STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AQUA WAVE RENTAL, INC., )

)

Appellant, )

)

vs. ) Case No. 98-2685

) CLEARWATER PARASAIL, INC., ) and CITY OF CLEARWATER, )

)

Respondents. )

)

FINAL ORDER

On August 5, 1998, a final hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Appellant: Allen S. Zimmet, Esquire

Joseph A. Corsmeier, Esquire

Tew, Zinober, Barnes, Zimmet and Unice 2655 McCormick Drive

Clearwater, Florida 33759

For Respondent

Clearwater Parasail: Clay C. Schuett, Esquire

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

911 Chestnut Street Post Office Box 1368

Clearwater, Florida 33757

For Respondent

City of Clearwater: Leslie K. Dougall-Sides

Assistant City Attorney City Attorney’s Office City of Clearwater

Post Office Box 4748 Clearwater, Florida 33758

STATEMENT OF THE ISSUE

The issue in this appeal is whether the decision of the City Planning and Zoning Board granting Clearwater Parasail, Inc., a conditional use permit to rent four personal water craft at its business at Clearwater Pass is sustained by the evidence.

PRELIMINARY STATEMENT

Clearwater Parasail, Inc., filed an application on April 14, 1998, for a conditional use permit to rent four personal water craft and one flats fishing boat at its business at Clearwater Pass. The application was placed on the agenda of the City Planning and Zoning Board meeting on May 19, 1998.

At the meeting, the Board considered a written request for a continuance filed by the City's Harbormaster because neither he nor his staff could be at the meeting as scheduled. The Board staff recommended granting the request for a continuance. The applicant opposed the continuance, and the Board denied the request for a continuance. After the hearing before the Board, the Board approved the conditional use application.

On June 1, 1998, the Appellant, Aqua Wave Rental, Inc., filed a Notice of Appeal. 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 June 11, 1998, 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 June 19, scheduling final hearing on August 5, 1998.

At final hearing, the record of the proceedings below was received into evidence, including the tapes, minutes, and exhibits from the Board hearing. The Appellant called four witnesses, including the City Harbormaster, and had Appellant's Exhibits 1, 3, 4, and 8 admitted into evidence. The City called no witnesses but had Government Exhibits 1 through 3 admitted in evidence. The Applicant called two witnesses and was supposed to have submitted a videotape of the Board proceeding post-hearing, but no videotape has been submitted.

Additionally, the Administrative Law Judge took administrative notice/official recognition of a number of sections of the City’s Land Development Code (the Code).

Two members of the public spoke in opposition to the application; one proffered photographs as evidence. However, Code Section 36.065(5) does not appear to contemplate presentations by members of the public during this appeal.

After the presentation of the evidence, the City ordered the preparation of a transcript of the final hearing, and the parties were given 15 days to file proposed final orders. All parties timely filed proposed final orders, but the transcript of the final hearing has not been filed.

FINDINGS OF FACT

1. The Appellant, Aqua Wave Rental, Inc., is a lessee operating a personal water craft rental business on the Holiday Inn Sunspree property in the City of Clearwater, Clearwater

   Beach, just west of and immediately adjacent to the new Clearwater Pass Bridge.

2. Personal water craft, also known as jet skis and wave runners, are designed for use by a single operator or by an operator and one passenger; they are propelled by water jets. Although small, personal water craft are capable of achieving high speeds. Currently, they can go 50 to 60 miles per hour; new models are coming out that will be able to go 95 miles per hour. Operators of these craft prefer to operate at high speeds, and many operators jump the wakes of other boats or engage in other unsafe maneuvers.

3. Eighty percent of the 156 citations and 74 warnings to operators of water craft in Pinellas County between April 1 and December 31, 1997, were given to operators of personal water craft. Although making up only 9.3% of all water craft registered in the State of Florida in 1997, personal water craft were involved in 36.1% of all reported water craft accidents. Of 754 injuries from water craft accidents reported in 1997, 367 involved personal water craft.

