The Issue The issue in this case is whether Respondent discriminated against Petitioner because of her disability in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner, Bernice Buchanan, an 81-year-old female, lives in a condominium at 700 Seabrook Court, Unit 103, Altamonte Springs, Florida. The condominium unit was purchased by Petitioner and is within the Key West Condominiums complex. Respondent, Key West Condominium Association, Inc. ("Key West Association"), a not-for-profit corporation, is responsible for the operation of Key West Condominiums, which consists of 60 units. Petitioner has a meniscus tear in her right knee, arthritis in her right knee and right shoulder, and degenerative discs in her lumbar and cervical spine. As a result of the degenerative discs, there are no ligaments between Petitioner's bones in the affected area, thereby causing the degenerated discs to push on her muscles and nerves. Moreover, because there are no ligaments in the affected areas, Petitioner has a problem with balance and must walk very slowly. Finally, because of Petitioner's degenerative disc condition, Petitioner has severe pain when she walks, sits, or lies down. Petitioner's physician, John F. Ryan, M.D., submitted documentation which stated that Petitioner is not allowed to lift more than 15 pounds due to her degenerative discs and severe knee pain. Also, Dr. Ryan indicated that because of the severe pain in Petitioner's right knee, she is limited in walking, even moderate distances. Petitioner's degenerative disc condition and knee pain are permanent disabilities. Petitioner anticipates having surgery that may reduce or alleviate the pain caused by the degenerative discs. She is also contemplating having knee replacement surgery which should help the right knee. However, unless and until Petitioner has the surgeries, it is impossible to know if those procedures will alleviate her pain and/or otherwise improve her impaired mobility issues. While surgery may possibly improve some of Petitioner's medical conditions, that is not an option with regard to her arthritis. Petitioner is not aware of any surgery or other medical procedure that will improve and/or alleviate the pain she is experiencing due to the arthritis in her knee and shoulder. Furthermore, there is no evidence that any of her physicians have recommended any such procedure. Although Petitioner's ability to walk is impaired, she does not presently use any walking devices such as a cane or walker. Petitioner's ability to drive is not impacted by her medical conditions and associated physical impairments. In fact, Petitioner regularly drives to places such as the grocery store, church, and to visit family. The Key West Condominium complex has three types of parking spaces: (1) assigned garage spaces1; (2) unassigned uncovered non-handicap parking spaces ("regular parking spaces"); and (3) unassigned uncovered handicap parking spaces ("handicapped parking spaces"). Petitioner has an assigned garage space which is located in a bank of four garages. That assigned parking space is about ten feet wide. The regular parking spaces are not assigned and may be used by homeowners, residents and visitors on a "first come, first serve basis." The handicap parking spaces are not assigned and may be used by the homeowners and residents of Key West Condominiums and their visitors who have appropriate handicap decals. There is one handicap parking space located to the left of the bank of garages where Petitioner's garage space is located. Also, there are several regular parking spaces to the right of that garage bank. Because Petitioner's assigned garage is only ten feet wide, it is difficult for her to enter and exit her small Toyota sedan when it is parked in the garage. Nonetheless, provided Petitioner does not have groceries or packages to remove from her car, the garage space is "adequate." Due to the width of Petitioner's assigned garage, when Petitioner parks her car in that space, the car doors cannot be opened wide enough to allow her to remove groceries or packages from her vehicle. Thus, when Petitioner has groceries or packages to unload from her vehicle, in order to unload them, she must park in a space other than her assigned garage space. When Petitioner has groceries and/or other packages to unload and carry into her unit, she usually parks in a regular parking space in front of and close to her condominium unit. When Petitioner parks in the regular parking spaces, it is easier for her to unload the groceries from her car and carry them to her unit. If all of the regular parking spaces in front of her building are occupied by other vehicles, Petitioner has sometimes double-parked behind those vehicles. In those instances, Petitioner would unload the groceries or packages from her car, take them into her condominium unit, and then return to her car and park it in her assigned garage. Petitioner no longer double parks behind vehicles parked in the regular parking spaces when she has groceries and/or packages to unload from her car and take to her condominium. The reason is that Petitioner found that double parking