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02/17/1994 - 3:05 PM (2) , . . - ....-. . --. .._-'..~ -.' . " '.'. . . . . . " I . ,d ,/. , " . , ..!', !,.",~, L i, ,1;', .. ~. ~ _" ". ... ~ .. > . HEARING OFFICER APPEALS , . Date . . ~/e-arw~+er $i.:J It/Urine- WdjS) LYle.. (A-tlvan-cuxt-' SeauJajs Oorp /7he AAA.-jt8-tie.,) . . . . . ,n , ~ 3<61 '" t.;;.:.. ,'.1 ~ " . 1":~X. . . r\o~J cO .t~: . .t'" '. , . './ .' .' . .J .",. ." t,' "\" . .' '.' .' ...., .' l:~,' ." '. ,', ,', a" : ': _".',' '.1'" ..\. "I'" .. , ' ",:" ,,:""\,. : ',..', ' "'..':; ';< .'II~ I,~:.' . _. .'..... '..... ".,' ..._...."1. -3." "'.8' ,... .;....:,.....';......... ...'....).:;'...':.; . '... '... .,.... e:." ~ ' . ::. ',.' . ...., .".' .:. '. '. ..' , ". . .'.:'. , . .' \. . '. '. .,\. , . . . . 1 ." . ,< " " ..-.u' '" '~~!' I ~: : ,",.... '..1 ',,' ",," , ~ ,~~ ',' . ~j .' ~ , '. ,...._._~_r____.._......-:.+~..J.I., 1 ". ' I " ; . .; C.'~.; "/~ , " , ,~ . ,j PUBLIC HEARING BEFORE A HEARING OFFICER February 17, 1994 - 3:05 p.m. Clearwater Bay Marine Ways, Inc. (Adventure Seaways Corp/The Majestic) Hearing Officer: J. Lawrence Johnston Also Present: Issue: Miles A. Lance, Assistant City Attorney John Richter, Senior Planner Susan Stephenson, Deputy City Clerk Clearwater Bay Marine Ways, Inc. (Adventure Seaways Corp/The Majestic) for a variance of 81 parking spaces to allow 128 spaces where 209 spaces are required at 900 Osceola Ave N, J. A. Gorra's Sub, Blk 2, Lots 2 & 3, and part of Lot 1, and filled submerged land on west, submerged land and riparian rights, Sue Barco Sub, Lots 13, 14, 23, part of Lot 22, and vacated Nicholson Street, filled submerged land on west, submerged land and riparian rights, zoned CR 24 (Resort Commercial) and AL-C (Aquatic Lands-Coastal). V 93-86 DOAR Case No. 93-7070 Appearances: David Bacon, attorney representing appellant Espen Morgan Tandberg, representing appellant Drawing of site with last revision date of 11/9/93 as well as items submitted in letter to Division of Administrative Hearings dated 12/9/93. The Hearing Officer acknowledged receipt of the tapes, application, excerpts of minutes from the Development Code Adjustment Board, etc. Exhibits Submitted: c:> David Bacon clarified that the original request was for a variance of 81 parking spaces but this was reduced to 62. In his opening statement he pointed out that the ship is docked at an existing marina not previously used for a cruise ship. A conditional use was approved with conditions, one of which was to obtain a variance to the parking requirements. The request was approved with a 3-2 vote. Miles Lance stated the Development Code Adjustment Board denied the variance request on the basis that it is not unique, there is no hardship, the request is oat the minimum, it would adversely affect the public health, safety, order, convenience, or general welfare of the community and violates the general spirit and intent of the code. Tom Radcliffe, engineer representing the owner/applicant, stated he was involved in the site planning. The plan was last revised on 1/3/94. He stated the Majestic carries 600+ passengers and the Crown Empress carries 400+ passengers. The Majestic has never been docked at this facility. This is a small marina that had been neglected and was not set up for this type of operation. He stated that the Clearwater Code does not have any provisions for parking requirements for cruise ships. A member of their firm contacted other municipalities to see what their v MINH002C.94 Clearwater Bay Marine Ways. Inc, 1 02/17/94 \_' · ..., "". .......'.', ..': ,.;'..,.,...,... ...... .,' ',: ..:.', ." ,'j;1 .... .', .' ,"':.:,,2,:'~/..':":,:.:'}<'::'/,..~~ , ' " ,. "', . . ~. , ',,; ./.,.". ' "', .' . " ". : .":'"'.'. ~. " <3:,.." 8:,..,..,,:;..;...,..'....,;'....:..';......:,:,',,:.,. :!,':,. ..i,,:'."' , .1' . .,... ~ 1 ~ r . ..,.. ~, " , :'.~~~.:',...." ~ ".:'J' :".' ~,: : ,,'..'... . " :' ,...., ,', " . . .' I . .