06/18/1986 (2)
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J. wegiener to the city of Clearwater seeking to utilize the
property at the above location, specifically 2198 Coachman Road,
Northeast, clearwater, Florida, for on-premises consumption of
alcoholic , beverages, specifically liquor. The Petitioner already
has an approved use for consumption of beer and wine on premises.
The Petitioner will sell no alcohol for off-premises consumption.
In essence, it seeks to change its pr~sent beverage license
issued by the state of Florida from a "2-COplI to a "4-COplI which
is the type of license which would autho~ize on-pr~mises
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consumption of liquor in addition to beer and wine.~ It seeks the
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appropriate conditional use zoning approval so as to operate that
state beverage license.
2. The application was transmitted to the City clerk,
the planning director, the city. attorney, traffic engineer, the
building director and to the police department for review and
comment prior to the originally scheduled public hearing before
the Planning and Zoning Board. Prior to that hearing, both the
police department and the traffic engineer reviewed the
application and noted that they had no objections and no reason
to recommend a denial of the conditional use application on the
basis of any traffic or law enforcement problems.
3. At the pUblic hearing of April 1, 1986, the
Planning and Zoning Board was informed that the traffic engineer
and the police department had no objection to approval of the
application and that the Planning and Zoning Board staff, through
its director, also recommended approval of the application. Mr.
Wegiener appeared and testified on behalf of the
Applicant/petitioner and assured the board that the Petitioner
would not engage in package store sales for Off-premises
consumption.
4. After'hearing from Mr. Wegiener, there being no
opposition to the application, the board unanimously voted to
approve the conditional use application for on-premises
consumption of liquor only. It developed, however, that the
notice of this April 1, 1986, hearing was faulty, such that the
board elected to convene another public hearing on the subject of
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the application.
At that public hearing, Mr. Wegiener appeared
for the Applicant/Petitioner once again, reiterating his
stipulation that no sales of alcoholic beveragas for off-premises
consumption would occur, and establishing that the alcoholic
content of liquor drinks to be sold, if the conditional use is
approved, would be no rr.ore than that of a glass of wine or a can
of beer, which he is presently authorized to sell. He also
demonstrated that his establishment had no history of fights or
other forms of disorderly conduct by pat~ons, no traffic problems
nor excessive vehicular noise or light glare emanating from the
barfs parking lot or approaches. After hearing the vociferous
complaints of the church representatives and several other
citizens from the neighborhood, however, the board voted to deny
the application and this appeal. ensued.
5. The Petitioner, at the instant hearing, established
that his tavern is more than 500 feet from the nearest church.
Five hundred feet from a church was the former standard for
physical location of such establishments for zoning purposes.
The current provision in section 136.025 of the Land Development
Code provides merely that such an establishment must be a
reasonable distance from a church.
In any event,' the Applicant
established that his IIpubu is small, being only 750 square feet
in area and is hidden from view of anyone not entering the plaza
where it is located, in the Shopping center.
The Applicant can
only seat a maximum of fifty people.
His insurance coverage
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expense and risk rating will not increase merely because he would
sell liquor by the drink rather than only beer and wine, which
fact is indicative of the unlikelihood of any additional law
enforcement or personal injury incidents occasioned by the change
of use.
He does not cater to a loud, raucous clientele.
Rather,
twenty-five percent of his business involves serving lunches and
he sponsors a ladies' softball team in the Clearwater Recreation
League.
He sponsors and encourages husband and wife dart teams.
It seems obvious that he and his wife run a small,. fairly sedate,
Uneighborhood bar.1I He is merely trying to increase his profit
by serving liquor, for which he can obtain more revenue, than by
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7. The property in question is located within the
commercial zoning of the City of Clearwater (zoned CG). The sale
of alcoholic beverages within that zoning is not one of the seven
permitted uses enumerated in section 135.122 of the Land
Development Code. However, alcoholic beverage sales for
consumption on the premises, as well as package sales, may be
permitted as conditional uses if the use otherwise complies with
Chapter 136 of the Code. See section 135.123 and 135.124.
8. Any change of location or ~hange of designation of
an alcoholic beverage sales conditional use, such as the change
from beer and wine sales to liquor sales, must also obtain
approval as a conditional use. section 136.024(b), ~
Development Code. Only those conditional uses which comply with
the "general standards" and the, "supplementary standards," by
category of use, embodied in Section 136.025(b) and (c), may be
authorized by the Planning and Zoning Board. Among the
supplementary standards for a conditional use, such as that at
bar, is that the use be a sufficient distance from churches,
schools, hospitals, residences and like land uses so as to not
adversely affect the use, enjoyment or value of such properties.
Section 136.025(0) (1) and (2), Land Development Code. The
general standards applicable to a conditional use encompass such
factors as traffic, noise, parking, landscaping, screening,
compatibility with surrounding uses and compliance with the land
use plan. Section l36.025(b) (1-7).
