Judges: K. N. AYERS
Agency: Contract Hearings
Latest Update: Dec. 31, 1981
Summary: Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 16 December 1981 at Clearwater, Florida. APPEARANCES For Petitioner: Neil R. Covert, Esquire 1212 South Highland Avenue Clearwater, Florida 33516Petitioner entitled to riparian rights to exemption from zoning laws that would deny the right to build marina docks that don't interfere with others.
81-2681STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PACIFIC ENVIRONMENTAL ) PROPERTIES, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 81-2681
)
CITY OF CLEARWATER, )
)
Respondent. )
)
FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 16 December 1981 at Clearwater, Florida.
APPEARANCES
For Petitioner: Neil R. Covert, Esquire
1212 South Highland Avenue Clearwater, Florida 33516
For Respondent: Frank Kowalski, Esquire
Post Office Box 4748 Clearwater, Florida 33518
By letter dated October 19, 1981, Pacific Environmental Properties, Inc., Petitioner, appeals the denial of its application for special exception to construct a Type A marina on its property described as Lots 19 and 20, Block A, Bayside Subdivision #5, Clearwater Beach, Florida. In its application for special exception to the Building and Zoning Regulations of the City of Clearwater Petitioner seeks to construct a boardwalk-like dock extending nine feet waterward of the seawall and 122 feet long with four finger piers for boat slips extending 24 feet from the dock and additional mooring piling extending 28 feet seaward of the end of the finger piers. The Board of Adjustment and Appeal on Zoning approved the application but for the boardwalk-like dock extending nine feet seaward of the seawall which was disapproved. This appeal concerns only the 1098 square feet of boardwalk-like dock extending nine feet from the seawall.
At the hearing one witness was called by Petitioner, one witness was called by Respondent and Exhibit 1, a plan of the proposed dock, and the transcript of the proceedings before the Board of Adjustment and Appeal on Zoning were received into evidence.
FINDINGS OF FACT
Petitioner's property is zoned CTF-28 which contemplates high density residential, motels and marinas.
Riprap at existing seawall along Petitioner's property extends four to six feet from the seawall, which makes it hazardous for boats to moor to the seawall.
By constructing a dock 122 feet long extending nine feet into the water Petitioner is, in effect, extending the beneficial use of its property nine feet into and over navigable waters.
Marina facilities are permitted in CTF-28 zoning as a special exception (Section 131.099, Clearwater Building and Zoning Regulations).
Other commercial properties in the vicinity have been granted special exceptions to construct the same type dock.
The proposed dock will be the same level as the finger piers extending therefrom to eliminate any step that could create a safety hazard.
No evidence was presented that the proposed project would be injurious to the neighborhood or otherwise detrimental to the public welfare other than the conclusion by the board that granting the special exception would allow this riparian owner to use public property, thereby creating a precedent which would be followed by others.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 131.016(f), Clearwater Building and Zoning Regulations, provides in pertinent part:
After a review of application and hearing thereon if the board finds as a fact that the proposed use is consistent with the general zoning plan and with the public interest, the board may permit special exceptions and uses.
Petitioner, as an owner of land bordering on navigable waters, has common law riparian rights appurtenant to the ownership of this property. These riparian rights consist of the right of ingress, egress, boating, bathing and fishing. 34 Fla. Jur. 126 WATERS AND WATERCOURSES. There is no indication Clearwater's Building and Zoning Regulations intended to modify or alter any riparian rights. Statutes (or regulations) in derogation of the common law are strictly construed. Board of Regents v. Coffey, 378 So.2d 52 (Fla. 1st DCA 1979). By permitting riparian property owners the right to construct docks to obtain egress, inter alia, to navigable channels it is obvious the zoning regulations contemplated that owners of property bordering on navigable waters retain the riparian rights appurtenant to such property. Accordingly, such owners have certain common law rights not held by non-riparian owners of property. These rights include the right to erect a dock to obtain access to and beneficial use of the navigable waters.
Zoning regulations are intended to promote the health, safety, morals, general welfare and quality of life in the city (Section 131.003, Building and Zoning Regulations) and, therefore, are enacted pursuant to the police powers of the city. Such powers are valid only when necessary to promote the health, safety and welfare of the citizens.
The construction of the proposed nine-foot-wide dock alongside the seawall will not adversely affect the health, safety or welfare of the citizens of Clearwater. Nor will the construction of such a dock interfere with the effective use of the navigable waters by others. The finger piers and piling extending 62 feet seaward of the seawall, which were approved by the board, will serve to block the use of the waters inshore from the outermost piling by the general boating public and the construction of the nine-foot dock would in no way aggravate this condition. It is, therefore,
ORDERED that the appeal be granted and Pacific Environmental Properties, Inc., be granted a special exception to construct a Class A marina as shown on Exhibit 1 for the use and benefit of the owners, lessees and their guests at the facility appurtenant to this marina.
DONE AND ORDERED this 31st day of December, 1981, in Tallahassee, Florida.
K. N. AYERS, 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 December, 1981.
COPIES FURNISHED:
Neil R. Covert, Esquire 1212 South Highland Avenue Clearwater, Florida 33516
Frank Kowalski, Esquire Post Office Box 4748 Clearwater, Florida 33518
Lucille Williams, City Clerk City of Clearwater
112 South Osceola Avenue Clearwater, Florida 33516
Docket for Case No: 81-002681
Orders for Case No: 81-002681
| Issue Date |
Document |
Summary |
|
Dec. 31, 1981 |
DOAH Final Order
|
Petitioner entitled to riparian rights to exemption from zoning laws that would deny the right to build marina docks that don't interfere with others.
|
