PATRICK T. MAGUIRE, )
vs. ) CASE NO. 89-6159
Appellee. )
A hearing was held in this case in Clearwater, Florida on January 24, 1990, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.
For the Appellant: Patrick T. Maguire, Esquire pro se
For the Appellee: M. A. Galbraith, Esquire
The issue for consideration in this hearing was whether the Appellant's application for a conditional use permit should be approved.
By application filed on September 26, 1989, Appellant, Patrick T. Maguire, sought a conditional use permit to operate a 26 foot fishing boat out of slip number 9 at the Island Yacht Club Marina. The matter was investigated and forwarded to the City of Clearwater Planning and Zoning Board, and at its meeting of October 17, 1989, the Board denied Appellant's request. Mr. Maguire appealed this action of the Board, and by letter dated November 8, 1989, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer to hold a final hearing in this matter.
By Notice of Hearing dated November 29, 1989, Hearing Officer Donald A. Alexander set the case for hearing at 9:00 AM on January 24, 1990, at which time the matter was heard as scheduled by the undersigned to whom the matter had been transferred.
At the hearing, Appellant testified in his own behalf and presented the testimony of Patricia Lee Fricke, the President of the Island Yacht Club Condominium Association, and introduced Appellant's Exhibits 1 through 6. The
City presented the testimony of Keith A. Crawford, Assistant Director of Public Works and Traffic Engineer for the City of Clearwater; Sandra E. Glatthorn, a planner for the City; and William C. Held, Jr., Harbormaster for the City of Clearwater. The City also introduced City Exhibits A through D.
Subsequent to the formal portion of the hearing, the undersigned heard public comment by seven concerned citizens who submitted two exhibits. All exhibits are attached to the Final Order.
No transcript of the proceeding was provided. However, the City did provide a copy of the audio tape recordings made at both the City Planning Commission meeting and the formal hearing held by the undersigned. Both tapes are forwarded along with the Final Order.
Proposed Findings of Fact submitted by the parties have been ruled upon in the Appendix to this Final Order.
At all times pertinent to the matters involved herein, the City of Clearwater Planning and Zoning Board was the municipal agency responsible for the approval/disapproval of requests for conditional use permits within the Clearwater city limits.
Appellant, Patrick T. Maguire, filed an application for a conditional use permit on September 26, 1989, with the Planning and Zoning Board, to operate a charter fishing boat from slip Number 9 at the Island Yacht Club Condominium Marina, located at 200 Windward Passage, Clearwater, Florida. The vessel in question is a 26 foot center console open fisherman which would be captained by one individual, and which would, at any one time, carry no more than four passengers. Appellant has agreed, however, if required as a condition precedent to granting of his permit, to carry no more than three passengers at any one time.
Island Yacht Club Condominium is a commercial condominium consisting of 130 individual units, 128 of which are boat slips, and 2 of which are commercial offices. Located on the premises are 42 on site parking spaces. There are 13 city parking spaces located nearby and contiguous to the condominium's property. Overflow parking from the yacht club lot, when necessary, utilizes a vacant lot adjacent to the subject property and across from the High and Dry Marina, the club's closest neighbor.
The condominium association was created in 1980 and predates the present land development code of the City of Clearwater. Business activities conducted within the confines of the condominium area include a yacht brokerage and the offices of a development corporation. The association engages in the sale and rental of the boat slips and at the present time there are approximately 11 live-aboard vessels moored at the site. Though not a current practice, there is evidence that commercial vessels have been moored and displayed at the site, and that a vessel charter operation has also been conducted there at one time.
The uplands on either side of the yacht club are zoned commercial general, as is the uplands portion of the club facility. Currently in operation on the other commercial sites are a boat storage, sales, and fueling facility; a boat sales and service operation; municipal boat slips; and a large boat repair and maintenance operation (Ross Yachts).
Restrictions contained in paragraph 10 of the commercial declaration of condominium pertaining to Island Yacht Club, dated January 2, 1980, prohibit live-aboards, nuisances, and immoral, improper, offensive, or unlawful uses. No advertisements or notices of any type may be erected upon the common elements.
The parties agree the major objection to the approval of appellant's request for permit relates to the potential for interference with the members' ability to park near their boats. Each slip owner receives one parking sticker for use when his car is in the club's parking lot. Cars parked there without displaying the sticker are uniformly towed away.
