07/31/1981
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STATE OF FLORIDA
Chris H, Bentley
DlrectDr
1Department of ~bmini~tration
Division of Administrative Hearings
Oakland Buildingt 2009 Apalachee Parkway
TALLAHASSEE
32301
July 31, 1981
Nevin G. Smith
Secr8tary 01 AdmlnlmlSon
Bob Graham
Governor
Ms. Lucille Williams
City Clerk
City of Clearwater
P. O. Box 4748
Clearwater, Florida
33518
Re:
Case No. 8l-158l - The Mills Development
Group of Florida, Inc. v City of Clearwater
Dear Ms. Williams:
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EnClosed is my Final Order in the above captioned
matter. I am enclosing the tape of the hearing and
Petitioner's Exhibits 1-3 received in evidence at the final
hearing held on July 10, 1981. Also enclosed is a tape of
the Board of Adjustment and Appeal on Zoning's meeting of
May 28, 1981. Copies of my letter will serve to notify the
parties that my order, and the record, have been transmitted
to you this date.
DONALD R. ALEXAND
Hearing Officer
DRAlsj
. Enclosures:
cc: R. 'Carlton Ward, Esquire
Thomas A. Bustin, Esquire
Leslie M.' Conklin, Esquire
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to pose no hazard to navigation in the adjacent waterway.
o Pursuant to the provisions of Section 35.09(3), ~ 2!.
~dinances, the decision was appealed to the City of Clearwater
Board of Adjustment and Appeal on Zoning which considored the
request at its meeting on May 28, 1981. By a vote of 4-1, the
request was denied on the ground it was tlnot consistent with
the zoning code".
The instant case arises from an appeal of that decision
filed by Petitioner on June 5, 1981, pursuant to Section 35.10,
Code of Ordinances. That section provides a process for any
party to appeal a decision of the Board to a Zoning Appeal Hearing
Officer. Under a contractual agreement entered into by the City
of Clearwater and the Division of Administrative Hearings, and
authori2ed by Section 120.65(6), Florida Statutes~ and Section
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35,lO(E) (1), ~ of.Ordinances, the undersigned Hearing Officer
was designated Zoning Appeal Hearing Officer.
By agreement of parties, the final hearing was scheduled
for July 10, 1981, in Clearwater, Florida. At the final hearing
Petitioner called Ellie Mills and Robert File as its witnesses and
offered Petitioner's Exhibits 1-3, each of which was received into
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evidence. Respondent, City of Clearwater, presented the testimony
of John Richter, chief of the City's Planning Department.
Additionally, the tapes of the Board's meeting on May 28, 1981,
and the exhibits submitted at said meeting have been received
into evidence as authorized by Section 35.10(3), Code of Ordinances.
The parties were authorized to file proposed findings
of fact and conclusions of law; however, none were filed.
The issue presented herein is whether Petitioner is
entitled to a special exception to construct and operate a Type
A Marina as contemplated by Sections 13.03(6) and 35.09(8) (h) (l),
, Code of ordinances,
: :";'...;;:.... .,.. ". . . i Based upon. all the evidence, the following findings of
;i; ';":: '.. :; fact are determined.
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Gulf Boulevard and the proposed' 'marina which in turn will impede
c;t the traffic flow on the thoroughfare. However. adequate parking
for guests and residents will be located at tho condominium
across the street. Further, no material change in the amount of
traffic is expected to be generated by the facility. Moreover,
City approval is required if Petitioner desires to provide
improved parking facilities on the grassy strip in the future.
S. Intervenor/Respondent, Isle of Sand Key Condominium
Association, is a condominium association located to the east of
petitioner and approximately 150 feet across the channel at the
proposed marina's northern end. The Association does not object
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to the project itself but is concerned only with the proposed
length of the boardwalk. The Association has its own marina
facilities which run perpendicular with the waterway and Sand
Key. If approved, the proposed boardwalk would lie directly
across the waterway from the Association's facilities leaving
insufficient space in the channel for expansion of its
marina.
The Association also contends the proposed marina,
if constrQcted in its present design, will violate an Easement
Agreement entered into in Novemberf 1975, by the prior owner of
Petitioner's property and the Association. However, this
concern is beyond the scope of this proceeding.
CONCLUSIONS OF LAW
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1. The Division of Administrative Hearings has
jurisdiction of the subject matter and the parties thereto
pursuant to Section 120.65(6), Florida statutes, and section
35.10, Code of Ordinances.
