Findings Of Fact The Petitioner has an option to purchase property located at 301-307 Island Way Boulevard, Island Estate, Clearwater, Florida, on which he proposes to construct ten townhouses. Initially Petitioner asked for two variances. The first variance was for 25.12 feet to allow construction on a lot only 124.88 feet wide. This variance was granted for this nonconforming lot. The second variance, for 13.24 feet to allow construction of the ten townhouse complex 12 feet from the side property line, was denied by the Clearwater Code Adjustment Board. The Board concluded the variance requested did not meet the requirements of Section 45.24 of the Clearwater Land Development Code. Petitioner presented evidence that if the lot had been 150 feet wide they would have had 90 feet to build on without requesting any variance. However, since the lot was nonconforming, in order to have 89 feet on which to place the building, the requested variance would be necessary. Petitioner also presented evidence that the construction of ten townhouses on this lot is necessary for the project to be on a solid economic basis. Subsequent to the denial of this variance by the Development Code Adjustment Board, Petitioner submitted plans, which have been approved by the City of Clearwater, to erect nine townhouses on this property without any variance needed. However, these townhouses would be smaller than would be the ten townhouses initially proposed and would provide a lesser return on the capital invested.
The Issue The issue is whether Bayou Arbors, Inc. (Arbors), is entitled to a dredge and fill permit to construct docks in DeBary Bayou, Volusia County, Florida.
Findings Of Fact On January 8, 1986, DER received an application from Arboretum, a predecessor in interest of Arbors, to construct 12,758 square feet of docks in DeBary Bayou to provide ninety eight (98) boat slips, and to dredge 2,509 cubic yards of shoreline material from DeBary Bayou in areas within DER's jurisdiction under the proposed boat docks, and to place approximately 800 linear feet of concrete riprap along the shoreline after it was dredged. Following the initial application review process, which included on- site evaluations by several DER biologists, on April 14, 1986, DER prepared a Biological and Water Quality Assessment in which DER's staff recommended that the project be modified to delete the dredging, allowing the littoral zone to remain intact. On April 24, 1986, DER forwarded its Biological and Water Quality Assessment to Mr. Charles Gray, the property owner. In response to DER's recommendations, the Applicant submitted, and on April 30, 1986, DER received, a revised Application which deleted the originally-proposed shoreline dredging of 2,509 cubic yards of material as well as the placing of 800 linear feet of concrete riprap. This Application was submitted by Mr. Duy Dao, a Professional Engineer registered in the State of Florida. This Application proposed constructing approximately 17,000 square feet of docking facilities, providing ninety-eight boat slips, along approximately 2,580 linear feet of shoreline adjacent to twenty-four acres of uplands owned by the Applicant. The original and the revised drawings omitted a vertical scale from the cross-section drawings of the project. This omission gave the impression that the shoreline bank of DeBary Bayou was steeper than it actually is and that the water depths in DeBary Bayou adjacent to the north shoreline are deeper than they actually are. However, DER's biologists were on-site four times between February 25, 1986, and May 19, 1986. They observed the existing slope of the DeBary Bayou shoreline and the existing depths in DeBary Bayou, and the on-site observations negated the effect of the omission in the drawings. The omission in the drawings did not affect DER's evaluation of the project. On May 23, 1986, DER issued its Intent to Issue and Draft Permit No. 64-114399-4 to Arboretum. The Intent to Issue and the Draft Permit include the following Specific Conditions: Further construction on the Applicant's property along the DeBary Bayou shall be limited to uplands; Issuance of this permit does not infer the issuance of a permit for dredging in the Bayou at a future date, should an application for dredging be submitted; A deed restriction shall be placed on the condominium limiting boats moored at the facility to seventeen feet or less. A copy of the deed restriction shall be submitted to the Department within sixty days of issuance of this permit; There shall be no "wet" (on-board) repair of boats or motors at this facility; All boats moored at the dock shall be for the use of residents of the condominium only. Public use of the dock or rental or sale of mooring slips to non-residents of the condominium is prohibited; Manatee warning signs shall be placed at 100 foot intervals along the length of the dock(s); Turbidity shall be controlled during construction (by the use of siltation barriers) to prevent violations of Rule 17-3.061(2)(r), Florida Administrative Code. On June 29, 1987, Volusia County, DER and Arboretum entered into a "Joint Stipulation for Settlement" wherein Arboretum agreed not to construct more than twenty-six docks accommodating more than fifty-two boat slips along Arboretum's DeBary Bayou frontage of 2,580 feet. Furthermore, Arboretum agreed that it would modify the configuration and the design of the boat slips and the location of the boat docks; that it would post Slow Speed, No Wake zone signs and manatee education signs along DeBary Bayou from the 1-4 bridge west to a point 100 feet west of the western boundary of Arboretum's boat docks; and that as mitigation for the removal of vegetation from the littoral zone where the boat slips would be constructed, Arboretum would plant wetland hardwood trees. In addition to the Joint Stipulation for Settlement, on June 14, 1987, the property owners, Charles Gray and Sandra Gray, as part of their agreement with Volusia County, executed a "Declaration of Covenants, Conditions, and Restrictions" to which the Joint Stipulation for Settlement was attached as an exhibit. Said Declaration of Covenants, Conditions, and Restrictions, reiterated the Joint Stipulation's limitation of construction of boat docks in DeBary Bayou and further provided that said boat docks would not be constructed at the Arboretum project site in DeBary Bayou unless and until certain maintenance dredging set forth in Article II of the Declaration of Covenants, Conditions, and Restrictions occurred. Furthermore, Article III of said Declaration of Covenants, Conditions and Restrictions set forth certain prohibitions regarding constructing boat ramps on the Arboretum property and docking or storing boats along the DeBary Bayou shoreline except at the site of the proposed docks. In 1969, an artificial channel was excavated in DeBary Bayou adjacent to the north shoreline of DeBary Bayou by a dragline operating along the shoreline. At present, said channel has been partially filled by organic sediments originating in DeBary Bayou. There exists in Section 403.813(2)(f), Florida Statutes, an exemption from the DER's permitting requirements for the performance of maintenance dredging of existing man-made channels where the maintenance dredging complies with the statutory provisions and with the regulatory provisions found in Florida Administrative Code Rule 17-4.040(9)(d). The dragline excavation work performed in DeBary Bayou in 1969 created a structure which conforms to the definition of "channel" provided in Section 403.803(3), Florida Statutes. The maintenance dredging required by the Declaration of Covenants, Conditions, and Restrictions is to be performed by suction vacuuming of the silt sediment, from the 1969 channel and that dredged material is to be placed on Arbors' upland property at the project site. This maintenance dredging differs from the dredging originally proposed by the applicant in its application submitted in January 1986. The dredging originally proposed, which DER recommended against, was to be performed by back hoes and drag-lines which would have cut into the north shoreline of DeBary Bayou and would have affected the littoral zone along the project shoreline. The average water level in Lake Monroe and DeBary Bayou is approximately 1.8 feet above mean sea level. On April 18, 1987, transact studies in DeBary Bayou showed water levels at 3.2 feet above mean sea level and that water depths in DeBary Bayou to a hard sand/fragmented shell bottom ranged from approximately one foot along the south shoreline to approximately nine feet in deep areas in the former channel. The average depth of the channel is five feet below mean sea level. The water depth in DeBary Bayou ranges from approximately one to three feet. At times of average water levels, one to three feet of silt or unconsolidated sediment overburden covers the natural hard sand/shell bottom of DeBary Bayou. This silt and sediment overburden is composed of organic material and is easily disturbed. When it is disturbed, it raises levels of turbidity, although there was no evidence presented that the turbidity would violate state water quality standards. This silt and sediment overburden has been deposited at a faster rate than it