A survey was conducted for Appellant of the parking lot owned by the yacht club and the contiguous city parking referred to above, at various times between September 26, 1989, the date the permit application was filed, and October 12, 1989. Thirteen separate site visits were made on three days in September and eight days in October. On September 30 and October 1, two visits were made each day. The visit times were anywhere from 8:00 AM to 10:00 PM. At no time, on any of the visits, were more than 22 parking spaces occupied in the club lot, or more than 7 in the contiguous city parking. At 11:40 AM, October 2, 1989, only 9 club spaces were in use and none of the city spaces. Even the condominium association president, Ms. Fricke, indicated that due to the strict enforcement of the parking permit requirement, there is no longer a
parking problem on site at the club. This strict enforcement could be continued even if Appellant's permit were granted. There is, however, a continuing problem with parking for patrons of the contiguous businesses and frequently, the city slots are fully occupied.
Appellant understands that neither his clients nor his captain would be authorized to use club site parking unless they were furnished with his parking permit issued for slip 9. Consequently, for the most part, his captain and clients would be required to use off site parking. This, however, would be their responsibility to find, and the impact of parking problems would bear directly upon the success of Appellant's operation, not the club. Assuming the parking restrictions currently existing were to be maintained, Appellant's captain and clients could not park on the club lot, and should constitute no additional burden on parking spaces thereon.
According to Keith Crawford, the City's traffic engineer, there has been a problem regarding the 13 contiguous city spaces, and who has the right to use them, going back as far as 1980. Admitting that there is currently no problem existing relating to ingress and egress to and from the club site, and to the control of the property on which the 13 city spaces are located, Mr. Crawford believes that the Appellant's charter boat operation, even limited to a captain and four clients, because of their inability to park on club property, would generate an increased need for parking in the public area which may not be available. This potential problem, while perhaps factual, appears to be of a minor nature due to the limited number of people involved. At most, limiting the number of passengers to three and assuming all would come in separate cars, the maximum additional parking need would be for only 4 spaces.
Another concern of the association related to a potential increase in its liability insurance premium as a result of Appellant's conduct of a commercial enterprise from his slip which would give the public greater access to club property. Evidence presented indicates that the condominium association is already a commercial condominium and currently carries insurance coverage for
commercial enterprises. A letter from the association's insurance agent indicates the club's insurance rates would not go up as a result of Appellant's commercial activity. Though in a late-filed communication from 20 owners of 31 or 128 slips at the marina there is some reference to a potential increase in insurance rates, no evidence to this effect was presented at the hearing and this allegation is rejected as unproven.
Still another basis for objection to the granting of Appellant's permit, in addition to the purported parking problem, is the reluctance among several members to permit the establishment of a precedent setting commercial operation at the marina. While admitting that the marina slips may be rented by their owners to other boaters who occupy them, and that this constitutes a commercial use of the property, it is not the type of commercial use to which the owners object. Whereas, according to the terms of the declaration of condominium, leases of slots must be approved by the condominium board, no control over who Appellant's patrons might be could be exercised, and the association prefers not to open the door to future unrestricted commercialization of its slips. This concern is reasonable if not controlling.
Mr. Held, the city's Harbormaster since November, 1986, is not a traffic engineer. Nonetheless, he initially recommended denial of Appellant's application based on what he considered insufficient parking in the area.
Mr. Held's office is at the municipal marina which has 152 slips available. Those slips are occupied by, among others, 7 party boats carrying up to 80-90 passengers each and a crew of three; between 20 and 24 charter fishing boats carrying up to 6 passengers each; and several other commercial boats including dinner boats, (50 - 300 passengers each), and a sailing charter. The marina also houses a bait house, a gift shop, a restaurant and other commercial operations, including a fuel dock. All this is supported by approximately 287 parking spaces on site. Of these, all but 12 are metered. There are also metered spaces in the Civic Center parking lot across the street, and in a city parking lot to the west.
Appellant's application was considered by the Planning and Development Department of the city's Planning and Zoning Board. In it's report to the full Board at the October 17, 1989 meeting, the Department concluded that Appellant's proposal complied with the city's conditional use standards and the general and specific standards for marinas as outlined in Section 136.025 of the City Code. It recommended that the application be approved, subject to a limitation of four passengers at any one time, and that any required occupational license be obtained within 6 months. Though the city claims the Department's recommendation was flawed, it has not clearly shown this to be the case.
