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03/24/1995 (2) . ~. '. . ~ .... ._+'_ ..,_L-.. ~......... .. . - I 't I " ~. '. ' . , , . ~. . > i' , . . . , . . 't- , c I ~ . , . :I. I ' . , , .'~ ,...... . I"., f.. '....,.~~"~..T".'-r.' " '_I' "., ~, > >. . ~ '. . ,_, . TI , .. < f ...HEARING . OFFICER · APPEALS Date . ~ n(}h!j 3 fuftkA wr:J . fJv//1; Tn~. . . (An-JhD?j .Ak'iiOL-0) /Aqtl9 , ' ,..'" -" ',," ' .. ":, "', " '.;';,\", ",." , ..<' "'",:',,~.':,.'.:,..,: :',",,", .:.:>.',;', ',,',:'; ,', ~,; '~"'<:.'~ ':.',:' ':,;';;.:,"">, '~':,',:"';'.I;..:'.' ,:,.:'...','.,:,:'\",,',.': ',':",'.;' .' '.' ,',' "'\:"'j' "c~. ".,:1.'1., ',' '.', <,:\ ,',..' .' "',,,," ,I~.~. I... ';..'," \....,'. ,'.",~':~":','~~',,"'~'i.,..' .... ~""~".'", ..~..',...~:.!~';....., , . ,". '.... .._I_u~,_--.......__'" ...I""~. " .' '...' I t, '" " .. " ", .' .. (}.::, :' ",. l,e:, ",J '.: ,. I: > "~*,; . . . .t"" o PUBLIC HEARING BEFORE A HEARING OFFICER March 24, 1995 - 1:30 p.m. Frenchy's Rockaway Grill, Inc. (Anthony Alexiou) Hearing Officer: Richard Hixson Also Present: Miles A. Lance, Esquire, Assistant City Attorney John Richter, Senior Planner Steve Sarnoff, Central Permitting Specialist Patricia Sullivan, Board Reporter Issue: Petitioner contests the decision of the Development Code Adjustment Board to deny variances of (1) 13.22 ft to permit a lot depth of 86.78 ft where 100 it is required; (2) 8.2 it to permit a rear setback of 6.8 ft where 15 it is required; (3) 14 percent to permit 11 percent of open space for the lot where 25 percent is required; (4) 3 additional parking spaces to permit 0 additional parking spaces where 3 additional parking spaces are required; and (5) 52.14 ft to permit a structure seaward of the Coastal Construction Line to allow an addition to an existing deck at 7 Rockaway St., Miller's Replat, Lots 2-3, together with vacated Beach Dr. on West, zoned CR 28 (Resort Commercial). V 94-63 (~ Appearances: James J. Dowling, Esquire, Attorney for Appellant Michael Preston, Appellant , Harry Cline, Esquire, Representing adjoining property owner (Clearwater Beach Hotel) Appellant Exhibits: 1. 2. Photo of the Subject Property Action Agenda for the August 26, 1993, Development Code Adjustment Board Meeting regarding the Palm Pavilion. City Exhibits: 1. 2. Notice of Appeal, with various attachments, dated November 21, 1994. Notice of Public Hearing Notice and excerpts of the minutes of the Development Code Adjustment Board of November 10, 1994. Variance Application of the petitioner with supporting documents and a map dated November 10, 1994. Staff report of a meeting of August 8, 1991 of the Development Code Adjustment Board. Audio tapes of the November 10, 1994, Development Code Adjustment Board meeting. 3. 4. 5. Mr. Cline's Exhibit: 1. Ordinance #2164 ," minho03c.95 1 03/24/95 , , ",,0:',: ,'" .'., ,"'. ',.'," ,',,,.:",","."',',, >"~::!,::/;:'<.',',,',,:. ',.:.....,,':',:,<,,:,..,,', ,''',:':: ',(,':,.,....;':',,:,:',...-: ,', '.:',:,'.... '.._ ,';... "';:', ,'. ~~i' ';"'l~"'''>''Li''':'''l/'''' ':, ,',', , ',..'" '" ',,: ',' :', ,'t,:':, .,:. '. ' .' ;,: :':",:~"",,' , ';' ~':,"/' ,', ;,:,...,.'" .<...:",,',,:',,",., ,>r'" " ,,"',' "<', ',':," " ::: :': / : r . ',,~,~ , :~. I, . 0, ..._.~;~I:'__"-............:.I~ ....-r~ ;.._ I, . , " " IJ' . ' . I' ' , " I~ Hearing Officer Hixson opened the meeting at 1 :30 p.m. and explained the rules governing the procedures. He requested the record reflect that this hearing was properly noticed and all parties have had the opportunity to be properly noticed regarding this hearing. In response to the Hearing Officer's inquiry. Harry Cline, representing Clearwater Beach Hotel. stated his presence was to oppose the requested variances. Mr. Cline stated his client was not represented at the Development Code Adjusunent Board (DCAB) November 10, 1994 hearing. because the notice, sent to the hotel's Iowa corporate headquarters, was not forwarded in time. James J. Dowling, Attorney for the appellant, objected to the appearance of anyone who is not a party to this matter. Miles A. Lance, Assistant City Attorney, stated this is a "public hearing" requiring notification of property owners within 200 feet of the subject property. If necessary, the City can call respondents as witnesses for the City's case. Mr. Lance did not object to Mr. Cline's direct participation in the proceedings. () Mr. Dowling made an opening