STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE MILLS DEVELOPMENT GROUP OF ) FLORIDA, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 81-1581

)

CITY OF CLEARWATER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, held a formal hearing in the above case on July 10, 1981, in Clearwater, Florida.

APPEARANCES

For Petitioner: R. Carlton Ward, Esquire

Richard Building 1253 Park Street Clearwater, Florida

For Respondent: Thomas A. Bustin, Esquire

Post Office Box 4748 Clearwater, Florida 33518

For Intervenor/ Leslie M. Conklin, Esquire Respondent: 280 North Indian Rocks Road

Belleair Bluffs, Florida 33540 BACKGROUND

On May 4, 1981, Petitioner, The Mills Development Group of Florida, Inc., filed an application with the City of Clearwater Building Department seeking a special exception pursuant to Sections 13.03(6) and 35.09(8)(h)(1), Code of Ordinances, to construct a type A Marina on its property at 1660 Gulf Boulevard, Clearwater, Florida. This application was denied the same date by the Clearwater Zoning Enforcement Officer on the ground it did not conform to Section 131.086(6), Code of Ordinances (now codified as Section 13.03(6), supra). At the same time, a review of the application by the City Harbormaster as required by Section 35.09(8)(h)(3), Code of Ordinances, found the project to pose no hazard to navigation in the adjacent waterway. Pursuant to the provisions of Section 35.09(3), Code of Ordinances, the decision was appealed to the City of Clearwater Board of Adjustment and Appeal on Zoning which considered the request at its meeting on May 28, 1981. By a vote of 4-1, the request was denied on the ground it was "not consistent with the zoning code".

The instant case arises from an appeal of that decision filed by Petitioner on June 5, 1981, pursuant to Section 35.10, Code of Ordinances. That section provides a process for any party to appeal a decision of the Board to a Zoning Appeal Hearing Officer. Under a contractual agreement entered into by the City of Clearwater and the Division of Administrative Hearings, and authorized by Section 120.65(6), Florida Statutes, and Section 35.10(E)(1), Code of Ordinances, the undersigned Hearing Officer was designated Zoning Appeal Hearing Officer.

By agreement of parties, the final hearing was scheduled for July 10, 1981, in Clearwater, Florida. At the final hearing Petitioner called Ellie Mills and Robert File as its witnesses and offered Petitioner's Exhibits 1-3, each of which was received into evidence. Respondent, City of Clearwater, presented the testimony of John Richter, chief of the City's Planning Department.

Additionally, the tapes of the Board's meeting on May 28, 1981, and the exhibits submitted at said meeting have been received into evidence as authorized by Section 35.10(3), Code of Ordinances.

The parties were authorized to file proposed findings of fact and conclusions of law; however, none were filed.

The issue presented herein is whether Petitioner is entitled to a special exception to construct and operate a Type A Marina as contemplated by Sections 13.03(6) and 35.09(8)(h)(1) Code of Ordinances.

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

FINDINGS OF FACT

1. Petitioner, The Mills Development Group of Florida, Inc., owns a condominium project now under construction at 1660 Gulf Boulevard, Clearwater, Florida. The project is on the south end of Sand Key, a thin finger-like strip of land which runs in a north-south direction between the Gulf of Mexico and Clearwater Harbor. Gulf Boulevard is the principal road traversing the Key. The condominium project is situated on the west side of Gulf Boulevard and fronts the Gulf of Mexico.

   
   

2. Petitioner proposes to construct a marina on the east side of Gulf Boulevard which fronts Clearwater Harbor. It will be used by the condominium residents and their guests. If the application is approved, Petitioner will construct a 683' x 6' boardwalk next to the seawall, which extends along the waterline on Clearwater Harbor. Extending outward from the boardwalk no more than 30 feet will be 20 catwalks providing slips for approximately 40 boats. Petitioner desires to build a boardwalk to have access to the deeper water which lies outward from the seawall and to avoid dredging activities. The boardwalk will also provide greater safety for the boaters.

   
   

3. The proposed project lies within an area currently zoned by the City as District RM-28 (High Density Multi-Family Use District). This District was created to provide for high density apartment and condominium development use. Permitted uses and structures within the District include apartment houses, townhouse developments and accessory buildings, including recreational buildings and/or community meeting buildings.

4. A number of special exceptions are authorized within a RM-28 District. These include, inter alia, a Type A Marina facility for pleasure craft docking. Accordingly, if the application is approved, the use will be consistent with the Land Use Plan and Zoning Ordinance.

   
   

5. The City expressed concern that persons using the facilities may wish to park on the grassy strip which lies between Gulf Boulevard and the proposed marina which in turn will impede the traffic flow on the thoroughfare. However, adequate parking for guests and residents will be located at the condominium across the street. Further, no material change in the amount of traffic is expected to be generated by the facility. Moreover, City approval is required if Petitioner desires to provide improved parking facilities on the grassy strip in the future.

   
   

6. Intervenor/Respondent, isle of Sand Key Condominium Association, is a condominium association located to the east of Petitioner and approximately 150 feet across the channel at the proposed marina's northern end. The Association does not object to the project itself but is concerned only with the proposed length of the boardwalk. The Association has its own marina facilities which run perpendicular with the waterway and Sand Key. If approved, the proposed boardwalk would lie directly across the waterway from the Association's facilities leaving insufficient space in the channel for expansion of its marina.

   
   

7. The Association also contends the proposed marina, if constructed in its present design, will violate an Easement Agreement entered into in November, 1975, by the prior owner of Petitioner's property and the Association. However, this concern is beyond the scope of this proceeding.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Section 120.65(6), Florida Statutes, and Section 35.10, Code of Ordinances.

