Nott a conditional use permit to sell pre-owned motor vehicles at his business at 700 Cleveland Street, Clearwater, Florida.
Thomas A. Nott filed his application for a conditional use permit on or about January 12, 1999. The application was heard and denied on March 2, 1999.
On March 11, 1999, Nott 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 March 18, 1999, 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 April 2, scheduling final hearing on May 6, 1999.
At final hearing, the record of the proceedings below was received into evidence, including the tapes, minutes, and exhibits from the Board hearing. Nott and his wife testified, and Appellant's Exhibits 1 through 4 were admitted in evidence. The City called two witnesses and had City Exhibits 1 through 8 admitted in evidence.
The owner of a neighboring business (Trickels Jewelers) spoke in opposition to the application; however, Code Section 36.065(5) does not appear to contemplate presentations by members of the public during this appeal.
After presentation of the evidence, the City ordered the preparation of a transcript of the final hearing, and the parties were given 20 days from the hearing or ten business days from the filing of the transcript (whichever was sooner) to file proposed
final orders. Both parties timely filed proposed final orders, and the Transcript was filed on May 28, 1999.
Thomas A. Nott owns Lots 6 and 7, Gould & Ewing's Plat 2nd Addition. The street address is 700 Cleveland Street, Clearwater, Florida. This property is on the northeast corner of Cleveland Street and East Avenue. The property is in the Core-2 (C-2) subdistrict of the Urban Center (UC) zoning district.
The Clearwater Downtown Redevelopment Plan states in pertinent part:
An extremely important aspect of the way Downtown Clearwater functions and is perceived involves transportation within and into the Downtown. If the traffic flow into Downtown is efficient and the entryways are attractive, Downtown Clearwater is more likely to be frequented by citizens and visitors. If traffic flow is congested and the roadsides are unappealing, the Downtown is less likely to be a place where people visit, live and shop and where entrepreneurs invest money.
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Cleveland Street is the single most important roadway in Downtown Clearwater. Due to it[s] "Business S.R. 60" designation, it carries a substantial amount of the traffic heading to Clearwater Beach, as well as the bulk of the office and retail traffic headed for Downtown. . . . In the Downtown Core area, Cleveland Street has been attractively landscaped with paving block and planters.
This treatment has greatly improved the appearance of the Downtown along Cleveland Street. However, these efforts are, to some extent, undermined by the poorly landscaped sections of Cleveland Street outside the Downtown Core area. Land uses outside of the Downtown Core along Cleveland Street are
relatively unattractive and are poorly landscaped. A remedial landscaping program should be considered as a top priority for improving this important entryway.
The City also has adopted Design Guidelines for new construction, building additions, facade alterations, and signage for the Urban Center zoning district. A section on "Landscape and Streetscape Guidelines" suggests the use of different kinds of planters and curb "neck-out" street corners to create larger pedestrian areas that incorporate benches, specialized pavers, and lighted bollards. Landscaping, including shade trees, are suggested to provide separation between people and vehicles. A subsection on "Open Spaces" states: "Designers of site improvement areas are encouraged to explore opportunities to incorporate usable open space with the project (development) area."
Nott's property is in a transition area between the more attractively landscaped City core to the west and the less attractive portions of Cleveland Street to the east. Immediately to the west across East Avenue is the Pinellas Trail.
Immediately to the west of the Trail, fronting on Cleveland Street, is the historic United States Post Office building, which is listed on the National Register of historic buildings. (Since it still functions as a working post office, a large number of mail delivery trucks park and operate out of the back of the post office to the north.) The Trickels Jewelers building to the immediate east of Nott's property also is attractively
landscaped, especially along Myrtle Avenue. The other properties to the north, east, and south of Nott's property are less attractive. They include: an automobile and marine repair business; a restaurant with little or no open space; an import car repair service business with little or no open space; and a car rental business. Ideally, the City would like Nott's property to become the start of an eastward expansion of the more attractive urban core along Cleveland Street.
Nott's property is 0.26 acre in area; its dimensions are
105 feet in width and 109 feet in depth. Unlike most properties in the downtown urban core, the building on Nott's property is set back quite a distance from the streets. The building has one story and is just 1500 square feet. In the past, the property has been used as an automobile gas and service station and as a car rental business. Before Nott bought the property, the building was in disrepair and in decline.
Approximately four years ago, Nott was considering relocating from South Beach in Miami, where he was in the business of selling pre-owned motor vehicles. Initially, he investigated relocating to Dunedin, but an official with Clearwater's redevelopment agency persuaded him to take advantage of Clearwater's commitment to redevelop the downtown urban core, as well as interest-free financing available through the agency to improve the property.
Nott bought the property, borrowed approximately $50,000 interest-free, and invested that and an additional $50,000 of his own money to improve the property. His plan was to conduct two businesses at the property: a roller skate and bicycle rental business catering to users of the Pinellas Trail; and a pre-owned motor vehicle sales business. Due to family priorities, Nott had to delay his departure from Miami and only was able, with the help of a nephew, to open the skate and bicycle shop. The 121 square feet of storefront planned for the vehicle sales business was used as storage space for the skate and bicycle shop pending opening of the vehicle sales business.
