Findings Of Fact On or about August 11, 1987 an application for conditional use approval to allow on-premises consumption of alcoholic beverages (4COP) was filed on behalf of Joseph W. McGoldrick for property located at 2848 Gulf to Bay Boulevard in Clearwater, Florida. The property is zoned general commercial (CG) and multiple family residential (RM-12). A public hearing before the Planning and Zoning Board was held on September 1, 1987. The Planning and Zoning Board voted 5-1 to grant conditional use approval for this application. A timely appeal was taken by Petitioners on September 15, 1987. Petitioners are surrounding property owners whose property is located within five hundred feet of the subject property. With this application, McGoldrick seeks approval for on-premises consumption of alcoholic beverages since he intends to convert the use of the property to a nightclub. The parties stipulated that the property in question is within five hundred feet of several residences, including Petitioners'.
The Issue This proceeding concerns a Consent Order entered into by the Department of Environmental regulation (DER), and James and Patricia Gratzer (Gratzers) regarding an allegedly unpermitted fill in Winter Springs, Florida. The ultimate issue for determination is whether DER abused its discretion in resolving the alleged violations by entering into the subject Consent Order.
Findings Of Fact In the fall of 1990, the Gratzers purchased a 4.35 acre lot located at 216 Stoner Road in Winter Springs, Florida. At the time of purchase, the Gratzers planned to divide the lot and build a residence on the two acre parcel. In preparation for construction of their new home, the Gratzers approached the Winter Springs City Council to subdivide the property and to approve of use of the fill road as ingress and egress for both lots. In February of 1991, the Gratzers and their builder obtained the proper building permits from the County and septic tank permits from the Department of Health and Rehabilitative Services. Construction began on the residence on April 9, 1992 when the Gratzers' builder brought in several trucks of dirt to the end of the existing fill road to begin the house pad. At the time the Gratzers began construction on the subject lot, they had no idea or reason to believe that they were about to build in jurisdictional wetlands of the State of Florida. On approximately April 14, 1992, the Gratzers were first made aware that they may have problems with potential wetlands on the property when an officer of the Game and Fresh Water Fish Commission visiting the site instructed the builders to halt construction, pending a review by DER. As a result of the site visit, the Gratzers investigated further with DER employees the potential wetlands on their property. They also sought the advice of an attorney and his environmental consultant regarding possible ways to solve DER's concerns. On approximately April 26, 1991, an employee of DER visited the site and made an initial determination that the property was a jurisdictional wetland subject to permitting by DER. Under present rules the Gratzer property, with exception of the filled access road, would all be in DER jurisdictional wetlands if only the natural vegetation were considered. Upon being informed of DER's initial determination, the Gratzers hired an engineer from Boyer-Singleton & Associates to make an engineering determination as to the extent of jurisdictional wetlands based upon a ten-year backstop. A ten-year backstop is a method provided by statute to determine the ultimate landward extent of DER's vegetational jurisdictional line. It is a hydrological calculation to determine water elevation levels in a certain area, subject to the ten-year recurrent storm event. By rule and statute, DER's jurisdiction over wetlands effectively stops at the upper end or limit of the ten-year flood elevation line. Claude Cassagnol, of Boyer-Singleton and Associates, an expert in hydrology, reviewed available materials, visited the site and made an initial determination of the ten-year backstop on the Gratzers' property, and ultimately mapped out his conclusions on a plat. Mr. Cassagnol's hydrological study, and his review of Federal Emergency Management Agency (FEMA) materials, led him to conclude that the ten-year backstop would leave the Gratzer's house pad out of any DER jurisdictional wetlands. As a result of his study, Cassagnol forwarded several letters to George Baragona of DER requesting that Mr. Baragona, an expert hydrologist, review his determination and ratify his conclusions. The Gratzers, on advice of counsel, allowed their building contractor to complete compaction of the house pad and begin preparations to pour the house floor. The septic tank contractor for the Gratzers completed installation of the tank and drain field prior to July 1st. After the Gratzers had recommenced construction, on approximately July 10, 1992, DER, issued a Notice of Violation (NOV) which ultimately formed the basis for the Consent Order in this case. The Gratzers immediately ceased further construction on the property and sought further negotiations with DER. Shortly after the NOV was issued, George Baragona reviewed the information, studies and plats submitted by Mr. Cassagnol regarding the ten-year backstop. Baragona made a determination of the ten-year backstop at a point more landward than Cassagnol's. It appears from the plat submitted at hearing, that Baragona's ten- year backstop line runs along the base of the fill roadway; his testimony, however, indicated that his backstop line dipped in and out near the roadway, and he simply chose the baseline of the fill road as his "worst case scenario". Baragona, because of the house pad, was required to extrapolate a line through the house pad, resulting in approximately half of the house pad area being in jurisdictional wetlands. The result of further negotiations between the parties was the Consent Order which is the subject matter of this proceeding. As settlement, the Gratzers agreed to Baragona's "worst case scenario" ten-year backstop, placing approximately half of the house