~,.' . ..'j,,~_.._....._................... .'" _~r . ~ ' . . I ~ ,I 'I , ,. , '. I~ requirements were. The city of Miami suggested 3 spaces per slip. The Crown Empress has been docked at John's Pass and the trip generation history from that operation was used to estimate the parking needed. In discussions with the Pinellas County Planning Council they accepted one space for every three passengers to calculate the traffic impact fee. Every parking space generates four trips per day as the ship goes out twice a day. Discussion ensued as to the proportionate reduction in parking for the smaller cruise ship. It was stated that they used an average of 140 cars per cruise plus three buses tO,determine the parking. Mr. Radcliffe stated that 30% of the passengers arrive by bus. He used the drawing submitted to show the existing marina, the boat slips, retail area, and parking. He stated the conditional use and alcoholic beverage distance separation were approved. Prior to requesting the variance they met with Lou Hilton, Planner II for the City, who suggested they look at the use as a restaurant in order to determine the parking requirements. They had no indication there was any problem and the staff report recommended approval with conditions, all of which the applicant was agreeable to. Empress Cruise Lines is a tenant and they have no authority to eliminate any uses on the property in order to reduce parking requirements for the marina. Without the parking variance they cannot operate the Majestic because no other lands are available in the area that can be used for parking. Mr. Radcliffe stated the plan was designed with the use of the Majestic in mind. In response to a question from Miles Lance, Mr. Radcliffe agreed and #~ Mr. Bacon stipulated that the pinellas Planning Council's acceptance of (~~ figures to determine the traffic impact fee was not binding on the City. Upon questioning by Mr. Lance as to how the parking requirements were calculated, Mr. Radcliffe stated the following: 27 spaces for the existing marina, 4 spaces for dive charters, 2 spaces for sailing charters, 17 spaces for retail area, 12 spaces for work bays, and 200 spaces for the cruise ship based on 1 space per 3 passengers. A plan was prepared for use of the Crown Empress which included an additional parcel of land and which did not count spaces in the maintenance area. The use of the Crown Empress would generate a dp.ily passenger load of 900 people as opposed to 1200 people if the Majestic is used. In response to a question, he read the three conditions recommended by staff should the Board have chosen to grant the variance. Discussion ensued regarding the third condition which stated if additional parking is deemed necessary by the City, the applicant will develop additional parking, lease parking from the City, or provide an alternative acceptable to the city. Mr. Radcliffe stated they were under the assumption that after the six month trial period a permit would be granted,_ The Hearing Officer asked for clarification as to how the determination was made to establish parking requirements based on 3 passengers per parking space. It was explained this was the result of the City using an arbitrary number based on general recreation services and uses. There is an anomaly in that at peak 30% of the passengers are coming by bUB rather than by car. ~ MINH002C.94 Clearwater Bay Marine Ways, Inc. 2 02/17/94 i) . , , \'. ,'. "(. , ~ ': ,: ~ t',l' d' .~: ,\ , .. :;\ .' c;j ';':.. ". \1'," "! I . ~ ~ ~' : .t ," .', \. .' '~', ~ ~ .' . " .'. I.... I ',I ,~. 'I" ,',/t '.' ':'" , ,': . ,I' , ",; I ",:.1 ,:< :':.:: ~ : ;:l:' ,'!) o ';.. :,':,: ",.' ,':1' tl <:'. '\.\ Espen Tandberg, Vice President of the Corporation, stated the Crown Empress holds 470 passengers and the Majestic has a capacity of 600. They operate at peak capacity approximately once' a week and the remainder of the week they operate at 50 to 60% capacity. They have been discussing this matter with the City for approximately two years. They are presently in violation of their lease at Jolm's Pass by mooring the Maj estic there and moving the Crown Empress to Clearwater. He relocated the Crown Empress to Clearwater to mitigate his losses but it must be returned to Treasure Island. In response to a question from Mr. Lance regarding the lease violation, Mr. Tandberg stated he was notified that relocating the Crown Empress was in violation of his lease. They do extensive bussing and part of the problem is that the facility was not designed for a cruise ship. Mr. Tandberg stated the Majestic was purchased and reconfigured specifically to sail from Clearwater. He did not expect to encounter any problems although he knew he needed a variance. The variance is based on negotiations with the City and they thought it would be approved. In response to a question, he stated the lease for John's Pass specifically names the Crown Empress. He indicated that the Majestic has less draft than the Crown Empress. He acknowledged that the Marina at John's Pass is not designed to accommodate a ship like the Majestic. The Hearing Officer