statement for the appellant relative to the substance of the variances requested. He stated an application for a Conditional Use permit, submitted in October 1994 for alcoholic beverage sales, was approved by the Planning & Zoning Board (p&Z) and suggested the inquiry into that dedsion was nearly identical to the one engaged in by DCAB. He said at the November 10, 1994 hearing, staff issued a favorable report to DCAB and spoke in favor of the request. No problem was noted until the request was presented to DCAB for a vote. He said no evidence or protests were presented. He claimed DCAB's denial was based on conjecture. Hearing Officer Hixson noted DCAB members had questioned if the request was solely for economic gain. Mr. Dowling said no presented evidence indicated that suggestion was true. He noted, in the same calendar year, the nearby Palm Pavilion was granted approval for a similar, beach front deck and the finding indicated the deck's expansion was not for financial gain but to provide more desirable seating facilities for existing patrons. Mr. Dowling said he copied that information for this petition and suggested DCAB acted capriciously by denying this request. Mr. Lance made the opening statement for the City and reviewed the jurisdictions of the P&Z and DCAB. He said DCAB denied the request for variances because the four Standards of Approval were not met and because of economic circumstances. He suggested the only reason to add a deck to an existing restaurant is to make money. Mr. Lance noted the restaurant previously occupying the subject property had an illegal deck made legal by variances granted by DCAB in 1991. He stated the five variances sought are substantial requests. DCAB indicated the proposal would overwhelm the property's development and violates the general spirit and intent of the land development code. Mr. Lance said this evidence was competent and substantial and DCAB has the right to evaluate it. He said the appeal raises issues not pertinent to the decision. Staffs recommendations are considered as input by DCAB prior to reaching decisions and DCAB has the right to ignore staff recommendations. J Hearing Officer Hixson noted, for the record, Mr. Dowling's objection to Mr. Cline's appearance and participation in the proceedings. Mr. Dowling said he objected because; 1) he did not think anyone should be permitted to intrude on these proceedings; 2) Mr. Cline is a surprise witness; and 3) Mr. Cline's testimony is not relevant to these proceedings. He stated the decision was already made and this hearing was to determine the lawfulness of that decision. Hearing Officer Hixson stated the public is notified under code and is entitled to attend and provide input to the proceedings. ~ minho03c.95 2 03/24/95 1,':,'":,_,, ,',' ,',,'0," .:','....'1" ,',>,1",', ,,'. ,( .:' '..',':'; ':",::, ;," ,:,:,,' ,:;:",:,<:,:'<,", ,:"'.': '"" ," ,', '" I ': ", ',',':,'" :,,', ::::" ,',,:': ,,' ,,' ,~' ~,:"'" :.,., "':~ ':, ' ," ",' ';,' ,;,::,:~',:,::,:~.. ':::"\':<'~;,',', ~",:',,:,:>,,',',,::", .':" ~ :;~::" ',:',: ...:':' <:',':':'... :"'~3" :: ' ,: ~ ' :} ," '~I:':'I ',', ',', :' ": '.: ',:~', ".',':' <,' :^,: ~ " ::'. :,' " " ' \' ' , " .. ,,',"=t, 'I' U.., ", ' , " , ' \ .,.' . ", :, .',1:" ...' r,." ,:, L' . ,~,." /.\'"I:~ " " " . " ',\,~~l, . I I~':I, ". ' .'" ~: ".'.',', '. ..'.~ ....~._.:........___...~_..... ~~ - -""'''' ' , I"'" ',' ',' 10- .' , .' .\ (~ I Mr. Cline said the burden of proof is on the applicant to provide DCAB with sufficient evidence and felt the request meets none of the four Standards for Approval. He expressed concern regarding the adverse impact the proposed deck would have on the adjoining Clearwater Beach Hotel. He felt this matter was not properly before DCAB or the Hearing Officer because the property is not zoned CTF-28, as represented in the application and accepted by the City. He filed a certified copy of Ordinance #21-64 regarding the rezoning of this property. He said the applicant owns Lot 1 and land lying west of Lot 1 in Miller's replat. As the zoning is bounded by the lot line, he said the property under review is zoned Open Space Recreation and this proposed use cannot happen there. Appellant Michael Preston indicated he purchased the restaurant in August 1991 after the current deck was constructed. He wanted to add decking to fulfill a public need and address two hour waits for deck seating. He said the