2. Section l63.170(6), Florida Statutes (Supp. 1980)
defines a special exception as:
.0. a use that would not be appropriate generally
or without restriction throughout the particular
, .. zoning district or classification, but which, if
.' , "controlled as to number, area, locat.ion, or, relation
~~~~:" ,,'., : . to the neighborhood, would not adversely affect the
~:'>.~~T:Ii\' : ',:',', '.' .' public health, safety, comfort, good order" appearance,
;::':.",~\~\'~1't;y::.': ,; . .'" ,.' : convenience, morals and the general welfare. "
1~.i{~tV:'~;k::' ~h:~,; ~ho~~; S'~ctiO~, also provides .that II (s] uch uses. may" be permit.ted ;:
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~ j,~~~:{(~,F~~; 's~ch" zoning district' or. clas~ification as spec~al .exc~Ptio,ns " . "
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only if specific provisiQps and standards for such special
o exceptions are made in the zoning ordinance. II
3. Under the general zoning scheme of the City of'
Clearwater, tho City has been divided into Eorne 2S Districts for
the purpose of classifying, regulatinq, and restricting the uses
of property therein. Section 3.01, ~ 2f Ordinances. The
property in question herein ,lies within. District RM-28 (High
Density MUlti-Family) for which a number of special exceptions
have been authorized. Sections 13.03(6) and 35.09(8) (h) (1),
Code 2! Ordinances. As is pertinent here, they include, inter
alia,
Section 13.03. Special exceptions as regulated
in Article XXXV, Section 35.09.
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(6) Marina facility Type A (pleasure craft docking)...
The City has also established specific flstandards" that must be
met in order for a property owner to be granted a special
exception. First, the proposed use must be "...consistent with
the intent of the Land Use Plan and Zoning Ordinance, and with
the public interest.1I Section 35.09(6) Code of Ordinances.
Next, the decision maker must consider eleven factors or criteria,
where applicable, in determining whether to approve any regulated
special exception. Section 35.09(7), (a)-(k), Code ~ Ordinances.
4. It is incumbent that an applicant seeking a waiver
from zoning regulations show that all conditions or standards
necessary to qualify for the special exception have been met.
Oldham v. Peterson,
So. 2 d
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Case No. 80-439 (Fla. 5th
~ DCA op. filed 4/29/81). Once this showing of compliance has been
met, the burden then shifts to those opposing the change to
demonstrate that the proposed use would adversely affect the
public interest. Rural New Town, Inc. v. Palm Beach County, 315
'So.2d 478, 480 (Fla 4th DCA 1976), Oldham, supra.
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.~f~o:: :..':<:: ...,:' ,.:. ,.,~..~\..~. . 5. The evidence herein discloses that the proposed
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~c~.:~~!~'\\':;:'..~.6:.~~ns.is~en~, wlth the Zoning O~dinance. It is also compat.ible
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with the Land Use Plan for it fits within the general scheme of
CCt development within the area in question.
Of the eleven criteria required to be reviewed by
Section 35.09(7), supra, only paragraphs (a), (b) and (k) are of
any importance. They are:
(a) Ingress and egress to property and proposed
structureB thereon with particular reference to
automobile and pedestrian safety and convenience,
traffic flow and control, and access in case of
fire or catastrophe.
(b) Off-street parking and loading areas where
required. . .
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(k) That the use will be reasonably compatible with
surrounding uses in its function, its houxsof operation,
the type and amount of traffic to be generated, and
building size of setbacks, its relationship to land
values and other factors that may be used to measure
compatibility.
While none of the criteria were specifically referred to by any
party herein, the evidence did reveal that ingress and egress
to the property in terms of traffic flow will not be materially
changed by virtue of the construction of the facility, adequate
off-street parking will be provided at the condominium project
across the street, and the marina is "reasonably compatible" with
the surrounding neighborhood, which is liberally sprinkled with
comparable facilities.
The conclusion that must be reached, then, is that the
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applicant has factually qualified for the legislatively established
exception, and absent a showing by the opposition that such use
would adversely affect the public interest, the application should
be granted.
6. Intervenor, Isle of Sand Key Condomium Association,
does not object conceptually to the project, but only to its size.
It is concerned that if the project extends northward as proposed,
the northern end of Petitioner's facilities would extend outward
in,the channel across from Intervenor's dock to such a degree
that future ~xpansion of Intervenor's boat slips would be restricted:
~'.. " Intervenor' al~o points to an Easement Agreement en~ered int.o by'.: .
~:::.;~\:,":':" ,','~. .the ,prlQr \,Qwlier of Petiti~ner' s property and Intervenor wherein' '.
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