04/13/1995
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OFFICER.
APPEALS
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PUBLIC HEARING BEFORE A HEARING OFFICER
April 13, 1995 ~ 9:00 a.m.
Jonathan O. & Merrill S. Hanke
(Fred M. Judy)
Hearing Officer:
Arnold H. Pollock
Also Present:
Paul Richard Hull, Assistant City Attorney
David Scott Shuford, Director, Central Permitting
Sally A. Demarest, Board Reporter
Issue:
Petitioner contests the decision of the Planning and Zoning Board (P&Z) to
permit vehicle service at 1139 Eldridge Street, New Country Club Addition,
Part of Blk D, zoned IL (Limited Industrial) CU~94~82
Appearances:
Harry S. Cline, Esquire, Attorney for Appellant
Leo DeRoy, .Tr., 'Verner~Donaldson Moving Services, Appellant
John Alexander Skicewicz, P. A., Representing Respondent
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Petitioner Exhibits: WD~ 1. Map indicating parking on the subject property
WD~2. Photographs of adjoining properties (marked A through J with
the exception of F)
City Exhibits:
1.
2.
3.
4.
Zoning map of subject property for conditional use request
Aerial map showing location of the premise and neighboring uses
Standard conditions of approval, nos. 1 through 6
Application, map, and transmittal coordinations
by Messrs. Garriott & Merrians
Audio tape of the October 18, 1995 P&Z meeting, verbatim
5.
Mr. Skicewicz' Exhibits
8 I. Photograph showing similar neighborhood uses
B2. Photograph showing concrete wall construction and roof trusses
83. Photograph looking into driveway of appellant
84. Panoramic photograph sheet
85. Page of two photographs viewing parking lot
Hearing Ofticer Arnold Pollock opened the public hearing at 9:05 a.m. He explained the
rules governing the procedures and indicated this matter is identified as State of Florida, Division
of Administrative Hearings, case #94~6392. He requested the record reflect that this hearing was
properly advertised on April 3, 1995 and all parties have had the opportunity to be properly noticed
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hrg0413.95
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04/13/95
Mr. Cline made an opening statement for the appellant relative to the substance of the
variances requested. He stated the original application for n conditional use permit called for an
automobile repair shop use on the property. Mr. Cline described the premises of both the appellant
and respondent and claimed the board's decision was contrary to the weight of the evidence and
required code standards were not met, quoting code sections 41 .053 (30d), 42.21 (5c) and 42.34 (3b).
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regarding this hearing. The hearing officer acknowledged receipt of the tapes, applications and
excerpt of the P&Z~ October 18, 1994 meeting.
In his opening statement for the City, Assistant City Attorney Richard Hull testified this
matter was heard by the Planning & Zoning Board (P&Z) of the City of Clearwater on October 18,
1994 as a conditional use request, initially filed by Johnathon and Merrill Hanke as CU 94-82. Fred
Judy was later substituted as applicant and subsequent purchaser of the property. The original
application was to permit vehicle service. No one appeared in opposition to the application at that
time, and after hearing the testimony of the applicant and recommendation of City staff~ the board
approved the request subject to conditions as indicated in the minutes of the October 18, 1994 P&Z
meeting. Mr. Hull confirmed that it was the City's position that the board's action in approving the
request was proper, the conditional use permit meets the standards required for approval as set forth
in the Code of Ordinances, and requested that the board's actions be affirmed.
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Representing Fred M. Judy, the respondent, John A. Skicewicz, P. A., referenced Mr. Cline's
letter of October 28, 1994. He opined the proposed 5-bay auto repair use is less intensive than the
fanner 10,500 square foot woodworking or machine shop manufacturing facility. He pointed out
that the neighboring property owner, appellant Werner-Donaldson, has unsuccessfully attempted to
purchase the subject property in the past.