inquired as to why Mr. Tandberg's authority to dock the Majestic at John's Pass was only temporary. He responded that the City of Treasure Island was aware of his need to obtain a variance in Clearwater and of the business he was bringing to their community so he was given authority to temporarily dock the Majestic at John's Pass. John Richter, Senior Planner with the City, discussed the Code sections regulating parking and pointed out that a section of the Code authorizes the Code Administrator to determine a formula for parking if none exists for a specific use. Staff determined that Section 42.34(6) (D) (2) (c) regarding public or private recreation appeared to apply in this case. Mr. Lance called Vicki Morgan as a witness. Mr. Bacon objected on the basis that this is not a denovo hearing and if she did not testify at the hearing before the Development Code Adjustment Board, he did not feel 'she should be allowed to testify before the Hearing Officer. The Hearing Officer explained that Section 36.065(6) (A) does not clearly state that it is a denovo hearing but states the Hearing Officer shall review the record that was before the Board and allows additional information to be presented before the Hearing Officer making it a hybrid process. Following a brief discussion, it was noted that she did speak at the hearing before the Development Code Adjustment Board. It was determined that her testimony was permitted. Vicki Morgan stated she had objections to the operation from the' beginning. She pointed out that they do not meet criteria #4 for granting a variance which relates to achieving a greater financial return and felt the decision of the Development Code Adjustment Board should be upheld. Considerable noise is generated by the operation and they are MINHOD2C.!I4 Clearwater Bay Marine Ways, Inc. 3 02/17/94 "I .' ' '; :' ...:.. < :. ~I , : :,t ,j' \ '. - "/" '.. ' . :....' .' ,... ~::,::<', \ .. ",;' :. ;.:' :;~'..;), ;~\,\ Ji',:'<:,:, " ',,',' ',', 1'/:'" ' : .,' '. I:,l'),::.:> ....:....:71..~.,\ (\:': ':~:'.: :'/ .... ". '. .:- ., . .; ~ " . ~, \. ". , <.' <. ::it'~~''''.' '<~""'3': '., '. , . ," ... " . ':..; .~~, , . .. ',( .'. '.': \ '...'. ;' <.:;:.... 'C.,., ,..' '. .. ",' .. ~ '. 4.". ,\.1.'<" n ,.." , I: 10 o " J ~ . r, .',.. . '. . /:;. '... ' ", . :,:~':<':'~'.~<\.:i:;.y:~" ./ . in violation of parking regulations as they are stack parking. She expressed concern regarding their hours of operation suggesting they return at 11:00 p.m. on weekdays and midnight on weekends since this is a single family area. She inquired as to why they cannot provide off site parking. She pointed out that one of the conditions of the approval of the conditional use was to construct a wall on one of the nearby properties within 30 days which was not done. She did, however, acknowledge that there was a problem regarding ownership of the property and that is why the construction of the wall has been delayed. She feels the hardship is self-imposed and that the applicant should have checked City Codes prior to purchasing the ship. Mr. Tandberg stated that he has not been notified that he is not in compliance with. the conditions and has not been cited. .He stated there have been numerous inspections, including building and fire. Mr. Radcliffe also stated that when they made arrangements to put in the wall it was discovered there is a discrepancy regarding ownership of the land where the wall is to be placed. In lieu of closing statements it was agreed that the attorneys would submit a proposed order within ten days of the hearing. The Hearing Officer stated he would make his decision within 45 days of tOday's hearing. Hearing adjourned at 4:43 p.m. M1Nll002C.94 Clearwater Bay Marine Ways, Inc. 4 02/17/94 ~t.';'i;:'t.~~W:,",::t:.),', :.'~~i':,;e;.: /. ,,! ' :: ~: ~ . ~L , ',,'. I . '. ~.l ," r ':........,:...-._,_.____.....~..._>... ......,.. " : . . .,' '.. ., " .' .~ ~ ,".~ '.. . " DECEIVED MAR 3 0 1994 ,~ ..w" STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS CLEARWATER BAY MARINE WAYS, INC., ) ) Appellant, ) ) VB. ) ) CITY OF CLEARWATER, ) ) Appellee. ) ) CITY CURK DEPT. CASE NO. 93-7070 FINAL ORDER On February 17, 1994, a final hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings. APPEARANCES t:) For Appellant: David A. Bacon, Esquire Bacon, Bacon, Johnson, Goddard & Moody 2959 First Avenue North St. Petersburg, Florida 33733-3576 For Appellee: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 STATEMENT OF THE ISSUE The issue in this case is whether the evidence sustains the decision of the City of Clearwater Development Code Adjustment Board {the Board) to deny the application of the Appellant, Clearwater Bay Marine Ways, Inc., for a 62-space parking requirement variance (200 spaces instead of the 262 required o under the Code) for its property located at 900 North Osceola Avenue, Clearwater, Florida. (The variance is required as a ::....