STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VIRGIL AND CATHERINE DUNIGAN, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0305

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, an appeal hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on April 2, 1986, in Clearwater, Florida, in accordance with Section 137.013 of the City's Land Development Code. The issue for determination in this proceeding is whether the Dunigans' application to conditionally use their property located at 904 Richards Avenue for Level 1 group care should be granted.

APPEARANCES

For Petitioner: Donald O. McFarland

311 South Missouri Avenue Clearwater, Florida 33516

For Respondent: M. A. Galbraith, Jr.

City Attorney

Post Office Box 4748 Clearwater, Florida 33518-4748

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. Virgil and Catherine Dunigan own property on a corner lot located at 904 Richards Avenue in Clearwater. The lot size is approximately 11,609 square feet and the house, with approximately 2,757 square feet, has five bedrooms, three baths and an enclosed garage. The Dunigans utilize the residence as a licensed adult congregate living facility (ACLF) and currently provide housing and care for five elderly residents.

   
   

2. The Dunigans' property is zoned as RS-8, which is a single-family residential zoning district under the City of Clearwater's Land Development Code. Within this RS-8 zoning district, the permitted uses are detached single- family dwellings, family care and accessory uses. Section 135.026, Land Development Code. The present use of the property as an ACLF for five residents falls within the definition of "family care" and is a permitted use.

3. The Dunigans now desire to increase the number of elderly residents from five to nine, which would change the nature of the use of the residence from "family care" to "Level I group care." The Land Development Code provides that a Level I group care use may be permitted as a conditional use within the RS-8 zoning district. Section 135.027. The Dunigans have been licensed by the State to operate an ACLF for nine residents.

   
   

4. The Land Development Code sets forth both general standards and supplementary standards by category of use which must be met before a conditional use is authorized. Section 136.025. Among the specific standards which must be met for group care facilities are those pertaining to floor space and lot size. Sections 136.025(c)(14) a and 136.020(e)(2) a and b. As pertinent to this proceeding, the floor space required for a group care facility is 1,600 square feet plus 200 square feet per additional resident beyond 6 persons. The minimum lot area for facilities which house 6 persons is 6,000 square feet, plus 1,500 square feet per additional resident.

   
   

5. The off-street parking spaces required for detached single family dwellings are two spaces per dwelling unit. Section 136.022(f)(4) a 1, Land Development Code. Group care facilities are required to provide two parking spaces for the first six residents, plus one space for each additional six residents or fraction thereof, plus one space per two nonresident employees or supervisors. Section 136.022(f)(4) a 5, Land Development Code. The Dunigans presently have two parking spaces on the property.

   
   

6. At the hearing before the Planning and Zoning Board and at the appeal hearing before the undersigned Hearing Officer, several neighbors residing in the immediate vicinity of the Dunigans' ACLF testified in opposition to the application. While they generally had no complaints regarding the operation of the existing facility with a total of five residents, they were concerned that any increase in the number of residents would present traffic and parking problems, would decrease property values, would result in an over-crowded condition for the facility's residents and would convert the nature of the facility to more of a business venture than a residential facility.

   
   

   CONCLUSIONS OF LAW

   
   

7. When evaluating an application for a conditional use, the general and the specific standards set forth in the City of Clearwater's Land Development Code must be considered. Since no use identified in the Code as conditional may be authorized unless those standards are met (Sections 136.025(b) and (c)), it is the applicant's burden to demonstrate compliance with each of the enumerated standards for approval.

   
   

8. While a "family care" adult congregate living facility with up to five residents is a permitted use within the Single- Family Residential "Eight" District, a facility with five to ten residents falls within the conditional use category which may only be permitted in that District if it meets the general and specific standards enumerated in the Code. Section 135.027. These general and specific standards are set forth in the Land Development Code in Sections 136.025(b)(1-7); 136.025(c)(14) a-f; and 136.020.

   
   

9. The Dunigans have demonstrated compliance with the specific numerical qualifications for approval with regard to both floor space within the residence and lot size. Section 136.020(e)(2) a requires that a group care facility which houses more than six persons contain 1,600 square feet plus 200 square feet per additional resident. The floor space required under the Code for nine residents

