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 Petitioner owns property located at 1315 N. Betty Lanes Lots 8 and 9, Block E, Pine Ridge Subdivision in Clearwater, Florida. This property is zoned "CO" (general commercial) The consumption of alcoholic beverages on, premises is not permitted on premises zoned "CO," and therefore requires conditional use approval. Petitioner applied for conditional use approval on or about February 20, 1986 and on March 18, 1986 the Planning and Zoning Board disapproved Petitioner's application for conditional use. Paula Harvey, Planning Directors recommended approval because her review of the application indicated the location was suitable for a restaurant and lounges and the police department indicated no reason for disapproval. She did condition her recommendation on Petitioner demonstrating that all parking requirements of the Land Development Code would be met. A 6,000 square foot; two-story building is located on the subject property, but Petitioner only intends to use 2500 square feet for a restaurant and lounge. Petitioner currently operates a bar serving beer and wine directly across Overlea Lane on Beverly Lanes about forty feet away from the subject property. He testified he intends to close his present bar if he obtains this conditional use approval and opens his restaurant and lounge on the subject property. At his present locations Petitioner serves beer and wine; but not food. On the subject property, he would not sell alcoholic beverages without food, except to 7 persons waiting to be seated in the restaurant. Other than Paula Harvey's testimony that the subject property does not have sufficient parking spaces for the utilization of the entire 6,000 square foot building as a restaurant and lounges there is no competent, substantial evidence in the record as to the number of parking spaces on the property. It cannot be determined if there would be sufficient parking if Petitioner used only 2,500 square feet for the restaurant and lounges and the remainder of the building for some other commercial purpose. The neighborhood surrounding the subject property includes a church, residential, shopping and commercial areas. In addition to Petitioner's present barb there is also one other bar in the neighborhood. Public testimony evidences neighborhood concern about noise, litter, traffic and fighting associated with Petitioner's present bar and Petitioner offered no testimony as to how he intended to control noise, litters traffic and fighting which can reasonably be expected to occur if he opens a 2500 square foot restaurant and lounge with seating for more than 150 people compared to his current 1,600 square foot beer and wine bar.
Findings Of Fact Appellants are the owner of the residence located at 1387 Lemon Street, Clearwater, Florida, having purchased the property in October 1991. The residence is a 3-bedroom 2-bath house containing approximately 1600 square feet. On the back of the property and adjacent to the house is a patio and screen porch. The proposed storage shed would be located some 10 feet from the screened room and rest on concrete blocks. The proposed storage shed is 10 feet by 14 feet and would extend into the 7 feet utility easement in the rear of the property and come within 2.83 feet of the real property line. The Clearwater Building Code requires a 10 foot setback from the real property line. Accordingly, Appellants have asked for a 7.17 foot variance. Appellants intend to store books and records in this shed, if approved, as they contend there is insufficient room in the house for these records. Appellants engaged the services of a person observed erecting a gazebo a few blocks away to construct the storage shed. The contractor employed by Appellants apparently was not licensed and when Appellant asked the contractor if he needed a permit for the storage shed the contractor advised that he didn't pull permits. Appellants engaged the contractor to construct the storage shed without making any inquiries to the city building department to ascertain if a permit was required. After the structure was nearly completed a stop work order was posted on Appellants residence because no permit had been issued for the work. When Appellants applied for a permit it was learned that the proposed building would encroach into the setback and that a variance would be required before the permit could be issued. When the variance was applied for the Planning and Zoning Board denied the variance for the stated reason that the application did not meet the requirements of Section 137.012 of the Land Development Code of the City of Clearwater. These proceedings involve Appellants' appeal from that denial. Appellants' lot is neither square nor rectangular having a slight curve generated by Lemon Street in front and the rear property line runs at an oblique angle with the side property lines which run north and south. However, this rear property line is only a few degrees from being perpendicular to the side property lines. The plat plan accompanying the variance request shows none of the lots in the vicinity of Appellants lot to be truly rectangular and are little different in shape than is Appellants' lot. Appellants' backyard is quite small with the southeast corner of Appellants' house approximately 15 feet from the rear property line. A spa located in the southwest corner of this lot appears from Exhibit 2 to be approximately 10 feet from the rear property line. Appellants propose to have the storage shed painted to look like the house and to be firmly secured against heavy weather. Appellants contend that it would constitute a hardship if they are not granted the requested variance. Appellants also contend that their property is unique; but unless the location of the house near the rear property line constitutes a unique situation, no other evidence was presented that their lot is substantially different from all of the other lots in the vicinity. When Appellants moved into this house they found that the previous owners had used the southeast portion of this lot for storing old lumber and other junk which Appellants cleaned up to make room for the proposed storage shed. They contend the proposed shed is a vast improvement over the clutter formerly existing in this location.
