STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSE WELLMAN, et al., )

)

Petitioners, )

)

vs. ) CASE NO. 84-2720

)

WILLIAM A. TOIGA, )

)

Applicant, )

and )

)

CITY OF CLEARWATER, )

)

Respondent. )

)

RECOMMENDED 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 August 15, 1984, at Clearwater, Florida.

APPEARANCES

For Petitioners: Ruth Dillon, Pro Se

1628 Turner Street

Clearwater, Florida 33516

For Applicant: Roy Miller

5235 16th Street North

St. Petersburg, Florida 33703

For Respondent: Frank Kowalski, Esquire

Post Office Box 4748 Clearwater, Florida 33516

By letter dated July 20, 1984, Rose Wellman, et al., Petitioners, appeal the decision of the City of Clearwater, Board of Adjustment and Appeal on Zoning (Board) granting a special exception to William A. Toiga, Applicant, to operate a Level II Group Care Facility as a Youth Shelter at 1622 Turner Street, Clearwater, Florida. As grounds therefor it is alleged there is insufficient parking, automobile traffic will increase in the neighborhood, and use of the property as a Level II Group Care Facility is not a use compatible with properties in the neighborhood.

At the hearing Respondent called one witness; Petitioners called two witnesses and submitted 15 letters in opposition to the proposed facility, which were admitted as Exhibit 2; Applicant called seven witnesses; and a total of three exhibits were admitted into evidence.

FINDINGS OF FACT

1. The dwelling at 1622 Turner Street is a four-bedroom, three-bath residence on a corner lot 125 feet by 103 feet. The property is zoned RM-12 but is subject to a rezoning application to change the zoning to RM-8.

   
   

2. The property is owned by William A. and Esther Toiga, who purchased the property in 1975 as a residence in which they raised 12 children. The Toigas intend to sell the property to Alternate Human Services, a non-profit organization, for use as a Level II Group Care Facility as a Youth Shelter licensed to provide counseling services for five children at one time. The building is adequate for more than the number for which a license will be requested.

   
   

3. Alternate Human Services operates a similar facility in St. Petersburg, Florida. The proposed facility will provide counseling for runaway children and abused children between the ages of 10 and 17 years who are likely to be runaways. There will be no children classified as delinquent at the facility. The average stay of a child at the St. Petersburg facility is five days and a similar length of stay is anticipated at the proposed facility.

   
   

4. The neighborhood in the vicinity of the proposed facility is composed largely of elderly people, some of whom live alone; and most of whom oppose the proposed Facility. These residents anticipate a traffic increase due to counselors, police, workers, etc., coming to and going from the facility; they are concerned about their safety with runaway children residing close to them; they are concerned about reduced property values resulting from the operation of the proposed facility; and they are concerned for their safety when walking to and from local stores and banks where there are no sidewalks and pedestrians have to walk in the street. In short, the Petitioner, and those testifying in opposition to the requested special exception, would much prefer the facility be located elsewhere than in their neighborhood.

   
   

5. On the other hand, public officials, including police, juvenile specialists, a member of the Juvenile Welfare Board, and an HRS official in charge of licensing youth care facilities all testified that they have never experienced problems to the neighborhood as a result of such a facility as is here proposed, that no additional traffic is generated by such a facility, and that with the careful screening given the children admitted to such facility, no complaint against such a facility has been filed subsequent to tie licensing of the facility.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

7. Group care facilities are defined in Section 131.006, Building and Zoning Regulations of Clearwater, and the proposed facility meets that definition.

   
   

8. Section 131.016(h)(10) provides group care facilities are permitted as special exceptions where specifically provided for in the respective zoning districts.

9. Section 131.057 authorizes the granting of a special exception for Level II group care facilities where the zoning is RM-12 and Section 131.056 authorizes such a special exception where the zoning is RM-8. Section 131.2056 regulates family, group and congregate care facilities, and provides in part:

   
   

   Other group home populations not otherwise specifically provided for and characterized by a higher degree of transiency and greater need for therapeutic care shall be permitted only in the Level II group care facilities.

   
   

10. The proposed use is compatible with the zoning prescribed for the area. In such a case the burden is on the Petitioners to demonstrate by competent substantial evidence that the special exception is contrary to the public interest. Rural New Town, Inc. v. Palm Beach County, 315 So. 2d 478 (Fla. 4th DCA 1975). This, the Petitioners have not done. Even if the evidence is considered in the light most favorable to Petitioners, only an equipoise is created and this does not satisfy Petitioners' burden of proof. Florida Department of Health and Rehabilitative Services v. Career Service System, 289 So. 2d 412 (Fla. 4th DCA 1974). However, the evidence that similar facilities have created no problems in other areas is more credible than the testimony based on fear of what might occur. It is therefore

ORDERED that the appeal of Rose Wellman, et al., from the granting of a special exception to operate a Level II Group Care Facility at 1622 Turner Street, Clearwater, Florida, be dismissed and the granting of the special exception affirmed.

DONE AND ORDERED this 13th day of September, 1984, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)428-9675

FILED with the Clerk of the Division of Administrative Hearings this 13th day of September, 1984.

COPIES FURNISHED:

Mrs. Ruth Dillon 1628 Turner Street

Clearwater, Florida 33516

Mr. Roy Miller

5235 16th Street North

St. Petersburg, Florida 33703

Frank Kowalski, Esquire Assistant City Attorney Post Office Box 4748 Clearwater, Florida 33516

Ms. Lucille Williams City Clerk

Post Office Box 4748 Clearwater, Florida 33516

Mrs. Rose Wellman

1631 East Turner Street Clearwater, Florida 33516

Mrs. Ellen Garber

1619 East Turner Street Clearwater, Florida 33516

Ms. June Gaston

520 Keys ton Drive Clearwater, Florida 33516

William A. and Esther C. Toigo 1622 Turner Street

Clearwater, Florida 33516

Docket for Case No: 84-002720

Orders for Case No: 84-002720