STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INTERNATIONAL AUTOMOTIVE, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 86-1046

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

A final hearing was held in this case on May 16, 1986, in Clearwater Florida, before Donald D. Conn a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

Petitioner: Elizabeth J. Daniels, Esquire

Post Office Box 1368 Clearwater, Florida 33517

Respondent: M. A. Galbraith Jr., Esquire

City Attorney

Post Office Box 4748 Clearwater Florida 33518

International Automotive, Inc. a Petitioner herein, has petitioned for review of a decision of the Planning and Zoning Board of the City of Clearwater which denied its application on conditional use approval for a vehicle service facility in a "CO" zoning district.

At the hearing, Petitioner introduced three exhibits and called three witnesses, Peter E. Mangano, Lieselotte Wirschint and Kenneth W. Vogel. The City of Clearwater, Respondent, introduced one composite exhibit consisting of the minutes and materials from the previous meeting of the Planning and Zoning Board on this applications and called Paula Harvey, Planning Directors to testify. One public witness offered testimony in opposition to the application. The Land Development Code of the City of Clearwater was officially recognized at the hearings and Petitioner's motion to view the site involved in this case was denied.

The parties were allowed to submit post hearing proposed findings of facts conclusions of law and proposed recommended orders- and a ruling on each timely filed proposed finding is included in the Appendix to this Final Order. No transcript of the hearing was filed.

FINDINGS OF FACT

1. In 1984 Lieselotte Wirschint and her husband purchased the subject property located at Lots 14 and 15, Bidwell Oak Wood Additions otherwise identified as 606-608 North Ft. Harrison Avenues, Clearwater, Florida. This

   purchase was conditioned on their obtaining approval of a special exception for an automotive repair shop on the subject property. The Wirschints intended to relocate their business known as International Automotive, Inc.a Petitioner herein, to the subject property. As of February 6, 1986, ownership of said property is in the name of Petitioner.

   
   

2. The subject property is in a "CO" zoning district (general commercial). An automotive service facility is not a permitted use in a "CO" zoned are,; and therefore conditional use approval must be obtained.

   
   

3. Petitioner applied for conditional use approval on or about February 11, 1986 and on March 4, 1986 the Planning and Zoning Board disapproved Petitioner's application for conditional use approval. Paula Harvey, Planning Directors recommended disapproval because her review of the application indicated the proposed use would be incompatible with the surrounding neighborhood; traffic engineering concerns about an apparent lack of adequate parking on site, and her concern about noise that would be caused by the proposed use.

   
   

4. The neighborhood around the subject property consists of mixed uses.

   To the west and south are residential uses, to the north there is a similar auto service facility, and across Ft. Harrison Avenue there is an auto tire store.

   There are also commercial office and special care properties, a funeral home and a school in the surrounding neighborhood. No buffer exists between the residential areas and the subject property.

   
   

5. The City of Clearwater requires an auto service facility to have four parking spaces for each service bays plus one parking space for every two employees. The service bays themselves do not count as a parking space. Although a rough sketch of the site was provided to city staff by Peter E. Mangano on behalf of Petitioner, it was not a part of Petitioner's application and was not provided to Paula Harvey or the Planning and Zoning Board. No plans or specifications were formally submitted with this application. In any event, the rough sketch shows only ten parking spaces and three service bays. Petitioner has two employees. With three service bays and two employees, the Petitioner would have to provide thirteen parking spaces to comply with Respondent's parking space requirements. Thus, Petitioner has not demonstrated that its application or supplemental rough sketch provides the required spaces for parking.

   
   

6. Petitioner proposes to construct a concrete structure on the subject property, with concrete floor. Air wrenches would be used in the proposed business, and service bay doors will normally be open between 8:00 a.m. and 5:00 p.m., Monday through Fridays when the business would be open.

   
   

7. Petitioner obtained a "special exception" in 1984 to operate an auto service facility on this site and an extension was granted until October 25, 1985. However, Petitioner never acted under the "special exception" and it expired prior to this application for conditioned use approval.