In direct examination, Leo P. DeRoy, Jr. was sworn and said he is the Controller of Werner-
Donaldson (W-D), the appellant. He affirmed that W-D owns the property on both sides of the
subject premise, from Eldridge Street through to Maple Street, and described the structures pictured
in the photographs offered in evidence. He cited fire safety, property devaluation and traffic
concerns, adding their opposition to the original application was not filed because the notice was
misdirected to W-D's Pittsburgh office.
Cross examining, Mr. Hull determined that the W-D property had not been appraised to
verifY actual devaluation. The hazards inherent with the National Guard Armory. fuel service site,
lumber company trucks and forklifts, and possible Florida Power substation fire risks were
established by Mr. Skicewicz. Objection by Mr. Cline to the statement of intent of the appellant to
purchase the subject premise was noted by the Hearing Officer. Nearby auto repair businesses were
enumerated.
Mr. Cline declined re-direct examination.
In direct examination for the respondent, Central Permitting Director David Scott Shuford
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testified he appeared before the P&Z on October 18, 1995 and described the review staff conducted
in this case. He said this auto repair business is an allowed conditional use, and cited permitting
standard conditions and staff comments. He quoted City codc sections 44.21 (4b) and 42.34 (3c),
and cited lack of opposition to the original application and unanimous approval by the P&Z on
October 18, 1994, subject to conditions. He statcd an inspection by the City Fire Marshall is
required before a certificate of occupancy is issued.
At this point Mr. Skicewicz relayed that he was a commercial real estate broker and did not
have attorney status. Hearing Officer Pollock waived the provisions of rule 120.57 regarding
representation and said he would apply the City's rules. Mr. Cline objected to Mr. Skicewicz'
signature on the original application without official authorization and moved to dismiss; the hearing
officer replied that he did not have the authority to dismiss. The hearing officer ruled that evidence
for both sides would be taken for the record, and asked counsel for both sides to submit veto
authority as to the position that each side takes and will conclude his determination of Mr.
Skicewiczts authority to represent in his Order to the City.
The meeting recessed at 10:53 a.m. and reconvened at 11 :00 a.m. in an attempt to locate a
power of attorney from the Hankes to Mr. Skicewicz; staff was unable to locate the authorization.
The hearing officer indicated if the document were not found, a post-hearing submission would be
required. He ruled Mr. Skicewicz would be allowed to testify today and represent the respondent
as well.
Continuing, Mr. Shuford explained pennitted uses for IL zoning and described the subject
neighborhood. He quoted City code section 35.11; and supplementary standards for approval section
41.05 (30d). He identified neighboring uses on the aerial map, city exhibit 2.
At the conclusion of Mr. Shufordts testimony, the City rested its case.
John Alexander Skicewicz was sworn and testified he lives in Belleair and is a registered real
estate broker. He submitted photographic exhibits of the subject building and neighborhood
properties and described each picture in detail. Responding to a question from Mr. Cline, Mr.
Skicewicz testified the previous owners of the property used a torch during lamination processes and
pointed out the structure's concrete fire walls. He said he had no interest in the property other than
that of a real estate broker.
Hearing Officer Pollock said he would submit a recommended Order by May 12, 1995, and
requested the parties submit to him any pertinent material within 15 days. He asked Mr. Hull to
locate the original authorization as discussed and forward it to him. Final summations, oral or
written, were waived. The hearing officer indicated that copies of the final Order will be sent to all
parties.
There being no further comment, the hearing officer concluded the public hearing at 11:53
a.m.
hrg0413.95
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RECEIVED
MAY 0 8 1995
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CITV CLERK DE".
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JONATHAN O. & MERRILL S. HANKE, )
)
Petitioners, )
)
VB. ) CASE NO. 94-6392
)
CITY OF CLEARWATER, )
)
Respondent. )
)
FINAL ORDER
A hearing was held in this case in Clearwater, Florida on
April 13, 1995, before Arnold H. Pollock, a Hearing Officer with
the Division of Administrative Hearings.
