STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE B. WILLIAMS, )

)

Appellant, )

)

vs. ) CASE NO. 85-2701

)

CITY OF CLEARWATER, )

)

Respondent. )

)

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 28, 1985, at Clearwater, Florida.

APPEARANCES

For Appellant: Donald O. McFarland, Esquire

311 South Missouri Avenue Clearwater, Florida 33516

For Respondent: Frank X. Kowalski, Esquire

Post Office Box 4748 Clearwater, Florida 33318

By letter dated August 2, 1985, George B. Williams, Appellant, appeals the decision of the Board of Adjustment and Appeal on Zoning to deny a special exception to expand an existing Adult Congregate Living Facility from five to ten residents.

At the commencement of the hearing the evidence presented at the Board hearing was admitted. Thereafter, Appellant called two witnesses, the City of Clearwater called one witness, six public witnesses testified in opposition of a special exception, and two exhibits were admitted into evidence. Exhibit 1 is a composite of 13 letters opposing the special exception and Exhibit 2 is a transcript of the proceedings before the Board.

FINDINGS OF FACT

1. Appellant owns the property located at 1430 Palmetto Street, Clearwater, Florida. The area is zoned RS-50, a zoning for single family residents. The house located thereon is a three-bedroom, two-bath home with a garage and carport. Appellant proposes to enclose the garage to provide two additional bedrooms and a bath.

   
   

2. The lot on which this house is sited contains 13,000 square feet. The minimum lot size for RS-50 zoning is 5,000 square feet. The structure exceeds all setback requirements of the Code. Most of the homes in this neighborhood have driveways to the garages while Appellant's property has a circular drive in front of the house.

   
   

3. The structure meets the City of Clearwater's fire code and to be licensed as an Adult Congregate Living Facility (ACLF) must meet all requirements of the Department of Health and Rehabilitative Services.

   
   

4. Appellant has a housekeeper on the premises at all times to prepare the meals and take care of the residents. Appellant's son manages the property and the son's wife visits the premises daily to do the necessary shopping, take the residents to doctor appointments, shopping, or for outings. Only one automobile remains at the premises on a 24-hour basis. Some residents do not have any family locally and visitors average one every two weeks per resident.

   
   

5. Use of this property as an ACLF is reasonably compatible with the neighborhood. Excessive traffic will not be generated by use of this property as requested and the requirements for on-site parking is satisfied.

   
   

6. Although an ACLF is a business, it is operated similar to a home in that business hours are not such that any disturbance of the neighborhood will occur and insignificant additional traffic will be generated as a result of granting this special exception.

   
   

7. Neighbors generally have no complaints regarding the operation of the existing ACLF with a total of five residents but strongly oppose any increase in the number of residents. As grounds for opposing the increase these witnesses cited expected decrease in property values, anticipated increase in traffic and traffic hazards to the elderly residents of the ACLF who may

   walk along the street, excessive numbers of vehicles at the premises for which off-street parking is not available, a general dislike for any business activity conducted in the neighborhood, their opinion that an ACLF is incompatible with the neighborhood, and that Appellant will reap a financial bonanza if the special exception is granted. No statistical evidence was presented to support any of these contentions.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Special exceptions are provided for in the City of Clearwater Building and Zoning Regulations. Section 131.043 provides for special exceptions for ACLF's in RS-50 zoning.

   
   

10. Section 131.016(h)(18) specifically relates to congregate and group care facilities and establishes a permitted density of 10 to 15 residents on a lot area not less than 8,000 square feet; off-street parking requirement of two spaces for the first six residents and one additional space for each six additional residents, and a requirement that such use be reasonably compatible for the surrounding neighborhood as provide for in paragraph (g) above of this section.

    
    

11. Of those provisions in Section 131.016(g) only (11) is in contention. Subsection (11) thereof provides:

    
    

    That the use will be reasonably compatible with surrounding uses in its function, its hours of operation, the type and amount of traffic to be generated, and building size and setbacks, its relation to land values, and other factors that may be used to measure compatibility.

    
    

12. Here, the Appellant has met all of the zoning code requirements such as lot size, parking, setbacks, traffic generation, and only compatibility with the neighborhood is really contested. By authorizing Level I group care facilities in areas zoned ES-50, the zoning code has determined such use to be compatible with the zoning. In Rural New Town, Inc. v. Palm Beach County, 315 So. 2d 478 (Fla. 4th DCA 1975), the court stated:

    In the case of a special exception, where the applicant has otherwise complied with those conditions set forth in the zoning code, the burden is upon the zoning authority to demonstrate by competent substantial evidence that the special exception is contrary to the public interest. Yokley on Zoning, Vol. 2, p. 124. A special exception is a permitted use to which the applicant is entitled unless the zoning authority determines according to the standards in the zoning ordinance that such use would adversely affect the public interest. Berlant v. Zoning Hearing Bd. of Lower Merion Tp., 1971, 2 Pa. Cmwlth, 583,

    279 A. 2d 400. See also Turner v. Hammond, 1973, 270 Md. 41, 310 A. 2d 543.

    
    

13. Once the ordinance criteria were established, it was the Board's duty to grant the special exception unless the Board also determined (as it did not) that such use would adversely affect the public interest. Odham v. Peterson, 398 So. 2d 875 (Fla. 5th DCA 1981).

    
    

14. No credible evidence was submitted to the Board or at this hearing to show that granting the special exception would adversely affect the public interest.

    
    

15. Appellant, following the Board hearing and again at this hearing, stated that no more than eight residents would be housed at the facility if the special exception is granted. This self-imposed limitation will be made a part of this order.

It is

ORDERED that George B. Williams be granted a special exception to operate an Adult Care Living Facility at 14301 Palmetto Street, Palm Terrace Sub. Unit 1, Lot 5, Clearwater, Florida, having a maximum of eight residents.

DONE AND ORDERED this 19th day of September, 1985, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1985.

COPIES FURNISHED:

Frank Kowalski, Esq. Acting City Attorney Post Office Box 4748

Clearwater, Florida 33518

Donald O. McFarland, Esq.

311 South Missouri Avenue Clearwater, Florida 33516

Lucille Williams City Clerk

Post Office Box 4748 Clearwater, Florida 33518

Docket for Case No: 85-002701

Orders for Case No: 85-002701