STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLEARWATER BEACH COMMUNITY CHURCH, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0111

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

On May 19, 1989, a formal hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Margot Pequignot, Esquire

McMullen, Everett, Logan, Marquardt & Cline, P.A. Post Office Box 1669 Clearwater, Florida 34617

For Respondent: Miles Lance, Esquire

Assistant City Attorney Post Office Box 4748

Clearwater, Florida 34618-4748 STATEMENT OF THE ISSUES

The issue in this case is whether the evidence sustains the decision of the City of Clearwater Planning and Zoning Board to deny the application of the Appellant, the Clearwater Beach Community Church (the Church), for a conditional use permit for a day care center.

PRELIMINARY STATEMENT

Under Section 137.011, Clearwater City Code, the Planning and Zoning Board (the Board) is authorized to consider applications for conditional use. The Code requires the Board to approve a conditional use upon a determination that certain general and specific standards are met. The Board has authority to impose conditions and restrictions upon the property benefited by the conditional use "as may be necessary to comply with the standards" set out in Section 137.011(d) of the Code.

On December 13, 1988, the Board considered the Church's application. Five adjacent property owners spoke in opposition to the conditional use, primarily on the bases that the children would generate too much noise and that the presence of the day care center would decrease the value of their property. The

City planning staff also recommended that the Board deny the conditional use because the Church's written application did not adequately address fencing and noise buffering for the outdoor play area; procedures for loading and unloading children in the morning and afternoon; and parking for staff members.

A motion for continuance failed on a vote of three to four. The Board then denied the Church's request for conditional use on a vote of four to three.

Section 137.013 of the Code provides a two-step administrative process relating to variances and conditional uses. A Division of Administrative Hearings Hearing Officer is empowered to review Board decisions upon the timely filing of a notice of appeal by any party in interest. The church filed its appeal from the Board's decision on December 22, 1988. After one continuance on the Church's unopposed motion, an administrative hearing was held on May 19, 1989.

FINDINGS OF FACT

1. Clearwater Beach Community Church (the Church) applied to the City of Clearwater for a conditional use permit on November 14, 1988. The conditional use requested by the Church was to establish and operate a non-profit day care center for no more than 49 children, ages 2 to 5. The proposed center would be operated on the Church property by Latchkey Services for Children, Inc., a non- profit organization which provides subsidized child care. Latchkey currently operates six preschool centers and 36 school-age centers in Pinellas County.

   The Church's proposed center would operate weekdays from approximately 6:30 a.m. to 6:00 p.m. and would accommodate parents who live or work on Clearwater Beach. Five staff members, or one adult per 10 children, would be employed to operate the center. No day care centers currently exist on Clearwater Beach.

   
   

2. Minimum standards for day care centers in Pinellas County are set by the Pinellas County License Board for Children's Centers and Family Day Care Homes. The Church's proposed center meets all standards set by the licensing board. Based on the available classroom space at the Church, the largest group of children would be limited to 13.

   
   

3. The proposed outdoor play area is 81 feet by 33 feet and would be utilized by no more than 13 children at one time. At least one adult would be present at all times to supervise the children's outdoor play periods. The play area is enclosed on the south and west sides by Church buildings and on the north side by a six (6) foot high cement block wall. A fence is to be constructed on the east side to fully enclose the play area. Outside play time would be almost continuous between the hours of 8:00 a.m. and 5:30 p.m.

   
   

4. Parents would drop off their children between 6:30 a.m. and 8:00 a.m. in the circular drive area on the east side of the Church's property. Three areas with a total of 14 parking spaces have been designated as parking areas for day care center employees and for parents required to park their cars when dropping off or picking up their children. In addition, a city- owned public parking lot is located directly across Bay Esplanade to the south of the Church. On-street parking exists on Poinsettia Avenue on the west side of the Church.

   It is to be anticipated that some parents will walk or use public transportation to deliver their children to the school. Parents will pick up their children between 4:30 p.m. and 6:00 p.m.

   
   

5. The Church property is zoned Public/Semi-Public. To the immediate south across Bay Esplanade lies city-owned property on which are located, from west to

   east: public tennis courts; a public metered parking lot; public basketball courts; a city youth recreation center; and a public boat ramp. To the immediate west, from south to north, are a motel, an apartment building and a public soccer field. To the north on the Poinsettia (west) side, lies, from south to north, a vacant privately-owned lot, a triplex and a 13-unit apartment building. To the north on the Cyprus Avenue (east) side, and directly behind the Church's sexton residence, is a four-unit, two-story apartment house which is partially occupied by its owner. Across Cyprus Avenue to the east of the Church property, from south to north, are a motel and several duplexes.

