimum of further effort, consisting of the removal a several bolts, the entire awning construction can be removed from the frame.

   
   

6. Mr. Hason submitted his application for the variance to install the awning on February 2, 1997. In the interim, the City employees with whom Mr. Hason discussed the project changed their position from favoring the project to opposing it. He was ultimately advised in December 1996 or January 1997 that the awning could not be permitted because an awning could not be approved over a deck for which a permit should not have been issued and for which the issuance was a mistake. Though the Board had not yet voted on the application, no information was given to Mr. Hason as to what he could do to make the project approvable. His application, on February 2, 1997, was submitted because, Hason claims, he had been told, by someone not further identified, that applying for a variance for the awning would make everything right.

   
   

7. The Variance Staff Report submitted to the Board by the appropriate City employees acknowledged that the

   frame over which Mr. Hason proposed to put the awning does not meet code because it was constructed within a required setback area from South Gulfview Boulevard, but since the frame was built pursuant to a City-issued permit, consistent with City policy, the City accepted its existence. In its final recommendation to the Board, the staff concluded that notwithstanding the encroachment into the setback area, the project "appears to comply with all standards for approval, provided attention is given to the external appearance of the cafe:" The staff then went on to recommend approval of the project subject to certain conditions, all of which, Mr. Hason accepts and agrees to. Nonetheless, the Board denied the permit by a vote of four to one.

   
   

8. Mr. Hason contends that the Board vote was an attempt by the Board to get back at him because of what it perceived as his failure to comply with the conditions placed upon the issuance of the first permit and his alleged misrepresentation of the scope of his project at the time. Mr. Hason, however, categorically denies he has done anything contrary to the dictates of the City. He went back to City officials many times during the construction of the deck to make sure the project was built as required. The majority of the Board members believe, however, that the deck as constructed, goes far beyond the limited structure approved by the granting of the parking space variance in January 1996.

   
   

9. This animosity toward the project can be seen from a review of the audio record of the February 13, 1997, Board meeting where, during a colloquy between a Board member and Mr. Hason, it appeared the member was somewhat put out by the entire situation. His analysis indicates a less than complete recollection of the matter, however. Whereas one of the conditions to the issuance of the initial permit was that the area of the outdoor cafe should not be greater than 25 percent of the indoor area of the restaurant, this member pointed out that the 69 outdoor seats were far in excess of 25 percent of the 115 or so indoor seats. This constituted a confusion of seating as opposed to area. No evidence was presented concerning whether Mr. Hason had violated the area constraint. In the main, however, while it appeared that a majority of the Board members were unhappy about the way the project developed, and expressed the opinion that the project did not conform to what they had intended to approve, there was no indication any member

   s vote was motivated by anything other than a sincere belief in the correctness of his position. There was no indication of any inappropriate or vindictive action by anyone on the Board or its staff.

   
   

10. Stephen Sarnoff, a central permitting specialist with the City reviewed the plans for the initial construction and for the current application. As he recalls, the plans for the initial deck construction did not show any support beams, fans, overhead structure or latticework fencing, and the deck, as built, does not conform to the plans as submitted. City Code requirements call for a railing of from 30 to 42 inches high. The current railing of 45 inches does not conform to that standard, and Mr. Sarnoff is not aware of any request from the City that the railing be raised to that height, as Mr. Hason claims. By the same token, while there is no requirement in the ordinance that a deck be of a certain height, anything higher than 12 inches is considered a structure and a waiver is required. This deck was approved for 12 inches.

    
    

11. A certificate of occupancy is usually issued for a deck, but in the instant case, such a certificate has not been issued because the deck, as built, is not in compliance with the 1996 approval. If it is brought into compliance, it will be approved.

    
    

12. Sarnoff is aware of and familiar with other outdoor restaurant decks built at various locations in the Clearwater area, as indicated by Mr. Hason. Some are not within the CR-28 zone and do not come under the same standards as are applicable here. Others, which must conform to the instant requirements appear to have movable awnings which are acceptable. Still others are in a different zoning district with different set-back requirements, and some were initially denied, but were subsequently approved when they were brought into compliance with the requirements.

    
    

13. John Richter, a senior planner for the City, was the individual who prepared the staff report on the instant project and initially recommended approval, contingent upon changes to the external appearance of the facility. He made suggestions and has discussed the project with Hason on his several visits to the property. He did discuss an awning with Hason at some point, but their discussions did

    not deal with its mobility. All in all, Mr. Richter concluded that the project appears to meet the standard for approval, provided attention is given to the external appearance of the cafe.

    
    

14. David S. Shuford, the City's central permitting director and development code administrator indicated that the variance required for the awning, which was an integral part of the structure already built, was not automatically granted with the granting of the permit for the deck structure. Section 42.221, Clearwater City Code, was adopted to promote a more festival atmosphere in some of the outdoor tourist areas. The intent of subsection (l)(c) of that provision was to require the use of moveable items and to design structures that would meet wind requirements and not interfere with pedestrian traffic.