The Issue Whether the Notice of Intent to Modify Driveway Connection, in which Respondent, Florida Department of Transportation (“FDOT”) seeks to close a driveway on Petitioner’s property to eliminate potential traffic issues and reduce the number of access points to the roadway, is consistent with sections 334.044(14), 335.181, and 335.182, Florida Statutes, and Florida Administrative Code Rules 14-96.011 and 14-96.015.
Findings Of Fact The Witnesses Mr. Maassen testified that John and Kathryn Maassen were his parents and are deceased.6 Although an argument could be made that Mr. Maassen was not the proper party to this case, no one raised this as an objection, and both parties actively participated in the hearing. Nicolas Leon is employed by FDOT as a roadway engineer supervisor III. He holds a bachelor’s and master’s degree in civil engineering, and is a licensed professional engineer. Mr. Leon’s duties and responsibilities include being the engineer of record and/or project manager on multiple transportation projects. He oversees a team of roadway and traffic designers, project managers, and engineers. Leanna Schaill is employed by FDOT as a traffic services access management manager for District One. She has a degree in mechanical engineering, and manages a team of four FDOT employees who review all the access management applications for driveway connection permits throughout District One. Joel B. Hobbs is employed by FDOT as an operation program engineer. He works at the FDOT maintenance office which is west of the property at issue. FDOT’s Process FDOT conducted an analysis of SR 70 in DeSoto County, Florida by evaluating the roadway, side streets, median openings, access connections, intersections, and intersections signalizations. A roadway project was formulated to bring the facility into compliance with state statutes and rules. 6 Mr. Maassen’s Exhibit N was a copy of Warranty Deed regarding “Lots 12, 13, and 14 of Block B, Fountain Park Subdivision, Arcadia Florida,” executed between Elon N. and Alesia J. Duncan to John S. and Kathryn Maassen dated April 21, 1961. FDOT is charged to use a forward-looking process to bring all state roadways into compliance with FDOT’s design standards. These design standards, set forth in FDOT’s statutes and rules, are to protect and ensure the public health, safety, and welfare for all users of the state roadway, including vehicles, pedestrians, and bicycles. FDOT is required to follow the Access Management Act found in chapter 335.18, and 14-96 and 14-97 to evaluate the roadway. Property owners who have property directly adjacent to a state roadway share a property boundary with the state roadway. Those property owners are entitled to reasonable and adequate access to their property. However, the property owner is not entitled to unregulated access to that property. See § 335.181(2), Fla. Stat. FDOT was statutorily directed to adopt rules that provide an administrative procedure for closing unpermitted connections. See § 335.182(2), Fla. Stat. As found in rules 14-96 and 14-97, an unregulated access, such as a driveway, is one that has not been permitted by FDOT, and may create safety and operational concerns because it may not be constructed or designed in compliance with FDOT’s standards. Driveway connections on state roads must be permitted or grandfathered. See § 335.1825, Fla. Stat.; Fla. Admin. Code R. 14- 96.011(3)(a). A driveway is grandfathered if it was in existence prior to July 1, 1988, when access permits were first required. See Fla. Admin. Code R. 14-96.011(3)(a). To retain the grandfather status, a driveway must be consistently used by the owner or business proprietor. If the property use is changed, that property loses the grandfathered status. When a property use changes, the owner has the ability to apply to FDOT for an access permit for the access connection. FDOT reviews those applications and may grant or deny the application. Driveway confusion and driver confusion occur when a driver “is presented with too many choices to make in a short period of time due to the inefficiency or difficult driveway location.” Such driveway confusion could cause a driver to make a wrong choice as to when, where, and how to move their vehicle within a driveway area, attempt to enter a driveway, or exit the driveway into the flow of traffic. FDOT’s Proposed Project and Property FDOT proposed a “roadway improvement project reconstruction on SR 70 in DeSoto County,” Florida. The project is approximately 1.8 miles in length beginning just east of Peace River, and heading east into Arcadia, Florida. The project includes both the eastbound and westbound lanes of SR 70, a divided roadway, sometimes called “one-way pairs.” FDOT proposed to: reconstruct the pavement through repaving the roadway; install a new closed-drainage system for storm water; install a new sanitary sewer line; create new signage; improve pavement markings; install signalization; and provide lighting improvements. Additionally, at the intersection of SR 70 and Baldwin Avenue (“Baldwin”), FDOT proposed to install a west-bound right turn lane onto North Baldwin. For the majority of the project, FDOT proposed to install eight-foot- wide ADA7 compliant sidewalks with ramps at the intersections. However, in the area where the 100-foot driveway would be closed, a six-foot-wide sidewalk with intersection ramps would be created along the curve in SR 70, based on the limited right-of-way. Ms. Schaill testified that using the “same criteria and regulation, statutes, and Administrative Code,” her team analyzed 120 driveway access connections along the proposed project corridor. Of those 120 driveway access connections, 14 were identified for modification due to safety and operational concerns. 