~.~.,;(~'~..' .....'.,..'...:.::'" "'"".' :",i'~":1 ,~:~,"\;,'~::'''I.>'J~''\' .[.F!..~.I....<. ..~..'I'.':.+ .:.: '." " ", " "~"""~",,,,"'" ..,\. .,,,',, . .' ", \ ,. ""'" . \' . .,. ;:::.::.i~,' '._' . '/: \':"~<' ~.':.-~<:' ..': ......,'.,..P. ".':",: ,,:::'i..' '::I~"::: :', ;',,,,: " ,:: ':'.,'.' ~.':...'''\,:.:i;' .::.:>:~ '.", :.,::'J.'~::I3":' .::,;;~:'::,?:..>.~.::,:.: :..:..,:,C~:::\':..:.:: ,.;'.,< ~.',"": ,':'~:' :::d':~.':: .,:, '~ :, :~ . . . :.:." '. ..... \".,',.... .,' ," ,. ",.~. "., ....D. '..'..,. .,,,.,.,L:.:.,.. . '. 'I \ ,'.11'" . ':..... ;...-;',; :....'. ". " ":"';..'.',:., ,. ',r.:r.":.:..;.~,:::;,.:J'.',,:'.: :,,""::I:'-:':"':':"'~.:::J'~.:.:' " .::.',': .: '," ::,". ;. , . . . . , , . . - ... _.'-~ --- ..... ..-. ... " ., ,...... " . ' , .. ~ " ' .' .. Q' r, ~ c' r " . \ , I ~ 1 . ':1 \' >..1 .: L ~ 11 l~h~1 ~) !~ }i{~,V result of the Appellant's desire to use a part of the property as . Pi.\U ""'l ~1~' 1 i~'.J ~....: a cruise ship docking facility.) PRELIMINARY STATEMENT On or about October 25, 1993, the Appellant, Clearwater Bay Marine Ways, Inc., applied to the City of Clearwater Development Code Adjustment Board (the Board) for an 81-space parking requirement variance (128 spaces instead of the 209 required under the Code) for its property located at 900 North Osceola Avenue, Clearwater, Florida. After filing the application, the site plan was modified, and the variance application was modified to request a 52-space variance (200 spaces instead of the 262 required under the Code). Staff reviewed the application and, on the condition that the applicant secure additional parking if Itdeemed necessary by the City,tJ recommended that the Board grant the variance application. How~ver, when it was considered by the Board at a public hearing on November 17, 1993, the Board denied ,.- the application. A timely appeal was filed on December 1, 1993. Under Section 36.065 of the City of Clearwater Land Development Code (the Code), the appeal was forwarded to the Division of Administrative Hearings on December 13, 1993, along with a copy of the record of the proceedings below. On January 6, 1994, a Notice of Hearing was issued scheduling final hearing for February 17, 1994. At the final hea~ing, the record of the proceeding below was received, as required by Section 36.065(5)(0) of the Code. Additional evidence also was received, as permitted by Section , 36.065(5){d) and (6){a) of the Code. Summations were heard, as y 2 {;}l,:"',r"(~r:\~.;\:.~}:'!;t,':' ?/;:'/is!!::!,\:'i~::~!)].;?\,:\!~iiJt.,;r,a'~;lt;;M]~\\!i,'\'?,,?,::;;;/::,;;-;!!,:i\'( I . ".. ,......_...-.:;......_........................,'.... . '.,' . I . \, I' I,. .' r-; permitted by Section 36.065(S)(b) of the Code. In addition, the parties were permitted to file post-hearing proposed findings of fact and conclusions of law under Section 36.065(5)(h) of the Code. FINDINGS OF FACT 1. On or about October 25, 1993, the Appellant, Clearwater BaY,Marine Ways, Inc., applied to the City of Clearwater Development Code Adjustment Board (the Board) for an 8I-space parking requirement variance (128 spaces instead of the 209 required under the Code) for its property located at 900 North Osceola Avenue, Clearwater, Florida. After filing the application, the site plan was modified, and the variance application was modified to request a 52-space variance (200 (:) spaces instead of the 262 required under the Code). 2. The variance is required as a result of the Appellant's plan to have Adventure Seaways Corporation use a part of the property for use as a docking facility for its GOO-passenger cruise ship, the Majestic Empress. 3. The City of Clearwater Development Code (the Code) has no parking space requirements specifically designed for cruise ship operations. To establish the parking space requirements, it was decided to utilize Section 42.34(6)(d)2.c. of the Code, which addresses certain nretail sales a~d service uses," and states: o Theaters, indoor and outdoor recreation centers, swimming pools, skating rinks and other public or private recreation and amusement facilities: One parking space per three customers or patrons computed on the basis of maximum servicing capacity at any one time, as determined by the requirements of the city, plus one additional space for 3 ~J",l!Jft-lrjOo"'i-,",,""""""'-" - ......................,.,a... 