APP2002-07002
I ~ ciea~ater
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Planning oepa. l
100 South Myrtle Avenue
Clearwater, Florida 33756
Telephone: 727-562-4567
Fax: 727-562-4576
CASE J;t<, o~_.-~
DATE REC 'IVED: . t'!'~l .e~"""
RECEIVED BY (staff initials): /
ATLAS PAGE #: Z." A
ZONING DISTRICT: [;I"i'1P~
LAND USE CLASSIFICATION: {Z,(/
ZONING & LAND USE CLASSIFICATION OF
ADJACENT PROPERTIES:
NORTH: tfkbf.
SOUTH~.
WEST:
EAST: '
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II
o
SUBMIT ORIGINAL SIGNED AND NOTARIZED APPLICATION
SUBMIT 12 COPIES OF THE ORIGINAL APPLICATION including folded site plans
10
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iO
SUBMIT APPLICATION FEE $
FLEXIBLE STANDARD DEVELOPj\tffiNT APPLICATION
(Revised 8/1 % 1)
-PLEASE TYPE OR PRINT-use additional sheets as necessary
A. APPLICANT, PROPERTY OWNER AND AGENT INFORMATION: (Section 4-202.A)
CHRISTOPHER C. MARIANI
APPLICANT NAME:
310 Live Oak Lane, Largo, FL 33770
MAILING ADDRESS:
E-MAIL ADDRESS:
PHONE NUMBER:
727-421-8021
CELL NUMBER:
638-2932
FAX NUMBER:
JAN 2 ~~ 2002
PROPERTY OWNER(S):
Same as ap licant
(Must include ALL owners)
AGENT NAME(S): TIMOTHY A. JOHNSON, JR., ESQUIRE
Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A.
MAILING ADDRESS: 911 Chestnut Street. Clearwater. FL 33756
PLANNING & DEVELOPMENT
v;,~'.!.ER
E-MAIL ADDRESS:
timj@jbpfirm.com
PHONE NUMBER: 727-461-1818
CELL NUMBER:
FAX NUMBER:
727 462 0365
B. PROPOSED DEVELOPMENT INFORMATION:
STREET ADDRESS of subject site:
None (vacant lot) - Will become 193 Devon Drive
PARCEL SIZE:
Lot 31, Bayside Sub., together with lands southerly - See Exhibit 'An
(if not listed here, please note the location of this document in lhe submittal)
08/29/15/04914/000/0l10
Approx. 118' x 120'
LEGAL DESCRIPTION:
PARCEL NUMBER:
(ecres, square feet)
Slngle-family residential
PROPOSED USE AND SIZE:
(number of dwelling units, hotel rooms or square footage of nonresidential use)
DESCRIPTION OF REQUEST(S):
Private docklOl' in length where 60' is the maximum allowed
r.1 (in?lude all ~qu?Sted code devletion~; e.g. reduction in required number crt parking sp8cas, sP,eCific use, elc.)
by Code. ~he dock lS 98 In lenqth wlth a step-down of 3' for n tot~l lpn th f
101' . 'J 0
DOES THIS APPLICATION INVOLVE THE TRANSFER OF DEVELOPMENT RIGHTS (TOR), A PRIVIOUSLY APPROVED PLANNED UNIT
DEVELOPMENT, OR A PREVIOUSLY APPROVED (CERTIFIED) SITE PLAN? YES _ NO _ (if yes, attach a copy of the applicable
- ants
Page 1 of 5 - Flexible Standard Development Application - City of Clearwater
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c. PROOF OF OWNERSHIP: (Section 4-202.A)
Xl SUBMIT A COpy OF JHEJI1JE INSURAhNCE POLICY, DEED TO THE PROPERTY OR SIGN AFFIDAVIT ATTESTING OWNERSHIP (see
page 6) See Exh~b~t A attac ed.
D. WRITTEN SUBMITTAL REQUIREMENTS: (Section 3-913.A)
o Provide complete responses to the six (6) GENERAL APPLICABILITY CRITERIA:
1. The proposed development of the land will be in harmony with the scale, bulk, coverage, density and character of adjacent properties in which it
is located. See Exhibit "B" attached for responses to Criteria 1 through 6.
2. The proposed development will not hinder or discourage the appropriate development and use of adjacent land and buildings or significantly
impair the value thereof.
3. The proposed development will not adversely affect the health or safety or persons residing or working in the neighborhood of the proposed
use.
4. The proposed development is designed to minimize traffic congestion.
5. The proposed development is consistent with the community character of the immediate vicinity of the parcel proposed for development.
6. The design of the proposed development minimizes adverse effects, including visual, acoustic and olfactory and hours of operation impacts,
on adjacent properties.
o Address all applicable flexibility criteria for the specific land use as listed in each Zoning District to which the waiver is requested (use separate
sheets as necessary:
See Exhibit "B" attached.
Page 2 of 5 - Flexible Standard Development Application - City of Clearw ater
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E. SUPPLEMENTAL SUBMITTAL RE
IREMENTS: (Section 4-202.A)
/
o SIGNED AND SEALED SURVEY (including dimensions of property) - One original and 12 copies;
o COpy OF RECORDED PLAT, as applicable;
o PRELIMINARY PLAT, as required;
o LOCATION MAP OF THE PROPERTY;
o TREE SURVEY (including existing trees on site and within 25' of the adjacent site, by species, size (DBH 4" or greater), and location,
including drip lines and indicating trees to be removed);
o GRADING PLAN, as applicable
F. SITE PLAN SUBMITTAL REQUIREMENTS: (Section 4-202.A)
o SITE PLAN with the following information (not to exceed 24" x 36"):
All dimensions;
North arrow;
Engineering bar scale (minimum scale one inch equals 50 feet), and date prepared;
Location map;
Index sheet referencing individual sheets included in package;
Footprint and size of all EXISTING buildings and structures;
Footprint and size of all PROPOSED buildings and structures:
All required setbacks;
All existing and proposed points of access:
All required sight triangles;
Identification of environmentally unique areas, such as watercourses, wetlands, tree masses, and specimen
trees, including description and location of understory, ground cover vegetation and wildlife habitats, etc;
Location of all public and private easements;
Location of all street rights-of-way within and adjacent to the site;
Location of existing public and private utilities, including fire hydrants, storm and sanitary sewer lines, manholes and lift stations, gas
and water lines;
All parking spaces, driveways, loading areas and vehicular use areas, including handicapped spaces;
Depiction by shading or crosshatching of all required parking lot interior landscaped areas;
Location of all refuse collection facilities and enclosures (minimum 12'x10' clear space);
Location of all landscape material;
Location of all jurisdictional lines adjacent to wetlands;
Location of all on site and offsite storm-water management facilities;
Location of all outdoor lighting fixtures: and
Location of all existing and proposed sidewalks
o SITE DATA TABLE for existing, required, and proposed development, in written/tabular form:
Land area in square feet and acres;
Number of EXISTING dwelling units and PROPOSED dwelling units;
Gross floor area devoted to each use;
Parking spaces: total number, presented in tabular form with the number of required spaces;
Total paved area, including all paved parking spaces and driveways, expressed in square feet and percentage of the paved vehicular area'
Size and species of all landscape material; ,
Official records book and page numbers of all existing utility easement;
Building and structure heights;
Impermeable surface ratio (I.S.R.); and
Floor area ratio (F.A.R.) for all nonresidential uses
o REDUCED SITE PLAN to scale (8 Y:z X 11) and color rendering if possible
o FOR DEVELOPMENTS OVER ONE ACRE, provide the following additional information on site plan:
One-foot contours or spot elevations on site;
Offsite elevations if required to evaluate the proposed stormwater management for the parcel;
,6..11 open .space areas:
Location of all earth or water retaining walls and earth berms;
Lot lines and building lines (dimensioned);
Streets and drives (dimensioned);
Building and structural setbacks (dimensioned);
Structural overhangs;
Tree Inventory; prepared by a "certified arborist", of all trees 8" DBH or greater, reflecting size, canopy (drip Ii,nes) and condition of such trees
Page 3 of 5 - Flexible Standard Development Application - City of ClealW ater
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G. LANDSCAPING PLAN SUBMITTAL REQUIREMENTS: (Section 4-1102.A) .
o LANDSCAPE PLAN:
All existing and proposed structures;
Names of abutting streets;
Drainage and retention areas including swales, side slopes and bottom elevations;
Delineation and dimensions of all required perimeter landscape buffers;
Sight visibility triangles;
Delineation and dimensions of all parking areas including landscaping islands and curbing;
Proposed and required parking spaces;
Existing trees on-site and immediately adjacent to the site, by species, size and locations, including dripline (as indicated on
required tree survey);
Location, size, description, specifications and quantities of all existing and proposed landscape materials, including botanical and
common names;
Typical planting details for trees, palms, shrubs and ground cover plants including instructions, soil mixes, backfilling, mulching and
protective measures:
Interior landscaping areas hatched and/or shaded and labeled and interior landscape coverage, expressing in both square feet and
percentage covered; ,
Conditions of a previous development approval (e.g. conditions imposed by the Community Development Board);
Irrigation notes
o REDUCED LANDSCAPE PLA/i to scale (8 Y:. X 11) (color rendering if possible)
o IRRIGATION PLAN (required for Level Two and Three applications)
o COMPREHENSIVE LANDSCAPE PROGRAM application, as applicable
H. STORMWATER PLAN SUBMITTAL REQUIREMENTS: (City of Clearwater Design Criteria Manual and
4-202.A.21 )
o STORMWATER PLAN including the following requirements:
Existing topography extending 50 feet beyond all property lines;
Proposed grading including finished floor elevations of all structures;
All adjacent streets and municipal storm systems;
Proposed stormwater detention/retention area including top of bank, toe of slope and outlet contror5tructure;
Stormwater calculations for attenuation and water quality;
Signature of Florida registered Professional Engineer on all plans and calculations
o COPY OF PERMIT INQUIRY LETTER OR SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT (SWFWMD) PERMIT SUBMITTAL
(SWFWMD approval is required prior to issuance of City Building Permit), if applicable
o COPY OF STATE AND COUNTY STORMWATER SYSTEM TIE-IN PERMIT APPLICATIONS, if applicable
I. BUILDING ELEVATION PLAN SUBMITTAL REQUIREMENTS: (Section 4-202.A.23)
Required in the event the application includes a development where design standards are in issue (e.g. Tourist and Downtown Districts) or as part
of a Comprehensive Infill Redevelopment Project or a Residentiallnfill Project.
o BUILDING ELEVATION DRAWINGS - all sides of all buildings including height dimensions, colors and materials
o REDUCED BUILDING ELEVATIONS - four sides of building with colors and materials to scale (8 Y:. X 11) (black and white and color rendering, if
possible) as required
J. SIGNAGE: (Section 4-202.A.16)
'.,! Comprehensive Sign Program application. as applicable (separate application and fee reql!ired\
o Reduced signage proposal (8 'j, X 11) (color), if submitting Comprehensive Sign Program application
K. TRAFFIC IMPACT STUDY: (Section 4-202.A.13 and 4-801.C)
Cl
Include as required if proposed development will degrade the acceptable level of service for any roadway as adopted in the Comprehensive Plan.
Trip generation shall be based on the most recent edition of the Institute of Transportation Enginee(s Trip General Manual. Refer to Section 4-801
C of the Community Development Code for exceptions to thiS requirement.
Page 4 of 5 - Flexible Standard Development Application - City of Clearwater
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L. SIGNATURE:
I, the undersigned, acknowledge that all representations made in this
application are true and accurate to the best of my knowledge and
authorize City representatives to visit and photograph the property
described in this application.
STATE OF FLORIDA, COUNTY OF PINELLAS /}c;,~i-.
Sworn to and subscribed before me this (~ day of
,January "A.,D, 20~ to ,me and/or by
Chrlstopner c. Marlanl . who is personally known 'mIr
-~l'Clduceo -as-
"iclentlfl'CatiO n.
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Signat,-!re of operty owner or n!lpre~entative
Chrlstopher C. Marlanl
M. AFFIDAVIT TO AUTHORIZE AGENT:
CHRISTOPHER C. MARIANI
(Names of all property owners)
1. That (I am/we are) the owner(s) and record title holder(s) of the following described property (address or general location):
Lot 31, Bayside Subdivision, together with lands Southerly - See Exhibit "A"
(Parcel No. 08/29/15/04914/000/0310)
2, That this property constitutes the property for which a request for a: (describe request)
Deviation from Section 3-601 (C) (b) of the Clearwater Community Development Code
to allow dock 101' in length.
3. That the undersigned (has/have) appointed and (does/do) appoint: Timothy A. Johnson, Jr., of Johnson,
Blakely, Pope, Bokor, Ruppel & Burns, P.A.
as (his/their) agent(s) to execute any petitions or other documents necessary to affect such petition;
3. That this affidavit has been executed to induce the City of Clearwater, Florida to consider and act on the above described property;
4. That the applicant acknowledges that all impact fees (parks and recreation, traffic, etc.) will be paid PRIOR to the issuance of a building permit,
certificate of occupancy, or other mechanism, whichever occurs first;
5. That site visits to the property are necessary by City representatives in order to process this application and the owner authorizes City
representatives to visit and photograph the property described in this application;
6.
That (I/we), the undersigned authority, hereby certify that the foregoing is true~ ap~ . .
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Property ner Chrlstopher C. Mariani
Property Owner
STATE OF FLORIDA,
COUNTY OF PINELLAS
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/.....) ,
:..) , day of
who having been first duly sworn
,) "-',
i:::
LINDA R. CUNNINGHAM
EXPIRES: JUly 4 2004
Bonded Thru NOliiy PUblk:' Ull<Ierwrllars
Before me the undersigned, an officer duly commissioned by. the,laws of the State of FloriQa, olJ this
January ,2002 personally appeared Chrlstopher C. Marlanl
Deposes and says that he/she fully understands the contents of the affidavit that he/she _~~Jd. ,.! .
My Commission Expires: >~K..'1-.{jf.(."
S:\P1anning OepartmentlApplication Formsldevelopment reviewlcomprehensive infill application2.doc
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EXHIBIT "B" TO
FLEXIBLE STANDARD DEVELOPMENT APPLICATION
The applicant is proposing a private dock and boat slip, extending 101 feet, 17.57% into
the navigable waterway. As shown on the Water and Navigation Report of Pinellas
County Environmental Management ("Report") 1, a copy of which is attached hereto as
Exhibit "C," sea grass beds are located along the entire property but become sparse at
60 feet from the seawall. Section 3-601 (C)(b) of the Clearwater Community
Development Code ("Code") requires the maximum length of the dock to be 60 feet,
based upon the 120' width of the property along the seawall. The Applicant seeks a
deviation of the maximum dock length by 41 feet, in accordance with Section 3-
601 (C)(g) of the Code.
General Applicability Criteria:
1) The proposed development of the land will be in harmony with the scale,
bulk, coverage, density and character of adjacent properties in which it is
located.
The property is a single-family residential lot located on Clearwater Harbor.
Other lots located in this subdivision have similar docks. The adjacent property
located at 191 Devon Drive, westerly of the subject property, has two docks, one
98' in length and one 90' in length. The adjacent property located at 195 Devon
Drive, easterly of the subject property, has a dock 77' in length.
2) The proposed development will not hinder or discourage the appropriate
development and use of adjacent land and buildings or significantly impair
the value thereof.
The proposed dock and boat slips will not hinder or impair the surrounding
property or the waterway. As indicated in the Report, the proposed 101-foot
dock extends only 17.57 percent into the waterway.
3) The proposed development will not adversely affect the health or safety of
persons residing or working in the neighborhood of the proposed use.
This project does not adversely affect the health or safety of the neighborhood.
4) The proposed development is designed to minimize traffic congestion.
The proposed dock is a private dock and will not contribute to traffic congestion.
1 This report refers to a different application in which the proposed boat slips ~ere located ove.r t~e sea
grass bed. As suggested in the report, the Applicant has relocated the boat slips beyond the limits of the
sea grasses.
j {(1
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.
5)
The proposed development is consistent with the community character of
the immediate vicinity of the parcel proposed for development.
Bayside Subdivision is a Clearwater Beach subdivision of waterfront lots, many
of which have docks and boat slips. As previously described, the proposed
project is consistent with existing docks and lifts on this finger of the subdivision.
6) The design of the proposed development minimizes adverse effects,
including visual, acoustic and olfactory and hours of operation impacts on
adjacent properties.
The proposed dock and lift are of an attractive design and will not adversely
affect adjacent properties. The dock has been designed to eliminate adverse
environmental effects.
Flexibility Criteria:
In accordance with Section 3-601, Dock/Marina Standards of the Clearwater
Community Development Code, ".. .applications may be approved by the
Community Development Coordinator through a Level One (flexible standard)
approval process based on one of the following:
i. The proposed dock will result in no navigational conflicts and the length of
the proposed dock will not exceed twenty-five (25) percent of the width of
the waterway; or
ii. The proposed dock location needs to be adjusted to protect
environmentally sensitive areas; or
iii. The property configuration precludes the placement of a dock in
compliance with the required dimensional standards; however, the
proposed dock will be similar in dimensional characteristics as
surrounding dock patterns."
Although only one of the above criteria is required by Code, the proposed dock and boat
lift meet all three criteria, as follows:
I. The proposed dock length of 101 feet is 17.57% of the width of the waterway.
Based on this percentage and the nearby 98' and 901 docks, the proposed dock
will not affect navigation.
II. The Applicant has designed the dock and boat slip in a manner to protect
existing sea grass beds.
III. The proposed dock is similar to other docks in the surrounding neighborhood as
stated in the foregoing General Applicability Criteria NO.1.
#257737 v1
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--: MAPeUE$t :-
[100-199]DEVON DR
CLEARWATER BEACH, FL
33767, US
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'"',~ Donald E, Armstro.
. Professional Land Surve r
90 Highland Ave" #9
Tarpon Springs, Florida 34689
Phone (727) 945-1073
Fax (727) 945-8343
Legal Description:
Lot 31, REPLAT OF BAYSIDE SUBDIVISION, os recorded in
Plot Book 23, Poges 18 ond 19, of the Public Records
of Pinellas County, Florida, together with those lands
lying Southerly of said Lot 31, as shown on said Plat
of REPLA T OF BA YSIDE SUBDIVISION, to the line
designated "Bulkhead Line" on said Plat. More particularly
described as follows; QJ
"6
Begin at the Northeast corner of said Lot 31, REPLA T ()
OF BAYSIDE SUBDIVISION; thence 545.16'3o"E, along (J)
the Easterly line of said Lot 31, 118.19 feet to a point
along said "Bulkheod Line" os shown on said Plot;
thence along soid "Bulkheod Une", 105.60 feet along
the arc of 0 curve to the right having 0 rodius of 145.00
feet, chord of 103,28 feet, chord bearing S69'06'09l/W,
thence ~89.37'36"W, 15.00 feet along said "Bulkhead
Line"; thence NOO'22'24"W, 108.39 feet olong the Westerly
line of said Lot 31; thence 31.36 feet along the arc of 0
& curve tp the left, having a radius of 40.00 feet, chord of
Vd'. 30.56 feet, chord beoring N67"26'35"E, to the Point of
& /6'.. Beginning.
vV'. J;
76'_ V....
u'O~ ('
tf'
.cERTIFIED TO: CHRISTOPHER C. MARIANI
DA VID E. PLA HE, ESQUIRE
COMMONWEALTH LAND TITLE INSURANCE COMPANY, INC.
DEVON DRIVE
R/W Size Varies - Asph. Pvmt.
On Site Bench ~
Mark N. Rim Of ~
Sanitory Sewer
Man Hole Elev,=
4.89'
Wood Utility
Pole ~
" U~~"ty Box '.'J
f.C.M. 4 x4
P.R.M. (P)
~ !:!
'--1.
N64'3S'S4.W/12"
34.B2' (P) ~
N64.44'43"W ;<
34.3S' (M)
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LOT ,3
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VACANT
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+
z
B.F.E. = 11'
z z
B.F.E. = 12'
Jr.
Sec. 8, Twp. 29 S" Rng. 15 E
Pinellas County, Florida
Field Book 25, Page 10
Job #20139
o
N
LOT 3 0
VACANT
.t::/.Qk..
()()
D'
o
-I-
Denotes Elevation Spot Shot
Elevations shown are bosed Upon
NGVD-1929 Datum, Pinel/os County
Bench Mark #DE-2, Mop # 154,
Elevation 5.714'
/
Zone Line As
Scoled From
;F.E.M.A. Mop
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z
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SUBJECT:
FROM:
THRU:
DATE:
.
.
EXHIB ITC
PINELLAS COUNTY
DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
WATER AND NAVIGATION REPORT
Dock Preapp.
Christopher Mariani
Lot 31 Devon Drive, Clearwater
Susan Pirolo ~
Environmental Specialist II
Department of Environmental Management
David L. Walker, Jr., Env. Program Manager~
Water and Navigation Section '.
Department of Environmental Management
November 26,2001
The subject site was inspected by this Department on November 8, 2001.
PROJECT AND SITE DESCRIPTION:
The applicant proposes construct a private dock in the waters of Clearwater Harbor.
The proposed dock will consist of a 4 ft. x 86 ft. walkout with a 26 ft. x 2.5 ft. catwalk, a
2.5 ft x 36 ft. catwalk, two boat lifts, and a roof. The total area of the doc,k will be 499 sf.
The waterfront width of the property is 120 ft. The proposed structure will be located 56 ft.
from the east property line and 31.5 ft. from the west property line. The total length of the
structure yvill be 86 ft. and the width of the structure will be 32.5 ft. The water deoth will
.. -
be greater than 5 ft. (ML W) at the end of the proposed structure. The width of the
navigable portion of the waterway at this location is approximately 570 ft. The structure
extends a total of 86 ft., 15.1 % into the navigable waterway.
The shoreline is seawalled at this location. Oysters (Crassostrea virginica) are attached to
the seawall. Dense seagrass beds consisting of cuban shoal grass and manatee grass
(Halodule wrightii and Syringodiumfiliforme, respectively) are located offshore along the
entire property. The seagrass is located from I ft. to 65 ft. from the seawall in the area of
the proposed dock. No emergent vegetation is present on this property.
Wildlife observed during the field review included a brown pelican (Pelecanl/s
occidentalis), cormorant (Phalacrocorax auritus), and great egret (Casmerodius a/bus).
\ crill
~IJ
'~ii;,; .ona ld E.
Professional Land Surveyor
90 Highland Ave., #9
Tarpon Springs, Florida 34689
Phone (727) 945-1073
Fax (727) 945-8343
Legal Description:
Lot 31, REPLAT OF BAYSIDE SUBDIVISION, os recorded in
Plat Book 23, Pages 18 and 19. of the Public Records
of Pinellas County, Florida, together with those lands
lying Southerly of said Lot 31. as shown on said Plot
of REPLA T OF BA YSIDE SUBDIVISION. to the line
designated "Bulkhead Line" on said Plot. More particularly
described as follows: OJ
o
Begin at the Northeost corner of said Lot 31, REPLA T u
OF BAYSIDE SUBDIVISION; thence S45.16'30"E, along 1J)
the Easterly line of said Lot 31, 118.19 feet to 0 point
along said "Bulkhead Line" os shown on sold Plat;
thence along said "Bulkhead Line", 105.60 feet along
the ore of a curve to the right having a rodius of 145.00
feet, chord of 103.28 feet, chord bearing S69.06'09"W,
thence ~B9.37'36"W, 15.00 feet along said "Bulkhead
Line"; thence NOO.22'24"W, 108.39 feet along the Westerly
line of said Lot 31; thence 31.36 feet along the arc of 0
& curve tp the left, havIng 0 radius of 40.00 feet, chord of
'57'0". 30.56 feet, chord bearing N67.26'35"E, to the Point of
J' 7&.. Beginning.
9'0'. ~
76'_ V~~
'-"0.. <f'
<f'
CERTIFIED TO: CHRISTOPHER C. MARIANI
DA VIO E. PLA HE. ESQUIRE
COMMONWEALTH LAND TITLE INSURANCE COMPANY, INC.
DEVON DRIVE
R/W SIze Varies - Asph. Pvmt.
On Site Bench ~
Mark N. Rim Of @
Sanitary Sewer
Man Hole Elev.=
4.89'
Wood Utility
Pole :\
Utility 80x "J
F.C.t.!. 4"x4" .
P.R.t.!. (P)
~.~
N64'3S'S4"W/12"
34.82' (p) ~
N64.44'43"W j.
34.35' (1.1)
0.3'
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rr) 0
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LOT 3
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+
7
B.F.E.
z
Armstron.;eJr.
o
N
Sec. 8, Twp. 29 S., Rng. 15
Pinellos County, Florido
Field Book 25, Page 10
Job #20139
~
LOT 30
V A CAN T
11'
7
Zone Line As
Scated From
/F.E.M.A. Mop
"7 7_
~
cP
D.
Cj
+
Denotes Elevation Spot Shot
Elevations shown are bosed upon
NGVD-1929 Datum, Pinellas County
Bench Mork #DE-2, Map # 154.
Elevation = 5.714'
/
z
"1
7
.
.
Field conditions at this site were as follows:
Depths at left side of proposed dock:
Distance
from seawall
0'
1 '
4'
10'
20'
30'
40'
50'
60'
62'
70'
80'
86'
Depth Notes
0.3' (0.1' MLW)
start of mod. sparse Halodule
start of dense Hal.
0.9' (0.7' ML W) very dense Halodule
1.3' (1.1' ML W)" "
1.8' (1.2' ML W)" "
2.6' (2.4' ML W)" "
3 5" {' 3"" 'P\A'T 111\" "
_..:.~..:...J_-"U_4.Y.X.-}-._---_...... . --'-" .......--
4.3' (4.1' ML W) moderately sparse seagrass
____ ...._.._y~ry.~p~_~eagrass
5.8' (5.6' ML W) no seagrass
6.1' (5.9' MLW)
6.3' (6.1' MLW)
Depths at right side of proposed lifts:
Distance
from seawall Depth Notes
0' 0.2' (0.0' ML W) a few pieces horizontal concrete riprap
2' start of sparse Halodule
3' moderate Hal.
