STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRENCHY'S ROCKAWAY GRILL, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-6776

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Richard Hixson, held a formal hearing in this case on March 24, 1995, in Clearwater, Florida.

APPEARANCES

For Petitioner: James J. Dowling, Esquire

1151 Tampa Road, Suite C Palm Harbor, Florida 34683

For Respondent: Miles A. Lance, Esquire

City of Clearwater Post Office Box 4748

Clearwater, Florida 34618-4748 STATEMENT OF THE ISSUES

The issue in this matter is whether the evidence sustains the decision of the Development Code Adjustment Board of the City of Clearwater denying the Petitioner's request for five variances required for the expansion of an existing deck.

PRELIMINARY STATEMENT

On October 6, 1994, Petitioner filed its request with the City of Clearwater, Development Code Adjustment Board (Board) seeking approval of five variances required for the proposed expansion of an existing deck. The Board's staff reviewed the application and recommended approval subject to certain conditions.

The matter was duly noticed and considered by the Board at a public meeting held on November 10, 1994. At that time the Board staff presented the application and staff recommendation. Counsel for Petitioner appeared in support of the application. No other person appeared before the Board regarding the application, and no letters in support of or in opposition to the variance application were filed with the Board. At the meeting, members of the Board expressed concern as to the number of variances requested, the precedent which might be established by the approval of the application, the economic motivation

for the application, and whether the variances would meet the general purpose and intent of the City of Clearwater's Land Development Code. The Board, by unanimous vote, denied the application. On November 21, 1994, Petitioner filed a timely Notice of Appeal, and the matter was referred to the Division of Administrative Hearings.

At hearing on March 24, 1995, the record before the Board was received in evidence. The record before the Board consists of the following: 1) the Notice of Appeal with attachments; 2) the Public Hearing Notice for November 10, 1994, and excerpts from the Board's meeting of November 10, 1994; 3) the Variance application and supporting documents; 4) the Staff Report and Recommendation, including excerpts from the Board's meeting of August 8, 1991; and, 5) the tape of the Board's meeting of November 10, 1994.

In addition to the record presented before the Board, Petitioner introduced two exhibits, consisting of a photograph of the subject property and the July 13, 1993 variance application for Palm Pavilion of Clearwater, Inc. which was previously approved by the Board. Petitioner also presented the testimony of Michael Preston, president of Petitioner.

The City of Clearwater presented the testimony of John Richter, a senior planner for the City, and Steve Sarnoff, a central permitting specialist for the City.

Also appearing at hearing was Harry Cline, attorney for Hunter Hotel Co., (Hunter), the owner and operator of the Clearwater Beach Hotel, a contiguous property to the south of Petitioner's establishment. Counsel for Hunter made an ore tenus motion at hearing to intervene as a party in the proceedings on appeal. Petitioner objected to the motion as untimely and prejudicial, and the motion was denied. Counsel for Hunter was, however, permitted pursuant to Section 36.065, City of Clearwater, Land Development Code, to present his own testimony and to introduce one exhibit consisting of City of Clearwater Ordinance No. 2164 which was adopted October 2, 1980. Counsel for Hunter also suggested a lack of jurisdiction on the grounds that this proceeding was improperly filed and received. Ruling on the suggestion was reserved.

On April 18, 1995 the parties, as well as Mr. Cline, as counsel for Hunter, filed proposed findings of fact and conclusions of law. No transcript of the hearing was filed.

FINDINGS OF FACT

1. Petitioner, Frenchy's Rockaway Grill, Inc., is the owner and operator of a restaurant and alcoholic beverage establishment located at 7 Rockaway Street, Clearwater, Florida. Petitioner purchased the property in 1991. Michael Preston is president of Petitioner.

   
   

2. Petitioner's establishment is immediately adjacent to the Gulf of Mexico and Clearwater beach on the west, to the north is a public parking lot, to the east is a motel, and to the south is the Clearwater Beach Hotel, which is owned and operated by Hunter Hotel Co., as indicated above.

   
   

3. On the beach side of Petitioner's establishment there is an existing 972 sq. ft. wooden deck. The existing deck was initially constructed on or about 1987 by prior owners without receiving appropriate variance approvals. Subsequent alterations to the deck occurred between 1987 and 1991, also without appropriate variance approvals.