The skate and bicycle shop, called Fritz's Skate Shop, had been operating for approximately three years when Nott became ready to open his pre-owned vehicle sales business. When he went to get an occupational license towards the end of 1998, Nott learned that a conditional use permit would be required. In discussions with staff of the City's Planning and Zoning Board, Nott also was informed that a new zoning code was going into effect which would prohibit vehicles sales at Nott's property and that he would have to expedite his application for it to be considered under the existing zoning regulations.
Nott filed an application for a conditional use approval on or about January 12, 1999. At the time, Nott was not familiar with Clearwater's zoning regulations and did not address some zoning requirements. Specifically, while the sketch Nott drew by
hand to approximate scale to serve as the required site plan met the minimum requirements as to form, it only showed a three-foot grass buffer along Cleveland Street and a three-foot buffer of shrubs along East Avenue, while the City's development code required at least a ten-foot landscaped buffer along Cleveland Street and at least a five-foot landscaped buffer along East Avenue. The sketch also showed parking that would obstruct vehicle flow in the parking lot and failed to show a large oak tree on the site. Finally, the sketch showed parking for the display of vehicles for sale along Cleveland Street.
Nott's application was set for hearing at the Board's last scheduled meeting on March 2, 1999, just six days before the new zoning and development code would take effect. Nott still did not know all of the applicable regulations under the existing code. For some reason, Nott did not obtain a complete set of the City's zoning and development regulations until approximately February 17, 1999.
Nott blamed the delay on foot-dragging by the Board's staff, and he questioned whether the staff was being uncooperative to undermine his application. Nott testified that he did not get a complete set of the applicable zoning and development regulations until after he sent a letter of complaint to the staff director on February 13, 1999. The staff denied any intention to delay Nott's application or be uncooperative. The
staff blamed some of the delay on the time it took for Nott to prepare and submit an acceptable site plan.
It appears that Nott entered into the application process thinking that there would be no problem meeting the City's requirements and expecting the Board's staff to walk him through the process. When Nott's expectations were not met, he perceived that the staff was treating him unfairly. But it is found that Nott's evidence did not prove unfair treatment. In fact, due to Nott's inexperience, the staff was required to give Nott more assistance than usual.
For his presentation to the Board, Nott had a consultant use a photograph of the site to create a computer- visualization of the proposed vehicle sales business. The photograph depicted one vehicle parked in front of the building, as well as four vehicles parked along Cleveland Street and one parked along the east property line in two of the areas identified on the site plan as parking for the display of vehicles for sale. The visualization did not add any landscaping. At the time, Nott thought the concern was adequate parking; he did not know at the time that landscaping also would be important to his application.
When Nott got and reviewed the applicable zoning and development code provisions and the staff's report, he realized that he had not addressed the landscaping buffer requirements. He had his consultant further modify the computer-visualization
to add a landscaping buffer. This visualization was presented at the Board hearing on March 2, 1999. However, the visualization still depicted vehicles parked along Cleveland Street and was not clear as to the width of the landscaping buffer. The site plan was not modified, so the extent of the proposed landscaping buffer could not be ascertained from the site plan.
At the Board hearing, Nott stated that he would be willing to do whatever the City said was necessary in order for him to receive a conditional use permit. But Nott made no specific proposals. Essentially, Nott was asking the City to formulate an acceptable application for him.
The staff report indicated that an on-site traffic circulation problem could be cured by eliminating two customer parking spaces in front of the building. But it was impossible to determine from the evidence in the record how a wider landscaping buffer would impact either traffic circulation in the parking lot, parking, or the large oak tree.
The staff report pointed out that Nott's application proposed to maintain minimal (7%) open space on the site. The neighbor to the immediate east (Trickels Jewelers) has 30-35% open space, including attractive landscaping along Myrtle Avenue. At the Board hearing, Nott claimed "open space" credit for the shade canopy provided by the large oak tree on-site and contended that the credit would increase his "open space" to 30-35% as well. But even if open space credit can be given for shade
canopy over a parking lot, Nott's testimony was insufficient to prove the extent of the tree's shade canopy. Besides, it could not be ascertained from the record whether the tree would have to be removed to meet landscaping buffer, traffic circulation, and parking requirements.
Nott testified at the appeal hearing that, after he proposed and depicted parking of vehicles for sale along Cleveland Street, the "Division of Motor Vehicles" advised him that it would not allow him to display vehicles in that location. Nott testified that he would simply eliminate the display parking spaces along Cleveland Street and limit the display of vehicles for sale to 12 at any one time in parking spaces adjacent to the building and along the east property line. But it was not clear from the record whether all of the remaining spaces depicted on the site plan for display parking would remain available for that purpose after adding landscaping buffer, and also maintaining adequate traffic circulation and customer parking.
In addition to agreeing to meet the perimeter landscape buffer requirements, Nott also agreed to condition approval on:
(1) operating his vehicle sales business only 10 a.m. to 5 p.m. on Monday through Saturday; (2) not using windshield advertising, flags, or banners; (3) only selling vehicles with a retail value of $10,000 or more; and (4) not operating a "buy here-pay here" used car lot.