additional seating would affect his kitchen staff more than provide him with economic gain. Mr. Preston said the setting is unique and he did not think a larger deck would negatively impact anyone. He said the Clearwater Beach Hotel had never voiced any objection to the proposal. He noted the money spent by restaurant patrons on City parking meters and tickets. He said his restaurants are an asset to the City and indicated his wish to work with the City. Mr. Lance noted Charles and Ypapanti Alexiou, owner of the property, applied in July 1991 for variances: 55.5 feet to permit a deck seaward of the Coastal Construction Control Line (CCCL); a 15~foot variance to permit a deck zero feet from the street right-of-way; and 3) 7 parking spaces to permit a 1,338 square foot deck at 7 Rockaway Street. Mr. Preston agreed variances have been granted for this property in the past, including one for an awning. He agreed the variances would help increase his business and indicated he knew DCAB would make the final decision regarding his variance requests. Mr. Preston indicated he knew he would have to present his case to DCAB but f;~ said he was not aware of the four Standards of Approval. He agreed his restaurant has live . .",.,'" entertainment and outside music although outside speakers and entertainment are limited to daylight hours on Saturdays and Sundays. Mr. Preston agreed the sounds can be heard next door at the Clearwater Beach Hotel but noted he has never been cited for noise ordinance violations and the hotel has not issued complaints regarding the restaurant's noise level. Senior Planner John Richter reviewed the procedure for requesting a variance. He indicated applicants are required to sign the application page listing the four Standards of Approval. Mr. Dowling said he had no question regarding procedure and stipulated he was aware of the Standards of Approval, the requirement regarding the burden of proof, and stated staff had provided that information. Mr. Richter said the property is zoned Resort Commercial 28. He stated staff recommended approval of the variance subject to five conditions because staff felt the request met the Standards for Approval. He agreed DCAB has the right to disagree with staff recommendations and they voted to deny the requested variances by unanimous vote. He stated DCAB members are permitted to exercise their judgement and discretion and reach decisions based on the four Standards of Approval and the property's history. He said the property is nearly fully developed and the purpose of the land development code is to manage development consistent with the City's public health and safety objectives. Mr. Richter said it was unlikely recorded violations by the previous business affected DCAa's decision. Steve Sarnoff, Central Permitting Specialist, said the property is zoned Resort Commercial~28 and not Open Space Recreation. A scrivener's error, caught during a 1989 case involving the Clearwater Beach Hotel, resolved a dispute regarding the vacation of a street right-of-way named u minho03c.95 3 03/24/95 .' .' :._. ," ,;:,', "" ,,' :',' ',':',"', ','" " :,<,:,:,: ,~, '<';';""'.':'!:,',"',~,i';", ,,': '::,',~ ''-., ,:,' ," '.:, ',,"", .",,",',,:',' '~.,. .:,' , ':;': :',i'{,',:' "':~:"''':. ::.:."...'~~', , , " , " ',,' ,':',', ," ".'..... . :"R' ,.' "~3' '. ..... ,~,'; '. ',.,;,' '." ' " " ' ,', ". ~,~:"':"",:',,"':',,',..:',:',,':,,"..,:',:,'~' ,':',':,' "',: ,,' ":,,'~,, "{,,' ,",';';<.:":,':'..,'"',:'::',..:,,',, . ~ ",'.. . 1\ ", ',,' '. " . , '. . ~ . " \, '~ ' j " . '.':1." .' I, ' , ~":,,, I; . ~. , .' , . , , . , ~ ...-.....: .'.. , " . ......' .,.f-..:.' ,<.......~...:..."'__~.,..'-_~......~,...~. i ' ' '.': . .' ~., .,',' ..".., ~ Beach Drive, which, in the 1925 Clearwater Park Subplat, was created as part of the Clearwater Park () Subdivision. When that street was vacated, the 40~foot wide right-of-way went to the adjoining property owners and was included as part of their property. Surveyor Leo Butler's replatting of part of the area in 1947 is known as the Miller Replat. Mr. Butler noted the Beach Drive vacation but did not add the 40 feet to the length of the Subplat in his drawing. The intent was to zone private property on the upland, Commercial Resort, and zone the land between that point and mean high tide as Open Space Recreational. Mr. Sarnoff said this error was corrected in later atlases. Hearing Officer