pad was in DER jurisdictional wetlands. As part of the settlement, the Gratzers agreed to, and have paid, a fine of $1,400.00 to DER and have granted a conservation easement over a large portion of the remainder of their property, resulting in an 11.6 to 1 ratio of conservation easement to impacted wetlands, slightly above DER's guideline 10 to 1 ratio. In investigating the alleged violations at the subject property, DER reviewed the cumulative impacts of the project and determined that they were not great, in light of the surrounding area and its already high level of development. In making this determination, DER reviewed property lists, maps and other facts to determine the level of current development. In reviewing the alleged violations, DER also considered whether or not this project would have been able to get a permit had the Gratzers sought a permit prior to any construction. It was DER's determination that the project would have been permittable under the criteria in Chapter 403, in conjunction with the mitigation offered at the site. Finally, in its review and study of the alleged violations, DER determined there was no evidence that this project would have any adverse impact on water quality. DER made a determination that this was a "low to medium" violation, and that the impacts were properly addressed through the Consent Order which imposed the $1,400.00 fine and secured the conservation easement. Fill Road Issue A small road or driveway existed on the site at the time the Gratzers purchased the property, extending from Stoner Road from the south, to the center of their property. Although Baragona indicated the DER modelled backstop line did not always extend to the driveway, he said it sometimes appeared to "bump up" to the eastern edge of the driveway. Baragona could not say with absolute certainty where the 10 year backstop would be on the east side of the site if the driveway were not present. The type of wetland vegetation on the Gratzer property would be considered jurisdictional wetland vegetation under rules adopted pursuant to the 1984 Warren F. Henderson Wetlands Act (Section 403.91, et seq.), but would not be considered jurisdictional wetland vegetation under rules applicable prior to October 1, 1984. If the driveway on the Gratzer property was installed prior to October 1, 1984, it is legal, but if it was installed after that date it is illegal because there is no evidence it ever was properly permitted. DER does not allow illegally filled areas to cut off the extent of its wetland jurisdiction. Therefore, if the driveway on the Gratzer property were placed in DER jurisdictional wetlands without a permit, the road itself could not act as a 10 year backstop cutting off DER wetland jurisdiction to the west. There was conflicting evidence as to when the driveway was placed on the property. James Hartman, who sold the property to the Gratzers, testified he built the driveway in 1978 and 1979. William Kuyper, an expert in aerial photography interpretation, testified that based on his review of aerial photos, the road had been placed on site sometime between January 6, 1986, and March, 1989. The weight of the evidence indicates the driveway was probably placed on site before October 1, 1984, and therefore did not require a DER permit. First, the former landowner's testimony that he built the road in 1978 and 1979, must be considered more reliable than an interpretation of aerial photos taken from 12,000 feet in the air, in spite of the expertise of the photographic interpreter. A possible explanation for why the driveway "appeared" in the 1989 aerial photo but not in the 1986 aerial photo is that the road may have been disturbed, or new fill put on the road sometime between 1986 and 1989, causing the road to be more visible in 1989. Even if the 10 year backstop were to be determined without the driveway present, it would not be significantly different. While DER's 10 year backstop line "bumps up" against the road in places, it does not "bump up" in other places along the driveway, but in order to be conservative the line was placed along with driveway in all areas. The modelled location of the line north of the housepad where there is no driveway is consistent with where the line is modelled south of the housepad where the driveway is located. The Society and its Concerns The Society's corporate status was not controverted. CFWS members have been patrolling the Lake Jessup/Gee Creek area and other wetland areas and have found what they believe are violations of the law and rules intended to protect wetland resources. Although neither Michael Mingea nor his expert witness have been on the Gratzer property, they have been in the immediate area and are concerned about the cumulative impact of small dredging projects, like the Gratzers, which projects are routinely reported to DER by the Society. Beginning in May 1991, the Society corresponded regularly with Secretary Browner at DER and Secretary Williams at the Department of Health and Rehabilitative Services (HRS) and their respective staffs, regarding what the Society perceived were violations occurring through lax enforcement. The Society believed, though review of HRS and DER files, that the Gratzers' project included a septic tank placed in jurisdictional wetlands. This was not established; rather, the septic tank was erroneously placed inside a setback line, but outside the jurisdictional line, and a variance was readily obtained from HRS. DER does not have direct jurisdiction over septic tank permits and HRS' authority is derived from the statutes, not from DER. The Society's position regarding the Gratzer project is based in substantial part on its assertion that the fill road was illegally placed and that DER's jurisdiction extended through the entire property. The Society, however, did not rebut the sound evidence by George Baragona of the 10-year backstop. Nor did it present competent evidence of any alleged water quality violations. Only one other actual violation of permit requirements was established, and DER has required the developer to move the project from jurisdictional wetlands.