   
   

8. The current Land Development Code for the City of Clearwater took effect October 13, 1985 and has replaced the category of "special exception" with "conditional use," for which the Petitioner applied on or about February 11, 1986.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause. Section 120.65, Florida Statutes, Sections 137.013, 137.021, City of Clearwater Land Development Code.

   
   

10. Section 136.025 of the Land Development Code sets forth general and supplemental standards for conditional use approval which include the following:

    
    

    1. The use shall comply with the land use plan and all applicable terms con- tained in this development code, the building code, and the Clearwater Code of Ordinances.

       (3) Noise generated from the use shall not unreasonably diminish the use, enjoyment or value of surrounding properties.

       1. Sufficient area shall be afforded for parking in accord with section

          136.022 of this chapter.

       2. The use shall be reasonably com- patible with surrounding uses as measured by building setbacks, open spaces; hours of operation, building and site appearance, architectural design and other factors which may be deter- mined appropriate to assess the compat- ibility of uses.

       
       

       See also Section 137.011(d). In additions Section 136.022(f)(4)b specifies that four parking spaces must be provided for each service bay in a vehicle service facility, plus one additional parking space for every two employees. The service bays themselves do not count as a parking space.

       
       

11. Sections 136.025 and 137.011 above specify that a conditional use may not be approved unless all of the applicable standards have been met. The applicant for a conditional use, in this case the Petitioner, has the burden to establish that the required standards have been met, and in this case Petitioner has failed to meet this burden.

    
    

12. It is clear that sufficient parking is not proposed on site. Concerns about the noise and compatibility of the proposed use with the surrounding area have been expressed by the Planning Director and one member of the public who testified. Petitioner offered no competent substantial evidence of compatibility or of noise prevention efforts which it would undertake during business hours. This will be a concrete structure with concrete floors and open service bay doors during operation. Therefore, Petitioner has failed to meet its burden of proof and has specifically failed to establish that its application for conditional use meets the requirements of the City of Clearwater Land Development Code.

Based upon the foregoing, it is ORDERED that Petitioner's application for conditional use approval is DENIED.

DONE and ORDERED this 10th day of June, 1986, in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The Oakland Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1986.

APPENDIX (DOAH Case No. 86-1046)

Rulings on Petitioner's Proposed Findings of Fact:

1. Adopted in part in Finding of Fact 7.

2. Adopted in Finding of Fact 1.

3. Rejected as irrelevant and unnecessary.

4. Adopted in part in Finding of Fact 7.

5. Rejected as a summarization of testimony and not a proposed finding of fact, additionally rejected in Finding of Fact 5. Additional evidence which Petitioner attached to proposed finding of fact is excluded and has not been considered.

6.-7. 7 Rejected as irrelevant and unnecessary.

1. Adopted in Finding of Fact 7.

2. Adopted in Finding of Fact 8.

3. Adopted in Finding of Fact 2.

4. Adopted in part in Findings of Fact 3, 6, but otherwise rejected in Finding of Fact 5.

12.-13. Rejected as irrelevant and unnecessary. Rulings on Respondent's Proposed Findings of Fact.

1. Adopted in Finding of Fact 1.

2. Adopted In Finding of Fact 2.

3. Rejected as a conclusions of law and not a proposed finding of fact.

4. Adopted in Finding of Fact 3.

5. Rejected as irrelevant.

6. Adopted in part in Finding of Fact 6.

7. Adopted in part and rejected in part in Finding of Fact 5.

COPIES FURNISHED:

Elizabeth J. Daniels, Esquire Post Office Box 1368 Clearwater, Florida 33517

M. A. Galbraith Jr., Esquire City Attorney

Post Office Box 4748 Clearwater, Florida 33518

Cynthia Goudeau, City Clerk Post Office Box 4748 Clearwater, Florida 33518

Docket for Case No: 86-001046

Orders for Case No: 86-001046