STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE CEPCOT CORPORATION AND ) CLEARWATER TRAIN STATION, ) INC., )

)

Petitioners, )

)

vs. ) Case No. 03-2585

) CITY OF CLEARWATER PLANNING ) DEPARTMENT, )

)

Respondent. )

)

FINAL ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the appeal hearing in Clearwater, Florida, on October 9, 2003.

APPEARANCES

For Petitioner: Darryl R. Richards

Johnson, Pope, Bokor, Ruppel & Burns, P.A.

911 Chestnut Street

Clearwater, Florida 33756

For Respondent: Leslie K. Dougall-Sides

City of Clearwater Post Office Box 4748

Clearwater, Florida 33758-4748 STATEMENT OF THE ISSUE

The issue on appeal is whether, pursuant to Clearwater Code of Ordinances Section 4-505, to sustain or reverse, with or without conditions, the decision of the Community Development

Board on June 20, 2003, denying Cepcot Corporation's application to build a convenience store with two islands for pumping gas.

PRELIMINARY STATEMENT

On May 20, 2003, Petitioner filed an application with Respondent for approval of a development. Respondent's Development Review Committee examined the application, and Respondent's Community Development Board published notice that it would consider the application at its meeting of June 17, 2003. At the meeting, the Community Development Board denied the application and issued its Development Order to this effect on June 20, 2003.

On June 25, 2003, Petitioners timely filed a Notice of Appeal of the determination of the Community Development Board. Respondent transmitted the appeal to the Division of Administrative Hearings, which conducted the hearing pursuant to City of Clearwater Community Development Code Section 4-505.

At the hearing, the parties did not present witnesses.

Instead, they presented Joint Exhibits 1-5 and Petitioner Exhibits 1-2, all of which were admitted.

The court reporter filed the transcript on October 29, 2003. The parties filed their Proposed Final Orders on the same date.

FINDINGS OF FACT

1. Petitioner The Cepcot Corporation (Cepcot) owns real property located at 657 Court Street in the downtown zoning district of the City of Clearwater (Property). On December 17, 2002, Cepcot filed a Flexible Development Application for a comprehensive infill redevelopment project (Application) on the Property.

2. At the time of the proposal, the Property, which comprises 0.95 acres, was developed with a restaurant in a building that was the former Clearwater train station, a thrift store, and a park. The Application proposes the demolition of these improvements and their replacement with a 3200 square-foot convenience store and two gas pump islands.

3. The Property fronts Chestnut Street to the south, East Avenue to the east, and Court Street to the north. The surrounding area is developed with office uses to the west and south, a privately owned utility plant to the north, and warehouse uses to the east. Upon the completion of the Memorial Causeway bridge, which is presently under construction, traffic to the beach will use Court Street and traffic from the beach will use Chestnut Street.

4. In response to questions and suggestions from Respondent's staff, Cepcot revised the proposed site plan several times. The Application is presently complete.

   Respondent's Planning Department prepared a Staff Report, which finds that the proposed project does not meet certain requirements and recommends denial of the Application on several grounds.

5. On June 17, 2003, Respondent's Community Development Board (CDB) considered the Application. CDB denied the Application and issued a development order explaining the reasons for denial as follows:

   1. The proposal is inconsistent with the adopted Community Development Code, the Comprehensive Plan, 1995 Clearwater Downtown Redevelopment Plan, and the Downtown Design Guidelines.

      
      

   2. The proposed automobile service station is not a permitted use within the downtown district.

      
      

   3. Approval of the proposed use may encourage other like uses and may be detrimental to downtown redevelopment.

      
      

   4. The proposal does not comply with the Flexible Development criteria as a comprehensive infill redevelopment project per Section 2-803.

      
      

   5. The proposal is not in compliance with the other standards in the Code including the general applicability criteria for Section 3-913.

      
      

   6. Most of the reasons cited for denial involve Respondent's Community Development Code (CDC), which is the land development regulations. The Property is in the Downtown District. CDC Section 2-901 states: "The intent and purpose of

      the Downtown District is to establish a mixed use downtown where citizens can work, live, and shop in a place which is the economic, governmental, entertainment and cultural focal point of a liveable city."