7 The term “ADA” was understood to refer to the Americans with Disabilities Act of 1990, a civil rights law that prohibits discrimination based on disability. Five of the 14 driveway access connections were identified for closure due to safety and operational concerns. The property containing the approximate 100-foot driveway with direct access to SR 70 at issue here is a 0.43-acre parcel located at the northeast corner of Baldwin and SR 70, Arcadia, Florida. The 100-foot driveway has been in use since the 1960s. The property was a gasoline station for many years. However, in the 1990s, the property use changed from a gasoline station to a sign shop, known as DeSoto Sign (“Shop”). Petitioner’s Objection and Position Mr. Maassen objected to FDOT’s proposed closure of the Shop’s 100-foot driveway with direct access to SR 70. The Notice used the term “modification,” yet it also contained the sentence: “[T]he existing driveway will be closed, as per the attached plans.”8 Mr. Maassen’s position was that the terms: “modification” and “closure” are not the same. The Notice provided that the closure would “reduce the number of access points to the roadway and eliminate potential traffic issues.” The Notice also provided that the potential modifications would “improve safety or traffic operations on” SR 70. Mr. Maassen offered 10 “FLORIDA TRAFFIC CRASH REPORT[s]” dated May 2016 to December 2020 to support his contention that automobile crashes at or near the Shop were not the issue. He alluded that Exhibit “I,” a crash report from May 2017, provided the only instance where a bus was parked parallel to SR 70 on the 100-foot driveway. The report mentioned the parked bus as a contributing factor to a two-car accident. However, it is noted that the crash report is over four years old. 8 As indicated above, only one drawing or plan was attached to the Notice. Mr. Maassen acknowledged that a long-bed blue tractor-trailer has parked (and still parks) parallel and next to the Shop, along Baldwin. He also acknowledged at times the tractor-trailer traveling westbound on SR 70 may have maneuvered into that parking location by blocking traffic on SR 70. It is Mr. Maassen’s belief that FDOT is using that tractor-trailer as its basis for the proposed closure of the 100-foot driveway. Mr. Maassen testified that the tractor-trailer driver should be educated and/or ticketed by law enforcement to stop the parking maneuver. Mr. Maassen further testified that if the driver could not be educated as to how to drive or park appropriately, his license should be revoked. Mr. Hobbs, the only witness to actually see the tractor-trailer parking maneuver, conceded that “within the last year,” the tractor-trailer is “no longer pulling out directly onto 70. He is pulling up adjacent to the through lane and starting his maneuvers to back up into the parking position.” The tractor-trailer is now traveling south on Baldwin, pulling onto the Shop property via the Baldwin connection, and maneuvering into the parallel parking position next to the Shop. Mr. Maassen had no idea whether the 100-foot driveway, with the direct access to SR 70, was permitted at the time it was constructed or since that time. He made the point that someone would not “go out and cut a hole in a driveway for a roadway without somebody knowing about it.” Mr. Maassen acknowledged the speed limit on SR 70 in front of the Shop was 45 miles per hour. Further, Mr. Maassen pointed to section 335.184(3), and argued that when the roadway was repaved, or work done on the Shop property, “[T]here’s been no reason to make a change.” However, he did not provide any testimony as to when any re-pavement or work was done on SR 70 or on the Shop property. His position is the 100-foot driveway gives the property reasonable access for Shop customers. Mr. Maassen asserted FDOT's proposed action leaves him without "reasonable access" to the Shop property. He testified: I cannot take a delivery vehicle off a side street, make a U-turn, turn it around on that driveway and bring it back out on the side street. A vehicle of any size or nature, any of the businesses that the sign shop actually works with that has a vehicle with a trailer will be limited. There’s a canopy in the middle of that driveway which prevents you from making any type of a U- turn out there with any type of a dual vehicle. We need to have a complete access through the property from one side to the other, not just being able to pull onto one side. This is not a retail outlet. This is an operational facility where they’re doing work on vehicles out front that must be able to be brought across the driveway, not just pull on it and back out. His contention is that this action (maneuvering around the Shop property) “is reasonable access for customers.” However, maneuvering on the Shop property is considered internal circulation, and not what FDOT is charged with regulating. FDOT’s Position FDOT is the state agency responsible for regulating access between state roads and private property abutting those roads. See §§ 335.18 through 335.188, Fla Stat. SR 70 is a part of the Florida state highway system. The Shop’s direct connection, meaning the access, or driveway, connecting the parcel onto SR 70, runs parallel to SR 70 and is approximately 100 feet long, with a curb somewhere in the middle. The approximate length of the curb was not provided, nor was its existence challenged. This direct connection begins approximately 10 feet from the intersection of SR 70 and Baldwin. The Shop’s second connection (“second driveway”) lies on Baldwin and is approximately 75 feet long. This is an indirect connection as it connects the Shop property to Baldwin, the side street which directly connects to SR 70. The second driveway is not subject to any changes in the Notice. SR 70 is classified as a class 5 road. See Fla. Admin. Code R. 14- 97.003(1), Table 2. The class 5 designation is assigned to roadways that “are controlled access facilities where adjacent land has been extensively developed and where the probability of major land use change is not high.” See Fla. Admin. Code R. 14-97.003(2)(b)4. The rule provides that for a driveway connection on a class 5 road, which has a posted speed limit of 45 miles per hour, there must be at least 245 feet between the access connections on driveways, side streets, or adjacent properties. Ms. Schaill confirmed that at the intersection of SR 70 and Baldwin, the speed limit is 45 miles per hour. Further, she testified that the distance between the Shop’s 100-foot driveway abutting SR 70 and the Baldwin intersection is approximately 10 feet. Thus, the Shop’s 100-foot driveway is an unregulated access, in that it does not meet the spacing requirement identified in rule 14-97.003(2)(b)4. Ms. Schaill testified that this unregulated access is FDOT’s reason for closing the driveway. As provided in paragraph 9 above, “driveway