4' dense Hal.
10' 0.5'(O.3'MLW) very dense Hal.
20' 0.8' (0.6' ML W) " "
30' 1.2' (1.0' ML W) " "
40' 1.9' (1.7' MLW) "
50' 2.4' (2.2' ML W) " "
60' __~_._r.D.6' ML W:l---._.~-_.__.::.-
62' ---.---..---.-___.00__ end of dense seagrass
65 ~_._._-----,----_.---,,---,.~--,---..--:~ndJirall seagrass
70' 4.6' (4.4' ML W)
80' 5.4' (5.2' MLW)
86' 5.7' (5.5' ML W)
90' end of adj. dock to right (poles extend further), property curves to right
1 s j (7f
.
.
Note: Inner 10' (east side) to 20' ( west side) of roof and structure will be over dense
seagrass.
Depths at right (west) property line:
Distance
from seawall Depth Notes
0' 0.2' (0.0' ML W)
6'
10'
20'
30'
40'
50'
60'
70'
80'
90'
0.3' (0.1' MLW)
0.7' (0.5' ML W)
0.9' (0.7' ML W)
1.5' (1.3' MLW)
2.1' (1.9' ML W)
3.3' (3.1' ML W)
4.2' (4.0' MLW)
4.9' (4.7' MLW)
5.5' (5.3' MLW)
start of seagrass
dense seagrass
" "
" "
" "
" "
" "
end of most seagrass
Depths at left (east) property line:
Distance
from seawall Depth Notes
0' 0.3' (0.1' MLW)
1 ' start of Halodule (mod. sparse)
.." dense Halodule
.J
8' very dense Halodule
10' 1.0' (0.8' ML W) " "
20' 1.6' (1.4' MLW) " "
24' Syringodium mixed in with Hal.
30' 2.3' (2.1' MLW) mostly very dense Syringodium
40' 3.1' (2.9' MLWO
50' 5.5' (5.3' MLW) still some moderate seagrass
60' 5.8' (5.6' MLW) no seagrass
70' 6.5' (6.3' MLW)
80' 6.9' (6.7' ML W)
86' 7.3' (7.1' MLW)
[bIn
.
.
COMMENTS:
1. Seagrass beds are located along this entire property, and extend out to a maximum
of 65 ft. from the seawall in the area of the proposed dock although it becomes
sparse at approximately 60 ft. It is the policy of this Department to limit
structures over seagrasses to 4 ft. in width and to place the terminal platforms and
boat slips beyond the limits of the seagrasses wherever possible. In the proposed
location, the walkout would need to be lengthened by 10 feet to meet this criteria.
The applicant is advised, however, that the proposed length would be consistent
with the environmental criteria of the Pinellas County Code if the dock were
moved to the eastern side of the property where seagrasses end about 50 ft. from
the seawall.
2. The applicant is also advised that it is the policy of this Department that all boat
slips be located adjacent to the main dock, and therefore one boat lift will need to
be located on each side of the main dock.
FINDINGS:
No findings are being issued at this time pending receipt of a formal application.
The applicant is advised that approvals for this project may also-be required from the
Florida Department of Environmental Protection and the U. S. Army Corps of Engineers.
Any modifications required by these agencies must be reflected in revised plans
submitted to the County.
STR: S 1/2 8-29-15
marianie2.doc
[ 7/(]
JOHNSON.AKELY, POPE, BOKOR, RUPP. BURNS, P.A.
ATTORNEYS AND COUNSELLORS AT LAW
\0.
E D. ARlvlSTRONG III
JOHN T BLAKELY
BRUCE H BOKOR
GUY M. BURNS
JONAlliAN S. COLEMAN
MICHAEL T CRONIN
ELIZABElli J. DANIELS
BECKY FERRELL. ANTON
MARION HALE
SCOTT C. ILGENFRITZ
FRANK R. JAKES
TIMOTHY A JOHNSON, JR
SHARON E KRICK
ROGER A LARSON
JOHNR. LAWSON, JR*
MICHAEL G. LITTLE
MICHAEL C. MARKHAM
STEPHANIE T MARQUARDT
ZACHARYD. MESSA
AR. "CHARLIE" NEAL
F. WALLACE POPE, JR.
ROBERT V. POTIER, JR.
AUDREY B RAUCHW AY
DARRYLR. RICHARDS
PETER A RIVELLlNI
DENNIS G. RUPPEU
CHARLES A SAMARKOS
PHILIP M. SHASTEEN
JOAN M. VECCHIOLI
STEVEN H WEINBERGER
JULIUS J. ZSCHAU
*OF COUNSEL
PLEASE REPLY TO CLEARWATER
FILE NO. 42809.104550
March 5, 2002
rnl [~;. (i~"l'In,rVJ1~-T:lil
II O.dr~~l! Ii II
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_~1II~S:1.~.:-~.. .;),:",:\~::~::",! :.; 0;' ~., _.- ~ ..... --.....
Ms. Cyndi Tarapani
Community Development Coordinator
City of Clearwater
Planning and Development
Services Administration
100 South Myrtle Avenue, 2nd Floor
Clearwater, FL lii. ~
Re: FLMY 93 Devon Drive - Mariani Dock Flexible Standard
. r 1
DevelO'pm~m ~pproval
Dear Ms. Tarapani:
This letter is written in response to the report of the DRC meeting of February
15, 2002, in connection with the referenced matter (the "Report"). While this letter will
address the issues raised in the Report, it also serves as an amendment to Mr.
Mariani's application for flexible standard development approval. Specifically, enclosed
is a drawing of Mr. Mariani's revised proposed dock. The overall length of the newly
designed dock is 95 feet, which is 6.5 feet shorter than the design originally submitted.
In addition, the roof length over the larger capacity lift has been reduced from 48 feet to
38 feet and now equals in dimension the roof over the smaller capacity lift. The total
dock square footage is now 476.25 square feet, versus the 498 feet previously
requested. Each of the two boatlifts has a coverage area of five hundred and thirty two
532 feet, although it does not appear that this is a factor to be considered in whether to
approve the application.
Turning to the Report, I will respond to the staff comments where corrections are
appropriate or additional information is requested. The paragraph numbers listed below
correspond with the paragraph numbers in the Report:
CLEARW ATER OFFICE
91 I CHESTNUT STREET
POST OFFICE BOX 1368
CLEARWATER, FLORIDA 33757-1368
TELEPHONE: (727) 461-1818
TELECOPIER (727) 462.0365
~111 Bli
~
-
TAMPA OFFICE
100 NORTH TAMPA STREET
SUITE 1800
POST OFFICE BOX 1100
TAMPA, FLORIDA 33601.IEIOO
1/0J::P\fE
JOHNSON'LAKELY, POPE, BOKOR, RUPP. BURNS, P.A.
, ,
ATTORNEYS AND COUNSELLORS AT LAW
~
Ms. Cyndi Tarapani
March 5, 2002
Page 2
5 a) The County Staff Report does not indicate "that the dock may be
moved to the east side of the property and would only be required to be 50' in
length...." The County Staff Report does contain the following comment "...the
proposed length would be consistent with the environmental criteria of the Pinellas
County Code if the dock were moved to the east side of the property where sea
grasses end about 50' from the seawall." The sea grasses end abqut 60' from the
seawall at the proposed dock location. Thus, a dock at the eastern side of the
applicant's property would be 84' in length, not 50' as suggested in the Report.1 To
move the dock to the east side of the property would shift the obstruction complained of
by the objectors from their view to the view of the neighbor to the east. The self interest
of the objectors is manifest. The proposed location of the dock was selected because it
best shelters the dock from northerly winds and prevailing boat traffic patterns off the tip
of the Devon Drive finger.
c) The Report states "it's not clear how three criteria of the General
Applicability (Section 3-913) are met (and must be addressed prior to the issuance of a
DO)". Section 3.913 lists conditions which are to be imposed by the Community
Development Coordinator pursuant to a level one or level two approval, which
conditions shall insure that the listed issues are adequately addressed. These are not
criteria that the applicant is required to establish. Nonetheless, I will address the three
issues listed in the Report:
1. "The proposed development of the land will be in harmony with
the scale, bulk, coverage, density, and character of adjacent
properties in which it is located." We distributed at the hearing
information showing the many docks on Devon that exceed the
"standard" dock length provided in the Code. Most tellingly, the
dock of the objectors Soboleski sits on Mr. Mariani's west property
line and is 90' in length. (The Soboleskis have another dock on
the west side of their property that is 98 feet in length.) Further,
Harbormaster Morris stated at the hearing that Mr. Mariani's
proposal, even at its then proposed 101 foot length, was not a
navigational hazard or obtrusive and was in keeping with the
character of the neighborhood.
1 The dock extends 34' beyond the grass line. The grass line is at 61' on the west side of the property
and 50' on the east side of the property.
if(S
JOHNSO.LAKELY, POPE, BOKOR, RUP. & BURNS, P.A.
ATTORNEYS AND COUNSELLORS AT LAW
"
Ms. Cyndi Tarapani
March 5, 2002
Page 3
2. "The proposed development is consistent with the community
character of the immediate vicinity of the parcel proposed for
development." See the answer to the preceding issue.
3. "The design of the proposed development minimizes adverse
effects including visual, acoustic and olfactory and hours of
operation impacts, on adjacent property." The only issue here is
visual impact. This has been minimized, given the existing sea
grass situation at this location. This is especially true, in light of the
nearby location of objectors Soboleskis' dock, which is of
substantially equal length. Apparently, it is acceptable for the
objectors Soboleskis to build their dock on Mr. Mariani's property
line, but it is not acceptable for Mr. Mariani to build his dock 30 feet
from the Soboleskis' property line. The logic of the Solboleskis is
elusive.
11 a) The Report states that "the dock can be shortened to
approximately 75' and miss the sea grass area." Clearly, this statement
misapprehends the facts. A dock of 75' would allow only 14' of dock seaward of the
sea grass area, which is plainly inadequate to accommodate the two boatlifts allowed
by Code. In fact, a lift constructed in this manner would not allow a boat to float at low
tide. The bow of the boat would damage the sea grass and the roof overhang would
shade the sea grass.
(b) The Report states "application is inconsistent with the information
contained in the County Report (specifically, the length of the dock)." The dock initially
reviewed by the County was 86' feet in length, 9' shorter than this proposed dock. That
proposal also consisted of two boatlifts side by side, which the County found to be
acceptable. Now the boatlifts flank the dock as suggested by the County.
I request that you speak personally with Harbormaster Morris regarding Mr.
Mariani's application. He is very familiar with ill[ of the facts and circumstances
surrounding the request and the objections of the neighbors.2
2 It is noted that the objectors Niemann are separated from Mr. Mariani's property by the objectors
Soboleski. Their east property line is 220 feet from the location of the proposed dock. The impact of Mr.
Mariani's proposed dock on the Niemanns is negligible at best.
'VIs
JOHNSON'LAKELY, POPE, BOKOR, RUPP.& BURNS, P.A.
ATTORNEYS AND COUNSELLORS AT LAW
Ms. Cyndi Tarapani
March 5, 2002
Page 4
If you have any questions, please call me.
Very truly yours,
JOHNSON, BLAKELY, POPE, BOKOR,
RUPPEL & BURNS, P.A.
T AJ/lrc
261632
415
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PRIVATE DOCK
Application #
,
(OFFICIAL USE ONLY)
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TOTAL SQUARE FEET Jf7/.9, ZS
. WATERWAY WIDTH ;5?O &l
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JOHNSON, .ELY, POPE, BOKOR, RUPPEL.URNS, P.A.
ATTORNEYS AND COUNSELLORS AT LAW
E. D. ARMSTRONG III
JOHN T. BLAKELY
BRUCE H. BOKOR
GUY M. BURNS
JONATHAN S. COT,EMAN
MICHAEL T. CRONIN
ELIZABETH J. DANIELS
BECKY FERRELL-ANTON
MARION HALE
SCOTT C. ILGENFRITZ
FRANK R. JAKES
TIMOTHY A. JOHNSON, JR.
SHARON E. KRICK
ROGER A. LARSON
JOHN R. LAWSON, JR"
MICHAEL G. LITTLE
MICHAEL C. MARKHAM
STEPHANIE T. MARQUARDT
ZACHARY D. MESSA
A.R, "CHARLIE" NEAL
F. WALLACE POPE, JR.
ROBERT V. POTTER, JR.
AUDREY B. RAUCHW A Y
DARRYL R. RICHARDS
PETER A. RIVELLINI
DENNIS G. RUPPEL"
CHARLES A. SAMARKOS
PHILIP M. SHASTEEN
JOAN M. VECClllOLl
STEVEN H. WEINBERGER
JULIUS J. ZSCHAU
"OF COUNSEL
PLEASE REPLY TO CLEARWATER
FILE NO. 42809.104550
April 14, 2002
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Via Hand Delivery
Ms. Cyndi Tarapani
Community Development Coordinator
City of Clearwater
Planning and Development Department
100 S. Myrtle Avenue
Clearwater, FL 33756
Re:
FLS-02-01-03
193 Devon Drive - Mariani Dock
Flexible Standard Development Approval
filE
p.t~ I?Z~t7I.()'J
Dear Ms. Tarapani:
This letter responds to letters under dates March 14, and March 27, 2002, from
Maxwell G. Battle, Jr., the attorney for James and Debra Soboleski. Mr. Battle's letters
and exhibits are lengthy but boil down to the following objections concerning the
Mariani application:
1. Section 4-202A.12.e. requires that structural overhangs and building
heights be depicted.
2. Section 4-202A.24. requires that the application be accompanied by
detailed plans and specifications prepared by a Florida professional engineer.
3. The roof deck area should be included with the dock deck area In
determining the applicable standard of review.
4. A dock may be constructed only as an accessory use to a single family
residence.
CLEARWATER OFFICE
911 CHESTNUT STREET
POST OFFICE BOX 1368
CLEARWATER, FLORIDA 33757-1368
TELEPHONE (727) 461-1818
TELECOPIER (727) 462.0365
fXH\BI'( C
wls1tG
TAMPA~JLE
IOONORTHTCT E
SUITE 1800
POST OFFICE BOX 1100
TAMPA, FLORIDA 33601.1100
TELEPHONE (813) 225.250011
0-o--ZCOPIER (813) 223.7118/ if
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J OHNSO~AKEL Y, POPE, BOKOR, RUPP~ BURNS, P .A.
ATTORNEYS AND COUNSELLORS AT LAW
'.
. -
Ms. Cyndi Tarapani
April 14, 2002
Page 2
5. The application requires a level two review, rather than a level one review.
6. The proposed dock infringes on the Soboleskis's view.
I respond to each of these issues, item by item, as follows:
1. Section 4-202A.12.e. applies only to proposed developments that exceed
one acre. Mr. Mariani's proposed development does not exceed one acre.
2. Section 4-202A.24. relating to plans and specifications being prepared,
signed and sealed by a Florida registered professional engineer has uniformly been
disregarded by the City with respect to dock applications. In any event, in this case, the
City has waived enforcement of this requirement, if applicable, by having determined
that the application was complete in accordance with the provisions of 4-204C.
3. Section 3-601 C.1.d. makes clear that covered boat lifts are permitted.
Historically, covered boat lifts have not been included within the calculation of deck
area. This is because a covered boat lift does not carry with it the same environmental
shading concerns as does a dock.1
4. City Staff has suggested a condition requiring that the building permit for
the principal residence be issued before or simultaneously with the building permit for
the dock. This condition is acceptable to Mr. Mariani.
5. Mr. Battle offers no support for his contention that this application should
be reviewed as a level two flexible development approval. These applications are a
level one flexible standard approval, as specifically provided in Section 3-601 C.1.g.
That provision allows for a level one flexible standard approval of a deviation from siting
requirements for three separate reasons, the following two of which are indisputably
met in this case:
ilL The proposed dock will result in no navigational conflicts and
the length of the proposed dock will not exceed twenty-five (25%)
percent of the width of the water way; or
l' I Dote in passing that I find nothing in the City's dock ordinance that limits to 500 square feet the size of
a dock serving a single family dwelling,
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JOHNSON.AKELV, POPE, BOKOR, RupplI BURNS, P.A.
ATTORNEYS AND COUNSELLORS AT LAW
Ms. Cyndi Tarapani
April 14, 2002
Page 3
ii. The proposed dock location needs to be adjusted to protect
environmentally sensitive areas.. .."
6. The real gist of the Soboleskis's complaint is, of course, the location of the
proposed dock and its affect on their view. The graphics submitted on their behalf
attempt to depict the effect of Mr. Mariani's proposal on their view.2 They then suggest
that moving the dock further to the east would ameliorate that effect. Several
comments are in order.
First, as harsh as it may sound, view is not a factor listed in the dock ordinance
to be taken into consideration by the Community Development Coordinator in
connection with reviewing an application for a deviation. This is for good reason.
When one purchases waterfront property, one can expect that docks and covered boat
lifts will be part of their view. . One cannot expect an unencumbered view of the
waterfront. Enclosed are photographs numbered 1 thru 23 depicting typical waterfront
covered boat lifts and dock configurations located within Clearwater's municipal limits.
These photographs amply demonstrate that views of waterfront property owners are
routinely obstructed to varying degrees by docks and covered boat lifts.
Second, even were a view analysis appropriate, the real issue is not whether
the Soboleskis's view will be affected, but, rather, how much, if any, the
Soboleskis's view will be adversely affected by the proposed construction as
contrasted with what Mr. Mariani could construct without deviation from code.
Stated differently, absent the environmental considerations that require the dock to be
lengthened, Mr. Mariani could build a dock as a matter of right. How would the
Soboleskis's view be affected by that dock and as compared with the dock Mr. Mariani
proposes?
Enclosed with this letter is a drawing prepared by Mr. Mariani's architect, Alex
Plisko, and dated April 11, 2002. That drawing depicts as Diagram A, a boat dock that
Mr. Mariani, absent environmental concerns, could construct as a matter of right without
any deviation from code. This construction obscures sixty-one (61 %) percent of the
view corridor available to the Soboleskis looking from the rear of their property in an
easterly direction to a southerly direction.3 The proposed construction, depicted as
2 Regrettably, the graphics submitted are not truly representative of Mr. Mariani's proposal or the effect of
moving the dock in an easterly direction.
3 This view corridor is a total of 760. Diagram A shows 460 obstructed. 460 + 760 = 61%
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JOHNSON, BLAKELY, POPE, BOKOR, RUPPEL & BURNS, P.A.
ATTORNEYS AND COUNSELLORS AT LAW
Ms. Cyndi Tarapani
April J4, 2002
Page 4
Diagram B, obscures only thirty-two (32%) percent of that same view corridor.4 Thus,
the proposed construction obstructs about one-half (1/2) of the view that would be
obstructed by the structure that could be constructed by Mr. Mariani as a matter of right,
absent the environmental condition at his seawall. Mr. Mariani's proposal
substantially improves the Soboleskis's view over what Mr. Mariani could
construct as a matter of right, without environmental concerns.
In conclusion, the points raised by Mr. Battle are without merit. Mr. Mariani has a
right to locate his dock where he pleases, so long as he complies with City code. In this
case, he is forced to extend the length of his dock because of an existing environmental
condition not of his making.s His proposed dock obstructs substantially less of the
Soboleskis's view than could be obstructed as a matter of right if this environmental
condition did not exist. The Soboleskis, or their predecessor in title, located their dock~
at the extremes of their property so as to preserve the view in the center of their
property. Mr. Mariani should be given the same. consideration. The fact that the
Soboleskis have not yet chosen to cover their boat slip is immaterial. They, or their
successor, could do so as a matter of right at any time.
Please grant Mr. Mariani's application.
Very truly yours,
JOHNSON, BLAKEY, POPE, BOKOR,
R,~:~~ &/B~~~. . ..~,P.A.
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Timothy A. Johnson, Jr.
CC: Mr. Chris Mariani
264678
4 240 ~ 760= 32%
5 Mr. Mariani has already once reduced the size of his dock and boat lift cover in response to the
concerns expressed by the Soboleskis.
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CITY OF CLEARWATER
PLANNING DEPARTMENT
STAFF REPORT FOR 2/14/02 DRC MEETING
BACKGROUND INFORMATION:
APPLICANT:
Mr. Christopher Mariani
PROPERTY LOCATION:
193 Devon Drive
REQUEST:
Flexible Standard Development approval to increase the
length of a dock from 60 feet (50 percent of the width of
the property) to 92 feet (76.6 percent of the width of the
property) under the provisions of Section 3-601.
APPLICA TION NUMBER:
FLS 02-01-03
ZONING:
LMDR, Low Medium Density Residential District
EXISTING USE:
Single-family residential
ADJACENT LAND USES:
North:
South:
East:
West:
Single-family residential
Clearwater Bay
Single-family residential
Single-family residential
Page 1
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STAFF ANALYSIS
The 0.33-acre site is site located on the south side of Devon Drive approximately 1,350 feet east
of Harnden Drive. The site is vacant.
The neighborhood consists entirely of well-maintained, single-family dwellings.
The application includes a 440 square foot dock and two 532 square foot covered boatlifts. The
proposed dock and boatlifts are proposed to be located minimum of 30 feet from the side (east
and west) property lines. All other Code requirements regarding docks will be met.
All required building permits would need to be obtained prior to construction. This would need
to be done concurrent with or subsequent to a building permit for a single-family dwelling.
The site is located in a stable, residential neighborhood that is undergoing redevelopment. The
request to increase the permitted length of the dock is in keeping with the established character of
the area and will provide a more environmentally sensitive situation over existing conditions.
The location of the dock should be in the center one-third of the site to reduce or eliminate any
negative impacts on adjacent properties. The revised dock will need to be submitted as part of a
building permit application. The Harbor Master has determined that the proposal is not a
navigational hazard or obtrusive and is in keeping with the character of the neighborhood.
B. FLEXIBILITY STANDARDS FOR DOCKS IN ASSOCIATION WITH SINGLE-
F AMIL Y DWELLINGS IN THE LMDR, LOW MEDIUM DENSITY RESIDENTIAL
DISTRICT (Section 3-601):
STANDARD REQillREDI EXISTING PROPOSED IN
PERMITTED COMPLIANCE?
LENGTH 50 percent of the Vacant 86 feet (71 No
maximum width of the percent)
property (60
feet)
WIDTH Thirty-five (35) Vacant 36 feet Yes
Maximum percent of the
width of the
property (42
feet) or fifty (50)
feet, whichever
is less
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STANDARD REQUIRED/ EXISTING PROPOSED IN
PERMITTED COMPLIANCE?
SIDE Docks: the Vacant Dock: Yes
SETBACK center one-third East: 30 feet
of the lot (40 (minimum)
feet) or twenty West: 30 feet
(20) feet from (minimum)
any property Boatlift:
line, whichever West: 30 feet
is less (minimum)
Boatlifts/service
catwalks:
minimum of ten
(10) feet from
any property line
C. FLEXIBILITY CRITERIA FOR DOCKS IN THE LMDR, LOW MEDIUM DENSITY
RESIDENTIAL (Section 2-203):
1. The proposed dock will result in no navigational conflicts and the length of the
proposed dock will not exceed twenty-five (25) percent of the width of the waterway;
or
The Pinellas County Department of Environmental Management has issued a report
which states that there are no navigational concerns with the proposed development. The
length of the proposed dock will be 14 percent of the width of the waterway.
2. The proposed dock location needs to be adjusted to protect environmentally
sensitive areas; or
The Pine lIas County Department of Environmental Management has issued a report
which states that the proposal is more environmentally sensitive than the existing dock
and constitute an improvement over existing conditions.
3. The property configuration precludes the placement of a dock in compliance with
the required dimensional standards; however, the proposed dock will be similar in
dimensional characteristics as surrounding dock patterns.
Not applicable as the only one of the above three criteria must be met. The first two
criteria have been satisfied, however, the proposed dock, as amended, will be similar to
surrounding dock patterns.
Page 3
vi CO
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,;
D. GENERAL APPLICABILITY (Section 3-913): Conditions which are imposed by the
Community Development Coordinator and the Community Development Board
pursuant to a Level One or a Level Two Approval shall ensure that:
1. The proposed development of the land will be in harmony with the scale, bulk,
coverage, density, and character of adjacent properties in which it is located.
Most of the properties in the neighborhood have docks approximately 35 to 90 feet in
length. The proposed dock of 92 feet in length appears to be consistent with the character
of the area.
2. The proposed development will not hinder or discourage the appropriate
development and use of adjacent land and buildings or significantly impair the
value thereof.
The site is zoned LMDR District and the proposed use will be in compliance with that
zoning. The proposed development should not discourage appropriate development and
use of adjacent land buildings.
3. The proposed development will not adversely affect the health or safety or persons
residing or working in the neighborhood of the proposed use.
The use will not change with this proposal. The development will not negatively affect
the health or safety or persons residing or working in the neighborhood.
4. The proposed development is designed to minimize traffic congestion.
The use does not change with this proposal and will have no increased effect on traffic.
5. The proposed development is consistent with the community character of the
immediate vicinity of the parcel proposed for development.
Most of the properties in the neighborhood have docks approximately 35 to 90 feet in
length. The proposed dock of 92 feet in length appears to be consistent with the character
of the area.
6. The design of the proposed development minimizes adverse effects, including visual,
acoustic and olfactory and hours of operation impacts, on adjacent properties.
The location of the dock, as suggested by Staff, will reduce or eliminate visual impacts on
surrounding properties to the west.
Page 4
1/5
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STAFF RECOMMENDATION:
Based on the on the application, the proposal is in compliance with the standards and criteria for
Flexible Standard Development approval, with the maximum development potential and with all
applicable standards of the Community Development Code.
Therefore, staff recommends APPROVAL of the application for Flexible Standard Development
approval to increase the length of a dock from 60 feet (50 percent of the width of the property) to
92 feet (76.6 percent of the width of the property) under the provisions of Section 3-601 at 193
Devon Drive.
