HIRT FACTORY, )
)
Appellant, )
)
vs. ) CASE NO. 91-5218
)
CITY OF CLEARWATER, )
)
Appellee. )
)
FINAL ORDER
On November 19, 1991, a formal administrative hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.
APPEARANCES
For Appellant: Daniel J. Grieco, II, Esquire
19139 Gulf Boulevard
Indian Shores, Florida 34635
For Appellee: Miles A. Lance, Esquire
Assistant City Attorney City of Clearwater
Post Office Box 4748 Clearwater, Florida 34618-4748
STATEMENT OF THE ISSUE
The issue in this case is whether the evidence sustains the decision of the City of Clearwater Development Code Adjustment Board (the Board) to deny the application of the Appellant, Richard P. Levy, d/b/a T-Shirt Factory, for a four parking space variance at his property located at 1498 Gulf to Bay Boulevard, at the junction of Gulf to Bay Boulevard, Highland Avenue and Court Street, Clearwater, Florida. (The variance is required as a result of his desire to convert 877.5 square feet of storage space in his building on the property to retail use.)
PRELIMINARY STATEMENT
On or about June 19, 1991, the Appellant, Richard P. Levy, d/b/a T-Shirt Factory, filed an application with the City of Clearwater for a four parking space variance at his property located at 1498 Gulf to Bay Boulevard, at the junction of Gulf to Bay Boulevard, Highland Avenue and Court Street, Clearwater, Florida. (The variance is required as a result of his desire to convert 877.5 square feet of storage space in his building on the property to retail use.)
After staff review and recommendation to deny the application, it was considered and denied by the City of Clearwater Development Code Adjustment Board (the Board) at a public hearing on July 25, 1991. A timely appeal was filed on August 7, 1991.
Under Section 137.013 of the City of Clearwater Land Development Code (the Code), the appeal was forwarded to the Division of Administrative Hearings on August 19, 1991, along with a copy of the record of the proceedings below. On August 30, 1991, a Notice of Hearing was issued scheduling final hearing for November 19, 1991.
At the final hearing, the record of the proceeding below was received, as required by Section 137.013(e)(3) of the Code. Additional evidence also was received, as permitted by Section 137.013(e)(4) and (f)(1) of the Code. In addition, the parties were permitted to file post-hearing proposed findings of fact and conclusions of law under Section 137.013(e)(8) of the Code.
FINDINGS OF FACT
Appellant, Richard P. Levy, d/b/a T-Shirt Factory, owns part of lots 5 and 8, and all of lots 6 and 7, Block G, Boulevard Heights, at 1498 Gulf to Bay Boulevard, at the junction of Gulf to Bay Boulevard, Highland Avenue and Court Street, 0.24 acres, more or less, Clearwater, Florida.
The T-Shirt Factory utilizes back-out parking into Gulf to Bay Boulevard and Highland Avenue. This type of parking for retail use is a traffic hazard and does not conform to the requirements of the City of Clearwater Land Development Code (the Code), but the property enjoys the benefit a having its retail use "grandfathered" under the Code because the prior owner also used the property and parking for retail sales at the time the Code was adopted.
Gulf to Bay Boulevard is a busy and fairly high speed traffic artery. Highland Avenue also is a busy street. They meet at an acute angle with the Appellant's property inside the angle. Gulf to Bay Boulevard and Court Street, also a busy and fairly high speed traffic artery, meet at an acute angle just across the street from the Appellant's property, further complicating the traffic pattern in the vicinity of the Appellant's property.
The Appellant filed its application for a four parking space variance to allow him to convert 877.5 square feet of storage space in his building on the property to retail use. The Appellant can make reasonable use of his property without the additional retail space. The Appellant's primary purposes in increasing retail space are to directly increase revenue and profit and to make the retail displays in his store more attractive and more spacious, in large part to prevent shoplifting and thereby indirectly increase revenues and profit.
As now planned, unless advertised, the existance of additional retail space in the store would not be readily apparent to passers by not already familiar with the store. Nonetheless, the Appellant did not prove that the additional retail use will not lead eventually to additional use of the existing back-out parking on Gulf to Bay Boulevard and Highland Avenue. Even if the retail space were expanded as planned, and not advertised, the expansion eventually could lead to an increase in retail business, one of the Appellant's primary long term purposes.
CONCLUSIONS OF LAW
The standards for approval of an application for a conditional use permit are set out in Section 137.012(d) of the City of Clearwater Land Development Code (the Code), which provides in pertinent part:
(d) Standards for approval. A variance shall not be granted by the [Code] adjustment board [the Board] unless the application and evidence presented clearly support the following conclusions:
The variance requested arises from a condition which is [not] created by an action or actions of the property owner, predecessor in title, or the applicant. . . ..
The particular physical surroundings, shape or topographical conditions of the property involved and the strict application of the provisions 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
. . . substantially increase the congestion in the public streets, increase the danger of fire [or] endanger the public safety in any way . . ..
The variance desired will not adversely affect the public health, safety, order, convenience, or general welfare of the community.
The granting of the variance desired will not violate the general spirit and intent of this development code.
Appeals from decisions of the Board are governed by Section 137.013 of the Code, which provides in pertinent part:
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.
* * *
Conduct of the hearing. Conduct of the hearing before the hearing officer shall be as follows.
* * *
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.
The hearing officer is authorized to administer oaths to witnesses.
A reasonable amount of cross-examination
of witnesses shall be permitted at the discretion of the hearing officer.
* * *
Decision. The decision of the hearing officer shall be based upon the following criteria and rendered as follows:
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.
The hearing officer shall be guided by the city comprehensive plan, relevant portions of the City Code of Ordinances and established case law.
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.
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 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 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.
It is concluded that the evidence sustains the Board's decision that the application and evidence presented do not clearly support the conclusion that the standards for approval set out in Section 137.012(d) of the Code have been met.
The application and evidence presented do not clearly support the conclusion that the variance requested arises from a condition which is not created by the Appellant's action or actions. To the contrary, the application and evidence are clear that the variance requested arises from the Appellant's desire to increase the retail use of his property.
The application and evidence presented do not clearly support the conclusion that the strict application of the provisions of the Code would result in an unnecessary hardship upon the Appellant. Refusing to allow the Appellant to increase his retail space in an effort to prevent the increased use of already non-conforming parking at a hazardous intersection is not an unnecessary hardship.
The application and evidence presented do not clearly support the conclusion that the variance is the minimum necessary to overcome any hardship. The Appellant can make reasonable use of his land without the additional retail space.
The application and evidence presented do not clearly support the conclusion that the request for a variance is not based primarily upon the desire of the Appellant to secure a greater financial return from the property. If not for the primary purpose of making more money directly from more retail business, the Appellant's primary purpose is to make more money indirectly by reducing shoplifting by enlarging the retail area.
The application and evidence presented do not clearly support the conclusion that the variance will not substantially increase the congestion in the public streets, increase the danger of fire or endanger the public safety in any way. Likewise, the application and evidence presented do not clearly support the conclusion that the variance will not adversely affect the public health, safety, order, convenience, or general welfare of the community. The Appellant did not prove that the additional retail use will not lead to additional use of the existing back-out parking on Gulf to Bay Boulevard and Highland Avenue which could have those negative results.
The application and evidence presented do not clearly support the conclusion that the variance will not violate the general spirit and intent of this development code. The back-out parking already is a non-conforming use that was grandfathered under the Code. Granting the variance would exacerbate this non-conforming use in violation of the spirit and intent of the Code.