connections on state roads must be permitted or grandfathered.” See § 335.1825, Fla. Stat.; Fla. Admin. Code R. 14-96.011(3)(a). There is no question that the gasoline station’s direct connection was in place prior to 1988. However, the use of the property changed to the Shop in the mid-1990s without an access permit application being submitted to or granted by FDOT. Ms. Schaill testified the Notice was FDOT’s second letter communicating the intent to modify the Shop’s property access. Further, FDOT staff met with Mr. Maassen or his brother at the Shop property to discuss the proposed project. Numerous telephone conversations occurred between Mr. Maassen and FDOT staff regarding the proposed project. Ms. Schaill credibly testified to the statutes and rules that FDOT must follow when projects are proposed. To paraphrase the language of section 335.181(1), she provided that the: Access Management Act is to protect all users of the state highway system, insofar as to ensure that public health, safety, and welfare of all users, which includes vehicular traffic, pedestrian traffic, and bicycle traffic on a state roadway, while also allowing for the safe and efficient mobility of people on a state roadway. Further, Ms. Schaill specified section 335.181(2) provided that “every property owner adjacent to the state roadway, shares a property boundary with the state roadway [and] is entitled to reasonable and adequate access to their parcel.” However, the property owner is not “entitled to unregulated access to that parcel.” An unregulated access to a property is one that has not been permitted by FDOT. Ms. Schaill testified that such unregulated access to a property “may create safety and operational concerns or is not constructed or designed in accordance with the Department’s standards for driveway connections.” According to Ms. Schaill, a “property owner is entitled to and has a right to the minimum number of connections required to provide safe and efficient ingress and egress to their parcel, which can be satisfied by either direct or indirect driveway connections.” In this instance, the indirect connection could be made for ingress to the Shop from Baldwin by either turning left or right onto the Shop property, and for egress by turning left out of the Shop property onto Baldwin, which connects directly to SR 70. Ms. Schaill confirmed that section 335.181(2)(a) requires FDOT to provide a property owner “adjacent to the state roadway reasonable and adequate access to the state roadway either by indirect or direct means. The access is - - - permissible access would have to be regulated by the Department, and we could not approve an unregulated access.” Ms. Schaill's testimony was clear, concise, and credible as to the statutes and rules employed by FDOT in making the determination regarding the closure of the 100-foot driveway.
Conclusions For Petitioner: David Lambert Maassen, pro se 140 South Osceola Avenue Arcadia, Florida 34266 For Respondent: Richard E. Shine, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Transportation, enter a final order approving the closure of the Shop’s 100-foot driveway as part of the State Road 70 project. DONE AND ENTERED this 28th day of September, 2021, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2021. COPIES FURNISHED: Richard E. Shine, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399 Amber Greene, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 David Lambert Maassen 140 South Osceola Avenue Arcadia, Florida 34266 Kevin J. Thibault, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 57 Tallahassee, Florida 32399-0450 Sean Gellis, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450
The Issue The issue in this case is whether to grant the appeal of Valentinos Koumoulidis from the Planning and Zoning Board's denial of his application for variances from the requirement of a minimum lot width of 150 feet at the setback line and from the requirement of a minimum of 20 percent clear space.
Findings Of Fact When the Appellant, Valentinos Koumoulidis, bought the subject property, the building was being used as a six-unit motel--three units on each of two floors. There were approximately 1600 square feet of space on each of the two floors. The property fronts at 606 Bayway Boulevard; the back of the property is waterfront. In 1991, the Appellant applied for and was granted a parking variance and variances to enable him to convert the first floor to retail use and convert the second floor to a residence. Apparently construction was delayed, and in October, 1992, the Appellant reapplied for the variances to enable him to convert the first floor to retail use and convert the second floor to a residence, while withdrawing the application for a parking variance. (He had decided to convert from straight- in/back-out parking to an off-street parking lot.) In 1994, the Appellant again applied for variances, this time to allow him to add approximately 300 square feet of commercial space to the back of the first floor and approximately 900 square feet of residential space to the back of the second floor. The Board denied those variance requests in October, 1994. Rather than appeal, the Appellant decide not to pursue the addition of commercial space to the back of the first floor and, on December 22, 1994, instead applied for variances to allow him just to add approximately 900 square feet of residential space to the back of the second floor. (Of the 900 square feet, approximately 550 would be enclosed, and approximately 350 would be open deck.) The evidence (primarily through the testimony of Noel Woods, one of the Appellant's neighbors) was that the residential property in the immediate vicinity is comparable, in terms of square footage of living space per dwelling unit, to the Appellant's current second floor--i.e., approximately 1600 to 1700 square feet. There was some evidence that residential properties across the intracoastal waterway from the Appellant's property are valued as high as a million dollars. But the evidence (again, the testimony of Noel Woods) also was that condominium units in the immediate vicinity are valued at approximately $175,000. There was no evidence that the use the Appellant is making of his property (retail on the first floor and residential on the second floor) is not a reasonable use.
