06/27/1981
In summation, Mr. Hersem stated the only prohibited uses
in a CTF-28 zone are heliports and helistops. Sections 131.098(4)
and 13l.016(c) Inake ample provision for this type of building
, and jurisdiction of the Board of Adjustment and Appeal. They
do not intend to place the building beyond the coastal con~
" " ", :,' struction line, and rentals of this type are not destructive
;>"":'-tl'-''y,' " to the beach. His interpretation1of the code is that an
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James Gray reviewed his credentials as an expert in the
field of tourism, to which Paul Jackson objected. Mr. Gray
reported he is a former manufacturer of aluminum storage sheds
and had regularly installed similar sheds at numerous points
within the City, observing all proper setbacks. He had not
anticipated any problem in obtaining a building permit to
install this shed; however, the permit was denied. ~fr. Gray
stated rentals had been provided intermittently since 1964
and has been a continuing activity since 1979 when an occu-
pational license had been obtained. The application for the
building permit was made at his insistence. He does not know
whether ~he former operator of this concession had applied
for a building permit, neither does he know whether a certifi-
cate of occupancy had been obtained. His property was zoned
CG at that time. Holiday House has 8 rental units on the west
side of Gulfview Boulevard and 12 on the east side. There is
a sailboat concession operating immediately next to him.
Roy B. Pearl, Jr. reviewed the steps he had taken to obtain
the building permit and the problems he had experienced. The
application for a special exception was filed at the request
of the Building Dept. He named several motels on the south
beach which conduct similar activities. .The sailboat concession
adjacent to this property has a building to store their equip-
ment. He personally knew Ted Lewis who operated this concession
during 1979 and 1980. He took over the rentals approximately
three months after the prior operator discontinued the activity.
He drew on Exhibit 2 the current location of the existing
shed, as well as the building next door.
James Gray explained the dotted line on the survey (Exhibit 2)
represents the platted western boundary of Lots 9, 10, 11, 12 and 13.
The area beyond is unplatted and is the area which Judge Phillips
ruled the City did not own.
Joseph H. Fletcher, Sr. stated a nearby concessionaire had
agreed to provide rentals in this area a number of years ago,
but had declined to continue because it did not pay him to
haul suppl~es back and forth. Ted Lewis and a Mr. Reuger entered
into a contract with them about two years ago to operate a
concession and he had been assured at that time they had the
necessary permits to engage in the activity. He stated there
is a definite need for this type of operation, which will
continue to grow.
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STATE OF FLORIDA
"
DIVISION OF ADMINISTRATIVE HEA.RINGS .f
.,ej),
ORDER
Pursuant to notice, the Division of Administrative
Hearings by its duly designated Hearing Officer, K. N. Ayers,
. held a public hearin9 in the above-styled case on 25 June ,1981
at Clearwater, Florida.
APPEARANCES
For Appellant:
Paul JacKson
723 Bay Esplanade
Clearwater, Florida 33515
,....
For Applicants:
Thomas G. Harsem, Esquire
2905 West Bay .
Belleair Bluffs, Florida 33540
Thomas A. Bustin, Esquire
City Attorney
City of Clearwater
Post Office Box 4748
Clearwater, Florida 33518
For Respondent:
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. ' This is an appeal from the actions of the Clearwater
Board of Adjustment and Appeal on Zoning in approving the
R. Gray and Roy Pearl to' place a portable,
beach property owned py Gray which is
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approved the application as a special
for commercial recreation facilities in '.
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2. Uaoa permitted in areas zoned CTF-28 are con-
tained in Section 131.098, Clearwater Code ot Building and
Zoning Regulations. These uaes may generally be described
as multiple unit reaidential such as motels, apartments,
boardinghouses, and townhouses with restaurants and churches
a1110 permitted.
3. Special exceptions, which the applicant was
advised by the Building Department he should obtain from the
Planning Departll'len~,are contained in Section 131.099 of these
Zoning Regulations. Of the seven exceptions there listed
the one most like the use proposed here is "(5) Commercial
recreation facilities."
~
Appellant contends that the proposed use does not
qualify as commercial recreation facilities and presented
the head of the City of Clearwater Planning Department to
opine that renting umbrellas, etc. from the proposed shed
did not constitute a commercial recreation facility. In his
opinion, the type enterprise included within this definition
must be a "facility" at which recreational activities are
performed. He would include such things as skating rinks,
swimming pools, bowling alleys, miniature golf courses, etc.
but not an activity leasing recreation equipment without also
providing the facility at which the recreation takes place.
