STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM M. SHEPHARD, ) LAGOON RESORT MOTEL, INC., ) d/b/a SHEPHARD'S RESTAURANT, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2152

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

The final hearing in this case was held on May 30, 1990, in Clearwater, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ronald Hollins, President

Gulf Fun, Inc.

2702 East 97th Avenue Tampa, FL 33612

For Respondent: M. A. Galbraith, Jr., Esquire

P. O. Box 4748 Clearwater, FL 34618

STATEMENT OF THE ISSUE

The issue in this case is whether the decision of the Planning and Zoning Board denying Petitioner's application for conditional use approval should be sustained.

PRELIMINARY STATEMENT

At the hearing, the minutes and records before the Planning and Zoning Board when Petitioner's application was considered, as well as the tape recording of the Board meeting, were admitted into evidence. Official recognition was taken of relevant portions of the City of Clearwater Land Development Code.

Petitioner, Ronald Hollins, testified on his own behalf and also called Dave R. Westra to testify. Witnesses called on behalf of the Respondent included charter boat Capt. Richard Howard, bridge tender Arnold Abramson, marine patrol officer Billy Farias, planning manager Scott Shuford, and harbormaster Bill Held. Four public witnesses also testified. The Petitioner introduced two exhibits, one of which is a composite exhibit consisting of

twenty-five video tapes; the Respondent introduced three exhibits; and two exhibits were received from public witnesses. One exhibit offered by the Petitioner was rejected.

No transcript has been filed. The parties were given a total of thirty days following the hearing to view and prepare narratives for certain video tapes which the Petitioner sought to introduce. A ruling admitting these tapes into evidence was entered by Order filed on July 25, 1990. The Respondent filed a proposed order which has been considered. The Petitioner filed a post-hearing ex parte communication by which he attempted to introduce additional evidence, but this communication has been striken by Order entered on July 25, 1990.

FINDINGS OF FACT

1. On or about February 16, 1990, the Petitioner filed an application for conditional use approval with the Respondent seeking permission to operate a personal watercraft rental business at a motel and restaurant located at 601 South Gulf View Boulevard on Clearwater Beach. According to the application, the Petitioner proposes to rent two "Hobie cat" catamaran sailboats, and four to ten "wave runners". The Petitioner proposes that the vessels would be escorted westward, north of and parallel to, the marked boat channel in Clearwater Pass, then northwestward to open waters where, according to Petitioner, a "safewatch and service unit of nonpropeller power" would "monitor" customer activities.

   
   

2. The subject property is located between South Gulf View Boulevard and Clearwater Pass, west of the Clearwater Pass Bridge, and is comprised of two zoning districts, an upland portion that is zoned CR-28, or Resort Commercial "Twenty-eight", and a beach front portion that is zoned OS/R, or Open Space/Recreation. Clearwater Pass separates Clearwater Beach and Sand Key Islands, and is the only open access between Clearwater Harbor and the Gulf of Mexico. A convenience store is located north of the property, and hotels are located east and west of the property.

   
   

3. At the hearing before the Respondent's Planning and Zoning Board on March 13, 1990, the Planning and Development Department recommended denial of the application. In its written report to the Board, the planning staff based its recommendation upon the recommendations of the City's Harbormaster and Marine Advisory Board, which in turn were based upon concerns for safety due to the heavy boat traffic in the Clearwater Pass channel and at jetties along the southern end of Clearwater Beach and the northern end of Sand Key, all of which are located in the vicinity of the subject property. Based upon the testimony of Harbormaster Bill Held, it is found that state and federal approval of markers to mark off a private corridor in Clearwater Pass to accommodate Petitioner's proposed activities would be unlikely.

   
   

4. During the hearing before the Board, the Board heard testimony from several persons in opposition to this application based upon concerns regarding the safety of swimmers due to careless operation of similar types of vessels, and strong currents in Clearwater Pass.

   
   

5. At the conclusion of the public hearing, the Board discussed the application prior to voting. Members of the Board expressed concerns regarding public safety due to the dangerous condition of the area. The Board then voted unanimously to deny the application. Subsequently, the Petitioner timely filed a notice of appeal, resulting in this case.

6. During this final hearing, Ronald Hollins, President of Gulf Fun, Inc., and agent for the Petitioner, testified that his proposed business would operate seven days a week, from sunrise to sunset, or approximately twelve hours daily. Petitioner testified that his personal watercraft rental vessels would be escorted during trips both from the subject property westward to the waters of the Gulf of Mexico and also during return trips, and that a "safety service" boat would monitor the rental vessels while in operation, with the escort boat and the "safety service" boat being in radio contact with a base unit at the motel property. The rental vessels would be prohibited from crossing Clearwater Pass to the south side of the boat channel, and would be limited to an area of operation bounded on the south by Clearwater Pass and on the north by Pier 60 on Clearwater Beach. Petitioner proposes to employ only three or possibly four employees to operate the escort boat, the "safety service" boat, and the base location, to rent the personal watercraft vessels, show a video tape and give a safety booklet to customers, as well as to otherwise supervise the rental vessels during the approximately 84 hours per week that his business would be in operation. Petitoner has never operated a similar business.

   
   

7. Based upon the testimony of Richard Howard, captain of a charter boat which regularly goes in and out of Clearwater Pass, it is found that personal watercraft vessels frequently present a hazard to navigation due to the manner in which they are customarily operated. Specifically, personal watercraft operators in Clearwater Pass engage in practices such as towing swimmers on inner tubes, purposely spraying water at boats, and jumping the wakes of boats in the Pass. The activities proposed by Petitioner would exacerbate the insufficient clearance between boats in the channel, boats anchored at the beach, and swimmers, and would, therefore, be inappropriate in Clearwater Pass.

