STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YPAPANTI and SEVASTI ALEXIOU, )

d/b/a FRENCHY'S ROCKAWAY )

GRILL, )

)

Petitioners, )

)

vs. ) Case No. 01-0272

)

CITY OF CLEARWATER, )

)

Respondent, )

)

and )

)

HUNTER HOTEL COMPANY, )

)

Intervenor. )

)

FINAL ORDER

A hearing was held in this case on March 27, 2001, in Clearwater, Florida, by Donald R. Alexander, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioners: Darryl R. Richards, Esquire

E. D. Armstrong, III, Esquire Johnson, Blakely, Pope, Bokor

Ruppel & Burns, P.A. Post Office Box 1100 Tampa, Florida 33601-1100

For Respondent: Leslie K. Dougall-Sides, Esquire

Post Office Box 4748 Clearwater, Florida 33758-4748

For Intervenor: Steven O. Cole, Esquire

Harry S. Cline, Esquire Macfarlane, Ferguson & McMullen Post Office Box 1669 Clearwater, Florida 33757-1669

STATEMENT OF THE ISSUE

The issue is whether Petitioners' application for site plan approval for a proposed renovation and addition to their restaurant should be approved.

PRELIMINARY STATEMENT

This matter began in July 2000, when Petitioners, Ypapanti and Savasti Alexiou, doing business as Frenchy's Rockaway Grill, filed an application with Respondent, City of Clearwater, seeking site plan approval for a proposed renovation and expansion of their restaurant. After reviewing the application, the City of Clearwater staff recommended that the Community Development Board approve the application at its meeting held on November 21, 2000. Despite a 3-2 vote in favor of the application, it failed since four votes were needed for approval. The application was again considered at a meeting held on December 12, 2000, and a 3-3 vote was deemed to constitute a denial.

On December 15, 2000, Petitioners filed an administrative appeal contesting the decision of the Community Development Board on the grounds that "the Board wrongfully denied the application despite the appellant having conclusively

demonstrated compliance with all appropriate criteria," and that "[t]he Board failed to follow [the] essential requirements of the law."

Pursuant to a contract between Respondent and the Division of Administrative Hearings, the matter was referred to the Division of Administrative Hearings on January 19, 2001, with a request that an Administrative Law Judge be assigned to conduct a hearing.

By Notice of Hearing dated January 30, 2001, a hearing was scheduled on March 27, 2001, in Clearwater, Florida.

Intervenor, Hunter Hotel Company, which owns property adjacent to the restaurant, was authorized to intervene in this matter on February 23, 2001.

At the hearing, Petitioners presented the testimony of Cynthia Tarpani, assistant planning director for the City of Clearwater; Robert Pergolizzi, a certified planner with Florida Design Consultants; Steven Klar, an architect; and Roy Chapman, a professional engineer. Also, they offered Petitioners' Exhibits 1-19, which were received in evidence.

These exhibits include the record of the meetings of the Community Development Board held on November 21 and December 12, 2000. Intervenor presented the testimony of Larry Edger and Ken Hamilton, who both own restaurants near Petitioners' property; Kevin Dunbar, parks and recreation director for the

City of Clearwater; Bill Morris, director of the marine and aviation department of the City of Clearwater; Harry S. Cline, an attorney; and V. Gail Easley, a certified planner and accepted as an expert in planning and code interpretation.

Also, it offered Intervenor's Exhibits 1-3, which were received in evidence. Finally, the undersigned took official recognition of the Community Development Board's rules of procedure, and Sections 2-801 through 2-803, 3-1401 through

3-1410, 4-206, 4-401 through 4-405, and 4-505 of the City of Clearwater Community Development Code.

The Transcipt of the hearing was filed on April 12, 2001. Proposed Findings of Fact and Conclusions of Law were filed by Respondent, Intervenor, and Petitioners on April 23, 24, and 27, 2001, respectively, and they have been considered by the undersigned in the preparation of this Final Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. In this local land use dispute, Petitioners, Ypapanti and Sevasti Alexiou, who operate a restaurant under the name of Frenchy's Rockaway Grill, have appealed a decision by the Community Development Board (Board) to deny an application to renovate and expand their restaurant located at 7 Rockaway Street, Clearwater Beach, Florida. The Board, which is made

   up of seven local residents, acts as the local planning agency for Respondent, City of Clearwater (City). Although the City staff supports the project, the City is technically opposed to the application since the Board failed to approve the project by a 3-3 tie vote. In denying the application, the Board rejected the City staff's recommendation that the application be approved.