Findings Of Fact On or about March 7, 1986, Petitioner submitted an application for a variance from the open space and rear set-back line requirements applicable to property located at 2612 U.S. 19 North, Clearwater, Florida. The subject property is zoned CC (commercial center). Petitioner's application requests a variance to provide 12.33% open space instead of 25%, and to construct a building 30 feet from the rear property line rather than 50 feet as required by the Land Development Code for property zoned CC. On or about April 24, 1986, the Development Code Adjustment Board denied Petitioner's application for a variance, and Petitioner timely appealed on May 6, 1986. The only evidence in support of its application offered by Petitioner was the testimony of Robby Tompkins. He testified that Petitioner's application is "unique" because Petitioner was 90% complete with its architectural plans for the renovation and modernization of the subject property when the current ordinance took effect, and Petitioner therefore urges that the current ordinance should not apply. Additionally, Petitioner argues that there will be no injury to the public as a result of the variance, and in fact the project will add 6800 square feet to its shopping center. Tompkins admitted that an increase in financial return was the primary reason Petitioner has sought the variance. Finally, he stated that if Petitioner complies with the 25% open space requirement, there will not be enough parking to meet Code provisions, and if sufficient parking is provided, there will not 25% open space.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: State Road Number 688, also known as Ulmerton Road, is a major east- west arterial road in Pinellas County. The Paradyne Corporation owns property south of Ulmerton Road and the intervenors, the Millers and the Benjamins, own property located immediately adjacent and to the west of the Paradyne property. Located on the Paradyne property are six or eight commercial buildings, parking lots and a road which runs between Ulmerton Road and 126th Avenue, a county road. At the present time Paradyne employs approximately 1,700 persons who park approximately 1,400 cars per day in the parking lots located on Paradyne's property. On a form entitled "State of Florida Department of Transportation Driveway Permit," Paradyne requested "permission for the construction of a driveway(s) on Department of Transportation right-of-way" at State Road No. 688, Section No. 15120, Mile Post No. 6.350 in Pinellas County. The request was approved by the Department of Transportation on June 6, 1981. Attached to the approved permit were various conditions and stipulations and a sketch or drawing of the proposed construction. Paradyne constructed the connection with the Ulmerton Road light- controlled intersection, as well as a private road leading to it, in a manner whereby only vehicles utilizing the Paradyne property would have access to the intersection. The actual location or configuration of the connection on the State's right-of-way deviated somewhat from the location or configuration shown on the sketch or drawing attached to the permit. The permit issued to Paradyne in 1981 did not include any provisions regarding or sketches illustrating an access road on private property. The property owners adjacent to Paradyne, the intervenors herein, also desired a means of access to the light- controlled intersection on Ulmerton Road. Paradyne refused to allow intervenors to use the private road on its property. The intervenors' request to DOT for a separate connection to Ulmerton Road was denied for safety reasons. The DOT also denied the intervenors' request that a cease and desist order be issued that would require Paradyne to allow the intervenors the use of Paradyne's road. DOT's reason for refusing such a request was that it was beyond the jurisdiction of the DOT to order a 250- foot access road over the parties' private property. Apparently, the construction of a 250-foot joint use road was the subject of preliminary discussions between Paradyne and persons who had previously held an option to purchase the intervenors' land. However, as noted above, the permit was issued only to Paradyne and there is no mention therein of a 250-foot joint use drive on the private property of either Paradyne or the intervenors. Having failed in their attempts with Paradyne and the DOT to gain access to the Ulmerton Road light-controlled intersection, the intervenors filed an action in the Pinellas County Circuit Court seeking a declaratory judgment and a mandatory injunction requiring Paradyne to participate with them in the construction of a 250-foot joint use drive. The Circuit Court ordered Paradyne to so participate in accordance with the driveway permit and the DOT drawing. On appeal to the District Court of Appeal, Second District, it was concluded that there was substantial evidence to support the Circuit Court's finding that DOT intended that the owners of both parcels would have access to the light- controlled intersection. However, the appellate court found "that the circuit court violated due process of law because it did not have authority to order appellant to participate with appellees in the construction of the 250-foot-connector road. The permit, as issued, did not require a 250-foot connector road. The circuit court is only authorized to enforce the DOT permit under section 120.69. The authority to regulate connectors to state roads has been delegated to DOT pursuant to section 335.18, Florida Statutes (1981). Therefore, we reverse and remand to the circuit court to enforce the DOT permit pursuant to section 120.69, so both parcels will have access to the light-controlled intersection. Upon remand, DOT may intervene as a matter of right pursuant to section 120.69(1)(d), or be joined as an indispensable party based on its duties under