would normally be deposited under natural conditions because of the Army Corps of Engineers' herbicidal spraying of floating plants in DeBary Bayou. As this silt and sediment overburden decomposes, it takes oxygen from the water. The presence of a strong odor of hydrogen sulfide indicates that the oxygen demand created by the sediment is greater than the available supply of oxygen at the sediment-water interface. This unconsolidated silt and sediment overburden does not appear to harbor either submerged vegetation or significant macroinvertebrate populations. The Shannon/Weaver diversity index of benthic macroinvertebrates at four locations in DeBary Bayou indicated lowest diversity at the project site and highest diversity at the 1-4 overpass, where a small patch of eel grass is growing. Removal of this silt and sediment overburden from the 1969 channel will enhance the system, enabling a hard bottom to be established, with a probability of subsequent establishment of a diversity of submerged macrophytes. Removal of the silt and sediment overburden from the 1969 channel will restore the natural hard sand/fragmented shell bottom in that area of DeBary Bayou. It is unlikely that boat traffic in the restored channel will cause turbidity which will violate state water quality standards. Removal of this silt and sediment overburden will improve water quality in DeBary Bayou by removing a source of oxygen demand. Removal of this silt and sediment overburden will create a better fish habitat by exposing some of the natural bottom of DeBary Bayou. Fish are unable to spawn in the unstable silt and sediment. Removal of this silt and sediment overburden will increase the depth of water in DeBary Bayou channel to between four to six feet. The maintenance dredging, required by the Declaration of Covenants, Conditions, and Restrictions, is limited by statute to the channel which was excavated in 1969. Therefore, a continuous channel will not be maintained from the project site eastward to Lake Monroe. At present, a sandbar exists at the confluence of DeBary Bayou and Lake Monroe. During low water, this sandbar restricts navigation into and out of DeBary Bayou to small craft. At present, boats can and do travel on DeBary Bayou for fishing and for other water-related recreational activities. However, due to water level fluctuations, boating on DeBary Bayou is easier during higher water periods. During lower water periods, navigation into and out of DeBary Bayou is still possible, but boaters must proceed using common sense and caution. The United States Fish and Wildlife Service (FWS) has no evidence that manatees presently use or have ever used DeBary Bayou. Adult manatees have an average girth of approximately three (3) feet. Without a continuous channel open to Lake Monroe, manatees are not likely to go up DeBary Bayou. Since the water at the sandbar at the mouth of DeBary Bayou at its confluence with Lake Monroe is generally less than three feet deep throughout the year, it is likely that these shallow waters will deter manatees from entering DeBary Bayou. DeBary Bayou is a spring-fed run from a spring a substantial distance upstream. The sheetflow of the spring water follows a circuitous route through marsh areas prior to reaching the area of this project. The proposed site is just west of the 1-4 overpass and Lake Monroe. The FWS's data show that the St. Johns River in Volusia County has an extremely low documented manatee mortality rate resulting from boat/barge collisions. Generally, boats greater than 23 feet long are more likely to kill manatees outright than smaller boats are. In marinas, manatees are very rarely killed by collisions with boats. Manatees and marinas are highly compatible. On August 1, 1986, the FWS issued a "no-jeopardy" opinion regarding Arbors' project. In this letter, the FWS stated that Arbors' project was not likely to jeopardize the continued existence of the manatee or to adversely modify the manatee's critical habitat. In the year since the FWS issued its no-jeopardy opinion, no manatee mortalities resulting from boat-barge collisions have been documented in the St. Johns River in Volusia County. The FWS recommended one boat slip per one hundred linear feet of waterfront, or twenty-six boat slips for the project. A single-family residence which would be entitled to one pier could berth an unlimited number of boats at that single pier. The FWS would have no control over the number of boats using that single pier. Arbors' project calls for twenty-six piers. The FWS's evaluation of Arbors' project is exactly the same as that agency's evaluation of any other marina project anywhere in areas designated as critical manatee habitat. All of the St. Johns River in Volusia County, Florida, is designated as critical manatee habitat. On July 16, 1986, after issuance of its Intent to Issue, DER received comments from the Florida Department of Natural Resources regarding Arbors' project and its potential impact on manatees. DER considered the possibility of boat/manatee collisions and had specifically considered this issue. DER did not agree with the broad and general concerns expressed by the Department of Natural Resources, and DER's rules have not adopted a specific requirement regarding a ratio between the length of a project's shoreline and the number of permittable boat slips. On July 16, 1986, the Department received a letter from the FWS concerning fisheries issues and navigation. This FWS letter was received after issuance of DER's Intent to Issue. Although DER considered these comments, DER disagreed with the FWS's recommendations regarding these issues. Water quality sampling and analysis showed that at present, there are no violations of DER's Class III water quality standard in DeBary Bayou, except for the dissolved oxygen criterion on some occasions during early-morning hours, and that result is to be expected. It is further not expected that there will be any water quality violations after the project is completed. If the work areas affected by driving piles to build floating docks and the work area around the maintenance dredging of the DeBary Bayou channel are contained within turbidity barriers, as required by general and specific conditions of the DER's proposed Draft Permit, it is anticipated that no violations of the Class III turbidity criterion will occur during construction of Arbors' project. By maintenance dredging the former DeBary Bayou channel, Arbors will remove the silt and sediment overburden from the channel and restore a deep (four to five feet below mean sea level) channel having a hard sand/fragmented shell bottom. Arbors' dock will be restricted to small boats whose operation in the deep channel will be unlikely to re-suspend silt and sediment and cause violations of the Class III turbidity criterion. Additionally, it is unlikely that any turbidity which is created by turbulence from boat propellers in a designated "No Wake, Slow Speed" zone will violate the Class III turbidity criterion. Although the entire project will be enhanced by the proposed maintenance dredging, such dredging is not a part of the permit application. From the evidence it appears that the project is permittable without the dredging. Although Arbors' project will result in the addition of some oils and greases associated with outboard motors to DeBary Bayou, the addition is not expected to result in violations of the Class III water quality standards. Additionally, release of heavy metals from anti-fouling paints should be minimal, and that release can be further controlled by specifically prohibiting over-water repair of boats and motors. Some addition of phosphorous to the waters of DeBary Bayou is anticipated due to use of phosphate-based detergents for washing boats. Additionally, minimal amounts of phosphorous may be added to DeBary Bayou from re-suspension of organic silts by turbulence from boat propellers. However, DER has no standards for phosphorous in fresh waters, and the minimal additional amounts of phosphorous expected from these sources are not anticipated to violate DER's general nutrient rule. Operation of boats at Arbors' proposed boat docks will cause no water quality problems which would not be caused by operation of boats at any other marina anywhere in Lake Monroe or anywhere else in the State of Florida. While WVC's expert, Robert Bullard, testified that Arbors' proposed boat docks could potentially cause violation of DER's Class III water quality criteria for turbidity, oils and greases, heavy metals and phosphorous, he was unable to testify that Arbors' project actually would cause such violation. His testimony in this regard was speculative and is not given great weight. No other WVC expert testified that Arbors' project was likely to cause violation of any criteria of DER's Class III water quality standards. It is anticipated that the shade cast by the boat docks will not have an adverse affect on water quality. Additionally, DeBary Bayou is a clear, spring-fed water body open to direct sunlight. The boat docks will cast shade which will enhance fish habitat. The proposed docks will not threaten any production of fish or invertebrate organisms. The mitigation plan proposed by the applicant and accepted by