   7. CDC Section 2-902 sets forth the permitted uses within the Downtown District, and CDC Chart 2-100 lists permitted uses by zoning district. The proposed uses are not among the permitted uses for the Downtown District (or the Tourist District, to which portions of the record refer). CDC Section 2-903.C sets forth the following ten criteria to be applied in determining if the proposed use qualifies as a Comprehensive Infill Redevelopment Project (CIRP) that may qualify an otherwise non-permitted use:

      1. The development or redevelopment of the parcel proposed for development is otherwise impractical without deviations from the use, intensity and development standards;

         
         

      2. The development of the parcel proposed for development as a Comprehensive Infill Redevelopment Project will not reduce the fair market value of abutting properties;

         
         

      3. The uses within the comprehensive infill redevelopment project are otherwise permitted in the City of Clearwater;

         
         

      4. The uses or mix of uses within the comprehensive infill redevelopment project are compatible with adjacent land uses;

         
         

      5. Suitable sites for development or redevelopment of the uses or mix of uses within the comprehensive infill redevelopment

         project are not otherwise available in the City of Clearwater;

         
         

      6. The development of the parcel proposed for development as an comprehensive infill redevelopment project will upgrade the immediate vicinity of the parcel proposed for development;

         
         

      7. The design of the proposed comprehensive infill redevelopment project creates a form and function which enhances the community character of the immediate vicinity of the parcel proposed for development and the City of Clearwater as a whole;

         
         

      8. Flexibility in regard to lot width, required setbacks, height and off-street parking are justified by the benefits to community character and the immediate vicinity of the parcel proposed for development and the City of Clearwater as a whole;

         
         

      9. Adequate off-street parking in the immediate vicinity according to the shared parking formula in Division 14 of Article 3 will be available to avoid on-street parking in the immediate vicinity of the parcel proposed for development;

         
         

      10. The design of all buildings complies with the Downtown District design guidelines in Division 5 of Article 3.

          
          

   8. CDC Section 3-913.A sets forth the General Applicability criteria. CDC Section 3-913.A.1 states: "The proposed development of the land will be in harmony with the scale, bulk, coverage, density, and character of adjacent properties in which it is located." CDC Section 3-913.A.5 states: The proposed development is consistent with the

      community character of the immediate vicinity of the parcel proposed for development."

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.569, Fla Stat. (2003), and CDC Sections 4-501 and 4-505.

   10. CDC Section 4-505.B provides that the hearing officer conducting this appeal shall receive "the record before [CDB]" and "oral argument." Absent a factual dispute concerning the contents of the record before CDB, the hearing officer does not receive evidence at the appeal hearing.

   11. There is no material factual dispute as to the contents of the record before CDB in this case. The inclusion and consideration of Petitioners' exhibits as part of the record before CDB does not dictate a different result.

   12. CDC Section 4-505.D directs the hearing officer to enter findings of fact, conclusions of law, and a determination approving, approving with conditions, or denying the Application. The appellate nature of this proceeding commands a greater level of deference to the actions of CDB than would apply if this case were de novo. The findings of fact thus consist of undisputed direct facts, largely culled from the Application, CDB's development order, and Respondent's planning documents. Based upon these findings of fact, the hearing

       officer then reviews the ultimate findings of fact and conclusions of law of CDB.

   13. CDC Section 4-505.C provides:

       
       

       The burden shall be upon the appellant to show that the decision of [CDB] cannot be sustained by the evidence before the board, or that the decision of the board departs from the essential requirements of law.

       
       

   14. The reference to "evidence" in CDC Section 4-505.C is to "competent, substantial evidence." See Sobeliski v. City of Clearwater and Mariani, DOAH Case No. 02-3637 (January 13, 2003). Compare DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957) ("Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred. . . . [T]he evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. To this extent, the 'substantial' evidence should also be 'competent.'")

   15. Petitioners do not cite any procedural irregularities as grounds for their challenge in this case. Instead, they challenge CDB's substantive determinations that the proposed project was inconsistent with various planning documents. Because CDB's determination that the proposed project was inconsistent with the CDC is sustained, it is unnecessary to

       consider the other planning documents, with which CDC found inconsistencies.

   16. CDB's determination that the proposed project is inconsistent with the CDC is supported by competent, substantial evidence and does not depart from the essential requirements of law.