APPEARANCES
'0
For the Petitioner:
John A. Skicewicz, P.A.
Qualified Representative
1988 Gulf to Bay Boulevard
Clearwater, Florida 34625
For the Respondent:
Miles A. Lance, Esquire
Paul R. Hull, Esquire
City of Clearwater
Post Office Box 4748
Clearwater, Florida 34618-4748
. For the Appellant:
Harry S. Cline, Esquire
MacFarlane, Ausley, Fergusen
and McMullen
400 Cleveland Street
P.O. Box 1669 (ZIP 34617)
Clearwater, Florida 34615
STATEMENT OF THE ISSUES
"
The issue for consideration in this hearing is whether the
decision of the Clearwater Planning and Zoning Board to issue a
conditional use permit to do automobile repair work at the
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.Tt"'itl'~.pperty located at 1139 Eldridge street in Clearwater to
Petitioners should be upheld.
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PRELIMINARY MATTERS
Petitioners applied for a conditional use permit to do auto
repair work at the subject property. The matter was considered
by the City's Planning and Zoning Board on October 18, 1994, and
thereafter, the Board granted the permit subject to certain
conditions. On October 28, 1994, Werner-Donaldson Moving
Services, Inc., appealed the Board action and this hearing
ensued.
At the hearing, the Appellant presented the testimony of Leo
P. DeRoy, Jr., the company comptroller, and introduced Werner-
Donaldson Exhibits 1 and Composite 2.
The City of Clearwater
.'.,....
presented the testimony of David S. Shuford, its Director of
Permitting, and introduced City Exhibit 1. The Petitioners, the
Messrs. Hanke, presented the testimony of John A. Skicewicz, a
registered real estate broker, and introduced Petitioner's
Exhibit B. Petitioner's Exhibit A was offered but rejected.
Petitioner's Conditional Use Request, in issue here, and the
attachments thereto, were admitted by stipulation of the parties.
No transcript of the hearing was provided. Subsequent to
the hearing only counsel for the City submitted Proposed Findings
of Fact which have been accepted and are incorporated in this
Final Order.
FINDINGS OF FACT
1. On October 14, 1994, Jonathan O. and Merrill S. Hanke,
by their representative John A. Skicewicz, P.A., a registered
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~ real estate broker, submitted, for consideration at the October
18, 1994 meeting of the City's Planning and Zoning Board,
(Board), a conditional use request to operate a vehicle service
facility at property located at 1139 Eldridge Street in
Clearwater. Though Mr. S~icewicz indicated at hearing that he
had the Hanke's authorization to file the original application,
no indication of that appeared on the document, nor was any
authorization ever found in the records kept by the City.
Nonetheless, an authorization form accompanies the amended
appl~cation, which was accepted by the City and which was the
application considered and approved by the Board.
2. As is normal practice, the application had been, before
the Board action, submitted to the City's planning staff which,
~ upon review, recommended approval subject to several conditions.
The special conditions limited the work area to five service
bays, prohibited any auto service work from being done outside
the building, prohibited outside storage of materials, mandated
provision of adequate dumpster service, limited hours of
operation to 7:00 AM to 6:00 PM on Mondays through Saturday and
required compliance with section 41.053(30) of the City Land
Development Code with regard to vehicle service uses.
3. At its meeting on October 18, 1994, the Board granted
the conditional use permit upon conditions consistent with those
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recommended by the City staff, with the exception that no
limitation on hours of operation was imposed. The Appellant did
not object to the permit at the Board meeting because, it is
represented, the owner of the company was travelling at the time
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the notification letter from the city came, and the matter was
thereafter overlooked. The Board's approval was appealed on
October 28, 1994 by Werner-Donaldson Moving Services, Inc., (WD),
which operates a moving and storage facility on the property
adjoining the subject property on either side. To the east is a
warehouse storing household goods. The Permittee's building is
approximately 1 - 2 feet in from the west property line and
approximately 30 feet in from the east property line, except for
a loading dock and small 30 by 30 foot structure which extends
almost to that line approximately ~a feet in from Eldridge
street.