4. The Applicant/Respondent, Clearwater Parasail, Inc., is a leaseholder on the real property located at 619 Gulfview Boulevard in the City of Clearwater, Clearwater Beach. The owner of the property is William M. Shephard, Trustee for Shephard Family Trust. The property is zoned CR28 and is improved with a motel called Shephard's Resort and associated uses. It is approximately 300 yards west of the Appellant's business.

5. Clearwater Pass separates Clearwater Beach from Sand Key and connects the Intracoastal Waterway with the Gulf of Mexico. Besides Shephard's and the Holiday Inn Sunspree, there also is an Econo Lodge and two condominium complexes between Clearwater Parasail and Aqua Wave Rental along the south shore of the Pass. Generally, the area has mixed land use comprised of hotel/motel, recreational uses such as boat rental businesses, bars/nightclubs, and multifamily residential condominiums.

6. On April 14, 1998, Clearwater Parasail filed an application for a conditional use permit to rent four personal water craft and one flats fishing boat at its business at Clearwater Pass. When Robert Pothoff, the owner/operator of Aqua Wave Rental, Inc., became aware of the application, he approached the City's Harbormaster, William Held, because it had been Pothoff's understanding from prior dealings with Held that no additional personal water craft rental operations would be allowed in Clearwater Pass due to boat congestion and safety considerations.

7. On his own volition, the Harbormaster convened a meeting of the City of Clearwater Marine Advisory Board (the MAB) to consider the application. Although the Harbormaster's job description does not include advising planning staff or boards regarding land use issues, Held prepared a memorandum outlining the reasons he, as Harbormaster, was recommending denial. A copy of the minutes of the MAB meeting at which it voted to recommend denial was attached to the Harbormaster's memorandum.

8. The Clearwater Parasail application was placed on the agenda of the Planning and Zoning Board's meeting scheduled for May 19, 1998. When the Harbormaster learned of the hearing date, he requested a continuance because neither he nor any of his staff could be available for the hearing. The Staff Report to the Board recommended a continuance in order that further information could be developed.

9. Before the May 19, 1998, hearing, Pothoff asked the Harbormaster as to the status of the application. The Harbormaster informed Pothoff that he was requesting a continuance. Thinking that there would be a continuance, Pothoff decided not to attend the hearing on May 19, 1998.

10. At the hearing on May 19, 1998, the Applicant opposed the requested continuance, and it was denied by the Board.

11. During the Board hearing, the Applicant's attorney argued that safety considerations were not relevant to the Board's consideration of the application. The Assistant City Attorney advising the Board stated that, while safety was not a specific criterion for approval of a conditional use, it could be a relevant consideration under general criteria concerning the general welfare of the community.

12. One Board member testified at the final hearing and confirmed that he considered boating congestion and safety issues. While the mental thought processes of each Board member cannot be ascertained from the record, the Harbormaster's memorandum, with MAB minutes attached, was in evidence before the

    Board, and it seems apparent that the Board considered boating congestion and safety issues.

13. By a unanimous vote of 7-0, the Board approved the conditional use application, subject to the following conditions:

    1. Hours of jet ski operation are limited to 9:00 a.m. to dusk, seven days per week; the flats boat may be out after dusk and before 9:00 a.m.:

    2. Jet skiers will be required to honor the No Wake Zone and will idle through the No Wake Zone to access either the beach or the Gulf of Mexico;

    3. There will be one boat or one jet ski available to act as a chase boat, respond to emergencies, or offer assistance to troubled jet skiers;

    4. With regard to experience requirements, the business operator will comply with all current state laws that regulate this industry;

    5. Buoys shall be placed to identify the jet ski starting area and designate the route jet skis may travel between open water and the beach; and

    6. The operation is limited to four (4) jet skis and one (1) flats boat.

14. The appeal from the Board's decision does not contest the approval of the flats fishing boat, but only appeals the approval as relates to the four personal water craft.