Recommendation Based on the foregoing, it is hereby, recommended that the Consent Order that is the subject of this proceeding be adopted as Final Agency Action. RECOMMENDED this 24th day of July, 1992, in Tallahassee, Leon County, Florida. MARY CLARK 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 24th day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0104 The following constitute specific rulings on the findings of fact proposed by Petitioners: 1.-3. Adopted in preliminary statement and paragraph 19. 4. Adopted in substance in paragraph 5. 5.-6. Rejected as unnecessary. 7.-8. Adopted in substance in paragraph 14. 9.-12. Rejected as unnecessary. 13. Adopted in part in paragraph 20, otherwise rejected as unnecessary. 14.-16. Rejected as unnecessary. 17.-18. Rejected as contrary to the evidence. 19. Rejected as contrary to the greater weight of evidence. 20.-22. Rejected as unnecessary. 23.-25. Rejected as contrary to the evidence. 26. Rejected as unnecessary. 27.-30. Rejected as contrary to the evidence. 31.-32. Rejected as summary of testimony or argument, rather than findings of fact. 33.-34. Rejected as contrary to the weight of evidence. 35.-36. Rejected as unnecessary. 37. Rejected as contrary to the evidence. [Section VI, pp 19-22 includes unnumbered paragraphs summarizing testimony, rather than findings of fact]. COPIES FURNISHED: Michael W. Mingea, President Central Florida Wetlands Society P.O. Box 2826 Orlando, FL 32802 Rex D. Ware, Esquire P.O. Box 1794 Tallahassee, FL 32302 Douglas H. MacLaughlin, Esquire DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399
The Issue The issue is whether Petitioners' application for site plan approval for a proposed renovation and addition to their restaurant should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this local land use dispute, Petitioners, Ypapanti and Sevasti Alexiou, who operate a restaurant under the name of Frenchy's Rockaway Grill, have appealed a decision by the Community Development Board (Board) to deny an application to renovate and expand their restaurant located at 7 Rockaway Street, Clearwater Beach, Florida. The Board, which is made up of seven local residents, acts as the local planning agency for Respondent, City of Clearwater (City). Although the City staff supports the project, the City is technically opposed to the application since the Board failed to approve the project by a 3-3 tie vote. In denying the application, the Board rejected the City staff's recommendation that the application be approved. Intervenor, Hunter Hotel Company, owns and operates a hotel known as Clearwater Beach Hotel which is contiguous to, and south of, Petitioners' property. It objects to the application on the grounds that "the criteria for the flexible development approval were not met nor proved, [and] that the relief requested [by Petitioners] is of such a magnitude that it is not warranted and cannot be allowed under the Code." As further clarified by Intervenor, the City's parking shortage in the Beach area is the "core issue on this appeal." Until the City solves the parking problem, Intervenor suggests that there should be a moratorium on development in the Beach area. Petitioners own and operate a popular and successful one-story restaurant and bar on a 0.38-acre lot at 7 Rockaway Street, Clearwater Beach, which fronts directly on the Gulf of Mexico. The property is zoned as a part of the City's Tourist District and is bounded by the Gulf of Mexico on the west, a municipal parking lot to the north, a motel on the east, and the Clearwater Beach Hotel on the south. Due to the small size of their lot, Petitioners seek to vertically expand their restaurant by adding a second story consisting of 3,487 square feet, including an approximately 2,300 square foot open deck and 1,200 square feet of enclosed area. Both sections will accommodate bar patrons and diners. Petitioners also intend to remove and replace a 945 square foot storage room attached to the south side of the building which is structurally unsound. To accomplish these changes, Petitioners will need "flexibility" in meeting setback and parking requirements. Because more than 95 percent of the City is now "built out," and very little land is vacant, the City has adopted comprehensive infill criteria for non-conforming structures, such as Petitioners' restaurant. The criteria which apply to Petitioners' project are found in Section 2- 803C. of the City of Clearwater Redevelopment Code (Code) and allow flexibility in promoting redevelopment and infill throughout the City, including the Clearwater Beach area. As pointed out by City staff, infill projects are often used on Clearwater Beach because there are so many non-conforming structures in that area. In determining whether a project should be given flexibility as an infill project, the City evaluates the proposed project against its infill criteria. Strict compliance with all criteria is not required, but rather the criteria are weighed or balanced collectively. If a project cannot meet a "significant number of [criteria], or a significant one in a meaningful way," then an applicant "would have problems [with gaining approval]." Once a project qualifies as an infill project, an applicant may then use flexible development standards for setbacks, height, size, and minimum off-street parking. In this case, Petitioners seek flexibility for setback and off-street parking requirements. As noted earlier, the main concern raised by Intervenor centers around item 9. of the criteria, which reads as follow: 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. Intervenor contends that this criterion was not satisfied, and thus the project cannot qualify as an infill project. In addition, in its Proposed Final Order, the City contends that Petitioners have failed to satisfy items 1. and 5., which read as follows: The development or redevelopment of the parcel proposed for development is otherwise impractical without deviations from the use, intensity and development standards; 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. Table 2-803 of the Code establishes minimum off- street parking requirements of 7 to 15 parking spaces per 1,000 square feet for restaurants in the Tourist District. Therefore, a restaurant of Petitioners' size (that was not an infill project) would be required to have at least 47 off- street parking spaces. In actuality, Petitioners have only 13, due to a variance having been previously granted. Since Petitioners intend to add around 3,400 square feet through the second floor addition, the Code would normally require a minimum of 24 additional parking spaces, or a total of 71. However, these off-street standards do not apply to infill projects. Instead, another provision in Table 2-803 of the Code provides that minimum off-street parking for infill projects shall be "[d]etermined by the community development coordinator based on the specific use and/or ITE [Institute of Transportation Engineers] Manual standards." Therefore, using the guidelines in the foregoing provision, the community development coordinator determines the number of additional off-street parking spaces, if any, that an infill project will require. Because the City staff concluded that a parking study would assist it in analyzing the specific use of the property, it requested that Petitioners perform a parking study. The study was conducted by Robert Pergolizzi, a certified planner, who has performed a number of parking studies during his career. The Code does not describe any criteria for a parking study for an infill project. Therefore, the staff looked at other sections of the Code in arriving at a methodology to be used for the study. More specifically, it first considered Section 2-803J.6.a., which