STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JONATHAN O. & MERRILL S. HANKE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6392

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

A hearing was held in this case in Clearwater, Florida on April 13, 1995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John A. Skicewicz, P.A.

Qualified Representative 1988 Gulf to Bay Boulevard Clearwater, Florida 34625

For Respondent: Miles A. Lance, Esquire

Paul R. Hull, Esquire City of Clearwater Post Office Box 4748

Clearwater, Florida 34618-4748

For Appellant: Harry S. Cline, Esquire

MacFarlane, Ausley, Fergusen and McMullen

400 Cleveland Street

Post Office Box 1669 (ZIP 34617)

Clearwater, Florida 34615 STATEMENT OF THE ISSUES

The issue for consideration in this hearing is whether the decision of the Clearwater Planning and Zoning Board to issue a conditional use permit to do automobile repair work at the property located at 1139 Eldridge Street in Clearwater to Petitioners should be upheld.

PRELIMINARY MATTERS

Petitioners applied for a conditional use permit to do auto repair work at the subject property. The matter was considered by the City's Planning and Zoning Board on October 18, 1994, and thereafter, the Board granted the permit subject to certain conditions. On October 28, 1994, Werner-Donaldson Moving Services, Inc., appealed the Board action and this hearing ensued.

At the hearing, the Appellant presented the testimony of Leo P. DeRoy, Jr., the company comptroller, and introduced Werner-Donaldson Exhibits 1 and Composite 2. The City of Clearwater presented the testimony of David S. Shuford, its Director of Permitting, and introduced City Exhibit 1. The Petitioners, the Messrs. Hanke, presented the testimony of John A. Skicewicz, a registered real estate broker, and introduced Petitioner's Exhibit B. Petitioner's Exhibit A was offered but rejected. Petitioner's Conditional Use Request, in issue here, and the attachments thereto, were admitted by stipulation of the parties.

No transcript of the hearing was provided. Subsequent to the hearing only counsel for the City submitted Proposed Findings of Fact which have been accepted and are incorporated in this Final Order.

FINDINGS OF FACT

1. On October 14, 1994, Jonathan O. and Merrill S. Hanke, by their representative John A. Skicewicz, P.A., a registered real estate broker, submitted, for consideration at the October 18, 1994 meeting of the City's Planning and Zoning Board, (Board), a conditional use request to operate a vehicle service facility at property located at 1139 Eldridge Street in Clearwater. Though Mr. Skicewicz indicated at hearing that he had the Hanke's authorization to file the original application, no indication of that appeared on the document, nor was any authorization ever found in the records kept by the City. Nonetheless, an authorization form accompanies the amended application, which was accepted by the City and which was the application considered and approved by the Board.

   
   

2. As is normal practice, the application had been, before the Board action, submitted to the City's planning staff which, upon review, recommended approval subject to several conditions. The special conditions limited the work area to five service bays, prohibited any auto service work from being done outside the building, prohibited outside storage of materials, mandated provision of adequate dumpster service, limited hours of operation to 7:00 AM to 6:00 PM on Mondays through Saturday and required compliance with Section 41.053(30) of the City Land Development Code with regard to vehicle service uses.

   
   

3. At its meeting on October 18, 1994, the Board granted the conditional use permit upon conditions consistent with those recommended by the City staff, with the exception that no limitation on hours of operation was imposed. The Appellant did not object to the permit at the Board meeting because, it is represented, the owner of the company was travelling at the time the notification letter from the City came, and the matter was thereafter overlooked. The Board's approval was appealed on October 28, 1994 by Werner- Donaldson Moving Services, Inc., (WD), which operates a moving and storage facility on the property adjoining the subject property on either side. To the east is a warehouse storing household goods. The Permittee's building is approximately 1 - 2 feet in from the west property line and approximately 30 feet in from the east property line, except for a loading dock and small 30 by

   30 foot structure which extends almost to that line approximately 48 feet in from Eldridge Street.

   
   

4. The property in issue was formerly used as a millworking operation which manufactured wooden moldings and decorative pieces, employing 4 to 5 individuals. At that time, the parking area, encompassing 32 spaces, was greater than that which was needed for employee parking. Five of the spaces now

   would be in front of the office area; twelve in the shell area in front of the smaller building to the east; eight behind the small building to the east and in from Maple Street; and seven more in back of the building in from Maple Street. WD contends that this parking configuration would result in cars being required to back out into both Eldridge and Maple Streets, which would constitute a traffic hazard because of the significant number of large tractor trailer trucks which come to its facility each day. This would be compounded by the difficult configuration of the building and the support posts inside which would necessitate vehicles having to back out into the street to be moved around for work.

   
   

5. The roof on the building in question is made of metal over wood beams. Mr. DeRoy, the WD comptroller, believes this type of construction would be inconsistent with the flame hazards of automobile repair work. Though the adjacent WD buildings are not constructed of wood, Mr. DeRoy nonetheless considers there to be a substantial fire risk due to those factors.

   
   

6. Eldridge and Maple Streets are dead end streets. There is a day care center at the end of one of them. WD asserts that most of the businesses in the area are warehouses, a National Guard armory, and an electric company substation. Its representative contends that the neighborhood is quiet, and there is a residential area to the south. There are no other automobile repair shops in the neighborhood, and Mr. DeRoy, for WD, contends the proposed use of the property in issue would not be compatible with the neighborhood. Mr. DeRoy claims that adding an auto repair shop at the instant location would decrease WD's property values as it would be an eyesore to the community. No independent evidence of this was presented, however.