'I,.., ''''';l ~ . . .,.. "" ",1'..1':' . :.._.... .\'.' . .c,... .. ".,:;":'.:L,' ..... ..... ............,..;.:'...'::r....':,. :.. .~: ':'..:,;L\>:D~.i.:>{/::.;;/.." :.,}'\,'. ,\ ..\1 ,\, " '\ ",.'" ~~,.., 3, ,8'\"1'" EI .. I'.' \, ',." \ .':', . : ".' ,".' , .,' ".: . " ;," . :,' """/','.'.".':.:: C " t' :~_ "". .'; ... ......;'.( " .',~;. . ".. .; .,....: '. '.' ,.." ,I .,'. I' '; ;'~ .' h.,. .. 4-:"_"_"'-~-'"'.~''''''''' ... ....~' . ,. . .". .,', ..' '. ,", " ":'. " :'.. every two persons employed on the premises at peak period of use. Specific provisions over and above the standard may be required for uses such as movie theaters involving successive changes of patrons with a corresponding overlap in parking required. Under that provision, it was calculated that 200 spaces would be needed for peak capacity for the 600-passenger cruise ship. An additional 62 parking spaces are needed for other uses proposed in the site plan (including boat slips, a dive charter operation, a sail charter operation, a 2,800 square foot parts and service business and three work bays), for a total of 262 parking spaces for the overall site plan. 3. The evidence was that no adjustments to the calculation 1'1......< under the "one space per three customers or patrons" formula were "determined by the requirements of the city," and that no additional spaces were required for I1persons employed on the premises." (There was some evidence that the Adventure Seaways employees will park off-site.) Nor was there any evidence that there were any lI[s]pecific provisions over and above the standard required for . . . successive changes of patrons with a corresponding overlap'in parking required. II 4. The Adventure Seaways Corporation plans two excursions of the Majestic Empress a day, one during the day and one in the evening. It is expected that the ship would sail at full capacity only approximately one day a week, on Saturday. At peak capacity, it is expected that 30% of the passengers will arrive at the docking facility by tour bus. During the day cruise, the buses would leave the facility and return at the end of the cruise to drop off passengers for the evening cruise and pick up u 4 ::: <><_.'..' '.:.~ ,( ":. . .:< '. ..'. \",';.', ; ,.,.:, :, :';', : ' <:,'.... .::" -' '. ....< ''''.''''': :. :::-1.:<, ',,:,"~'''.',:; : ....',;:..,:~: J"'J:,'.::..'\',',:';~',:',~',..,.:. .<; ",:"..' ,/:',.::''':':'':''~',!,;:.':.'' .f :'1 ;1'" \~ ,~I ," > \ ". f :'J ... ','~ : c: '~'l:' > .'....\: .,:' .',.,~.. ~', :':.'1 ',_: ".' . .'~:, "13' . I. ". ; ..:';.:.,~~:'..."~" -: ',': :.,.. . . . :"".: ...; " "'..:>, .:. '.' 'I; '~:.l', , .. \ '. . \ ,. , ~'::J , ", '. ". 0' " . \ ,. ,.. < \ .' . '~'i .':>. . . .' " :. ./ . " . .:;.,~> :'" '< .: : ., .' :"~~" ~ . : '.:E~' '. ":3: '. ":. '" ;,\...., ~.'.~,:;;:~:;"/,'<\7:I'::' :'",.\ . . .: '''" '" ,'. '.: :''-''.' .',>.::'.\;.:': ,<~'" '<. :., :'. ~,' '.' ", ~ ,. '.J.....__~_._~..~..:.....~.: ~_~, , .' r ~ ~,'\ 'I' , '. ~I . :' . ~,!t " ,~ off-loading day cruise passengers. They would not remain at the facility during the times other cruise ship passengers would have their cars parked at the facility. 5. Using only the Ilone space per three customers or ~ ( )~::Ji patronstt formula under Section 42.34(6).(d)2.c. of the Code, the 70% of the total complement of passengers, who are expected to arrive by personal vehicle on peak days, would require only 140 parking spaces (420 passengers divided by three per parking space), well below the 200 spaces allocated to the cruise ship operation under Clearwater Bay Marine Ways site plan. 6. Since Adventure Seaways has not been able to use the Majestic Empress at the Clearwater Bay Marine Ways facility without the parking space variance, it has transferred a smaller cruise ship, the Crown Empress, from its docking facility at Johns Pass on Treasure Island in the interim. The Crown Empressts capacity is only 400 passengers, and no parking space variance is required to use it at the Clearwater Bay Marine Ways facility. Meanwhile, Adventure Seaways has received temporary permission to utilize the Majestic Empress at the Johns Pass facility on the condition that it make greater than normal use of tour buses to transport passengers to and from the Johns Pass docking facility. 