and walking behind parked vehicles to unload her groceries was dangerous. When Petitioner has groceries or packages to take into her condominium and no regular parking spaces are available, she must park across the street and wait until a space becomes available. In such instances, Petitioner reported that she sometimes had to wait for up to 25 minutes for an available space. Petitioner's decreased mobility and impaired ability to walk, even moderate distances, and her lifting restrictions significantly impair her ability to retrieve groceries and packages from her car and carry them into her unit. Petitioner's assigned garage is 47 feet and nine inches from the front door of her unit. The handicap space to the left of the garage bank is 90 feet from the front door of Petitioner's unit. The regular parking space to the right of the garage bank, which Petitioner sometimes uses, is 38 feet from Petitioner's front door. In a letter dated May 15, 2007, Petitioner requested that the Key West Association provide her with a parking space close to her unit marked "Handicapped Parking" and designated only for her. Petitioner noted that she did not need space for a wheelchair. Finally, Petitioner advised Key West Association that the request was based on medical reasons. At the time Petitioner wrote the May 15, 2007, letter, there was a handicap parking space with the painted markings of a handicap parking space. However, that handicap parking space did not have a "handicap parking" sign designating that space as such. In her May 15, 2007, letter, Petitioner advised the Key West Association that the handicap parking space referenced in paragraph 29 would not meet her needs because it was too far for her to carry her groceries. In June 2007, the Key West Association Board of Directors ("Board"), denied Petitioner's request for the regular parking space closest to her unit to be designated as a "handicap parking" space reserved for her use only.2 Instead, the Board directed Petitioner to use the handicap parking space to the left of the garage bank. The Board also notified Petitioner that it would reinstall the "Handicapped Parking" sign"3 at the above-referenced handicap parking space. The Board did not designate the handicap parking space for Petitioner's exclusive use. Therefore, it could be used by any Key West Condominium homeowner or resident or their visitors with a handicap decal. The handicap parking space that the Board made available for use by Petitioner is located between two garage banks so that the handicap space is bordered on each side by a wall of the abutting garage bank. As noted above, the handicap parking space that the Board told Petitioner to use is 90 feet from the front door of Petitioner's condominium; this is 52 feet farther than the regular parking space in front of Petitioner's building. The Board's June 2007, denial letter expressed concern about the cost of constructing the handicap parking space. Additionally, the Board noted that construction of a new handicap parking space would result in the loss of two non-handicap parking spaces. (This was because two non-handicap parking spaces were needed to construct one handicap parking space.) By letter dated September 12, 2007, Petitioner advised the Key West Association that she was still having problems with parking. Petitioner reiterated that the handicap parking space, which the Board had opened for use (by re-installing the handicap parking sign), was too far for her to carry her groceries and other items (90 feet from the front door of her unit). Petitioner also noted that she had the following problems with the handicap parking space: (1) The handicap parking space was often occupied by a vehicle with no handicap decal; (2) Petitioner was required to exit her vehicle on the side of the parking space next to the wall of the garage bank; and (3) After exiting the handicap space, she could only access the sidewalk to her unit by stepping over a curb into the grass or walking around her car to the other side.4 Based on the problems enunciated in her September 12, 2007, letter, Petitioner again requested a "handicapped parking space closest to [her] building without having to walk in between cars." Petitioner wanted the requested handicap parking space to be for her exclusive use. Along with Petitioner's letter was a note from her physician, Dr. John Ryan, which supported her request for a handicap parking space. Dr. Ryan's note stated, "[d]ue to her [Petitioner's] medical condition, I request that [Petitioner] be assigned a parking area closest to her building. She requires a handicap space." There is no evidence that the Key West Association ever responded in writing to Petitioner's September 12, 2007, request or asked for additional information about her medical condition. Reggie Caruso, the deputy building official, is the principal plan reviewer for new and large construction projects, including condominium complexes, for the City of Altamonte Springs, Florida. Mr. Caruso is familiar with the parking requirements for condominium complexes, and his office enforces the laws and regulations applicable