05/11/1993 - 1:00 PM (2)
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HEARING
.. ... OFFICER
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APPEALS
Date
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11.
Notice of Appeal dated February 18,
1993, signed by Harry S. Cline, Esq.
as representative.
Notices of Appeal dated February 1,
1993 and November 30, 1992.
Excerpt of the minutes of the
Development Code Adjustment Board
(DCAB) of February 11, 1993.
Variance Application.
Variance Request map and atlas
sheet.
Variance Transmittal sheet.
Letter dated September 21, 1992
signed by the Jakhotias confirming a
lease with Lawny Potter.
Letters from George W. Greer and
Harry S. Cline requesting
continuances.
Planning and Development staff's
recommendations of December 10,
1992, January 14, 1993, and February
11, 1993.
Comments
Assistant
Letter of
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PUBLIC HEARING BEFORE A HEARING OFFICER
May 11, 1993 - 1:00 p.m.
Ramchandra & Rashmi Jakhotia, D/B/A King Cole Motel
Hearing Officer:
K. N. Ayers
Issue:
Miles A. Lance, Assistant city Attorney
Sandra Glatthorn, Senior Planner
William Held, Harbor Master
Camille Motley, Central Records Specialist
King Cole Motel/Marina request for variance
of 7 parking spaces to permit an additional
14 live-aboard vessels with zero additional
parking spaces provided at 401 East Shore
Drive, Barbour Morrow Sub, Blk C, Lot 14 and
part of Lot 13, zoned CB (Beach Commercial)
and AL/C (Aquatic Lands/Coastal). V 92.69.
DOAH Case Number 93-001474
Also Present:
Appearances:
Harry S. Cline, II Esquire Represen~ing
Appellant
Don Graves, Representing Appellant
Exhibits Submitted: 1.
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2
3.
4.
5.
6.
7.
8.
9.
. 10.
from Donald Meerians,
Traffic Engineer.
support dated December 9,
MINH005A.93
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1992 from steven F. Chandler of the
Beach Diner.
"
Additional Exhibits submitted
1.
3.
at the hearing:
Conditional Use Application 88-26
dated February 23, 1988, requesting
22 live-aboard slips; sea rescue
station; and pump-out station for
live-aboards.
Affidavit as to previous use of
property and number of Ii ve-aboards.
Excerpt of Planning and Zoning (P&Z)
minutes dated, 3/15/88 regarding CU
application 88-26.
2.
Exhibits were accepted by the hearing officer.
Hearing Officer, K. N. Ayers, called the hearing to order at 1:00
p.m. and explained the rules governing the procedure.
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opening statement was made by Miles Lance in which he gave
background for ordinance regarding the use of waterways and
referenced a study done by City Marina personnel and stated the
city's position in regard to live-aboards.
Harry S. Cline, 400 Cleveland street, clearwater, FL, was
sworn in to give testimony on behalf of the applicants who were 'not
present. He stated facts regarding the applicant's original
purchase and status of place of business at that time. Some live-
aboards, including the previous owners of his client's place of
business, were grandfathered in as of 10/13/85. Mr. Cline
admitted non-conforming use for a number of live aboards.
Miles Lance objected to the Affidavit stating that the
previous use of the property and the number of live-aboards,
offered into evidence as Exhibit 2 by Mr. Cline, were heresay.
Exhibit 2 was accepted by Hearing Officer.
Mr. Cline- stated that he felt, the owner had been denied a
legal right by the city. He felt the use in question had been
grandfathered in and the owner had been incorrectly advised by city
staff that he needed a variance.
Mr. William C. Held, Jr. was sworn in and gave testimony
regarding the ordinance that was in effect prior to 1988 and the
way that the study which, in effect, provided the basis for the new
ordinance in 1988, had been done. Mr. Held stated that at the time
of the study which was in the form of a questionnaire, King Cole
Motel/Marina responded that there were 8 live-aboards. The 1988
ordinance addressed 'sewer pump-out stations and the applicant was
given time to bring the facility into conformance. Mr. Held also
read the portion of the code, 42.34(b) regarding parking
MINH005A.93
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05/11/93
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In response to Mr. Cline's earlier question, Ms. G1atthorn
explained the code states if any modification of any feature,
building or activity occurs on the property, additional parking and
loading shall be provided. Ms. G1atthorn further stated because of
the fact that there is no conforming parking on this site,
requirement for the 7 parking spaces then applied for 14 1ive-
aboards. She also stated that there was no conforming parking
because back-out parking does not meet current code and is
considered dangerous.