7. Adventure Seaways purchased the Majestic Empress after being encouraged by City officials about the prospects of being able to utilize the Clearwater Bay Marine Ways facility. After purchasing the vessel, it had the vessel reconfigured to reduce v its draft to accommodate the shallow waters it would have to 5 ,::.,,_' ,.':, ,,'. ",,:,' :',: 'j;:",;:.,:'<~":i:;~.\Ll..}':~"'~',I:("'<':':":"~:" ,.., ,", ',""" .n" ',.,' '~,., ".,'..3....':..:,....... ,.,l/.. ,..... .' '" ,.\ ..' ", . '" ., ,c...., l, ,,"'.q ',~., \' ~ : ~', '+ , '" '1/' " . I'. I. . ~...-,...:.. ~_ . ., ___ ... . 4_ ... . , ~ ~ ~ ,'. '. r ' '. . , I' . ,~ ,. . navigate getting to and from the facility. Adventure Seaways also closed in the top deck of the vessel to meet Code (.~ requirements for noise control. Neither the special shallow draft configuration nor the noise control measures are required for utilization of the Johns Pass facility. 8. Part of the encouragement by City officials about the prospects of Adventure Seaways being able to utilize the Clearwater Bay Marine Ways facility included assurances that the City would help Adventure Seaways gain access to additional parking, or develop or acquire additional parking, in the vicinity,. if needed. Another option would be to utilize off-site parking and transport passengers to and from the Clearwater Bay Marine Ways facility by bus. CONCLUSIONS OF LAW 9. The standards for approval of an application for a variance are set out in Section 45.24 of the City of Clearwater Land Development Code (the Code), which provides: A variance shall not be granted unless the application and evidence presented clearly support the following conclusions: (1) The variance requested arises from a condition which is unique to the property in question and is neither ordinarily nor uniformly applicable to the zoning district, and is not created by an action of the property owner, predecessor in title, or the applicant. .... (2) The particular physical surroundings, shape or topographical conditions of the property involved and the strict application of the provisions of this development code would result in an unnecessary hardship upon the applicant. (<.j ~ 6 < . ' " . I,. . ..... _..0:.... _ __ ....._.. _ ." L' _ to. . ~ ", , . L ., ~ l") C,' (3) The variance is the minimum necessary to overcome the unnecessary hardship referred to in subsection (2) of this section for the purpose of making reasonable use of the land. (4) The request for a variance is'not based primarily upon the desire of the applicant to secure a greater financial return from the property. (5) The granting of the variance will not be materially detrimental or injurious to other property or improvements in the neighborhood in which the property is located. (6) The granting of the variance will not impair an adequate supply of light or ventilation to adjacent property, detract from the appearance of the community, substantially increase the congestion in the public streets, increase the danger of fire, endanger the public safety in any way, or impair the value of surrounding property. (7) The variance .desired will not adversely affect the public health, safety, order, convenience, or general welfare of the community. (8) The granting of the variance desired will not violate the general spirit and intent of this development code. 10. Appeals from decisions of the Board are governed by Section c36.065 of the Code, which provides in pertinent part: (1) Purpose. It is the purpose of this section to provide an administrative process for appealing decisions rendered on variances and conditional uses by the development code adjustment board and the planning and zoning board respectively, prior to any available recourse in a court of law. In particular, it is intended that such administrative relief be provided in the most professional, objective and equitable manner possible through the appointment of a hearing officer to o o 7 -~"-I~"~P. .. , ......-...-----........, ..."'-"'~ , . t ~....ln.J~....t_ . ., ' ,;'..--.:.,_.... .....'.',. ..... ,.... .... .....'--\.:~'-,''''L':i:''\':'','''"r', , , ' \.. , ',.., r " " LJ. .,.;.J , ,.' . ",' ,. " ,', .'.' :':"",..(!!, ,.3 "";'~'~""'."