thereto. Unless otherwise exempt, condominium complexes are required to have a certain number of handicap parking spaces. However, except for the public areas, the Key West Association has the discretion to place the handicap parking spaces wherever it chooses and/or where such spaces are needed. Section 553.5041, Florida Statutes (2008),5 regulates parking spaces for persons with disabilities (i.e., handicap parking spaces) and applies to Key West Condominiums. Subsection 553.5041(5)(c)1., Florida Statutes, provides that: (1) handicap parking spaces be no less than 12 feet wide; (2) the parking access aisle be no less than five feet wide and be placed adjacent to the handicap parking space; and (3) the access aisle be part of an accessible route to the building or facility entrance. Also see Sections 11-4.6.2(1) and 11-4.6.3, Florida Building Code.6 Subsection 553.5041(4), Florida Statutes, provides that the number of "accessible parking spaces" (handicap parking spaces) must comply with the parking requirements in Section 4.1.2(5)(a) of the Americans With Disabilities Act ("ADA") Accessibility Guidelines. These requirements have been adopted and are in Section 11-4.1.2(5)(a) of the Florida Building Code. The number of handicap parking spaces in the Key West Condominium complex complies with applicable law, if the handicap parking space discussed below that does not meet minimum legal requirements, is counted. Subsection 553.5041(4)(c), Florida Statutes, provides that "[t]he number of parking spaces for persons who have disabilities must be increased on the basis of demonstrated and documented need." In or about mid-November 2008, Mr. Caruso inspected the handicap parking space that the Board advised Petitioner to use. That inspection revealed two areas in which that handicap space and the adjacent access aisle were not in compliance with Subsection 553.5041(5)(c)1., Florida Statutes, and the Florida Building Code.7 The first area of non-compliance involves the width of the handicap parking space and adjacent access aisle. Here, the handicap parking space, including the adjacent access aisle, is tapered and has a width that ranges from 16 feet to 18 feet. Accordingly, at certain points, the handicap parking space, including the adjacent access aisle, is only 16 feet wide, not 17 feet, the prescribed minimum width. During the inspection, Mr. Caruso observed that a "fixed" building (a bank of garages) was on each side of the handicap parking space, including access aisle. Thus, Mr. Caruso determined that there is no reasonable way to change the space so that the minimum width of the handicap parking space and adjacent access aisle is 17 feet at all points as prescribed in Subsection 553.5041(5)(c)1., Florida Statutes.8 The second area of non-compliance concerns the requirement that the access aisle be connected to an accessible route. During his inspection of the handicap parking space, Mr. Caruso observed that there is no direct route from the handicap parking space's adjacent access aisle to a sidewalk. Instead, there is a five-inch high curb which obstructs the accessible route. Consequently, the access aisle is not connected to the access route (sidewalk) to the building in which is located Petitioner's unit or any other building in the complex. Mr. Caruso testified credibly that to establish an accessible route from the access aisle (adjacent to the handicap parking space), part of the five-inch high curb would have to be removed and the concrete would have to be extended from the access aisle to the sidewalk. The removal of the curb would result in compliance with the requirement in Subsection 553.5041(5)(c)1., Florida Statutes, that the access aisle connect with and is "part of an accessible route to the building." Also, the removal of the curb would make the space safe because persons using the space would no longer have to step over the five-inch high curb to get to the accessible route. Even if the curb is removed, the parking space, including access aisles, would still not be in compliance with law because the space does not meet the minimum width requirement of 17 feet prescribed in Subsection 553.5041(5)(c)1., Florida Statutes. Moreover, as noted above, because the handicap parking space is bordered on each side of a "fixed" building, it cannot reasonably be brought into compliance. Marty Boble is a planning and development review specialist for the City of Altamonte Springs. In that position, he determines compliance as it relates to the number of parking spaces on-site. In November 2008, Mr. Boble went to the Key West Condominium complex and inspected the property, including the above-referenced handicap parking space. He also reviewed the Key West Condominium plans, which showed the buildings and parking spaces in the complex. The Florida Building Code requires the Key West Condominium complex to have two parking spaces per dwelling. Key West Condominium, which counts its garage spaces as parking spaces, not only meets the requirement as to number of spaces per unit, but exceeds it by 20 spaces. To construct a new handicap parking space that complies with