Hixson indicated he would listen to the tape of the November 10, 1994 DCAB meeting. He denied Mr. Cline "party status" but permitted him to present testimony. Mr. Cline indicated the Clearwater Beach Hotel attracts mature, older guests. He said the requested deck is "an empty beer cup toss'" from Clearwater Beach Hotel's wall where the property's more expensive rooms are located. He estimated the deck would impact between four and six rooms. He stated a six-foot wall is meaningless as the hotel's second floor starts at 10 feet. He expressed concern the proposed addition would adversely impact the hotel property. Mr. Cline suggested the applicant did not meet one Standard of Approval. He noted the restaurant property was permitted to operate outside City code by earlier approval of variances. In 1991, he had objected to a request to expand the illegal deck to 1,300 square feet and noted this request is for 1,600 square feet. He expressed concern regarding problems for the Clearwater Beach Hotel if the deck expands closer to the hotel's property. r:J Mr. Cline indicated he was the attorney for the deck expansion at the Palm Pavilion, which is surrounded by parking lots and beach and is not contiguous to residentially used properties, like a hotel. He said that request was for a new deck, approximately the same size as the current deck at the subject property. The Palm Pavilion property is two or three times larger than the subject property and the deck is totally within its property lines. Mr. Cline suggested the maps are not the controlling document regarding the property's zoning; the ordinance is the controlling document. He said the property line for Lot 1 is the divisional line between building and deck. He suggested the entire deck is seaward of the platted lot line. He agreed the restaurant property owner owns that land but did not think it could be built on. He suggested the case should be dismissed without jurisdiction. He noted no testimony was presented to support this request. Mr. Cline suggested the purpose of the application is for economic benefit only. Mr. Dowling objected to the motion to dismiss. The Hearing Officer stated the participants have 14 days to submit their recommended findings and proposed final orders that set out their recommended findings of fact and conciusions of law. He requested Mr. Cline submit his findings via memorandum, rather than a proposed final order, with copies to all parties. Final summations were waived. The parties agreed to an extension of the 14-day submission schedule to submit their findings. Hearing Officer Hixson requested the parties notify him of the proposed date and stated the order will be sent within 15 days of the materials' submission. Proceedings were concluded at 2:53 p.m. by Hearing Officer Hixson. .. ~ .j~ W minho03c.95 4 03/24/95 ""." ,,:, ; \'1" " , '.,,'. ..",....;,:',;:,':'~:r;S;:;:,.:,' , ','. ".' ',' " ,', , '...... :"', .,,: ":.' ,;, ,"I' " ,;~.: ::,.;',:'>"::,.,.<.:,:, i~',:'::.", _"'"1''''''''''' ,,'.,,",,',.,\'"', " ' ,( , " ,,":,\,~< l....::~::~...: oj' ,': -';"0'" ' ", Y" .. ,:' "'~3' " .....3. ',\ ,', ,."',',;,," " ,", l,,', '... " l. .', 1'.1 '~,' '.' ::<,,~"\ 1...'.&.',',,", "', ::":'~ ':':,,':' : ,":;', '":,":";,;::':","',:',,::':,~;',, < \'. I ' . . . ."'" I. ,. ., , . ;, " <, I ..' 1 . .:...-.r.. \ , .)\.........',~., '~ ~. .:.' ,'.." ';. .' '.~ , .,.~" \ ~, . t") STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS RECEIVED MAY 0 8 1995 Frenchy's Rockaway Grill, Inc. , ) ) ) Appellant, ) ) VB. ) CASE NO. 94-6776 ) City of Clearwater, ) ) Appellee. ) ) CITY CLERK DEPT. FINAL ORDER Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Richard Hixson, held a formal hearing in this case on March 24, 1995, in Clearwater, Florida. APPEARANCES , ' o For Appellant: James J. Dowling, Esquire 1151 Tampa Road, Suite C Palm Harbor, Florida 34683 For Appellee: Miles A. Lance, Esquire City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 :.. STATEMENT OF THE ISSUES The ,issue in this matter is whether the evidence sustains I ~: the decision of the Development Code Adjustment Board of the City of Clearwater denying the Appellant's request for five variances required for the expansion of an existing deck. PRELIMINARY STATEMENT \,' On October 6, 1994, Appellant filed its request with the City of Clearwater, Development Code Adjustment Board (Board) o seeking approval of five variances required for the proposed ", I '!' 