section 335.18: It is possible that DOT will find that the intersection, as designed, does not meet the standards in section 335.18, Florida Statutes (1981). In this event, DOT should be allowed to re- design the connector road to meet the standards of section 335.18, and to have minimal impact on the property rights of appellant and appellees. In the event it becomes impossible to provide the parties access to the intersection as contemplated by DOT's permit, DOT has authority under section 335.18(4) to deny access and revoke the permit. Affirmed in part and reversed in part and remanded with instructions." Paradyne Corporation v. Miller, 455 So.2d 432, at 434 (Fla. 2nd DCA, 1984). On remand, the DOT intervened in the proceeding. By Order filed on December 23, 1985, the Circuit Court of Pinellas County noted that the intervenors herein and the DOT sought to present a redesign of the intersection and connector road and that Paradyne objected. The Court denied the proceedings sought by the intervenors herein and the DOT, concluding that "this hearing is premature in view of the fact that a new permit must be issued for a material change of the intersection, and that Defendant (Paradyne), in the issuance of a new permit has all the rights of objection and administrative process that it had under the first permit..." Irvin E. Miller, et al v. Paradyne Corporation, et al, Case No. 82-3441-8 (Circuit Court for Pinellas County, December 23, 1985). The instant "Alleged Violation of the Florida Statutes and Notice to Show Cause" is dated March 31, 1986. That document charges that the highway connection constructed by Paradyne is in violation of Section 335.18(3) and 335.18(1) for the reasons that: it was not constructed in accordance with the permit design plan to provide joint access to Paradyne and the intervenors' adjoining properties, and (b) a material redesign of the existing connection in accordance with an attached drawing is required due to disruption of traffic and safety hazards caused by the greatly increased numbers of vehicles using the road connection. Paradyne was ordered to comply or show cause why its connection permit should not be revoked and access denied to the connection. On the south side of Ulmerton Road, the DOT's right-of-way extends 38 feet from the berm of Ulmerton Road. There is no dispute over the fact, and petitioner so admits, that the connection Paradyne constructed on the State's right-of-way was not in accordance with the drawing attached to its 1991 permit. However, the DOT presented no evidence that it now desires Paradyne to alter the connection so as to be in compliance with the 1981 permit drawing. In late 1984, after the remand from the District Court of Appeal, Second District, the intervenors retained the DSA Group, formerly Diaz-Seckinger & Associates, Inc., to prepare a report on the joint use of improvements at the intersection of Ulmerton Road and the Paradyne entrance. The DSA Group conducted traffic studies and prepared a "Report on Existing Conditions and Joint Use Access Proposal at Ulmerton Road and Entrance to Paradyne." The report recommended a redesign and contained drawings for a major revision of the intersection actually on Ulmerton Road, the connection on the right-of-way and a 250-foot long joint access road on the private property of Paradyne and the intervenors. While DOT employees were consulted regarding this report and its recommendations and had some input during its preparation, there was no showing that Paradyne participated in the report or the recommended redesign of Ulmerton Road, the connection or the joint use drive. Indeed, according to the engineer responsible for the DSA report, the report and redesign were developed and submitted to the intervenors and the DOT "for their use in meeting and negotiating with the Paradyne. At the time we took the contract we were under the opinion that they were hopefully resolving things with the property owners and they wanted something to go to Paradyne as an offering of one alternative, frankly, with the expectation that there may be something coming back saying "Well, we need to modify this and this." As it turns out, this plan as of a year ago or over a year ago, it's the one that stands right now." (Transcript, pages 98 and 99). Apparently, the intervenors, prior to commissioning the DSA report, requested the DOT to perform a survey or study. DOT declined to do so on the ground that "this had to do with private drives, private property and it was DOT's position that we did not fund evaluations for access into private development." (Transcript, page 136). The redesign of the Ulmerton Road intersection and entrance to the Paradyne/Intervenors property, along with the 250-foot joint use road, recommended by the DSA Group is identical to the redesign required under specification (b) of the Notice of Violation and to Show Cause issued by the DOT. The drawing attached to the Notice to Show Cause is the drawing prepared by the DSA Group. Traffic has increased at the intersection of Ulmerton Road and the entrance to the Paradyne property. The traffic signal in the center of Ulmerton Road allows Paradyne employees traveling westward on Ulmerton to turn south into Paradyne's parking lots, allows exiting employees to turn westward or eastward and also allows traffic exiting from a development known as Tall Pines Estates on the north side of Ulmerton to turn east or west. During two peak traffic flow hours in 1981, 780 vehicles traversed the intersection straight through from east to west, and 235 westbound vehicles turned left or southward into the Paradyne parking lot from Ulmerton Road. In 1985, the through vehicles numbered 1,224 and the left-turning vehicles numbered 379 during the peak traffic hours. It was not established by the testimony and evidence that the increase in through traffic from east to west is the