2. Intervenor, Hunter Hotel Company, owns and operates a hotel known as Clearwater Beach Hotel which is contiguous to, and south of, Petitioners' property. It objects to the application on the grounds that "the criteria for the flexible development approval were not met nor proved, [and] that the relief requested [by Petitioners] is of such a magnitude that it is not warranted and cannot be allowed under the Code." As further clarified by Intervenor, the City's parking shortage in the Beach area is the "core issue on this appeal." Until the City solves the parking problem, Intervenor suggests that there should be a moratorium on development in the Beach area.

3. Petitioners own and operate a popular and successful one-story restaurant and bar on a 0.38-acre lot at 7 Rockaway Street, Clearwater Beach, which fronts directly on the Gulf of Mexico. The property is zoned as a part of the City's Tourist District and is bounded by the Gulf of Mexico on the west, a

   municipal parking lot to the north, a motel on the east, and the Clearwater Beach Hotel on the south.

4. Due to the small size of their lot, Petitioners seek to vertically expand their restaurant by adding a second story consisting of 3,487 square feet, including an approximately 2,300 square foot open deck and 1,200 square feet of enclosed area. Both sections will accommodate bar patrons and diners. Petitioners also intend to remove and replace a 945 square foot storage room attached to the south side of the building which is structurally unsound. To accomplish these changes, Petitioners will need "flexibility" in meeting setback and parking requirements.

5. Because more than 95 percent of the City is now "built out," and very little land is vacant, the City has adopted comprehensive infill criteria for non-conforming structures, such as Petitioners' restaurant. The criteria which apply to Petitioners' project are found in Section 2- 803C. of the City of Clearwater Redevelopment Code (Code) and allow flexibility in promoting redevelopment and infill throughout the City, including the Clearwater Beach area. As pointed out by City staff, infill projects are often used on Clearwater Beach because there are so many non-conforming structures in that area.

6. In determining whether a project should be given flexibility as an infill project, the City evaluates the proposed project against its infill criteria. Strict compliance with all criteria is not required, but rather the criteria are weighed or balanced collectively. If a project cannot meet a "significant number of [criteria], or a significant one in a meaningful way," then an applicant "would have problems [with gaining approval]." Once a project qualifies as an infill project, an applicant may then use flexible development standards for setbacks, height, size, and minimum off-street parking. In this case, Petitioners seek flexibility for setback and off-street parking requirements.

7. As noted earlier, the main concern raised by Intervenor centers around item 9. of the criteria, which reads as follow:

   9. Adequate off-street parking in the immediate vicinity according to the shared parking formula in Division 14 of Article 3 will be available to avoid on-street parking in the immediate vicinity of the parcel proposed for development.

   
   

   Intervenor contends that this criterion was not satisfied, and thus the project cannot qualify as an infill project.

8. In addition, in its Proposed Final Order, the City contends that Petitioners have failed to satisfy items 1. and 5., which read as follows:

   1. The development or redevelopment of the parcel proposed for development is otherwise impractical without deviations from the use, intensity and development standards;

      
      

      5. Suitable sites for development or redevelopment of the uses or mix of uses within the comprehensive infill redevelopment project are not otherwise available in the City of Clearwater.

      
      

9. Table 2-803 of the Code establishes minimum off- street parking requirements of 7 to 15 parking spaces per 1,000 square feet for restaurants in the Tourist District. Therefore, a restaurant of Petitioners' size (that was not an infill project) would be required to have at least 47 off- street parking spaces. In actuality, Petitioners have only 13, due to a variance having been previously granted. Since Petitioners intend to add around 3,400 square feet through the second floor addition, the Code would normally require a minimum of 24 additional parking spaces, or a total of 71. However, these off-street standards do not apply to infill projects. Instead, another provision in Table 2-803 of the Code provides that minimum off-street parking for infill projects shall be "[d]etermined by the community development coordinator based on the specific use and/or ITE [Institute of Transportation Engineers] Manual standards." Therefore, using the guidelines in the foregoing provision, the community development coordinator determines the number of additional

   off-street parking spaces, if any, that an infill project will require.