Bases for approval:
1. The proposal complies with the Flexible Standard Development criteria under the provisions
of Section 3-601.C.g;
2. The proposal, as amended, is in compliance with other standards in the Code including the
General Applicability Criteria per Section 3-913; and
3. The development, as amended, is compatible with the surrounding area.
Conditions of approval:
1. That a building permit for the proposed dock only be issued concurrently with, or subsequent
to, building permit issuance for a principal, residential structure on the site;
2. That the proposed dock be relocated farther east (with the dock head centered on the
midpoint of the waterfront property line, as measured at the seawall) and constructed perpen-
dicular to the waterfront property line;
3. That the relocation of the dock meet all criteria under Section 3-601.C.1; and
4. That revised plans reflecting conformance with condition #2 be submitted with the building
permit application, to the satisfaction of staff.
S:\Pla/llzing Departmen^C D lJ\Standard Flex\Pending Cases\3 - Up for the Next DRClDevon 193 Marialll\Devon 193 Report.doc
Page 5
cs/s
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CITY OF CLEARWATER
PlANNING DEPARTMENT
POST OFFICE Box 4748, CLEARWATER, FLORlDA 33758-4748
MUNICIPAL SERVICES BUILDING, 100 SOUTH MYRTIE AVENUE, CLEARWATER, FLORlDA 33756
TELEPHONE (727) 562-4567 FAX (727) 562-4576
LONG RANGE PlANNING
DEVELOPMENT REvIEW
HOUSING DMSION
NEIGHBORHOOD SERVICES
Mr. Timothy Johnson
Johnson, Blakely, Pope, Bokor, Ruppel & Bums, P.A.
911 Chestnut Street
Clearwater, FL 33756
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July 22, 2002
RE: Development Order regarding case FLS 02-01-03 at 193 Devon Drive
Dear Mr. Johnson:
This letter constitutes a Development Order pursuant to Section 4-202.E of the Community
Development Code. On February 14, 2002, the Development Review Committee (DRC) reviewed
your application for Flexible Standard Development approval to increase the length of a dock from 60
feet (50 percent of the width of the property) to 92 feet (76.6 percent of the width of the property)
under the provisions of Section 3-601. The application includes a 440 square foot dock and two 532
square foot covered boatlifts to be located a minimum of 30 feetfrom the side (east and west) property
lines. The DRC recommended approval of the application with conditions. I concur with the findings
of the Development Review Committee and, through this letter, approve your application for Flexible
Standard Development with the following bases and conditions:
Bases for approval:
I. The proposal complies with the Flexible Standard Development criteria under the provisions of
Section 3-601.C.g;
2. The proposal, as amended, is in compliance with other standards in the Code including the General
Applicability Criteria per Section 3-913; and'
3. The development, as amended, is compatible with the surrounding area.
EXff! Brr E
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BRIAN.J. AUj'~GSTt i'vL:\.YOR-COM~q:SS!Of\}~R
ED l-IART, VICE 1\1J.l.YOR-CO\Ii\HS~;IONER \VHiTl<EY Gft\y, COMM!SSIO:\ER
HoYT EMIILTOi'!, COMMISSIONER BiLLJm,sor-:, CO,i:-USSIONER
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July 22, 2002
Johnson - Page Two
.
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Conditions of approval:
1. That a building permit for the proposed dock only be issued concurrently with, or subsequent
to, building permit issuance for a principal, residential structure on the site;
2. That the proposed dock be relocated farther east (with the dock head centered on the midpoint
of the waterfront property line, as measured at the seawall) and constructed perpendicular to the
waterfront property line;
3. That the relocation of the dock meet all criteria under Section 3-601.C.1; and
4. That revised plans reflecting conformance with condition #2 be submitted with the building
permit application, to the satisfaction of staff.
I concur with .the findings of the Development Review Committee and, through this letter, approve
your application for Flexible Standard Development with the four above conditions. The approval is
based on and must adhere to the site plan dated received April 15, 2002 or as modified by condition #2.
Pursuant to Section 4-303, an application for a building permit shall be made within one year of
Flexible Standard Development approval (July 22, 2003). All required certificates of occupancy shall
be obtained within one year of the date of issuance of the building permit. Time frames do not change
with successive owners.
Please be aware that the issuance of this Development Order does not relieve you of the necessity to
obtain any building permits or pay any impact fees that may be required. In order to facilitate the
issuance of any permit or license affected by this approval, please bring a copy of this letter with you
when applying for any permits or licenses that require this prior development approval.
In addition, please be aware that an appeal of a Level One approval (Flexible Standard Development)
may be initiated by a property owner abutting the property, which is the subject of the approval, within
seven days of the date the Development Order is issued. A copy of the Development Order is being
sent to the surrounding property owners. The filing of an application/notice of appeal shall stay the
effect of the decision pending the final determination of the case. The appeal period for your case will
expire on July 29,2002.
If you have any questions, please do not hesitate to call Mark Parry, Planner at 727.562.4558.
cc: Christopher Mariani, Property Owner
Surrounding Property Owners
S:\Planning Department\C D B\Standard Flex\Jnnactive or Finished Cases\Devon ] 93 Mariani - Approved\Devon 193 DEVELOPMENT ORDER.doc
'Z1z--
. . .
lrATTLE & EDENFIELD, P.A.
ATTORNEYS AT LAW
MAXWELL G. BATTLE, JR..
MICHAELS. EDENFIELD
206 MASON STREET
BRANDON, FL 33511.5277
(813) 685.3014
FAX (813) 684-5922
ALSO ADMlTfED
. COLORADO
. NEW MEXICO
. MONTANA
July 26,2002
Cyndi Tarapani, Community Development Coordinator
City of Clearwater Planning Department
100 South Myrtle Avenue
Clearwater, FL 33756
HAND DELIVERY
RE: Application for Flexible Development Standard
Approval submitted by Chris Mariani; FLS 02-01-03;
APPLICATION FOR ADMINISTRATIVE APPEAL;
Dear Ms. Tarapani:
Enclosed is my Client's APPLICATION FOR ADMINISTRATIVE APPEAL with respect to the
Development Order entered in this matter along with payment of the Administrative Filing Fee
in the amount of$100.00. Please let me know immediately if you need anything else to process
the Appeal.
ve~J.~Yours;~ ~.
~:~~~~
Cc: James and Deborah Soboleski
1
THIS IS A DUPLICATE ORIGINAL PRINTED ON PINK PAPER
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CITY OF CLEAR.TER
APPLICA nON FOR ADMINISTRATIVE APPEAL
PLANNING & DEVELOPMF...NT SERVICES ADMINISTRATION
MUNICIPAL SERVICES BUILDING, 100 soum MYRTLE A VENUE. 2ad .FLOOR
PHONE (727) 562-4567 FAX (727) 562-4576
J
ALL APPLICA.TIONS FOR. APPEAL OF LEVEL 1 FLEXIBLE ST A.NDARD APPROVALS MUST BE RECEIVED BY
THE PLANNlNG DEPARTMENT WITHIN:FIVE DA vS OF THE .DA.TE OF THE DECISION BEING APPEALED.
ALL OTHER APPLICATIONS FOR APPEAL MUST BE RECEIVED BY THE PLANNING DEPARTMENT WJTHIN 14
DAYS OF THE DATE or Tim DECISION BEING APPEALED.
APPELLANT AND AGENT INFORMATION:
PHONE NUMBER
DeI3Q~AH 1.-, G:i~e€/V 5.:>j3.:.i..€Si-U: rf4a. t>-=~"'i<.AH /.... fC,r<r,.cN
\ ~ \ t> eo VON '0 rU vc:) C L~ 1tn..lJ.JI1TE/2...) F L. "337(,,-'
TZ7- 40/.- 02 ,=>4 FAXNUMBER: "12..7- 4f.:.<O - b4-<'::'S"
MA",(We l-l-. G. P.J4 r ILc ) J"P--, : IE S<:p,
;2..0<0 \\I\J\S-'i/\J "'Srr?-eE/, B~/H.JDoN .. FL 335/7
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:(72-') -432 - i '177 FAX NUMBER {e-'~) ~'3i.f-- 3014
APELLANT NAME
MAIUNG ADDRESS
PHONE NUMBER
AGENT NAME
MAILING ADDRESS
APPEAL INFORMATION:
DECISION BEING APPEALED: \) cve~PJ1'lcl\Jl oJ4-D~n.. R~~411-t1/"'l:1 CAse :#-Pl-'S o2-cj - 0"3
AI 1<=t:J.> "DC-v"",", vttlv'C.., 5e-€ e::><H//3/T A /frTJ4G/ie:D
DATE OF DECISION
Jt>-L-'1 22 )1-'::'02-
BJlSIS FOR APPEAL
IUse additional sheets
If nec:f!S&lIryt
0...0'\
WITH YOUR AWLlCAlION pLEIlSE SUBMIT:
A Copy OF THE DECISION BEING APPEALED:
NAMES. ADDRESSES AND CURRICULUM ViTAE OF ALL EXPERl" WITNESSES TlfAT wtU- PRESENT INFORMATION AT THE MEETING;
COPY OF THE BASIS FOR THE APPEAL IN THE NATURE OF AN INITIAL BRIEF AND ANY EVIDENCE, INCLUDING TEsnMONY. AND
AffiDAViTS. THE BRIEF MUST AT A MINIMUM STAn: ALL GROUNDS FOR THE ApPEAL INCLUDING. BUT NOT UNlrTED TO, THE LAW
BEING AP9EALED AND Atrf FACTS NECESSARY FOR THE INTEf=lPRETATION OF THOSE LAWS.
I, the undersigned, acknowledge that all
representations made in this application
are true and accurate to the best of my
knowledge.
STATt: OF FLORIDA. COUNTY OF PINELLAS
Sworn to and subscribed before me this >) '{ day of
-V~f -
,\ .' A.D., ~.JC<"/~ to me and/or
by ~13{)fit"'j+ c;;..i?o€1J ~Y"'i:.~('j G/SIT::J ,who is personally
I<.nown has produced IL DJ{iJe'" Lt o~./...Irv as
'fIJ
Nota u. c. ~".t;~""".' Leslie F. Novnk
my commlSSIOO ellplres; !-<5l?.;..,/J ~ Cornmis9i~ I: CC 97ilO71
= ~, ...= tI":';'i.re$ Dee. 11. 20M
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EXHIBIT B
CONTINUATION OF SPECIFICATION OF BASIS FOR APPEAL
The Development Order appealed from fails to comply with the requirements of
the Community Development Code, departs from the essential requirements of law and
should be reversed because:
1) It is based upon and concurs with the findings of the Development Review
Committee. However, except for Mark Parry's February 15, 2002 "FAX
MESSAGE" to Tim Johnson, there are no written findings in the file [or
were not on, and prior to, July 18, 2002]. If the "comments" reported by
Mr. Parry in his February 15,2002 FAX MESSAGE are the findings the
Development Order refers to, then they are based upon a flawed and
inaccurate Staff Report. See Maxwell G. Battle, Jr's letter to Cyndi
Tarapani dated April 26, 2002; and
2) It approves a proposal based upon a non-existent plan; and
3) It was not signed by the Community Development Coordinator; and
4) It grants relief that is inconsistent with the Flexible Standard Development
criteria under 3-601.C.1.g; and
5) It grants relief that is inconsistent with other provisions of the Community
Development Code including without limitation 1-103.A, 1-103.B.2, 1-
103.E.3, 3-601.C.1.d, 3-601.C.1.e, 3-601.C.1.g and 3-913; and
6) It grants relief upon an application that does not comply with the
requirements of 4-202.A.24; and
7) It approves a proposal which is incompatible with the surrounding area;
and
8) The Application was amended after the Development Review Committee
concluded its review; and
9) It refers to a Site Plan dated April 15, 2002 which was not in the city's file
on the dates of four (4) reviews of the City File [3/15/02, 4/23/02, 6/06/02
and 7/18/02], the last of which was on July 18, 2002, the Thursday before
the Order was signed. There was however a single Architectural Drawing
by Plisko Architecture, P.A. AIA dated, unsigned and unsealed with
revisions of 4/1 0/02 and 4/11/02 entitled DOCK PLANS. This document
depicts two dock configurations. If this is the "site plan" referred to by the
Development Order, then the Development Order is vague and ambiguous
in that it does not clearly identify which configuration on the "site plan" is
required to be adopted by the Condition #4.
10) Although the Development Order requires concurrent issuance of a
building permit for a residence and dock, it allows the dock to be
permitted and built without first requiring the construction of a single
family residence. If the residence was permitted but not built, this would
result in the dock being allowed as a primary, rather than accessory use.
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11) The Community Development Coordinator apparently misconstrued the
effect of Section 3-601. C.1.g to require rather than allow deviations to the
dock criteria.
INITIAL BRIEF
Standini! of ADDellant
Deborah L. Groen Soboleski, formerly known as Deborah L. Groen is the record
title holder of 191 Devon Drive, Clearwater, FL 33763, which property is adjacent to,
and contiguous to, the Mariani property to which the Development Order is addressed.
Appellant's East property line adjoins Mr. Mariani's West property line.
Flawed Staff ReDort
The Development Order concurs with the findings of the Development Review
Committee. With exception of Mark Parry's reported comments to Tim Johnson [Fax
Message of 02-15-02], there were no written "findings" of the Committee in the file on,
or prior to, July 18, 2002. Further, the Development Review Committee had before it at
the time of its review a seriously flawed and inaccurate Staff Report. See Maxwell G.
Battle, Jr.' s letter to Cyndi Tarapani dated April 26, 2002. The flaws are so pervasive
and egregious as to call into question the entire review process on the Application in
question. At a minimum, allowing the Development Review Committee to act upon such
clearly erroneous and incomplete information departs from the essential requirements of
law.
Non-Existent Plan
The Development Order appealed from approves a proposal that does not yet exist
in final form. It directs submission of a new plan for review by City Staff It is
inappropriate to issue a Development Order that allows the "approved proposal" to be
created after the Development Order is issued. Such an approval subverts the entire
review, approval and appeal process, departs from the essential requirements of law and
violates both substantive and procedural due process rights of the Appellant under the
Florida and United States Constitutions.
Develooment Order Not ProDerlv Entered
The Community Development Code provides that the Community Development
Coordinator may issue a Development Order approving a Level One Review item. The
Development Order is signed by another City Employee. There is no indication in the
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file that this City Employee is a duly authorized representative of the Community
Development Coordinator. Accordingly, the Development Order should be declared
void.
Inconsistent with Section 3-601.C.1.!!
of the Community Development Code
The proposed dock does not need to be adjusted in length to protect
environmentally sensitive areas if the covered boatlifts are omitted and it is moved to the
East. The property configuration does not preclude placement of the proposed dock in
compliance with the required dimensional standards and the proposed dock is not similar
in dimensional characteristics to surrounding dock patterns. Moving the dock to the East
side of the Mariani lot as suggested by Appellant would serve to protect existing grass
beds. Further, under the foregoing circumstances and until proper final plans are
submitted, it can not be said unequivocally that no navigational conflicts would be
created.
Inconsistent with other Provisions of
The Community Development Code
Section l-103.A envisions that development will be conducted in a manner that
enhances the character of the City, the preservation of neighborhoods and enhances the
quality of life. The Mariani proposal violates each of these principals.
Section l-103.B states that the CDC's purpose is, inter alia, to ensure that
development and redevelopment will not have a negative impact on the value of
surrounding properties and wherever practicable promotes the enhancement of
surrounding property values. The Mariani proposal will have a drastic negative impact
upon the value of the Appellant's property. On the waterfront, view is value.
Section l-103.E.3 requires the protection and conservation of land values
throughout the City. The Mariani proposal contravenes this goal. It destroys the
Soboleski view and devalues their property.
Section l-103.E.5 requires preservation of the aesthetic character of the
Community. The Mariani proposal contravenes this goal. It sets a precedent of allowing
covered boat lifts that rival many residences in size.
Section 1-1-3.E.6 indicates that open spaces should be provided through efficient
project design and layout that addresses appropriate relationships between buildings on
the project site and adjoining properties. The Mariani proposal attempts to crowd the site
at the waterfront when open space could be fostered by moving the dock to the East side
of the property and/or deleting the covered portion ofthe lifts.
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Section 3-601.C.1.d prohibits vertical sidewalls on any dock or boatlift. The
Mariani proposal contains vertical sidewalls as a portion of the roof in controvention of
this section. The vertical sidewalls add to the perception of mass of the structure.
Section 3-601.C.1.e provides that no more than two slips can be created. The
Mariani proposal includes tie piles along with boatlifts, which effectively creates more
than two slips in contravention of this section.
Failure to Provide Complete Plans
in Compliance with Section 4-202.A.24
Section 4-202.A.24 requires that complete plans be submitted with the application
which are signed and sealed by a Florida Registered Professional Engineer. It clearly
says "shall" be accompanied by such plans. Under Section 8-I01.E, "shall" means
mandatory in nature. This was not done by Mariani. Given the clear mandate of Section
8-101.E, the requirement can not be waived. The result is that neither the Staff, the
Community Development Board or the Community Development Director had before
them a complete application. Nor did they have an accurate and specific plan of the actual
proposed size (height, width and depth) of the proposed dock, covered boatlifts, and slips
from which to properly evaluate the proposal. Similarly, affected property owners have
been denied the same information. Accordingly, the proposal can not have been properly
evaluated and approved because the application did not comply with the Community
Development Code. By proceeding to process the application the Community
Development Coordinator departed from the essential requirements of law.
Incompatibility with Surroundinl! Area
The proposal is not compatible with the surrounding area. A review of the
materials submitted by James and Deborah Soboleski clearly show that there are no
private docks with dual covered lifts of the size proposed by Mariani. The Mariani
proposal constitutes a substantial departure from the character of docks in the
neighborhood.
Amendment after Review
The Mariani proposal was repeatedly amended after the Development Review
Committee completed its review. Accordingly, the Development Review Committee
reviewed and commented upon a different proposal than the Planning Director ostensibly
approved. None of the surrounding property owners appear to have been notified of the
amendments, and certainly none of them could possibly have any idea of what the end
result might be because the final plan still has not been submitted. Accordingly, the City
Planning Department has not acted in accordance with its own Codes and has departed
from the essential requirements of law.
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April 15. 2002 Site Plan
The Development Order requires compliance with an April 15, 2002 Site Plan.
No such site plan was in the file on July 18,2002 [nor on 3/15/02, 4/23/02 or 6/06/02]. If
such a site plan exists [and was submitted], it has been shielded from Public view.
Further, it clearly was not evaluated by Staff prior to the Development Review
Committee Meeting, or by the Development Review Committee because no such plan
could have existed at that time by simple examination of the dates of each. If the "Site
Plan" referred to is the Plisko Architecture, P.A. "DOCK PLANS" revision dates 4-10-02
and 4-11-02, the order is too vague and ambiguous. It does not clearly identify what
portion of the Plisko "DOCK PLANS" is to be incorporated into the revised plans to be
submitted in accordance with Condition #4.
Accessorv Use
The Development Order requires only that a residence permit be issued at or
before the dock permit is issued. It does not requires that the residence be constructed
first. The issuance of a permit to build a residence does not require that the residence be
built. Unless the residence is built, the dock would be an impermissible primary use
rather than an accessory use. Accordingly, the Development Order departs from the
essential requirements of law by not requiring that the residence be constructed before the
dock.
Community Development Coordinator
Misconstrued Section 3-601.C.1.e
It appears that the Community Development Coordinator misconstrued Section 3-
601.C.l.g to require rather than allow the granting of a deviation from the dock criteria if
any of the 3 criteria for deviation was met. Section 3-601.C.1.g uses the term "may"
which under Section 8-101.F means "permissive", not mandatory. Accordingly, the
Community Development Coordinator was not required to grant the relief sought by Mr.
Mariani.
ADOPTION OF PRIOR POSITIONS
In addition to the foregoing issues, Appellant adopts the positions set forth in
Maxwell G. Battle, Jr.'s letters dated March 14, 2002, March 27, 2002 and April 26,
2002, copies of which are attached to this Application for Administrative Appeal.
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WITNESSES AND PROOF
At hearing the appellant intends to offer additional argument, testimony from live
witnesses and tangible evidence. Witnesses may include a Florida Registered
Professional Engineer, a Florida Registered Land Surveyor, one or more Florida Licensed
Real Estate Brokers, one or more Florida Licensed Real Estate Appraisers, a duly
licensed Florida Contractor and lay witnesses. These witnesses will be designated more
fully at a later date.
CONCLUSION AND REQUESTED RELIEF
F or the reasons set forth herein above, the Development Order must be reversed
and the application in Case No. FLS02-0 1-03 denied. In the alternative, the Development
Order should be modified to require moving the proposed Mariani dock to the Eastern
most side of his Lot and deleting the covered lift portions of the dock.
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07/22/2002 13:05
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CITY OF CLEARWATER
PLANNING DEPARTMENT
POST OfFICE Box 4748, CIJ!ARW;.rER, FLORI~ 33758-4748
MUN1CIPM. SI!RVlCP.S ButJ.PlNG, 100 SOUTH MYR'I'LE AVliNUE, CLEAR\VAl1Hl, FLORIDA 33756
TI!LEPHONE (727) 562-4567 FAX (727) 562.4576
Wt'4G RANGIi: PIANNING
DEVHLO(>MIINT RJiv'mW
HOUSING DlVISlON
NEXGtlaORHOOD Sl'IMCRS
July 22) 2002
Mr. Timothy Johnson
Johnson. Blakely, Pope. Bokor. Ruppel & Bums. P.A.
911 Chestnut Street
Clearwater. FL 33756
RE: Development Order regarding case FI.S 02-01-03 at 193 Devon Drive
Dear Mr. Johnson:
This lctter constitutes a Development Order pursuant to Section 4-202.E of thc Community
Development Code. On February 14, 2002. the Development Review Committee (DRe) revicwed
your application for Flexible Standard Development approval to increase the length of a dock from 60
feet (50 percent of the width of the property) to 92 feet (76.6 percent of the width of the property)
under the provisions of Section 3-601. The application includes a 440 square foot dock and two 532
square foot covered boatlifts to be located a minimum of 30 feet'fro:m the side (east and west) property
lines. The DRC recommended approval of the application with concUtions. I concur with the findings
of the Development Review Committee and, through this letter, approve your application for Flexible
Standard Development with the following bases and conditions:
Bases for approvat
1. The proposal complies with the Flexible Standard Development criteria under the provisions of
Section 3-601.C.g;
2. The proposal) as amended, is in compliance with other standards in the Code including the General
Applicability Criteria per Section 3-913; and
3. The development, as amended, is compatible with the surrounding area.
'::::: X' (-.t In,' .';"- A
Is-.;- ; l 1::-.) i /'1
BRIAN J. AUI'GS'l'. lVLWOR-CQMMI$SlOl\Elt
El) HART, VICE M.AYOR-COM~II:;SIONI,R WHITNEY GRW, COMMISSIONER
1-10\'1 HAMlI.TQN, COMMlsstQN!'R * BU.l.JONSON, COM~lIS$IQNER
"EQUAi, EMPLOYMENT ,\Nl) A.I:F1RMATfVE ACTION EMPl.OYH1."
'1 {9-'7
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72755245.
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PAGE 03
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July 22, 2002
Jol1nson - Page Two
Conditions of a:pproval:
1. That a building permit for the proposed dock only be issued concurrently with, or subsequent
to, building permit issuance for a principal, residential structure on the site;
2. That the proposed dock be relocated farther east (with tbe dock head centered on the midpoint
of the waterfront property line, as measured at the seawall) and constIUcted perpendicular to the
waterfront property line;
3. That the relocation of the dock meet all criteria under Section 3-601.C.l; and
4. That revised plans reflecting conformance with condition #2 be submitted with the building
permit application, to the satisfaction of staff.
I concur with the findings of the Development Review Committee and, through this letter, approve
your application for Flexible Standard Development with the four above conditions. The approval is
based on and must adhere to the site plan dated received April 15, 2002 or as modified by condition #2.
Pursuant to Section 4~303, an application for a building permit shall be made within one year of
Flexible Standard Development approval (July 22, 2003). All required certificates of occupancy sball
be obtained within one year of the date of issuance of the building permit. Time frames do not change
with successive owners.
Please be aware that the issuance of this Development Order does not relieve you of the necessity to
obtain any building permits or pay any impact fees that may be required. In order to facilitate the
issuance of any permit or license affected by this approval, please bri:ng a copy of this letter with you
when applying for any penuits or 1jcenses that require this prior development approval,
In addition, please be aware that an appeal of a Level One approval (Flexible Standard Development)
may be initiated by ~ property owner abutting the property, which is the subject of the approval, within
seven days of the date the Development Order is issued. A copy of the Development Order is being
sent to the surrounding property owners. The filing of an application/notice of appeal shall stay the
effect of the decision pending the final deteonination of the case. The appeal period for your case will
expire on July 29) 2002.
If you have any questions, please do not hesitate to call Mark Parry, Planner at 727.562.4558.
cc: Christopher Mariani, Property Owner
Surrounding Property Owners
S\l"l!\\llling Departmc!lt\C D B\StalJd~rd Flel\\lllll3.ctive or Finlshcq Cases\Oevoll193 Mllrillni - Approved\Devon 193 Dl'lV!3tOPMENT ORDEl<,.doc
I 0 {(}1
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BATTLE 8: EDENFIELD, P.A.
ATTORNEYS AT LAW
ALSO ADMITTED
. COLORADO
. NEW MEXICO
. MOr-lTANA
206 MASON STREET
BRANDON, FL 33511
(813) 685-3014
FAX (813) 684-5922
MAXWELL G. BATTLE, .JR."