CONCLUSIONS OF LAW
Code Section 40.481 states in part: "The urban center [UC] zoning district is created to provide for and guide the development and use of land within the downtown area of the city
. . . ." Permitted uses within the Core subdistricts include residential, retail, business offices, hotels/motels, and government offices. Code Section 40.484(2). Vehicle sales are allowed as a conditional use within this zoning district. Code Section 40.485(2)(o).
Code Section 41.033 provides:
A conditional use shall be approved by the board only upon determination that the application and evidence presented clearly indicate that:
The use complies with the land use plan.
The use complies with all other applicable provisions of this development code.
The use complies with the applicable conditional use standards for the proposed use contained in division 3 of this article.
The use shall be consistent with the community welfare and not detract from the public’s convenience at the specific location.
The use shall not unduly decrease the value of neighboring property.
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, Code Section 41.052 recites the following standards, all of which shall be met for approval of a conditional use:
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.
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.
Noise generated from the use shall not unreasonably diminish the use, enjoyment or value of surrounding properties.
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.
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.
Sufficient area shall be afforded for parking in accord with section 42.34.
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:
Whether the use is compatible with the surrounding natural environment;
Whether the use will have a substantial detrimental effect on the property values of the properties surrounding the conditional use;
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;
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 conditional use contained in Section 41.053 set forth the following criteria:
Vehicle sales may be allowed within the
. . . urban center (core) districts, subject to all of the following:
The outdoor use shall not adversely affect the community appearance objectives of the city. In particular, no temporary buildings, portable buildings, tents, stands, trailers, vending carts or like building or structures shall be utilized in conjunction with the use.
The use shall comply with all of the general standards contained in section 41.052.
The Board's staff recommended, and the Board decided by a vote of 4-1, that Nott failed to meet several of the requirements for approval of a conditional use. Nott appealed under Code Section 36.065(6), which provides in pertinent part:
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 . . . as contained in chapter 41, article II 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.
The hearing officer shall be guided by the city comprehensive plan, relevant
portions of this Code and established case law.
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 order to sustain the Board's decision to deny Nott's conditional use application, it is only necessary for the evidence to sustain the Board's decision as to any one of the several requirements for approval.
Code Section 41.031(3) required Nott to submit an accurate site plan with his application for conditional use approval. Among other things, the site plan was required to identify: (d) current and proposed landscape buffering, and perimeter and interior parking lot landscaping on the site; and
(f) the type and general location of the natural features on and immediately adjoining the site, including significant natural vegetation and areas covered by tree canopy. The site plan submitted by Nott failed to meet these requirements.
Code Section 42.27(3)(a) requires that the proposed use provide a ten-foot landscape buffer along Cleveland Street and a five foot landscape buffer along East Avenue. Nott's application and attached site plan do not meet this requirement. Nott did not show, at the Board hearing below or at the appeal hearing, that he was able to meet the landscape buffering and other requirements. It is unclear from the evidence whether Nott would be able to install the required landscaping while still
maintaining required parking and traffic circulation. It is possible that meeting the requirements of landscaping buffer, parking, and on-site traffic circulation would necessitate removal of the large oak tree on the site; if so, a separate permit would be necessary.
Code Section 40.481, which created the UC zoning district, states in part: "The specific development regulations are intended to encourage planned development and revitalization of the downtown area consistent with the "Downtown Redevelopment Plan" and the city’s comprehensive plan." (Emphasis added.) As found, the Downtown Redevelopment Plan makes improving the appearance of Cleveland Street through landscaping and effective use of open space a top priority.
The City’s comprehensive plan provides, in pertinent part:
Goal 3. The character of Clearwater as a high quality, attractive environment for resort, residential, and business activities shall be enhanced and encouraged through implementation of Clearwater’s comprehensive plan.
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Objective 3.2 By 1990, the Planning and Zoning Board shall specifically consider consistency of the requested use with the community’s character when granting a permit for a conditional use.
There was evidence to sustain the Board's decision that Nott's application would not be consistent with the community character of Clearwater, as reflected in the City's efforts to enhance the
urban center through the Clearwater Downtown Redevelopment Plan and Design Guidelines.
The same evidence also supported the Board's decision that granting Nott's conditional use application would not be "consistent with the community welfare" and "compatible with the surrounding areas," as required by the following Code Section: 41.033(4)and (6); 41.052(7)(c); and 41.053(33)(a).
Code Section 36.065(6)(d) allows the hearing officer to approve an application with such reasonable conditions as the Board may have imposed. Nott suggests that his application should be approved on the condition that he meet the landscape buffering requirements under Code Section 42.27(3)(a). But it is concluded that it would be inappropriate to grant the application with those conditions in this case because no specifics have been proposed, and it cannot be ascertained from the application, site plan, and evidence presented at hearing whether the applicant will be able to comply with the landscape buffering, parking, and on-site traffic circulation requirements.