10. Because the City staff concluded that a parking study would assist it in analyzing the specific use of the property, it requested that Petitioners perform a parking study. The study was conducted by Robert Pergolizzi, a certified planner, who has performed a number of parking studies during his career.

11. The Code does not describe any criteria for a parking study for an infill project. Therefore, the staff looked at other sections of the Code in arriving at a methodology to be used for the study. More specifically, it first considered Section 2-803J.6.a., which provides in part that off-street parking requirements can be relaxed if "the physical characteristics of the proposed building are such that the likely uses of the property will require fewer parking spaces per floor area than otherwise required." Because the restaurant sits directly on the beach, the staff believed that the primary destination of many of the customers was the beach, and not the restaurant, and that the visit to the restaurant was a side trip by the customers. Thus, the parking study methodology was designed, in part, to confirm or disaffirm that assumption.

12. Section 2-803J.6.c. also provides flexibility in off-street parking requirements if "adequate parking is

    available on a shared basis as determined by all existing land uses within 1,000 feet of the parcel proposed for development, or parking is available through any existing or planned and committed parking facilities." The staff used this section of the Code to determine that 1,000 feet was an appropriate distance to analyze available parking for a restaurant.

    Therefore, Pergolizzi was directed by the staff to analyze available parking within 1,000 feet of the restaurant.

13. Pergolizzi conducted his study on August 25 and 26, 2000, the Friday and Saturday which preceded the Labor Day holiday weekend. It is undisputed, and the parties have stipulated, that Pergolozzi conducted the study entirely consistent with the agreed methodology. The study confirmed that the primary destination of 49 percent of the restaurant's customers was the beach, and not the restaurant. In other words, the expansion would not affect the parking demand generated by almost one-half of the customers. The study also confirmed that there was available parking within 1,000 feet of the restaurant to accommodate not only the existing business, but the proposed expansion as well.

14. As noted above, Table 2-803 of the Code required that the community development coordinator determine the

    minimum off-street parking after consideration of the specific proposed use and/or the ITE Manual standards. Here, the City staff looked at the specific use, the ITE Manual standards, and the parking study to determine the minimum off-street parking required for the restaurant. It concluded that there was available parking within 1,000 feet of the restaurant and that no additional parking spaces were required. The community development coordinator concurred with the results of the study and analysis and likewise determined that the minimum off-street parking for the project were the existing

    13 spaces. This determination was wholly consistent with the requirements of the Code.

15. In recommending to the Board that the project should be given flexibility as an infill project, the staff's report contained the following conclusion:

    The proposal is in compliance with the standards and criteria for flexible development approval, with maximum development potential, requirements of the Comprehensive Infill Redevelopment Projects, and with all applicable standards of the Community Development Code.

    
    

    A more detailed analysis of how each of the ten criteria were satisfied is found in Petitioners' Exhibits 9 and 14 received in evidence. At the hearing on March 27, 2001, the City's assistant planning director also established that the proposed

    expansion and renovation complied with all applicable standards of the Code.

16. Intervenor's expert witness, Gail Easley, a certified planner, questioned whether the methodology used by Pergolizzi complied with the Code. More specifically, she contended that the City was required to determine minimum off- street parking for infill projects in the manner described in Section 2-803C.9. That section provides that "[a]dequate off- street parking in the immediate vicinity according to the shared parking formula in Division 14 of Article 3 will be available to avoid on-street parking in the immediate vicinity of the parcel proposed for development." If this contention were true, however, it would render meaningless the provision in Section 2-803C.8., which provides that "[f]lexibility in regard to lot width, required setbacks, height and off-street parking are justified by the benefits to community character in the immediate vicinity of the parcel proposed for development and the City of Clearwater as a whole." In other words, there would be no flexibility for off-street parking as permitted by that section. This would be contrary to the very purpose of infill projects.