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4. The property in issue was formerly used as a millworking
operation which manufactured wooden moldings and decorative
pieces, employing 4 to 5 individuals. At that time, the parking
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area, encompassing 32 spaces, was greater than that which was
needed for employee parking. Five of the spaces now would be in
front of the office area; twelve in the shell area in front of
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the smaller building to the east; eight behind the small building
to the east and in from Maple Street; and seven more in back of
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the building in from Maple Street. WD contends that this parking
configuration would result in cars being required to back out
into ooth Eldridge and Maple Streets, which would constitute a
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traffic hazard because of the significant number of large tractor
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trailer trucks which come to its facility each day. This would
be compounded by the difficult configuration of the building and
the support posts inside which would necessitate vehicles having
to back out into the street to be moved around for work.
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5. The roof on the building in question is made of metal
over wood beams. Mr. DeRoy, the WD comptroller, believes this
type of construction would be inconsistent with the flame hazards
of automobile repair work. Though the adjacent WD buildings are
not constructed of wood, Mr. DeRoy nonetheless considers there to
be a substantial fire risk due to those factors.
6. Eldridge and Maple Streets are dead end streets. There
is a day care center at the end of one of them. WD asserts that
most of the businesses in the area are warehouses, a National
. Guard armory, and an electric company substation. Its
representative contends that the neighborhood is quiet, and there
is a residential area to the south. There are no other
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automobile repair shops in the neighborhood, and Mr. DeRoy, for
WD, contends the proposed use of the property in issue would not
be compatible with the neighborhood. Mr. DeRoy claims that
adding an auto repair shop at the instant location would decrease
WD's property values as it would be an eyesore to the community.
No independent evidence of this was presented, however.
7. Though there are no auto repair shops on either Maple or
Eldridge Streets in the two blocks east of N. Greenwood Avenue,
the immediate area in question, there are at least five such
installations within one block west of Greenwood and north of
Maple. In addition, there is a machine shop, a cabinet shop, a
hardware concern, two lumber businesses and a fuel and oil
distributor, among others. Clearly, the area is not residential.
It is classified as limited industrial, which includes vehicle
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8. When the application was brought for evaluation, noise
was a factor considered but only as it related to the residential
area to the south. Because of that, one staff agency recommended
the inclusion of limited hours of operation in the permit. No
one from the area in question, (residents were notified in
advance by mail) appeared at the Board meeting or wrote in to
object, however, and, consequently, noise was not considered as a
problem. While working hours were not limited, a requirement
that all work be done indoors was included as a condition of the
permit.
9. Parking was addressed by the City's Traffic Engineer who
interposed neither objection or comment. Since this was a
changed use as opposed to a new use, and since the Code requires
the parking lot to accommodate the total need of the facility,
the staff felt that parking requirements would be less under the
changed use as opposed to the old use and would be sufficient.
However, it appears that none of the properties currently in use
in the area meet the City's current parking standards.
10. Fire was also not considered to be a problem by the
staff. City rules require approval by the Fire Marshall before
occupancy. Any deficiencies existing would be identified then
and, perforce, corrected before the building could be used.
11. WD contends that body and fender repair and painting is
not included in the intended definition of vehicle service. The
. Code definition includes the service and repair of vehicles,
boats, and the like; washing and waxing; and installing mufflers,
among other things. The Code definition does not specifically
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repair, or the dismantling of engines, which are specifically
covered elsewhere. The Code provides that these latter
activities shall not be permitted unless specifically approved by
the Board. In the instant'case, the Board approved the
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application which refers to vehicle service. A staff comment,
included in the application package which went before the Board,
and which would appear to satisfy that requirement, notes that:
Vehicle service will be primarily auto
repairs which will include auto body work,
and all aspects of mechanical work including
rebuilding.