Notwithstanding this recommendation and the recommendation of a licensed real estate broker and appraiser who testified at the hearing that in his opinion, Appellant's use of the property was appropriate and that parking would not be a problem, the Board heard adverse comment from not only Mr. Held, but other slip owners, and upon unanimous, (6-0), vote, denied the Appellant's request. Thereafter, Appellant appealed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
Section 135.169(c), City Code of the City of Clearwater, prohibits commercial activity at any marina unless the facility abuts upland property assigned a commercial zoning category, public/semipublic district, or urban center district, and the activity is specifically authorized by the Planning and Zoning Board. In this case, there is no question that the marina concerned abuts upland property assigned a commercial zoning category. However, the Planning and Zoning Board of the City of Clearwater has unanimously denied authorization to the Appellant to conduct the commercial activity in question.
The City Code does not allocate the burden of proof in this type of case. However, the undersigned concludes that the Appellant is required here, as in other conventional regulatory proceedings, to prove his entitlement to the requested permit by a preponderance of the evidence. Florida DOT v. J.W.C. Co., Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981). Further, the city has provided, under the provisions of Section 137.013(f)(1), Clearwater City Code, that this proceeding not be "de novo" but that the decision, as manifested in the Final Order herein, shall be based upon evidence presented at the Board Hearing, (October 17, 1989), as "supplemented by such additional evidence as may be brought before the Hearing Officer." The standards of approval for conditional use permits are outlined in Section 137.011(d), as opposed to those for a variance, as outlined in Section 137.012(d). Appellant urges, and the evidence tends to establish, that Appellant has satisfied all applicable Code criteria as set forth in Section 137.111, and that the only issue for consideration is his compliance with the standards set forth in subparagraph (d)(6), which requires an applicant to "clearly indicate":
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 users or on community facilities or services.
In denying Mr. Maguire's application on October 17, 1989, the Board apparently relied on this paragraph to support its decision to deny. This denial does not seem to be well founded. The evidence presented at both the Board hearing and the instant hearing clearly indicates that of the 138 slips at the marina, only issue are occupied by liveaboards who call the marina their home. The others are occupied by part time sailors who are at the marina only when utilizing their boat. The surrounding area was clearly shown to be a. commercial area, and review of the marina layout plan indicates that Appellant's slip is not on an interior water but is, instead, an outside slip. It is difficult, therefore, to understand how, since Mr. Maguire would receive only one parking permit for his ownership of the slip, and since his customers and crew could not legitimately park in the marina lot without reasonable fear of being towed away, and since public parking is available though scarce, the potential for a maximum of four more automobiles in the area could be considered as having a "substantial negative impact" on the surrounding or adjacent uses or on community facilities or services.
Albeit there was some concern that successful charter fishermen might use the club facilities to clean their fish upon return from their outing, this contingency can easily be provided for and prevented. The fear that Appellant's customers might place an undue burden on the yacht club public restroom facilities would likewise appear, in light of the small numbers involved, to be unjustified.
Courts have held that the objections and fears of the local populace of increased traffic problems, is not "competent substantial evidence" sufficient to support a denial in a case such as this. Flowers Baking Company v. City of Melbourne, 537 So.2d 1040, (Fla. 5th DCA 1989). In the instant case, admittedly, the city traffic engineer related that. there had been parking problems in the public areas contiguous to the private parking area of the yacht club. He also concluded, however, that these problems had been resolved though at the present time, there is still a public parking shortage in the area. Nonetheless, the president of the condominium association indicated that parking was no longer a problem, and that only on weekends was the club parking lot utilized at close to capacity by club membership.
Taken together, the evidence does not support the city's denial of the Appellant's application based on fears of increased traffic or the potential for setting a precedent for commercial activity in an area already zoned for such activity. The Appellant is required to "clearly demonstrate" that the proposed use is "compatible with the surrounding area and [will] not impose an excessive burden or have a substantial negative impact on surrounding or adjacent uses or on community facilities or services." The operative words here are "excessive" and "substantial." Applicant has met this requirement and the city has failed to demonstrate that the Applicant's proposed use will "have a substantial negative impact on ... community facilities and services."
It is noted that Appellant has agreed to limit the number of customers carried on any fishing trip to three, in addition to the captain, in an effort to ameliorate any possible increase to the parking problem at or in the vicinity of the yacht club. The permit, when issued, should limit use to a captain and three passengers per trip from the slip conducted under the terms of the permit.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
ORDERED that the application of Patrick T. Maguire for a conditional use permit to operate a charter fishing boat to carry a captain and three passengers out of slip 9 at the Island Yacht Club Marina be granted.
DONE and ORDERED this 16th day of February, 1990, in Tallahassee, Florida.
ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building
Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1990.
Patrick T. Maguire
M. A. Galbraith, Esquire Post Office Box 4748 Clearwater, Florida 34618