result of any increased activity on the part of either Tall Pines Estates on the north side of Ulmerton or Paradyne on the south side. The increased number of westbound, left-turning vehicles into the Paradyne parking lots causes some backup from the existing stacking lane during the morning and afternoon peak hours, thus causing some congestion on the north or westbound half of Ulmerton Road. The single, existing stacking lane for westbound, left-turning vehicles is approximately 120 to 150 feet long. A survey conducted in late 1984 demonstrated that for the morning peak period, the level of service was an "E", indicating forced flow with traffic backing up. In the afternoon peak period, the level of service was a "D", meaning that drivers had to wait two or three cycles to get through the intersection. The desirable or comfortable level of service is a "C", meaning that the motorist has to stop for only one change of lights. The DOT's minimum accepted design standard in an urban area is a level "D" service. In 1985, the actual accident rate in ratio to the critical accident rate slightly exceeded 1 in the area of the subject intersection. The recommendations of the DSA Group, and the redesign required by the DOT in its Notice to Show Cause, calls for the construction of a dual or double stacking area, 350 feet in length, for the westbound approach on Ulmerton Road and a widened receiving approach on the property to the south to accommodate the dual left-turning traffic. The plan also calls for two westbound turning lanes out of Paradyne property. The median barrier for westbound traffic on Ulmerton Road would need modification. In addition to the widened entrance on the private property to the south, the DSA design calls for the private access road to be extended to a point 250 feet south, with a fence or curb barrier to control the flow of traffic from Paradyne's parking lots at designated points into the access road. The access road would require approximately 22,700 square feet for a joint use area, with 13,980 square feet located on Paradyne's property and 8,750 square feet located on the intervenors' property. The joint use road could either be maintained as a private road pursuant to an agreement between the property owners or it could, perhaps, be dedicated to public use. There was no evidence as to whether Pinellas County would be agreeable to accepting the dedication and thereby becoming responsible for the road's maintenance. It is anticipated that this redesign, primarily because of the dual left turn lanes on Ulmerton Road, would improve the level of service in the morning peak hours to a level "D", and in the afternoon peak period to a level "C". The cost for construction on Ulmerton Road is estimated to be $310,000.00 and the cost for the private 250-foot long drive is estimated to be $50,000.000. In the opinion of the designer of the DSA plan, there is no practical method of design that would allow two separate accesses for Paradyne's and the intervenors' use. The provision of separate accesses would create a five-lead intersection which would cause "even more difficulties in traffic operations." (Transcript, page 86). The DOT's traffic engineer would not approve the traffic signal operation which would be required if there were separate access roads ingressing and egressing the two properties south of the subject intersection. All the proposed modifications at the approach to the property south of Ulmerton Road could be located on Paradyne's property. This would cause a slight offset of the intersection and would cause Paradyne to lose some property now used as a parking lot.
Recommendation Based upon the findings of fact and conclusions of law recited herein, IT IS RECOMMENDED THAT the "Alleged Violation of the Florida Statutes and Notice to Show Cause" be dismissed. IT IS FURTHER RECOMMENDED THAT said dismissal be without prejudice to the Department of Transportation to issue to Paradyne Corporation a new permit specifying the location and design it considers appropriate for Paradyne's connection to Ulmerton Road, said design containing specifications for construction on Ulmerton Road and its right-of-way, as well as any requirements at Paradyne's entrance beyond the DOT's right-of-way deemed necessary to accommodate proper traffic flow and eliminate safety hazards. Should a new permit be issued, Paradyne should be afforded thirty (30) days within which to indicate its intent to either comply with the new permit terms and conditions or forfeit its access rights to Ulmerton Road. Respectfully submitted and entered this 4th day of February, 1987, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1709 The proposed findings of fact submitted by each of the parties have been fully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner, Department of Transportation Rejected as irrelevant and immaterial to the issues in dispute. Respondent, Paradyne Corporation NOTE: The respondent's proposed "findings of fact" contain many statements which constitute legal argument or restate the legal positions of counsel for the parties. To that extent, those statements are not proper "findings of fact" and are rejected as factual findings. All but the last sentence is rejected. The documents referenced were not the subject of a proper request for official notice and, therefore, cannot be considered evidence in this proceeding. 