Volusia County and DER requires planting wetland hardwood tree species. These trees will certainly assist in stabilizing the bank of DeBary Bayou and minimizing erosion of the shoreline. Additionally, these trees will absorb nutrients from the water and will perpetuate the wooded wetland habitat along the DeBary Bayou shoreline. Arbors' own expert, Carla Palmer, also suggested the sprigging of eel grass in the dredged portion of DeBary Bayou. Such planting should be included as part of the mitigation plan. DER considered the cumulative impact of this docking facility. Four marinas are presently permitted on Lake Monroe and in the St. Johns River between Lake Monroe and Deland. DER considered these facilities' existence when it reviewed Arbors' application, and was satisfied that Arbors' boat dock facility would not have an adverse cumulative impact. There are no specific guidelines for a cumulative impact evaluation; accordingly, DER must apply its cumulative impact evaluation on a case-by-case basis. In the present case, there is no showing of adverse cumulative impacts from this project. Arbors' project will not adversely affect significant historical or archaeological resources recognized pursuant to applicable Florida or Federal Law. WVC was organized in March 1985, to oppose development in West Volusia County. WVC did not meet regularly and did not keep regular minutes of its meetings in the interim between organizing and filing the Petition in June 1986, for an administrative hearing on the Intent to Issue a permit for Arbors' project. When the Petition was filed, WVC did not have a membership roll, and was unsure how many members it had. Further, it is unclear as to how many members may have attended an "emergency" meeting to authorize filing said Petition. Approximately five months after said Petition was filed, WVC was incorporated and approximately nine months after the Petition was filed, WVC compiled a list of the people who were WVC members in June 1986. The emergency meeting WVC held in June 1986, to authorize filing said Petition was the first and the only such "emergency" meeting WVC ever held. The minutes of the emergency meeting have been lost. In June 1986, WVC may have had written rules authorizing emergency meetings and authorizing it to file suit, but its Chairman is unsure of this. Six of WVC's approximately 20 members may have lived within one mile of Arbors' project site in June 1986. Two of these members lived on waterfront property on Lake Monroe east of the 1-4 bridge. Some of these WVC members have never taken a boat west of 1-4 onto DeBary Bayou. WVC, as an organization, never sponsored outings or boat trips onto DeBary Bayou before filing the Petition. WVC's officers at the time of filing the Petition did not use DeBary Bayou for boating, fishing or swimming. No WVC members have ever seen manatees in DeBary Bayou. As with any other similar project on Lake Monroe, the boats which might be berthed at Arbors' project might add additional trash to the waters of Lake Monroe, might disturb the wildlife which WVC members might see on their property, and might cause wakes which might erode waterfront property. One of WVC's founders, who was an officer in June 1986, when WVC filed the Petition, stated that she would not be adversely affected in kind or degree any more than any other taxpayer in Florida. Friends timely intervened and its intervention was authorized by its membership at a regularly noticed meeting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order granting Permit Number 64-114399-4, subject to those specific conditions set forth in paragraph 6 hereof and as modified by the stipulation entered into between Arboretum, Volusia County, and Department of Environmental Regulation, as more particularly described in paragraphs 7 and 8 hereof, and to include within the mitigation plan the sprigging of eel grass in areas of the dredged portion of DeBary Bayou. DONE AND ENTERED this 16th day of September 1987, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of September 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2463 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner and Intervenor, West Volusia Conservancy, Inc., and Friends of the St. Johns, Inc. 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3); 2(5); 8(24); 13(8); 46(57); and 47(57). 2. Proposed findings of fact 3, 4, 7, 10, 11, 12, 28, 29, 32, 34, 35, 36, 40, 42, 43, 44, and 45 are rejected as being subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 5, 14, 15, 16, 17, 20, 23, 24, 25, 26, 27, 30, 31, 33, 39, and 41 are rejected as being unsupported by the competent, substantial evidence. 4. Proposed findings of fact 6, 9, 18, 19, 21, 22, 37, and 38 are rejected as irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Bayou Arbors, Inc. 1. Each of proposed findings of fact 1-56 are adopted in substance as modified in the Recommended Order, in Findings of Fact 1-56. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Environmental Regulation Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-11(1-11); 13-28(12-27); 29-38(29-38); 39(38); and 40-48(39-47). Proposed finding of fact 12 is rejected as unnecessary. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Richard S. Jackson, Esquire 1145 West Rich Ave. Deland, Florida 32720 Dennis Bayer, Esquire P. O. Box 1505 Flagler Beach, Florida 32036 Philip H. Trees, Esquire P. O. Box 3068 Orlando, Florida 32802 Vivian F. Garfein, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301-8241
Findings Of Fact Background Petitioner, David E. Musselman, is the owner of Lot 23, Block 22, Cudjoe Gardens Eighth Addition, Cudjoe Key, Monroe County, Florida. The lot measures 127 feet along its front and rear property line, 135 feet along its side property lines and, similar to adjacent lots, its rear property line abuts an artificially created waterway. Currently, most of petitioner's lot enjoys an elevation of six feet; however, from the edge of the waterway landward a distance of approximately 20 feet [to what has been referred to as the "toe of the existing slope" in these proceedings] the surface consists of exposed caprock at an elevation of approximately four inches above mean high water. It is petitioner's desire to construct a single family residence upon such lot and, incident to such construction, to erect a seawall along the edge of the waterway such that the elevation at the waterway will be increased by two feet, and to backfill from the seawall to his home. Such backfilling would require the deposition of approximately 3,540 square feet of fill within the Department's jurisdiction, which was shown to extend from the edge of the waterway to the toe of the existing slope, and would raise the elevation in such area two feet above existing grade. On December 16, 1991, petitioner filed an application with respondent, Department of Environmental Regulation (Department), for an exemption from the Department's wetland permitting requirements. If approved, such exemption would allow petitioner to construct the vertical seawall along the waterway, and backfill from the seawall to his proposed home. By notice of agency action dated February 14, 1992, the Department proposed to deny petitioner's application predicated on its conclusion that his proposal did not meet the exemption criteria established by Rule 17- 312.050(1)(g), Florida Administrative Code. Petitioner filed a timely protest to contest the Department's conclusion. The exemption Pertinent to this case, Rule 17-312.050(1)(g), Florida Administrative Code, exempts from permitting the following activities: (g) Construction of seawalls or riprap, including only that backfilling needed to level the land behind the seawalls or riprap, in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or adversely affect flood control. An artificially created waterway shall be defined as a body of water that has been totally dredged or excavated and which does not overlap natural surface waters of the state. For the purpose of this exemption, artificially created waterways shall also include existing residential canal systems . . . . At hearing, the parties stipulated that the waterway which abuts the rear property line of petitioner's lot is an artificially created waterway, as well as an existing residential canal, and that the proposed project will not violate existing water quality standards, impede navigation, or adversely affect flood control. Notwithstanding, the Department contends that petitioner's application should be denied because no need has been demonstrated that would support the construction of the seawall along the edge of the waterway, as opposed to locating it further inland, and therefore the amount of backfill, with its attendant loss of wetlands, is excessive. For the reasons set forth in the conclusions of law, the Department's position is untenable as a matter of law. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order approving petitioner's application for an exemption to construct a seawall, and to backfill from such seawall to his proposed home, as applied for. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of June 1992. WILLIAM J. KENDRICK 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 4th day of June 1992.