15. Aside from the issue of boating congestion and safety in Clearwater Pass, the evidence clearly sustains the Board's decision that personal water craft rental is a compatible use in the surrounding area and that the proposed conditional use will not impose an excessive burden or have a substantial negative impact on surrounding or adjacent uses or on community facilities or services.

16. A marked channel traverses Clearwater Pass, which has a strong current when the tide is flowing. Several years ago, the channel was moved towards the middle of the Pass, away from the south shore of the Pass, to relieve congestion along the south shore. There also is a "no-wake zone" in the channel. At Clearwater Parasail’s request, the Harbormaster expanded the "no wake zone" 350 yards to the west so that the "no-wake zone" now extends past Clearwater Parasail’s business.

17. Boating congestion and safety concerns in the Pass are greatest on weekends in the area of Shephard's Resort. The complex includes Shephard's Backyard Tiki Bar and Nightclub, which extends up to the shore. Many Shephard's patrons and other boaters anchor in the Pass off the shore in front of Shephard's and wade in. The consumption of alcoholic beverages figures prominently in the activities that take place in and around Shephard's. Meanwhile, residents and patrons of other establishments along the Pass in the vicinity also use the Pass for boating, wading and swimming.

18. The Applicant's business location is to the west of Shephard's Backyard Tiki Bar and Nightclub on the other side of a rock jetty. Under its plan of operation, the Applicant will use a chase boat to guide its renters into the Clearwater Pass through water marked with buoys for that purpose; once in the Pass, renters will be guided to the west into the Gulf. The chase boat will remain in the water to offer assistance and guidance as necessary. As planned, the Applicant's operation

    will not add significantly to the congestion directly in front of Shephard's.

19. The City's Harbormaster believes that personal water craft are dangerous by nature and that Clearwater Pass is too congested with water crafts of all types on weekends (especially in front of Shephard's). As a result, from a boating safety standpoint, he would prefer no personal water craft rental businesses in or near Clearwater Pass at all, regardless of safety precautions, and he recommended denial of any conditional use permit for additional personal water craft rental businesses in the Pass.

20. The Harbormaster did not direct his comments specifically to the Clearwater Parasail proposal. He did, however, state that Clearwater Parasail has not been a safety problem, and he had no reason to believe that the Applicant would not operate his personal water craft business in the same safe manner that he operates his parasail business.

21. Pinellas County Deputy Sheriff David Littlejohn, who patrols the Clearwater Pass area for the County, testified to the nature of boating activity on Clearwater Pass and about the congestion of water craft in front of Shephard's on weekends. However, Deputy Littlejohn stated that he could not say whether the Applicant's four personal water craft would have an adverse impact on Clearwater Pass during the weekend. He conceded that most of the congestion was directly in front of Shephard's, not

    to the west on the other side of the rock jetty, where the Applicant will operate its personal water craft rental business.

22. Florida Marine Patrol Officer Terry L. Noll had not been in Clearwater Pass for approximately the past three years. He also believes that personal water craft are dangerous. However, his primary concern is that the operators of personal water craft, whether owners or renters, are safe and well- trained.

23. Robert Pothoff's testimony confirmed that Clearwater Parasail will operate its personal water craft rental business similar to the manner in which he operates Aqua Wave Rental. Like Clearwater Parasail, Aqua Wave Rental operates from a bar/hotel area (although it is not as busy as Shephard's.) For the safety of his renters and other boaters using the Pass, Pothoff prohibits his renters from operating in front of Shephard's. Since Aqua Wave Rental is located to the east of Shephard's, Pothoff tries to direct his renters to the east under the Clearwater Pass Bridge into the Intracoastal Waterway. Apparently not fully cognizant of the Applicant's plan of operation, it was Pothoff's incorrect assumption that the Applicant's renters would not be able to similarly avoid operating in front of Shephard's.