MICHAEL 5. EDENFIELD
March 14, 2002
(date and. typos corrected from prior fax
of 03/14102 which was incorrectly dated 03/15/02)
Mark Parry
Planning Department
City of Clearwater
100 South Myrtle A venue
Clearwater, FL 33756
RE: Application tor Flexible Development
Standard Approval submitted by
Chris Mariani; FLS 02-01-03
Dear Mr. Parry:
I represent James and Deborah Soboleski who own the residence to the immediate
West of Mr. Chris Mariani's lot (Lot 31, 193 Devon Drive) for which the above
application was submitted. As you already know, my clients are vehemently opposed to
Mr. Mariani's request as it is now constituted. r write to ask that you refrain from issuing
a decision on Mr. Mariani's request until at least March 28, 2002 to anow us time to
provide you wIth additional information which we believe will be helpful to you in
reaching a fully infomled decision.
The reasons that we need this additional time are:
1) f was just retained by the Soboleskis and I was unavailable to review the
City's file until today. Obviously T need some time to fully digest the file
and respond to the contents thereof; and
2) We wish to provide you with a graphic pictorial representation of how Mr.
Mariani's proposed dock win affect the view from the Soboleskis
property. This requires actual field surveying and photography as well as
a substantial aJllount of computer work to generate the visual models; and
3) 'VIle need time to assemble pictorial evidence of hm;.,; the proposed project
will affect the character ofthe neighborhood.
J hope that given the depth of opposition to Mr. Mariani's application that you can grant
us the additional time T would not ask for the additional time if I did not truly believe
that it was necessary to provide the additional infonllation and visual tools to you and
that this infonTJat1on would have an effect upon your decision
\,\.fhile vl/e are working diligently to prepare and submit the above information to
you, felt that it \vOldd be appropriate to address several issues initiallv First, am
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concerned that you do not yet have a complete application, It appears to me that the
Section 4~202 , Community Development Code requires:
1) Subsection A, 12( e) requires that structural overhangs and bui lding
heights be depicted; and
2) Subsection A 24 requires detailed plans and specifications
prepared, signed and sealed by a Florida Registered Professional
Engineer.
In my review of the application file today, I was unable to locate either a plan depicting
the structural overhangs or detailed plans and specifications signed and sealed by a
Florida Registered Professional Engineer.
Second, we believe that the staff may have overlooked several key facts in their
review. Page 4, Paragraph D2 states, inter alia, that <<. . . the proposal includes a dock as an
accessory use to an existing single family residence." This is incorrect The lot is
vacant. Accordingly_, the proposed dock would at this time constitute a primary use not
all accessory use. Docks are not pennitted as primary uses in a residential zone.
Further, the staff report suggests that".. . the development will be in hannony with
the scale and character of adjacent properties." This is also incOlTect. While other
properties have docks, they do not have docks of the size and magnitude of the proposed
dock and boathouses. While no detailed plans were submitted with the apphcation, a
"guesstimate'" from the sketch and photo submitted suggests that the roof line of the
boathouses at the end of the dock will approach, if not be in excess of, the height of
adjacent homes. 'AThen you consider that the boathouse roof over the larger capacity Jjft
will be 38 feet in length [as amended] and presumably ha.ve a boat out of the water on the
lift much of the time, it becomes clear that the visual effect will he to have a small house
in the view of my clients.
Third, we suggest to you that the roof decks should be included in the dock deck
for determining the applicable standard of review. If you include the total area covered
by the dock and roof~, excluding the tie piles, the dock area exceeds 500 square feet. This
would require a. Level Two Review.
Fourth, vvhile I have not had time to fully review and consider Mr. Mariani's
assel1ions, including Tim Johnson's letter of March 5, 2002, I did note several curious
comments in Mr. Johnson's March 5,2002 Jetter. J address these as follows:
1) How is it that Harbormaster Morris is supposed to be so
knowledgeable of U.,.. the facts and circum. stances surrounding the
request and ot~jections of the neighbors."? The fiie cel1ainly does
not reilect that he spoke to either of my Clients. In fact they report
that he has not. In addition., it seems clear that he also did not kno\N
that the munls contiguous on the East do not rnind having Mr
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Mariani's dock located doser to their property line [see their Jetter
dated 03/06/2002 in your file].
2) Mr. Johnson complains about the logic of the Soboleskis having
docks and opposing Me Mariani's pr.qject The Soboleskis oppose
the location, size and character of the Mariani proposal, not the
concept of his building a dock once he has a residence on Lot 31. If
the Mariani project is moved to the East adjacent to the Blums lot
line, they are not blocked in their view [so long as the size of the
boathouses does not get out of scale 1- Both Mr. Mariani and Mr.
Johnson undoubtedly know this, but ignore it.
3) Mr. Johnson complains that shifting to the East will impinge upon
the Blum's view. But Mr. Johnson fails to mention that the Blums
don't object.
4) Mr. Johnson and Harbormaster Morris both appear to be ignorant of
the fact that my Clients did not build the docks on their property
fthey were existing] and that they spent approximately $20,000 to
move boat lifts and address fence and landscaping issues in a manner
that benefited their neighbors.
As you can see from the foregoing brief comments, there are many disputed
issues that I need to address for the Soboleskis. I hope that you will agree to grant the
additional time for my Clients and T to respond further prior to reaching a decision.
Very truly yours, /"
//:7-/' ..,. //~~
:/~~~7"
Maxwell G. Battle, Jr.
Cc: James and Deborah Soboleski
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BATTLE & EDENFIELD" PnA.
ATTORNEYS AT LAW
MAXWEU,o. IlATTLE. JR, .
M [CHAET, S" r:f'lr:NF1I'ID
20" MASON STIU;r:'!
DRANDON, FLJl5 j 1,5277
(HI 0) 6R5,lOl '1
FAX (iJ] j) 1i81..5027.
""SO A[)MI'ITEO
. co!.on^I)()
.. NEW MFXICIJ
. MONT:\N^
April 26, 2002
Cyndi Tarapani, Community Development Coordinator
Planning Department
City of Clearwater
100 South Myrtle Avenue
Clearwater, FL 33756
Via Hand Delivery
RE: Application for Flexible Development
Standard Approval submitted by
Chris Mariani; FLS 02-01-03
Dear Ms, Tarapani:
Thank you for meeting with my brother and I on April 23 , 2002, r write as a follow-up to that
meeting and ait.er J had an opportunity to review your file once again including recent submissions
by the applicant T will address your inquiry concerning the Soboleskis legal rights to maintain their
present view, Me Johnson's letter of April 14, 2002, errors in the City StaffRep011:, and your inquiry
about the wind issue raised by Mr. Mariani in separate sections,
The Soboleskis have a right to an Unobstructed View
You inquired upon April 23, 2002 whether there was any law supporting the Soboleskis' right to a
view. As you will recall, r deferred answering your inquiry until J could research the issue, I can now
answer your question unequivocally, YES. THE SOBOLESKIS HAVE A RIGHT TO AN
UNOBSTRUCTED VIEW.
First, the City of CleanNater's Municipal Development Code provides that you are to protect the
property values and to minimize VISUAl, (M,P ACTS [See ego, Section 3-91310 Thus, the City Code
itself gives a right to Soboleskis to have their property value protected and to have deveiopment
proceed in a fashion that minimizes vlsual impacts, ie, Destroys their vie'\N,
Second., both the Florida Second District Court of Appeal and the Fiorida Supreme Court have
recognized a waterfront landowner's right to an unobstructed view, even vvhere it may cross the
extended propeliy Jines ofthe waterfront landowner's upland land, See Lee Coun!y'y, Kiesel,]05
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.
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So.2d 1 OJ 3 (Fla. 2nd DCA 1998) and Belvedere DeveloQment v. Department of TransQortatiol1, ,476
So.2d 649 (Fla. 1985). In fact, the poJ1cyis so strong that each of these cases allowed the
complaining property OWl1er to coilect damages from a government agency for interference with the
view across the water I have attached copies of these two cases for your ready review.
Further, given the clear legal principal of law that the view is a properly right, we believe that the
Soboleskis' civil rights would be infringed ifthe Mariani proposal were approved
Tim .Johnson'sApril14. 2002 Letter
After reviewing Timothy Johnson's Jetter dated April 14, 2002, I find just one more attempt to
obfuscate the issues and justify the unjustifiable. If you read an of MT. Johnson's and all of Mr.
Mariani's correspondence together the true theme becomes apparent, to wit - Me Mariani wants
other persons property values affected so that he can have what he asks for. In other words, be is
unwilling to have his dock in his own view.....HE WANTS IT IN HIS NEIGHBORS' VIEW"
To further his argument,Mr. Mariani is willing to go so far as to suggest that the City has previously
failed to enforce its Code by failing to require plans prepared, signed and sealed by a Florida
Professional Engineer, so it should fajJ to enforce the code one more time. If that is a metitorious
position, then vvhy have the code at all? You have stated that you have been in your current position
since the code was enacted. Do you really believe that the Code should not be enforced. Mr. Mariani
clearly does not want to submit the required plans and specifications at this point because they will
require him to fully reveal and document the travesty that he wants to impose upon his neighbors.
The photographs that Me Johnson submitted fail to identify where they were taken, how the point
from which they were taken was selected, how it relates to the orientation of the homes affected,
or what the position ofthe neighboring property owners was at the time the projects were pennitted,
Accordingly, they are of little value. The photographs and graphical I'enderings submitted by
Soboleskis are real, relate to the exact project at issue, and are submitted by a neighboring
property owner who does oh,ject BEFORE THE PROJECT IS PERMITTED.
This is made most clear in Mr Johnson's staternent on page 2 of his April 14,2002 letter where he
opines"... First, as harsh as it may sound, view is not a factor listed in... ". The apphcant clearly
admits that the Soboleskis' view will be destroyed, but says <'SO WHAT!", I want what] want. What
Me Johnson and Mr. Mariani so disingenuously refuse to acknowledge is that protecting value is
part of the Development Code, and VIEW IS VALUE on waterfront property. In addition, Mr.
.Johnson ignores Code Section 3-913 whicb requires consideration of VISUAl, IMPACTS.
Mr. Johnson goes on to speak about what his client can build '<". as a matter of right". But Me
Johnson fails to address the environmental issues, or the fact that there is no right to a covered dock
Me Mariani can not build a covered area with a shorter dock due the sea grass presence, but he
could still build a dock [albeit perhaps not the dock that he would like to build]. Further, the shorter
dock would not allow for the use of large vessels due to water depth. This alone would ameliorate
the obstruction of Soboleskis' vie'\N that the construction of a dock in Mr. Mariani's proposed
location will cause
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Mr. Plisko's drawing is oflittJe value in analyzing the issues because it fails to use the same point
of reference used in the Soboleski rendering photographs which depict the before and after views
and it does not address the veltical component at aIL This is obviously a result ofMr. Johnson's
recognition that addressing the effect of the vertical components would be devastating to his
position. While he blythely suggests in a footnote [footnote 2, page 3] that " Regrettably, the
graphics submitted are not truly representative ofMr. Mariani's proposal or the effect of moving the
dock in an easterly direction.", he fails to state any basis for this obviously false statement, nor does
he offer any graphic analysis orhis own. As skilled a land use lawyer as he is, Me Johnson would
have offered his own graphics ifthere was any way that they would have helped.
Errors in City Staff Report for 02/14/02 DRC Meeting
Unfortunately the City's Staff Report contains numerous errors which ifn01 corrected may lead you
to an incorrect decision, Of further concern is the alteration of the StaffRep011 by interhneating the
word "Draft" in blue ink since J reviewed the file in March. It is my understanding that Public
Records should not be altered after they are filed, But of greater importance is that City Staff
reviewing the application presumably had an unaltered document in front ofthem which was full
of errors and would give them a false impression of the project. In any event, 1 now briefly list errors
in the report as foHows:
PAGE 2
The third paragraph incorrectly states the distance to East property line and the square footage of
the covered boatlifts. The distance to East property line is 72 feet, not 24 feet. The square footage
of the covered boatlifts is 544 square feet each, not 144 square feet.
The fourth paragraph fails to note that the code requires that all pennits be apphed for
simultaneously.
The proposed width in the table incorrectly lists 36 feet. The true width from the application is 39.75
feet.
PAGE 3
The Table incorrectly 11sts the distance to East property line as 24 feet. The true dimension is 72
feet.
Paragraph C2 contains a false statement The County report does not say that the proposal is more
environmentally sensitive than the "EXISTING DOCK". There is no existing dock.
Paragl"aph C.3 fails to analyze the criteria on the basis that it is not applicable. It is applicable to
the overaU decision making process. Meeting one of the three criteria is required to request relief?
BUT DOES NOT ENTITIJE THE APPLICANT TO RELIEF.
PAGE 4
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Paragraph OJ is in error. There is no existing house Therefore, the dock ,Nil! not be all accessory
use.
The applicant is not replacing an existing dock with a more environmentally sensitive dock There
is no EXISTING DOCK~ a.nd the massive proportions of the dock proposed is hardly
environmentaUy sensitive.
The development is not in harmony with. the scale and character of adjacent properties. Look
at the aerial photographs and the graphic representations.
Paragraph D.2 fails to address impairment of value at all. On waterfront property il1 particular,
VIEW IS VALUE.
ParagraphDA fails to address the increased traffic of visitors coming to use two Thirty foot plus
boats. Similarly it fails to address marine traffic cOU1lestion which will no doubt be an issue when
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you put two more large boats in such close proximity to the existing dock
Paragraph D.S states without support that the proposed development is consistent with community
character and will improve it. HOW? There are no docks of similar magnitude and it changes the
somewhat uniform spacing of docks throughout the area. See aerial photographs.
Paragraph 0.6 incorrectly states that there are no adverse impacts. It does not address visual,
olfactory and acoustic impacts on ad,joining property. The proposed positioning ofthe Mariani dock
will impact use of the water space around the existing Soboleski dock, the boats operating will put
additional fumes and noise in the Soboleskis' faces, the massive size of the covered boatlifts and
vessels will adversely affect the visual aspects of ad,joining property.
PAGE 5
Given the vast number of material errors in the Staff Report: and considering the failure to even
address in any meaningful analysis several key factors, the Staff Recommendation should be
completely discarded. This was apparently recognized by someone in your office after I became
involved because someone was concerned enough to alter the Original Staff Report in the me by
writing draft on it AFTER I OBTAINED A COPY AND STARTED POINTING OUT FLAWS IN
IT
The Wind Issue
I
L
You inquired as to our position on the prevailing winds concern that Me Mariani raised as a
justification for not moving the dock to the East First, we are not convjnced that the winds are
prevailing from the North. However, assuming that the prevailing winds are from the North, moving
the dock to the East does not Sif,'11ificantly change the protection afforded by the peninsula upon
which the dock will be located; See Exhjhit 5 to my J\1arch 27, 2002 Letter. The iand mass \i'liJj still
protect the dock from Northerly winds Further, as the winds shift to the East, moving the dock to
the East decreases the angle of impact of wind driven waves. H should also be noted that waves fron.!
~ 7{?7
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the channel will come in from the Easterly direction and tend to "\lvrap the seawaW'. Thus, moving
the dock to the East will enhance protection from wind and waves, not decrease it.
Concluding Comments
The simple truth is Mr. Mariani wants to destroy the rights of the Soboleskis so that he will not have
to look at his own dock. He should not be allowed to do so under the guise of environmental
protection. At this time, Mr. Mariani can move his dock to the East side of hi310t without o~jectjon
from the adjoining property ov.mer on that side, choose the orientation of his proposed house to
enhance its visual properties, and simultaneously protect the property rights of his neighbors. I
implore you to require this action before Mr. Mariani and the City are both plunged into otherwise
unnecessary litigation as a result of what can fairly be constmed as an obstinate, "to heck with my
neighbors" attitude by the applicant.
~:IY yours~._/:::.-__.
~~~.
Cc: James and Deborah Soboleski
[t>{17
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Lee County v. Kiesel, 705 So.2d 1013 (Fla.App. Dist.2 02106/1998)
[1] Florida Court of Appeals
[2] Case No. 96-05137
[3] 705 SO.2d 1013, 1998.FL.446 <http://www.versuslaw.com>
[4] February 06, 1998
[5] LEE COUNTY, FLORIDA, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA,
APPELLANT,
v.
EDWARD C. KIESEL AND LORRAINE T. KIESEL, HUSBAND AND WIFE, APPELLEES.
[6] Appeal from the Circuit Court for Lee County; R. Wallace Pack, Judge.
[7] James G. Yaeger, Lee County Attorney, and John J. Renner, Assistant County Attorney, Fort
Myers, for Appellant. Kenneth A. Jones of Peper, Martin, Jensen, Maichel and Hetlage, Fort Myers,
for Appellee.
[8] Campbell, A.c.j., and Frank, J., Concur.
[9] The opinion of the court was delivered by: Northcutt, Judge.
[10] NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED,
DETERMINED
[11] We affirm a partial final Judgement in this inverse condemnation action brought by Edward and
Lorraine Kiesel against Lee County. The trial court found that the Kiesels were entitled to
compensation because a bridge the county built over the Caloosahatchee River obstructed the
Kiesels' riparian right of view. The court gave the county the option either to proceed with a "quick
take" procedure pursuant to Chapter 74, Florida Statutes (1995), or to pay the Kiesels after the entry
of a final Judgement assessing full compensation for the taking and any damages to the remainder.
The county appea!ed. *fn 1
1'1 [;;-7
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[12] Evidence at the bench trial reflected that the Kiesels purchased their riverfront property in 1987
for $160,000 and constructed a home at a cost of $265,000. After the home was built the countv
proceeded with the alignment and construction of the bridge. The completed bridge ~akes landfall on
property adjacent to the Kiesel home; none of the Kiesels' property was condemned for the
construction. The bridge is not aligned perpendicularly to the shoreline, but extends over the river at
an angle, reaching across the view from the Kiesels' property. The Kiese/s' experts testified that the
property previously had a value of $650,000 to $659,000. The experts opined that after the bridge
construction the market value of the property was $300,000. One expert directly attributed the loss in
value to the bridge.
[13] The trial court found that liS a result of the angle at which the bridge is constructed across the
front (river side) of the Kiesel property, it substantially and materially interferes with and disturbs the
view across the waters of the Ca/oosahatchee River from the said property." The court concluded that
"as a direct and proximate result of such substantial and material interference, the market value of the
Kiesel property has substantially decreased, having been estimated by Plaintiffs' expert real estate
appraisal witness as being in the range of $194,250 to $227,200."
[14] We reject the county's argument that there was no physical taking here; that, since the bridge
did not physically rest upon any of the Kiesel property itself, the Kiesels were entitled to compensation
only if the bridge construction substantially ousted them from or deprived them of substantially all
beneficial use of their property. That test would apply if this case involved a "regulatory taking", in
which a land owner's use of his property had been restricted by government regulation. See, e.g.,
Florida Game and Fresh Water Fish Com'n v. Flotilla, Inc., 636 So. 2d 761 (Fla. 2d DCA 1994). But
this was not a regulatory taking. Rather, this case involved an actual physical intrusion to an
appurtenant right of the Kiesels' property ownership. Cf. Palm Beach County v. Tessler, 538 SO.2d
846, 849 (Fla. 1989) (although none of property owner's land was physically taken, owner was entitled
to compensation when retaining wall built by county caused a substantial loss of ownerls appurtenant
right of access to property.).
[15] Owners of uplands along navigable waters enjoy common law riparian rights, one of which is
the right to an unobstructed view over the water to the channel. These rights constitute property,
which the government may not take or destroy without paying just compensation to the owners. SSee
Thiesen v. Gulf, F.&A. Ry. Co., 75 Fla. 28, 78 So. 491 (1917); Padgett v. Central and Southern
Florida Flood Control Dist., 178 So. 2d 900 (Fla. 2d DCA 1965).
[16] Shorelines do not often neatly parallel channels, and propeliy lines are not always
perpendicular to shorelines or channels. Consequently, it is impossible to devise a rule for every case
that would define the physical parameters of the riparian right of view or establish what degree of
intrusion would constitute an obstruction. In this regard, both parties rely on Hayes v. Bowman, 91 So.
2d 795 (Fla. 1957). The county cites Hayes because it affirmed the denial of an upland owner's action
for an injunction against a private party's construction of a landfill that would interfere with the land .
ownerls riparian right of view to the channel. The Kiesels cite Hayes because it recognized this
particular property right, and described its breadth in general terms as a case by case factual
determination. J-() ( ()-7
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[17] We . . . hold that the common law riparian rights to an unobstructed view and access to the
Channel over the foreshore across the waters toward the Channel must be recognized over an area
as near 'as practicable' in the direction of the Channel so as to distribute equitably the submerged
lands between the upland and the Channel. This rule means that each case necessarily must turn on
the factual circumstances there presented and no geometric theorem can be formulated to govern all
cases. An upland owner must in all cases be permitted a direct, unobstructed view of the Channel and
as well a direct, unobstructed means of ingress and egress over the foreshore and tidal waters to the
Channel. If the exercise of these rights is prevented, the upland owner is entitled to relief.
[18] In making such 'equitable distribution' the Court necessarily must give due consideration to the
lay of the upland shore line, the direction of the Channel and the co-relative rights of adjoining upland
owners.
[19J 91 So. 2d at 801-02.
[20] When affirming the denial of relief to the property owner, the Hayes court limited its ruling to
the effect of the landfill specifically as proposed. The court observed that "if the fill should be extended
in a southerly direction so as to interrupt appellants' remaining view of or approach to the Channel,
appellants might then have substantial grounds for complaint." 91 So. 2d at 802. It thus appears that
in Hayes the court applied to the riparian right of view a test that was similar to the one it later
articulated with respect to a land owner's appurtenant right of access: to constitute a compensable
obstruction of the riparian right of view, the interference must be more than a mere annoyance. It must
substantially and materially obstruct the land owner's view to the channel. Cf. Tessler, 538 So. 2d at
849 (loss of the most convenient access to property is not compensable where other suitable access
continues to exist; loss of access is compensable when, considered in light of the remaining access,
property owner's right of access has been substantially diminished).
[21] In this case the triai court found that the bridge substantially and materially interfered with the
Kiesels' riparian right of view, Our examination of the record confirms that this finding was amply
supported by the evidence at trial. The Kiesels' expert testified that eighty per cent of their view to the
channel was obstructed by the bridge. We agree with the trial court's Conclusion that this was
substantial and materiaL
[22] Finding no merit in the county's other issues, we affirm the order under review.
Opinion Footnotes
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[23] *fn1 We have jurisdiction because the non-final order determined the issue of liability in favor
of the party seeking affirmative relief. FIa.R.App.P. 9. 130(3)(C)(iv).
19980206
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07/11/85 BELVEDERE DEVELOPMENT v. DEPARTMENT OF
[Editor's note: footnotes (if any) trail the opinion]
[1] SUPREME COURT OF FLORIDA
[2] BELVEDERE DEVELOPMENT CORPORATION, at aI., Petitioners,
v.
[3J DEPARTMENT OF TRANSPORTATION, DIVISION OF ADMINISTRATION,
[4J Respondent
[5J No. 62,172
[6J 476 So. 2d 649, 10 Fla. Law W. 375
[7] July 11, 1985
[8] Application for Review of the Decision of the District Court of Appeal - Certified Great Public
Importance. Fourth District - Case No. 79-2306.
[9J Rehearing Denied November 4, 1985
BLUE BOOK CITATION FORM: 1985.FL 1672 (http://www.versuslaw.com)
[1 OJ APPELLATE PANEL:
[11] Adkins, J., and Alderman, Ehrlich and Shaw, JJ., concur. Boyd, C.J., concurs in part and dissents
in part with an opinion. Overton and McDonald, JJ., dissent.
[12] DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ADKINS
[13] This cause is before us on petition to review the decision of the Fourth District Court of Appeal in
Belvedere Development Corp. v. Department of Transportation, Division of Administration and Palm
Beach County, 413 SO.2d 847 (Fla. 4th DCA 1982), in which that court certified the following question
to be a question of great public importance:
[14] DOES FLORiDA LAW PERMIT RIPARIAN RIGHTS TO BE SEPARATED FROM RIPARIAN
LAN OS?
[15] 413 SO.2d at 851. We have jurisdiction. Ari. V, ~ 3(b)(4), Fla. Canst.
[16] This case commenced with the filing of a complaint in eminent domain by the Department of
Transportation to condemn certain lands adjoining the contiguous to Lake Worth in Palm Beach
County, Florida. The Department sought to acquire the property in fee simple absolute, with an
express reservation to the landowners Wllich provided:
[17] Reserving unto the Defendant the rights to use and enjoy the riparian rights of and pertaining to
said lands, including the rights to bulkhead and fill, said lands as provided by law, which are not in
"conflict with the interests of the Florida Department of Transportation in the construction and
maintenance of said public highway.
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[18] The petitioners, Belvedere Development Corporation and Colonnades, Inc., answered the
complaint in eminent domain alleging that the lands sought to be acquired by the state were only a
portion of petitioners' lands and the taking thereof and the use to which they would be put would
cause severance damages to the remaining adjoining lands of the petitioners.
[19J The case went to trial and the jury returned verdicts finding (1) that the compensation awarded to
petitioner Colonnades was $15,800 for the. value of the land taken and $0 for severance damages, for
a total award of $15,800; and (2) the compensation awarded to petitioner Belvedere was $2,385 for
the value of the land taken and $0 for severance damages, for a total award of $2,385. The trial court
entered final judgments pursuant to the verdicts and an appeal followed.
[20J On appeal, the petitioners raised seven points. However, the district court found that only one
issue warranted any extended discussion -- whether riparian rights could be enjoyed by an owner of
non-riparian land? The court's decision to uphold the jury's award was based on its conclusion that the
only Florida Supreme Court decisions relevant to the issue supported the Department's position. 413
SO.2d at 850 (citing Burkart (sic) v. City of Fort Lauderdale, 168 SO.2d 65 (Fla. 1964) and Caples v.