'I', '. :.... . ;'..i':,~!(:':,:;;),'\;<;:://..::i":' -'. \'.'. ... , . .. .. '~ l'..". '.:':. :,,~ J ',....', t".' ~. :.\ ,. """ . <,',_/''',' ":<"/-1'.'..~, ~' .. '. .._ .' ':: I::"",.~"",.>':,::,'.:.:...", " . ; :' r ." l' 'I . . ,', ~,,(', ',' ,," " , ", , ,,' .',:,i"",,,:" ':',1', ',",'.~ ' , ,>, . ~,':::':',::-.:,:,':;';'::'::~;,~;:>',: " :,:,' .....::, '. .:'}':'.,':'g,...... .\.').:.::': .... "'</'>'.. " " , ',' I, , : c," ',', , '. I \ ~ . . I: .' , o ::l V j a :J ~~ ff 2flt'~:f~sf~l~ of application :f'lBu 1i:~~J;) YTD conditions. an existing deck. The Board's staff reviewed the ,~y."- and recommended approval subject to certain The matter was duly noticed and considered by the Board at a public meeting held on November 10, 1994. At that time the Board staff presented the application and staff recommendation. Counsel for Appellant appeared in support of the application. No other person appeared before the Board regarding the application, and no letters in support of or in opposition to the variance application were filed with the Board. At the meeting, members of the Board expressed concern as to the number of variances requested, the precedent which might be established by the approval of the application, the economic motivation for the application, and whether the variances would meet the general purpose and intent of the City of Clearwater's Land Development Code. The Board, by unanimous vote, denied the application. On November 21, 1994, Appellant filed a timely Notice of Appeal, and the matter was referred to the Division of Administrative Hearings. At hearing on March 24, 1995, the record before the Board was received in evidence. The record before the Board consists of the following: 1) the Notice of Appeal with attachments; 2) the Public Hearing Notice for November 10, 1994, and excerpts from the Board's meeting of November 10, 1994; 3) the Variance application and supportincl documents; 4) the Staff Report and Recommendation, including excerpts from the Board's meeting of August 8, 1991; and, 5) the tape of the Board's meeting of ~,.J November 10, 1994. 2 ~ o o " . '.l '.- ~. '.. ......., >". " l . In addition to the record presented before the Board, Appellant introduced two exhibits, consisting of a photograph of the subject property and the July 13, 1993 variance application for Palm Pavilion of Clearwater, Inc. which was previously approved by the Board. Appellant also presented the testimony of Michael Preston, president of Appellant. The City of Clearwater presented the testimony of John Richter, a senior planner for the City, and steve Sarnoff, a central permitting specialist for the City. Also appearing at hearing was Harry Cline, attorney for Hunter Hotel Co., (Hunter), the owner and operator of the Clearwater Beach Hotel, a contiguous property to the south of Appellant's establishment. Counsel for Hunter made an ore tenus motion at hearing to intervene as a party in the proceedings on appeal. Appellant objected to the motion as untimely and prejudicial, and the motion was denied. Counsel for Hunter was, however, permi tted pursuant to Section 36.065, Ci ty of Clearwater, Land Development Code, to present his own testimony and to introduce one exhibit consisting of City of Clearwater Ordinance No. 2164 which was adopted October 2, 1980. Counsel for Hunter also suggested a lack of jurisdiction on the grounds that this proceeding was improperly filed and received. Ruling on the suggestion was reserved. On April 18, 1995 the parties, as well as Mr. Cline, as counsel for Hunter, filed proposed findings of fact and conclusions of law. No transcript of the hearing was filed. 3 :',,'...,,',~.,:,:',,~,,'::,;;',',,:,:.:":,'..,,;:,~',.'~,.":",':,'r":.:,~~,~~"~.".,:;::,:,,,:,':,~,.,""P;:::".':':":,::':,"l:::"',:,'::,':,',,::.:".::,',,':',::.",:,~~:,.::.:.':."~.,':~:,,':::,:;':;',,.~...."'f;'::':::,\,:.;."'.,':':',,',:,;.:,,::,'\:',.',',\:':',.':,':,i,:'",_~,.',',,':~,',',".,',:.;,.,,',:,",..:'.,',,:',',:':'.,~~:;,,",',',\,.::';;;...;;":~~::":,,':'::'. .,'".:,::,:'"'.,,:'.,,:,,,':.,,;,,~,":,j,'.:.,":',.,,'.:':>. ,",,:' ~ ... .' I' . . , I' l ... ~. l . I -. ., , .. , ,,' _'(.i\(:';;;,~;:~:;~\i'(;(;'~1;i'}~)t;:~;::};)\~.:;():~!g<~fl ~ '\. FINDINGS OF FACT 1. Appellant, Frenchy'sRockaway Grill, Inc., is the owner and operator. of a restaurant and alcoholic beverage establishment located at 7 Rockaway Street, Clearwater, Florida. Appellant ,purchased the property in 1991. Michael Preston is president of Appellant. 