The Issue The issue in this case is whether the evidence sustains the decision of the City of Clearwater Development Code Adjustment Board (the Board) to deny the application of the Appellant, Richard P. Levy, d/b/a T-Shirt Factory, for a four parking space variance at his property located at 1498 Gulf to Bay Boulevard, at the junction of Gulf to Bay Boulevard, Highland Avenue and Court Street, Clearwater, Florida. (The variance is required as a result of his desire to convert 877.5 square feet of storage space in his building on the property to retail use.)
Findings Of Fact Appellant, Richard P. Levy, d/b/a T-Shirt Factory, owns part of lots 5 and 8, and all of lots 6 and 7, Block G, Boulevard Heights, at 1498 Gulf to Bay Boulevard, at the junction of Gulf to Bay Boulevard, Highland Avenue and Court Street, 0.24 acres, more or less, Clearwater, Florida. The T-Shirt Factory utilizes back-out parking into Gulf to Bay Boulevard and Highland Avenue. This type of parking for retail use is a traffic hazard and does not conform to the requirements of the City of Clearwater Land Development Code (the Code), but the property enjoys the benefit a having its retail use "grandfathered" under the Code because the prior owner also used the property and parking for retail sales at the time the Code was adopted. Gulf to Bay Boulevard is a busy and fairly high speed traffic artery. Highland Avenue also is a busy street. They meet at an acute angle with the Appellant's property inside the angle. Gulf to Bay Boulevard and Court Street, also a busy and fairly high speed traffic artery, meet at an acute angle just across the street from the Appellant's property, further complicating the traffic pattern in the vicinity of the Appellant's property. The Appellant filed its application for a four parking space variance to allow him to convert 877.5 square feet of storage space in his building on the property to retail use. The Appellant can make reasonable use of his property without the additional retail space. The Appellant's primary purposes in increasing retail space are to directly increase revenue and profit and to make the retail displays in his store more attractive and more spacious, in large part to prevent shoplifting and thereby indirectly increase revenues and profit. As now planned, unless advertised, the existance of additional retail space in the store would not be readily apparent to passers by not already familiar with the store. Nonetheless, the Appellant did not prove that the additional retail use will not lead eventually to additional use of the existing back-out parking on Gulf to Bay Boulevard and Highland Avenue. Even if the retail space were expanded as planned, and not advertised, the expansion eventually could lead to an increase in retail business, one of the Appellant's primary long term purposes.
The Issue The ultimate issue in this appeal is whether to approve, approve with conditions, or deny the Development Order issued to Appellee Pinellas Education Organization, Inc., d/b/a Enterprise High School (Applicant or School), by the Board on December 3, 2019. Specifically, the following issues must be resolved: Whether Appellants have standing to appeal the Development Order. Whether the issues raised by Appellants at the Oral Argument were properly preserved for appeal. Whether there is substantial competent evidence in the record to support approval of the Development Order.3 Whether the Board's decision departs from the essential requirements of the law. If the Development Order is affirmed, whether any additional conditions are appropriate. PROCEDURAL HISTORY Appellee School filed an application to renovate an existing building to operate a high school at 2495 Enterprise Road, in Clearwater, Florida.4 The Board held a quasi-judicial public hearing on the application on November 19, 2019 (Board Hearing). The Board approved the School's application with conditions and the City issued the Development Order on December 3, 2019. On December 4, 2019, two separate Appeal Applications were filed regarding the Development Order: (1) by 2521 Countryside Blvd., LLP, Countryside Property Principals, LLC, Bruce Levine, and Joan Levine; and by 2505 Enterprise, LLC, and Greg Willsey, and Sandra Willsey. The Appeal Applications were fairly similar and raised a number of issues: four issues pertaining to traffic and parking requirements; and one issue as to whether a high school is a compatible use with the surrounding area. The City referred the matter to DOAH on December 4, 2019, and it was 3 Section 4-505C states, "The burden shall be upon the appellant to show that the decision of the community development board cannot be sustained by substantial competent evidence before the board, or that the decision of the board departs from the essential requirements of law." 4 The School's application went through a Level Two approval process which requires a quasi-judicial public Board hearing to approve flexibility (i.e. deviation) from the minimum development standards set forth in the Code. See Code at §4-401. Level Two approvals must meet both the general applicability criteria and the flexibility criteria outlined by the Code. See Code at Art. 4, Divisions 1, 3, 4 and 6. assigned to an administrative law judge. On December 13, 2019, a telephonic scheduling conference was held to determine the record on appeal and set the oral argument hearing. During that conference the parties agreed not to submit pre-argument briefs, but rather, chose to file post-hearing proposed final orders. The Oral Argument was held at the Clearwater Library and was open to the general public. Applicant, the City, the Board, and all persons who were granted party status at the Board Hearing were allowed to present arguments at the Oral Argument. See Code at 4-505B. At the Board Hearing the following people were granted party status: Dr. Richard Gottlieb, who was represented by Todd Pressman; Sandra Willsey; Greg Willsey; and Todd Burch. The transcript of the Oral Argument was filed with DOAH on February 19, 2020. Pursuant to section 4-505D, the proposed final orders were due within 20 days after the filing of the transcript, or no later than March 11, 2020. Per the City's request, the parties were granted an extension to submit proposed final orders. The additional time was to allow the parties to collaborate on a master index to the record on appeal (Index), which they intended to cite to in their proposed orders. The Index and the proposed final orders were timely submitted on March 23, 2020.5 5 At the Oral Argument, the parties stipulated that the undersigned could take official recognition of the Code provisions and City of Clearwater Comprehensive Plan (Comprehensive Plan) found online. As such, the undersigned takes official recognition of the Code found at https://library.municode.com/fl/clearwater/codes/ community_development_code?nodeId=CODECO (last visited April 14, 2020); and of the Comprehensive Plan found at https://www.myclearwater.com/government/city- departments/planning-development/divisions-/development-review-zoning/comprehensive- plan (last visited April 14, 2020). FACTS IN THE RECORD Pursuant to section 4-505A, the record includes the application file of the Clearwater Planning and Development Department (Planning Department); the agenda packet of the Board Hearing; all exhibits accepted into evidence at the Board Hearing; and the streaming video of the Board Hearing.6 The following findings of fact are supported by substantial competent evidence found in the record. Parties and Property The School filed an application with the Planning Department to renovate a 16,696 square foot building located on a 1.730 acre site at 2495 Enterprise Road in Clearwater, Florida (proposed development). The proposed development is in a retail/office plaza known as Village at Countryside (Plaza), located on the east side of Enterprise Road, just south of Countryside Boulevard in Clearwater, Florida. The Plaza consists of 11 parcels, including a large vacant building that formerly housed a Toys-R-Us store. The Plaza is located within the US 19 Corridor Redevelopment Plan, and has a designation of "US 19 District, Regional Center sub-district" (US 19-RC). Property within US 19-RC is subject to the special zoning district and development standards found at Appendix B of the Code.7 The School seeks to operate Enterprise High School, a charter high school, at the proposed development site.8 As explained below, relevant to this appeal is the number of students at the School and whether there will be adequate parking for the proposed development as required by the Code. 6 See Video of Board Hearing held November 19, 2019, on Agenda FLD2019-8026 at time marker 9:25 at http://clearwater.granicus.com/MediaPlayer.php?view_id=50&clip_id=3782 (last visited April 1, 2020). 