4. In 1991 Charles and Ypapanti Alexiou/Anthony Alexiou, former owners of the subject property, filed an application for variance approval with the Board seeking three variances relating to the construction of the deck at the 7 Rockaway establishment. Specifically, the variances sought were: "1) 55.5 ft. to permit deck seaward of the coastal construction control line; 2) 15 ft. to permit a deck zero feet from a street right-of-way; and, 3) seven parking spaces to permit a 1,338 sq. ft. deck at 7 Rockaway Street, Miller's Replat, Lot 2 & vacated beach Drive on W and Lot 3, zoned CR 28 (resort commercial) & OS/R (open space recreation)." At public meeting on August 8, 1991, the application was considered by the Board. At that time Mr. Cline, as counsel for Hunter appeared in opposition to the application stating that approval of the variance requests would adversely impact the Clearwater Beach Hotel, that the request was for economic gain, that any hardship was self-imposed, and that development and traffic in the area was already heavy. The Board, however, granted the variance requests as to variances number 1 and number 2., and as to the third request, the Board denied the proposed 1,338 sq. ft. deck, but approved a variance of five parking spaces to permit the existing deck of 972 sq. ft.

   
   

5. On or about July 13, 1993, a variance application was filed with the Board by Howard G. and Jean B. Hamilton and Palm Pavilion of Clearwater, Inc., seeking approval of four variances required for an 800 sq. ft. expansion of an existing deck at a restaurant at 10 Bay Esplanade, Clearwater Beach, Florida. The Palm Pavilion applicants were also represented by Mr. Cline. Like Petitioner's establishment, Palm Pavilion is a beachfront restaurant, which is located directly across the public parking lot to the north of Petitioner's establishment. Unlike Petitioner's establishment, Palm Pavilion is bordered by parking to the south and the east, and is not immediately adjacent to other buildings. On August 26, 1993, the Board granted the Palm Pavilion variance application for expansion of an existing beachfront deck with certain conditions.

   
   

6. On October 6, 1994, Petitioner submitted its application to the Board requesting five variances required for a 650 sq. ft. expansion of the existing wooden deck at 7 Rockaway Street. Specifically, the variances sought were: 1)

   13.22 ft. to permit a lot depth of 86.78 ft. where 100 ft. is required; 2) 8.2 ft. to permit it a rear setback of 6.8 ft. where 15 ft. is required; 3) 14 percent to permit 11 percent of open space where 25 percent is required; 4) three parking spaces to permit zero parking spaces where three additional are required; and, 5) 52.14 ft. to permit a structure seaward of the coastal construction control line.

   
   

7. The subject property at 7 Rockaway Street is properly zoned CR-28 (resort commercial). Any scrivener's error indicating that the property is zoned OSC (open space recreation) has been corrected.

   
   

8. Petitioner's restaurant, Frenchy's Rockaway Grill, is a popular beachside establishment. It is one of very few freestanding restaurants fronting the Gulf of Mexico on Clearwater Beach. Some patrons particularly enjoy dining on the open air deck adjacent to the beach. During peak hours, there is often over an hour's waiting time for tables on the deck. Petitioner is currently unable to accommodate the demand for seating on the beachside deck. Petitioner would sustain an economic benefit if more patrons could be accommodated on an expanded deck. Because of the size constraints of the lot and the establishment's location directly on the beach, development and improvement of the facility is highly restricted.

9. The back of some residential rooms of the Clearwater Beach Hotel are immediately adjacent to the south of Petitioner's establishment. There are small bathroom windows from these residential rooms that face Petitioner's establishment. Petitioner's proposed expansion of the open air deck would place the proposed deck in very close proximity to the back of these residential hotel rooms.

   
   

10. The City's staff reviewed the Petitioner's application and recommended approval with the following conditions: 1) the applicant shall obtain the requisite occupational license within 12 months; 2) the applicant shall obtain the necessary building permit within 6 months; 3) there shall be no outdoor entertainment and no outdoor speakers; 4) the applicant shall obtain the requisite alcoholic beverage separation distance variance from the City Commission. Petitioner agreed to the conditions recommended by staff. The recommendations of staff are not binding on the Board.

    
    

11. In addition to the application for the five variances filed with the Board, Petitioner also filed a conditional use request with the Planning and Zoning Board. The conditional use request was approved on September 13, 1994, and imposed certain other conditions including the construction of a six foot wall on the south side of the proposed deck to buffer the adjoining hotel. Petitioner agreed to the conditions imposed by the Planning and Zoning Board.

