Findings Of Fact On or about June 10, 1986 Petitioners submitted a conditional use application to Respondent for the package sale of beer and wine at 601 Bayway Boulevard, Bayside Subdivision No. 5, Lot 1, Black B, in Clearwater Beach, Florida. The property in question is zoned SC (beach commercial), and the alcoholic beverage designation being sought is 2 APS. Respondent has identified this conditional use application as C.U. 86-49. The Planning and Zoning Board denied Petitioners' application on August 5, 1986 by a vote of 4 to 2, and Petitioners timely filed this appeal. The subject property is the site of a convenience store which is surrounded by motels and commercial establishments such as a bank, restaurant and lounge, car rental agency and a miniature golf course. Another convenience store which sells alcoholic beverages for off-premises consumption is located within three blocks of the property in question. Robert E. Davis operated the convenience store on the subject property from 1977 to July, 1986 at which time Petitioners acquired their interest in the property and the convenience store. While Davis was operating the convenience store the package sale of beer and wine was allowed under a previously approved conditional use. However in accordance with Section 136.024(b), City of Clearwater Land Development Code, Petitioners were required to reapply for conditional use approval upon the change of business ownership of the subject property. Under Davis' management, the convenience store regularly closed at 11:00 P.M., but beginning approximately one month prior to Petitioners acquiring their interest in the store and the property, Davis began to keep the convenience store open twenty four hours a day. Petitioners have operated the store twenty four hours a day since it has been under their management. Public testimony was offered in opposition to Petitioners' application due to concerns about increases in noise, lights, traffic, loitering, trash and debris, and consumption of alcohol on the premises since Petitioners have acquired their interest. Petitioners concede that there was a problem with rowdyism and trash when they initially took over the convenience store, but state that these problems have been corrected. By letter dated August 5, 1986, Chief of Police Sid Klein confirmed a problem with young people gathering on the premises and stated that he did not feel approval of this conditional use would be compatible with the need of the neighborhood. However, little weight can be given to this exhibit since it is clearly hearsay, and relates solely to conditions existing several months ago when Petitioners had just acquired their interest in the subject property and convenience store. Petitioners are seeking to continue the package sale of beer and wine on the subject premises during authorized hours, as had been allowed for previous owners. This activity will clearly be compatible with other commercial businesses in the neighborhood, and with prior business conducted at this specific location. Although there were problems with trash and rowdyism on the premises in July and August, 1986, Petitioners have taken corrective action, and have committed to continued management improvements. The use in question is compatible with surrounding uses and complies with Respondent's land use plan. Acceptable ingress and egress is provided, and noise from the site will not diminish the use, enjoyment or value of the surrounding property. Petitioners are taking steps to reduce the glare to surrounding properties from motor vehicle lights. Sufficient parking area is provided on site, and the evidence does not establish that the sale of beer and wine at this location increases traffic in the area. This is an existing use which was allowed when Petitioners acquired their interest in the subject property. There was no evidence that Petitioners have sold, or will sell, beer and wine at the store beyond the legal hours for such sale, or that they have or will sell to minors.
Findings Of Fact On or about March 13, 1986, Petitioner applied to Respondent for a conditional use permit to allow the package sale of alcoholic beverages in a convenience store at 410 through 422 North Belcher Road, Clearwater, Florida. The property is located in a general commercial district. On or about April 15, 1986, the Planning and Zoning Board of the City of Clearwater denied Petitioner's application and on April 28, 1986, Petitioner timely appealed that decision. Petitioner's property is immediately adjacent to Faith Bible Church which operates Suncoast Christian School with approximately 120 students through the sixth grade, and the property is across the street from Trinity Baptist Church which operates a school with approximately 200 preschool through first grade students. The subject property is within 500 feet of the property of both of these churches, and there are two additional churches in the neighborhood. Richard Tobias, property appraiser, testified that convenience stores such as the one Petitioner proposes do not enhance the properties in their immediate vicinity, although they are generally an asset to the neighborhood as a whole due to the convenience of local shopping. Public witnesses expressed concern about the proximity of the proposed convenience store to churches and schools because of litter problems which they feel could develops as well as public drinking in the store parking lot. The use and enjoyment of such church and school properties will be adversely affected if the conditional use is approved, accordingly to the testimony and evidence presented by public witnesses. Petitioner, as property owner, plans to lease the subject property to Carlos Yepes, President of Clay Oil Enterprises, for the operation of the convenience store. Yepes operates seven other stores which sell beer and wine, and according to Denise Williams, leasing agent, there have been no neighborhood or police complaints concerning Yepes' operations.