7 See Code at Appendix B – US 19 Zoning District and Development Standards, found at https://library.municode.com/fl/clearwater/codes/community_development_code?nodeId=APX BUS19ZODIDEST (last visited April 14, 2020). 8 Enterprise High School is an existing charter school which intends to move from its current location to the proposed development site. The School is subject to section 1013.33, Florida Statutes. Appellants own and operate property within the Plaza and adjacent to the proposed development site. Specifically, Bruce and Joan Levine own Appellants 2521 Countryside Blvd., LLP,9 and Countryside Property Principals, LLC. The LLP and/or LLC operate the Countryside Foot and Ankle Center.10 The Countryside Foot and Ankle Center's administrator, Todd Burch, was granted party status at the Board Hearing. Greg and Sandra Willsey own Appellant 2505 Enterprise, LLC, which is a property in the Plaza. The Willseys were also granted party status at the Board Hearing. At the conclusion of the Board Hearing, the Board voted to approve the School's application. On December 3, 2019, a Development Order was issued to memorialize the Board's action. Thereafter, Appellants filed the Appeal Applications with a document titled "Notice and Statement" which stated the following grounds for the appeals: The Neighbors assert that the decision of the Community Development Board ("the Board") was not supported by substantial competent evidence and was a departure from essential requirements of law. Specifically: The Board's decision was based upon a high school with two, 200-student shifts. However, the record below established that these student shifts would substantially overlap during the noon hour. In other words, the evaluation of the proposed change of use was based on impacts and site requirements that were substantially less than what would actually occur on the site. 9 The Appeal Application lists this entity as 2521 Countryside Boulevard Land Trust. 10 Although Appellants state that Bruce Levine was granted party status at the Board Hearing, there is no substantial competent evidence in the record supporting this statement. See Appellees' Proposed Final Order at p. 3; compare Tab 30 of the Index, Board Meeting Minutes for November 19, 2019, at p. 3 and 5. The Board's decision was based on a traffic analysis provided by the applicant that used a wrong ITE trip generation code - an elementary school instead of a high school - so it cannot be relied upon as a basis for the underlying decision. The change of use to a high school required that the applicant establish that it had one parking space per three students. There is no substantial competent evidence to establish that this parking requirement was satisfied. To the contrary, the substantial competent evidence establishes that the parking on the property failed to meet this requirement. In fact, granting this change of use would result in a substantial oversubscription of the available parking at the site. The proposed use would create tortured on-site parking and traffic circulation patterns that would substantially impact the existing medical office uses on the property, including a kidney dialysis office that serves a substantial elderly population. There is no substantial competent evidence to support the finding that the change of use would "have no impacts on the adjacent retail plaza." To the contrary, the change of use would have substantial impacts on the current retail and office plaza. The proposed change of use would have substantial negative impacts on the surrounding community and is incompatible with the existing surrounding retail, office and residential uses. At the Oral Argument, Appellants raised for the first time whether the operation of a school is an inconsistent use with: (1) an Amended and Restated Declaration of Establishment of Restrictive Covenants, Conditions, and Restrictions, and Grants of Easements dated December 7, 1983 (the "Parking Easement"); and (2) the Comprehensive Plan. The Studies The first four issues raised in the Appeal Applications are related to the Parking Study and Traffic Study (collectively referred to as the Studies) which were submitted by the School as part of its application. The Parking Study, dated September 2, 2019, consists of overall parking calculations; aerial photographs of the development site and surrounding areas; and the Parking Easement. The purpose of the Traffic Study was to analyze the impact of the development on the traffic intersection at Countryside Boulevard and Enterprise Road, as well as the full access drive at the site. The 50-page Traffic Study, dated October 18, 2019, included numerous charts, maps, and tables with underlying information and data relating to the traffic counts for the proposed development. Jerry Dabkowski, a local traffic engineer who prepared the Studies for the School, testified at the Board Hearing about the traffic and parking calculations. To rebut the Studies, at the Board Hearing Mr. Pressman presented a two-page letter from a professional engineer dated November 15, 2019, titled "Traffic Study Review." Relevant to the appeal, the letter finds fault in the number of students and the "ITE Code" used in the Traffic Study and in the Planning Department's Staff Report and Recommendation (Staff Report), dated November 19, 2019, which was also presented to the Board. These factors would affect the calculations for the number of parking spaces required for and the trip distribution caused by the proposed development. Number of Students Appellants argue the parking calculations should be based on the total number of students enrolled at the School, or 400 students. The Studies and the Staff Report calculated the traffic and number of parking spaces necessary based on two shifts with 200 students per shift. At the Board Hearing, Donna Hulbert, the School's Director, testified that unlike a traditional high school, the School operated in two shifts to allow the students to hold employment while completing their high school education. Although the School intends to enroll a total of 400 students, she explained, each of the two shifts would have a maximum of 200 students. Additionally, the students are eligible for a public transportation bus pass, which some students utilize instead of driving their personal vehicles. The Study establishes that "[t]o reduce the impacts during the AM and PM peak hours, the school intends to split the day into two shifts, each with 200 students attending." Although there was conflicting information between the School's application and Ms. Hulbert's testimony at the Board Hearing about whether the shifts would overlap, the Staff Report recommends approval of the application because, "[t]he applicant has provided the school will operate in two shifts . . . with no more than 200 students present per shift." There is substantial competent evidence that there will be only 200 students at the School at a time, and that this number was correctly used in