STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOWARD HAMILTON, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1928

)

CITY OF CLEARWATER, )

)

Respondent, )

and )

) PIER PAVILION OF CLEARWATER, INC., )

)

Intervenor. )

)

FINAL ORDER

A formal hearing was conducted in this matter on October 29, 1981, in Clearwater, Florida. The following appearances were entered: Leon Whitehurst, Jr., Clearwater, Florida, and William W. Gilkey, Clearwater, Florida, appeared on behalf of the Petitioner, Howard Hamilton; Thomas A. Bustin, Clearwater, Florida, appeared on behalf of the Respondent, City of Clearwater; and O. Stephen Thacker, Clearwater, Florida, appeared on behalf of the Intervenor, Pier Pavilion of Clearwater, Inc.

The Petitioner filed an application with the City of Clearwater Building Department seeking a variance from off-street parking requirements set out in the City of Clearwater Code of Ordinances, to allow Petitioner to operate a restaurant on property that he owns in the City. The City's Board of Adjustment denied the application by decision entered July 23, 1981. The Petitioner filed an appeal from that decision, and on August 6, 1981, the City forwarded the matter to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was scheduled as set out above by notice dated September 2, 1981.

The City called the following witnesses at the hearing: John Richter, an employee of the City's Planning Department; and David Healey, the City's Planning Director. Petitioner testified as a witness on his own behalf and called the following additional witnesses: C. E. Renfroe, Jr., the President of the Clearwater Beach Bank; and John Homer, a real estate businessman. Emma Whitney, an owner of property which adjoins the property where the Petitioner proposes to operate a restaurant, testified as an interested member of the general public. Hearing Officer's Exhibit 1, and City Exhibit 1 were received into evidence. The parties have submitted post-hearing legal memoranda including proposed findings of fact and conclusions of law. The proposed findings of fact and conclusions of law have been adopted only to the extent that they are expressly incorporated into the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as either contrary to the evidence, irrelevant to the issues, or erroneous as a matter of law.

The issues in this proceeding are whether the decision of the Board of Adjustment which denied the Petitioner's application for a variance from off- street parking requirements should be reversed, and whether the variance application should be granted or denied.

FINDINGS OF FACT

1. The Petitioner is the owner and operator of several businesses on Clearwater Beach, including two "fast-food" facilities which serve primarily recreational beach visitors. Petitioner owns property on the northeast corner of Marian and Mandalay Streets on the beach. Marian Street is a one-way highway which terminates at Mandalay Street. It is the eastern terminus of State Road

   60 and provides the main access to Clearwater Beach from mainland locations. Mandalay Street is a four-lane street which serves as the primary north-south artery on Clearwater Beach. The intersection of Marian and Mandalay Streets is the busiest intersection on Clearwater Beach. There are a traffic light and a pedestrian light at the intersection.

   
   

2. Petitioner purchased the property at the northeast corner of the intersection in 1974. A two-story building occupies the property and covers over half of it. The building fronts on Mandalay Street. There are two commercial facilities on the first floor, one of which is presently not occupied. There are five apartments on the second floor, all of which are occupied. There are numerous commercial facilities to the north of Petitioner's property along the same side of Mandalay Street. These are primarily shops which cater to the beach-going public, and small restaurants. To the east of Petitioner's property, there is a mixture of commercial uses, primarily motels. There is a Holiday Inn motel across Mandalay Street. Petitioner's property lies within a zoning district which is classified "GB" or "General Business." The property is classified in the City's plan as commercial/tourist. Retail business uses, restaurants, motels, or high-density residential uses would all be appropriate under the "GB" zoning classification and under the City's plan.

   
   

3. Petitioner proposes to remodel the building on his property and to operate a "fast-food" restaurant facility in it. The Petitioner proposes to place food preparation and service areas on the ground floor with some stand-up eating locations, and to place most of the seating on the second floor. The second floor would serve as a dining porch with good views of the beach area. The Petitioner has not decided whether he would seek to serve as a franchisee of some national food service organization. The Petitioner would not have any "drive-in" facility connected with the restaurant. Petitioner's property is a good location for a fast-food restaurant because it is at a highly visible location, the busiest intersection on the beach; and because it is readily accessible to the beach-going public, being located across the street from the beach. There is a very favorable prospect that a fast-food operation on the property would provide the Petitioner with a favorable return on his investment.

   
   

4. There are five parking spaces located on the Petitioner's property adjacent to the building. Petitioner proposes to utilize the same five parking spaces to serve his proposed restaurant. Under the City of Clearwater's building and zoning regulations, persons who operate restaurants are required to provide suitable parking areas to accommodate employees and customers. The

   regulations require that parking spaces be provided based upon the number of employees and based upon the number of fixed seats or the square footage of the restaurant. In order to operate the restaurant that he proposes, the Petitioner would be required to provide 68 spaces under the City's building and zoning regulations. Petitioner is seeking a variance from these requirements which would allow him to provide only five parking spaces.