4 and 5. Rejected. Under proper circumstances, as discussed in the conclusions of law, the term "connection" may include more than the DOT right-of-way. First sentence rejected as contrary to the evidence. Rejected as irrelevant and immaterial. Accepted only insofar as it correctly states that the responsibility for cost of construction on Ulmerton Road was not made an issue in this proceeding. Intervenors, Miller and Benjamin NOTE: The intervenors have filed a proposed recommended order which is not separated into "findings of fact" and "conclusions of law." To the extent that proposed factual findings are suggested in said filing, they are accepted with the exception of: Page 1, last sentence: Rejected; the document does not cite Paradyne for refusing the redesign. It simply states that a redesign is required. Page 4, next to last paragraph: Rejected as contrary to the evidence and contrary to the law. Page 5, 3rd paragraph: Rejected as erroneous legal conclusion insofar as "joint access" is intended to encompass a "joint use road" on private property. COPIES FURNISHED: Vernon L. Whittier, Esquire Haydon Burns Building M.S. 58 Tallahassee, Florida 32301-8064 John R. Bush, Esquire Bush, Ross, Gardner, Warren & Rudy 220 South Franklin Street Tampa, Florida 33602 Bruce Marger, Esquire Gardner, Reams, Marger, Davis, Piper & Bartlett, P.A. 1700 66th Street North - 501 Post Office Drawer 41600 St. Petersburg, Florida 33743 Kaye Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 =================================================================
Findings Of Fact Ramchandra Jakhotia and Rashmi Jakhotia, his wife, acquired the King Cole Motel at 401 East Shore Drive, Clearwater, Florida in 1983 and have owned the property since that time. At the time of acquisition and for some time prior thereto the property included a commercial marina with 22 slips. In 1985 the City of Clearwater revised its Development Code effective October 13, 1985 and, incident thereto, effective July 7, 1988, enacted Section 114.05, Live-Aboard Vessels as Ordinance 4597, Clearwater City Code. That enactment provided, in part, that: Prohibited; exceptions: It shall be unlawful for any person to moor any live-aboard vessel at any location within or upon the navigable waters in the City for any period of time in excess of seventy-two (72) hours, except as follows: At a marina facility for which conditional use approval has been obtained, or a marina facility in existence as of October 13, 1985 for which conditional use approval would otherwise be required;... In January 1986 a survey was taken of all marinas within the City of Clearwater to determine the number of live aboard vessels coming within the purview of the revised Development Code. At this survey eight live aboard vessels were occupying berths at the King Cole Motel marina and this was the number determined to be grandfathered for which no conditional use approval would be required. In 1988 King Cole Motel applied for conditional authorization to utilize 14 additional berths for live aboard vessels. This conditional use was approved subject to the applicant installing a pump-out facility and meeting the parking requirements. Although the parking requirements for a commercial marina, i.e., 0.5 parking space per slip, is the same as the parking requirement at marinas for live aboard vessels, the latter generally place a greater demand on parking spaces than does non-live aboard vessels. To change the approved use from commercial marina without live aboards to live aboards is a change in the use and requires conditional use approval. Before conditional use approval can be granted the applicant must comply with all code requirements, such as required parking spaces, at the time of the change in use. At the time Appellant acquired the King Cole Motel the 22 commercial slips were grandfathered as an authorized use without any parking being provided. Accordingly, as a 22-slip commercial marina Appellant did not have to provide parking. When the eight slips used for live aboards were counted in 1986 they too were grandfathered in without the need for parking spaces. However, when Appellant applied in 1988 for authorization to use 14 other slips for live aboard vessels, the code required the applicant to provide seven parking spaces. To his credit Appellant obtained the use of seven parking spaces down the road from the marina but those spaces were not contiguous to Appellants' marina as required by the code. Therefore, Appellants' use of the additional slips for live aboards did not meet the parking requirement in his conditional use approval. In 1992 Appellant applied for a variance of the seven parking spaces required to allow the use of these additional slips by live aboard vessels. This hearing was held before the Development Code Adjustment Board on February 11, 1993 and it is from the denial of this variance that this appeal is taken. The Board denied the variance requested because the Appellant failed to demonstrate that the standards established by Section 45.24 Land Development Code were met. In these proceedings Appellant presented no additional evidence to support the variances requested than was submitted to the Board.
Findings Of Fact Petitioner's property is zoned CTF-28 which contemplates high density residential, motels and marinas. Riprap at existing seawall along Petitioner's property extends four to six feet from the seawall, which makes it hazardous for boats to moor to the seawall. By constructing a dock 122 feet long extending nine feet into the water Petitioner is, in effect, extending the beneficial use of its property nine feet into and over navigable waters. Marina facilities are permitted in CTF-28 zoning as a special exception (Section 131.099, Clearwater Building and Zoning Regulations). Other commercial properties in the vicinity have been granted special exceptions to construct the same type dock. The proposed dock will be the same level as the finger piers extending therefrom to eliminate any step that could create a safety hazard. No evidence was presented that the proposed project would be injurious to the neighborhood or otherwise detrimental to the public welfare other than the conclusion by the board that granting the special exception would allow this riparian owner to use public property, thereby creating a precedent which would be followed by others.
