STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANUEL KASTRENAKES, )

d/b/a Pinellas Rent-A-Car, )

)

Appellant, )

)

vs. ) CASE NO. 90-5002

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a public hearing was held in the above-styled case on November 29, 1990, at Clearwater, Florida.

APPEARANCES

For Appellant: Louis Bakkalapulo, Esquire

Thomas G. Hersem , Esquire

400 Indian Rocks Road Suite C

Belleair Bluffs, Florida 34640

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

Post Office Box 4748 Clearwater, Florida 34618

STATEMENT OF THE ISSUES

Whether the Planning Commission deviated from essential requirements of law in denying Appellant's application for a special use permit to operate a car rental agency at 2576 Harn Boulevard, Clearwater, Florida.

PRELIMINARY STATEMENT

This is an appeal from the action of the City of Clearwater Planning Board in denying the request of Kastrenakes for a special use permit for outdoor retail sales, displays and/or storage to operate a rental car business on property owned by Appellant at 2576 Harn Boulevard, Clearwater, Florida.

Grounds for the denial by the Board was stated to be due to the adverse effect the business would have on adjacent property owners.

At this hearing, Appellant called four witnesses, one being the City of Clearwater Planning Manager who headed the staff that reviewed the application and recommended granting the conditional use requested; two witnesses testified in opposition to the petition; and one exhibit was admitted into evidence. This exhibit comprises the initial staff report to the Planning and Zoning Board,

plus additional conditions on the use of this property intended to counter some of the objections to granting the conditional use permit presented at the Board hearing. The Appellant accepts all of these conditions.

Having considered the evidence presented to the Board, additional evidence presented at this hearing, arguments of counsel and proposed orders submitted by the parties, the following findings and conclusions are made.

FINDINGS OF FACT

1. Manual Kastrenakes, d/b/a Pinellas Rent-A-Car, Appellant, purchased the property which is the subject of this appeal in 1989. Prior to this purchase, the property was the site of a Farm Store, which has been vacated.

   
   

2. Appellant also owns a filling station in the vicinity of this property which is legally operated and is in compliance with all zoning requirements.

   
   

3. The property is zoned CH (highway commercial). Within Highway Commercial Districts, outdoor retail sales, displays and/or storage are permitted as conditional uses. Section 135.129(11), City of Clearwater Land Development Code.

   
   

4. Objections to the granting of this conditional use permit come from residents of multifamily residential buildings adjacent to and west of the property in issue. Many of those residents are retired and/or infirm and contend they will be disturbed by the operation of a rental car business "in their back yard." To counter some of these objections, Appellant agreed to conditions being imposed on this permit limiting hours of operation, lighting, paving, buffer zones, and parking.

   
   

5. Protestants also contend that operating the business would depreciate the value of their property, but no credible evidence was presented to support this position.

   
   

6. Appellant has further agreed that disabled or wrecked vehicles will not be stored on this property, and only fully operable rental automobiles will be stored and/or displayed on this property.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

8. Appellant has the burden to prove that he is entitled to the special use permit requested, and that the Board failed to comply with the standards established in the Land and Development Code in denying his application, or that they departed from the essential requirements of law.

   
   

9. Section 136.025 of the Land and Development Code provide:

   
   

   1. Purpose. It is the purpose of this section to establish general and

      specific standards for the planning and zoning board to consider when evaluating any applicant for a con-

      ditional use. The standards identified herein shall function in tandem with

      the review procedures for variances contained in chapter 137 (Administration and Enforcement," section 137.012.

   2. General Standards. The following standards shall apply to all uses which are identified in this development code as conditional and only those uses which comply with all of the enumerated stan- dards contained herein shall be authorized.

      1. The use shall comply with the land use plan and all applicable terms contained

         in this development code, the building code, and the Clearwater Code of Ordinances.

      2. Acceptable ingress to and egress from the site shall be provided in a manner and

         location which ensures optimum vehicle maneuverability and vehicular and pedestrian safety. The number of ingress and egress drives shall be the minimum necessary to provide reasonable access

         to the site.

      3. Noise generated from the use shall not unreasonably diminish the use, enjoy-

         ment or value of the surrounding properties.

      4. The direction and glare of lights from both motor vehicles and illuminating fixtures on the site shall not adversely affect the use, enjoyment or value of surrounding properties.

      5. Sufficient landscaping and screening shall be provided to diminish noise, reduce glare and buffer high activities 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.

      6. Sufficient areas shall be afforded for parking in accord with section 136.022

         of this chapter.

      7. The use shall be reasonable compatible 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 capability of uses.

10. Section 136.025(c) entitled supplementary standards, by category of use provides in pertinent part:

    
    

    The following standards (which apply to the identified category of use) shall supplement the general standards of use identified

    above and no conditional use shall be authorized unless determined to meet all of the standards applicable thereto.