   
   

5. There is considerable public parking located within close proximity to the Petitioner's property. There are approximately 1,500 metered parking spaces maintained by the City within four blocks of the property. The purpose of these spaces is not, however, to serve commercial enterprises, but rather to serve the beach-going public. While there are many such spaces, they are frequently filled during peak beach-going periods. To use the public parking facilities as parking for the Petitioner's proposed restaurant, customers would need to cross one or more streets. Petitioner contends that his proposed restaurant would not itself serve as a draw to the beach, but rather that his customers would be people who have already come to the beach. Petitioner contends therefore that there will be no additional demand for parking caused by his facility, and that he should not be required to provide any. While it is true that a "fast-food" sort of facility is not likely to serve as a substantial draw to the beach, it is also true that the Petitioner is predicting success for his facility based upon its highly visible location. It is likely that persons going to the beach would notice the restaurant and seek nearby parking locations. This would increase the demand for parking facilities in the area and would increase both vehicular and pedestrian traffic at what is already the busiest intersection on the beach.

   
   

6. The parking problem on Clearwater Beach is not new. During peak demand times, there has been a shortage of parking for many years. The parking shortage is not one that affects only the Petitioner's property. Any business located on Clearwater Beach would have the same difficulties that Petitioner has. The difficulties are caused by lack of available land for providing parking spaces, and by the high demand for the land that is available. For the Petitioner to provide parking that would comply with the City's zoning regulations, he would need to acquire approximately four-tenths of an acre of property. The cost of such an acquisition would be prohibitive. The same problem would exist for any business person in Clearwater who proposes to operate a restaurant. It is not a problem that is unique to the Petitioner's property.

   
   

7. There are a number of restaurants located on Clearwater Beach which do not provide parking facilities that would comply with the City's zoning regulations. There are at least two such restaurants in close proximity to the Petitioner's property. It appears that all of these restaurants were in operation prior to the adoption of the City's zoning regulations. While there was testimony that variances of the sort being sought by the Petitioner were once commonly granted, there was no competent evidence to support the contention. It does not appear that the City has enforced its zoning regulations in other than a uniform manner.

   
   

   CONCLUSIONS OF LAW

   
   

8. This appeal was properly brought in accordance with Section 131.0165 of the City of Clearwater Code.

9. The City of Clearwater building and zoning regulations [Section 131.016(e)] set the following criteria that must be met by an applicant for a variance from the terms of the regulations:

   
   

   1. That special conditions and circumstances exist which are peculiar to land, structure or building involved and which are not applicable to other lands, buildings or structures in the same district.

   2. That liberal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this chapter.

   3. That the special conditions and circumstances referred to in subsection a. above, do not result from the actions of the applicant.

   4. That granting the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other lands, structures or dwellings in the same district.

      No nonconforming use of neighboring lands, structures or buildings in the same district, and no permitted use of land, structures or buildings in other districts shall be considered grounds for the issuance of a variance.

      
      

      Petitioner has not established that his application for variance meets these criteria. The conditions and circumstances which have given rise to the application are not peculiar to the Petitioner's land or structure. Parking is a problem throughout the Clearwater Beach area. Any property owner in the area who wishes to establish a restaurant on his property would have the same difficulties meeting the zoning regulations as Petitioner has. Under these circumstances, granting the Petitioner's application would confer upon him a special privilege that is denied by the regulations to other property owners on Clearwater Beach.

      
      

10. In addition to not meeting the criteria set out in the City's building and zoning regulations, the Petitioner's application for variance should be denied because it is not in fact an application for variance at all. Under the regulations, the Petitioner would be required to provide 68 parking spaces in order to operate the restaurant he proposes. He proposes to provide five parking spaces. Such an extreme variation from the requirements of the building and zoning regulations would constitute an amendment to the regulations, not a variance from them. Amendments to the building and zoning regulations should be accomplished through ordinances adopted by the City Commission, not through individual variance requests.

11. The fact that restaurants are operating on Clearwater Beach without providing parking spaces required under the building and zoning regulations does not entitle the Petitioner to operate in that manner. It appears that other restaurants in the area have been in operation since before the building and zoning regulations were adopted. Their parking situations have therefore been "grandfathered" into existence, and are not the result of inconsistent action by the City.

FINAL ORDER

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

ORDERED:

That the decision of the City of Clearwater Board of Adjustment denying the application of Howard Hamilton for a variance from the off-street parking requirements of the City of Clearwater building and zoning regulations is hereby affirmed, and the application is hereby denied.

DONE AND ORDERED this 4th day of December, 1981, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

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 4th day of December, 1981.

COPIES FURNISHED:

Leon Whitehurst, Jr., Esquire

510 North Fort Harrison Avenue Clearwater, Florida 33515

William W. Gilkey, Esquire Richards, Nodine, Gilkey, Fite,

Meyer & Thompson, P.A.

1253 Park Street

Clearwater, Florida 33516

Thomas A. Bustin, Esquire City Attorney

Post Office Box 4748 Clearwater, Florida 33518

O. Stephen Thacker, Esquire 1266 Rogers Street Clearwater, Florida 33516

Mrs. Lucille Williams City Clerk

City of Clearwater

112 South Osceola Avenue Clearwater, Florida 33516

Docket for Case No: 81-001928

Orders for Case No: 81-001928