The City Attorney was also called as a witness by
Appellant and testified that he had advised the Board of
49) Adjustment and Appeal on Zoning that the rUling on the appeal
.was beyond their jurisdiction. This opinion was obviously
based upon his definition of commercial recreation facilities
because Section 12l.016(c) of the Zoning Regulations expressly
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, \~'~i\~ k jll~~1"l}~'1-"'t~~~S~~)~~\J;.~~~\(.:I,~\.;f ~ ~ ::. ~:.;~ ;,,,, i;" ...'"" :.-,1;, ~. " . t'. ~ . ",' I,' "" . / ;. .l ;,j:; ,_~~ j j 7J :; t ~I.: ~ ~ .~.~.. ~, .: (~.l(~"'i~\~~ :;~:. .""1":.;;'.; "~
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directs the Board to hear appeals from any decision or 'action
of theBUiidi~g Director and dete~mine the rights of the
"~ppli'cant.. Here the' Building Director advised the applicant
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he needed to get a apecial exception trom the Planning
Department before the required parmit could issue. When
the applicant went to the ilanning Department he was advised
that the'proposed use of the property was not covered by
the special ex~~ptions for CTF-28 zoning. The Building
Department then denied his permit application. The appeal
to the Board perforce included an appeal from both of these
determinations. Section l3l.016(f) of the Zoning Requlations
provides:
"~
After a review of an application and
hearing thereon if the board finds as a
fact that the pr.oposed use is consistent
with the general zoning plan and with the
public interest, the board may permit
. special exceptions or uses. No special
exceptions or special uses shall be granted
except by an affirmative vote of four (4)
members of the board.
Nowhere in Clearwater Code of Building and Zoning
Regulations is the phrase uconunercial recreation facility"
defined. Since the proposed use of the property is obviously
a commercial one, as opposed to a private or non-business usage,
the only definitions in question are of the words "recreation"
and It facility . II The fornler is defined in Webster t s New
Collegiate Dictionar~ (1977) as:
to create anew, r.estore, refresh:
refreshment of strength and spirits
after workl also: a means of refresh-
ment or diversion.
e
Sitting in a beach chair or lying on the beach under an umbrella
clearly fits into this definition of "recreation.1I
IIFacility" is defined in Webster's as:
1: The quality of being easily performed
2: . ease in performance: APTITUDE
3: readiness of'compliance
, " 4 a: something that promotes the ease of
~._h"'~~I~,r..,_. d' an acti'on, operation, or course of conduct--
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.~:,.,:.>:;" ",' ". ;',. .b: lsomethinq (as a hospital) that is
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mti. tf;"t- ~~ i ~"!"!,."'J~.~"'..;.:-~ -r1iJ~.r'.!r"4,1,~ .........\.il.h"..p.'.,~"'.,.....,, ~r "(';~"".""'l'~"''''~ ""Q.I~l:.-~-"',l.~""'!I/~""):""""""\."
""~'~' .:('f~~fT-i ~J I ~i8-J~ii~~\f~'~l\ .;) ~;t.li;~;} ,I.,a:.r~, ',.:: ~'.:':~"!' ~ ~ ~.. '~-I-I~\' . ~-:~~: .;~(. Sl~" !.~....,~':;~:~.r 'I:\".'::~' ~t-'"'1 ~.:..)__rit i~iL;1:~r r;it th~
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While the ~ definition above quoted is apparently
the applicable definition, the proposed building ia & facility
in which chairs, umbrellas, etc. (recreational equipment) are
stored and from which this recreational' equipment is rented.
The use of the chairs, umbrellas, etc. will certainly facili~
tate the restoration of a tired body on the beach and this
equipment could be called "recreation facilities" under the
definit.ions above quoted.
The above exercise merely demonstrates that the only
.
CD
definition of the phrase "commercial recreation facility" is
not readily apparent and different people could arrive at
differing definitions. As noted above, the Board is charged
with the duty of making a factual determination whether the
proposed use is consistent with the general zoning plan and
with the public interest. Substantial evidence was presented
that the proposed use is consistent with the usage in other
sections of Clearwater Beach and with usage adjacent to the
proposed site. Also, substantial evidence was presented that
the usage proposed is consistent with the public interest.
Many tourists desire to rent umbrellas, chairs and cabanas to
"recreate" on Clearllater Beach. Since this finding of the
Board is supported by substantial, competent evidence and not
clearly erroneous, it is incumbent upon the Hearing Officer
to affirm this determination rather than substitute his
interpretation of the evidence for that of the Board.
Here the Board is the administrative agency primarily
charged with the responsibility to protect the public interest
and to have expertise in the field of zoning to do so. As
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the agency charqed with administering the zoning regulations,
the Board'a interpretation of 'these regulations is entitled
, .' .
~1'~{iF;~\~togre~~we~ght and should be f,Ollowed unless there are , " ,>' '
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