24. The Applicant will have to comply with all state and local laws and regulations governing the rental and operation of personal water craft in Clearwater Pass. These now include prohibitions against wake jumping and operation by persons under

    the age of 14. While not currently the law, it is anticipated that renters of personal water craft soon will have to be trained in the safe operation of these craft and certified as competent before renting. Regardless of the state of the law, the Applicant plans to offer a boating safety course to its renters. The owner/operator of Clearwater Parasail, Cliff Conaster, is the holder of a 100-ton captain's license and is qualified to offer this instruction.

25. It is found that the evidence before the Board and presented at final hearing sustains the Board's decision that personal water craft rental as proposed at this location is a compatible use in the area surrounding the proposed location and will not impose an excessive burden or have a substantial negative impact on surrounding or adjacent uses or on community facilities or services.

26. It also is found that the evidence before the Board and presented at final hearing sustains the Board's decision that personal water craft rental as proposed at this location is consistent with the community welfare and will not detract from the public’s convenience at this location.

27. In 1990, the Planning and Zoning Board denied a previous application for conditional use approval for a personal water craft rental business at the same location. The applicant in that case appealed, and the Final Order in Shepard et al. v. City of Clearwater, DOAH Case No. 90-2152, sustained the decision of the Board. There, however, the applicant had no experience in

    running a marine rental business. In addition, the applicant wanted to rent up to ten personal water craft, plus a catamaran sailboat. Also, the applicant failed to establish that safe ingress and egress would be accomplished or that the operation would be sufficiently staffed to ensure safe operations. Those factors sharply contrast with the facts of this case.

    CONCLUSIONS OF LAW

    
    

    Appellant's Standing

    
    

28. Section 36.065(2) of the City of Clearwater Land Development Code (the Code) authorizes appeals from “any person who will suffer an adverse effect to an interest protected or furthered by the land development code. The interest may be shared in common with other members of the city at large but shall exceed in degree the general interest shared by all persons.” Although Section 35.04 of the Code sets forth that it is a purpose of the Code to “conserve and stabilize the value of property” and “minimize the adverse impact of development on adjoining or nearby properties,” it is also a purpose to “encourage the most appropriate use of land,” to “protect, provide for and promote the public safety, health, convenience, comfort, prosperity and general welfare.”

29. It is concluded that the Appellant has standing. The Appellant shares with others a common interest in "the public safety, health, convenience, comfort, prosperity and general welfare.” The Appellant's interest exceeds in degree the general interest shared by all persons in that the Appellant is concerned

    in particular for the safety of his rental customers and the impact the Applicant's business will have on the Appellant's business.

    Appellant's Burden of Proof

    
    

30. Under Code Section 36.065(6):

    
    

    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 . . . variances as contained in . . . chapter 45. . . . 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.

    All procedural requirements relating to the application, hearing process, and appeal process were met in this case. The Appellant argues that “the decision of the Board cannot be sustained by the evidence before the board and before the hearing officer.”

31. The resort commercial 28 (CR28) zoning district is “created to provide a high density resort/residential district with complementary tourist-associated retail and service uses.” Code Section 40.401. Permitted uses include hotels/motels, convention centers, retail sales, restaurants, indoor commercial

    recreation/entertainment when a principal use or within a retail complex, and multifamily dwellings. Code Section 40.403.

    Outdoor commercial recreation/entertainment is allowed as a conditional use within this zoning district. Code Section 40.404.

32. Several sections of the Code of Ordinances govern consideration of conditional use applications by the Board. Section 41.033 requires that in order for a conditional use to be approved, several criteria must be met:

    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.

       In addition, Section 41.052 recites the following standards, all of which shall be met:

       1. The use shall comply with the land use plan and all applicable terms contained in this development code, the building code, and this Code of Ordinances.

       2. Acceptable ingress to and egress from the site shall be provided in a manner and location which ensure optimum vehicle maneuverability and vehicular and pedestrian safety. The number of ingress and egress drives shall be the minimum necessary to provide reasonable access to the site.

       3. Noise generated from the use shall not unreasonably diminish the use, enjoyment or value of surrounding properties.

       4. The direction and glare of lights from both motor vehicles and illuminating fixtures on the site shall not adversely affect the use, enjoyment or value of surrounding properties.