~I'~""'::"""'" ,>'",'.':"",,, , ' '. . ". _'. _....:. L _ ____ .... __ .. _'c\ - ~ "~' . ,'. '. :. . I' " .. r' adjudicate matters as provided in this section. The function of the hearing officer shall be to serve as the second step of a two-step administrative process relating to variances and conditional uses. ~ , * * * (5) Conduct of the hearinq. Conduct of the hearing before the hearing officer shall be as follows: * * * (d) The hearing officer shall have the authority to determine the applicability and relevance of all materials, exhibits and testimony and to exclude irrelevant, immaterial or repetitious matter. (e) The hearing officer is authorized to administer oaths to witnesses. (f) A reasonable amount of cross examination of witnesses shall be permitted at the discretion of the hearing officer. * * * (G) Decision. The decision of the hearing officer shall be based upon the following criteria and rendered as follows: (a) The hearing officer shall review the record and testimony presented at the hearing before the board and the hearing officer relative to the guidelines for consideration of conditional uses or variances as contained in chapter 41, article II, or chapter 45, respectively. Although additional evidence may be brought before the hearing officer, the hearing shall not be deemed a hearing de novo, and the record before the board shall be incorporated into the record before the hearing officer, supplemented by such additional evidence as may be brought before the hearing officer. (b) The hearing officer shall be guided by ~ 8 , " c"'_.._._.....-~__~...__..._ .. _,...~. , ... .. ....._. . ',il _'" \,'" :":'.':""~,,,,,,',':'.":": ',',:,',.,::':'.',L:,'. "'':'.'~:'~'/;:',,/&:H''.'.'....';:,,'.''..'..'.',.,,.' '. . , . ". '~ ',,, tl 3,'" 0. '. ..",,:=1,. '.'" ". .... "'1" ..' '.' '..':.' ;, :..',,'.:,:<,'''.,.'.:; '..::," /.''.C'" '.:-:_l':':<,:,;,':~?"::~;:.:':'::.i.:J:I,:i:::',.'.:.',' :."..:..::".::..:,......:.>;:.. :':': , ' j' ' .. ,~ ,~-~...__.....__/...._......~.,.,,,.... . . '.... ;'.. ',. ~", ...... " '. " () ;1' . , " ;. the city comprehensive plan, relevant portions of this Code and established case law. (c) The burden shall be upon the appellant to show that the decision of the board cannot be sustained by the evidence before the board and before the hearing officer, or that the decision of the board departs from the essential requirements of law. (d) The hearing officer's determination shall include appropriate findings of fact, conclusions of law and decision in the matter of the appeal. The hearing officer may affirm or reverse the decision of the board, and may impose such reasonable conditions as the board may have imposed. 11. These provisions appear to provide for a curious hybrid proceeding that is an appellate review on the one hand, in the f.:~ sense that the issue is whether the evidence sustains the board's decision, and a de novo proceeding on the other hand, in the sense that additional evidence can be adduced at the appeal hearing. In other words, whether the Board's decision is sustainable under the pertinent law is tested not only against the evidence presented before it but also against the evidence presented before the hearing officer. 12. It is concluded that the Appellant has not met its burden of proving that the evidence does not sustain the Board's decision that the application and evidence do not clearly support the conclusion that the standards for approval set out in Section 45.24 of the Code have been met. l !"\ ~ 13. The application and evidence presented do not clearly support the conclusion that the variance requested arises from a condition which is not created by the Appellant's action. The 9 ~~.J1.......'ff'o""-"'" ." "~-' ...,:.._...: ." '. . . \., ....<.::,'I.::".::,".,.i'..... :..t.:..:.:<....:,~::"<6"'.;:;..:...'..~::,:'::.:~'.'\:\:,\:::i,::':' .' I, '., ~ , _~., ""n"", H., ,,,,. '." '. . ,"'," / ' ,..", i ~_._..._ ~~___....--...._,., ',a. ,,' ,'. " . " " . ~ ',' ,', , j ." .',. t' Ucondition" from which the variance request arises is the proposed use of the GOO-passenger Majestic Empress. If Adventure Seaways proposed to use the Crown Empress or a similar, smaller vessel, no parking space variance would be needed. 