   
   

8. The currents in Clearwater Pass are found to be dangerous to boaters on a regular basis, based on the testimony of Arnold Abramson, bridge tender at the Clearwater Pass bridge and Harbormaster Bill Held. A significant number of personal watercraft operators do not demonstrate an understanding of the rules of navigation, or of the currents in the Pass. Based on the testimony of Marine Patrol Office Bill Farias, it is found that the lack of apparent common sense which is frequently demonstrated by personal watercraft operators in Clearwater Pass creates a dangerous condition for others. A common practice is to jump the wake of boats, which results in a loss of control in mid-air. The jetty at the western end of Clearwater Pass obscures vision, making it difficult for incoming boaters to see personal watercraft in the vicinity of the motel, and also making it difficult for personal watercraft operators to see incoming boats.

   
   

9. There is another boat rental operation in the area of this subject property, located at the Hilton Hotel, but this existing operation predates the adoption of the Clearwater Land Development Code.

   
   

10. The Clearwater Pass bridge had 12,000 drawbridge openings in the past year, and is one of the busiest in Florida.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.65, Florida Statutes; Section 137.013, Clearwater Land Development Code. Section 137.011(d), Clearwater Land Development Code, provides that an application for conditional use approval and supporting evidence must "clearly indicate" that the enumerated standards for approval have been satisfied, and the burden is upon the applicant to prove that the standards have been satisfied.

12. In this appeal from a decision of the Planning and Zoning Board, the burden is upon the Petitioner to show that the decision of the Board cannot be sustained by the evidence before the Board and the Hearing Officer, or that the decision of the Board departs from the essential requirements of law. Section 137.013(f)(3), Clearwater Land Development Code.

    
    

13. Section 136.025 contains general and specific standards to guide the Planning and Zoning Board when evaluating any application for conditional use approval. A general standard applicable to all conditional uses is that acceptable ingress to, and egress from, the site shall be provided in a manner and location which ensures optimum vehicle maneuverability, as well as vehicular and pedestrian safety. Section 136.025(b)(2), Clearwater Land Development Code. Another general standard applicable to all conditional uses is that the use shall be reasonably compatible with surrounding uses. Section 136.025(b)(7). The specific standards for an "outdoor commercial recreation/entertainment" use provide that all facilities and activities are to be self-contained on the premises, unless specifically approved otherwise by the Planning and Zoning Board. Section 136.025(c)(21).

    
    

14. Section 137.011(d) contains additional standards for approval by the Planning and Zoning Board of conditional use applications. This section incorporates the standards of Section 136.025 by reference, and also requires a determination by the Board that the proposed use is consistent with the community welfare and will not detract from the public's convenience at the specific location, will not unduly decrease the value of neighboring property, and will 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. Section 137.011(d)(4)-(6), Clearwater Land Development Code.

    
    

15. The record in this case establishes that the Planning and Zoning Board correctly found that the Petitioner failed to carry his burden to demonstrate that the applicable conditional use standards would be met. In particular, the Petitioner failed to establish that the vessel renters would have acceptable ingress to, and egress from, the site in a manner and location which ensures optimum vehicle maneuverability, as well as vehicular and swimmer safety, as required by Section 136.025(b)(2). The Petitioner failed to establish that access to the open waters of the Gulf of Mexico from the subject property could be accomplished safely. To the contrary, the proposal to hire only three or four employees to perform all of the duties that would be necessary to conduct a safe operation twelve hours a day, seven days a week, demonstrates the inadequacy of the proposal, and the likely failure of the Petitioner to achieve necessary safety standards.

    
    

16. The Petitioner also failed to establish that the proposed use will be reasonably compatible with surrounding uses, specifically the busy Clearwater Pass boat channel, as required by Section 136.025(b)(7), Clearwater Land Development Code. The Petitioner's proposed activities would only add to safety concerns about activities in the Pass, and would, therefore, not be compatible with safe boating or swimming activities.

17. Since the proposed use would be an "outdoor commercial recreation/entertainment" use, all facilities and activities ordinarily are required to be self-contained on the premises, unless specifically approved otherwise by the Planning and Zoning Board, according to Section 136.025(c)(21), Clearwater Land Development Code. The Petitioner failed to establish any basis for approval of these proposed activities, which would be far from self- contained, in Clearwater Pass.

    
    

18. The Planning and Zoning Board found that the Petitioner failed to meet the standards for conditional use applications set forth in Section 137.011(d)(4)-(6). As previously stated, these standards require a determination by the Board that the proposed use is consistent with the community welfare and will not detract from the public's convenience at the specific location, will not unduly decrease the value of neighboring property, and will 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. There was no competent substantial evidence presented at hearing which would demonstrate, in any respect, that the Board's finding that this application failed to meet these standards, and therefore denying this application, was not supported by the record.

Based on the foregoing, it is:

ORDERED THAT the Petitioner's appeal of the prior denial by the Planning and Zoning Board of this application for conditional use approval is dismissed, and the Board's prior action is sustained.

DONE AND ORDERED this 26th day of July, 1990, in Tallahassee, Leon County, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1990.

COPIES FURNISHED:

M. A. Galbraith, Jr., Esquire

P.O. Box 4748 Clearwater, FL 34618

Ronald Hollins, President Gulf Fun, Inc.

2702 East 97th Avenue Tampa, FL 33612

City Clerk

P.O. Box 4748 Clearwater, FL 34618

Docket for Case No: 90-002152

Orders for Case No: 90-002152