Taliaferro, 144 Fla. 1, 197 So. 861 (1940). The court also discussed a decision of our First District
Court of Appeal, Peebles v. Canal Authority, 254 So.2d 232 (Fla. 1st DCA 1971), in which the
condemnor acquired the fee simple title to the property taken without limiting the estate or use
involved. The Peebles court held that it was improper for the condemnor's appraiser to take into
consideration the condemnor's allowance of access to the river based on the condemnor's usual
policy of allowing such access. The court stated:
[21] It is established law that privileged in the property taken, (in this case, access to a body of water)
the enjoyment of which is not compatible with the exercise of the title taken (here, a fee simple
absolute) by the condemning authority, cannot be considered in awarding compensation unless they
are formally established by the condemnation proceeding. Privileges. . . which are merely permissive
and subject to revocation by the condemning party at any time cannot be availed of in reduction of
damages.
[22J Id. at 233 (citations omitted).
[23J The district court in the instant case found that the condemnor had made it clear in its petition that
the riparian use of the property was reserved to the petitioners except insofar as it might conflict with
the limited interests of the Department. The court also found that the order of taking followed Peebles
and specified that the riparian rights were reserved to the petitioners. Accordingly, the found that the
express reservation of rights, coupled with the evidence adduced at trial, was a sufficient basis upon
which the jury could determine its award. 413 SO.2d at 850.
[24 J The petitioners argue that the attempted reservations of riparian rights by the Department in the
legal descriptions attached to the order of taking are ineffective. They contend that a person or entity
must own the lands bordering on navigable waters for there to be riparian rights; in other words,
riparian rights are appurtenant to and are inseparable from the riparian land. Petitioners quote the
following authority:
[25J The source of riparian rights is ownership of dry land bordering or abutting on a navigable
waterbody . . . riparian rights are an inherent aspect of upland ownership, and not severable from it.
~S 21.6 and 34.3, Maloney, Piager and Baldwin, Water law .and Administration, The Florida
Experience, University of Florida Press, 1968. . ~ ;J 1
.
.
[26J In addition, they rely on the following language from Florida Jurisprudence to support their
contention that the respondents have become the owners of the riparian rights appurtenant to these
lands:
[27] The land to which the owner holds title must extend to the ordinary high watermark of the
navigable water in order that riparian rights may attach. Conveyance of title to or lease of the riparian
land entitled the grantee to the riparian rights running therewith whether or not mentioned in the deed
or lease ofthe upland. 34 Fla.JuL, Waters, 126, at seq.
[28J Because the petitioners' property was taken in fee simple absolute without an award for
severance damages, petitioners argue in conclusion, a taking has occurred in violation of article X,
section 6 of the Florida Constitution.
[29J The respondent, the Department of Transportation, contends that Florida is among those
jurisdictions that follow the majority rule that riparian rights may be devised separate from the lands to
which such rights attach. In 1916 this Court stated:
[30J A conveyance of land to which riparian rights to submerged lands are attached . . . may carry the
riparian rights, unless such rights are reserved or a contrary intent appears from the conveyance.
[31J Panama Ice and Fish Co. v. Atlanta and St. Andrews Bay Railway, 71 Fla. 419,423, 71 So. 608,
610 (1916). See also Burkhart (sic) v. City of Fort Lauderdale; City of Tarpon Springs v. Smith, 81 Fla.
479, 502, 88 So. 613, 621 (1921).
[32J Implicit in the foregoing cases is the principle that riparian rights may sometimes be severed from
the ownership of the land to which they attach. If this were not so, decisions which resolve how and to
whom to allocate riparian rights would not even arise. There is nothing novel about the notion of
finding a legal separateness of an incorporeal interest such as a riparian right. The law has long
recognized the separateness of non-possessory property interests, including incorporeal heriditaments
and future interests.
[33J However, we are persuaded by the concerns voiced by Judge Hersey in his special concurring
opinion and agree that following this general rule in all situations often leads to rather absurd results.
Judge Hersey stated:
[34] (Riparian) rights basically include (1) general use of the water adjacent to the property, (2) to
wharf out to navigability, (3) to have access to navigable waters and (4) the right to accretions.
[35] How could it seriously be contended that appellants in this case retain any of those rights despite
the language in the Order of Taking (the functional equivalent of a deed)? They have no easement or
other retained rights to enter upon appellee's land. If a dock is built by appellants it will have to be
free-standing, without contact with appellee's land. And how are they to "uselt the water, say for
swimming, when they have no access to it other than by boat? And consider the horrendous problem
' of accretions!
[36J 413 SO.2d at 851.
[37] in 1917 this Court defined riparian rights in Thiesen v. Gulf, Florida and Alabama Railway, 75 Fla.
28, 78 So. 491, 507 (1917):
c9--0( 87
.
.
[38] Riparian rights we think are property, and being so the right to take it for public use without
compensation does not exist. The fronting of a lot upon a navigable stream or bay often constitutes its
chief value and desirability whether for residence of business purpose. The right of access to the
property over the water, the unobstructed view of the bay and the enjoyment of the privileges of the
waters incident to ownership of the bordering land would not in many cases be exchanged for the
price of an inland lot in the same vicinity. In many cases doubtless the riparian rights incident to the
ownership of the land were the principal if not sole inducement leading to its purchase by one and the
reason for the price charged by the seller.
[39] Although riparian rights are property, they are unique in character. The source of those rights is
not found within the interest itself, but rather they are found in, and are defined in terms of the riparian
upland. In most cases, therefore, it is not difficult to find that riparian rights are an inherent aspect of
upland ownership and are not severable from it.
[40] Thus, in the context of condemnation of property, we think the condemnor should be unable to
reserve the riparian rights to the condemnee in the absence of an express bilateral agreement to do
so with the condemnee. The actions of the Department in this case have, in effect, deprived
petitioners of the basic rights which are included in the term "riparian rights." The condemnation
context is distinguishable from the situation where two parties to a real estate transaction might
choose to sever the riparian rights from the riparian lands and also provide those necessary additional
rights which would enable the riparian right holder to actually benefit from those rights -- i.e., an
easement or right to enter the riparian lands. For this reason, we will not hold that riparian rights are
never severable from the riparian lands. However, we must conclude that the act of condemning
petitioners' lands without compensating them for their riparian property rights under these facts was
an unconstitutional taking.
[41] In reaching our conclusion, we have considered the applicability of section 197.228, Florida
Statutes (1983), to the instant case. Section 197.228 provides in part:
[42] (1) Riparian rights are those incident to land bordering upon navigable waters. They are rights of
ingress, egress, boating, bathing and fishing and such others as may be or have been defined by law.
Such rights are not of a proprietary nature. They are rights inuring to the owner of the riparian land but
are not owned by him. They are appurtenant to and are inseparable from the riparian land. The land to
which the owner holds title must extend to the ordinary high watermark of the navigable water in order
that riparian rights may attach. Conveyance of title to or lease of the riparian land entitles the grantee
to the riparian rights running therewith whether or not mentioned in the deed or lease of the upland.
[43] The question of whether this statute applies to the case at bar turns on the threshold issue of
whether it is a tax law or property law. The statute contains language which seemingly prevents the
separation of any riparian rights from the ownership of riparian upland. Such language, if applied to
this case, would be inconsistent with generally accepted property doctrines and contrary to
established case law in the state of Florida. See Burkhart (sic) v. City of Fort Lauderdale.
[44] The Court, in Webb v. Giddens, 82 So.2d 743 (Fla. 1955), observed that this statute "is included
in the chapter on taxation and finance" and expressed no opinion as to its applicability in a suit
brought by a riparian owner seeking a declaration as to the right of State Road Department to obstruct
navigable waters.
[45] In McDowell v Trustees of !nternallmprovement Fund, 90 So.2d 715,717 (Fla. 1956), we said
this subsection of t.lle statute "was appropriately included in the chapter on taxation, and it was
2(P ( l?
.
.
[57] I agree with the Court's conclusion that in the context of this case and condemnation proceedings
generally, there can be no separation of riparian rights from the riparian lands being taken. Therefore
the purported "reservation" of riparian rights to the owners having their riparian lands taken by the
state was void and the owners must be compensated for that portion of the value of the lands taken
attributable to their riparian character.
[58] The majority wisely finds the words of Judge Hersey, written in special concurrence to the opinion
below, persuasive on the issue of separation. There are compeHing reasons for simply answering the
certified question unequivocally in the negative. However, I am content with confining our answer to
the context in which the question arose. I see the majority's "holding" regarding separation by
agreement as mere dicta.
[59] In view of the Court's conclusion that there can be no reservation of riparian rights to the
condemnees, we must also conclude that the testimony of the state's valuation experts at trial, having
been based on an erroneous legal theory, was improper. As is briefly described in the opinion of the
district court, the state's expert testified that there was to be no compensation for the loss of riparian
rights, because riparian rights were not being taken. This erroneous testimony was clearly prejudicial
and mandates a new trial.
[601 The majority correctly concludes that it was also error to allow the state to present to the jury
certain features of its future plans of a promissory or speculative nature, which served to diminish the
character of the damages in the eyes of the jury. This error mandates a new trial.
[61] I dissent to that portion of the Court's opinion approving the affirmance of the judgment for
damages. Because of errors at the trial, the damages must be determined anew by means of a jury
trial affording full protection to the petitioners' constitutional right to full compensation.
[Editor's note: Illustrations from the original opinion, if any, are available in the print version]
Copyright 1996 VersusLaw, Inc. (206) 250-0142. http://www.versuslaw.com
19850711
1985.FL.1672
';)-7 (er7
9/5/2002
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CDB Members:
This is a letter from the appellant Mr. Soboleski's
representative Max Battle, for the Mariani Dock Appeal
case# APP2002-07002. This is part of section E.
Consideration of Levell Appeals (Item 1), the final item
on the Agenda. Please collate into your packets. Thank
you.
Planning Department
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8/16/2002
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CDB Members:
This is a letter from the appellant Mr. Soboleski's
representative Max Battle, for the Mariani Dock Appeal
case# APP2002-07002. This is part of section E.
Consideration of Levell Appeals (Item 1), the final item
on the Agenda. Please collate into your packets. Thank
you.
Planning Department
r-
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.
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. <<
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BATTLE a EDENFIELD, P.A.
ATTORNEYS AT LAW
MAXWELL G. BATTLE, .JR.'
MICHAEL S. EDENFIELD
ALSO ADMITTED
. COLORADO
. NEW MEXICO
, MONTANA
206 MASON STREET
BRANDON, FL 33511
(813) 685-3014
FAX (813) 684-5922
March 27, 2002
Mark Parry, Lead Planner
Cyndi Tarapani, Community Development Coordinator
Planning Department
City of Clearwater
100 South Myrtle Avenue
Clearwater, FL 33756
LJ COpy
RE: 193 Devon Drive; Lot 31;
Application for Flexible Development
Standard Approval submitted by
Chris Mariani; FLS 02-01-03
Dear Mr. Parry and Ms. Tarapani:
As you know, I represent James and Deborah Soboleski who own the residence to
the immediate West of Mr. Chris Mariani's lot for which the above application was
submitted. My clients remain vehemently opposed to Mr. Mariani's request as it is now
constituted. This letter and accompanying documentation are submitted to supplement
my letter to you of March 14, 2002. I have broken this letter into sections for ease of
reVIew.
Opening Discussion and Description of Materials
The booklet submitted with this letter includes eight (8) pages photographs of my
Clients' home and the neighborhood and a CD containing all of the photographs as
individual images. On several of the photographs an artist's rendering of the proposed
dock has been overlaid on the photograph to reflect the actual view with the proposed
dock added. To achieve the proper scale and provide a realistic portrayal of the dock's
effect upon the views from my Clients' residence, a surveyor was commissioned to place
control markers in the water prior to the photographs being taken. The size of the dock
footprint was taken from the sketches submitted by Mr. Mariani. The size of the boat
houses was taken from the plan dimensions of the sketches submitted by Mr. Mariani and
actual field measurements of the boat house submitted as the model by Mr. Mariani. It
was necessary to combine this data because Mr. Mariani did not submit detailed plans
and specifications prepared, signed and sealed by a Florida Registered Professional
Engineer as required by Section 4-202, Subsection A, 24, Community Development
Code.
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Clearly the most devastating effect of granting Mr. Mariani's request is the
destruction of the view from the back of the Soboleski residence. Exhibit 1 is a
photograph taken from the Soboleski residence deck. As you can clearly see, it is
presently a multi-million dollar view. Exhibit 2 is the same photograph with the proposed
Mariani dock overlayed. The effect is sel f evident and graphic.
Exhibit 3 is an aerial view of the Soboleski residence and Mariani lot. Exhibit 4 is
the same aerial view with the proposed Mariani dock overIayed. Please note the
devastation to the Soboleski's view is mirrored by the devastation to the view of the
Soboleski residence from the water.
Exhibit 5 is the same aerial view of the Soboleski residence and Mariani lot as
shown in Exhibit 3 with the Mariani dock overIayed in the alternate location to the East
that has been suggested by the Pinellas County Department of Environmental
Management. This alternate location would accomplish a number of goals. First, it
would not adversely impact the view from the Soboleski residence to anywhere near the
extent as the location proposed by Mr. Mariani. Second, it would disrupt considerably
less of the sea grass beds, as can clearly be seen in the Exhibit. Third, it would place
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boats at the dock at an oblique angle to waves [and wakes] approaching from the channel
to the East. Fourth, it would be in keeping with the general unifonnity of spacing
between dock installations along the fingers in the neighborhood [See also Exhibits 7 and
8].
Exhibit 6 consists of reduced scale versions of Exhibits 3 and 5 with a "line of
sight" depicted as a single broken blue line. The "line of sight" is extended from the
camera location for Exhibits 1 and 2 across the intersection of the SoboleskilMariani
property line and the seawall cap. It sets the left most [Northern most] portion of the view
from my Clients' lot without looking over the Mariani lot. The differing effect of the two
proposed locations for the Mariani dock is clear. Placing the Mariani dock in the location
proposed by Mr. Mariani [top photograph, Exhibit 6] destroys the view from the
Soboleski residence, des~roys the view from their dock, and seriously devalues their
property. If the dock is placed in the alternative location to the East [bottom photograph
Exhibit 6], it moves out of the Soboleskis' line of sight.
Exhibits 7 and 8 are a compilation of aerial views of the neighborhood. The
somewhat symmetrical spacing of docks and the minimal number of boathouses in the
neighborhood is evident in the photographs. It should also be noted that most of the
boathouses are at the seawall behind the residences that they serve. The two exceptions at
the end of the Devon finger are situated in a fashion that does not adversely effect the
views from the residences adjacentto them.
Exhibit 9 is a CD that contains copies of each photograph in Exhibits 1 through 8.
If you insert it in a desktop or laptop computer you will be able to view the photographs
with ease by either selecting the number of the photograph or by clicking "Next" and
"Previous". This CD should make it very easy for you to evaluate the visual impact of the
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two alternative locations for the dock. The CD version of the photographs also allows
easy viewing of the grass beds and the character of the existing neighborhood.
Exhibit 10 is a copy of the Mark Blum's March 6,2002 letter to Mr. Pary.
Exhibit II is a copy of Mr. Mariani's March 7, 2002 letter.
Exhibit 12 is a copy of Mr. Johnson's March 5, 2002 letter.
Exhibit 13 is a copy of the City of Clearwater's Staff Report.
Exhibit 14 is a copy of my March 14, 2002 [corrected] letter to Mr. Pary.
Exhibit IS is a copy of the Pinellas County Department of Environmental
Management's Water and Navigation Report.
Exhibits 10 through 15 are included for your ease of review.
Mr. Mariani's March 7, 2002 Letter'
Now I address Mr. Mariani's letter of March 7, 2002 to Ms. Cyndi Tarapani. Mr.
Mariani starts his diatribe with the sobriquet that the "... Soboleski's... completely
misconstrue... or are totally erroneous...". This is an interesting approach by Mr. Mariani
because this is actually what his letter does. I note as an aside that Mr. Mariani, who has
the burden of establishing his entitlement to the relief requested, has completely failed to
provide any pictorial evidence of the visual effect of his proposal. In any event, I address
his letter by corresponding numbered paragraph.
1) The issue is not whether Mr. Mariani should be allowed to build a dock, but
where and how large. When a variance is granted, it should always be the
minimum variance necessary. Further, despite what Mr. Mariani opines, the
aerial photographs [Exhibits 3 through 7] clearly show that construction to the
East would affect a smaller area of sea grass. With respect to the alleged
encroachment to the East, that property Owner, the Mark Blum, does not
object. [See Exhibit 10].
2) Mr. Mariani is incorrect. His application seeks to affect more sea grass than
necessary, build a larger dock than necessary, obtain a larger deviation from
the standards than necessary, and destroy my Clients' view and property
values.
3) Please see response to Mariani paragraphs 1 and 2. The question is not
whether to allow some variance, it is the magnitude of the variance and the
conditions under which it may be granted. The Soboleskis do not have a
boathouse.
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4) Mr. Mariani's obfuscation of the true import of his proposal in this paragraph
is incredible. He says that his proposed dock does not set a new precedent. His
incredible statement ignores the fact that he is proposing to build an
unprecedented double boathouse consisting of 532 square feet of coverage
each, plus dock walking deck area of 476.5 square feet [accepting for the
purposes of this paragraph Mr. Johnson's calculations as accurate], for a total
of 1540.5 square feet of coverae:e. The approval of this application would
allow Mr. Mariani to construct what amounts visually and environmentally to
a second home over the water. This is clearly unprecedented in Clearwater's
modem history.
It should also be noted that the metal roof will have a substantially larger
surface area than the plan view indicates due to the pitch involved. This
surface area and pitch has a substantial propensity for reflecting a obnoxious
glare onto the Soboleskis' property during substantial periods of the day.
Mr. Mariani also implies that the Soboleskis are seeking to deprive him of a
benefit that they enjoy. Nothing could be further from the truth. The
Soboleskis do not have 1064 square feet of boathouse .. The Soboleskis did
not block their neighbors view. They do not have even one boathouse. In fact
the Soboleskis spent substantial monies to improve their neighbor's view by
moving lifts.
5) The Soboleskis do not advocate that Mr. Mariani should not be allowed to
construct a dock or residence upon his lot. They contend that his development
should be reasonable and not impair their view and property values. As shown
in Exhibits 1 through 6, it is possible for Mr. Mariani to do so and improve his
own situation at the same time. Why he is so adamant about destroying the
Soboleskis' view and property value is a mystery.
It should be n~ted that Mr. Mariani makes an interesting statement about the
failure of Ress Marine to ever experience the lifting or destruction of a dock
that they built. I would be interested to know the basis for this statement and
what Mr. Mariani defines as "lifted" or "destroyed". While Ress Marine is a
marine contractor of excellent reputation and qualification, no one can beat
Mother Nature at every turn. At least one dock on St. Joseph's Sound built by
Ress Marine that suffered substantial damage including loss of timbers during
the "No Name Stonn".
Moving on to the balance of Mr. Mariani's letter, I find it interesting that Mr.
Mariani suggests that the Neimanns have no right to object. If this were true, the City
would not require notice to the Neimanns. Further, Mr. Mariani suggests that there is no
loss of value to Neimanns' residence as a result of the Soboleskis' docks [located on two
lots, not one small one like Mariani's], ergo there can be no loss of value to Soboleskis'
residence due to his proposed dock. This incredible assertion is dispelled by one look at
Exhibits 1 and 2. in addition, you must consider two other salient facts. First, the
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Soboleskis purchased their property with the docks in place and then made expensive
modi tications which benefited the Neimanns. Second, the Soboleski docks do not block
the Neimanns' view and there are no house sized boat houses on the Soboleski docks.
Next, Mr. Mariani suggests that the Soboleskis want his dock in its present
proposed location. This is obviously incorrect. If Mr. Mariani's assertion were true, you
would never have heard an objection from my Clients and you certainly never would
have heard from me. In addition, Mr. Mariani's comments about the view are completely
dispelled by Exhibits 1,2 and 6.
Finally, Mr. Mariani suggests that he bought his lot specifically due to its
Southern exposure. A more probable reason is that it was on the market. One look at
Exhibits 7, 8 and 9 shows a dearth of vacant lots in the area. In any event, the placement
of the dock to the East in the alternate location still places it in a protected position from
the North/Northwest winds.
NO MATTER WHAT MR. MARIANI SAYS, GRANTING IDS REQUEST
SETS AN UNCOMFORTABLE PRECEDENT FOR ~LLOWING THE
CONSTRUCTION OF MASSIVE VIEW, DESTROYING STRUCTURES OVER
THE WATERS OF CLEARWATER HARBOR.
Timothy Johnson's March 5. 2002Letter
To avoid unnecessarily lengthening this letter, I will confine my comments to Mr.
Johnson's letter to Page 3, paragraph 5 (c)(3). The closing sentence of this paragraph of
Mr. Johnson's letter states that "The logic ofthe Soboleskis is elusive."
The Soboleskis' logic is elusive only to Mr. Johnson who fails to seek it [or who
perhaps chooses consciously to ignore it]. Mr. Johnson is a real estate and land use
attorney of some repute. His prowess at presentations before land regulatory authorities
is legendary. Yet he faile~ to produce for your office the very type of pictorial evidence
that the Soboleskis have presented with this letter. Given his experience and professional
competence, there seems to be only one reason that he would fail to present such valuable
evidence. He knew that it would have a devastating impact on the position he advocates.
Therefore, he omitted this pictorial evidence and resorted to criticizing the Soboleskis for
striving to protect the substantial investment that they have in their property and the
community.
Finally, his comments about the location of docks close to property lines ignores
the clear fact that the Soboleskis not only worked to protect their neighbors view with
respect to docks in place when they purchased their property, but more importantly that
the Soboleski docks are not in the prevaiJio!! view of the Mariani lot.
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Concludin2 Comments
I reiterate the posItIons espoused in my March 14, 2002 letter that: I) Mr.
Mariani's application fails to comply with the requirements of the Community
Development Code; 2) due to the size of the proposed dock a Level 2 Review is required;
and 3) without the prior construction of a residence on the Mariani lot, the proposed dock
would constitute an impermissible primary use rather than an accessory use [the lot is
now vacant]. My corrected March 14, 2002 letter is incorporated in this letter by
reference [See Exhibit 14]. Each of those positions constitute independent grounds for
denial ofMr. Mariani's request.
However, if you continue to review Mr. Mariani's application as a Level I
Review, I suggest to you that Mr. Mariani's application as it is presently constituted must
be denied. Granting it would constitute an unconscionable abuse of the flexible
development standards that were implemented to balance the protection of individual
property owners and the character of the community with the right of a property owner to
reasonably develop his property. Exhibits 1 through 9 clearly support this denial.
Mr. Mariani says that he wants to meet with the Soboleskis to work out an
acceptable location for his dock. If this is true, then abate the review process and direct
Mr. Mariani and Mr. Johnson to meet with the Soboleskis and myself to discuss the
project further. This letter and the Exhibits thereto clearly outline potentially acceptable
proposals.
Finally, I request that the Soboleskis and I be granted an opportunity to meet with
you and your staff to discuss Mr. Mariani's application and make a presentation to you. I
believe that due process and basic fairness dictates that the Soboleskis be given the same
opportunity that Messrs. Mariani and Johnson were provided.
I look forward to hearing from you at your earliest convenience.
Cc: James and Deborah Soboleski
6
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PHOTOS-CD
BLUM Letter 03/06/02
Mariani Letter
03/07/02
Joh nson Letter
03/05/02
.. CITY
STAFF REPORT
.. Battle Letter 03/14/02
_ County Water &
_ Navigation Report
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BATTLE & EDENF1IELD, P.A.
ATIORNEYS AT LAW
MAXWELL G. BATILE, JR. .
MICHAEL S. EDENFIELD
206 MASON STREET
BRANDON, FL335II.5277
(813) 685.3014
FAX (813) 684.5922
ALSO ADMITIED
. COLORAOO
. NEW MEXICO
. MONTANA
July 26, 2002
Cyndi Tarapani, Community Development Coordinator
City of Clearwater Planning Department
100 South Myrtle Avenue
Clearwater, FL 33756
HAND DELIVERY
RE: Application for Flexible Development Standard
Approval submitted by Chris Mariani; FLS 02-01-03;
APPLICATION FOR ADMINISTRATIVE APPEAL;
Dear Ms. Tarapani:
Enclosed is my Client's APPLICATION FOR ADMINISTRATIVE APPEAL with respect to the
Development Order entered in this matter along with payment of the Administrative Filing Fee
in the amount of $100.00. Please let me know immediately if you need anything else to process
the Appeal.
ae~Yours~, '
'v ~~
a~ Batt , r.
Cc: James and Deborah Soboleski
1
THIS IS A DUPLICATE ORIGINAL PRINTED ON PINK PAPER B LX
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07/22/2002 2):32 I 0000000000
HDME
PAGE 04/08
. CITY OF CLEARWAER
APPLICATION FOR ADMINISTRATIVE APPEAL
pLANNING &: DEVELOPMF..NT SERVICES ADMINISTRATION
MUNICIPAL SERVICES BUILDING, 100 SOU1l.I MYRTLE AVENUE, 211II FLOOR
PHONE (727) 561.-4567 FAX (727) 562-4676
ALL APPLICATIONS FOR. APPEAL OF L!:VEL 1 I1..EXlBLE ST ANDAlID APPROVALS MUST BE RECEIVED BY
THE PLANNING DEPAaTMEN"f WITHIN:FIVE DAYS OF THE :DATE orTBE DECISION BEING- APPEALED,
ALL OTHER APPLICATIONS FOll APPEAL MUST BE RECEIVED BY THE l'LA..NNJNG DEPARTMENT WJTHIN 14
DAYS or THE DATE or TIlE DECISION BEING APPEALED.