14. The Appellant has made an argument in the nature of equitable estoppel in support of its application for a variance., Essentially, the Appellant's argument is that Adventure Seaways was encouraged by City officials about the prospects of being able to utilize the Clearwater Bay Marine Ways facility. Based on this encouragement, Adventure Seaways purchased the Majestic Empress and had it reconfigured to reduce its draft to accommodate the shallow waters it would have to navigate getting to and from the facility. Adventure Seaways also closed in the top deck of the vessel to meet Code requirements for noise control. /- IS. It is doubtful whether allegations of "encouragement by City officials" would be enough to establish an equitable estoppel against the City. It also is noted, as found, that part of the encouragement by City officials about the prospects of Adventure Seaways being able to utilize the Clearwater Bay Marine Ways facility included assurances that the City would help Adventure Seaways gain access to additional parking, or develop or acquire additional parking, in the vicinity, if needed. This "encouragement" presumes the possibility that additional parking might be necessary. In any case, it is not necessary to reach a conclusion of law on the issue of equitable estoppel because Section 36.065' of the Code does not cOlifer any equity ~u.J 10 :""':',;>di-' , ',,," " :..,:, "', ' '" ,,',': ,.':,~,;",,:' ',':,'.':::, ;""':', ':<,:, <",'\ ':::"~:>,:;,>, \, ',':':,;\::';',"/,>,:<,;,;, ':',":::":' ,'.!,::;:",,{~~,,', ",,<,"":~ 'Y,',:::,' ',<,>,'",:'..::<:,:,~",\': .,', "_ ," "I" .'" j'''' '''', '. ' '" ' ""g""'" '.,.....' , "'"",, ,I, ":' .,'" :, ':': ','.,.".',,' ',,:'- ' .':' .' ,"," :,:':":-:.' ':~,-::/ :, ,'.":':; ',(t-';., 'i:,: ,:,' ~'-3':', :-':,:,:,' :~' "~:::'\:::;':'I:~'" ,: ',..< , .',\, ':,~', :;,'~'::. , ~'~':i':.':\,::' :,:':'\\ :":';,',.<.,:', 1 ' " '. .," . .' ,~. , ' " ~ ';" t' '~,',! ' . : "j ,( \ I, . j ,\ .. , I , '.., , " .... ,', >.'.,.,.., ,~.':~.'..''L '. ,!~__ ;,,'\'f,j-i, " '.,,'j,"'.~,.-. ",1','.. . J.""", .'; .", ':.'~' ',"', . '. .... '. ........._. ~_____... ..~...._ "~I " , J,' '.... \ ,I',. ,,( ,', ~ .. "p". . "- "" ,. , . . .' r-.) jurisdiction. Any claim of equitable estoppel would have to be pursued in a court of competent jurisdiction. 16. As set out in paragraphs 2 through 5 of the Findings of Fact, an argument could be made that the 262-space parking requirement was calculated incorrectly and that, if correctly calculated, would not necessitate any variance. But this proceeding is on an application for a variance from an already established 262-space parking requirement, not a proceeding to properly establish the parking space requirement for the site plan. The latter is not a permissible purpose to be served by this proceeding. See Section 36.065 of the Code. Instead, Section 35.10 of the Code would appear to establish the proper o procedure for obtaining an administrative determination of questions concerning the application of parking space requirements .to the Appellant's site plan. It provides that the Code administrator makes those decisions, with the possibility of further review and an opinion or ruling by the city attorney. DISPOSITION .. Based on the foregoing Findings of Fact and Conclusions of Law, the decision of the City of Clearwater Land Development Code Adjustment Board denying the application of the Appellant, Clearwater Bay Marine Ways, Inc., for a 62-space parking requirement variance for its property located at 900 North Osceola Avenue, Clearwater, Florida, is affirmed. " 11 ~~.....-..-...., '<...----.....i.~ ..:..... " . )i{':'.'_"" """. " ,'".,,:,: ,,' ",' "")::,i:i'i;::':'lji' ::i:j{,,",:);!c,,?b/:,'(;,:/~;\<:>,'::.;: '}.V:i,::r,:; :.......N;~:\/\:;,;.C'!':,/0 ',,'. ., \,. . ". \., '.' .,' '. .' \ ',\'.... ":~-d . ,;,1""':::.1,,,,\, ..n '. - .,L:. ",.. .,' .. '.... .;.. ...,.... .;.. '.' .:.... . I;: .. :" :,'.:'.~':'<,:. .:. .:': " ,:..':~i. : !:::.:'.'/ i: :.~,::' .\::: \, ?/:":~.:..'~.~'.:~' :.>j.:J.f>':.. >>n '.':i~:,~>':':<:I.=t';.: ~.~":'.>.:.:. \~'<":."~', .;}.::"ii:..:.,:.::<!...:.i{:.::<.:~:<: . ...._._.,...__:..~...~.....' .', l ",' " ' .i..... ,. ". .~ ..n' , .. ..... . ~ .... '... . _ ~ '.' , . ,,-., DONE AND ORDERED this 28th day of March, 1994, in Tallahassee, Florida. Hearings Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1994. COPIES FURNISHED: David A. Bacon, Esquire Bacon, Bacon, Johnson, Goddard & Moody 2959 First Avenue North Post Office Box 13576 St. Petersburg, Florida 33733-3576 .-- Miles A. Lance, Esquire Assistant City Attorney 'City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Cynthia Goudeau City Clerk City of Clearwater Post Office Box 4748 Clearwater,' Florida 34618-4748 Final Order, Case No. 93-7070 c.c. ~ Scuff S lu~.-ro r-tA. V .. ~ll-e. u l2 '___""'*"_~....,._........:.l\fIIJ'''''''''''''''oto''''t_''''''',,,,c~.. .. .... ,,'..-..... ...... ..........._._.....-......."i_ .' ""_"" ",',;;,' , ,,;,' ,"""',' ""::<L;:!\:,::;':':::..'''::::'.'''i.;~>J..:'';;::2t\:.;''~\:;';.~i'f/;"\..'/~);\">:"'.'::;}:\: '. . ' . ," . .,.. ."" "," ," '/"" ",";3, . , , .=:t... 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