Mr. Cline asked Ms. G1atthorn to show him where the parking
requirements for live-aboards appear in the code on a numbered slip
basis. Ms. G1atthorn testified that this was a change of activity
and several sections of the code would apply; however there was not
a separate parking requirement in the code for 1ive-aboards and
thus, the section for commercial marinas was used for parking
requirements.
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requirements.
The Hearing Officer, Mr Ayers, asked the purpose of the survey in
1986. Mr. Held responded the survey had been done to determine how
many 1ive-aboards were in the city. He also stated that city staff
visited over 100 marinas.
Sandy G1atthorn, Senior Planner gave testimony in response to
questions by Mr. Lance regarding the previous application for
conditional use. She stated the zoning on this property is Beach
Commercial and Aquatic Lands/Coastal. The conditional use which
had been granted included providing pump-out facilities and
providing required parking. She stated that parking requirements
were 1/2 space per slip. Ms. G1atthorn stated on December 10,
1992, the applicant asked for a variance from the Development Code
Adjustment Board (DCAB), of seven parking spaces to allow 14 live-
aboards. The request was denied unanimously. She read from the
minutes of February 11, 1993, regarding the denial of the variance.
Mr. Cline, the applicant, and Mr. Held. She further stated
that if the use is not permitted use outright but is a conditional
use, which is permitted, those districts. Mr. Cline then
referenced Code 114.05(a) (1) regarding conditional uses as related
to marina facilities. He pointed out that a Marina could legally
have existed prior to 1985.
Mr. Lance redirected questions to Ms. Glatthorn. She stated
that in 1985, if the marina did not have the proper parking it
still would have been grandfathered in; however, if they wanted to
change the use and activity of the property by way of a conditional
use application, they would be required to supply additional
parking places. She further agreed that records indicated the
applicant applied for a conditional use which was approved
contingent on receiving a parking variance; however, the DCAB
denied the variance.
MINH005A.93
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05/11/93
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Mr. Cline spoke regarding the grandfather concept relating to
live-aboards. He submitted court rUlings on cases regarding
cessation of use and cases of abandonment.
Mr. Lance commented regarding the adoption of the 1988 City
ordinance to grandfather with respect to live-aboards. He stated
it was not known how many live-aboards there were, so the survey of
every marina in the city acted as the basis for the ordinance. He
felt the applicant did not meet the standards required for variance
approval and the applicant wanted the variance in order to receive
financial gain.
The Hearing Officer asked both attorneys to consider the
grandfather clause with respect to ~ive-aboards in their proposed
orders and to submit their proposed orders in 10 days.
Hearing was adjourned at 2:10 pm.
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MINH005A.93
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05/11/93
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CITY CLERK DEPT.
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BECEIVED
JUN 0 t 1993
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RAMCHANDRA R. . and RASHMI JAKHOTIA )
d/b/a KING COLE MOTEL, ")
)
Appellant, )
)
va. )
)
CITY OF CLEARWATER, )
)
Respondent. )
)
I
CASE No. 93-1474
FINAL ORDER
Pursuant to notice the Division of Administrative Hearings
by its duly designated Hearing Officer, K. N. Ayers, held a
formal hearing in the above-styled case on May 11, 1993 at
Clearwater, Florida.
.0 APPEARANCES .
For Petitioner: Harry S. Cline, Esquire
400 Cleveland street
Clearwater, Florida 34615
For Respondent: Miles A. Lance, Esquire
Assistant City Attorney
Post Office Box 4748
Clearwater, Florida 34616 4748
STATEMENT OF THE ISSUES
Whether Appellant should be granted a variance of seven
parking spaces to permit 14 additional live aboard boats at its
marina, or, in the alternative, whether the marina has
grandfather status which negates the code requirement for
additional parking spaces.
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PRELIMINARY STATEMENT
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By letter dated February 17, 1993, Jakhotia (King Cole
Motel) by and through his attorney, appeals the decision of the
Development code Adjustment board to deny its application for a
variance of seven parking spaces at its marina to allow 14
additional live aboard boats at this marina.
As grounds therefor Appellant alleges that at the time of
the code change regulating live aboard vessels the King Cole
Motel had 22 slips in its commercial marina all of which were
grandfathered within respect to parking requirements; and since
the parking requirements are the same for commercial marinas and
marinas with slips for live aboards, a variance should not be
needed.