    
    

    CONCLUSIONS OF LAW

    
    

12. 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, and Section 36.065, Clearwater Land Development Code. In this respect, the suggestion of counsel for Hunter to dismiss this appeal as improperly filed on the grounds that the subject property is zoned OSC (open space recreation) is DENIED.

    
    

13. Pursuant to section 36.065(6)(c), Clearwater Land Development Code, the Petitioner has the burden to show that the decision of the 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.

    
    

14. In order to meet this burden, under the provisions of section 45.24, Clearwater Land Development Code, the Petitioner must show that the application and the evidence clearly support each of the following standards for approval:

    
    

    1. There are special circumstances related to the particular physical surroundings, shape or topographical conditions applicable to the land or buildings, and such circumstances are peculiar to such land or buildings and do not apply generally to the land or buildings in the applicable zoning district.

    2. The strict application of the provisions of the code would deprive the applicant of the reasonable use of the land or buildings.

    3. The variance is not based exclusively upon a desire for economic or other material gain by the applicant or owner.

    4. The granting of the variance will be in harmony with the general purpose and intent of the land development code and comprehensive plan

       and will not be materially injurious to surrounding properties or otherwise detrimental to the public welfare.

       
       

15. As to the first standard, the application and the evidence clearly reflect that the Board in 1991, by approving the previous variances requested for the subject property, already has recognized and concluded that there are special circumstances relating to the subject property which are equally applicable to the variances now requested.

    
    

16. As to the second standard, the application and evidence likewise reflect that the expansion of the existing deck is a reasonable use of the subject property, and that strict application of the provisions of the code would deprive Petitioner of such reasonable use. The Board similarly found this standard had been met in approving the 1991 application.

    
    

17. As to the third standard, the application and the evidence show that while Petitioner would sustain an economic benefit from an increase in the ability to serve more patrons on the expanded deck, there is also a benefit to existing patrons to be served in a more efficient manner. The evidence reflects that the Board in approving the 1993 Palm Pavilion application for variances found that providing better service for existing patrons was sufficient to meet this standard. Accordingly, the variances are not sought exclusively for economic gain.

    
    

18. As to the fourth standard, the application and the evidence show that the expansion of the Petitioner's existing deck would bring the proposed deck in very close proximity to residential rooms of the Clearwater Beach Hotel. In 1991, the Board denied the Alexiou application for variances to allow for a 1,338 sq. ft. deck at Petitioner's establishment. In this respect, there is a material distinction between Petitioner's application and the 1993 Palm Pavilion application in that there are no residential buildings adjacent to Palm Pavilion. Under the provisions of Section 45.24, City of Clearwater Land Development Code, Petitioner has the burden of presenting evidence that clearly supports the conclusion that granting of the requested variances will not be materially injurious to the surrounding property. The evidence presented fails to demonstrate that expansion of the existing open air deck to a very close proximity to the adjacent residential rooms of the Clearwater Beach Hotel will not create an additional disturbance and therefore be materially injurious to the surrounding property. Accordingly, Petitioner has not met its burden as to the fourth standard.

    
    

19. Petitioner suggests that the decision of the Board departs from the essential requirements of law. It is an essential requirement of law that persons receive treatment equal to others similarly situated. Gessler v. Department of Business and Professional Regulation, 627 So.2d 501 (Fla. 4th DCA 1993). In this respect, the Board approved a similar variance application for Palm Pavilion in 1993. As indicated above, however, there are material differences between the nature of the surrounding properties that distinguish the two applications. Accordingly, the Board decision in this matter does not depart from the essential requirements of law.

DISPOSITION

Based on the foregoing findings of fact and conclusions of law, the decision of the City of Clearwater Land Development Code Adjustment Board denying Petitioner's application for variances is AFFIRMED.

RECOMMENDED in Tallahassee, Leon County, Florida, this 5th day of May, 1995.

RICHARD HIXSON

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 5th day of May, 1995.

COPIES FURNISHED:

James J. Dowling, Esquire 1151 Tampa Road, Suite C Palm Harbor, Florida 34683

Miles A. Lance, Esquire City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

Harry S. Cline, Esquire Post Office Box 1669 Clearwater, Florida 34617

Cynthia Goudeau City Clerk's Office City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618

Docket for Case No: 94-006776

Orders for Case No: 94-006776