   
   

9. Section 163.170(6), Florida Statutes (Supp. 1980) defines a special exception as:

   
   

   . . .a use that would not be appropriate generally or without restriction throughout the particular zoning district or classification, but which, if controlled as to number, area, location, or relation to the neighborhood, would not adversely affect the public health, safety, comfort, good order, appearance, convenience, morals and the general welfare.

   
   

   The above Section also provides that "[s]uch uses may be permitted in such zoning district or classification as special exceptions only if specific provisions and standards for such special exceptions are made in the zoning ordinance."

   
   

10. Under the general zoning scheme of the City of Clearwater, the City has been divided into some 25 Districts for the purpose of classifying, regulating, and restricting the uses of property therein. Section 3.01, Code of Ordinances. The property in question herein lies within District RM-28 (High

    Density Multi-Family) for which a number of special exceptions have been authorized. Sections 13.03(6) and 35.09(8)(h)(1), Code of Ordinances. As is pertinent here, they include, inter alia,

    
    

    Section 13.03. Special exceptions as regulated in Article XXXV, Section 35.09.

    * * *

    (6) Marina facility Type A (pleasure craft docking). . .The City has also established specific "standards" that must be met in order for a property owner to be granted a special exception. First, the proposed use must be. . .consistent with the intent of the Land Use Plan and Zoning Ordinance, and with the public interest." Section 35.09(6)

    Code of Ordinances. Next, the decision maker must consider eleven factors or criteria, where applicable, in determining whether to approve any regulated special exception.

    Section 35.09(7), (a)-(k), Code of Ordinances.

    
    

11. It is incumbent that an applicant seeking a waiver from zoning regulations show that all conditions or standards necessary to qualify for the special exception have been met. Oldham v. Peterson, So.2d, Case No. 80-439 (Fla. 5th DCA op. filed 4/29/81). Once this showing of compliance has been met, the burden then shifts to those opposing the change to demonstrate that the proposed use would adversely affect the public interest. Rural New Town, Inc.

    v. Palm Beach County, 315 So.2d 478, 480 (Fla 4th DCA 1976); Oldham, supra.

    
    

12. The evidence herein discloses that the proposed marina is indeed an authorized use under the Code, and as such, is consistent with the Zoning Ordinance. It is also compatible with the Land Use Plan for it fits within the general scheme of development within the area in question.

    
    

13. Of the eleven criteria required to be reviewed by Section 35.09(7), supra, only paragraphs (a), (b) and (k) are of any importance. They are:

    
    

    1. Ingress and egress to property and proposed structures thereon with particular reference to automobile and pedestrian safety and convenience, traffic flow and control, and access in case of fire or catastrophe.

    2. Off-street parking and loading areas where required. . .

       (k) That the use will be reasonably compat- ible with surrounding uses in its function, its hours of operation, the type and amount of traffic to be generated, and building size of setbacks, its relationship to land values and other factors that may be used to measure compatibility.

       
       

       While none of the criteria were specifically referred to by any party herein, the evidence did reveal that ingress and egress to the property in terms of traffic flow will not be materially changed by virtue of the construction of the facility, adequate off-street parking will be provided at the condominium project across the street, and the marina is "reasonably compatible" with the

       surrounding neighborhood, which is liberally sprinkled with comparable facilities.

       
       

14. The conclusion that must be reached, then, is that the applicant has factually qualified for the legislatively established exception, and absent a showing by the opposition that such use would adversely affect the public interest, the application should be granted.

    
    

15. Intervenor, Isle of Sand Key Condominium Association, does not object conceptually to the project, but only to its size. It is concerned that if the project extends northward as proposed, the northern end of Petitioner's facilities would extend outward in the channel across from Intervenor's dock to such a degree that future expansion of Intervenor's boat slips would be restricted. Intervenor also points to an Easement Agreement entered into by the prior owner of Petitioner's property and Intervenor wherein the parties mutually agreed that Intervener would have the right to add approximately 20 additional boat slips and tie-up pilings, which would partially extend outward into the channel separating the two parties' properties.

    
    

16. Both areas of concern are beyond the scope of this proceeding. The question of whether Petitioner's marina, together with possible expansion by Intervener of its facilities, will impede navigation in the channel is for other administrative bodies to determine. Further, the undersigned has no authority to adjudicate the rights of the parties under their Easement Agreement, for that matter lies within the province of the courts.

    
    

17. There being a showing of compliance by Petitioner with the standards set forth in the Zoning Ordinance, the application should be approved.

NOW, THEREFORE, in consideration of the above, it is

ORDERED that the application of The Mills Development Group of Florida, Inc. for a special exception to construct a Type A marina (40 slips) on property in Section 30-29-15 abutting the south city limits of the City of Clearwater and extending 700 feet MOL on the east side of Gulf Boulevard be GRANTED.

DONE and ORDERED this 31st day of July, 1981, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1981.

COPIES FURNISHED:

R. Carlton Ward, Esquire Richard Building

1253 Park Street

Clearwater, Florida 33516

Thomas A. Bustin, Esquire Post Office Box 4748 Clearwater, Florida 33518

Leslie M. Conklin, Esquire

280 North Indian Rocks Road Belleair Bluffs, Florida 33540

Ms. Lucille Williams City Clerk

City of Clearwater Post Office Box 4748

Clearwater, Florida 33518

Docket for Case No: 81-001581

Orders for Case No: 81-001581