Findings Of Fact Petitioner, Harold S. Wilson, is Trustee of the property which is situated at 18514 U.S. Highway 19 North in Clearwater, Florida. The property is in a zoning district designated as CH and the land use classification is CTF. The immediate surrounding land usage to the north is a furniture store, to the south is a car lot, to the east is a shopping center and to the west is a complex of office buildings. The subject building where the conditional use application was filed was erected during 1986. The first tenant of the building was Styles Auto (Styles). Styles engaged in the business of wholesaling luxury automobiles from August 1986 to September 1989. During June of 1990, Petitioner moved to the subject location and has remained there to the present time. The previous tenant at this site was the "Decorators Guild." 1/ As stated, the zoning for the property is highway commercial (CH). Respondent's staff conducted a survey of the property and the requested use and found that the standards were satisfied and recommended approval of the conditional use with certain specific conditions set forth hereinafter. A review of the permitted uses and conditional uses include among them wholesale distributions. (Petitioner's Exhibit A.) James T. Ray is the owner of Exoticar. Exoticar is in the business of wholesaling luxury cars throughout the United States and abroad and, on occasion, retails vehicles. Typically, Exoticar sells vehicles such as Ferrari, Porsche, Mercedes Benz and Jaguar. The cars are usually pre-sold when purchased and often times the vehicles are never brought to the site in Clearwater, Florida. On occasion, it is necessary for Exoticar to have on display from 5 to 10 vehicles at its offices in Clearwater, Florida. Petitioner's operation is compatible with the business operations of the adjoining tenants/owners. The only display sign that Exoticar uses on its vehicles is one designating the model year and the size of its signs are less than one square foot. The former tenant, Styles, did substantially more retail sales than Exoticar. Also, Styles sold more retail vehicles in the medium price range whereas Exoticar typically sells all up-line priced vehicles. Sandra Glatthorn, a senior planner with the Planning and Development Department of the City of Clearwater, presented several proposed conditions in the event that the Board's decision was reversed and the application for the conditional use approved. Those conditions are as follows: The number of vehicles which may be displayed or otherwise parked or stored on the property while pending their sale, lease, or delivery shall not exceed five (5) at any time. All vehicles shall be parked on the paved parking area. No vehicle shall be parked on the grassed or landscaped area of the property. The handicapped parking space presently being used for vehicle display shall be relocated to the satisfaction of the city's traffic engineer, and shall be properly marked. The applicant's signs shall be brought into compliance with the city's sign regulations not later than October 13, 1992. All required permits and licensees shall be obtained within six (6) months following approval of the application. No sign on or in a vehicle shall exceed one (1) square foot in size. Signs on or in vehicles shall be limited to one per vehicle. No vehicle shall be unloaded from, or loaded onto, a vehicle transportation truck or trailer while on the property. No vehicle shall be waxed, "detailed," or serviced while on the property. This condition shall not be construed to prohibit emergency service necessary to start a vehicle or to tow an inoperative vehicle from the property. The above proposed conditions were considered by Respondent's staff and are acceptable to Petitioner. Petitioner does not prepare, wax, or detail vehicles at the proposed location. Likewise, Petitioner does not order transporters to pickup vehicles from the subject location, although on occasion a transporter will show up at that location. In those rare instances, Exoticar's owner, Ray, directs transporters to another alternate location whereby the unloading or loading of vehicles can be accomplished offsite. The Petitioner has the requisite parking spaces to comply with the City's parking code.
The Issue Whether Petitioner, Villas Social Club, Inc. ("Villas"), properly revived its expired restrictive covenants and other governing documents in accordance with sections 720.403-720.407, Florida Statutes (2017).