   would thus be 2,200 square feet. If the two supervisors are to be included as "persons" or "residents," the floor space required would be 2,600 square feet. In any event, the Dunigans' residence containing some 2,750 square feet of floor space Is of sufficient size to meet the Code requirements for a group care facility which serves nine clients. The lot area requirement for a group care facility which houses more than six persons is 6,000 square feet plus 1,500 square feet per additional resident. Section 136.020(e)(2) b. Thus, the lot size requirement for the nine clients which the Dunigans desire to serve is 10,500 square feet. There is a dispute between the parties as to whether the Code's requirement of "1,500 square feet per additional resident" refers only to clients or patients of the facility or also includes resident supervisors or employees of the facility. Section 136.020 pertains specifically to "special living facilities for other than the traditional, nuclear family." See Section 136.020(a). This section of the Land Development Code is designed to supplement the definitions and specific state standards which regulate these types of facilities, and the Code specifically makes reference to Chapter 400, Part II of the Florida Statutes, which pertains to adult congregate living facilities. It is thus instructive to refer to the statutes to determine the meaning of "resident" when interpreting the Land Development Code. Section 400.402(9), Florida Statutes, defines a "resident" as a person 18 years of age or older, residing in and receiving care from an adult congregate living facility. It is therefore concluded that the Code's requirement of the additional 1,500 square feet of lot area per additional "resident" refers to those persons receiving care at the facility, and does not include employees or supervisors who render or provide care at the facility. The Dunigans' lot size of 11,609 square feet is therefore sufficiently large to accommodate nine residents.

   
   

10. The remaining general and specific standards which relate to the conditional use of property for group care facilities encompass such considerations as compliance with various Codes and the land use plan, acceptability of ingress and egress drives, noise, light glares, landscaping and screening, parking areas, compatibility with surrounding uses, proper supervision, accessory uses and separation from similar facilities. The only standards at issue in this proceeding, in addition to the dimensional requirements discussed above, are those relating to parking and compatibility with the surrounding neighborhood.

    
    

11. It is undisputed that the Dunigans do not currently have on their property, nor are they now required to have a sufficient number of off-street parking spaces to accommodate nine residents. The Land Development Code requires that group care facilities with nine residents provide three parking spaces plus one space per two nonresident employees or supervisors, or, for the Dunigans' proposed facility, a total of four off-street parking spaces. Section 136.022(f)(4) a 1. The Dunigans have indicated their desire and willingness to comply with the Code's parking requirements and to consult with the City's traffic engineer as to an appropriate method for providing the four required parking spaces. Families residing in detached single- family dwellings often possess more than two automobiles, and it is not uncommon to observe more than two parking spaces per residence in a single-family dwelling area.

    
    

12. The remaining consideration at issue is whether a group care facility housing nine elderly residents would be compatible with the surrounding neighborhood. As brought out by the Dunigans at the hearing before the Planning and Zoning Board, the residents of this facility lead a very quiet existence and do not have frequent visitors. They do not presently disturb their neighbors and there was no evidence that the addition of four more residents would alter the situation or otherwise adversely impact the surrounding area. The Land

    Development Code's specific allowance of a group care facility as a conditional use within certain single-family residential districts constitutes a recognition that such a use may be a compatible use if it otherwise conforms to the applicable standards. The City of Clearwater has explicitly recognized and sanctioned the residential placement of those persons in need of special services and has acknowledged the potential compatibility of providing such services within residential neighborhoods in Section 136.020(f) of the Land Development Code. That subsection reads as follows:

    
    

    "(f) Separation. No family or group care facility shall be located within a

    radius of one thousand two hundred (1,200) feet of another family or group care facility, as measured along a straight line connecting the periphery of the properties at the closest points. The purpose of this separation criterion is to further the objective of deinstitutionalization by preserving a normal residential environment and thus to avoid the undue concentration of such facilities that would adversely impact an individual neighborhood and ultimately defeat the end objective of providing for such special living facilities."

    
    

13. Having demonstrated that a Level 1 group care facility housing up to nine residents (or persons who would receive care at the facility) would sufficiently comply with all the general and specific standards for approval as a conditional use, as set forth in the Code's Sections 136.025 and 136.020, the Dunigans' application for such a use is entitled to approval, with certain conditions.

FINAL ORDER

Based upon the findings of fact and conclusions of law recited herein, it is ORDERED that the application of Virgil and Catherine Dunigan to conditionally use their property located at 904 Richards Avenue as a Level 1 group care facility is approved with the following conditions:

1. No more than nine (9) persons may reside in and receive care from the facility at any one time; and

   
   

2. Four parking spaces shall be provided on the property, the construction and design to be in accordance with Section 136.022 of the Land Development Code.

DONE and ORDERED this 23rd of May, 1986, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1986.

COPIES FURNISHED:

Donald O. McFarland, Esquire

311 South Missouri Avenue Clearwater, Florida 33516

M. A. Galbraith, Jr.

City Attorney

City of Clearwater

P. O. Box 4748 Clearwater, Florida 33518

Cynthia Goudeau City Clerk

P. O. Box 4748 Clearwater, Florida 33518

Docket for Case No: 86-000305

Orders for Case No: 86-000305