provides in part that off-street parking requirements can be relaxed if "the physical characteristics of the proposed building are such that the likely uses of the property will require fewer parking spaces per floor area than otherwise required." Because the restaurant sits directly on the beach, the staff believed that the primary destination of many of the customers was the beach, and not the restaurant, and that the visit to the restaurant was a side trip by the customers. Thus, the parking study methodology was designed, in part, to confirm or disaffirm that assumption. Section 2-803J.6.c. also provides flexibility in off-street parking requirements if "adequate parking is available on a shared basis as determined by all existing land uses within 1,000 feet of the parcel proposed for development, or parking is available through any existing or planned and committed parking facilities." The staff used this section of the Code to determine that 1,000 feet was an appropriate distance to analyze available parking for a restaurant. Therefore, Pergolizzi was directed by the staff to analyze available parking within 1,000 feet of the restaurant. Pergolizzi conducted his study on August 25 and 26, 2000, the Friday and Saturday which preceded the Labor Day holiday weekend. It is undisputed, and the parties have stipulated, that Pergolozzi conducted the study entirely consistent with the agreed methodology. The study confirmed that the primary destination of 49 percent of the restaurant's customers was the beach, and not the restaurant. In other words, the expansion would not affect the parking demand generated by almost one-half of the customers. The study also confirmed that there was available parking within 1,000 feet of the restaurant to accommodate not only the existing business, but the proposed expansion as well. As noted above, Table 2-803 of the Code required that the community development coordinator determine the minimum off-street parking after consideration of the specific proposed use and/or the ITE Manual standards. Here, the City staff looked at the specific use, the ITE Manual standards, and the parking study to determine the minimum off-street parking required for the restaurant. It concluded that there was available parking within 1,000 feet of the restaurant and that no additional parking spaces were required. The community development coordinator concurred with the results of the study and analysis and likewise determined that the minimum off-street parking for the project were the existing 13 spaces. This determination was wholly consistent with the requirements of the Code. In recommending to the Board that the project should be given flexibility as an infill project, the staff's report contained the following conclusion: The proposal is in compliance with the standards and criteria for flexible development approval, with maximum development potential, requirements of the Comprehensive Infill Redevelopment Projects, and with all applicable standards of the Community Development Code. A more detailed analysis of how each of the ten criteria were satisfied is found in Petitioners' Exhibits 9 and 14 received in evidence. At the hearing on March 27, 2001, the City's assistant planning director also established that the proposed expansion and renovation complied with all applicable standards of the Code. Intervenor's expert witness, Gail Easley, a certified planner, questioned whether the methodology used by Pergolizzi complied with the Code. More specifically, she contended that the City was required to determine minimum off- street parking for infill projects in the manner described in Section 2-803C.9. That section provides that "[a]dequate 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." If this contention were true, however, it would render meaningless the provision in Section 2-803C.8., which provides that "[f]lexibility in regard to lot width, required setbacks, height and off-street parking are justified by the benefits to community character in the immediate vicinity of the parcel proposed for development and the City of Clearwater as a whole." In other words, there would be no flexibility for off-street parking as permitted by that section. This would be contrary to the very purpose of infill projects. Witness Easley's interpretation is also inconsistent with Table 2-803, which states that "minimum off-street parking will be determined by the community development coordinator based on the specific use and/or ITE Manual standards." Under her interpretation of the Code, the community development coordinator would have no right to determine minimum off-street parking for infill projects based on the specific use and/or ITE Manual standards, despite clear language in the Code to the contrary. More importantly, the criteria in Section 2-803C., including item 9., are used to determine whether a project should be considered an infill redevelopment project under the Code. Item 9. is simply one of those criteria, and it does not establish minimum off-street parking requirements for an infill project. Witness Easley also opined that it was inappropriate for the parking study to consider on-street parking. However, the Code does not prohibit the community development coordinator from requesting a parking study which includes on- street parking. It only requires that he consider the specific use and/or ITE manual standards when determining off- street parking for an infill project. Other contentions that the methodology was flawed, including a concern about the date and time of the study and the use of 1,000 feet as a measuring stick for available parking, have been considered and found to be without merit. A contention was also made that certain other infill criteria were not met. However, there was no evidence to support these contentions, and the more persuasive evidence supports a finding that all criteria have been satisfied, and that Petitioners qualify as an infill project. The undersigned has also considered the testimony of the owners of two competing restaurants who object to the project. While they contended that the lack of parking motivated their opposition to the application, it is fair to infer from their testimony that they object mainly because they fear that Petitioners may capture some of their business through an expansion of their restaurant. Finally, in its Proposed Final Order, the City has contended that Petitioners have failed to satisfy a general standard contained in Section 3-913A.6., which requires that an applicant ensure that: [t]he design of the proposed development minimizes adverse effects, including visual, acoustic and olfactory and hours of operation impacts, on adjacent properties. Given the modifications agreed to by Petitioners in the following Finding of Fact, the requirements of this section have been met. In the nature of an affirmative defense, Petitioners have raised the issue of equitable estoppel and contend that Intervenor should be estopped from opposing the application. The facts underlying this argument are as follows. On November 21, 2000, the Board heard testimony and considered the application for the first time. At that meeting, Intervenor's counsel represented to the Board that "my client's concern is not the parking. My client's concern is because of proximity of noise and light intrusion." In light of these concerns, counsel for Petitioners and Intervenor reached an agreement wherein Petitioners agreed to limit the addition to the northern one-half of the existing building, construct an 8-foot concrete block wall on the south property line between the restaurant and the hotel, close the upstairs addition at 10:00 p.m. on week nights and 11:00 p.m. on Fridays and Saturdays, place no outside