calculating the required parking spaces and the trip generation for the proposed development. ITE Trip Calculation Appellants argue the Traffic Study utilized the wrong Institute of Transportation Engineers' (ITE) Trip Generation Code, 520, which is the code applicable to an elementary school. The Study, however, states it utilized ITE Code 530 from the Institute of Transportation Engineers' Trip Generation, 10th Edition for Office, to calculate the change in trips attributed to the proposed development. A copy of the ITE Code 530 was attached to the Traffic Study. Additionally, Mr. Dabkowski testified that ITE Code 530 was the correct code for high schools. There is substantial competent evidence that ITE Code 530 was used in calculating the change in trips for the Traffic Study which was relied upon in the Staff Report, and which was accepted by the Board. Parking Requirements Table 2 in section B-303, Permitted uses and parking, provides the following parking requirements relevant to this appeal. Use Regional Use Specific Standards Minimum Off-Street Parking Spaces Retail Plaza BCP[Level 1 Minimum Standard(Building Construction permit)] [Not included] 4/1,000 SF GFA Schools FLD [Level 2 Flexible Development (Board approval required)] 1. All off-street parking is located at least 200 feet from any property designated as residential in the Zoning Atlas 1 per 3 students Based on this criterion, the School would require 67 parking spaces (200 students/3 = 66.6667). The Staff Report and Studies establish the proposed site has 55 parking spaces, but five of these spaces cannot be used because they are within 200 feet from a parcel designated as Residential. Thus, there are 49 available parking spaces "on site," leaving 18 spaces to be designated. As stated earlier, the proposed site is one of 11 parcels in the Plaza. The Parking Study contains a copy of a Parking Easement that allows cross- parking among the parcels. Based on the square footage of the buildings on the parcels (including the proposed development site), the entire Plaza is required to have 975 parking spaces. The Plaza actually has 1,137 parking spaces, an excess of 162 parking spaces. The Code also requires off-street parking spaces be located within 600 feet of the principal and accessory uses they serve. See Code at § 3-1404A. Next to and within 600 feet of the proposed development site is currently a vacant building that formerly housed a Toys-R-Us store. That parcel has 228 parking spaces, but only 177 spaces are required for that building, leaving an extra 51 parking spaces. Based on the excess spaces available through the Parking Easement, there is substantial competent evidence supporting the City's staff finding of adequate parking spaces to satisfy the additional 18 spaces necessary for the proposed development, and the Board's approval of the same. Compatible Use The fifth issue raised in the Appeal Applications is regarding the use of the proposed development site as a charter high school. Whether this site is appropriate for the type of school operated by the Applicant was a topic of discussion among the Board members at the Board Hearing. At the Board Hearing, Planning Department Manager Mark Parry testified as an expert witness. Mr. Parry explained the nature of the US 19- RC standards and gave his opinion that the proposed development complies with all applicable provisions of the Code, including the use requirements. In contrast, Appellants expressed anecdotal fears that the types of students attending the School would disrupt Appellants' medical businesses. For example, at the Board Hearing, Mrs. Willsey expressed concern that the students at the School were known to have "behavioral problems." Mr. Burch spoke about the increased number of pedestrians in the Plaza and cited to a letter in the record from Dr. Levine: "For us to have to monitor and police our properties for trespassing students would be untenable." There was no actual evidence in the record that the School's operations would cause any problems such as increased crime or trespassing in the area. At the Oral Argument and in their proposed final order, however, Appellants' argument shifted away from the potential effects of the students in the area and instead offered the new arguments that the School was inconsistent with the Parking Easement which states the Plaza shall be used "for commercial purposes only, including without limitation the operation of merchandising establishments, restaurants, and professional offices."11 Regardless, as explained below, this argument is not appropriate on appeal because it was not raised at the Board Hearing or in the Appeal Applications. At the Oral Argument, Appellants also argued that the School is an inconsistent use with the Comprehensive Plan. Appellants cited a paragraph from the Staff Report: The proposal includes a new charter school with grades nine through 12 and constitutes a public educational facility as defined by Policy J.2.1.2. The school will be located within the US 19–RC future land use designation. The prior designation was Commercial General (CG). The intent is that all uses permitted in the CG are also permitted in the US 19–RC classification. The City is planning to update the Comprehensive Plan to reflect this. Schools are a listed permitted use in the CG classification. As explained below, this argument is also inappropriate because it was not raised at the Board Hearing or in the Appeal Applications. Appellants also argue the proposed development is an inconsistent use with the existing businesses because the adjacent properties are commercial in nature and the School is not commercial. The Code, however, clearly allows Schools as an allowable use in the US 19-RC zoning district, and in the 11 The Complete section of the Parking Easement titled "Uses" states: 2.1 Uses in General The Property, consisting of both the Building Area and the Common Areas, shall be used for commercial purposes only, including without limitation the operation of merchandising establishments, restaurants, and professional offices. No portion of the Property shall be used or operated as a discotheque, bar or cocktail lounge (except in connection with a restaurant) ... theatre, bowling alley, skating rink, roller disco or catering hall, funeral parlor, or for the sale of pornographic literature or material, or an adult book store or so called "head shop" or for a video or other game arcade, flea market, or for a use which would be noxious or immoral or otherwise constitute moral turpitude or constitute an undignified, disreputable use. previous zoning designation of CG. See Code at § B-303. Moreover, unlike the Parking Easement, the Code does not divide use categories into "Commercial" and "Non-Commercial." Rather, the uses are categorized as "Residential" and "Non-Residential." Id. Based on the Code and the review of the application submissions, the Staff Report concluded the School will be an appropriate use in the area. Based on Staff visits, aerial photographs and material submitted by the applicant it is evident that the proposal will be in harmony and consistent with the scale, bulk, coverage and character of adjacent properties and, generally, with properties in the greater neighborhood. The reuse of the 16,700 square foot building with a school will not result in any adverse visual impacts on adjacent properties. Since the character of the site will not change with the proposal, and it is currently similar in nature vis-a-vis placement of other uses in the area it is not expected to impair the value of those properties. The proposal will likely have no effect, negative or otherwise, on the health or safety of persons residing or working in the neighborhood. The testimony of Mr. Parry, coupled with the Staff Report, constitute substantial competent evidence supporting the Board's finding that the School is a compatible use with the area.