    (6) Business services may be permitted within the Neighborhood Commercial Districts upon determination that

    the use complies with all of the general standards contained in the proceeding paragraph (b).

    (22) Outdoor retail sales, displays and/or storage may be permitted within the

    General Commercial, Highway Commercial, Commercial Center and Limited Industrial Districts upon determination that:

    1. The outdoor use shall not adversely affect the community appearance objectives of the city. In particular, no temporary buildings, portable build- ings, tends, stands, trailers, vending carts or like buildings or structures shall be utilized in conjunction with

       the use.

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

    
    

11. The activities here contemplated, subject to the restrictions herein imposed, satisfy the above-quoted requirements for a condition use; i.e., Appellant has met the statutory criteria for granting a conditional use exception to the Land Development Code. At that point, the burden shifts to the Board to demonstrate, by competent substantial evidence, that the special exception requested by applicant did not meet such standards and was, in fact, adverse to the public interest. Irvine v. Duval County Planning Commission, et al., 495 So.2d 167 (Fla. 1986), citing Rural New Town, Inc. v. Palm Beach Co., 315 So.2d 478 (Fla. 4th DCA 1975).

    
    

12. The only evidence presented in these proceedings indicative that the use may adversely affect the use, enjoyment and value of surrounding properties was the testimony of the two witnesses who opined that the proposed use would have such an effect. Neither of these witnesses qualified as an expert, nor did they present any factual evidence to support their opinions. Subsequent to the proceedings before the Board, Appellant has agreed to further limitations in lighting, hours of operation, buffer zones, parking and landscaping which satisfy all reasonable objections to this conditional use. Accordingly,

IT IS ORDERED that Manuel Kastrenakas, d/b/a Pinellas Rent-A-Car, be granted a conditional use permit to operate a car leasing facility at 2576 Harn Boulevard, Clearwater, Florida, subject to the following conditions:

1. The applicant shall submit a new site plan meeting all city paving and open space standards, or shall obtain a variance from the Development Code Adjustment Board.

   
   

2. New site lighting structures shall not exceed eight feet in height and shall be directed away from the residential area.

   
   

3. The hours of operation shall be limited to 8 a.m. to 7 p.m.

   
   

4. All signs shall conform to city sign regulations.

   
   

5. All vehicles stored on this site shall be in an operating condition; there shall be no storage of vehicles needing repair, nor shall there be any storage of auto parts of any kind.

   
   

6. This conditional use permit shall be for automobile rental only; no trucks or other vehicles besides automobiles used by the car rental agency or its employees shall be parked or stored on the site.

   
   

7. All requirements for landscaping under the current Section 136.123 of the Land Development Code shall be met, including perimeter and interior landscaping requirements. These requirements shall include a 10-foot buffer strip which shall be augmented with an additional 5 feet of buffering for a total of 15 feet buffer between the multifamily development to the west and the subject property, as well as a 5 feet landscaped strip along Harn Boulevard and between the commercial development to the east and north. The landscaping shall be approved by the City's Urban Forester.

   
   

   The west property boundary buffer shall consist of at least the following: A row of trees planted 3 feet from the west property boundary, starting 5 feet from Harn Boulevard and spaced at 20 foot intervals along the west boundary; a second row of trees planted 12 feet from the west boundary starting 15 feet from Harn Boulevard and spaced at 20 foot intervals along the west boundary; and a row of shrubs planted at 3 foot intervals or at least 13 every 40 feet starting immediately adjacent to Harn Boulevard right of way. The trees shall consist of either Hollies, Red Cedars, or Live Oaks, and the shrubs shall be either Sweet Viburnum or Photinia.

   
   

8. The dumpster, if one is needed, shall be located in the northeast corner of the site.

   
   

9. No vehicle repairs shall be done on site (indoor or outdoor).

   
   

10. The requisite building permit shall be obtained within 6 months of the date of this public hearing.

    
    

11. The requisite occupational license shall be obtained within one (1) year of the date of this public hearing.

DONE and ORDERED this 13th day of December, 1990, in Tallahassee, Florida.

K. N. AYERS 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 13th day of December, 1990.

COPIES FURNISHED:

Louis Bakkalapulo, Esquire Thomas G. Hersem, Esquire

400 Indian Rocks Road Suite C

Belleair Bluffs, FL 34640

M. A. Galbraith, Jr., Esquire City of Clearwater

Post Office Box 4748 Clearwater, FL 34618

Cynthia D. Goudeau City Clerk

City of Clearwater Post Office Box 4748 Clearwater, FL 34618

Scott Shuford Planning Manager City of Clearwater Post Office Box 4748 Clearwater, FL 34618

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 90-005002

Orders for Case No: 90-005002