STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAMCHANDRA R. and RASHMI JAKHOTIA ) d/b/a KING COLE MOTEL, )

)

Appellant, )

)

vs. ) CASE No. 93-1474

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on May 11, 1993 at Clearwater, Florida.

APPEARANCES

For Petitioner: Harry S. Cline, Esquire

400 Cleveland Street Clearwater, Florida 34615

For Respondent: Miles A. Lance, Esquire

Assistant City Attorney Post Office Box 4748

Clearwater, Florida 34616 4748 STATEMENT OF THE ISSUES

Whether Appellant should be granted a variance of seven parking spaces to permit 14 additional live aboard boats at its marina, or, in the alternative, whether the marina has grandfather status which negates the code requirement for additional parking spaces.

PRELIMINARY STATEMENT

By letter dated February 17, 1993, Jakhotia (King Cole Motel) by and through his attorney, appeals the decision of the Development code Adjustment board to deny its application for a variance of seven parking spaces at its marina to allow 14 additional live aboard boats at this marina.

As grounds therefor Appellant alleges that at the time of the code change regulating live aboard vessels the King Cole Motel had 22 slips in its commercial marina all of which were grandfathered within respect to parking requirements; and since the parking requirements are the same for commercial marinas and marinas with slips for live aboards, a variance should not be needed.

At the commencement of the hearing the evidence presented to the Development Code Adjustment Board was admitted. Thereafter, Appellant called one witness, Respondent called two witnesses and three exhibits were admitted into evidence. Proposed findings submitted by the parties have been considered in preparing his Order. Having fully considered all evidence presented I make the following:

FINDINGS OF FACT

1. Ramchandra Jakhotia and Rashmi Jakhotia, his wife, acquired the King Cole Motel at 401 East Shore Drive, Clearwater, Florida in 1983 and have owned the property since that time.

   
   

2. At the time of acquisition and for some time prior thereto the property included a commercial marina with 22 slips.

   
   

3. In 1985 the City of Clearwater revised its Development Code effective October 13, 1985 and, incident thereto, effective July 7, 1988, enacted Section 114.05, Live-Aboard Vessels as Ordinance 4597, Clearwater City Code. That enactment provided, in part, that:

   
   

   Prohibited; exceptions: It shall be unlawful for any person to moor any live-aboard vessel at any location within or upon the navigable waters in the City for any period of time in excess of seventy-two (72) hours, except as follows:

   1. At a marina facility for which conditional use approval has been obtained, or a marina facility in existence as of October 13, 1985 for which conditional use approval would otherwise be required;...

      
      

4. In January 1986 a survey was taken of all marinas within the City of Clearwater to determine the number of live aboard vessels coming within the purview of the revised Development Code. At this survey eight live aboard vessels were occupying berths at the King Cole Motel marina and this was the number determined to be grandfathered for which no conditional use approval would be required.

   
   

5. In 1988 King Cole Motel applied for conditional authorization to utilize 14 additional berths for live aboard vessels.

   
   

6. This conditional use was approved subject to the applicant installing a pump-out facility and meeting the parking requirements.

   
   

7. Although the parking requirements for a commercial marina, i.e., 0.5 parking space per slip, is the same as the parking requirement at marinas for live aboard vessels, the latter generally place a greater demand on parking spaces than does non-live aboard vessels.

   
   

8. To change the approved use from commercial marina without live aboards to live aboards is a change in the use and requires conditional use approval. Before conditional use approval can be granted the applicant must comply with all code requirements, such as required parking spaces, at the time of the change in use.

9. At the time Appellant acquired the King Cole Motel the 22 commercial slips were grandfathered as an authorized use without any parking being provided. Accordingly, as a 22-slip commercial marina Appellant did not have to provide parking. When the eight slips used for live aboards were counted in 1986 they too were grandfathered in without the need for parking spaces.

   
   

10. However, when Appellant applied in 1988 for authorization to use 14 other slips for live aboard vessels, the code required the applicant to provide seven parking spaces.

    
    

11. To his credit Appellant obtained the use of seven parking spaces down the road from the marina but those spaces were not contiguous to Appellants' marina as required by the code. Therefore, Appellants' use of the additional slips for live aboards did not meet the parking requirement in his conditional use approval.

    
    

12. In 1992 Appellant applied for a variance of the seven parking spaces required to allow the use of these additional slips by live aboard vessels. This hearing was held before the Development Code Adjustment Board on February 11, 1993 and it is from the denial of this variance that this appeal is taken.

    
    

13. The Board denied the variance requested because the Appellant failed to demonstrate that the standards established by Section 45.24 Land Development Code were met.

    
    

14. In these proceedings Appellant presented no additional evidence to support the variances requested than was submitted to the Board.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. In these proceedings Appellant has essentially abandoned his request for a variance and now contends that these 22 slips were grandfathered in as a commercial marina not required to meet the parking requirement of 0.5 parking spaces per slip; and, since the parking requirement for slips with live aboard vessels is the same, he is also grandfathered in if the slips are used for live aboards.

    
    

17. This is a logical argument except for the fact that the use of the marina for live aboards is a different use than as a commercial marina. When a facility subject to the Land Development Code desires to change the use of the facility the owner must apply for conditional use approval. This is what Appellant did in 1988 and this conditional use was approved. However, the code requires a conditional use to comply with all code provisions applicable at the time the conditional use is granted. At the time (in 1988) the application to change the use of the marina from a commercial marina to live aboards the code required 0.5 parking spaces for each slip to be changed from the original use to the desired use. Thus, seven additional parking spaces were required. It is for a variance of seven parking spaces that Appellant initiated these proceedings.

    
    

18. As noted above, no additional evidence to support the application for a variance of seven parking spaces was presented at this appeal that was not presented to the Development Code Adjustment Board. From the evidence presented to the Board it is clear that the Appellant presented no evidence to establish a

hardship or that the purpose of the variance request was other than to secure a greater financial return from the property. Accordingly, the evidence presented to the Board was insufficient to grant the variance of the seven parking spaces requested. There being competent and substantial evidence to support the Development Code Adjustment Board's decision this appeal must be denied.

Accordingly, it is ORDERED:

The denial of the application of Ramchandra Jakhotia and Rashmi Jakhotia for a variance of seven parking spaces by the Land Development Code Adjustment Board is affirmed and this appeal is dismissed.

DONE and ORDERED this 26th day of May, 1993, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Harry S. Cline, Esquire

400 Cleveland Street Clearwater, Florida 34615

Miles A. Lance, Esquire Assistant City Attorney Post Office Box 4748

Clearwater, Florida 34616 4748

Michael Wright, City Manager City of Clearwater

Post Office Box 4748 Clearwater, Florida 34616 4748

Cynthia Goudeau City Clerk

Post Office Box 4748 Clearwater, Florida 34616 4748

K. N. AYERS 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 May, 1993.

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: 93-001474

Orders for Case No: 93-001474