the legally prescribed width requires that two non-handicap parking spaces be used. Thus, the result of constructing a new handicap parking space would result in the loss of two existing regular parking spaces. Nonetheless, Key West Association would still be in compliance with the Code requirement of two parking spaces per unit because it currently has 20 more spaces than required.9 Petitioner's request for a handicap parking space near her condominium unit is reasonable. In light of her impaired ability to walk, even moderate distances, and her lifting restrictions, Petitioner is unable to retrieve groceries and other packages from her vehicle and take them to her unit. Without an accommodation for her handicap, Petitioner cannot have an equal opportunity to use and enjoy her condominium unit. In this case, Petitioner has a disability which significantly impairs her ability to walk. Thus, Respondent is required to provide her with a reasonable accommodation. As of the date of this proceeding, Respondent has not provided any accommodation to Petitioner. The reasonable accommodation that Respondent should provide is to convert non-handicap or regular parking spaces into a handicap parking space. This remedy is required due to the non-compliance issue of the handicap space which cannot be corrected.10 By converting two non-handicap or regular parking spaces to one handicap parking space, Respondent will be able to construct and provide a handicap parking space that complies with applicable law and regulations. The accommodation offered by the Key West Association and its Board is not a reasonable one. As noted above, the handicap parking space offered to Petitioner did not comply with the provisions of Subsection 553.5041(5)(c)1., Florida Statutes. Moreover, the Key West Association failed to take steps to bring that parking space into partial compliance and to make it safe for Petitioner's use, although it had more than a year to do so. Finally, even though it was clearly established that Petitioner needed a space closer to her unit, the Key West Association and its Board offered her a space that was not only unsafe and non-compliant with law, but was further away from her unit. The Declaration of Condominium for Key West provides that material alterations of common elements, such as regular parking spaces, require approval of two-thirds of the owners at a properly noticed meeting. Despite the Key West Association's position, use of two regular parking spaces to construct a handicap space is a material alteration, it never called a meeting for that purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order: Finding that Respondent, Key West Condominium Association, Inc., discriminated against Petitioner, Bernice Buchanan, under the FFHA by refusing to make a reasonable accommodation for her handicap; Ordering Respondent to cease the discriminatory practice; and Ordering Respondent to provide a handicap parking space close to Petitioner's condominium unit. DONE AND ENTERED this 29th day of May, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 2009.
Findings Of Fact Petitioner owns Lot 70, Gates Knoll 1st Addition, which abuts a medical office complex of eighteen offices west of Lot 70. Off-street paved parking for the medical offices presently abuts Lot 70, but additional parking is needed. Lot 70 fronts on Barry Street, which is the only east-west through street in the immediate vicinity and is heavily travelled. Zoning for Lot 70 is "RS 50," which is single family residential. West of Lot 70 to Highland Avenue is zoned "PS," which would allow multiple family dwellings or business and professional services such as those for which the property is presently used. South of the area zoned "PS" the property adjacent to Gates Knoll 1st Addition is zoned "RM 28," which provides for high density multi-family use and just west of "RM 28" between that zoning and Highland Avenue the property is zoned "CS" for General Commercial use. A bowling alley is located in this area a short distance south of Barry Avenue. Lot 70 is currently fenced and the southern and western part of this lot is used for parking a few automobiles during business hours. The north side of Lot 70 is part of a drainage easement or ditch which occupies approximately 35 feet of this property. Lot 70 is 100 feet wide on Barry Street and 105 feet deep. The north 35 feet of this lot is unusable for construction due to the drainage easement. Adjoining property owners across Barry Street from Lot 70 oppose the special exception primarily because they want the lot to remain vacant to serve as a buffer zone between their property and the commercial development. Others oppose the application because they fear use of the property for anything except a single family residence will reduce their property values, increase the traffic in the neighborhood, and increase the noise and pollution from automobiles. Mr. Huff, the adjoining property owner whose home is immediately east of Lot 70 on Lot 71, is concerned about the proximity of the parked vehicles to his home. The existing fence is some ten feet from Huff's home.