APPELLANT AND AGENT 'NFORMA noN:
APELLANT NAME
MAIUNG ADDRESS
PHONE NUMBER
AGENT NAME
MAILING ADDRESS
PHONE NUMBeR
DeBo(<AI-\ \..., G.RoEN $.:>13.:.i..€s"'-I .pM... \>era~\<.At-l 1-. ~Rt.lffl'l
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APPEAL INFORMATION:
DECISION BEING APPEALEO: \> e: Vt:t.J:.P melVl O~[)~n.... R~~4~l)/"'Gt <A5~.# FJ-5 02..-0 i - 0"3
OATE OF DECISION
BASIS FOR APPfAL
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WITH YOUR APPLICATION pLEASE SUBMIT:
A Copy OF THE DECISION BEING APPEAlED:
NAMES. ADDRESSES AND CURRICULUM VITAE OF ALL EXPERT WITNESSES THAT WI.L PRESENT INFORMATION AT THI; MEETING;
COPY OF THE BASIS FOR THE APPEAL IN THE NATURE OF AN INITIAL BRIEF A~ ANY EVIDENCE, INCLUDING TESlIMONY. AND
AfFIDAVITS. THE BRIEF MUST AT A MINIMUM STAn: ALL GROUNDS FOR THE ApPEAL INCLUDING. BUT NOT UMITED TO, THE LAW
BEING APPEALED AND Atlf F/lCTS NECESSARY FOR THE INTE~PRETAnON OF THOSE LAWS.
I, the undersigned, acknowledge that all
representations made in this application
are tl1le and accurate to the best of my
knowledge.
STATE OF FLORIDA. COUNTY OF PINELLAS
sworn to and subscribed before me this ) '{ day of
.T uL--\..( . A-D., ~.J/)(;t,).. to me and/or
by I&B()O?tJ.f Gl?{)aJ .5'BC'l c.!SKJ . who is personally
known has produced JL n~iJe~ /~f Od.A'V' as
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EXHmIT B
CONTINUATION OF SPECIFICATION OF BASIS FOR APPEAL
The Development Order appealed from fails to comply with the requirements of
the Community Development Code, departs from the essential requirements of law and
should be reversed because:
1) It is based upon and concurs with the findings of the Development Review
Committee. However, except for Mark Parry's February 15, 2002 "FAX
MESSAGE" to Tim Johnson, there are no written findings in the file [or
were not on, and prior to, July 18, 2002]. If the "comments" reported by
Mr. Parry in his February 15,2002 FAX MESSAGE are the findings the
Development Order refers to, then they are based upon a flawed and
inaccurate Staff Report. See Maxwell G. Battle, Jr's letter to Cyndi
Tarapani dated April 26, 2002; and
2) It approves a proposal based upon a non-existent plan; and
3) It was not signed by the Community Development Coordinator; and
4) It grants relief that is inconsistent with the Flexible Standard Development
criteria under 3-601.C.1.g; and
5) It grants relief that is inconsistent with other provisions of the Community
Development Code including without limitation 1-103.A, 1-103.B.2, 1-
103.E.3, 3-601.C.1.d, 3-601.C.1.e, 3-601.C.1.g and 3-913; and
6) It grants relief upon an application that does not comply with the
requirements of 4-202.A24; and
7) It approves a proposal which is incompatible with the surrounding area;
and
8) The Application was amended after the Development Review Committee
concluded its review; and
9) It refers to a Site Plan dated April 15, 2002 which was not in the city's file
on the dates of four (4) reviews of the City File [3/15/02, 4/23/02, 6/06/02
and 7/18/02], the last of which was on July 18,2002, the Thursday before
the Order was signed. There was however a single Architectural Drawing
by Plisko Architecture, P.A AlA dated, unsigned and unsealed with
revisions of 4/10/02 and 4/11/02 entitled DOCK PLANS. This document
depicts two dock configurations. If this is the "site plan" referred to by the
Development Order, then the Development Order is vague and ambiguous
in that it does not clearly identify which configuration on the "site plan" is
required to be adopted by the Condition #4.
10) Although the Development Order requires concurrent issuance of a
building permit for a residence and dock, it allows the dock to be
permitted and built without first requiring the construction of a single
family residence. If the residence was permitted but not built, this would
result in the dock being allowed as a primary, rather than accessory use.
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11) The Community Development Coordinator apparently misconstrued the
effect of Section 3-60 l.c.1.g to require rather than allow deviations to the
dock criteria.
INITIAL BRIEF
Standin2 of Appellant
Deborah L. Groen Soboleski, formerly known as Deborah L. Groen is the record
title holder of 191 Devon Drive, Clearwater, FL 33763, which property is adjacent to,
and contiguous to, the Mariani property to which the Development Order is addressed.
Appellant's East property line adjoins Mr. Mariani's West property line.
Flawed Staff Report
The Development Order concurs with the findings of the Development Review
Committee. With exception of Mark Parry's reported comments to Tim Johnson [Fax
Message of 02-15-02], there were no written "findings" of the Committee in the file on,
or prior to, July 18, 2002. Further, the Development Review Committee had before it at
the time of its review a seriously flawed and inaccurate Staff Report. See Maxwell G.
Battle, Jr.'s letter to Cyndi Tarapani dated April 26, 2002. The flaws are so pervasive
and egregious as to call into question the entire review process on the Application in
question. At a minimum, allowing the Development Review Committee to act upon such
clearly erroneous and incomplete information departs from the essential requirements of
law.
Non-Existent Plan
The Development Order appealed from approves a proposal that does not yet exist
in final form. It directs submission of a new plan for review by City Staff. It is
inappropriate to issue a Development Order that allows the "approved proposal" to be
created after the Development Order is issued. Such an approval subverts the entire
review, approval and appeal process, departs from the essential requirements of law and
violates both substantive and procedural due process rights of the Appellant under the
Florida and United States Constitutions.
Development Order Not Properly Entered
The Community Development Code provides that the Community Development
Coordinator may issue a Development Order approving a Level One Review item. The
Development Order is signed by another City Employee. There is no indication in the
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file that this City Employee is a duly authorized representative of the Community
Development Coordinator. Accordingly, the Development Order should be declared
void.
Inconsistent with Section 3-601.C.1.e:
of the Community Development Code
The proposed dock does not need to be adjusted in length to protect
environmentally sensitive areas if the covered boatlifts are omitted and it is moved to the
East. The property configuration does not preclude placement of the proposed dock in
compliance with the required dimensional standards and the proposed dock is not similar
in dimensional characteristics to surrounding dock patterns. Moving the dock to the East
side of the Mariani lot as suggested by Appellant would serve to protect existing grass
beds. Further, under the foregoing circumstances and until proper final plans are
submitted, it can not be said unequivocally that no navigational conflicts would be
created.
Inconsistent with other Provisions of
The Community Development Code
Section l-103.A envisions that development will be conducted in a manner that
enhances the character of the City, the preservation of neighborhoods and enhances the
quality of life. The Mariani proposal violates each of these principals.
Section l-103.B states that the CDC's purpose is, inter alia, to ensure that
development and redevelopment will not have a negative impact on the value of
surrounding properties and wherever practicable promotes the enhancement of
surrounding property values. The Mariani proposal will have a drastic negative impact
upon the value of the Appellant's property. On the waterfront, view is value.
Section l-103.E.3 requires the protection and conservation of land values
throughout the City. The Mariani proposal contravenes this goal. It destroys the
Soboleski view and devalues their property.
Section 1-103.E.5 requires preservation of the aesthetic character of the
Community. The Mariani proposal contravenes this goal. It sets a precedent of allowing
covered boat lifts that rival many residences in size.
Section 1-1-3.E.6 indicates that open spaces should be provided through efficient
project design and layout that addresses appropriate relationships between buildings on
the project site and adjoining properties. The Mariani proposal attempts to crowd the site
at the waterfront when open space could be fostered by moving the dock to the East side
of the property and/or deleting the covered portion of the lifts.
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Section 3-601.C.l.d prohibits vertical sidewalls on any dock or boatlift. The
Mariani proposal contains vertical sidewalls as a portion of the roof in controvention of
this section. The vertical sidewalls add to the perception of mass of the structure.
Section 3-601.C.l.e provides that no more than two slips can be created. The
Mariani proposal includes tie piles along with boatlifts, which effectively creates more
than two slips in contravention of this section.
Failure to Provide Complete Plans
in Compliance with Section 4-202.A.24
Section 4-202.A.24 requires that complete plans be submitted with the application
which are signed and sealed by a Florida Registered Professional Engineer. It clearly
says "shall" be accompanied by such plans. Under Section 8-10 1.E, "shall" means
mandatory in nature. This was not done by Mariani. Given the clear mandate of Section
8-l0l.E, the requirement can not be waived. The result is that neither the Staff, the
Community Development Board or the Community Development Director had before
them a complete application. Nor did they have an accurate and specific plan of the actual
proposed size (height, width and depth) of the proposed dock, covered boatlifts, and slips
from which to properly evaluate the proposal. Similarly, affected property owners have
been denied the same information. Accordingly, the proposal can not have been properly
evaluated and approved because the application did not comply with the Community
Development Code. By proceeding to process the application the Community
Development Coordinator departed from the essential requirements of law.
Incompatibility with Surroundin2 Area
The proposal is not compatible with the surrounding area. A review of the
materials submitted by James and Deborah Soboleski clearly show that there are no
private docks with dual covered lifts of the size proposed by Mariani. The Mariani
proposal constitutes a substantial departure from the character of docks in the
neighborhood.
Amendment after Review
The Mariani proposal was repeatedly amended after the Development Review
Committee completed its review. Accordingly, the Development Review Committee
reviewed and commented upon a different proposal than the Planning Director ostensibly
approved. None of the surrounding property owners appear to have been notified of the
amendments, and certainly none of them could possibly have any idea of what the end
result might be because the final plan still has not been submitted. Accordingly, the City
Planning Department has not acted in accordance with its own Codes and has departed
from the essential requirements of law.
4
.
.
Aoril15. 2002 Site Plan
The Development Order requires compliance with an April 15, 2002 Site Plan.
No such site plan was in the file on July 18,2002 [nor on 3/15/02, 4/23/02 or 6/06/02]. If
such a site plan exists [and was submitted], it has been shielded from Public view.
Further, it clearly was not evaluated by Staff prior to the Development Review
Committee Meeting, or by the Development Review Committee because no such plan
could have existed at that time by simple examination of the dates of each. If the "Site
Plan" referred to is the Plisko Architecture, P.A. "DOCK PLANS" revision dates 4-10-02
and 4-11-02, the order is too vague and ambiguous. It does not clearly identify what
portion of the Plisko "DOCK PLANS" is to be incorporated into the revised plans to be
submitted in accordance with Condition #4.
Accessory Use
The Development Order requires only that a residence permit be issued at or
before the dock permit is issued. It does not requires that the residence be constructed
first. The issuance of a permit to build a residence does not require that the residence be
built. Unless the residence is built, the dock would be an impermissible primary use
rather than an accessory use. Accordingly, the Development Order departs from the
essential requirements of law by not requiring that the residence be constructed before the
dock.
Community Development Coordinator
Misconstrued Section 3-601.C.1.!!
It appears that the Community Development Coordinator misconstrued Section 3-
601.C.l.g to reQuire rather than allow the granting of a deviation from the dock criteria if
any of the 3 criteria for deviation was met. Section 3-601.C.1.g uses the term "may"
which under Section 8-101.F means "permissive", not mandatory. Accordingly, the
Community Development Coordinator was not required to grant the relief sought by Mr.
Mariani.
ADOPTION OF PRIOR POSITIONS
In addition to the foregoing issues, Appellant adopts the positions set forth in
Maxwell G. Battle, Jr.'s letters dated March 14, 2002, March 27, 2002 and April 26,
2002, copies of which are attached to this Application for Administrative Appeal.
5
.
.
WITNESSES AND PROOF
At hearing the appellant intends to offer additional argument, testimony from live
witnesses and tangible evidence. Witnesses may include a Florida Registered
Professional Engineer, a Florida Registered Land Surveyor, one or more Florida Licensed
Real Estate Brokers, one or more Florida Licensed Real Estate Appraisers, a duly
licensed Florida Contractor and lay witnesses. These witnesses will be designated more
fully at a later date.
CONCLUSION AND REQUESTED RELIEF
For the reasons set forth herein above, the Development Order must be reversed
and the application in Case No. FLS02-0 1-03 denied. In the alternative, the Development
Order should be modified to require moving the proposed Mariani dock to the Eastern
most side of his Lot and deleting the covered lift portions of the dock.
6
07/22/2002 13:05
727552457.
PLAN
PAGE, 02
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CITY OF CLEARWATER
PlANNING DEPARTMENT
POST OffICE Box 4748, CL&RW"'l'HR, FLORID^- 33758-4748
MUNICIPAL SERVICES BUIl.nJNG, 100 SOU'l"H MYRTI.E AVIiNUE, CLEARWAtli.J.l., FLORIDA 33756
TRJ..EPHONE (/27) 562-4567 FAX (127) 562.4576
Lot4G RANGli: PlANNING
DEVELO~Ml!NT Rf;v'reW
HOUSING DIVISION
NEIGI:lJ:lORHOOD Sl>IMCES
July 22,2002
Mr. Timothy Johnson
Johnson, Blakely, Pope, Bokor, Ruppel & Bums, P.A.
911 Chestnut Street
Clearwater, FL 33756
RE: Development Order regarding case FLS 02-01 u03 at 193 Devon Drive
Dear Mr. Johnson:
This letter constitutes a Development Order pursuant to Section 4-202.E of the Community
Development Code. On February 14, 2002, the Development Review Committee (ORe) reviewed
your application for Flexible Standard Development approval to increase the length of a dock from 60
feet (50 percent of the width of the property) to 92 feet (76.6 percent of the width of the property)
under the provisions of Section 3-601. The application includes a 440 square foot dock and two 532
square foot covered boatlifts to be located a minimum of 30 feetfro:m the side (east and west) property
lines. The DRC recommended approval of the application with conditions. I concur with the findings
of the Development Review Committee and, through this letter, approve your application for Flexible
Standard Development witb the following bases and conditions:
J3ases for approval;
1. The proposal complies with the Flexible Standard Development criteria under the provisions of
Section 3-601.C.g;
2. The proposal, as amended, is in compliance with other standards in the Code including the General
Applicability Criteria per Section 3-913; and
3. The development, as amended, is compatible with the surrounding area.
ExHIBit A
BRIAN J. AUI'GSl'. jI.1AVOR-COMM1SS10I\El<
ED HART, VICE tv!AvOR-COMMISSIONliR \XIH1TNl:Y GRAY, COMMISSIONER
HoYT HA.>.\ILTON, COMMISSIONER . BIU.JOi'/$ON, COMMISSIONER
"EQUAL EMPLOYMENT t\NO MFIRMATIVE ACTION EMJ'l.OYR""
72755245.
PLAN
PAGE, 03
07/22/2002 13:05
.
0",--",,'
July 22, 2002
Johnson - Page Two
"-..,./
Conditions of approval:
1. That a building permit for the proposed dock only be issued concurrently with, or subsequent
to, building permit issuance for a principal, residential stnlcture on the site;
2. That the proposed dock be relocated farther east (with the dock head centered on the midpoint
of the waterfront property line, as measured at the seawall) and constructed perpendicular to the
waterfront property line;
3. That the relocation of the dock meet all criteria under Section 3-601.C.l; and
4. That revised plans reflecting conformance with condition #2 be submitted with the building
permit application, to the satisfaction of staff.
I concur with the findings of the Development Review Committee and, through this letter, approve
your application for Flexible Standard Development with the four above conditions. The approval is
based on and must adhere to the site plan dated received April 15) 2002 or as modified by condition #2.
Pursuant to Section 4-303, an application for a building permit shall be made within one year of
Flexible Standard Development approval (July 22,2003). All required certificates of occupancy shall
be obtained within one year of the date of issuance of the building permit. Time frames do not change
with successive owners.
Please be aware that the issuance of this Development Order does not relieve you of the necessity to
obtain any building permits or pay any impact fees that may be required. In order to facilitate the
issuance of any permit or license affected by this approval, please bring a copy of this letter with you
when applying for any permits or licenses that require this prior development approval.
In addition, please be aware that an appeal of a Level One approval (Flexible Standard Development)
may be initiated by a property owner abutting the property, which is the subject of the a.pproval, within
seven days of the date the Development Order is issued. A copy of the Development Order is being
sent to the surrounding property owners. The filing of an application/notice of appeal shall stay the
effect of the decision pending the final detennination of the case. The appeal period for your case will
expire on July 29, 2002.
If you have any questions, please do not hesitate to call Mark Parry, Planner at 727.562.4558.
cc: Christopher Mariani, Property Owner
Surrounding Property Owners
S:\f\aooing Department\C D B\Standard F1ex\Innactive or FiniSh.l;\l Cases\DevOll 193 Mariani - Approved\DevOll 193 PJavELOPMENT ORDBR.doc
.
.
BATTLE a EDENFIELD, P.A
ATTORNEYS AT LAW
MAXWELL G. BATTLE, .JR:
MICHAEL S. EDENFIELD
206 MASON STREET
BRANDON, FL 33511
(813) 685-3014
FAX (813) 684-59ZZ
ALSO ADMITTED
~COLORADO
~ NE.W MEXICO
. MONTANA
March 14, 2002
(date and typos corrected from prior fax
of 03/14/02 which was incorrectly dated 03/15/02)
Mark Parry
Planning Department
City of Clearwater
100 South MY11le A venue
Clearwater, FL 33756
RE: Application for Flexible Development
Standard Approval submitted by
Chris Mariani; FLS 02-01 -03
Dear Mr. Parry:
I represent James and Deborah Soboleski who own the residence to the immediate
West of Mr Chris Mariani's lot (Lot 31,193 Devon Drive) for which the above
application was submitted. As you already know, my clients are vehemently opposed to
Mr Mariani's request as it is now constituted. r write to ask that you refrain from issuing
a decision on Mr. Mariani's request until at least March 28, 2002 to allow us time to
provide you with additional information which we believe will be helpful to you in
reaching a fully informed decision.
The reasons that we need this additional time are:
1) I was just retained by the Soboleskis and 1 was unavailable to review the
City's file until today. Obviously r need some time to fully digest the file
and respond to the contents thereof; and
2) We wish to provide you with a graphic pictorial representation of how Me
Mariani's proposed dock will affect the view from the Soboleskis
property. This requires actual field surveying and photography as well as
a substantial amount of computer work to generate the visual models; and
3) We need time to assemble pictorial evidence of how the proposed project
will affect the character ofthe neighborhood.
1 hope that given the depth of opposition to Mr. Mariani's application that you can grant
us the additional time I would not ask for the additional time if I did not truly believe
that it was necessary to provide the additional infonnation and visual tools to you and
that this information would have an effect upon your decision,
While we are working diligently to prepare and submit the above information to
you, I felt that it would be appropriate to address several issues initially FirsL, r am
.
.
concerned that you do not yet have a complete application, It appears to me that the
Section 4-202 , Community Development Code requires:
1) Subsection A, 12( e) requires that structural overhangs and building
heights be depicted~ and
2) Subsection A, 24 requires detailed plans and specifications
prepared, signed and sealed by a Florida Registered Professional
Engineer.
In my review of the application file today, I was unable to locate either a plan depicting
the structural overhangs or detailed plans and specifications signed and sealed by a
Florida Registered Professional Engineer.
Second, we believe that the staff may have overlooked several key facts in their
review Page 4, Paragraph D2 states, inter alia, that"... the proposal includes a dock as an
accessory use to an existing single family residence." This is incorrect The lot is
vacant Accordingly. the proposed dock would at this time constitute a primary use not
an accessory use. Docks are not pennitted as primary uses in a residential zone.
Fmther, the staff report suggests that"... the development will be in harmony with
the scale and character of adjacent properties." This is also inconect While other
properties have docks, they do not have docks of the size and magnitude of the proposed
dock and boathouses, While no detailed plans were submitted with the application, a
"guesstimate" from the sketch and photo submitted suggests that the roof line of the
boathouses at the end of the dock vvill approach, if not be in excess of, the height of
adjacent homes \\Then you consider that the boathouse roof over the larger capacity lift
will be 38 feet in length [as amended] and presumably have a boat out of the water on the
hft much of the time, it becomes clear that the visual effect will be to have a small house
in the view of my clients.
Third, we suggest to you that the roof decks should be included in the dock deck
for determining the applicable standard of review. If you include the total area covered
by the dock and roofs, excluding the tie piles, the dock area exceeds 500 square feet This
would require a Level Two Review.
Fomth, '\NhiJe T have not had time to fully review and consider Mr. Mariani's
assertions, including Tim Johnson's Jetter of March 5, 2002, 1 did note several curious
comments in Mr. Johnson's March 5,2002 Jetter I address these as foHows:
1) How is it that Harbormaster Morris is supposed to be so
knowledgeable of ';';:. the facts and circumstances surrounding the
request and objections of the neighbors."? The file celiainly does
not reflect that he spoke to either of my Clients. In fact they report
that he has not In addition, it seems clear that he also did 110t know
that the Blums contiguous on the East do not mind having Mr.
.
.
2)
Mariani's dock located closer to their property line [see their Jetter
dated 03/06/2002 in your file].
Me Johnson complains about the logic of the Soboleskis having
docks and opposing Me Mariani's project The Soboleskis oppose
the location, size and character of the Mariani proposal, not the
concept of his bui Iding a dock once he has a residence on Lot 3 L If
the Mariani project is moved to the East adjacent to the Blums lot
line, they are not blocked in their view [so long as the size of the
boathouses does not get out of scale]. Both Me Mariani and Me
Johnson undoubtedly know this, but ignore it
Mr. Johnson complains that shifting to the East will impinge upon
the Blum's view. But Mr. Johnson fails to mention that the Blums
don't object
Me Johnson and Harhonnaster Morris both appear to he ignorant of
the fact that my Clients did not build the docks on their property
[they were existing] and that they spent approximately $20)000 to
move boat lifts and address fence and landscaping issues in a manner
that benefited their neighbors.
., .)
_J
4)
As you can see from the foregoing brief comments, there are many disputed
issues that I need to address for the Soboleskis, I hope that you will agree to grant the
additional time for my Clients and 1 to respond further prior to reaching a decision.
VerY,~ruJY yours~,,~,
~:P7. _ _ / /-::;:;. d
,.~/#~~~7~,~
/ ~,.,
Maxwell G. Battle, Jr.
Cc: James and Deborah Soboleski
.
.
BATTl,E & EDENFIELD, PAA.
A TTORNEYS AT LAW
MAXWFU,G BATTLE. JR,
MfCIlAI:LS', E[)ENF1UID
:'0(, MAS'()N srRFI"1
llRANDON, j'L 3351 ['177
(Rn) 6R5.301'1
FAX (RU) (iR1,5oD
NSO ADMrlTED
~ COLO{{A[V)
<,- NEW' MFXIC(]
~ MONT:\N^
April 26,2002
Cyndi Tarapani, Community Development Coordinator
Planning Department
City of Clearwater
100 South Myrtle Avenue
Clearwater, FL 33756
Via Hand Delivery
RE: Application for Flexible Development
Standard Approval submitted by
Chris Mariani; FLS 02-01-03
Dear Ms. Tarapani:
Thank you for meeting with my brother and T on April 23 , 2002. I write as a follow-up to that
meeting and after I had an opportunity to review your file once again including recent submissions
by the applicant I \7\1111 address your inquiry concerning the Sobo1eskis legal rights to maintain their
present view, Mr. Johnson's letter of April 14,2002, errors in the City Staff Report, and your inquiry
about the wind issue raised by Mr. Mariani in separate sections.
The Soboleskis have a right to an Unobstructed View
You inquired upon April 23, 2002 whether there wa'; any law supporting the Soboleskis' right to a
view As you will recall, r deferred answering your inquiry until I could research the issue, I can now
answer your question unequivocally. YESo THE SOBOLESKIS HAVE A RIGHT TO AN
UNOBSTR1JCTED VIEW.
First, the City of Clearwater's Municipal Development Code provides that you are to protect the
property values and to minimize VISUAL IMP ACTS [See eg.~ Section 3-9131. Thus, the City Code
itself gives a right to Soboleskis to have their property value protected and to have development
proceed in a fashion that minimizes visual impacts, ie, Destroys their view
Second, both the Florida Second District Court of Appeal and the Florida Supreme Court have
recognized a waterfront landowner's right to an unobstructed view, even where it may cross the
extended property lines ofthe waterfront landowner's upland land. See Lee County v. Kiesel, 705
.
.
So.2d 1013 (Fla. 2nd DCA 1998) and Belvedere Development v. Department of Transportation ,476
S02d 649 (Fla. 1985). In fact, the polley is so strong that each of these cases allowed the
complaining property OWl1er to collect damages from a govemment agency for interference with the
view across the water I have attached copies of these two cases for your ready review
Further, given the clear legal principal of law that the view is a property right, we believe that the
Soboleskis' civil rights would be infringed if the Mariani proposal were approved.
Tim .Johnson's April 14. 2002 Letter
After reviewing Timothy Johnson's letter dated April 14, 2002, I find just one more attempt to
obfuscate the issues and justify the unjustifiable. If you read all ofMr. Johnson's and all ofMr.
Mariani's correspondence together the true theme becomes apparent, to wit-- Mr. Mariani wants
other persons property values affected so that he can have what he asks for. In other words, he is
unwilling to have his dock in his own view.....HE WANTS IT IN HIS NEIGHBORS' VIEW.
To further his argument, Mr. Mariani is willing to go so far as to suggest that the City has previously
failed to enforce its Code by failing to require plans prepared, signed and sealed by a Florida
Professional Engineer, so it should fail to enforce the code one more time. If that is a meritorious
position, then why have the code at all? You have stated that you have been in your current position
since the code was enacted. Do you really believe that the Code should not be enforced Mr. Mariani
clearly does not want to submit the required plans and specifications at this point because they will
require him to fully reveal and document the travesty that he wants to impose upon his neighbors.
The photographs that Mr. Johnson submitted fail to identify where they were taken, how the point
from which they were taken was selected, how it relates to the orientation of the homes affected,
or what the position ofthe neighboring property owners was at the time the projects were pennitted.
