During site review prior to the granting of the certificate of occupancy, city staff improperly counted four illegal parking spaces along First Street as legitimate, non-conforming off-street parking spaces.
The restaurant caters primarily to persons walking to the restaurant either from adjacent motels or the beach. Few automobiles are driven and parked at Britt's Beachside Cafe. Even when the business was located in the other motel with more seating and fewer parking spaces, parking was never a problem in the area.
There is considerable public parking immediately adjacent to Appellant's property, both across the street, and approximately one block to the north. When restaurant patrons are unable to use the parking spaces on location, they park in these convenient public spaces.
Since Mr. Mayes relocated his restaurant, he has served beer and wine on premises, without charge. It has always been his intent to transfer his 2- COP State alcoholic beverage license to this new location if permitted to do so through a parking space variance.
The City's requirement that the restaurant acquire more off-street parking spaces is factually unnecessary if the sole purpose of the ordinance is to provide parking for the restaurant patrons. At the old location, parking was never a problem. Likewise, no problems exist at the new location. As the restaurant no longer seeks to expand, the major differences a parking variance would make are that Mr. Mayes could charge for the beer and wine served and use his 2-COP license.
When Appellants proceeded through the first phase of the approval process to obtain a decision from the Planning and Zoning Board, their conditional use application met with approval. It was determined, however, that the preliminary approval would be subject to the obtainment of a parking space variance, which needed to be decided by the Development Code Adjustment Board. Accordingly, the application proceeded to the second phase. If granted in the second phase, Appellants would go to the City Commission for a variance from the separation requirement.
The application for a variance that removes the requirement for 16-17 additional parking spaces to enable the sale of beer and wine on premises was denied by the Development Code Adjustment Board and this appeal followed.
The appeal was filed based upon the allegation that the decision of the Development Code Adjustment Board departs from the essential requirements of law.
The Code of Ordinances of the City of Clearwater requires additional parking for establishments with alcoholic beverage licenses, which by nature of their license only, can be converted from restaurants to taverns or night clubs.
Mr. Mayes' restaurant, which is subject to the additional parking space requirement because of the type of alcoholic beverage license he seeks to transfer, is already prevented from converting to a tavern or a night club by virtue of the restaurant's location in the CR-28 zoning district.
In the CR-28 zoning district, all alcoholic beverage sales for consumption on premises shall be located only within a hotel or motel in conjunction with a 4-COP license or within a restaurant deriving 51 percent or more of its gross revenue from the sale of food and non-alcoholic beverages.
The restrictive requirement that a 2-COP license be used solely to accompany a restaurant business, as opposed to a tavern or night club in the special CR-28 zoning district, is balanced by the Clearwater Code provision that reduces the required number of parking spaces by 50 percent for Clearwater Beach locations and the opportunity to have a business that sells alcoholic beverages in a resort commercial district.
The 2-COP license was acquired prior to the restaurant's move to its current location. If Appellants request for a parking space variance is denied, Mr. Mayes' application for transfer of his beverage license to a new location will likely be denied by the state, pursuant to Section 561.331, Florida Statutes.
The request for the variance is based primarily on Mr. Mayes' desire for greater financial return on his business and to keep his 2-COP license attached to the restaurant.
The Development Code Adjustment Board has granted parking variances to other 2-COP restaurants before and after Appellants' application in the same zoning district. These variances were based on applications and evidence presented at Board hearings.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Procedures for conducting appeals from the Development Code Adjustment Board are contained in Section 137.013 of the Land Development Code of the City of Clearwater. In the appeal proceedings, the burden is upon the Appellants to show that the decision of the Development Code Adjustment 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.
Under Section 137.013(f)(1) of the Code, the appeals proceeding is not a de novo hearing of the evidence. Instead, the appeal hearing officer is required to render a decision based upon the application and evidence presented at the board hearing, as "supplemented by such additional evidence as may be brought before the hearing officer."
Except for the new evidence which demonstrates that the Board granted a parking space variance request made subsequently by another restaurant with a
2-COP license in the area, evidence presented at this appeal hearing was not substantially different from that presented to the board. The new evidence does not undermine the Board's decision in this case because the subsequent application for a variance by another restaurant was found to meet the standards for approval found in the Clearwater Land Development Code. If the Board acted improperly in that proceeding, the Appellants are required to seek their remedy in a different forum.
Section 137.012(d) of the Clearwater Land Development Code Standards for Approval, provides that variances may not be approved unless the application and evidence presented clearly support the following conclusions:
The variance requested arises from a condition which is unique to the property in question and is neither ordinarily or uniformly applicable to the zoning district nor created by an action or actions of the
property owner, predecessor in title, or the applicant. Any mistake made in the execution of a building permit or work performed without the benefit of a permit shall not be considered
to be situations which support the granting of a variance.
The particular physical surroundings, shape
or topographical conditions of the property involved and the strict application of the provision of this development code would result in an unnecessary hardship upon the applicant.
The variance is the minimum necessary to overcome the unnecessary hardship referred to in preceding recital "2" for the purpose of making reasonable use of the land.
The request for a variance is not based primarily upon the desire of the applicant to secure a greater financial return from the property.
The granting of the variance will not be materially detrimental or injurious to other property or improvements in the neighborhood in which the property is located.
The granting of the variance will not impair
an adequate supply of light or ventilation to adjacent property, detract from the appearance of the community, substantially increase the congestion in the public streets, increase the danger of fire, endanger the public safety in any way, or substantially diminishing or impair the value of surrounding property.
The variance desired will not adversely affect the public health, safety, order, convenience, or general welfare of the community.
The granting of the variance will not violate the general spirit and intent of the development code.
Applying the evidence presented to the standards for approval of variances results in a determination that the application is based primarily upon the desire of the Appellants and more particularly, their lessee, to secure a greater financial return from the property. Mr. Mayes was extremely familiar with the business area and the zoning when he reestablished his restaurant as an eatery in the district that did not sell alcoholic beverages. He knew that the business was no longer eligible for the grandfathering provisions used at the former business location. Mr. Mayes is able to maintain a similar, but less lucrative business at the new location because he serves wine and beer without charge. When he began business at the new location without alcohol sales, he had full knowledge that additional parking would be required by the City if beer and wine were sold on premises.
The law, as set forth in the Code, was duly applied and followed by the Board in its review this request for a variance. Appellants were accorded procedural due process and the essential requirements of law were observed. The Board's finding that the application and evidence presented fails to establish a variance should be granted because the request was based primarily on the desire to secure a greater financial return is supported by substantial competent evidence. The Appellants had the burden to establish that the variance request met all of the approval conditions and was unable to do so convincingly. As a result, the Board's decision was proper.
