STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HAROLD S. WILSON (EXOTICAR), )

)

Petitioner, )

)

vs. ) CASE No. 92-1011

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on May 20, 1992, in Clearwater, Florida.

APPEARANCES

For Petitioner: Harold S. Wilson, Trustee

(Exoticar)

2380 Drew Street, #2

Clearwater, Florida 34625

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

City of Clearwater Post Office Box 4748

Clearwater, Florida 34618 4748 STATEMENT OF THE ISSUES

Whether or not Petitioner's conditional use application should be approved.

PRELIMINARY STATEMENT

On February 4, 1992, the Planning and Zoning Board (Board) of the City of Clearwater, Florida, held a public hearing commencing at 1:30 p.m. in the City Commission Chambers, City Hall, Third Floor, 112 South Osceola Avenue, Clearwater, Florida, to consider several requests for conditional use, including the subject application filed by Harold S. Wilson as Trustee (Exoticar) to permit 1) outdoor retail sales, displays and/or storage; and 2) wholesaling/distributing at 18514 U.S. 19 North, Section 19-29-16, M&B 44.04 and 44.041, zoned CH (highway commercial), conditional use request #92-11.

The Board's professional staff recommended approval of the conditional use subject to conditions which were acceptable to Petitioner. During the Board's hearing, additional conditions were suggested including a recommendation that a trial period be extended to Petitioner but it was not acted upon by the Board. The Board voted, by a vote of 3 to 2, to deny the application for the

conditional use as requested. Petitioner timely appealed that denial by requesting a formal hearing pursuant to Chapter 120, Florida Statutes.

The basis for the appeal is that the conditional use is permitted by the City of Clearwater's Land Development Code and the Zoning Code and all standards for approval set forth in the Code are alleged to have been met.

At the hearing, Petitioner introduced Exhibits A-K, which were offered and received in evidence at the hearing. Petitioner, Harold S. Wilson, Leonard McCue and James McCray, the owner of Exoticar, appeared and testified in support of the petition. Respondent presented the testimony of Sandra Glatthorn, senior planner, City of Clearwater, Frank Kunner and Edward Smith testified in opposition of the petition. Also, Andrew Saltzman, the attorney for Le Cher, also made a statement in opposition to the approval of the requested use application. A transcript of the Board's February 4, 1992 public hearing was introduced and received in evidence and was reviewed by the undersigned in preparation of this order.

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, the following relevant facts are found:

FINDINGS OF FACT

1. Petitioner, Harold S. Wilson, is Trustee of the property which is situated at 18514 U.S. Highway 19 North in Clearwater, Florida.

   
   

2. The property is in a zoning district designated as CH and the land use classification is CTF. The immediate surrounding land usage to the north is a furniture store, to the south is a car lot, to the east is a shopping center and to the west is a complex of office buildings.

   
   

3. The subject building where the conditional use application was filed was erected during 1986. The first tenant of the building was Styles Auto (Styles). Styles engaged in the business of wholesaling luxury automobiles from August 1986 to September 1989. During June of 1990, Petitioner moved to the subject location and has remained there to the present time. The previous tenant at this site was the "Decorators Guild." 1/

   
   

4. As stated, the zoning for the property is highway commercial (CH).

   
   

5. Respondent's staff conducted a survey of the property and the requested use and found that the standards were satisfied and recommended approval of the conditional use with certain specific conditions set forth hereinafter.

   
   

6. A review of the permitted uses and conditional uses include among them wholesale distributions. (Petitioner's Exhibit A.)

   
   

7. James T. Ray is the owner of Exoticar. Exoticar is in the business of wholesaling luxury cars throughout the United States and abroad and, on occasion, retails vehicles. Typically, Exoticar sells vehicles such as Ferrari, Porsche, Mercedes Benz and Jaguar. The cars are usually pre-sold when purchased and often times the vehicles are never brought to the site in Clearwater, Florida. On occasion, it is necessary for Exoticar to have on display from 5 to

   10 vehicles at its offices in Clearwater, Florida. Petitioner's operation is compatible with the business operations of the adjoining tenants/owners.

8. The only display sign that Exoticar uses on its vehicles is one designating the model year and the size of its signs are less than one square foot.

   
   

9. The former tenant, Styles, did substantially more retail sales than Exoticar. Also, Styles sold more retail vehicles in the medium price range whereas Exoticar typically sells all up-line priced vehicles.

   
   

10. Sandra Glatthorn, a senior planner with the Planning and Development Department of the City of Clearwater, presented several proposed conditions in the event that the Board's decision was reversed and the application for the conditional use approved. Those conditions are as follows:

    
    

    1. The number of vehicles which may be displayed or otherwise parked or stored on the property while pending their sale, lease, or delivery shall not exceed five (5) at any time.

    2. All vehicles shall be parked on the paved parking area. No vehicle shall be parked on the grassed or landscaped area of the property.

    3. The handicapped parking space presently being used for vehicle display shall be relocated to the satisfaction of the city's traffic engineer, and shall be properly marked.

    4. The applicant's signs shall be brought

       into compliance with the city's sign regulations not later than October 13, 1992.

    5. All required permits and licensees shall be obtained within six (6) months following approval of the application.

    6. No sign on or in a vehicle shall exceed one (1) square foot in size. Signs on or in vehicles shall be limited to one per vehicle.

    7. No vehicle shall be unloaded from, or loaded onto, a vehicle transportation truck or trailer while on the property.

    8. No vehicle shall be waxed, "detailed," or serviced while on the property. This condition shall not be construed to prohibit emergency service necessary to start a vehicle or to tow an inoperative vehicle from the property.

       
       

11. The above proposed conditions were considered by Respondent's staff and are acceptable to Petitioner.

    
    

12. Petitioner does not prepare, wax, or detail vehicles at the proposed location. Likewise, Petitioner does not order transporters to pickup vehicles from the subject location, although on occasion a transporter will show up at that location. In those rare instances, Exoticar's owner, Ray, directs transporters to another alternate location whereby the unloading or loading of vehicles can be accomplished offsite.

    
    

13. The Petitioner has the requisite parking spaces to comply with the City's parking code.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

15. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

16. Included in the permitted and conditional uses contained in the City of Clearwater's Land Development Code are conditional use standards. The Petitioner's conditional use application is a permissible use pursuant to Respondent's Land Development Code, the conditional use standards contained in Section 136.025 and the conditional use standards of the Clearwater Code as set forth in Section 137.011.

    
    

17. Section 137.011 authorizes the Board to deny a conditional use application when it makes a finding of a nuisance. The Board has not found that Petitioner's operation has caused or otherwise creates a nuisance and the requested use complies with the applicable conditional use standards. Finally, the requested conditional use is compatible with the existing uses in the area, and does not adversely affect the values of the adjoining property owners.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

Respondent grant Petitioner's conditional use application with the proposed conditions outlined herein in the Findings of Fact section as a condition of the approval.

DONE and ENTERED this 22nd day of June, 1992, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 22nd day of June, 1992.

1/ The record is unclear as to whether Petitioner changed offices during August 1991. In any event, the record is clear that the building is the same and the zoning and land use classifications are unchanged.

COPIES FURNISHED:

HAROLD S WILSON 2380 DREW ST - #2

CLEARWATER FL 34625

M A GALBRAITH JR ESQ CITY ATTORNEY

PO BOX 4748

CLEARWATER FL 34618 4748

CITY CLERK

CITY OF CLEARWATER PO BOX 4748

CLEARWATER FL 34618 4748

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: 92-001011

Orders for Case No: 92-001011