Findings Of Fact Villas is a homeowners' association established pursuant to restrictive covenants recorded in 1967, 1968, and 1969. Originally created as a retirement community, Villas elected to become a "55 and over" community pursuant to the 1995 federal Housing for Older Persons Act. The community consists of 309 parcels upon which single family homes are located. By operation of the Marketable Record Title Act ("MRTA"), chapter 712, Florida Statutes, the restrictive covenants of Villas expired during the period of 1997 to 1999. However, Villas has continued to operate since then as a functioning "55 and over" homeowners' association without challenge from anyone. Sections 720.403-720.407 provide the mechanism by which a homeowners' association, such as Villas, may revitalize its restrictive covenants because they expired by operation of MRTA. DEO is a state agency statutorily obligated to review and determine whether an association has satisfied the requirements of sections 720.403-720.407 in order to revitalize expired restrictive covenants. In an effort to revitalize the expired restrictive covenants pursuant to the requirements of sections 720.403- 720.407, Villas submitted a revitalization package to DEO on March 9, 2016. On May 10, 2016, DEO denied the proposed revitalization for the following three reasons. First, Villas failed to timely submit the revitalization package to DEO pursuant to section 720.406(1)—the package was submitted to DEO more than 60 days after the last verified vote approving the revived covenants was signed. Second, Villas failed to provide DEO with the original bylaws pursuant to section 720.406(1)(b), which states that "a verified copy of the previous declaration of covenants and other previous governing documents for the community . . ." must be included in the submission to DEO. Third, the 2002 and 2004 bylaws submitted to DEO were more restrictive on the parcel owners in violation of section 720.405(4)(d). DEO's denial letter provided Villas a clear point of entry to challenge DEO's proposed decision and request a formal administrative hearing by filing a petition with the agency clerk of DEO within 21 days of receipt of the denial letter. However, Villas did not file a petition to challenge the proposed decision and request a hearing. Instead, Villas re-submitted another revitalization package to the parcel owners and DEO in 2017 in an effort to revitalize the expired restrictive covenants. The agency action subject to review in this proceeding is DEO's letter dated September 5, 2017, denying approval of Villas' request for revitalization. The revitalization package sent to the parcel owners in 2017 failed to include the address and telephone number of each member of the revitalization organizing committee. Nyoka Stewart, one of the members of the organizing committee for the revitalization, has owned her home at Villas located at 5140 Northwest 43rd Court, Lauderdale Lakes, Florida 33319, at all pertinent times. The "5410" Northwest 43rd Court, Lauderdale Lakes, Florida 33319, address listed for her in the revitalization package was a typographical error. Eslyn Williams, one of the members of the organizing committee for the revitalization, has owned her home at Villas located at 4051 Northwest 43rd Court, Lauderdale Lakes, Florida 33319, at all pertinent times. The "5041" Northwest 43rd Court, Lauderdale Lakes, Florida 33319, address listed for her in the revitalization package was a typographical error. The revitalization package sent to the parcel owners in 2017 included the telephone number (954-473-4733) of the management company for Villas, Alliance Property Systems. Alliance Property Systems does not own a parcel in the community, and it is not a member of the organization committee. One of the organizing committee members identified in the package, Renee Dichren, was not an owner at Villas on July 5, 2017, when the revitalization package was submitted to the parcel owners and DEO, because she was deceased. By failing to provide the address and telephone number of each revitalization member, Villas failed to comply with section 720.405(1). The revitalization package sent to DEO in 2017 included the full text of the proposed revived declaration of covenants and articles of incorporation and bylaws of Villas. However, Villas failed to include the original bylaws. The original bylaws of Villas have been lost. The most recent version of Villas' bylaws from 1990 were included in the revitalization package sent to DEO. By failing to include the original bylaws in the revitalization package sent to DEO, Villas failed to comply with section 720.406(1)(b). A majority of the parcel owners did not vote to approve the proposed revived declaration and other governing documents submitted by Villas in 2017. Not all of the 162 votes were to approve the proposed revived declaration and other governing documents submitted by Villas in 2017. In fact, there was only one vote from a parcel owner on the proposed revised governing documents. All of the other votes were dated 2015 and 2016, prior to Villas' submission of its initial revitalization package to DEO in 2016. By failing to obtain a majority vote of the parcel owners to approve the proposed revived declaration and other governing documents submitted in 2017, Villas failed to comply with section 720.405(6).