2. Appellant's establishment is immediately adjacent to the Gulf of Mexico and Clearwater beach on the west, to the north is a public parking lot, to the east is a motel, and to the south is the Clearwater Beach Hotel, which is owned and operated by Hunter Hotel Co., as indicated above. 3. On the beach side of Appellant's establishment there is an existing 972 sq. ft. wooden deck. The existing deck was initially constructed on or about 1987 by prior owners without receiving appropriate variance approvals. Subsequent alterations to ,the deck occurred between 1987 and 1991, also without appropriate variance approvals. 4. In 1991 Charles and Ypapanti Alexiou/Anthony Alexiou, former owners of the subject property, filed an application for variance approval with the Board seeking three variances relating to the construction of the deck at the 7 Rockaway establishment. Specifically, the variances sought were: "1) 55.5 ft. to permit deck seaward of the coastal construction control line; 2) 15 ft. to permit a deck zero feet from a street right-of-way; and, 3) seven parking spaces to permit a 1,338 sq. ft. deck at 7 Rockaway Street, Miller's Replat, Lot 2 & vacated beach Drive on Wand Lot 3, zoned CR 28 (resort commercial) & OS/R (open space ." , " " ."1 ,,' ," , , , , , . I ~. I :, . ~ .' "11 " ~:.\ 'J :. '. ~ 'I " '" .' , ,:' ...., ......'. ....'.' ""':1'," 't" 4 ".' . <.;\ : " ...' . to" ). . I' ...:.'/.: :~. ''''l.< ~ .. . . ." I"' . ~:'. .::.: . . . I ,", ' . ~ ~-:.:. ',I',':", ' 1""'"' \ y ,~ .. '~ 'i, " . i::J .".: " ' " i' . " , . 1~' I,' ; o ,.' " . .' . .' t I ~~l ~~ . . ..... .. .. recreation)." At public meeting on August 8, 1991, the application was considered by the Board. At that time Mr. Cline, as counsel for Hunter appeared in opposition to the application stating that approval of the variance requests would adversely impact the Clearwater Beach Hotel, that the request was for economic gain, that any hardship was self-imposed, and that development and traffic in the area was already heavy. The Board, however, granted the variance requests as to variances #1 and #2., and as to the third request, the Board denied the proposed 1,338 sq. ft. deck, but approved a variance of five parking spaces to permit the existing deck of 972 sq. ft. S. On or about July 13, 1993, a variance application was filed with the Board by Howard G. and Jean B. Hamilton and Palm Pavilion of Clearwater, Inc., seeking approval of four variances required for an 800 sq. ft. expansion of an existing deck at a restaurant at 10 Bay Esplanade, Clearwater Beach, Florida. The Palm Pavilion applicants were also represented by Mr. Cline. Like Appellant's establishment, Palm Pavilion is a beachfront restaurant, which is located directly across the public parking lot to the north of Appellant's establishment. Unlike Appellant's establishment, Palm Pavilion is bordered by parking to the south and the east, and is not immediately adjacent to other buildings. On August 26, 1993, the Board granted the Palm Pavilion variance application for expansion of an existing beachfront deck with certain conditions. 6. On October 6, 1994, Appellant submitted its application to the Board requesting five variances required for a 650 sq. ft. 5 . . ~, "';" ',:;~:, ,':: .,': .""'): ~..:~ .~:, :: ':': :,: :.',:: ,,:':',~, ':~':..::.;:,': :: :',:~.::::;~; ;,:;.,.~:,'~,:;\:;,: ::';?~'/~, .:::,:.~::;:.:):."'~::::'.',~r~.,,~:.~:~.,'~:~~,:;:,'~':::~'.:';':'~>:::::::::.:.)J'.:.).:::,~::;:i::';~:,::~.;!~ ~;::?~:i:~':;:;:~'::':~\:: :,: ~'/:':.::::\,'~~:, ,t~:: ,',., "';,' ,'" '\' " ,"'. ,,'.',.".......', .,'.".'..t~.,:.,.:...::i'.,.....".L!J..,'~.,',.........,....