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
Findings Of Fact Willie Brewton owns a single family home on a lot approximately 200 feet by 600 feet bounded on the front (south) by Brewton Court and on the west by Lakeshore Lane. Across from Lakeshore Lane a new development is underway and traffic on Lakeshore Lane is increasing. Appellant's variance request involves increasing the solid fence along Lakeshore Lane in the vicinity of his entrance drive to 6 feet to provide more protection from noise and automobile headlights. This property is zoned RS-100. This code allows for a four-foot fence along the side of the residence and a 30-inch fence in front of the residence. Accordingly, the maximum allowed height of fence on Appellant's property is four feet along Lakeshore Lane. No evidence was presented that similar variances have been granted to other properties in the same district or that special conditions and circumstances exist which are peculiar to Appellant's property which are not applicable to other lands in the same district.
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 In 1984 Lieselotte Wirschint and her husband purchased the subject property located at Lots 14 and 15, Bidwell Oak Wood Additions otherwise identified as 606-608 North Ft. Harrison Avenues, Clearwater, Florida. This purchase was conditioned on their obtaining approval of a special exception for an automotive repair shop on the subject property. The Wirschints intended to relocate their business known as International Automotive, Inc.a Petitioner herein, to the subject property. As of February 6, 1986, ownership of said property is in the name of Petitioner. The subject property is in a "CO" zoning district (general commercial). An automotive service facility is not a permitted use in a "CO" zoned are,; and therefore conditional use approval must be obtained. Petitioner applied for conditional use approval on or about February 11, 1986 and on March 4, 1986 the Planning and Zoning Board disapproved Petitioner's application for conditional use approval. Paula Harvey, Planning Directors recommended disapproval because her review of the application indicated the proposed use would be incompatible with the surrounding neighborhood; traffic engineering concerns about an apparent lack of adequate parking on site, and her concern about noise that would be caused by the proposed use. The neighborhood around the subject property consists of mixed uses. To the west and south are residential uses, to the north there is a similar auto service facility, and across Ft. Harrison Avenue there is an auto tire store. There are also commercial office and special care properties, a funeral home and a school in the surrounding neighborhood. No buffer exists between the residential areas and the subject property. The City of Clearwater requires an auto service facility to have four parking spaces for each service bays plus one parking space for every two employees. The service bays themselves do not count as a parking space. Although a rough sketch of the site was provided to city staff by Peter E. Mangano on behalf of Petitioner, it was not a part of Petitioner's application and was not provided to Paula Harvey or the Planning and Zoning Board. No plans or specifications were formally submitted with this application. In any event, the rough sketch shows only ten parking spaces and three service bays. Petitioner has two employees. With three service bays and two employees, the Petitioner would have to provide thirteen parking spaces to comply with Respondent's parking space requirements. Thus, Petitioner has not demonstrated that its application or supplemental rough sketch provides the required spaces for parking. Petitioner proposes to construct a concrete structure on the subject property, with concrete floor. Air wrenches would be used in the proposed business, and service bay doors will normally be open between 8:00 a.m. and 5:00 p.m., Monday through Fridays when the business would be open. Petitioner obtained a "special exception" in 1984 to operate an auto service facility on this site and an extension was granted until October 25, 1985. However, Petitioner never acted under the "special exception" and it expired prior to this application for conditioned use approval. The current Land Development Code for the City of Clearwater took effect October 13, 1985 and has replaced the category of "special exception" with "conditional use," for which the Petitioner applied on or about February 11, 1986.
Findings Of Fact Petitioners own the Sea Cloud Motel with 11 rooms located at 540 South Gulf View Boulevard, Clearwater, Florida, in an area zoned CTF-28. CTF-28 is high density commercial-tourist and is dominated by motels, restaurants, and other businesses catering primarily to tourists. The Sea Cloud Motel has only ten parking spaces at present, with two of these spaces so located that with the space behind them occupied a car cannot get into or out of those spaces. Petitioners have leased five additional spaces from the Clearwater Point Deli on property adjacent to the Sea Cloud Motel (Exhibit 2). Adjacent to the Sea Cloud Motel is the Hibiscus Gift Shop owned and operated as part of the Red Carpet Resort Motel. Across the street from Petitioners' property is a convenience store with gas pumps and a car rental agency. Several realty offices are located in the general area of the Sea Cloud Motel in addition to restaurants and convenience stores. The principal objection to the special exception here requested came from adjacent property owners who fear the real estate office will aggravate the inadequate parking facilities presently existing on Clearwater Beach. The addition of the real estate office in a space less than 150 square feet will not require the addition of another parking space. The leasing of five additional parking spaces will more than adequately compensate for the additional traffic anticipated to be generated by a one-desk real estate office, particularly where the office is intended to concentrate on foreign visitors interested in real estate investments at Clearwater and will be operated by the co-owner of the motel, Kathleen M. Fuller, a registered real estate salesperson.