speakers and allow no live music on the upstairs addition, and direct upstairs lighting away from the hotel. With these accommodations, counsel for the hotel represented to the Board that "if [the Board] approve[s] this, you have addressed our primary areas of concern." After the close of public comments, the Board voted to approve the application by a 3-2 vote. Because four votes are required to approve an application, and one member was absent from the meeting, the matter was continued to the next meeting on December 12, 2000. By letter sent to Petitioners' counsel on December 5, 2000, Intervenor's counsel identified the "commitments at the preceding hearing, which [Petitioners were] willing to make to the Clearwater Beach Hotel." Upon receipt of that letter, Petitioners advised the City by letter that they were in agreement with Intervenor's counsel that "these are the conditions agreed to at the last CDB meeting, which shall be binding upon my client." Notwithstanding earlier representations, by letter dated December 7, 2000, counsel for Intervenor indicated that "the owners of Clearwater Beach Hotel have instructed us to object to the pending application. Upon further review, prompted by the renderings, the magnitude of this project is simply too great for the size of the property." The letter further stated that it was to be considered "as withdrawal of our prior letter and position of 'no objection,'" and that Intervenor would attend the December 12 hearing "to formally object." Petitioners have further contended that Board member William Johnson had ex parte communications with some of his neighbors concerning the merits of this application, and this constituted a departure from the essential requirements of the law. Section 4-206D.2. of the Code provides that "no member of the community development board or the city commission shall engage in any ex parte communications with any person in regard to the substance of a quasi-judicial matter which is to be considered by the board or commission, as the case may be." If such communications occur, Section 4-206D.3.a. requires that a member disclose these communications at the meeting. There is no record of any disclosure being made. At the first Board meeting on November 21, 2000, member Johnson had moved for approval of the application. Without any explanation, at the second meeting on December 12, 2000, he voted against the application. Member Johnson did not testify at hearing to confirm or deny Petitioners' allegation of wrongdoing. However, witness Pergolizzi testified that he spoke with member Johnson just after the December 12 meeting, at which time member Johnson allegedly admitted that he had such conversations with his neighbors and was sorry for his change of vote. But the out-of-court statements of member Johnson are hearsay in nature, do not supplement or explain any other competent evidence on this issue, and they cannot form the basis for a finding of fact.
The Issue The issues in this case are: Whether Petitioner, Warren M. Briggs ("Briggs"), should be issued a Wetland Resource Permit (WRP) for the construction of a single-family dwelling on a lot with jurisdictional wetlands in Santa Rosa County, Florida, as proposed in his application submission of 1998; and Whether the Department would permit the construction of a single-family dwelling on the subject lot under conditions and circumstances other than those set forth in Briggs' application.
Findings Of Fact Briggs is the owner of Lot 67, Block H, Paradise Bay Subdivision, located in southern Santa Rosa County ("Briggs lot"). Paradise Bay Subdivision was developed in approximately 1980, prior to the passage in 1984 of the Warren Henderson Wetland Protection Act. (Official Recognition of Section 403.918, Florida Statutes). The subdivision consists of modestly priced single- family homes that are attractive to young families because of the quality of nearby schools. The typical non-waterfront home in the subdivision is single story, approximately 2,000 square feet in area, and built on a concrete slab. The typical setback from the road to the front edge of a home is 75 feet. This fairly consistent setback from the road prevents the view from one home into the adjacent property owner’s back yard and, thereby, adversely affecting the neighbor’s property value. The undeveloped Briggs lot was purchased in 1981 for approximately $15,000 and remains undeveloped. Briggs bought the lot, along with three other lots in the subdivision, as investment property. The other three lots have been sold. One of the lots sold earlier by Briggs was a waterfront lot on East Bay located in jurisdictional wetlands. The entire lot was filled pursuant to a permit issued by the Department. The Briggs lot is 90 feet wide by 200 feet deep. It is located on the south side of Paradise Bay Drive. The lots on the north side of Paradise Bay Drive are waterfront lots on East Bay. To the rear (south) of the Briggs lot and other lots on the south side of Paradise Bay Drive, is a large swamp that eventually discharges into East Bay. The major connection between the Briggs lot and East Bay is through a culvert under Paradise Bay Drive. The Briggs’ lot consists of 2,914 square feet of uplands and 15,086 square feet of state jurisdictional wetland, with all of the uplands located in the northern half of the lot. Converted to acres, the Briggs lot consists of 0.067 acres of uplands and 0.347 acres of state jurisdictional wetland. Lot 66, immediately east of the Briggs lot, has been cleared and is about half tietie swamp with the remainder consisting of uplands and disturbed wetlands. Some fill has been placed on the lot. Lot 68, immediately west of the Briggs lot, is undeveloped and consists of all tietie wetlands. Lots 69, 70 and 71 of Block H of the subdivision are undeveloped and consist primarily of wetlands. The Department issued a permit on October 31, 1996, that allowed the owners of Lot 71 to fill 0.22 acres (9,570 square feet) of wetlands. The fill is allowed to a lot depth of 145 feet on the west side, and to a width of 73 feet of the total lot width of 90 feet. The fill area is bordered on the east and west by wetland areas not to be filled. The Department issued a permit on November 13, 1997, that allowed the owner of Lot 61 to fill 0.26 acres (11,310 square feet) of wetlands. Fill is allowed over the entire northern 125 feet of the 185 foot-deep lot. On April 28, 1998, Briggs applied to the Department for a permit to fill Lot 67. The Department, in its letter of August 7, 1998, and its permit denial of September 2, 1998, erroneously described the project as consisting of 0.47 acres of fill. The entire lot consists of only 0.41 acres, of which 0.067 acres is uplands, leaving a maximum area of fill of 0.343 acres. If Briggs’ residential lot is to be used, some impact to the wetlands on the lot is unavoidable. Alternatives discussed by Briggs and the Department, three of which are still available for Briggs to accept, included the following: One hundred feet of fill with a bulkhead separating the fill from the wetland area, with no off-site mitigation; Fill pad could be placed on property with the remainder of the wetlands on the site to remain in their natural state with no backyard, with no off-site mitigation required; One hundred feet of fill with a bulkhead separating the fill material from the wetland, with a small back yard, with no off-site mitigation required. Briggs did not accept any of the foregoing alternatives or proposed acceptable mitigation measures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying the permit application, provided that the parties may reach subsequent agreement regarding proper mitigation in order to make the construction of a single-family