   17. Stressing the literal wording of the first CIRP criterion, Petitioners argue that their proposed project satisfies this criterion because it would deviate only from the use standard of the CDC, not the "use, intensity and development standards" of the CDC. CDB applied this requirement in the disjunctive, so that the failure of the proposed project to satisfy the use standard meant that it failed the first CIRP criterion, absent evidence that the redevelopment of the Property is otherwise "impractical."

   18. CDB's application of the first CIRP criterion is supported by competent, substantial evidence and does not depart from the essential requirements of law. Common sense suggests that the CDC's use of the conjunctive, rather than the disjunctive, was inadvertent; otherwise, the attempt to designate certain uses at certain intensities would fail, as partial compliance would satisfy the language of this regulation. Moreover, the redevelopment of the Property is not impractical without deviations from the applicable use,

       intensity, or development standards. Permitted uses are numerous, and the Property appears suitable for any number of

       them.

       
       

   19. The proposed project satisfies the second, third,

       
       

       fifth, eighth, and ninth CIRP criteria. Respondent did not contend to the contrary at the appeal hearing or in its proposed final order. Although Respondent argued at the appeal hearing that the proposed project fails to satisfy the fourth criterion, based in part on a strained reading of this criterion to apply to future rather than existing land uses, Respondent has not so argued in its proposed final order. Likewise, Respondent has abandoned its argument that the proposed project is not consistent with the sixth criterion.

   20. Respondent continues to contend that the proposed project fails to satisfy the seventh and tenth CIRP criteria. The immediate vicinity of the Property is occupied by offices, warehouses, and a small utility plant. A gas station and convenience store would serve the beach-bound traffic, although it would serve as well the nontransportation functions of surrounding uses. Additionally, the proposed project, as a nonurban convenience store with a couple of gas pumps, would cover little of the Property, and CDB may lawfully determine that the proposed project would appear disharmonious with the surrounding bulkier structures. Under these circumstances,

       CDC's determination concerning the seventh CIRP criterion is supported by competent, substantial evidence and does not depart from the essential requirements of law.

   21. However, it is unclear how the proposed project fails to satisfy the tenth CIRP criterion. In its proposed final order, Respondent did not expand upon its claim that the project fails to satisfy this criterion. The basis for this claim seems to involve off-street parking, but, if the proposed project satisfies the ninth CIRP criterion, it should also satisfy the tenth CIRP criteria, after that criterion is reduced to off- street parking concerns. Under these circumstances, CDC's determination concerning the tenth CIRP criterion is not supported by competent, substantial evidence and departs from the essential requirements of law.

   22. Petitioners argue that Respondent must balance the ten CIRP criteria, so that the failure to satisfy any single criterion does not preclude qualification as a CIRP. CDC applied these ten criteria in the conjunctive, so that the failure to satisfy any single criterion precludes qualification as a CIRP. As the practical reading of the first CIRP criterion supported CDB's application of this criterion's three requirements in the disjunctive, so does the practical reading of the ten CIRP criteria support CDB's application of these requirements in the conjunctive. Failing to satisfy the first

       and seventh CIRP criteria, the proposed project therefore does not qualify as a CIRP.

   23. It is unnecessary to consider CDB's determination that the proposed project fails to satisfy the first and fifth General Applicability criteria, or Petitioners' argument that the General Applicability criteria are inapplicable. These General Applicability criteria emphasize the form and appearance of adjacent properties and are incorporated into the part of the seventh CIRP criterion covering form.

ORDER

It is

ORDERED that the decision of the Community Development Board to deny the Application is sustained.

DONE AND ORDERED this 2nd day of December, 2003, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 2003.

COPIES FURNISHED:

Cynthia Goudeau, City Clerk City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

Cynthia Tarapani, Planning Director City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

Darryl R. Richards Johnson, Pope, Bokor,

Ruppel & Burns, P.A.

911 Chestnut Street

Clearwater, Florida 33756

Leslie K. Dougall-Sides City of Clearwater

Post Office Box 4748 Clearwater, Florida 33758-4748

NOTICE OF RIGHT TO JUDICIAL REVIEW

Pursuant to Clearwater Code of Ordinances Section 4-505.D, a party may obtain judicial review of this Final Order by filing an application for a writ of common law certiorari in the appropriate circuit court.

Docket for Case No: 03-002585

Orders for Case No: 03-002585