       5. Sufficient landscaping and screening shall be provided to diminish noise, reduce glare and buffer high activity areas and objectionable views, including but not limited to trash disposal facilities, such that the use will not adversely affect the use, enjoyment or value of surrounding properties.

       6. Sufficient area shall be afforded for parking in accord with section 42.34.

       7. 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.

       Finally, the supplementary standards by category of use contained in Section 41.053 set forth the following criteria:

       (21) Outdoor commercial recreation/entertainment may be allowed within the beach commercial, resort commercial 24 and 28 . . . districts, subject to all of the following:

       1. All facilities and activities shall be self-contained on the premises, unless

          otherwise approved by the planning and zoning board.

       2. The use shall comply with all of the general standards contained in section 41.052.

       
       

       The Appellant argues that the Applicant, Clearwater Parasail, Inc., failed to meet two of the criteria--namely, the requirements of Section 41.033(4) and (6).

       Evidence Sustains Board Decision

       
       

33. As to Code Section 41.033(4), the evidence sustains the Board's decisions that the Applicant's proposed use is "consistent with the community welfare" and will not "detract from the public’s convenience at the specific location." (Emphasis added.) The evidence was that the Applicant's business is separated from the heaviest activity at Shephard's Backyard Tiki Bar and Nightclub by a rock jetty. Under the conditions imposed by the Board, the Applicant will guide its renters into the Clearwater Pass through water marked by buoys for that purpose. Once in the Pass, renters will be guided to the west into the Gulf. In that manner, the Applicant's renters will not add significantly to the congestion in front of Shephard's.

34. As to Code Section 41.033(6), the evidence sustains the Board's decision that the Applicant's proposed use is "compatible with the surrounding area" and will not "impose an excessive burden or have a substantial negative impact on surrounding or adjacent uses or on community facilities or services."

35. The Planning and Zoning Board was not bound by the recommendations of the Harbormaster or the Marine Advisory Board

    (the MAB.) The Harbormaster's job description does not include advising planning staff or boards regarding land use issues.

    Code Section 2.196-2.199 provides that the duties of the MAB are to "initiate studies and make recommendations on marine matters of the city to the city commission and shall be responsive to the city commission on marine matters referred to the board by the city." Neither the City Commission nor the City management referred this matter to the MAB. To the contrary, the Harbormaster placed the matter on the MAB agenda at his own behest and not under any direction from his superiors.

36. Clearly, a significant part of the community believes that there is too much boating in Clearwater Pass, especially on weekends, and especially in front of Shephard's, and that too many of the boaters, particularly the renters of personal water craft, are either incompetent, irresponsible, or both. Many of these people also believe that Shephard's contributes significantly to these problems. If so, the appropriate remedy is legislative. The Florida Legislature, Pinellas County, and the City of Clearwater all have an interest in the regulation of water craft and the Shephard's business; however, the evidence supports the Board's decision that denial of the Applicant's conditional use permit is not the appropriate remedy.

DISPOSITION

Based upon the foregoing Findings of Fact and Conclusions of Law, the appeal is denied, and the conditional use permit application is granted.

DONE AND ORDERED this 22nd day of September, 1998, in Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1998.

COPIES FURNISHED:

Allen S. Zimmet, Esquire Tew, Zinober, Barnes,

Zimmet & Unice 2655 McCormick Drive Post Office Box 5124

Clearwater, Florida 33759

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

Post Office Box 4748 Clearwater, Florida 34618

Timothy Johnson, Jr., Esquire Johnson, Blakely, Pope, Boker,

Ruppel & Burns, P.A.

911 Chestnut Street Post Office Box 1368

Clearwater, Florida 33757

Cynthia Goudeau, City Clerk City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review by common law certiorari review in circuit

court. See Section 36.065(6)(g), City of Clearwater Land Development Code.

Docket for Case No: 98-002685

Orders for Case No: 98-002685