STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLEARWATER BEACH SUNSET HOTEL ) ASSOCIATES, LTD. (Hilton Inn), )

)

Petitioner, )

)

vs. ) CASE NO. 81-2996

)

CITY OF CLEARWATER, )

)

Respondent, )

and )

) DAVID S. GIBSON and JEANNE R. ) MILLER, )

)

Intervenors. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on March 10, 1982, in Clearwater, Florida. Following the hearing, the parties were granted leave to submit proposed findings of fact and conclusions of law, which were received and considered by the undersigned in preparation of this order. 1/

APPEARANCES

For Petitioner: George W. Greer, Esquire

302 South Garden Avenue Clearwater, Florida 33516

For Respondent: Thomas A. Bustin, Esquire

City Attorney

Post Office Box 4748 Clearwater, Florida 33518

For Intervenors: David S. Gibson and

Jeanne R. Miller 675 Gulf View Drive

Clearwater Beach, Florida 33515

On November 12, 1981, the Respondent, City of Clearwater, granted a permit to Petitioner, Sunset Hotel Associates, Ltd. (Hilton Inn), for a special exception to erect a dock (no slips or tie poles) on lots 1 and 2, block D, Bayside Shores, which is located at 715 South Gulf View Boulevard and zoned CTF-

28 (high density commercial/tourist). On November 18, 1981, the Intervenors appealed the grant of the special exception to Petitioner to construct the subject dock in the City of Clearwater, County of Pinellas, State of Florida.

The instant case arises from an appeal of the decision by Respondent, pursuant to Section 35.10, Code of Ordinances. That section provides a process for any party in interest 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 35.10(e) and (1), Code of Ordinances, and Section 120.65(6), Florida Statutes, the undersigned hearing officer was designated as the zoning appeal hearing officer.

FINDINGS OF FACT

1. Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received, including the parties' proposed findings of fact and conclusions of law, the following relevant facts are found.

   
   

2. Petitioner owns and operates the Hilton Inn located generally on the southern portion of Clearwater Beach, Florida. Its ownership extends from the seawall in the area under consideration seaward for a distance of fifty (50) feet. The Hilton Inn is situated within an area currently zoned by the City of Clearwater as CTF-28 (high density commercial/tourist). This district provides for a complete range of motel/hotel development with a major emphasis on tourist facilities. The primary permitted uses and structures within the CTF-28 zone district are combination hotel, motel, apartment, and business buildings, apartment houses, townhouse development and restaurants.

   
   

3. A number of special exceptions to the permitted uses are authorized within a CTF-28 district. Such exceptions include three types of marina facilities. The special exception granted Petitioner by the Board of Adjustment and Appeal on Zoning is considered to be an exception to construct a marina facility.

   
   

4. The immediate area may be generally described as a combination of high- density residential and hotel buildings and structures catering to tourists, part-time, and permanent residents.

   
   

5. The most seaward portion of the dock will be approximately 225 feet from the closest point of the channel of Clearwater Pass and the dock itself will be between 250 and 200 feet west of the bridge under which the narrow portion of Clearwater Pass and the swiftest portion of the current flows.

   
   

6. The primary concern of the adjacent property owners who testified in the subject hearing is a fear that the proposed dock will block pedestrian traffic along the beach and that persons who use the dock will be in jeopardy due to the swift currents in the adjoining waters. (Testimony of Arthur Marini, James Scalderbank, Frank Marrow, Don Guntherson, and Intervenors Gibson and Miller.)

   
   

7. Bill Burchfield, director of the Marine Department, City of Clearwater, is in charge of monitoring docks, bridges, and similar structures for Respondent. Director Burchfield examined the subject application for its navigational impact and determined that the dock, as proposed by Petitioner, would have no discernible adverse impact on navigation.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapters 120.57(1) and 120.65(6), Florida Statutes, and Section 35.10, Code of Ordinances of the City of Clearwater.

   
   

9. The parties were duly noticed pursuant to the Notice provisions of Chapter 120, Florida Statutes.

   
   

10. Section 163.170(6), Florida Statutes (Supp. 1980), defines a special exception in pertinent part as:

    
    

    A use that will not 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.

    
    

11. Stated differently, a special exception may be considered as an exception from a general provision of a zoning ordinance contained in the ordinance itself that is permissible unless shown to be contrary to the public welfare. Under the above-statutory authority, Respondent has established special exceptions within particular zoning districts. As is pertinent here, a number of special exceptions are permitted within the CTF-28 district in which Petitioner's property is located and which are enumerated in Section 17.03, Code of Ordinances. Subsection 17.03(4), of the code, specifically authorizes "marine facilities, types A, B, and C."

    
    

12. The Board of Adjustments and Appeal on Zoning has determined that the proposed use of the subject facility is consistent with the intent of the Land Use Plan; pertinent zoning ordinances and is in keeping with the public interest. As such, the board acted within its mandate as is required pursuant to Section 35.09(6), Code of Ordinances. Having determined that the board has complied with the criteria and that the Petitioner has demonstrated its entitlement to the special exception, the action of Board of Adjustment and Appeal on Zoning in the grant of the special exception to Petitioner is in keeping with the intent of the Land Use Plan duly adopted by Respondent. In this regard, the Board has prescribed certain appropriate conditions and safeguards 2/ which will further enable the Petitioner to construct the facility to conform with this ordinance.

Based on Petitioner's stipulation and agreement to the conditions and safeguards placed upon the grant of this special exception by the Board of Adjustments and Appeal on Zoning, and the remaining parties having failed to demonstrate that the grant of the special exception herein is not in keeping with the Land Use Plan which is in effect, the appeal by the Intervenors is DENIED.

DONE and ENTERED this 6th day of May, 1982, in Tallahassee, Florida.

JAMES E. BRADWELL, 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 6th day of May, 1982.

ENDNOTES

1/ To the extent that the parties' proposed findings of fact and conclusions of law are not incorporated herein, said proposed findings and conclusions were deemed irrelevant, immaterial, or not otherwise supported by the evidence of record.

2/ These conditions and safeguards were aimed at reducing the potential for safety hazards, a concern of Respondent, Intervenors and some area residents.

COPIES FURNISHED:

George W. Greer, Esquire

302 South Garden Avenue Clearwater, Florida 33516

Thomas A. Bustin, Esquire City Attorney

Post Office Box 4748 Clearwater, Florida 33518

David S. Gibson and Jeanne R. Miller 675 Gulf View Drive

Clearwater Beach, Florida 33515

Lucille Williams, City Clerk City of Clearwater Clearwater, Florida 33518

Docket for Case No: 81-002996

Orders for Case No: 81-002996