   
   

6. The area surrounding the Church is a quiet area inhabited by a large proportion of permanent residents, mostly elderly retirees, and by residents of motels who choose the area because it is quiet. Some of these residents live close enough to the proposed day care center to be disturbed by the noise that would surely result, even with the proposed noise buffers, from the process of dropping off and picking up the children each day, five days a week, especially the process of dropping them off between approximately 6:30 a.m. and 8:00 a.m., and from the continuous use of the play area by 10-13 children for approximately

   8 hours a day, five days a week. Because of the character of the neighborhood, the noise disturbance could reasonably be expected to have an adverse impact on property values of both the motels and residences in the immediate area.

   
   

   CONCLUSIONS OF LAW

   
   

7. Appeals from decisions of the City of Clearwater Planning and Zoning Board (Board) are governed by Section 137.013 of the Clearwater Land Development Code, which provides in pertinent part:

   
   

   1. Purpose. It is the purpose of this section to provide an administrative process for appealing decisions rendered on variances and conditional uses by the development code adjustment board and the planning and zoning board respectively, prior to any available recourse in a court of law. The function of the hearing officer shall be to serve as the second step of a two-step administrative process relating to variances and conditional uses.

      * * *

      1. Conduct of the hearing. Conduct of the hearing before the hearing officer shall be as follows.

         * * *

         1. The hearing officer shall have the authority to determine the applicability and relevance of all materials, exhibits and testimony and to exclude irrelevant, immaterial or repetitious matter.

         2. The hearing officer is authorized to administer oaths to witnesses.

         3. A reasonable amount of cross-examination of witnesses shall be permitted at the discretion of the hearing officer.

         * * *

      2. Decision. The decision of the hearing officer shall be based upon the following criteria and rendered as follows:

      
      

      1. The hearing officer shall review the record and testimony presented at the hearing before the board and at the hearing officer relative to the guidelines for consideration of conditional uses or variances as contained in sections 137.011 or 137.012, respectively. Although additional evidence may be brought before the hearing officer, the hearing shall not be deemed a "hearing de novo," and the record before the board shall be incorporated into the record before the hearing officer, supplemented by such additional evidence as may be brought before the hearing officer.

      2. The hearing officer shall be guided by the city comprehensive plan, relevant portions of the City Code of Ordinances and established case law.

      3. The burden shall be upon the appellant to show that the decision of the board cannot be sustained by the evidence before the board and before the hearing officer, or that the decision of the board departs from the essential requirements of law.

      4. The hearing officer's determination shall include appropriate findings of fact, conclusions of law and decision in the matter of the appeal. The hearing officer may affirm or reverse the decision of the board, and may impose such reasonable conditions as the board may have imposed.

      
      

      These provisions, some of which were enacted by Ordinance No. 4419, effective August 20, 1987, appear to address questions raised in previous cases before this Hearing Officer as to whether the proceeding was intended to afford an appellate review of the board decision or a de novo proceeding. Cf. Final Order, Buchholz v. Development Code Adjustment Board, et. al., Case No. 86- 3696, entered February 17, 1987. They appear to provide for a hybrid proceeding that is an appellate review on the one hand, in the sense that the issue is whether the competent, substantial evidence sustains the board's decision, and a de novo proceeding on the other hand, in the sense that additional evidence can be adduced at the appeal hearing. In other words, whether the Board's decision

      is sustainable under the pertinent law is tested not only against the evidence presented before it but also against the evidence presented before the Hearing Officer.

      
      

8. The property at issue is zoned Public/Semi-Public. Section 135.153, Clearwater Land Development Code, generally describes this zoning designation:

   
   

   This district is created to reserve land areas for institutional uses. Permitted uses include churches, community service organizations, schools, hospitals, libraries and government offices and facilities.

   
   

9. Section 135.155 of the Code provides:

   
   

   Within Public/Semi Public Districts, only the following uses (and structures designed for such uses) shall be permitted:

   
   

   1. Churches, synagogues, monasteries and other places of worship, including parsonage and administrative offices as may be integral to the use.