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order disapproving the revitalization of Villas' expired restrictive covenants and other governing documents. DONE AND ENTERED this 23rd day of March, 2018, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 23rd day of March, 2018. COPIES FURNISHED: Stephanie Chatham, Agency Clerk Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Thomas Tighe, Esquire Tucker & Tighe, P.A. 800 East Broward Boulevard, Suite 710 Fort Lauderdale, Florida 33301 (eServed) Jon F. Morris, Esquire Ross Marshman, Esquire Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Cissy Proctor, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Peter Penrod, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
Findings Of Fact Clearwater Beach Community Church (the Church) applied to the City of Clearwater for a conditional use permit on November 14, 1988. The conditional use requested by the Church was to establish and operate a non-profit day care center for no more than 49 children, ages 2 to 5. The proposed center would be operated on the Church property by Latchkey Services for Children, Inc., a non- profit organization which provides subsidized child care. Latchkey currently operates six preschool centers and 36 school-age centers in Pinellas County. The Church's proposed center would operate weekdays from approximately 6:30 a.m. to 6:00 p.m. and would accommodate parents who live or work on Clearwater Beach. Five staff members, or one adult per 10 children, would be employed to operate the center. No day care centers currently exist on Clearwater Beach. Minimum standards for day care centers in Pinellas County are set by the Pinellas County License Board for Children's Centers and Family Day Care Homes. The Church's proposed center meets all standards set by the licensing board. Based on the available classroom space at the Church, the largest group of children would be limited to 13. The proposed outdoor play area is 81 feet by 33 feet and would be utilized by no more than 13 children at one time. At least one adult would be present at all times to supervise the children's outdoor play periods. The play area is enclosed on the south and west sides by Church buildings and on the north side by a six (6) foot high cement block wall. A fence is to be constructed on the east side to fully enclose the play area. Outside play time would be almost continuous between the hours of 8:00 a.m. and 5:30 p.m. Parents would drop off their children between 6:30 a.m. and 8:00 a.m. in the circular drive area on the east side of the Church's property. Three areas with a total of 14 parking spaces have been designated as parking areas for day care center employees and for parents required to park their cars when dropping off or picking up their children. In addition, a city- owned public parking lot is located directly across Bay Esplanade to the south of the Church. On-street parking exists on Poinsettia Avenue on the west side of the Church. It is to be anticipated that some parents will walk or use public transportation to deliver their children to the school. Parents will pick up their children between 4:30 p.m. and 6:00 p.m. The Church property is zoned Public/Semi-Public. To the immediate south across Bay Esplanade lies city-owned property on which are located, from west to east: public tennis courts; a public metered parking lot; public basketball courts; a city youth recreation center; and a public boat ramp. To the immediate west, from south to north, are a motel, an apartment building and a public soccer field. To the north on the Poinsettia (west) side, lies, from south to north, a vacant privately-owned lot, a triplex and a 13-unit apartment building. To the north on the Cyprus Avenue (east) side, and directly behind the Church's sexton residence, is a four-unit, two-story apartment house which is partially occupied by its owner. Across Cyprus Avenue to the east of the Church property, from south to north, are a motel and several duplexes. The area surrounding the Church is a quiet area inhabited by a large proportion of permanent residents, mostly elderly retirees, and by residents of motels who choose the area because it is quiet. Some of these residents live close enough to the proposed day care center to be disturbed by the noise that would surely result, even with the proposed noise buffers, from the process of dropping off and picking up the children each day, five days a week, especially the process of dropping them off between approximately 6:30 a.m. and 8:00 a.m., and from the continuous use of the play area by 10-13 children for approximately 8 hours a day, five days a week. Because of the character of the neighborhood, the noise disturbance could reasonably be expected to have an adverse impact on property values of both the motels and residences in the immediate area.
The Issue Whether the Appellant, Edward M. Mitchell, has demonstrated that development rights in certain real property he owns have vested against the provisions of the 2010 Comprehensive Plan?