    
    

15. The term "moveable" means what it says, and in Shuford's opinion, from the plans he saw, the proposed awning would not be easily moveable on a daily basis. The Clearwater City Code establishes the area in question as one where, once guidelines are developed, they will be adopted and be complied with. Mr. Shuford opines that the current deck, in the rafter area, goes beyond what was proposed at the time the project was submitted for the parking variance and was approved. This is what appears to be the source of the difficulty the Board members have with it. However, if designed to comply with the guidelines, this awning could be approved. He would agree with the conditions outlined in the staff recommendation so far as they relate to painting and architectural matters.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes and Section 36.065, Clearwater Code of Ordinances (CCO).

    
    

17. Under the provisions of Section 45.24, CCO, an application for a variance, and the evidence presented in support thereof, must "clearly support" that the standards called for in the section have been met. The burden rests with the applicant for the variance to prove that the standards have been met.

    
    

18. When a party appeals from a decision of the

    City's Development Code Adjustment Board, the appellant must show that the decision of the Board cannot be sustained by the evidence before the Board and before the Administrative Law Judge, or that the decision of the Board departs from the essential requirements of law. See Section 36.065(6)(c), CCO.

    
    

19. In the instant case, the issue for consideration is whether the Board should approve a 12.5 foot variance from a 15- foot setback requirement for the placement of a moveable awning over the outdoor deck previously approved, albeit perhaps in error. Section 41.221(c), CCO, specifies that an outdoor cafe shall consist of moveable tables, chairs, awnings, umbrellas, canopies or seating, and the City staff interprets the term "moveable" as being readily able to be taken in on a daily basis. While the instant awning is moveable, it cannot be readily taken in each day without the removal of bolts securing it. It is, however, as designed, capable easily of being pulled up like a shade.

    
    

20. Though Mr. Hason attributes his denial to a vindictive attitude by members of the Board, and while the transcript of the Board meeting indicates some obvious pique on the part of one or more members, there is no indication that the Board's decision was made out of spite or any other motive save an honest desire to rectify what it considered to be a prior mistake. However honest that desire is, however, it appears to be predicated upon an erroneous

    assumption that Ms. Hason is trying to deal "fast and loose" with the City and take advantage. This has not been shown.

    
    

21. The evidence clearly indicated that the deck was approved by the City and though there is some question that the structure, as completed, might deviate somewhat from the structure that was approved, in reality the deviations that exist are not material. At most, the deck railing may be several inches higher that called for, and there is a frame for an awning which does not appear on the plans approved for the original deck. There is apparently no intention to require Mr. Hason to remove the deck or either offending characteristic.

    
    

22. Little if any additional "harm" will occur if a truly moveable awning is permitted. No additional encroachment on the setback will occur as the existing deck, which will remain, already encroaches under a permit granted previously. The staff has already taken the position that the decor and color scheme of the proposed awning is compatible with the decor of the area and is acceptable. Under the circumstances, provided certain conditions are applied, it appears to be an appropriate action to approve the variance. These conditions have been identified by the City and are approved.

Based on the foregoing Findings of Fact and Conclusions of Law, it is:

ORDERED that:

The decision of the Development Code Adjustment Board denying the request for Variance for installation of a moveable awning over the outdoor patio deck constructed by Britt's Cafe at 201 South Gulfview Boulevard on Clearwater Beach is hereby REVERSED, and the variance granted subject to the following conditions:

1. The variance is based on the application for a variance and documents submitted by the applicant, including maps, plans, surveys, and other documents submitted in support of the applicant's request for a variance. Deviation from any of the above documents submitted in support of the request for a variance regarding the work to be done with regard to the site or any physical structure to be located on the site will

   result in this variance being null and of no effect.

   
   

2. The requisite building permit(s) shall be obtained within one year.

   
   

3. The external appearance of the cafe shall be better integrated into its environment by methods agreed upon jointly by Petitioner and Respondent's City manager or designee, including but not limited to application of a white stain to the wood structure and/or utilization of an awning colored to math the second story motel room doors.

   
   

4. In the event that the City Commission adopts, by resolution, design guidelines for Clearwater Beach prior to Petitioners' obtaining any requisite building permit(s) for the awning, Petitioners shall be required to apply for and obtain approval from the Design Review Board or any successor Board serving the same function, prior to obtaining said building permit(s).

DONE AND ENTERED this 9th day of June, 1997, in Tallahassee, Florida.

_

ARNOLD H. POLLOCK

Administrative Law Judge Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6947

Filed with the Clerk of the Division of Administrative Hearings

this 9th day of June, 1997.

COPIES FURNISHED:

Milton A. Galbraith, Jr., Esquire Kutchins, Bishop & Schultz

Post Office Box 1063 Oldsmar, Florida 34677

Leslie K. Dougall-Sides, Esquire City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

Cynthia E. Godeau 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 entitled to judicial review pursuant to Section 120.69, 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: 97-001109

Orders for Case No: 97-001109