dwelling possible on the Petitioner’s property in this case. DONE AND ENTERED this 19th day of November, 2001, in Tallahassee, Leon County, Florida. _ DON W. DAVIS 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 19th day of November, 2001. COPIES FURNISHED: Charles T. Collette, Esquire Lucinda R. Roberts, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Jesse W. Rigby, Esquire Clark, Partington, Hart, Larry Bond and Stackhouse 125 West Romana Street, Suite 800 Post Office Box 13010 Pensacola, Florida 32591-3010 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Lior Hason is the owner of Britt's Cafe, a restaurant which occupies property owned by the Petitioner's Stanislaw and Kasimiera Budzinski. On or about December 19, 1995, Harry S. Cline, an attorney for Mr. Hason and the Budzinskis, filed an application for a variance from the City of Clearwater's Development Code, for the purpose of eliminating three required parking spaces from the front of the subject property for the construction of an outdoor cafe at 201 South Gulfview Boulevard. The Code requires one parking space per 200 square feet of gross floor area, and a variance was required to remove three existing parking spaces from the unit's parking space inventory. The matter was brought before the City's Development Code Adjustment Board at its January 11, 1996 meeting. Mr. Cline appeared at the meeting on behalf of the applicant and presented the project. No one else was present to speak in support of or in opposition to the request. However, four letters in opposition from neighboring business owners were submitted. Notwithstanding these objections, the Board determined that the applicant had substantially met all standards for approval listed in the City's Land Development Code; and upon vote of the Board, the application was approved, subject to certain conditions, by a three to two majority. Mr. Hason entered into discussions with City officials to determine what was necessary. Official City reaction was initially favorable. Mr. Hason was advised of the requirements for the project and had plans drawn which called for a deck with a 35 to 36 inch railing with landscaping around it, and with posts and lights. When the plans were submitted to the City officials, the only change suggested was to raise the railing height to 45 inches, which was done, after which the City approved the plans and the permit was granted. The deck was then constructed exactly according to the approved plans. At some time during 1996, Mr. Hason discussed with some City employees putting an awning over the deck. During these discussions, the City employees sent Mr. Hason a copy of Section 41.221(1)(c), Clearwater City Code, which provides for awnings to be removable. Mr. Hason considered the sending of this Code provision to be tantamount to a favorable reply to his inquiry, and, based on that, he finalized his plans for the installation of a removable awning. The proposed awning is designed in such a fashion as to be extendible and retractable on a frame, capable of easily being pulled up against the front of the building like a drapery. With a minimum of further effort, consisting of the removal a several bolts, the entire awning construction can be removed from the frame. Mr. Hason submitted his application for the variance to install the awning on February 2, 1997. In the interim, the City employees with whom Mr. Hason discussed the project changed their position from favoring the project to opposing it. He was ultimately advised in December 1996 or January 1997 that the awning could not be permitted because an awning could not be approved over a deck for which a permit should not have been issued and for which the issuance was a mistake. Though the Board had not yet voted on the application, no information was given to Mr. Hason as to what he could do to make the project approvable. His application, on February 2, 1997, was submitted because, Hason claims, he had been told, by someone not further identified, that applying for a variance for the awning would make everything right. The Variance Staff Report submitted to the Board by the appropriate City employees acknowledged that the frame over which Mr. Hason proposed to put the awning does not meet code because it was constructed within a required setback area from South Gulfview Boulevard, but since the frame was built pursuant to a City-issued permit, consistent with City policy, the City accepted its existence. In its final recommendation to the Board, the staff concluded that notwithstanding the encroachment into the setback area, the project "appears to comply with all standards for approval, provided attention is given to the external appearance of the cafe:" The staff then went on to recommend approval of the project subject to certain conditions, all of which, Mr. Hason accepts and agrees to. Nonetheless, the Board denied the permit by a vote of four to one. Mr. Hason contends that the Board vote was an attempt by the Board to get back at him because of what it perceived as his failure to comply with the conditions placed upon the issuance of the first permit and his alleged misrepresentation of the scope of his project at the time. Mr. Hason, however, categorically denies he has done anything contrary to the dictates of the City. He went back to City officials many times during the construction of the deck to make sure the project was built as required. The majority of the Board members believe, however, that the deck as constructed, goes far beyond the limited structure approved by the granting of the parking space variance in January 1996. This animosity toward the project can be seen from a review of the audio record of the February 13, 1997, Board meeting where, during a colloquy between a Board member and Mr. Hason, it appeared the member was somewhat put out by the entire situation. His analysis indicates a less than complete recollection of the matter, however. Whereas one of the conditions to the issuance of the initial permit was that the area of the outdoor cafe should not be greater than 25 percent of the indoor area of the restaurant, this member pointed out that the 69 outdoor seats were far in excess of 25 percent of the 115 or so indoor seats. This constituted a confusion of seating as opposed to area. No evidence was presented concerning whether Mr. Hason had violated the area constraint. In the main, however, while it appeared that a majority of the Board members were unhappy about the way the project developed, and expressed the opinion that the project did not conform to what they had intended to approve, there was no indication any member s vote was motivated by anything other than a sincere belief in the correctness of his position. There was no indication of any inappropriate or vindictive action by anyone on the Board or its staff. Stephen Sarnoff, a central permitting specialist with the City reviewed the plans for the initial construction and for the current application. As he recalls, the plans for the initial deck construction did not show any support beams, fans, overhead structure or latticework fencing, and the deck, as built, does not conform to the plans as submitted. City Code requirements call for a railing of from 30 to 42 inches high. The current railing of 45 inches does not conform to that standard, and Mr. Sarnoff is not aware of any request from the City that the railing be raised to that height, as Mr. Hason claims. By the same token, while there is no requirement in the ordinance that a deck be of a certain height, anything higher than 12 inches is considered a structure and a waiver is required. This deck was approved for 12 inches. A certificate of occupancy is usually issued for a deck, but in the instant case, such a