Findings Of Fact The Property at Issue. On or about September 23, 1980, Mr. Mitchell entered into an agreement to purchase 6.141 acres of property (hereinafter referred to as the "Property"), located just north of Interstate 10, on the east side of North Meridian Road, Leon County, Florida. The Property was to be purchased from Textron Petroleum Products, Inc. The following "additional provision" was included in the agreement entered into for the purchase of the Property: Buyer to have 30 days from date hereof within which to obtain such permits as he deems necessary. If Buyer cannot obtain the same, he shall give written notice thereof within said time limit and the contract shall be null and void. If such written notice is not given within such period, this contingency shall be deemed waived. In 1980, the Property was zoned C-1, neighborhood commercial. Under C- 1 zoning, neighborhood commercial, up to 69,000 square feet of commercial space could be placed on the Property based upon a restriction of 85% impervious surface. Mr. Mitchell wanted to insure that he could obtain the permits necessary to develop the Property consistent with C-1 zoning before he purchased the Property. On or about November 3, 1980, the real estate broker involved in the purchase of the Property, sent a letter to Bob Speidel of Environmental Services of Leon County. In the letter Leon County was informed of the pending sale of the Property and the contingency of "Mr. Mitchell being able to obtain a permit to develop the tract by clearing the land, constructing a retention pond and filling the remaining land to a usable elevation." On or about November 7, 1980, an Application for Permit for Clearing and Development was filed on behalf of Mr. Mitchell. This permit was the only permit required in 1980 to develop the Property. The evidence failed to prove, however, that it was the only permit required to develop the Property immediately before the adoption of the 2010 Comprehensive Plan. On or about November 14, 1980, a Clearing and Development Permit, number 1113 (hereinafter referred to as "Permit 1113"), was issued on the Property by the Leon County Department of Public Works, Division of Environmental Services. Permit 1113 specifically provided that Mr. Mitchell was authorized by the permit "to make changes in this land proposed to be subdivided, developed or changed in use by grading, excavating, removal, alteration or destruction of the natural top soil, as hereinafter located and described." The specific use Mr. Mitchell planned to put the Property to and the manner of developing the Property were not specified in Permit 1113 or the application therefore. On or about December 23, 1980, Mr. Mitchell purchased the Property for $44,211.92. Mr. Mitchell would not have purchased the Property for the price paid if it had not been zoned C-1 or if he had not obtained Permit 1113 or a similar permit. The weight of the evidence failed to prove that Mr. Mitchell informed Leon County prior to his purchase of the Property what specific use the Property would be put to or that Leon County ever approved any specific type of development of the Property. Development of the Property. Sometime between 1980 and 1985, Mr. Mitchell cleared the Property. In June, 1985, Mr. Mitchell applied with the Florida Department of Environmental Regulation for a General Permit for New Stormwater Discharge Facility Construction. In October, 1985, the permit was approved. When the Property was cleared some of trees were removed which should not have been removed. Therefore, in July, 1985, Mr. Mitchell agreed to replant trees on the Property. In August, 1985, Mr. Mitchell was issued a Tree Removal Permit for the trees that had already been removed. Mr. Mitchell brought fill (approximately five feet) onto the Property and did substantial grading of the Property. The elevation of the Property was increased from 108 feet to 112-113 feet. Storm water drainage was designed and installed on the Property. The storm water pond was built to accommodate 65,000 to 70,000 square feet of construction. Leon County was aware of this fact. In order to maximize use of the Property a Leon County employee informed Mr. Mitchell that he could place the retention pond on an abutting parcel of property. Consequently, Mr. Mitchell purchased an adjoining parcel of real estate. Mr. Mitchell has not obtained a storm water permit, a building permit or site plan review or approval for the Property. Mr. Mitchell has worked closely with officials of Leon County before and after his purchase of the Property. Mr. Mitchell retained an engineer to prepare a site plan for the Property. The site plan was prepared consistent with C-1, neighborhood commercial zoning, 85% impervious surface and off-site retention. The weight of the evidence failed to prove that Leon County was made aware of the site plan. Mr. Mitchell would not have done the site work or purchased the abutting parcel of property except for the C-1, neighborhood commercial zoning of the Property and the issuance of Permit 1113. The weight of the evidence failed to prove that Mr. Mitchell informed Leon County after his purchase of the Property what specific use the Property would be put to or that Leon County ever approved any specific type of development of the Property. Change in Position or Obligations and Expenses Incurred by Mr. Mitchell. Mr. Mitchell spent $44,211.92 to purchase the Property based upon the zoning on the Property and the issuance of Permit 1113. The work performed on the Property after it was purchased by Mr. Mitchell was performed primarily by Mitchell Brothers, Inc., a company owned by Mr. Mitchell. The "value" of the work performed by Mr. Mitchell was in excess of $250,000.00. The evidence failed to prove what the actual cost of the work performed was to Mr. Mitchell. Mr. Mitchell acquired the abutting parcel of property in reliance on the zoning on the Property, Permit 1113 and a suggestion of an official of Leon County. The abutting property costs several thousand dollars. The evidence failed to prove, however, that the suggestion of the Leon County official concerning the purchase of the abutting property constituted a representation of Leon County that the Property could be developed in a particular manner. It was merely a solution offered to a problem of Mr. Mitchell which Mr. Mitchell was free to reject or accept. The suggestion also only confirmed that the Property could be developed under the current zoning. Development of the Property under the 2010 Plan. Under the 2010 Comprehensive Plan, the Property is located in an area designated as "lake protection." Only minor commercial uses would be permitted in such an area. Under the 2010 Comprehensive Plan, the Property may be developed with a maximum of 20,000 square feet of retail (non-office) space. Additionally, one dwelling unit per two acres of property could also be used for residential purposes. Therefore, the Property could be developed by building three residences on the Property in addition to the 20,000 square feet of retail space. Only approximately one-third of the site work that has been performed on the Property would be needed to develop only 20,000 square feet of commercial space on the Property and the purchase of the abutting property would not have necessary. Procedure. On or about November 2, 1990, Edward M. Mitchell filed an Application for Vested Rights Determination (hereinafter referred to as the "Application"), with Leon County. By letter dated January 2, 1991, Mr. Mitchell was informed that his Application was incomplete. By letter dated January 18, 1991, Mr. Mitchell provided the additional information requested. By letter dated January 25, 1991, Mr. Mitchell was informed that Leon County intended to deny his Application. Mr. Mitchell requested a hearing before the Staff Committee of Leon County by letter dated January 30, 1991. On February 11, 1991, a hearing was held to consider the Application before the Staff Committee. By letter dated February 13, 1991, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department informed Mr. Mitchell that the Application had been denied. On February 22, 1991, a Notice of Appeal was filed by Mr. Mitchell appealing the decision to deny the Application. By letter dated March 1, 1991, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on May 24, 1991.