   2. Nonprofit social or community services.

   3. Public and private elementary, middle and high schools.

   4. Universities, colleges, academies and similar facilities for learning, including dormitories, student centers and other facilities as may be integral to the use.

   5. Hospitals.

   6. Government offices and facilities.

   7. Public works projects and utility substations/facilities.

   8. Cemeteries, columbariums and mausoleums.

   9. Accessory uses.

   
   

10. Section 135.156 of the Code provides:

    
    

    Within Public/Semi Public Districts the following uses may be permitted as conditional uses:

    
    

    1. Nursing homes.

    2. Transportation stations.

    3. Marina facilities.

    4. Alcoholic beverage sales (consumption on premises); in conjunction with a fraternal organization or a student center.

    5. Child day care.

    6. Commercial parking.

11. Section 137.011 of the Code governs conditional use permit proceedings before the Board and provides in pertinent part:

    
    

    1. Purpose. It is the purpose of this section to establish a process that enables and facilitates review of those uses identified as conditional uses in this development code in order to determine the propriety of a particular conditional use in a given location.

       
       

    2. Authorization. The planning and zoning board may, under the prescribed standards and procedures contained herein, authorize the construction or initiation of any conditional use that is expressly permitted as a conditional use in a particular zoning district; however, the city reserves full authority to deny any request for a conditional use, to impose conditions on the use, or to revoke approval at any time, upon a finding that the permitted conditional use will or has become unsuitable and incompatible in its location as a result of any nuisance or activity generated by the use.

       * * *

       1. Standards for approval. A conditional use shall be approved by the board only upon determination that the application and evidence presented clearly indicate that:

          
          

          1. The use complies with the land use

             plan.

          2. The use complies with all other

             applicable provisions of this development code.

          3. The use complies with the applicable conditional use standards for the proposed use contained in chapter 136, section 136.025.

          4. The use shall be consistent with the community welfare and not detract from the public's convenience at the specific location.

          5. The use shall not unduly decrease the value of neighboring property.

          6. The use shall be compatible with the surrounding area and not impose an excessive burden or have a substantial negative impact on surrounding or adjacent uses or on community facilities or services.

       2. Conditions and restrictions on approval. In approving a conditional use, the planning and zoning board may impose conditions and restrictions upon the property benefited by the conditional use as may be

       necessary to comply with the standards set out above, to reduce or minimize any potentially injurious effect of such conditional use upon

       other property in the neighborhood, and to carry out the general purpose and intent of this development code. Failure to comply with any such condition or restriction imposed by the board shall constitute a violation of this development code. Those conditional uses which the planning and zoning board approves subject to conditions, shall have specified by the board the time allotted to satisfy such conditions.

       
       

12. Section 135.025 of the Code provides general and specific standards for applications for a conditional use permit, including the following provisions pertinent to this proceeding:

    
    

    1. General standards. . . . (3) Noise generated from the use shall not unreasonably diminish the use, enjoyment or value of surrounding properties. (5)

       Sufficient landscaping and screening shall be provided to diminish noise, reduce glare and buffer high activity areas and objectionable views (including, but not limited to trash disposal facilities) such that the use will not adversely affect the use, enjoyment or value of surrounding properties. . .

       
       

    2. Supplementary Standards, by category of use. . . . (8) Child day care may be permitted within the Limited Office, Neighborhood Commercial, Commercial Center, and Semi-Public Districts upon determination that:

    
    

    1. Sufficient on-site outdoor play areas shall be provided and so designed as to ensure user safety.

    2. Appropriate on-site loading and unloading areas shall be provided which are sufficiently distant from other trafficways so as to ensure user safety.

    3. The use shall comply with all of the general standards contained in preceding paragraph (b).

    
    

    Taken together, the pertinent Code provisions place on the applicant for a conditional use permit the burden of showing that its application complies with the standards for approval set out in Section 137.011(d), including, of particular importance in this case, paragraphs (3) (and therefore also Section 136.025(b) (3) and (5) and (c)(8)), (5) and (6).

    
    

13. The evidence presented at the hearing before the Hearing Officer addresses the Board's concerns about the adequacy of the size of the outdoor play area, about the fencing, about the parking and about the system to be used for dropping off and picking up the children at the proposed day care center. (Safety and traffic impact never were serious concerns of the Board.) In light

    of this additional evidence, the Board's decision to deny the Church's application for these reasons no longer is sustainable.