17. Witness Easley's interpretation is also inconsistent

    
    

    with Table 2-803, which states that "minimum off-street parking will be determined by the community development

    coordinator based on the specific use and/or ITE Manual standards." Under her interpretation of the Code, the community development coordinator would have no right to determine minimum off-street parking for infill projects based on the specific use and/or ITE Manual standards, despite clear language in the Code to the contrary.

18. More importantly, the criteria in Section 2-803C., including item 9., are used to determine whether a project should be considered an infill redevelopment project under the Code. Item 9. is simply one of those criteria, and it does not establish minimum off-street parking requirements for an infill project.

19. Witness Easley also opined that it was inappropriate for the parking study to consider on-street parking. However, the Code does not prohibit the community development coordinator from requesting a parking study which includes on- street parking. It only requires that he consider the specific use and/or ITE manual standards when determining off- street parking for an infill project. Other contentions that the methodology was flawed, including a concern about the date and time of the study and the use of 1,000 feet as a measuring stick for available parking, have been considered and found to be without merit.

20. A contention was also made that certain other infill criteria were not met. However, there was no evidence to support these contentions, and the more persuasive evidence supports a finding that all criteria have been satisfied, and that Petitioners qualify as an infill project. The undersigned has also considered the testimony of the owners of two competing restaurants who object to the project. While they contended that the lack of parking motivated their opposition to the application, it is fair to infer from their testimony that they object mainly because they fear that Petitioners may capture some of their business through an expansion of their restaurant.

21. Finally, in its Proposed Final Order, the City has contended that Petitioners have failed to satisfy a general standard contained in Section 3-913A.6., which requires that an applicant ensure that:

    [t]he design of the proposed development minimizes adverse effects, including visual, acoustic and olfactory and hours of operation impacts, on adjacent properties.

    
    

    Given the modifications agreed to by Petitioners in the following Finding of Fact, the requirements of this section have been met.

22. In the nature of an affirmative defense, Petitioners have raised the issue of equitable estoppel and contend that Intervenor should be estopped from opposing the application.

    The facts underlying this argument are as follows. On November 21, 2000, the Board heard testimony and considered the application for the first time. At that meeting, Intervenor's counsel represented to the Board that "my client's concern is not the parking. My client's concern is because of proximity of noise and light intrusion." In light of these concerns, counsel for Petitioners and Intervenor reached an agreement wherein Petitioners agreed to limit the addition to the northern one-half of the existing building, construct an 8-foot concrete block wall on the south property line between the restaurant and the hotel, close the upstairs addition at 10:00 p.m. on week nights and 11:00 p.m. on Fridays and Saturdays, place no outside speakers and allow no live music on the upstairs addition, and direct upstairs lighting away from the hotel. With these accommodations, counsel for the hotel represented to the Board that "if [the Board] approve[s] this, you have addressed our primary areas of concern."

23. After the close of public comments, the Board voted

    
    

    to approve the application by a 3-2 vote. Because four votes are required to approve an application, and one member was absent from the meeting, the matter was continued to the next meeting on December 12, 2000.

24. By letter sent to Petitioners' counsel on December 5, 2000, Intervenor's counsel identified the "commitments at the preceding hearing, which [Petitioners were] willing to make to the Clearwater Beach Hotel." Upon

    receipt of that letter, Petitioners advised the City by letter that they were in agreement with Intervenor's counsel that "these are the conditions agreed to at the last CDB meeting, which shall be binding upon my client."

25. Notwithstanding earlier representations, by letter dated December 7, 2000, counsel for Intervenor indicated that "the owners of Clearwater Beach Hotel have instructed us to object to the pending application. Upon further review, prompted by the renderings, the magnitude of this project is simply too great for the size of the property." The letter further stated that it was to be considered "as withdrawal of our prior letter and position of 'no objection,'" and that Intervenor would attend the December 12 hearing "to formally object."

26. Petitioners have further contended that Board member William Johnson had ex parte communications with some of his neighbors concerning the merits of this application, and this constituted a departure from the essential requirements of the law. Section 4-206D.2. of the Code provides that "no member of the community development board or the city commission

    shall engage in any ex parte communications with any person in regard to the substance of a quasi-judicial matter which is to be considered by the board or commission, as the case may be." If such communications occur, Section 4-206D.3.a. requires that a member disclose these communications at the meeting.