9. Since no expansion of the subject business is
involved in this application, the considerations of acceptable
ingress and egress from the site, the direction and glare of
lights from motor vehicles and such considerations as landscaping
and screening for purposes of diminishing noise and reducing
glare and objectionable views are not truly at issue. The bar is
already established a~d the traffic routes to and from the bar,
its parking facilities, and the number of motor vehicles going to
and from this establishment will essentially not change. Thus
the "traffic" criterion is not really germane and will be met.
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10. Only the standards involving "compatibility" and
proximity to churches, etc. were truly at issue before the
undersigned. The "hours of operation" consideration as to
general sta.r~dard number seven, (concerning t1compatibility"), is
the only portion of the seven general standards at issue. The
additional supplementary standards for conditional uses involving
consumption of alcohol require, in addition to compliance with
th~ seven general standards contained in paragraph (b), that the
use be sufficiently distant from churches, schools, and like land
uses so as to not adversely affect the use, enjoyment or value of
such properties.
11- In this connection, the hours of o~dration will
not change. The Petitioner has experienced no complaints from
the churches and surrounding citizens regarding traffic,
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intoxicated patrons or other problems attendant to the operation
of the bar in the present mode nor has the clearwater Police
Department. Further, in view of the stipulated conditions
against "happy hour" sales, extended hours of operation,
expansion of customer capacity, etc. the tavern's impact on its
neighbors, including the churches, in the above particulars, will
not increase. In essence, the tavern operation will not change
in terms of its compatibility with the interests of the churches
and other neighboring residents. Its operations will engender no
additional traffic, noise or other nuisances or dangers on
surrounding property o~ners or church goers.
12. Although the former 500 foot standard governing
location of taverns from the vicinity of churches and schools is
no longer applicable, it is noteworthy in terms of the
"reasonable distance" standard, that the location of the
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Petitioner's establishment is more than 500 feet from the
churches who testified in opposition to the petition. The Roman
Catholic Church, which owns property and conducts church
activities immediately adjacent to the Petitioner's shopping
center location, as well as the nearby Episcopal Church,
expresse~ no opposition. These factors, taken with the above
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factors involving the lack of any additional elements of nuisance
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or risk which would be experienced by the churches and other
opponents, demonstrates that the use proposed would still be
sufficiently distant from churches, schools, hospitals,
residences and like land uses so as not to affect their use,
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enjoyment or values.
Thus, both general standard number seven
and the supplemental standard at issue have been met.
CONCLUSIONS OF LAW
The City of Clearwater's Land Development Code allows
for the approval of conditional uses of property when the use is
permitted as a conditional use in the partfcular zoning district
and if all applicable standards are met.
The Planning and Zoning
Board may also place such conditions and restrictions upon the
use as may be necessary to comply with the standards and to
minimize any potential injurious ef~ect upon other property
interests in the neighborhood.
Code.
Section 137.011, Land Development
When seeking approval for the conditional use of
property, it is clearly the applicant's burden to demonstrate
that the use will be in compliance with the general and specific
standards set forth in the Land Development Code.
After
considering the application, information from the city
departments involved and eVl~ence presented at the public
hearing, the board must then determine if the requested
conditional use-meets all the standards set forth in the Code.
See Section 136.024(f).
Here the board initially determined that
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the proposed conditional use met all the standards set forth in
the Code and then, after convening the second public hearing for
the reason'delineated above, ultimately determined to deny the
application chiefly because of the standards concerning
compatibility and distance from churches, schools, residences and
like land uses as that relates to their use, enjoyment and
property values.
However, as found above, the applicant adduced evidence
both at the public hearings held herein and the hearing before
the undersigned, establishing that the conditional use proposed
would occasion no difference in operation or change in location
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which would bring into play the various general standards set
forth above in Section 136.025(b)(1-7) aside from the issue of
compatibility with surrounding uses.
In that regard the
applicant established that it would be serving no more alcohol
per customer on the average than it does at the present time,
that it would not expand, such that more traffic would be
generated by the change in conditional use nor that it would
expand its physical establishment so as to accommodate additional
clientele. The fact that the applicant would be serving
essentially the same average amount of alcohol per customer shows
that no additional adverse effect on the churches and others who
oppose the application will be occasioned in terms of traffic
problems caused by inebriated customers, disorderly conduct and
the like. The appearance of the establishment will not change as
that might have any potential effect on the congregation or
students attending the churches or their schools. The operations
of the tavern heretofore have engendered no complaints from the
churches who oppose the present petition. In summary, there is
no indication that the activities and nature of the business to
be conducted will be any different in a real sense from that
presently prevailing and approved. This being demonstrated, the
compatibility standard has been met.
Inasmuch as there will be no noticeable change in the
operations of 'the tavern and the nature of its clientele, there
has been shown to be no additional adverse impact on churches,
schools, hospitals and like land uses such that the present
location of the site is too closely proximate to such uses. Thus
this specific standard at 136.025(1)(a) has been complied with as
well. Accordingly, the evidence and testimony presented
concerning the lack of any additional adverse impact on churches
and residents regarding'the location of the site and the
character of the proposed activities is such as to demonstrate
that the conditional use standards can be sufficiently met by
this applicant so as to authorize approval.
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