Findings Of Fact The Petitioner is the owner and operator of several businesses on Clearwater Beach, including two "fast-food" facilities which serve primarily recreational beach visitors. Petitioner owns property on the northeast corner of Marian and Mandalay Streets on the beach. Marian Street is a one-way highway which terminates at Mandalay Street. It is the eastern terminus of State Road 60 and provides the main access to Clearwater Beach from mainland locations. Mandalay Street is a four-lane street which serves as the primary north-south artery on Clearwater Beach. The intersection of Marian and Mandalay Streets is the busiest intersection on Clearwater Beach. There are a traffic light and a pedestrian light at the intersection. Petitioner purchased the property at the northeast corner of the intersection in 1974. A two-story building occupies the property and covers over half of it. The building fronts on Mandalay Street. There are two commercial facilities on the first floor, one of which is presently not occupied. There are five apartments on the second floor, all of which are occupied. There are numerous commercial facilities to the north of Petitioner's property along the same side of Mandalay Street. These are primarily shops which cater to the beach-going public, and small restaurants. To the east of Petitioner's property, there is a mixture of commercial uses, primarily motels. There is a Holiday Inn motel across Mandalay Street. Petitioner's property lies within a zoning district which is classified "GB" or "General Business." The property is classified in the City's plan as commercial/tourist. Retail business uses, restaurants, motels, or high-density residential uses would all be appropriate under the "GB" zoning classification and under the City's plan. Petitioner proposes to remodel the building on his property and to operate a "fast-food" restaurant facility in it. The Petitioner proposes to place food preparation and service areas on the ground floor with some stand-up eating locations, and to place most of the seating on the second floor. The second floor would serve as a dining porch with good views of the beach area. The Petitioner has not decided whether he would seek to serve as a franchisee of some national food service organization. The Petitioner would not have any "drive-in" facility connected with the restaurant. Petitioner's property is a good location for a fast-food restaurant because it is at a highly visible location, the busiest intersection on the beach; and because it is readily accessible to the beach-going public, being located across the street from the beach. There is a very favorable prospect that a fast-food operation on the property would provide the Petitioner with a favorable return on his investment. There are five parking spaces located on the Petitioner's property adjacent to the building. Petitioner proposes to utilize the same five parking spaces to serve his proposed restaurant. Under the City of Clearwater's building and zoning regulations, persons who operate restaurants are required to provide suitable parking areas to accommodate employees and customers. The regulations require that parking spaces be provided based upon the number of employees and based upon the number of fixed seats or the square footage of the restaurant. In order to operate the restaurant that he proposes, the Petitioner would be required to provide 68 spaces under the City's building and zoning regulations. Petitioner is seeking a variance from these requirements which would allow him to provide only five parking spaces. There is considerable public parking located within close proximity to the Petitioner's property. There are approximately 1,500 metered parking spaces maintained by the City within four blocks of the property. The purpose of these spaces is not, however, to serve commercial enterprises, but rather to serve the beach-going public. While there are many such spaces, they are frequently filled during peak beach-going periods. To use the public parking facilities as parking for the Petitioner's proposed restaurant, customers would need to cross one or more streets. Petitioner contends that his proposed restaurant would not itself serve as a draw to the beach, but rather that his customers would be people who have already come to the beach. Petitioner contends therefore that there will be no additional demand for parking caused by his facility, and that he should not be required to provide any. While it is true that a "fast-food" sort of facility is not likely to serve as a substantial draw to the beach, it is also true that the Petitioner is predicting success for his facility based upon its highly visible location. It is likely that persons going to the beach would notice the restaurant and seek nearby parking locations. This would increase the demand for parking facilities in the area and would increase both vehicular and pedestrian traffic at what is already the busiest intersection on the beach. The parking problem on Clearwater Beach is not new. During peak demand times, there has been a shortage of parking for many years. The parking shortage is not one that affects only the Petitioner's property. Any business located on Clearwater Beach would have the same difficulties that Petitioner has. The difficulties are caused by lack of available land for providing parking spaces, and by the high demand for the land that is available. For the Petitioner to provide parking that would comply with the City's zoning regulations, he would need to acquire approximately four-tenths of an acre of property. The cost of such an acquisition would be prohibitive. The same problem would exist for any business person in Clearwater who proposes to operate a restaurant. It is not a problem that is unique to the Petitioner's property. There are a number of restaurants located on Clearwater Beach which do not provide parking facilities that would comply with the City's zoning regulations. There are at least two such restaurants in close proximity to the Petitioner's property. It appears that all of these restaurants were in operation prior to the adoption of the City's zoning regulations. While there was testimony that variances of the sort being sought by the Petitioner were once commonly granted, there was no competent evidence to support the contention. It does not appear that the City has enforced its zoning regulations in other than a uniform manner.