The Issue The issue is whether Petitioner's request for nonconforming status on his property at 1607 and 1607 1/2 Northwest 12th Road, Gainesville, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, including the stipulation of facts filed by the parties, the following findings of fact are determined: Mr. Mayhew resides in Hawthorne, which is located in the southeastern portion of Alachua County (County). (Some papers filed in this case identify his residence as being in Cross Creek, rather than Hawthorne, but with the same street address.) Since November 1998, he has owned property at 1607 and 1607 1/2 Northwest 12th Road, Gainesville, Florida. More specifically, the property is in an older, single-family residential neighborhood known as Florida Park which is located several blocks west of U.S. Highway 441, which runs in a north-south direction through the City, and approximately one-quarter mile north of Northwest 8th Avenue. In broader geographical terms, the property is located around one mile north of the University of Florida campus. There are two structures (or units) on Petitioner's property. One is a three-bedroom, two-bath dwelling constructed by the original owner (Mr. Gainous) in 1949, who occupied that dwelling with his wife. That unit's address is listed on the County Property Appraiser's records as 1607 Northwest 12th Road. The second structure, a two-bedroom, one-bath dwelling (also referred to as a "cottage"), was built by Mr. Gainous in 1957, and was apparently used primarily as rental property by the owner. The address of the second unit on the Property Appraiser's records is 1607 1/2 Northwest 12th Road. Separate gas meters and a single water line and electric meter serve the two units. (Although the two units are given separate street addresses by the Property Appraiser, only one tax bill is issued by the County Tax Collector.) When these structures were built, the County did not issue building permits. The property was in the unincorporated area of the County until 1961, when the City annexed the property. In 1964, the City adopted its first zoning plan and placed the property in what was then known as the Single-Family Residential (R-1a) zoning district. This category was used since the property was "closely consistent" with that zoning classification. A few years later, the property was rezoned to the Residential Single-Family zoning district (RSF-1), which apparently replaced the R-1a zoning district, and it still remains in that zoning classification. Under current zoning regulations, unless a property has "legal" nonconforming status, two family dwellings are not permitted in the RSF-1 zoning district. However, if a structure and use of land was in existence before the City annexed the property and adopted its zoning code, and was not otherwise shown to have lost that status, the nonconforming use is grandfathered and allowed "to continue until [it is] removed" or otherwise conflicts with conditions pertaining to nonconforming lots, uses, or structures. See § 30-346, Code of Ordinances. (Nonconforming status allows the owner to rent each unit on the parcel to no more than three unrelated persons. Thus, six unrelated persons could legally occupy Mr. Mayhew's two units. However, Mr. Mayhew has always rented to smaller numbers of tenants, and then only to graduate students or "professionals.") One way a property can lose its status is for the owner to not use the property in a nonconforming status for nine consecutive months. In the case of a rental property, this means that the owner has not rented the property for at least nine consecutive months. If this occurs, the owner is presumed to have abandoned the nonconforming status. See § 30-346(5)(d), Code of Ordinances. The precise date on which the City began using the nine-month time period is unknown. According to Mr. Calderon, this time period has been in the Code of Ordinances for "awhile," it was in the Code of Ordinances when "Citywide zoning" was first used in 1982, and he implied that it was in the first zoning code adopted in the 1960s. The City has no formal process by which it monitors properties to ensure that they continue to meet the requirements for legal nonconforming status. Generally, the issue arises after a complaint is filed by a third party or an inspection is made by City officials, who then require that the owner confirm (or prove) that the property still qualifies for that status. In this case, in October 2006, the tenant who occupied the cottage filed a complaint with the City concerning the installation of a new gas stove and other possible code violations. Prior to that time, no other complaints had been lodged against Mr. Mayhew's property. In response to that complaint, a code enforcement officer, Michael Wohl, inspected the property. During the course of that inspection, Mr. Wohl noticed that there were two rental units on one parcel of land. As a routine part of the inspection process, Mr. Wohl made an inquiry to determine if Mr. Mayhew had a landlord permit for each unit. Under the Code of Ordinances, a landlord permit is required for each rental unit. (The