CONCLUSIONS OF LAW
12. The Division of Administrative Hearings has
jurisdiction over the parties and the subject matter in this
case. Section 120.57(1), Florida Statutes.
13. WD contends'that the Petitioner's use of the property
in question as a vehicle repair shop will have a degrading effect
on its property. The standards for approval of applications for
conditional use permits are contained within the provisions of
Sections 41.021 through 41.053 of the Land Development Code of
the City of Clearwater, (Code). Included within those criteria
is whether the proposed conditional use will adversely impact
adjoining properties. In the event the Board determines a need
for conditions to be placed upon a permit, it may, as it had done
here, impose them.
14. Appeal of actions of the Board to a Hearing Officer is
provided for in Section 36.065(6) of the Code. The burden of
proof in such a hearing is upon the appellant to demonstrate that
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the Board's approval was inappropriate and departs from the
essential requirements of the law. The Hearing Officer's
function is to determine if there is substantial competent
evidence to support the Board's findings or if the Board's
decision departs from the essential requirements of the law. The
decision of the Hearing Officer is final, subject to judicial
review.
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15. In this case, the Hanke application was properly
staffed and staff recommendations were forwarded to the Board.
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Proper notice was served on neighboring interested parties,
including WD, and no objection was filed. Thereafter, a public
hearing was held at which the application was considered and
approved subject to appropriate conditions. The Board's findings
are supported by substantial competent evidence, and the process
followed by the City was consistent with the requirements of the
Code.
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16. WD now seeks to have the action of the Board, as it
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relates to the Hanke application, reversed, alleging that the
operation of a vehicle service facility would pose a safety
hazard to its facility, and would degrade the neighborhood. The
only evidence presented in support of this position was the
testimony of WD's comptroller. No independent evidence was
presented by WD to support any of its allegations of potential
safety hazards or neighborhood degradation. Appellant has failed
to show that at the time it considered this application, the
Board did not have competent substantial evidence to support its
action, or that its approval departs from the essential
requirements of the law.
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17. Appellant's challenge to the application, as not being
filed by an appropriate, authorized representative, is denied.
Even assuming Mr. Skicewicz did not have written authority from
the Hankes to file the original application, the evidence is
clear that the amended application, that considered and acted
upon by the Board, was clearly authorized in writing by the
owners. Any possible administrative defect in the original
application was corrected by the filing of the amended
application.
Based on the foregoing Findings of Fact and Conclusions of
Law, it is, therefore:
ORDERED THAT the appeal by Werner-Donaldson Moving Services,
Inc. of the Clearwater Planning and Zoning Board's issuance of a
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c:> conditional use permit to Jonathan o. and Merrill S. Hanke to
operate a vehicle service facility at 1139 Eldridge street,
Clearwater, Florida, is hereby denied.
, ORDERED this ~ day of May, 1995, in Tallahassee,
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Florida.
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ARNOLD H. POLLOCK, Hearing Officer
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
Divis~onlof Administrative Hearings
this O(A@ day of May, 1995.
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Miles A. Lance, Esquire
Paul R. Hull, Esquire
City of Clearwater
P.O. Box 4748
Clearwater, Florida 34618-4748
r.
Harry Cline, Esquire
MacFarlane, Ausley, Ferguson
and McMullen
P.O. Box 1669
Clearwater, Florida 34617
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John A. Skicewicz, P.A.
1988 Gulf to Bay Boulevard
Clearwater, Florida 34625
"cynthia Goudeau
city Clerk
City of Clearwater
P.O. Box 4748
Clearwater, Florida 34618-4748
NOTICE OF RIGHT TO JUDICIAL REVIEW
(''f'/'.........
,
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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 bylaw, (or, when appropriate, a
certificate of indigence), with the District
Court of Appeal, First District, or with the
District Court of Appeal in the appellate
district where the party resides within 30
days of rendition of the Order to be
rev iewed . .
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