    
    

14. On the other hand, even considering the additional evidence presented at the appeal hearing, the Board's decision continues to be sustainable under Section 137.011(d)(5) and (6) and Section 135.025(b)(3) and (5).

    
    

15. This case is distinguishable from the cases cited by the Church in its arguments for reversal of the Board.

    
    

    In Irvine v. Duval Planning Commission, 495 So. 2d 167, (Fla. 1986), a 1983 applicant met all of the applicable Duval County standards for a zoning exception to sell wine and beer. The applicant spoke in his own behalf at the hearing, testifying that the premises had been operated as a bar and sandwich shop for 40 years, and the application itself stated that similar zoning exceptions had been granted for the property in 1977, 1980 and 1981. There was no evidence in opposition (although the chairman of the zoning commission reported on the record that he had received telephone calls expressing opposition.) The zoning commission voted 7-0 to deny the application. The court decision holds that, under those facts, constitutional due process requirements would place the burden of proof on the zoning commission to prove through record evidence that the proposed use does not meet the applicable standards and in fact is adverse to the public interest.

    
    

    The opinion in Flowers Baking Co. v. City of Melbourne, 14 F.L.W. 141 (Fla.

    5th DCA 1989), which follows the decision in Irvine v. Duval County Planning Commission, supra, does not reveal enough of the facts involved to assess its precedential value. Apparently, the applicant for a conditional use permit in that case proved compliance with all applicable standards, and the only opposition was a vague expression of "fears as to increased traffic." Id. at 142.

    
    

    The Irvine v. Duval County Planning Commission decision, supra, is based in part on the decision in Rural New Town, Inc. v. Palm Beach County, 315 So. 2d

    478 (Fla. 4th DCA 1975). The Rural New Town opinion states:

    
    

    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 adverse 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.

    
    

    Id. at 480. But, like the Flowers Baking Co. decision, supra, the facts are not delineated. Instead, the opinion states:

    
    

    No useful purpose would be served by detailing the evidence presented to the Palm Beach County Commission. Suffice it to say, that the quality and character of the evidence

    presented by appellant was of such magnitude as to remove the continued applicability of the existing zoning classification from the "fairly debatable" category thus rendering further enforcement of that classification arbitrary, unreasonable or confiscatory.

    * * * In addition to the foregoing, the

    appellant adduced sufficient facts and proof so as to establish its entitlement to the grant of a special exception for a planned unit development.

    
    

    Rural New Town, Inc. v. Palm Beach County, supra, 315 So. 2d at 479-480.

    
    

16. In this case, the applicable zoning code places the burden on the applicant for a conditional use permit to demonstrate that its application complies with the code standards, including Sections 137.011(d)(5) and 136.025(b)(3) and (5). The Board determined that the Church did not meet its burden, and the Board's decision is sustained by all of the evidence, the evidence adduced at the Board hearing as well as the evidence adduced at the appeal hearing. Under Section 137.013(f)(3) of the Code, the Board's decision must be upheld.

    
    

17. In several court decisions, the zoning tribunals such as the Board are cautioned to base their decisions on competent substantial evidence, not merely on the will or opinions of the populace. Cf. Flowers Baking Co. v. City of Melbourne, supra; BML Investments v. City of Casselberry, 476 So. 2d 713 (Fla. 5th DCA 1985); City of Apopka v. Orange County, 299 So. 2d 657 (4th DCA 1974). The record in this case contains competent, substantial evidence sufficient to sustain the Board's decision, as well as the opinions and expressions of desire of various interested persons.

DISPOSITION

Based on the foregoing Findings of Fact and Law, it is ORDERED:

The appeal of the Clearwater Beach Community Church is denied.

DONE AND ENTERED this 12th day of July, 1989, in Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1989.

COPIES FURNISHED:

Margot Pequignot, Esquire McMullen, Everett, Logan, Marquardt & Cline, P. A.

P. O. Box 1669 Clearwater, FL 34617

Miles Lance, Esquire Assistant City Attorney

P. O. Box 4748 Clearwater, FL 34618-4748

Cynthia D. Goudeau City Clerk

City of Clearwater

P. O. Box 4748 Clearwater, FL 34618-4748

Docket for Case No: 89-000111

Orders for Case No: 89-000111