certificate has not been issued because the deck, as built, is not in compliance with the 1996 approval. If it is brought into compliance, it will be approved. Sarnoff is aware of and familiar with other outdoor restaurant decks built at various locations in the Clearwater area, as indicated by Mr. Hason. Some are not within the CR-28 zone and do not come under the same standards as are applicable here. Others, which must conform to the instant requirements appear to have movable awnings which are acceptable. Still others are in a different zoning district with different set-back requirements, and some were initially denied, but were subsequently approved when they were brought into compliance with the requirements. John Richter, a senior planner for the City, was the individual who prepared the staff report on the instant project and initially recommended approval, contingent upon changes to the external appearance of the facility. He made suggestions and has discussed the project with Hason on his several visits to the property. He did discuss an awning with Hason at some point, but their discussions did not deal with its mobility. All in all, Mr. Richter concluded that the project appears to meet the standard for approval, provided attention is given to the external appearance of the cafe. David S. Shuford, the City's central permitting director and development code administrator indicated that the variance required for the awning, which was an integral part of the structure already built, was not automatically granted with the granting of the permit for the deck structure. Section 42.221, Clearwater City Code, was adopted to promote a more festival atmosphere in some of the outdoor tourist areas. The intent of subsection (l)(c) of that provision was to require the use of moveable items and to design structures that would meet wind requirements and not interfere with pedestrian traffic. The term "moveable" means what it says, and in Shuford's opinion, from the plans he saw, the proposed awning would not be easily moveable on a daily basis. The Clearwater City Code establishes the area in question as one where, once guidelines are developed, they will be adopted and be complied with. Mr. Shuford opines that the current deck, in the rafter area, goes beyond what was proposed at the time the project was submitted for the parking variance and was approved. This is what appears to be the source of the difficulty the Board members have with it. However, if designed to comply with the guidelines, this awning could be approved. He would agree with the conditions outlined in the staff recommendation so far as they relate to painting and architectural matters.
Findings Of Fact Respondent TCI has more than 70 homes completed or under construction in furtherance of plans to build 141 single family residences as part of Tymber Creek Phase I, a development in Volusia County. The development site is partially bounded by the Little Tomoka River, a natural body of water which is navigable in fact. The site of the construction respondent DER proposes to permit is home to wildlife of various kinds, including woodpeckers, great horned owls, herons, mussels, manatees, snakes, turtles and alligators. At the present time, boat traffic on the Little Tomoka River is negligible. The dock TCI proposes to build would have a total area of 120 square feet and would not impede the flow of the river. It would protrude over the water no more than five feet along the bank of the river at a point where the river widens, described by some of the witnesses as a lagoon, and would not constitute a hazard to navigation. With respect to the dock, the foot bridges, the boat ramp and the removal of the agreed upon portion of unauthorized fill, the permit DER proposes to issue would be before the fact. According to DER's appraisal of TCI's original, revised permit application, which was received in evidence as DER's exhibit No. 5, TCI made revised application, on November 29, 1977, for "after-the-fact approval for the placement of approximately 3500 cubic yards of fill After TCI had filled, it constructed parking and recreational facilities. In evaluating TCI's application, Steve Beeman, a DER employee, described the site in January of 1978: Approximately 1.6 acres of filled flood plain is presently covered by a sports complex including tennis courts, swimming pool and recreation building and an asphalt parking lot. An additional 3000 square feet has been filled and paved (asphalt was applied after receipt of DER cease and desist notice) for [access to] a [proposed] boatramp and parking area, and approximately 14,000 square feet of swamps have been filled in the construction of a 1800+ feet "natural trial". DER's exhibit No. 5. By letter dated February 22, 1978, respondent DER notified respondent TCI of its intent to deny TCI's initial application, as revised. Among the reasons DER gave for its intended denial were expected violations of various water quality standards, including a prohibition against oils and greases in concentrations greater than 15 mg. per liter ("or that no visible oil, defined as iridescence, be present to cause taste or odors, or interfere with other beneficial uses.") DER's exhibit No. 4. Rule 17-3.05(2)(r) , Florida Administrative Code. This water quality standard violation was anticipated because of "the [projected] focussing of stormwater runoff into the Little Tomoka River, across paved surfaces, which are high in petroleum based pollutants." DER's exhibit No. 5. In its notice of intent to issue a permit, DER proposes to authorize TCI "to realign (straighten) existing boatramp access road." DER's exhibit No. Mr. Wheeler's letter to Mr. Shirah of April 6, 1978, DER's exhibit No. 2, describes the proposed access road change as part of "discussions and agreements concerning resolution of the initial unauthorized fill and subsequent after-the- fact application." A drawing attached to this letter indicates that the contemplated alteration of the roadway would decrease the amount of paved surface to some unspecified extent. Another part of these "discussions and agreements concerned removal of some 1900 cubic yards of fill. Most of the fill designated for removal had been placed with the idea of creating a dry pathway through the marshy area separating the Little Tomoka River from an asphalt parking area. So placed, the fill dirt acts as a dike, preventing the preexisting communication between the waters of the Little Tomoka River and the waters of the adjacent marsh. At the hearing, Mr. Wheeler testified that, if revised in accordance with DER's exhibit No. 2, TCI's project would pose no threat to water quality, but he conceded that the effects of gasoline boat motors were not considered. An increase in beat traffic would likely result in an increase in oils and greases in the waters of the Little Tomoka River.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent DER, deny the permit is proposed to issue to respondent TCI in letters to petitioners dated April 7, 1978. DONE and ENTERED this 23rd day of August, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Segundo J. Fernandez, Esquire Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida Judson I. Woods, Jr., 32301 Esquire Post Office Box 1916 Ormond Beach, Florida 32074 Tymber Creek, Inc. c/o Stan Shirah Route 40 Twin River Drive Ormond Beach, Florida 32074
The Issue The issue in this appeal is whether the decision of the City of Clearwater Development Code Adjustment Board denying Petitioner's application for variances for certain signage on his property is supported by the evidence in the record, or whether it departs from the essential requirements of law. See Section 137.014(f)(3), City of Clearwater Land Development Code.