Accordingly, they are of little value. The photographs and graphical renderings submitted by
Soboleskis are real, relate to the exact project at issue, and are submitted by a neighboring
property owner who does ob,ject BEFORE; THE PRO.JEeT IS PERMITTED
This is made most clear in Mr. Johnson's statement on page 2 of his April 14, 2002 letter where he
opines "...First, as harsh as it may sound, view is not a factor listed in... ". The applicant clearly
admits that the Soboleskis' view will be destroyed, but says "SO W1-IA TI", I want what I want. What
Mr. Johnson and Mr. Mariani so disingenuously refuse to acknowledge is that protecting value is
part of the Development Code, and VIEW IS V AI~UE on waterfront property. In addition, Mr.
.Johnson ignores Code Section 3-913 which requires consideration of VISUAl, IMPACTS.
Mr. Johnson goes on to speak about what his client can build "...as a matter ofright.". But Mr.
Johnson fails to address the environmental issues, or the fact that there is no right to a covered dock.
Mr. Mariani can not build a covered area with a shorter dock due the sea grass presence, but he
could stlU build a dock r albeit perhaps not the dock that he would like to build] Further, the shorter
dock would not allow for the use of large vessels due to water depth. This alone would ameliorate
the obstruction of Soboleskis' view that the construction of a dock in Mr. Mariani's proposed
1 ocati on will cause
2
.
.
Mr. Plisko's drawing is oflittle value in analyzing the issues because it fails to use the same point
of reference used in the Soboleski rendering photographs which depict the before and after views
and it does not address the vertical component at aIL This is obviously a result of Mr. Johnson's
recognition that addressing the effect of the vertical components would be devastating to his
position. While he blythe1y suggests in a footnote [footnote 2, page 3] that" Regrettably, the
graphics submitted are not truly representative of Mr. Mariani's proposal or the effect of moving the
dock in an easterly direction.", he fails to state any basis for this obviously false statement, nor does
he offer any graphic analysis of his OWll. As skilled a land use lawyer as he is, MI" Johnson would
have offered his own graphics ifthere was any way that they would have helped.
Errors in City Staff Report for 02/14/02 .oRC Meeting
UnfOl1:unately the City's Staff Report contains numerous errors which ifnot corrected may lead you
to an incorrect decision. Of further concern is the alteration of the Staff Report by interhneating the
word "Draft" in blue ink since I reviewed the file in March, It is my understanding that Public
Records should not be altered after they are filed. But of greater importance is that City Staff
reviewing the application presumably had an unaltered document in front of them which was full
of errors and would give them a false impression ofthe project. In any event, I now briefly list errors
in the repot1 as follows:
PAGE 2
Tbe tbird paragrapb incorrectly states the distance to East property line and the square footage of
the covered boatlifts. The distance to East property line is 72 feet, not 24 feet The square footage
of the covered boathfts is 544 square feet each, not 144 square feet.
Tbe fourtb paragraph fails to note that the code requires that all pennits be apphed for
simultaneously.
The proposed width in the table incorrectly lists 36 feet The tme width from the application is 39.75
feet
PAGE 3
The Table incorrectly lists the distance to East property line as 24 feet. The true dimension is 72
feet
Paragraph C.2 contains a false statement The County report does not say that the proposal is more
environmentally sensitive than the "'EXISTING DOCK". There is no existing dock.
Paragraph Co3 fails to analyze the criteria on the basis that it is not applicable. It is applicable to
the overall decision making process, Meeting one of the three criteria is required to request relief,
BUT DOES NOT ENTITLE THE APPLICANT TO RELIEF.
PAGE 4
3
.
.
Paragraph DJ is in error There is no existing house, Therefore, the dock will not be an accessory
use,
The applicant is not replacing an existing dock '^~th a more environmentally sensitive dock There
is no EXISTING DOCK, and the massive proportions of the dock proposed is hardly
environmentally sensitive.
The development is not in harmony with the scale and character of ad.iacent properties. Look
at the aerial photographs and the graphic representations.
Paragraph D.2 fails to address impairment of value at alL On waterfront property in particular,
VIEW IS V ALlIE.
Paragrallh D.4 fails to address the increased traffic of visitors coming to use two Thirty foot plus
boats, Similarly it fails to address marine traffic congestion which will no doubt be an issue when
you put two more large boats in such close proximity to the existing dock
Paragraph D.5 states without support that the proposed development is consistent with community
character and will improve it HOW? There are no docks of similar maS'1litude and it changes the
somewhat uniform spacing of docks throughout the area, See aerial photographs
Paragraph D.6 incorrectly states that there are no adverse impacts, It does not address visual,
olfactory and acoustic impacts on adjoining property, The proposed positioning of the Mariani dock
will impact use ofthe water space around the existing Soboleski dock, the boats operating will put
additional fumes and noise in the Sobo1eskis' faces, the massive size of tbe covered boatlifts and
vessels will adversely affect the visual aspects of adjoining property
PAGE 5
Given tbe vast number of material errors in the Staff Report and considering the failure to even
address in any meaningful analysis several key factors, the Staff Recommendation should be
completely discarded, This was apparently recognized by someone in your office after 1 became
involved because someone was concerned enough to alter the Original Staff Report in the file by
writing draft on it AFTER I OBT AJNED A COpy AND STARTED POINTING OUT FLAWS IN
IT
The Wind Issue
You inquired as to our position on the prevailing winds concern that Me Mariani raised as a
justification for not moving the dock to the East First, we are not convinced that the winds are
prevailing from the North, However, assuming that the prevailing winds are from the North, moving
the dock to the East does not significantly change the protection afforded by the peninsula upon
whjch the dock will be located; See Exhibjt 5 to my March 27, 2002 Letter. The land mass will still
protect the dock from Northerly winds, Further, as the winds shift to the East, moving the dock to
the East decreases the angle of impact of wind driven waves, It should also be noted that waves from
4
.
.
the channel will come in from the Easterly direction and tend to "wrap the seawall" Thus, moving
the dock to the East will enhance protection from wind and waves, not decrease it
Concluding Comments
The simple truth is Me Mariani wants to destroy the rights ofthe Soboleskis so that he will 110t have
to look at his own dock. He should not be allowed to do so under the b1Uise of environmental
protection. At this time, Mr. Mariani can move his dock to the East side of his lot without o~iection
from the adjoining property o~rner on that side, choose the orientation of his proposed house to
enhance its visual properties, and simultaneously protect the property rights of his neighbors. 1
implore you to require this action before Mr. Mariani and the City are both plunged into otherwise
unnecessary litigation as a result of what can fairly be construed as an obstinate, "to heck with my
neighbors" attitude by the applicant.
V/.Jru1y y.ours, .::-/
/~~~
~;Z<~1Gltle, Jf.
Cc: James and Deborah Soboleski
5
.
.
Lee County v. Kiesel, 705 So.2d 1013 (Fla.App. Dist.2 02/06/1998)
[1] Florida Court of Appeals
[2] Case No. 96-05137
[3] 705 SO.2d 1013, 1998.FL.446 <http://www.versuslaw.com>
[4] February 06, 1998
[5] LEE COUNTY, FLORIDA, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA,
APPELLANT,
v.
EDWARD C. KIESEL AND LORRAINE T. KIESEL, HUSBAND AND WIFE, APPELLEES.
[6] Appeal from the Circuit Court for Lee County; R. Wallace Pack, Judge.
[7] James G. Yaeger, Lee County Attorney, and John J. Renner, Assistant County Attorney, Fort
Myers, for Appellant. Kenneth A Jones of Peper, Martin, Jensen, Maichel and Hetlage, Fort Myers,
for Appellee.
[8] Campbell, AC.j., and Frank, J., Concur.
[9J The opinion of the court was delivered by: Northcutt, Judge.
[10] NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED,
DETERMINED
[11] We affirm a partial final Judgement in this inverse condemnation action brought by Edward and
Lorraine Kiesel against Lee County. The trial court found that the Kiesels were entitled to
compensation because a bridge the county built over the Caloosahatchee River obstructed the
Kiesels' riparian right of view. The court gave the county the option either to proceed with a "quick
take" procedure pursuant to Chapter 74, Florida Statutes (1995), or to pay the Kiesels after the entry
of a final Judgement assessing full compensation for the taking and any damages to the remainder.
The county appealed. *fn1
.
.
[12] Evidence at the bench trial reflected that the Kiesels purchased their riverfront property in 1987
for $160,000 and constructed a home at a cost of $265,000. After the home was built, the county
proceeded with the alignment and construction of the bridge. The completed bridge makes landfall on
property adjacent to the Kiesel home; none of the Kiesels' property was condemned for the
construction. The bridge is not aligned perpendicularly to the shoreline, but extends over the river at
an angle, reaching across the view from the Kiesels' property. The Kiesels' experts testified that the
property previously had a value of $650,000 to $659,000. The experts opined that after the bridge
construction the market value of the property was $300,000. One expert directly attributed the loss in
value to the bridge.
[13] The trial court found that "s a result of the angle at which the bridge is constructed across the
front (river side) of the Kiesel property, it substantially and materially interferes with and disturbs the
view across the waters of the Caloosahatchee River from the said property." The court concluded that
"as a direct and proximate result of such substantial and material interference, the market value of the
Kiesel property has substantially decreased, having been estimated by Plaintiffs' expert real estate
appraisal witness as being in the range of $194,250 to $227,200."
[14] We reject the countyls argument that there was no physical taking here; that, since the bridge
did not physically rest upon any of the Kiesel property itself, the Kiesels were entitled to compensation
only if the bridge construction substantially ousted them from or deprived them of substantially all
beneficial use of their property. That test would apply if this case involved a "regulatory taking", in
which a land owner's use of his property had been restricted by government regulation. See, e.g.,
Florida Game and Fresh Water Fish Com'n v. Flotilla, Inc., 636 So. 2d 761 (Fla. 2d DCA 1994). But
this was not a regulatory taking. Rather, this case involved an actual physical intrusion to an
appurtenant right of the Kiesels' property ownership. Cf. Palm Beach County v. Tessler, 538 SO.2d
846, 849 (Fla. 1989) (although none of property owner's land was physically taken, owner was entitled
to compensation when retaining wall built by county caused a substantial loss of owner's appurtenant
right of access to property.).
[15] Owners of uplands along navigable waters enjoy common law riparian rights, one of which is
the right to an unobstructed view over the water to the channel. These rights constitute property,
which the government may not take or destroy without paying just compensation to the owners. SSee
Thiesen v. Gulf, F.& A. Ry. Co., 75 Fla. 28, 78 So. 491 (1917); Padgett v. Central and Southern
Florida Flood Control Dist., 178 So. 2d 900 (Fla. 2d DCA 1965).
[16] Shorelines do not often neatly parallel channels, and property lines are not always
perpendicular to shorelines or channels. Consequently, it is impossible to devise a rule for every case
that would define the physical parameters of the riparian right of view or establish what degree of
intrusion would constitute an obstruction. In this regard, both parties rely on Hayes v. Bowman, 91 So.
2d 795 (Fla. 1957). The county cites Hayes because it affirmed the denial of an upland owner's action
for an injunction against a private party's construction of a landfill that would interfere with the land
owner's riparian right of view to the channel. The Kiesels cite Hayes because it recognized this
particular property right, and described its breadth in general terms as a case by case factual
determination.
.
.
[17] We... hold that the common law riparian rights to an unobstructed view and access to the
Channel over the foreshore across the waters toward the Channel must be recognized over an area
as near 'as practicable' in the direction of the Channel so as to distribute equitably the submerged
lands between the upland and the Channel. This rule means that each case necessarily must turn on
the factual circumstances there presented and no geometric theorem can be formulated to govern all
cases. An upland owner must in all cases be permitted a direct, unobstructed view of the Channel and
as well a direct, unobstructed means of ingress and egress over the foreshore and tidal waters to the
Channel. If the exercise of these rights is prevented, the upland owner is entitled to relief.
[18] In making such 'equitable distribution' the Court necessarily must give due consideration to the
lay of the upland shore line, the direction of the Channel and the co-relative rights of adjOining upland
owners.
[19] 91 So. 2d at 801-02.
[20] When affirming the denial of relief to the property owner, the Hayes court limited its ruling to
the effect of the landfill specifically as proposed. The court observed that "if the fill should be extended
in a southerly direction so as to interrupt appellants' remaining view of or approach to the Channel,
appellants might then have substantial grounds for complaint." 91 So. 2d at 802. It thus appears that
in Hayes the court applied to the riparian right of view a test that was similar to the one it later
articulated with respect to a land owner's appurtenant right of access: to constitute a compensable
obstruction of the riparian right of view, the interference must be more than a mere annoyance. It must
substantially and materially obstruct the land owner's view to the channel. Cf. Tessler, 538 So. 2d at
849 (loss of the most convenient access to property is not compensable where other suitable access
continues to exist; loss of access is compensable when, considered in light of the remaining access,
property owner's right of access has been substantially diminished).
[21] In this case the trial court found that the bridge substantially and materially interfered with the
Kiesels' riparian right of view. Our examination of the record confirms that this finding was amply
supported by the evidence at trial. The Kiesels' expert testified that eighty per cent of their view to the
channel was obstructed by the bridge. We agree with the trial court's Conclusion that this was
substantial and material.
[22] Finding no merit in the county's other issues, we affirm the order under review.
--------------------------------------------------------------------------------
Opinion Footnotes
.
.
--------------------------------------------------------------------------------
[23] *fn1 We have jurisdiction because the non-final order determined the issue of liability in favor
of the party seeking affirmative relief. Fla.RApp.P. 9. 130(3)(C)(iv).
19980206
.
.
07/11/85 BELVEDERE DEVELOPMENT v. DEPARTMENT OF
[Editor's note: footnotes (if any) trail the opinion]
[1] SUPREME COURT OF FLORIDA
[2J BELVEDERE DEVELOPMENT CORPORATION, et aI., Petitioners,
v.
[3] DEPARTMENT OF TRANSPORTATION, DIVISION OF ADMINISTRATION,
[4] Respondent
[5J No. 62,172
[6] 476 So. 2d 649, 10 Fla. Law W. 375
[7J July 11, 1985
[8J Application for Review of the Decision of the District Court of Appeal - Certified Great Public
Importance. Fourth District - Case No. 79-2306.
[9J Rehearing Denied November 4, 1985
BLUE BOOK CITATION FORM: 1985.FL.1672 (http://www.versuslaw.com)
[1 OJ APPELLATE PANEL:
[11J Adkins, J., and Alderman, Ehrlich and Shaw, JJ., concur. Boyd, C.J., concurs in part and dissents
in part with an opinion. Overton and McDonald, JJ., dissent.
[12J DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ADKINS
[13J This cause is before us on petition to review the decision of the Fourth District Court of Appeal in
Belvedere Development Corp. v. Department of Transportation, Division of Administration and Palm
Beach County, 413 SO.2d 847 (Fla. 4th DCA 1982), in which that court certified the following question
to be a question of great public importance:
[14J DOES FLORIDA LAW PERMIT RIPARIAN RIGHTS TO BE SEPARATED FROM RIPARIAN
LANDS?
[15J 413 SO.2d at 851. We have jurisdiction. Art. V, ~ 3(b)(4), Fla. Const.
[16J This case commenced with the filing of a complaint in eminent domain by the Department of
Transportation to condemn certain lands adjoining the contiguous to Lake Worth in Palm Beach
County, Florida. The Department sought to acquire the property in fee simple absolute, with an
express reservation to the landowners which provided:
[17J Reserving unto the Defendant the rights to use and enjoy the riparian rights of and pertaining to
said lands, including the rights to bulkhead and fill, said lands as provided by law, which are not in
conflict with the interests of the Florida Department of Transportation in the construction and
maintenance of said public highway.
.
.
[18J The petitioners, Belvedere Development Corporation and Colonnades, Inc., answered the
complaint in eminent domain alleging that the lands sought to be acquired by the state were only a
portion of petitioners' lands and the taking thereof and the use to which they would be put would
cause severance damages to the remaining adjoining lands of the petitioners.
[19] The case went to trial and the jury returned verdicts finding (1) that the compensation awarded to
petitioner Colonnades was $15,800 for the value of the land taken and $0 for severance damages, for
a total award of $15,800; and (2) the compensation awarded to petitioner Belvedere was $2,385 for
the value of the land taken and $0 for severance damages, for a total award of $2,385. The trial court
entered final judgments pursuant to the verdicts and an appeal followed.
[20] On appeal, the petitioners raised seven points. However, the district court found that only one
issue warranted any extended discussion -- whether riparian rights could be enjoyed by an owner of
non-riparian land? The court's decision to uphold the jury's award was based on its conclusion that the
only Florida Supreme Court decisions relevant to the issue supported the Department's position. 413
SO.2d at 850 (citing Burkart (sic) v. City of Fort Lauderdale, 168 SO.2d 65 (Fla. 1964) and Caples v.
Taliaferro, 144 Fla. 1, 197 So. 861 (1940). The court also discussed a decision of our First District
Court of Appeal, Peebles v. Canal Authority, 254 SO.2d 232 (Fla. 1 st DCA 1971), in which the
condemnor acquired the fee simple title to the property taken without limiting the estate or use
involved. The Peebles court held that it was improper for the condemnor's appraiser to take into
consideration the condemnor's allowance of access to the river based on the condemnor's usual
policy of allowing such access. The court stated:
[21] It is established law that privileged in the property taken, (in this case, access to a body of water)
the enjoyment of which is not compatible with the exercise of the title taken (here, a fee simple
absolute) by the condemning authority, cannot be considered in awarding compensation unless they
are formally established by the condemnation proceeding. Privileges. . . which are merely permissive
and subject to revocation by the condemning party at any time cannot be availed of in reduction of
damages.
[22] Id. at 233 (citations omitted).
[23] The district court in the instant case found that the condemnor had made it clear in its petition that
the riparian use of the property was reserved to the petitioners except insofar as it might conflict with
the limited interests of the Department. The court also found that the order of taking followed Peebles
and specified that the riparian rights were reserved to the petitioners. Accordingly, the found that the
express reservation of rights, coupled with the evidence adduced at trial, was a sufficient basis upon
which the jury could determine its award. 413 So.2d at 850.
[24J The petitioners argue that the attempted reservations of riparian rights by the Department in the
legal descriptions attached to the order of taking are ineffective. They contend that a person or entity
must own the lands bordering on navigable waters for there to be riparian rights; in other words,
riparian rights are appurtenant to and are inseparable from the riparian land. Petitioners quote the
following authority:
[25J The source of riparian rights is ownership of dry land bordering or abutting on a navigable
waterbody . . . riparian rights are an inherent aspect of upland ownership, and not severable from it.
~3 21.6 and 34.3, Maloney, Plager and Baldwin, Water Law and Administration, The Florida
Experience, University of Florida Press, 1968.
.
.
[26J In addition, they rely on the following language from Florida Jurisprudence to support their
contention that the respondents have become the owners of the riparian rights appurtenant to these
lands:
[27] The land to which the owner holds title must extend to the ordinary high watermark of the
navigable water in order that riparian rights may attach. Conveyance of title to or lease of the riparian
land entitled the grantee to the riparian rights running therewith whether or not mentioned in the deed
or lease of the upland. 34 Fla.Jur., Waters, 126, et seq.
[28] Because the petitioners' property was taken in fee simple absolute without an award for
severance damages, petitioners argue in conclusion, a taking has occurred in violation of article X,
section 6 of the Florida Constitution.
[29] The respondent, the Department of Transportation, contends that Florida is among those
jurisdictions that follow the majority rule that riparian rights may be devised separate from the lands to
which such rights attach. In 1916 this Court stated:
[30J A conveyance of land to which riparian rights to submerged lands are attached. . . may carry the
riparian rights, unless such rights are reserved or a contrary intent appears from the conveyance.
[31] Panama Ice and Fish Co. v. Atlanta and St. Andrews Bay Railway, 71 Fla. 419, 423,71 So. 608,
610 (1916). See also Burkhart (sic) v. City of Fort Lauderdale; City of Tarpon Springs v. Smith, 81 Fla.
479, 502, 88 So. 613, 621 (1921).
[32] Implicit in the foregoing cases is the principle that riparian rights may sometimes be severed from
the ownership of the land to which they attach. If this were not so, decisions which resolve how and to
whom to allocate riparian rights would not even arise. There is nothing novel about the notion of
finding a legal separateness of an incorporeal interest such as a riparian right. The law has long
recognized the separateness of non-possessory property interests, including incorporeal heriditaments
and future interests.
[33] However, we are persuaded by the concerns voiced by Judge Hersey in his special concurring
opinion and agree that following this general rule in all situations often leads to rather absurd results.
Judge Hersey stated:
[34] (Riparian) rights basically include (1) general use of the water adjacent to the property, (2) to
wharf out to navigability, (3) to have access to navigable waters and (4) the right to accretions.
[35J How could it seriously be contended that appellants in this case retain any of those rights despite
the language in the Order of Taking (the functional equivalent of a deed)? They have no easement or
other retained rights to enter upon appellee's land. If a dock is built by appellants it will have to be
free-standing, without contact with appellee's land. And how are they to "use" the water, say for
swimming, when they have no access to it other than by boat? And consider the horrendous problem
of accretions!
[36J 413 SO.2d at 851.
[37J In 1917 this Court defined riparian rights in Thiesen v. Gulf, Florida and Alabama Railway, 75 Fla.
28,78 So. 491, 507 (1917):
.
.
[38J Riparian rights we think are property, and being so the right to take it for public use without
compensation does not exist. The fronting of a lot upon a navigable stream or bay often constitutes its
chief value and desirability whether for residence of business purpose. The right of access to the
property over the water, the unobstructed view of the bay and the enjoyment of the privileges of the
waters incident to ownership of the bordering land would not in many cases be exchanged for the
price of an inland lot in the same vicinity. In many cases doubtless the riparian rights incident to the
ownership of the land were the principal if not sole inducement leading to its purchase by one and the
reason for the price charged by the seller.
[39J Although riparian rights are property, they are unique in character. The source of those rights is
not found within the interest itself, but rather they are found in, and are defined in terms of the riparian
upland. In most cases, therefore, it is not difficult to find that riparian rights are an inherent aspect of
upland ownership and are not severable from it.
[40] Thus, in the context of condemnation of property, we think the condemnor should be unable to
reserve the riparian rights to the condemnee in the absence of an express bilateral agreement to do
so with the condemnee. The actions of the Department in this case have, in effect, deprived
petitioners of the basic rights which are included in the term "riparian rights." The condemnation
context is distinguishable from the situation where two parties to a real estate transaction might
choose to sever the riparian rights from the riparian lands and also provide those necessary additional
rights which would enable the riparian right holder to actually benefit from those rights -- Le., an
easement or right to enter the riparian lands. For this reason, we will not hold that riparian rights are
never severable from the riparian lands. However, we must conclude that the act of condemning
petitioners' lands without compensating them for their riparian property rights under these facts was
an unconstitutional taking.
[41] In reaching our conclusion, we have considered the applicability of section 197.228, Florida
Statutes (1983), to the instant case. Section 197.228 provides in part:
[42] (1) Riparian rights are those incident to land bordering upon navigable waters. They are rights of
ingress, egress, boating, bathing and fishing and such others as may be or have been defined by law.
Such rights are not of a proprietary nature. They are rights inuring to the owner of the riparian land but
are not owned by him. They are appurtenant to and are inseparable from the riparian land. The land to
which the owner holds title must extend to the ordinary high watermark of the navigable water in order
that riparian rights may attach. Conveyance of title to or lease of the riparian land entitles the grantee
to the riparian rights running therewith whether or not mentioned in the deed or lease of the upland.
[43] The question of whether this statute applies to the case at bar turns on the threshold issue of
whether it is a tax law or property law. The statute contains language which seemingly prevents the
separation of any riparian rights from the ownership of riparian upland. Such language, if applied to
this case, would be inconsistent with generally accepted property doctrines and contrary to
established case law in the state of Florida. See Burkhart (sic) v. City of Fort Lauderdale.
[44] The Court, in Webb v. Giddens, 82 SO.2d 743 (Fla. 1955), observed that this statute "is included
in the chapter on taxation and finance" and expressed no opinion as to its applicability in a suit
brought by a riparian owner seeking a declaration as to the right of State Road Department to obstruct
navigable waters.
[45] In McDowell v. Trustees of Internal Improvement Fund, 90 So.2d 715,717 (Fla. 1956), we said
this subsection of the statute "was appropriately included in the chapter on taxation, and it was
.
.
apparently intended by the legislature to provide a guide for the benefit of tax assessors." This was
quoted with approval in Adams v. Crews, 105 SO.2d 584 (Fla. 1958).
[46] No case has ever held section 197.228 applicable as property law to riparian rights. Thus, we
agree with the district court of appeal and hold that section 197.228 is a tax law and therefore not
applicable to this case. See Maloney, Plager & Baldwin, Water Law and Administration ~ 34.3 (1968).
[47] The second point raised by the petitioners is whether the state should have been permitted at trial
to make certain promissory representations that they would or would not do certain things in the future
which were not in the pleadings or construction plans offered in evidence. The petitioners assert that
the damages caused by a project as contemplated by the construction plans in existence of the date
of valuation and the pleadings govern the evidence of valuation and that representations of a purely
promissory or speculative nature should not affect either the character or the extent of the damages
the condemnor must pay as full compensation. We agree. When evidence in the form of plans and
specifications is properly admitted for the purpose of providing a declaration of the manner in which
the condemned property will be utilized, the Department should be bound by this evidence. Division of
Administration, Department of Transportation v. Decker, 408 SO.2d 1056 (Fla. 2d DCA 1981), review
denied, 415 SO.2d 1361 (Fla. 1982); Bryant v. Division of Administration, Department of
Transportation, 355 SO.2d 841 (Fla. 1 st DCA 1978); Central & Southern Florida Flood Control District
v. Wye River Farms, Inc., 297 SO.2d 323,327 (Fla. 4th DCA 1974), cert. denied, 310 SO.2d 745 (Fla.