Findings Of Fact Petitioner, within the past year, purchased two tracts of property 50 feet by 100 feet located at 614-620 Mandalay Avenue on Clearwater Beach. This property is zoned "CG" or "General Business" and there are four buildings on this property comprising five dwelling units. The land use plan for this location is commercial/tourist facilities. Petitioner submitted an artist's drawing of what the site could look like if the variance requested was granted. No building permits have been requested; accordingly, no specific plans have been submitted to establish the use to which the property would be put if the variance requested is granted. The proposal of Petitioner (such as it is) contemplates converting the ground floors of the existing structures to commercial use. If the existing buildings were so converted, with the upper floors remaining residential, the zoning code requires provision be made for twenty-eight off-street parking spaces. Since the existing five dwelling units would be credited (grandfathered) for having eight such parking spaces due to the construction having occurred before the zoning code was enacted, Petitioner is requesting a variance for the remaining twenty off-street parking spaces that would be required. Actually, there are no off-street parking spaces on this property but five or six parking spaces exist in the right-of-way for Mandalay Avenue. There are no off-street parking spaces on Mandalay Avenue in the vicinity of Petitioner's property and none are proposed to be provided by Petitioner. Mandalay Avenue is the main north-south artery on Clearwater Beach and is four-laned in the vicinity of Petitioner's property, which lies near the northern terminus of "CG" zoning. At the hearing before the Board one witness spoke in favor of the variance requested because the proposal by Petitioner was better than if the property was used for the construction of a high-rise residential unit, which the zoning would permit. Since no specific proposal is before the Respondent for the issuance of a permit, there is no assurance that granting the requested variance would preclude the construction of high-rise residential units. The dwellings occupying this property were constructed some thirty years ago and are expensive to maintain and are not a very attractive investment. Petitioner referred to several other businesses where variances in parking requirements have been granted when bars and restaurants on Mandalay Avenue were rebuilt or expanded; however, little evidence was presented that parking variances have been granted when a new use for the property was proposed.
The Issue Whether Appellant was wrongfully denied a variance of 21.33 feet to construct a second floor deck at 673 Bay Esplanade, Five Palms Motel Condo, Clearwater, Florida.
Findings Of Fact John Shaw, a resident of Massachusetts, purchased the condominium for which the variance is here requested in December, 1988 without first visiting the property or inquiring about zoning restrictions. The unit purchased is on the second floor of a two story building earlier converted from a hotel or motel into condominiums. The seller told Shaw he could construct a deck over the existing deck on the ground floor condominium below the unit purchased by Shaw. While the construction of this deck was in progress it was discovered no permit had been pulled for the project and the work was stopped. The subsequent application for a permit was denied because the proposed deck encroached some 21.33 feet into the setback area. The application for a variance was denied by the Clearwater Development Code Adjustment Board and this appeal followed. The two buildings comprising this complex were erected many years ago and are non-conforming, i.e., the buildings themselves violate the current Development Code. An existing deck extending into the setback area was constructed on the unit directly below the condominium purchased by Shaw and a similar deck extending to the seawall was constructed on an adjacent building. No permits are on file for those decks. Construction of the proposed deck would improve the livability of the condominium greatly by expanding the area usable for looking seaward. The condominium has been used without this deck for many years. This property is zoned CR-24 and the setback requirement is 25 feet from the water's edge.