Findings Of Fact Vroom acquired an existing, incomplete condominium project of 96 units on the ocean side of U.S. Highway #1 at mile marker, 83.2, Islamorada, Florida. The project, now called Beacon Reef, is to be finished as a luxury facility with complete recreational facilities, including those for water-oriented sports. In February, 1980, Vroom filed a short-form application with DER for a permit to construct a private 425 foot x 6 foot pier for the condominium with four-finger piers on "T" sections, ranging in length from 335 feet to 240 feet, spaced 55 feet apart, and install 97 pilings, a maximum 450 feet seaward so as to provide one boat slip for each unit. The old existing dock will be removed (DER #3). A subsequent revision (DER #4) aligned the proposed pier with the one of Petitioner, who owns the property adjacent to the south. Following DER's appraisal (DER #1 and #2) and Vroom's agreement to use a small boat and motor to move the construction barge (DER #6), DER noticed its intent to issue the permit on May 19, 1980 on the finding that, pursuant to Sections 253.123 and 403.087, Florida Statutes, and Section 17-4.07, Florida Administrative Code, "the project will not adversely impact navigation, marine resources, nor water quality, providing the following stipulations are met: Construction shall not be initiated until Department of Natural Resources' approval is received. Construction barge shall be maneuvered in position with a small fifteen foot boat with a small 50 hp or less outboard motor. There shall be no fuel nor sewage pump-out facilities. No live-aboards shall be permitted. A day marker shall be placed approximately 30 feet waterward of each end of the outward "T" section to define and mitigate destruction of adjacent shallow water areas. Vroom accepted these restrictions and at the hearing, further agreed to place channel markers from the pier to the closest navigable point about 1/2 mile away so as to eliminate one of the concerns of the South Florida Regional Planning Council (DER #7). DER's two environmental specialists' testimony and appraisal concluded that the construction and use of the pier would not adversely impact on the water quality or biological resources nor interfere with navigation. The substrata is generally hard rock with scattered turtle grass and cuban shoal- weed found seaward as the water depth increases. This type of bottom is called "flats" as it is shallow with a uniform or gradually-sloping bottom; it is the typical feeding ground for one of the popular sports fish called Bonefish. Although these fish are easily frightened by the noise of a boat engine, the record does not reveal that this is harmful to the fish. The Petitioner speculated, surmised or opined that the use of the pier would damage or have an adverse impact on the water quality and marine resources, and interfere with navigation. However, beyond the allegations, no evidence was presented in support of these contentions.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation grant the application of Vroom International, Inc. to build a pier in connection with its Beacon Reef Condominium, Islamorada, Florida, subject to the restrictions stated in the intent to issue, together with the requirement that markers be installed and maintained on either side of a channel connecting the pier and the closest and best navigable waters. DONE and ENTERED this 16th day of October, 1980, in Tallahassee, Florida. HAROLD E. SMITHERS Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1980. COPIES FURNISHED: Richard H.M. Swann, Esq. GASTON, SNOW, ET AL. 2809 Ponce de Leon Boulevard Suite 550 Coral Gables, FL 33134 H. Ray Allen, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Fred Tittle, Esq. Post Office Drawer 535 Tavernier, FL 33070 Vroom International, Inc. c/o John P. Wilson Upper Keys Marine Construction Box 18AAA Key Largo, FL 33037 =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner David M. Antoniak is the owner of property located at 1211 Hardman Drive in Orlando, Florida. The property fronts on a cove of Lake Lancaster and is adjacent to a stormwater drainage pipe operated by Orange County. When petitioner purchased the property in approximately February of 1978, the general waterfront around his property, as described by petitioner and other neighboring landowners, was filled with weeds which were decaying, trash and other debris, bad odors and bugs. Petitioner attempted to clean up the waterfront area, but was unsuccessful. In August of 1978, petitioner undertook the project which is presently in dispute. He removed approximately two truckloads of muck, weeds and debris from the water and the water's edge, placed a cypress log retaining wall between his property and the waters of Lake Lancaster, placed approximately one truckload of beach sand between the wall and the water, deposited an undetermined amount of fill material landward of the wall and put sod on the soil landward of the wall. Petitioner constructed the cypress log retaining wall in order to level out his lot, prevent runoff to the lake and to separate the dirt from the sand. He continues to fertilize his lawn and to spray it for bugs. The only portion of the retaining wall and property waterward of the natural ordinary high water line of Lake Lancaster is an area approximating eight by four feet. In March of 1979, petitioner applied to the DER for after-the-fact approval of construction of the retaining wall waterward of the ordinary high water line of the lake and the filling. After a field evaluation, DER gave notice of its intent to deny a permit. Lake Lancaster is a Class III body of water. The lake receives outfall from approximately twelve stormwater drainage pipes, one of which is located adjacent to petitioner's property. Aquatic plants and weeds are especially beneficial near such outfalls because they serve to assimilate and eliminate nutrients, stabilize sediments, and filter out suspended materials. Such vegetation also provides a habitat for fish. Although the area in dispute is small, removal of the aquatic vegetation significantly degrades the water quality of Lake Lancaster because of the area's location in a cove and the adjacent stormwater drainage pipe. The placement of the cypress log retaining wall will cause hydrological changes in the nature of increased turbidity due to wave action. Vertical walls may also lead to erosion. While the seawall will serve to reduce the initial flush of run off (of grass clippings, for example), fertilizers and bug sprays used on adjacent upland property will still percolate into the soil and eventually run off to the lake. The backfilling in the 8 by 4 foot space waterward of the ordinary high water level reduces the size of the lake and could possibly relate to flooding problems.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is recommended that the petitioner's application for a permit be DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 9th day of October, 1980. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1980. COPIES FURNISHED: William A. Harmening Stanley, Harmening and Lovett Post Office Box 1706 Orlando, Florida 32802 Charles G. Stephens Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 David M. Antoniak 1121 Hardman Drive Orlando, Florida 32806 Jake Varn, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact John Taylor, III, Petitioner, owns property located at 1200 South Missouri Avenue in the City of Clearwater which is zoned CC (commercial center). The subject property consists of a mall and movie theater. On or about April 17, 1986, Michael Johnson, on behalf of Petitioner, applied for a variance to allow two message signs on the subject property and also to allow total message signage of 256 square feet. Without a variance, the subject property can have only one message sign which cannot exceed 192 square feet. The property presently has one message sign and total message signage of 176 square feet located on its marquee. At a meeting of the Development Code Adjustment Board on May 8, 1986, Petitioner's variance application was denied. The parties stipulated that Fusco Corporation is the manager of the mall located on Petitioner's property and further that Fusco is the owner of all improvements on the property. Further, Cineplex-Odeon has leased the theater located on the subject property and has renovated and expanded it from two to five movie theaters. Finally, Michael Johnson was employed by Cineplex-Odeon to install the changeable message sign which is the subject of this variance. The second message sign which is sought by this variance would be located 350 feet from Missouri Avenue, which runs north and south in front of the subject property. Specifically, it will be located in the front wall of the theaters next to the ticket counter, and will be 16 feet long by 4.4 feet high. The sign would actually be a display case, 6 inches deep, with five individual poster display cases, which would be used to display coming attraction posters. Each display case would have a hinged glass door, through which the poster could be seen. Coming attraction posters are 2 feet long by 3.3 feet high. The 6 inch depth of the display case extends equally into, and protrudes out of, the front wall of the theater. Petitioner has not established that a hardship would exist if this variance is not approved. Coming attraction posters can be, and in fact are, displayed in the theater lobby. During the renovation of the theater, the front wall could have been removed and a window installed to allow viewing of the lobby posters from outside the theater. Finally, the existing sign on the property could be used to advertise coming attractions, as well as movies which are currently playing. The display case for which this variance is sought on behalf of Petitioner is a "changeable message sign," as that term is used in Section 134.011(a), Land Development Code, since it would be a graphic communication or device which would be primarily used to convey information or advertise and would also be prominently visible from outside the theater.
Findings Of Fact John and Enid Schmidt own property located at 2363 Pineland Lane, Clearwater, Florida. This Property is zoned RS-50 (single family) and is located at the City-County line with Pineland Lane dividing the incorporated and unincorporated areas at this location. The house is L-shaped and due to the lot configuration the swimming pool was placed in the L at the front of the house. This pool is screened and has been screened since it was installed some four years ago. Petitioners propose to extend the screen room 10.75 feet into the front setback area of 25 feet. The purpose of the extension is to enable Petitioners to roof this extension, apply additional roofing on two other sides of the pool enclosure, and install gutters with appropriate drains to carry off the rainwater that is now backing up against the house at the pool deck during heavy rains. When the pool was originally constructed, a French drain was installed to allow the rainwater to flow around the house; however, during recent heavy rains this drain has been inadequate to keep water from rising to the level of Petitioner's sliding glass doors. To alleviate the situation engineers have recommended the additional roofing and gutters requested to carry this water away from the pool-house area. Five of Petitioners neighbors, including the two closest to Petitioners' property, do not oppose the variance requested (Exhibit 5). One of these neighbors testified in support of the application.