specific provision in the Code of Ordinances which imposes this requirement was not given.) According to Mr. Calderon, this requirement has been in the Code of Ordinances since 1989. Mr. Wohl learned that Mr. Mayhew had purchased one landlord permit for the parcel in the year 2000 (and had renewed that permit each year) but did not have a second permit. (When he purchased the property in late 1998, Mr. Mayhew did not know that such permits were even required. He obtained one as soon as this was brought to his attention.) After Mr. Mayhew advised Mr. Wohl that he was unaware that a permit was needed for each unit on his property, Mr. Wohl spoke with Mr. Calderon, who instructed Mr. Wohl to verify if the property was a legal nonconforming use (and therefore could qualify for two landlord permits) since it was located in a single-family zoning classification. Shortly thereafter, a citation was issued to Petitioner. The specific nature of the citation was not disclosed. In any event, by letter dated September 25, 2006, Mr. Calderon requested that Mr. Mayhew provide documentation to support the nonconforming use of the cottage at 1607 1/2 NW 12th Road as an accessory dwelling unit. In response to Mr. Calderon's request, on October 2, 2006, Mr. Mayhew submitted a lengthy letter with supporting documentation, including photographs of the units; copies of rental agreements of tenants who had rented the cottage since he had purchased the property in November 1998; information regarding the date of construction of the two units; and Property Appraiser records showing two units on the parcel. On December 7, 2006, the Department advised Mr. Mayhew by letter that "[b]ased on the physical evidence, property appraiser records and documents provided by you, the property is therefore classified as an existing non-conforming two-family development and is subject to regulations governing non-conforming uses." However, because the City apparently has a policy of notifying residents who live within 300 feet of the subject property of this type of decision, the City also issued on the same date a Notice of Decision to Issue Non-Conforming Status to Petitioner's Property (Notice)." (The record is unclear whether this notice was given pursuant to a policy or a specific Code provision. Other provisions within the Code of Ordinances provide for such notice when the Board conducts hearings on variances, appeals alleging error by an administrative official, and requests for special zoning exceptions. See § 30-354(h)(6)(i)-(k), Code of Ordinances.) In response to the Notice, affidavits were filed by a number of residents who lived adjacent to, or near, the subject property. After reviewing those affidavits, on December 20, 2006, the Department advised Petitioner by letter that based on "new information . . . submitted by affected persons within 300 feet of your property . . . [the] staff [is going to] reconsider the nonconforming status of your property." On January 25, 2007, Mr. Calderon issued a letter denying Mr. Mayhew's request for the following reasons: I have reviewed the information you submitted and those submitted by surrounding property owners. Based on the information and affidavits, there appears to be no consensus or conclusive data establishing emphatically that the subject property has been used consistently as a two-family development since annexation into the city. Evidence from the property owner would suggest that since 1998, the subject property has been used as a two- family dwelling and that no nine-month period has elapsed where the property was not used as a two-family dwelling. However, due to uncertainty for the period around and prior to 1998, staff cannot make a determination about the status of the development around and prior to 1998. Staff cannot determine whether the subject property was illegal, legal non-conforming or lost its non-conforming status at the time of ownership change in 1998. Since the current zoning of the subject property is RSF-1 (Single-family residential, 3.5 dwelling units per acre), the current use as a two-family dwelling is not permitted. Staff is therefore denying the request on the basis that available information cannot demonstrate continued use of the property as a two-family development, since annexation into the [C]ity of Gainesville. On February 8, 2007, Mr. Mayhew filed his appeal of that decision. Because Mr. Mayhew alleged that there were disputed issues of material fact, the appeal was forwarded to DOAH, rather than the Board. In his appeal, Mr. Mayhew alleged that the City had improperly relied on affidavits from neighbors to reconsider its decision, that there was no new evidence submitted to support a change in the City's initial decision, and that he could not get a fair hearing from the Board because several members of the Board live in the affected neighborhood or are members of a neighborhood association that includes the Florida Park area. Section 30-346(5)(d), Code of Ordinances, as amended in November 2006, provides the following restrictions on nonconforming uses: Whenever a nonconforming use of land or a building or other