   
   

7. Though there are no auto repair shops on either Maple or Eldridge Streets in the two blocks east of N. Greenwood Avenue, the immediate area in question, there are at least five such installations within one block west of Greenwood and north of Maple. In addition, there is a machine shop, a cabinet shop, a hardware concern, two lumber businesses and a fuel and oil distributor, among others. Clearly, the area is not residential. It is classified as limited industrial, which includes vehicle service.

   
   

8. When the application was brought for evaluation, noise was a factor considered but only as it related to the residential area to the south. Because of that, one staff agency recommended the inclusion of limited hours of operation in the permit. No one from the area in question, (residents were notified in advance by mail) appeared at the Board meeting or wrote in to object, however, and, consequently, noise was not considered as a problem.

   While working hours were not limited, a requirement that all work be done indoors was included as a condition of the permit.

   
   

9. Parking was addressed by the City's Traffic Engineer who interposed neither objection or comment. Since this was a changed use as opposed to a new use, and since the Code requires the parking lot to accommodate the total need of the facility, the staff felt that parking requirements would be less under the changed use as opposed to the old use and would be sufficient. However, it appears that none of the properties currently in use in the area meet the City's current parking standards.

   
   

10. Fire was also not considered to be a problem by the staff. City rules require approval by the Fire Marshall before occupancy. Any deficiencies existing would be identified then and, perforce, corrected before the building could be used.

11. WD contends that body and fender repair and painting is not included in the intended definition of vehicle service. The Code definition includes the service and repair of vehicles, boats, and the like; washing and waxing; and installing mufflers, among other things. The Code definition does not specifically list body and fender repair, top and upholstery installation and repair, or the dismantling of engines, which are specifically covered elsewhere. The Code provides that these latter activities shall not be permitted unless specifically approved by the Board. In the instant case, the Board approved the application which refers to vehicle service. A staff comment, included in the application package which went before the Board, and which would appear to satisfy that requirement, notes that:

    
    

    Vehicle service will be primarily auto repairs which will include auto body work, and all aspects of mechanical work including rebuilding.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

13. WD contends that the Petitioner's use of the property in question as a vehicle repair shop will have a degrading effect on its property. The standards for approval of applications for conditional use permits are contained within the provisions of Sections 41.021 through 41.053 of the Land Development Code of the City of Clearwater, (Code). Included within those criteria is whether the proposed conditional use will adversely impact adjoining properties. In the event the Board determines a need for conditions to be placed upon a permit, it may, as it had done here, impose them.

    
    

14. Appeal of actions of the Board to a Hearing Officer is provided for in Section 36.065(6) of the Code. The burden of proof in such a hearing is upon the appellant to demonstrate that the Board's approval was inappropriate and departs from the essential requirements of the law. The Hearing Officer's function is to determine if there is substantial competent evidence to support the Board's findings or if the Board's decision departs from the essential requirements of the law. The decision of the Hearing Officer is final, subject to judicial review.

    
    

15. In this case, the Hanke application was properly staffed and staff recommendations were forwarded to the Board. Proper notice was served on neighboring interested parties, including WD, and no objection was filed. Thereafter, a public hearing was held at which the application was considered and approved subject to appropriate conditions. The Board's findings are supported by substantial competent evidence, and the process followed by the City was consistent with the requirements of the Code.

    
    

16. WD now seeks to have the action of the Board, as it relates to the Hanke application, reversed, alleging that the operation of a vehicle service facility would pose a safety hazard to its facility, and would degrade the neighborhood. The only evidence presented in support of this position was the testimony of WD's comptroller. No independent evidence was presented by WD to support any of its allegations of potential safety hazards or neighborhood degradation. Appellant has failed to show that at the time it considered this

    application, the Board did not have competent substantial evidence to support its action, or that its approval departs from the essential requirements of the law.

    
    

17. Appellant's challenge to the application, as not being filed by an appropriate, authorized representative, is denied. Even assuming Mr. Skicewicz did not have written authority from the Hankes to file the original application, the evidence is clear that the amended application, that considered and acted upon by the Board, was clearly authorized in writing by the owners. Any possible administrative defect in the original application was corrected by the filing of the amended application.

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

ORDERED THAT the appeal by Werner-Donaldson Moving Services, Inc. of the Clearwater Planning and Zoning Board's issuance of a conditional use permit to Jonathan O. and Merrill S. Hanke to operate a vehicle service facility at 1139 Eldridge Street, Clearwater, Florida, is hereby denied.

ORDERED this 2nd day of May, 1995, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 2nd day of May, 1995.

COPIES FURNISHED:

Miles A. Lance, Esquire Paul R. Hull, Esquire City of Clearwater

P.O. Box 4748

Clearwater, Florida 34618-4748

Harry Cline, Esquire MacFarlane, Ausley, Ferguson

and McMullen

P.O. Box 1669

Clearwater, Florida 34617

John A. Skicewicz, P.A. 1988 Gulf to Bay Boulevard Clearwater, Florida 34625

Cynthia Goudeau City Clerk

City of Clearwater

P.O. Box 4748

Clearwater, Florida 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, (or, when appropriate, a certificate of indigence), with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides within 30 days of rendition of the Order to be reviewed.

Docket for Case No: 94-006392

Orders for Case No: 94-006392