Findings Of Fact In 1950, Petitioner acquired lots 8 and 9, block 23, of Lone Palm Beach subdivision, third addition, which lots front on Boca Ciega Bay in Pinellas County, and she has held the property in free simple since. Petitioner's late husband, her predecessor in title, acquired the lots in 1941. They constitute the tip of man-made peninsula jutting bayward from a barrier island bordered on the other side by the Gulf of Mexico. In 1926, the lots did not exist as such, because the peninsula had not yet been built. Petitioner's exhibit No. 10. Since the creation of the lots, their aquatic periphery has varied continually, on account of accretion and reliction. In the first half of the last decade, wooden and metal stakes were sunk along the shoreline, landward of the water's edge. Since then, water has washed away Petitioner's beach, moving the shoreline inland an average distance of approximately thirty feet. Erosion has been more severe along the northern half of Petitioner's beach than along the southern half. Seawalls have been built along adjacent properties on either side of Petitioner's parcel. The evidence did not establish what proportion of this erosion may have been attributable to the effects of Hurricane Agnes or to the location of neighboring seawalls or to any other particular cause. In 1972, the Honorable C. Richard Leavengood, Petitioner's present husband, hired Rupert Osteen, a contractor, to build a seawall. Pinellas County issued a building permit to Mr. Osteen, covering a "Seawall - 356LF - Type D," Petitioner's Exhibit No. 5, on March 14, 1973. (In September of 1951, the Town of Redington Beach had issued a building permit for "Dredging and Filling behind Sea Wall Constructed on [what is now Petitioner's] Rear Property Line.") Construction began, but came to an abrupt halt in July of 1973, when Mr. Osteen was arrested for building a seawall "without having obtained the recommendation of the Chief of Engineers and the Authorization of the Secretary of the Army prior to beginning," a criminal offense of which he was subsequently convicted in the United States District Court for the Middle District of Florida. Respondent's Exhibit No. 4. Before work on the seawall stopped, Petitioner had caused some 4,500 cubic yards of fill dirt to be deposited on the lots. After Mr. Osteen's arrest, Petitioner applied for a fill permit to the Pinellas County Commission, sitting as the Pinellas County Water and Navigation Control Authority. The Authority granted the permit on March 19, 1974, on condition that the seawall be made to tie in with the existing seawall on lot 7, which adjoins Petitioner's property to the west. On or about August 16, 1974, Petitioner applied to the Department of the Army prior to beginning," a criminal offense of which he was subsequently convicted in the United State District Court for the Middle District of Florida. Respondent's Exhibit No. 4. Before work on the seawall stopped, Petitioner had caused some 4,500 cubic yards of fill dirt to be deposited on the lots. After Mr. Osteen's arrest, Petitioner applied for a fill permit to the Pinellas County Commission, sitting as the Pinellas County Water and Navigation Control Authority. The Authority granted the permit on March 19,1974, on condition that the seawall be made to tie in with the existing seawall on lot 7, which adjoins Petitioner's property to the west. On or about August 16, 1974, Petitioner applied to the Department of the Army for a permit, pursuant to Sections 403 and 1344 of Title 33, United States Code. Petitioner applied for the "after the fact" permit at issue in these proceedings on May 10, 1974. At one point in the course of negotiations between Petitioner and Respondent, Mr. Douglas Jones, Chief of Respondent's Bureau of Permitting, indicated that Respondent would permit Petitioner to erect another seawall along the present mean high water line. Eventually, Respondent's staff notified Petitioner that it would recommended denial of an after the fact permit for the existing seawall, and Petitioner filed a request for administrative hearing, which initiated these proceedings. Aerial photographs dating back to 1942 were received in evidence. Respondent's Exhibits Nos. 5 through 11. None of these phontographs show land as far out in the water as the portion of the seawall Mr. Osteen finished. The partially completed seawall is further waterward tan the 1971 interface between land and water. Respondent's Exhibits Nos. 9 and 10. In November of 1973, Alan J. Burdette, Jr., a marine biologist, who is now employed by Respondent, inspected lots 8 and 9 of Lone Palm Beach subdivision and found water in the low area landward of the seawall. More recent photographs indicate that the seawall still stands somewhat offshore. E.g.., Respondent's Exhibit No. 16, taken on September 7, 1977. Mr. Bardette's inspection revealed oyster and fiddler crabs inside the seawall and clams just outside. Mangroves, which were not there at the time construction began, had sprung up. Removal of the seawall would create additional shallow bottom where algae, clams, oysters, mangroves and other marine life could flourish. Mr. R. S. Murali, a hydorgraphic engineer employed by Respondent, visited Petitioner's property the day before the hearing in this matter was held. While he was on the site, the wind blew from the southwest and waves with an average height between eight and nine inches struck Petitioner's unfinished seawall every 1.2 seconds. Mr. Murali discovered evidence of erosion under the seawall, which was caused by wave action. If the seawall were placed more landward, so that waves travelled up a sloping beach before striking it, the erosion problem could be significantly alleviated.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner's application for an after the fact fill permit authorizing the seawall which has already been constructed around lots 8 and 9, block 23, of Lone Palm Beach Subdivision, third addition, be denied. DONE and ENTERED this 30th day of November, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 APPENDIX Paragraph one of Petitioner's Proposed Findings of Fact has been adopted, in substance, insofar as relevant:. Paragraph two of Petitioner's Proposed Findings of Fact has been adopted, in substance, insofar as relevant, except for the date of the permit issued by the Pinellas County Water and Navigation Control Authority, which is immaterial. Paragraph three of Petitioner's Proposed Findings of Fact is apparently predicated on Petitioner's Exhibit No. 12, an uncertified copy of page 74 of Pinellas County's Plat Book 20. Although a handwritten notation on the exhibit reads "Plat Recorded June 21, 1937" such extraneous handwriting on an uncertified copy is not "evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.". Section 120.58(1)(a), Florida Statutes (1975). The question of the Butler Act's applicability is a question of law rather than of fact and it has not been necessary to decide the question. Paragraph four of Petitioner's Proposed Findings of Fact has not been adopted, for the most part, because of lack of support in the evidence. Paragraph five of Petitioner's Proposed Findings of fact emphasizes that the testimony as to flora and fauna related to a time considerably after application for the after the fact permit was made. While this is true, what is at issue is the ecological consequences of leaving the seawall, so that the relevant time period is the time period beginning when the application was made and extending indefinitely into the future. COPIES FURNISHED: Ms. Carol Haughey, Esq. Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 Mr. Ross H. Stanton, Jr., Esq. 280 Florida Federal Building 26274th Street North St. Petersburg, Florida 33704 Ms. Patricia M. Duryee, Esq. Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION DOROTHY B. LEAVENGOOD, Petitioner, vs. CASE NOS. 77-484 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondents. /