Findings Of Fact Petitioner is the owner of certain property located at 1923-1943 U.S. Highway 19 North, Clearwater, Florida (Section 05-29-16, M&B 23.05). This property is zoned CC (Commercial Center), and is the site of a strip shopping mall. On or about March 23, 1989, Petitioner applied for three variances for the subject property, as follows: 243 square feet to permit a total of 411 square feet of property identification signage; 13.5 feet in height to permit a 33.5 foot high pole sign; permission for a roof mounted sign. The Development Code Adjustment Board denied Petitioner's application for variances on April 13, 1989, and Petitioner timely filed this appeal of the Board's decision. Under the provisions of the City of Clearwater Land Development Code applicable to the Petitioner's property, only 168 square feet of property identification signage and pole signs not to exceed 20 feet in height would be allowed without a variance, and roof signs of any kind are prohibited unless a variance has been granted. Several months prior to Petitioner's filing for these variances, a roof sign was erected on the building located on the subject property. This roof sign consists of individual letters spelling "Harbor Square", which is the name of this shopping mall. The letters are from 3 feet, to 4 feet 9 inches in height, and span a distance of 34 feet 9 inches in width. The roof sign replaced a property identification sign at the right of way which previously carried the name of the shopping center, but the space on the pole sign previously used to identify the mall was not eliminated. That space is now used to identify a uniform business in the mall. Petitioner is seeking these after the fact variances to authorize the roof sign which has already been erected, and to approve the height of an existing pole sign. An enforcement action initiated by the City is pending this variance determination. Tenants in the Harbor Square mall testified that the change in signage has made the mall more visible and accessible, and several of their customers have commented that their businesses are now easier to find. The tenants feel that this change in signage will benefit their businesses financially. The Development Code Adjustment Board has previously granted variances from the signage limitations imposed by the Code, but the evidence produced at hearing indicates that none of these variances were granted after the fact. The two variances which were approved for roof signs were based upon a finding of conditions unique to the property which created a hardship for the applicant. In both instances, the Board found that the applicant had not created his own hardship, but that it arose from the size or positioning of the property involved in each application. In this case, nothing unique about the property can be found. The applicant has caused his own problems by allowing a sign to be erected without first obtaining a permit or variance. The Petitioner urges that it was the responsibility of his sign contractor to obtain all necessary permits or variances, and that the contractor did not inform him that a variance was necessary before he erected the sign. However, neither the sign contractor nor the Petitioner himself was present to testify, and therefore, there can be no finding with regard to his credibility, or with regard to whatever arrangement he had with the contractor. In any event, as the property owner seeking a variance, Petitioner has failed to establish any basis for a finding of a hardship or circumstance unique to his property, other than the fact that he allowed this sign to be erected without obtaining the necessary approvals from the City.
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.
Findings Of Fact 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. 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. 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. 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. 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: The proposal is inconsistent with the adopted Community Development Code, the Comprehensive Plan, 1995 Clearwater Downtown Redevelopment Plan, and the Downtown Design Guidelines. The proposed automobile service station is not a permitted use within the downtown district. Approval of the proposed use may encourage other like uses and may be detrimental to downtown redevelopment. The proposal does not comply with the Flexible Development criteria as a comprehensive infill redevelopment project per Section 2-803. The proposal is not in compliance with the other standards in the Code including the general applicability criteria for Section 3-913. 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." 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: The development or redevelopment of the parcel proposed for development is otherwise impractical without deviations from the use, intensity and development standards; The development of the parcel proposed for development as a Comprehensive Infill Redevelopment Project will not reduce the fair market value of abutting properties; The uses within the comprehensive infill redevelopment project are otherwise permitted in the City of Clearwater; The uses or mix of uses within the comprehensive infill redevelopment project are compatible with adjacent land uses; 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; 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; 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; 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; 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; The design of all buildings complies with the Downtown District design guidelines in Division 5 of Article 3. 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."