~":.......,.I. ,";' r'"., ,::,(:~;,(, ~.:,.':.:,:::'~',;~:;:;';<:>:':/ ' ;\::;:::~:,::~\:,':',,,:'~' ',:';' :/,:\f,,~~:: '~m:~.::;~:. .;, :>::J:,:":.:.:',:\i(:,:~.:t~,:~.:~,:>i;;..::,'(,:.:~~':,:':'\':<.;/::~":";:">'::':~,~;;.:~;~/'i.':'.; " ;':',:1\' ,I ,.' expansion of the existing wooden deck at 7 Rockaway Street. Specifically, the variances sought were: 1) 13.22 ft. to permit a lot depth of ,86.78 ft. where 100 ft. is required; 2) 8.2 ~t. to r, " ;I:t"- permit it a rear setback of 6.8 ft. where 15 ft. is required; 3) 14% to permit 11% of open space where 25% is required; 4) three parking spaces to permit zero parking spaces where three additional are required; and, 5) 52.14 ft. to permit a structure \ ", seaward of the coastal construction control line. .; ( .' ~ 7. The subject property at 7 Rockaway Street is properly < ~: zoned CR-28 (resort commercial) . Any s cr i vener ' s error indicating that the property is zoned asc (open space recreation) " "", I, : has been corrected. B. Appellant's restaurant, Frenchy's Rockaway Grill, is a , , popular beachside establishment. It is one of very few ~ I . I " freestanding restaurants fronting the Gulf of Mexico on J.::.. " Clearwater Beach. Some patrons particularly enjoy dining on the open air deck adjacent to the beach. During peak hours, there is .;. . ~ ", often over an hour's waiting time for tables on the deck. ,P 1,' !.... Appellant is currently unable to accommodate the demand for . .' I 'c''.:":' ..... ,\ seating on the beachside deck. Appellant would sustain an :~. I " ," , " ," ..' ~ . economic benefit if more patrons could be accommodated on an : "I expanded deck. Because of the size constraints of the lot and the establishment's location directly on the beach, development and improvement of the facility is highly restricted. :,',:.: " .. .:'1: " , , , . 'I" ': .\: 9. The back of some residential rooms of the Clearwater ',\ :,': Beach Hotel are immediately adjacent to the south of Appellant's I.: ~ ~ " , establishment. There are small bathroom windows from these w .,' I " ' . \.' 6 'r ~ . . I ..,: . ,,' . " ~. :', . . "':" .: :',,: :,:.... '. I, ,'. I ~ .,.:....,'.. ::,\":">':':'>.':':::':'/\',~,':'.,',;'.~,:,,: ':'~~,J,<::..<'~'. ' .. , " ",.', \,.., ',' , ' " " " ",:.." ,"" ' , ,,';,::'Y:\;}''.';\I:'?',;}~\.,/;!?'/':,~:,.?;''~'\;::'3''\;.cF'.\:'.i~::L;(.;:i;"i'i'\.'/:;:f ..' . "' ,t " I.... ;. ~.: ~.. '. '.::' ',' , , r, o .;) " ,", . residential rooms that face Appellant's establishment. Appellant's proposed expansion of the open air deck would place the proposed deck in very close proximity to the back of these residential hotel rooms. 10. The City's staff reviewed the Appellant's application and recommended approval with the following conditions: 1) the applicant shall obtain the requisite occupational license within 12 months; 2) the applicant shall obtain the necessary building permit within 6 months; 3) there shall be no outdoor entertainment and no outdoor speakers; 4) the applicant shall obtain the requisite alcoholic beverage separation distance variance from the City Commission. Appellant agreed to the conditions recommended by staff. The recommendations of staff are not binding on the Board. 11. In addition to the application for the five variances filed with the Board, Appellant also filed a conditional llse request with the Planning and Zoning Board. The conditional use request was approved on September 13, 1994, and imposed certain other conditions including the construction of a six foot wall on the south side of the proposed deck to buffer the adjoining hotel. Appellant agreed to the conditions imposed by the Planning and Zoning Board. CONCLUSIONS OF LAW 12. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida statutes, and Section 36.065, Clearwater Land Development Code. In this 7 respect, the suggestion of counsel for Hunter to dismiss this appeal as improperly filed on the grounds that the subject proper~y is zoned OSC (open space recreation) is DENIED. 13. Pursuant to section 36.065(6)(c), Clearwater Land ,- , , ~ Development Code, the Appellant has the burden to show that the decision of the Board cannot be sustained by the evidence before the Board and the hearing officer, or that the decision of the Board departs from the essential requirements of law. 14. In order to meet this burden, under the provisions of section 45.24, Clearwater Land Development Code, the Appellant must show that the application and the evidence clearly support each of the following standards for approval: (1) There are special circumstances related to the particular physical surroundings, shape or topographical conditions applicable to the land or buildings, and such circumstances are peculiar to such land or buildings and do not apply generally to the land or buildings in the applicable zoning district. (2) The strict application of the provisions of the code would deprive the applicant of the reasonable use of the land or buildings. (3) The variance is not based exclusively upon a desire for economic or other material gain by the applicant or owner. (4) The granting of the variance will be in harmony with the general purpose and intent of the land development code and comprehensive plan and will not be materially injurious to surrounding properties or otherwise detrimental to the public welfare. 