    There is no record of any disclosure being made.

    
    

27. At the first Board meeting on November 21, 2000, member Johnson had moved for approval of the application. Without any explanation, at the second meeting on December 12, 2000, he voted against the application.

28. Member Johnson did not testify at hearing to confirm or deny Petitioners' allegation of wrongdoing. However, witness Pergolizzi testified that he spoke with member Johnson just after the December 12 meeting, at which time member Johnson allegedly admitted that he had such conversations with his neighbors and was sorry for his change of vote. But the out-of-court statements of member Johnson are hearsay in nature, do not supplement or explain any other competent evidence on this issue, and they cannot form the basis for a finding of fact.

    CONCLUSIONS OF LAW

    
    

29. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 4-505 of the Code.

30. Section 4.505C. of the Code prescribes the burden of proof upon an appellant (Petitioners):

    The burden shall be upon the appellant to show that the decision of the community development 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.

    
    

31. Petitioners argue that the Board's decision to deny the application cannot be sustained by the evidence before it, and that its decision constituted a departure from the essential requirements of the law. On the first point, they argue that the evidence clearly supports a decision in their favor. On the second point, and citing the case of American Infoage, LLC v. City of Clearwater, DOAH Case No. 00-0999 (DOAH, Aug. 30, 2000), Petitioners assert that the ex parte communications of member Johnson, at a minimum, entitle them to a new hearing on their application.

32. The Board's decision to deny the application on December 12, 2000, cannot be sustained by the evidence before it. The evidence clearly shows that Petitioners met all infill criteria in Section 2-803C., and that their project qualifies as an infill project. Objections lodged by Intervenor are either based on a misinterpretation of the Code, or are not supported by the evidence. Therefore, the

    earlier decision should be reversed, and the application granted.

33. Petitioners have also contended that the ex parte communications by Board member Johnson constitute a departure from the essential requirements of the law and, at a minimum, entitle them to a new hearing on their application. Even if this allegation were true, the issue is now moot, given the conclusion reached above. Further, the allegation is based on hearsay testimony, and Petitioners have not claimed that, nor shown how, the out-of-court statement would be admissible in a civil action. See, e.g., Harris v. Game and Fresh Water Fish Comm., 495 So. 2d 806, 808 (Fla. 1st DCA 1986); Section 120.57(1)(c), Florida Statutes (2000). Finally, although the findings in the Final Order are not clear on who said what and when, the case of American Infoage is distinguishable since, unlike here, there was apparently competent evidence of undisclosed improper communications by Board members and a school superintendent (Final Order, page 17).

34. In light of the above conclusions, it is unnecessary

    
    

    to reach the issue of whether Intervenor should now be estopped from opposing this application. Even if Intervenor were estopped, the City would still oppose the application, and Petitioners would still be required to show that their application should be approved.

35. Finally, the five conditions agreed to by Petitioners and Intervenor prior to the December 12, 2000, meeting, as described in Finding of Fact 22, should be incorporated into the site plan approved herein.

DISPOSITION

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

ORDERED that the decision of the Community Development Board on December 12, 2000, is reversed, and Petitioners' application is approved.

DONE AND ORDERED this 14th day of May, 2001, in Tallahassee, Leon County, Florida.

___________________________________ DONALD R. ALEXANDER

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2001.

COPIES FURNISHED:

Cynthia Goudeau, City Clerk City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

Leslie K. Dougall-Sides, Esquire Post Office Box 4748

Clearwater, Florida 34618-4748

Darryl R. Richards, Esquire

E. D. Armstrong, III, Esquire Johnson, Blakely, Pope, Bokor,

Ruppel & Burns, P.A. Post Office Box 1100 Tampa, Florida 33601-1100

Harry S. Cline, Esquire Stephen O. Cole, Esquire

Macfarlane, Ferguson & McMullen Post Office Box 1669 Clearwater, Florida 33757-1669

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 in circuit court. See Section 4-505D., City of Clearwater Community Development Code.

Docket for Case No: 01-000272

Orders for Case No: 01-000272