structure or any portion thereof is abandoned or the use is discontinued for a continuous period of nine months or more, such abandonment or discontinuance shall be presumed to constitute an intention to abandon or discontinue such use, and such use shall no longer be permitted. Any subsequent use of such building or structure or land shall be in conformity with the provisions of this chapter. Although this section was amended in November 2006, the amendment did not affect (or otherwise change) the nine- month time period for losing a nonconforming use. Prior to the amendment, the section provided that if a nonconforming use was lost due to abandonment or discontinuation, the reestablishment of the use could be authorized by the Board, after hearing, if the Board found the design, construction, and character of the building not suitable for the uses in the district in which the nonconforming use is situated. Under the new amendment, that option no longer exists. The history note to this provision indicates that the original ordinance (No. 3777) was adopted on June 10, 1992, and was later amended on July 25, 1994.1 (However, Mr. Calderon indicated that the nine-month period dates back many years before the adoption of this particular Ordinance. See Finding of Fact 5, supra.) When an owner is required to demonstrate that his rental property has continuously retained its nonconforming status, he must show that the property has been continuously rented (with no nine-month breaks) not only for the period of time that he has owned the property, but also for the entire time the property has enjoyed nonconforming status, or in this case since the property was annexed by the City. Thus, Mr. Mayhew was obligated to show that the original owners (Mr. and Mrs. Gainous) rented the property continuously from the time the property was annexed in 1961 until it was sold to Mr. Mayhew in late 1998. The City's practice is to determine nonconforming status on a case by case basis but the burden is on the owner to prove that status through records such as building permits, landlord permits, zoning compliance permits, and occupational licenses, and "records from reputable sources." The parties agree that both units were continuously rented by Mr. Mayhew since the time he purchased the property in November 1998. The dispute here is whether the nonconforming use was abandoned for any nine-month period prior to Mr. Mayhew's purchase of the property. The City contends that Mr. Mayhew has presented no evidence to show that the cottage was rented by the prior owner from 1996 until the property was sold in late 1998. Although Mr. Mayhew clearly established (and the City agrees) that the property has been continuously rented since he purchased the parcel in late 1998, he conceded that the cottage was vacant when he purchased the property, that he had made no inquiry to the seller as to how long the cottage had been vacant, and that he had no personal knowledge regarding the rental history of the property during the three years preceding the purchase. He contended, however, that there are always periods of time when a unit remains vacant while the owner is actively seeking a new tenant or when necessary renovations must be made. While this is true, there is no evidence that this occurred during the years 1996, 1997, or 1998. (It is unknown where Mrs. Gainous presently resides, or even if she is still alive. When the property was sold in late 1998, Mrs. Gainous was described as being elderly and in poor health.) Significantly, City records show that Mrs. Gainous had secured landlord permits to rent the cottage from 1989 (when permits were first required) through 1995, but she had failed to obtain any permits for the years 1996, 1997, or 1998, at which time she sold the property to Mr. Mayhew. This raises a logical inference, not overcome by Mr. Mayhew, that she did not rent the cottage during those years. In addition, Dr. Kosch, who has lived across the street from the subject property for the last twenty years, testified that he personally observed several periods of time before the property was sold to Mr. Mayhew when there were no tenants in the cottage. Although Dr. Kosch could not specifically identify the exact time periods when this occurred (due to the passage of time), his testimony adds further support to a finding that there is insufficient evidence that the cottage was rented continuously (without any nine-month breaks) during the years 1996-1998. Mr. Mayhew purchased the property with the understanding that he could legally rent both units. While it may seem unfair for him to now have to prove that the property has been continuously rented (with no breaks exceeding nine consecutive months) since the 1960s, this interpretation of the Code of Ordinances has always been followed by the City without exception. According to Mr. Wohl, this situation has occurred at least 8 or 9 times in the last few years alone, and in each case, the property owner was required to prove a continued nonconforming use since the property was annexed by the City or placed in a more restrictive zoning classification.