15. As to the first standard, the application and the evidence clearly reflect that the Board in 1991, by approving the previous variances requested for the subject property, already y 8 " t;) \J " ." " has reeegnized and concluded that there are special circumstances relating to the subject property which are equally applicable to the variances now requested. 16. As to the second standard, the application and evidence likewise reflect that the expansion of the existing deck is a reasonable use of the subject property, and that strict application of the provisions of the code would deprive Appellant of such reasonable use. The Board similarly found this standard had been met in approving the 1991 application. 17. As to the third standard, the application and the evidence show that while Appellant wou~d sustain an economic benefit from an increase in the ability to serve more patrons on the expanded deck, there is also a benefit to existing patrons to be served in a more efficient manner. The evidence reflects that the Board in approving the 1993 Palm Pavilion application for variances found that providing better service for existing patrons was sufficient to meet this standard. Accordingly, the variances are not sought exclusively for economic gain; 18. As to the fourth standard, the application and the evidence show that the expansion of the Appellant's existing deck would bring the proposed deck in very close proximity to residential rooms of the Clearwater Beach Hotel. In 1991, the Board denied the Alexiou application for variances to allow for a 1,338 sq. ft. deck at Appellant's establishment. In this respect, there is a material distinction between Appellant's application and the 1993 Palm Pavilion application in that there are no residential buildings adjacent to Palm Pavilion. Under 9 the provisions of Section 45.24, City of Clearwater Land Development Code, Appellant has the burden of presenting evidence that clearly' supports the conclusion that granting of the requested variances will not be materially injurious to the ~ ," , surrounding property. The evidence presented fails to demonstrate that expansion of the existing open air deck to' a very close proximity to the adjacent residential rooms of the Clearwater Beach Hotel will not create an additional disturbance and therefore be materially injurious to the surrounding property. Accordingly, Appellant has not met its burden as to the fourth standard. 19. Appellant suggests that the decision of the Board departs from the essential requirements of law. It is an essential requirement of law that persons receive treatment equal to others similarly situated. Gessler v. Department of Business and Professional Requlation, 627 So.2d 501 (Fla. 4th DCA 1993). In this respect, the Board approved a similar variance application for Palm Pavilion in 1993. As indicated above, however, there are material differences between the nature of the surrounding properties that distinguish the two applications. Accordingly, the Board decision in this matter does not depart from the essential requirements of law. 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 Appellant's application for variances is AFFIRMED. ~.,J 10 . . "." .".'. _...._._...~....__... .'~, I... . " ~. ,\ ~ . r \' ....!(II. '.. ......L.I.>~~ .'" ..>I...;:'f1"l~:{~.:"1.t~~,.-::""~,,,~ ';'. ';\ I ~'\'"j~:~ r':)"';" :. '...... '.'.1 ' .. t.. . . . RECOMMENDED in Tallahassee, Leon County, Florida, this ~ ~ day of May, 1995. ~~D4x::f/ Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this ~ day of May, 1995. COPIES FURNISHED: " , 'James J. Dowling,'Esquire 1151 Tampa Road, Suite C Palm Harbor, Florida 34683 o Miles A. Lance, Esquire City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Harry S. Cline, Esquire Post Office Box 1669 Clearwater, Florida 34617 Cynthia Goudeau City Clerk's Office City of Clearwater Post Office Box 4748 CleaFWater, Florida 34618 '. 11 '! :",...','_' . '. .... " ",~,,:\:,",:i I ,",;i":,' ;:":,,:':: " "', ," "'", ' ",~:J, "U, ,,,U, LJ", ',' ,,'ij " ".'. .,"",:,':-,..." ,",:> "';' "',' "... ''',', ~, '..:::J,',',~'",'-.~':,' ".,,:,,:.l] '..:,',',. \" ,',.' "",d '/.""