At the commencement of the hearing the evidence presented to
the Development Code Adjustment Board was admitted. Thereafter,
Appellant called one witness, Respondent called two witnesses and
three exhibits were admitted into evidence. Proposed findings
submitted by the parties have been considered in preparing his
order. Having fully considered all evidence presented I make the
following:
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FINDINGS OF FACT
1. 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.
2. At the time of acquisition and for some time prior
thereto the property included a commercial marina with 22 slips.
3. In 1985 the City of Clearwater revised its Development
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Code effective October 13, 1985 and, incident thereto, effective
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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:
(1) 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;...
4. In January 1986 a survey was taken of all marinas within
the City of Clearwater to determine the number of live aboard
vessels corning 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.
5. In 1988 King Cole Motel applied for conditional
authorization to utilize 14 additional berths for live aboard
vessels.
6. This conditional use was approved subject to the
applicant installing a pump-out facility and meeting the parking
requirements.
7. 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.
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8. 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.
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9. At the time Appellant acquired the King Cole Motel the
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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
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they too were grandfathered in without the need for parking
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spaces.
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10. 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.
11. To his credit Appellant obtained the use of seven
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parking spaces down the road from the marina but those spaces
were not contiguous to Appellants' marina as required by the
code. Therefore, Appellants'ause of the additional slips for
live aboards did not meet the parking requirement in his
conditional use approval.
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12. 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.
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13. 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.
14. In these proceedings Appellant presented no additional
evidence to support the variances requested than was submitted to
the Board.
CONCLUSIONS OF LAW
15. The Division of Administrative Hearings has jurisdiction
over the parties to, and the subject matter of, these
proceedings.
16. In these proceedings Appellant has essentially abandoned
his request for a variance and now contends that these 22 slips
were grandfathered in as a commercial marina not required to meet
~~). the parking requirement of 0.5 parking spaces per slip; and,
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since the parking requirement for slips with live aboard vessels
is the same, he is also grandfathered in if the slips are used
for live aboards.
17. This is a logical argument except for the fact that the
use of the marina for live aboards is a different use than as a
commercial marina. When a facility~subject to the Land
Development Code desires to change the use of the facility t~e
owner must apply for conditional use approval. This is what
Appellant did in 1988 and this conditional use was approved.
However, the code requires a conditional use to comply with all
code provisions applicable at the time the conditional use is
granted. At the time (in 1988) the application to change the use
~ of the marina from a commercial marina to .live aboards the code
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required 0.5 parking spaces for each slip to be changed from the
original use to the desired use. Thus, seven additional parking
spaces were required. It is for a variance of seven parking
spaces that Appellant initiated these proceedings.
18. As noted above, no additional evidence to support the
application for a variance of seven parking spaces was presented
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at this appeal that was not presented to the Development Code
Adjustment Board. From the evidence presented to th~ Board it is
clear that the Appellant presented no evidence to establish a
hardship or that the purpose of the variance request was other
than to secure a greater financial return from the property.
Accordingly, the evidence presented to the Board was insufficient
to grant the variance of the seven parking spaces requested.
There being competent and substantial evidence to support the
Development Code Adjustment Board's decision this appeal must be
denied. Accordingly, it is ORDERED:
The denial of the application of Ramchandra Jakhotia and
Rashmi Jakhotia for a variance of seven parking spaces by the
Land Development Code Adjustment Board is affirmed and this
appeal is dismissed.
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DONE and ORDERED this 26th day of May, 1993, in
Tallahassee, Leon County, Florida.
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K. N. A ERS
Hearing Off
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
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Filed with the Clerk of the Division
of Administrative Hearings this 26th
day of May, 1993.
COPIES FURNISHED:
Harry S. Cline~ Esquire
400 Cleveland street
Clearwater, Florida 34615
Miles A. Lance, Esquire
Assistant City Attorney
Post Office Box 4748
Clearwater, Florida 34616 4748
Michael Wright, City Manager
city of Clearwater
Post Office Box 4748
Clearwater, Florida 34616 4748
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Cynthia Goudeau
City Clerk
Post Office Box 4748
Clearwater, Florida 34616 4748
NOTI~E OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this Final order is entitled
to judicial review pursuant to Section 120.68, Florida Statutes.
Review proceedings are governed by the Florida Rules of Appellate
Procedure. Such proceedings are commenced by filing one copy of
a Notice of Appeal with the Agency Clerk of the Division of
Administrative Hearings and a second copy, accompanied by filing
fees prescribed by law, with the District Court of Appeal, First
District, or with the District Court of Appeal in the Appellate
District where the party resides. The Notice of Appeal must be
filed within 30 days of rendition of the Order to be ,reviewed.
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