1975).
[48] In summary we hold: (1) Riparian rights are property rights, incorporeal interests in real estate; (2)
They may be separated from the upland by bilateral agreement to reserve them in a deed of
conveyance or all or any interest in riparian rights may be transferred by voluntary act to the upland
owner; (3) Section 197.228 is a tax law and not applicable; (4) Riparian rights cannot be severed by
condemnation proceedings without the consent of the upland owner.
[49J The other points raised by petitioners are without merit and we affirm the judgment of the trial
court awarding $2,385 and $15,800, respectively, as the value of the land taken. The decision of the
district is quashed and the cause is remanded to the district court with instructions to further remand
the same to the trial court for the purpose of determining the just compensation due petitioners for
riparian rights and severance damages.
[50J It is so ordered.
[51] ALDERMAN, EHRLICH and SHAW, JJ., Concur
[52J BOYD, C.J., Concurs in part and dissents in part with an opinion
[53J OVERTON and McDONALD, JJ., Dissent
[54] MINORITY OPINION
[55] BOYD, C.J., concurring in part and dissenting in part.
[56J I would quash the decision of the district court of appeal and remand with directions that
petitioners be given a new trial on the question of the value of the property taken. The property
owners are entitled to have the value of the property for which they are to be compensated
determined by means of a jury trial from which improper and prejudicial testimony is excluded.
Department of Transportation v. Nalven, 455 SO.2d 301 (Fla. 1984).
.
.
[57] I agree with the Court's conclusion that in the context of this case and condemnation proceedings
generally, there can be no separation of riparian rights from the riparian lands being taken. Therefore
the purported "reservation" of riparian rights to the owners having their riparian lands taken by the
state was void and the owners must be compensated for that portion of the value of the lands taken
attributable to their riparian character.
[58] The majority wisely finds the words of Judge Hersey, written in special concurrence to the opinion
below, persuasive on the issue of separation. There are compelling reasons for simply answering the
certified question unequivocally in the negative. However, I am content with confining our answer to
the context in which the question arose. I see the majority's "holding" regarding separation by
agreement as mere dicta.
[59] In view of the Court's conclusion that there can be no reservation of riparian rights to the
condemnees, we must also conclude that the testimony of the state's valuation experts at trial, having
been based on an erroneous legal theory, was improper. As is briefly described in the opinion of the
district court, the state's expert testified that there was to be no compensation for the loss of riparian
rights, because riparian rights were not being taken. This erroneous testimony was clearly prejudicial
and mandates a new trial.
[60] The majority correctly concludes that it was also error to allow the state to present to the jury
certain features of its future plans of a promissory or speculative nature, which served to diminish the
character of the damages in the eyes of the jury. This error mandates a new trial.
[61] I dissent to that portion of the Court's opinion approving the affirmance of the judgment for
damages. Because of errors at the trial, the damages must be determined anew by means of a jury
trial affording full protection to the petitioners' constitutional right to full compensation.
[Editor's note: Illustrations from the original opinion, if any, are available in the print versionJ
Copyright 1996 VersusLaw, Inc. (206) 250-0142. http://www.versuslaw.com
19850711
1985.FL.1672
,
.
.
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CITY OF CLEARWATER
PlANNING DEPARTMENT
POST OFFICE Box 4748, CLEARWATER, FLORIDA 33758-4748
MUNICIPAL SERVICES BUILDING, 100 SOUTH MYRTLE AVENUE, CLEARWATER, FLORIDA 33756
TELEPHONE (727) 562-4567 FAX (727) 562-4576
loNG RANGE PLANNING
DEVELOPMENT REVIEW
March 29, 2004
Timothy A. Johnson, Jr.
Johnson, Pope, Bokor, Ruppel & Bums, LLP
Post Office Box 1368
Clearwater, Florida 33757-1368
Re:
Development Order for 193 Devon Drive
Case No. FLS 02-01-03
t
/i..~ ,jEt
Dear Mr. Johnson:
I am writing with regard to the property located at 193 Devon Drive, Case No.
FLS 02-01-03. On February 27,2004, the City of Clearwater Planning Department
issued a Development Order denying the application for a dock based on the Order
Granting Petition for Certiorari of the Circuit Court for the Sixth Judicial Circuit dated
December 5, 2003. That Development Order was issued in error since the Circuit Court
actually remanded the matter to the Community Development Board. Subsequently,
through your letter dated March 10, 2004, the applicant Mr. Mariani, withdrew the
pending application (Case No. FLS 02-01-03).
Therefore, please be advised that the previous Development Order dated February
27,2004 (copy attached) which denied Case No. FLS 02-01-03 is hereby revoked since
the denial was issued in error. Based on the March 10, 2004 withdrawal of this pending
application, the application is deemed withdrawn by the applicant.
If you have any questions, please do not hesitate to call me. Thank you.
~~
Cynthia H. Tarapani, AICP
Planning Director
cc: Adjoining Property Owners
Leslie Dougall-Sides, Assistant City Attorney
BRIAN J. AUNGST, MAYOR-COMMISSIONER
HOIT HAMIl.TON, VICE MAYOR-COMMISSIONER WHITNEY GRAY, COMMISSIOf'ER
FRANK HIBBARD, COMMISSIONER 11\ BU.l.JONSON, COMMISSIONER
W ......
"EOlJAt EMPLOYMENT AND AFFIRMATIVE ACTION EMPLOYER"
JOHNSON, RUSSEL B
JOHNSON, SARA F
PO BOX 17
NEWARK OH 43058 - 0017
CASSELL, FRANCES T TRE
180 DEVON DR
CLEARWATER FL 33767 - 2438
EVERETI, HENRY A
EVERETI, FRANCES B
188 DEVON DR
CLEARWATER FL 33767 - 2438
HEMERICK, F DAVID
HEMERICK, MYRA B
192 DEVON DR
CLEARWATER FL 33767 - 2438
BLUM, MARK S
BLUM, DIANNE P
195 DEVON DR
CLEARWATER FL 33767 -
MARIANI, CHRISTOPHER C
310 LIVE OAK LN
LARGO FL 33770 - 4011
SOBOLESKI, DEBORAH L
191 DEVON DR
CLEARWATER FL 33767 - 2439
NIEMANN, DALE K
NIEMANN, JANET R
177 DEVON DR
CLEARWATER FL 33767 - 2439
STEEVES, MICHAEL B
STEEVES, AMADA G
173 DEVON DR
CLEARWATERFL 33767 -2439
S:IPlanning DepartmentlC D BIStandard Flrdlnactive or Finished CasesIDevon 193 Mariani - Deniedllabel notification 193 Devon Dr.doc
..
-
Fierce, Lisa
From:
Sent:
To:
Cc:
Subject:
Dougall-Sides, Leslie
Thursday, January 16, 2003 11 :16 AM
Tarapani, Cyndi
Fierce, Lisa; Parry, Mark; Akin, Pam; Brumback, Garry
Order in Mariani Dock Case--CDB/City prevails!
Importance:
High
I just received the Final Order from ALJ Johnston in Sobeleski v. City and Mariani. Judge Johnston finds that the decision
of the CDB [to not hear the Sobeleski appeal and to issue the Mariani dock permit] is SUSTAINED, and the Development
Order issuing the permit is UPHELD. The Order also states that under Section 4-504B., the CDB's decision should only
be overturned if it abused its discretion. This is a very narrow standard of review and since this Order should be used as
precedent, should result in few CDB decisions being overturned. The Order does state that the entire Appeal Application,
even if it contained items requested to be presented but not presented to the CDB, should have been forwarded to DOAH.
This is potentially troubling because the ALJ would then be reviewing items that are new, not in Planning's files, and not
looked at by the CDB. However, an ALJ should not base a decision on such items, and I imagine that few of them would,
they just want to see what it is the appellant is submitting to avoid a claim of denial of due process by the appellant.
Thanks for Planning's assistance in this challenging matter!
FilL
NFUj[/L - 01 {jj l
1
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ut
.
Haines, An el
From:
Sent:
To:
Cc:
Subject:
Follow Up Flag:
Due By:
Flag Status:
Fierce, Lisa
Friday, August 30, 2002 4:23 PM
Haines, Angel
Tarapani, Cyndi; Dougall-Sides, Leslie~
hearing officer appeal - need documents ',,-
"-. J
'--./
Follow up
Friday, September 06, 2002 5:00 PM
Flagged
'''-''-.......
-----
J&rv1 fI1/tJD~ Df1t V (t(f)
i:e wi need to gather the following documents and send to leslie for the appeal filed by max battle on behalf of mr
so eski regarding the cdb decision of 8/20102:
~e applicable minutes from that case at the 8/20 cdb meeting (cyndi has a copy of the marked-up minutes, and will
n ad you to coordinate the editing with pat sullivan); D~ fVUtJ rrr?!a tWC""_,,(m~
) contents of the packet that was distributed to the cdb including: 8/20 staff report; exhibits a-? (original application,
amendment letters from tim johnson including the 24" by 36" site plan; flex standard staff report; development order, and
al}flBal application filed by battle);
0~dditional correspondence that we gave ot the cdb after the original packet went out (as part of his application); and
\/~') development order, signed by cyndi on 8/29/02 stating the outcome of the 8/20 cdb meeting
please gather and show me before we send
thanks
Lisa L. Fierce
Assistant Planning Director
City of Clearwater - Planning Department
Ifierce@clearwater-fl.com
727.562.4561 phone
727.562.4865 fax
1
FILE
.
.
Fierce, Lisa
From:
Sent:
To:
Subject:
Kurleman, Scott
Tuesday, August 13, 2002 4:05 PM
Fierce, Lisa
191 Devon Drive
Per your request, I hand delivered an appeal letter to Ms. Deborah Soboleski at 191 Devon Drive today at approximately
10:05 a.m.
fiLE.. FilE
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TO:
FAX COVER MEMO
CITY OF CLEARW A TER
PLANNING DEPARTMENT
100 S. MYRTLE AVE., 2nd Floor
CLEARWATER, FL 33756
(727) 562-4567 FAX: (727) 562-4865
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CITY OF
CLEARWATER
LONG RANGE PlANNING
DEVELOPMENT REvIEW
HOUSING DMSION
NEIGHBORHOOD SERVICES
PlANNING DEPARTMENT
POST OFFICE Box 4748, CLEARWATER, FLORIDA 33758-4748
MUNICIPAL SERVICES BUIlDING, 100 SOUTH MYRTLE AVENUE, CLEARWATER, FLORIDA 33756
TELEPHONE (727) 562-4567 FAX (727) 562-4576
August 12,2002
Mr. Maxwell Battle, Jr. Esquire
206 Mason Street
Brandon, Florida 33511
RE: Case APP2002-07002, 193 Devon Drive
SENT VIA FAX: 813-684-3014
Dear Mr. Battle:
The above referenced Appeal has been scheduled for review by the Community
Development Board at its August 20, 2002 meeting. The meeting will begin at 2:00 p.m.
and will be held in the City Hall Commission Chambers (third floor). The building is
located at 112 South Osceola A venue in downtown Clearwater.
If you have any questions, please contact me at 727-562-4561.
Sn,relYYo7fi~ ~
s . Fierce
ssistant Planning Director
Cc: file
S:\Planning DepartmenflC D B\APPEALS\Devon 193 Mariani dock\devon 193 CDS Notice letter to agent.doc
BRIAN]. AUNGST, MAYOR.COMMISSIONER
Eo HART, VICE MAYOR,COMMISSIONER WHITNEY GRA.Y, COMMISSIO:-JER
HOYT HAMILTON, COMMISSIONER * BILLJONSON, COMMISSIONER
"EQUAL EMPLOYMENT AND AFFIRMATIVE ACTION EMPLOYER"
~
,
DATE, TIME
FAX NO./NAME
DURATImi
PAGE(S)
RESULT
MODE
TRANSMISSION VERIFICATION REPO
08/13 09:19
98135845922
00:00:54
02
OK
STANDARD
ECM
TIME
NAME
FAX
TEL
08/13/2002 09:20
PLAN
7275524575
7275524557
.
.
CITY OF
CLEARWATER
PLANNING DEPARTMENT
POST OFFICE Box 4748, CLEARWATER, FLORIDA 33758-4748
MUNICIPAL SERVICES BUILDING, 100 SOUTH MYRTIE AVENUE, CLEARWATER, FLORIDA 33756
TELEPHONE (727) 562-4567 FAX (727) 562-4576
LONG RANGE PlANNING
DEVELOPMENT REvIEW
HOUSING DMSION
NEIGHBORHOOD SERVICES
August 12, 2002
Ms. Deborah Groen Soboleski
191 Devon Drive
Clearwater, Florida 33767
RE: Case APP2002-07002, 193 Devon Drive
Dear Ms. Soboleski:
The above referenced Appeal has been scheduled for review by the Community
Development Board at its August 20, 2002 meeting. The meeting will begin at 2:00 p.m.
and will be held in the City Hall Commission Chambers (third floor). The building is
located at 112 South Osceola Avenue in downtown Clearwater.
IflPu have any questions, please contact me at 727-562-4561.
'..n~~\~lY YO.~S Jf} ~;1 Q
/, I~'
(isa . Fier e
Assistant Planning Director
Cc: file
S:\Planning Department\C D lJIAPPEALS\Devon193 Mariani dock\devon193 CDB Notice letter to appellant. doc
BR!Al'\~ J. AL~r-;GST) ~iiA\.GR-CO\i01ISSIOj\!ER
ED HART, VICE MJ.YOH-CmIMISSIOf'iER Wf-!ITr,EY GR\\', CO:'i:IiISSIO;-':ER
HOYT HAMILTON, COMMISSIONEH BII.LJOi';sm:, CmlMISSIOI\ER
"EQUAL EMPLOYMEi'\T AND AFFIML>\TIVE ACTION EMPLOYER"
i
.J
. .
CITY OF
CLEARWATER
PlANNING DEPARTMENT
POST OFFICE Box 4748, CLEARWATER, FLORIDA 33758-4748
MUNICIPAl SERVICES BUILDING, 100 SOUTH MYRTLE AVENUE, CLEARWATER, FLORIDA 33756
TELEPHONE (727) 562-4567 FAX (727) 562-4576
LONG RANGE PLAI'lNING
DEVELOPMENT REVIEW
HOUSING DMSION
NEIGHBORHOOD SERVICES
August 12, 2002
Mr. Maxwell Battle, Jr. Esquire
206 Mason Street
Brandon, Florida 33511
RE: Case APP2002-07002, 193 Devon Drive
SENT VIA FAX: 813-684-3014
Dear Mr. Battle:
The above referenced Appeal has been scheduled for review by the Community
Development Board at its August 20, 2002 meeting. The meeting will begin at 2:00 p.m.
and will be held in the City Hall Commission Chambers (third floor). The building is
located at 112 South Osceola A venue in downtown Clearwater.
If you have any questions, please contact me at 727-562-4561.
,SrCfrelY yorfl3c1A LL
~rce
'.1ssistant Planning Director
Cc: file
S:\Planning Department\C D lJIAPPEALS\Devon193 Mariani dock\devon193 CDS Notice letter to agent. doc
.J P-.l![\G~~-L
ED :r~i\n.T, VICE r\iL\\.OR.-CO:\!\il~=SIO!\ER
HO\'T .t-IA':\11 1.1'0:'.: , CO\\.i\l!SSlOr\ER
\~-/HITI0EY G 0.:\Y, CO\t;\i!SS{O\'El~
BlI.I.JOi':SOi', CO,\I~IlSS10;\ER
Erv\PLOYl\IENT A1\JO ro.FFIRlvL-'\TIVE ACTION EMPLO"rl:R"
,
.
.
"
~ Clearwater
FilE
City of Clearwater
Planning Department
100 S. Myrtle Ave., 2nd Floor
Clearwater, FL 33756
Telephone: (727) 562-4567
Fax: (727) 562-4865
u
Fax Cover Sheet
To: Gina or Pam
Fax: 4021
Phone: 4011
From: Angel
Date: 7/30/02
Sub~ct: Mariani Dock Appeal
Message: FYI: there is a lot more (binder) sent from Mr. Battle along wI the appeal.
If you would like to view all of it, feel free to call me at 4579. Thx.
Number of Pages including this page
,.-?
/7
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BATTLE & EDENFIELD, P.A.
ATIORNEYS AT lAW
MAXWELL G. BATILE, JR. .
MICHAELS. EDENFIELD
206 MASON STREET
BRANDON, FL 3351 1.5277
(813) 685-3014
FAX (813) 684-5922
ALSO ADMITTED
. COLORADO
. NEW MEXICO
. MONTANA
July 26, 2002
Cyndi Tarapani, Community Development Coordinator
City of Clearwater Planning Department
100 South Myrtle Avenue
Clearwater, FL 33756
HAND DELIVERY
RE: Application for Flexible Development Standard
Approval submitted by Chris Mariani~ FLS 02-0 1-03 ~
APPLICATION FOR ADMINISTRATIVE APPEAL~
Dear Ms. Tarapani:
Enclosed is my Client's APPLICATION FOR ADMINISTRATIVE APPEAL with respect to the
Development Order entered in this matter along with payment ofthe Administrative Filing Fee
in the amount of $100.00. Please let me know immediately if you need anything else to process
the Appeal.
Ve~ry~ your~, . .'
,'/ ~.
~ G.B~tt, r.
Cc: James and Deborah Soboleski
1
THIS IS A DUPLICATE ORIGINAL PRINTED ON PINK PAPER
07/22/2002 2J;".J2~..n 0000000000
HOME
PAGE 04/08
..~':.L,~~ ~,
CITY OF CLEARWitER
APPLICATION FOR ADMINISTRATIVE APPEAL
pLANNING" DEVELOPMF..NT SERVICES ADMINISTRATION
MUNICIPAL SERVICES BUILDING, 100 SOU1ll MYRTI..E AVENUE, 211II .FLOOR
PHONE (727) 562-4567 FAX (727) 562-4576
APPELLANT AND AGENT INFORMATION:
.
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727- 4~1'-o2.G:.4
ALL APPLICATIONS FOB. APPEAL OF LEVEL llLEXlBLE ST ANl)ARD APPROVALS MUst BE llE~EIVED BY
THE PLANNING DEPAIlTMEN'f wmDN :FIVE DAYS OF THE DATE OF TIlE DECISION BEING APPEALED.
ALL OTJIER Al'l'LICAnONS FOIl APPEAL MUST BE 'RECEIVED BY THE PLANNING DEPARTMENT WJ1'IIIN 14
DAYS or THE DATE or TIlE DECISION BEING APPEALEP.
AGENT t.lAME
MAILING ADDRESS
PHONE NUMBER
5ol3.:.j..€'.S ~ .p/KJ.:t. "t>ero...~A H /.....
C L~..,.n.../,tJ"'TE:~) F L- 337f.-'
FAX-NUMBER : /2.,- 4C:,<C - ~4-<OS"
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APELLANT NAME
MAIUNG ADDRESS
PtlONE NUMBE~
MAv..UJe/..L- 6. BftlTILc)Jf'2-.: ESe:;:>,
'.2,0<0 ,,^-1\$.:>1\J -Snu:E/, 812-~NDoN I PL. 335/1
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APPEAL INFORMATION:
DE~IONBElNGAPPEALEO: \) eVt:t.J:.'P me-Ail o,e.[)~l2-. R~c'..4W-Vlrlf1 (A.S~:#- Fl-5 02-01 - 0'3
DATE OF DECISION
BASIS FOR APPfAL
lUse addWonal sheets
If nec:essaryJ
AT" 1,,\~l)cV&(,j vtz.lvEA 'Set: e:><H/8r"T A ArTI4<...I-/e:D
J l>- L .,. 2 '""2.. ) "l. co2-
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WITH YOUR APPLlCATION PLEASE SUBMIT:
A copy OF THE DSCISION BEING APPEALED:
NAMES. ADDRESSES AND CURRICULUM VITAE OF ALL EXPERT WITNESSES THAT WILL PRESENT INFoRMATION AT THI; MEETING;
COPY OF THE BASIS FOR THE APPEAL IN THE NATURE OF AN INITIAL BRIEF AND ANY EVIDENCE, INCLUDING TESlIMOI\IY. AND
AfFIDAVITS. tHE BRIeF MUST AT A MINIMUM STAn; ALL GROUNDS FOR THI! ApPEAL INCLUDING. BUT NOT uMITED TO, THE LAW
BEING APPEALED AND AtIt FACTS NECESSARY FOR THE INTE~PRETATION OF THOSE LAWS.
I, the undersigned, acknowledge that all
representations madtt in this application
are true and accurate to the best of my
knowledge.
STATE OF FLORIDA. COUNTY OF PINELLAS
sworn to and subscribed before me this ) ~ day of
T ()~\...f . A.D., lIJJnc;h).- to me and/or
by J4-.B()f)"i'tH- 6i?C,@J 5)'~C'Jc.!SI-<j ,who is personally
known has produced IL, f>>l.i tJe~ /~1' c../.JJ.Jffl- as
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CITY OF CLEARWATER
POST OFFICE Box 4748, CLEARWATER, FLORIDA 33758-4748
CI1Y HALL, 112 SOUTH OSCEOIA AVENUE, CLEARWATER, FLORIDA 33756
TELEPHONE (727) 562-4010 FAX (727) 562-4021
CITY AITORNEY'S OFFICE
September 19, 2002
VIA FEDEX AIRBILL NO. 825799681537
James W. York, Deputy Chief Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee
Tallahassee, Florida 32399-1550
Re: Appeal by Deborah Groen Sobeleski of Level One (Flexible Standard
Development) Decision by Community Development Coordinator Approving
Certain Deviations from Dock Requirements for Property located at 193 Devon
Drive
CDB Case No. APP2002-07002/FLS 02-01-03
Dear Judge York:
Enclosed are two copies of the following file documents, together with one verbatim
cassette recording of the proceedings regarding the above-referenced case before the
Community Development Board, whose decision is being appealed by Deborah Groen
Sobeleski:
1. Appeal Application dated August 26, 2002, filed by Maxwell G. Battle, Jr.,
Esquire, attorney for Appellant, with attached "Exhibit A," Continuation of
Specification of Basis for Appeal;
2. Contents of Record before Community Development Board, consisting of:
a. City of Clearwater Planning Department Staff Summary of Events, CDB
Meeting Date August 20, 2002;
b. Two-page aerial photo/zoning atlas document;
c. Flexible Standard Development Application, Case No. FLS-02-01-03;
d. Letter dated March 5, 2002, Timothy A. Johnson, Jr. to Cyndi Tarapani,
with one-page attachment;
e. Letter dated April 14, 2002, Timothy A. Johnson, Jr. to Cyndi Tarapani,
with attached Site Plan;
",," J A"'G"" MA'O'",OMM''''O''. A Le
WHITNEY GRAY, VICE MAYOR-COMMISSIONER HoYT HAMILTON, COMMflfS N~p ~ Or? OD ~
FRANK HIBBARD, COMMISSIONER '7 f!f\
BIl.L]ONSON, COMM. N V()u-
"EQUAL EMPLOYMENT AND AFFIRMATIVE ACTION EMPLOYER"
.
.
.
James W. York, Deputy Chief Judge
Division of Administrative Hearings
Re: Deborah Groen Sobeleski
Page Two
September 19, 2002
f. City of Clearwater Planning Department Staff Report for February 14,
2002, DRC Meeting, Application No. FLS 02-01-03;
g. Letter dated July 22,2002, Cyndi Tarapani to Timothy Johnson;
h. Cover letter from Maxwell G. Battle, Jr. dated July 26, 2002, with
Application for Administrative Appeal and attachments (27 pages);
i. Cover memorandum from Planning Department dated September 5,
2002, with additional materials submitted by Mr. Battle (16 pages);
3. Draft Minutes of August 20, 2002, Community Development Board meeting.
Please note that I am not forwarding Exhibits 1 - 15 to the Appeal Application. Items
1-9 and 12-15 are already of record before the Board and are thus otherwise included.
Items 10 and 11 were not of record below and are not being included, on that basis.
Section 4-505, Code of Ordinances, now provides that the record before the
Community Development Board shall be received by the Hearing Officer. That Section
further provides that the appeal hearing before the Hearing Officer is to consist solely of
reception of said record and oral argument. Finally, the Section provides that appeal
hearings shall be conducted within sixty (60) days of receipt of the Appeal Application
(filed August 26, 2002), unless the appellant requests or agrees to a continuance. I am
enclosing copies of Ordinance Nos. 6928-02 and 6998-02, which made the above-
mentioned changes to Section 4-505.
For the convenience of the parties and witnesses please schedule the hearing in
Clearwater. You may contact Betty Blount in the City Manager's Office at (727) 562-
4040 to schedule city commission chambers or the large conference room; or you may
contact this office at the above number regarding other available hearing locations.
.
.
.
James W. York, Deputy Chief Judge
Division of Administrative Hearings
Re: Deborah Groen Sobeleski
Page Three
September 19, 2002
Please advise the parties as soon as an administrative law judge is assigned to this
case.
Very truly yours,
~~~~
Leslie K. Dougall-Sides
Assistant City Attorney
LDS:
Enclosures
Copies to:
Maxwell G. Battle, Jr., Esquire
Timothy A. Johnson, Jr., Esquire
City Clerk
Planning Department
JAM is . SOBOLEt
O. BOX 820
o MONT, IL 60018
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1 00 South Myrtle Avenue
Clearwater Florida 33756
Telephone: 727-562-4567
Fax: 727-562-4576
C #:APP2002-07002/FLS 02-01-03
DATE RECEIVED:
RECEIVED BY (staff initials)
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.c:I SUBMIT ORIGINAL SIGNED AND NOTARIZED APPLICATION
1iol' SUBMIT 12 COPIES OF THE ORIGINAL APPLICATION
)( SUBMIT APPLICATION FEE $ 500. t:f'O
APPE~;\L
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Level One and Level Two ReVIews (Revised 07!31f(2)
-PLEASE TYPE OR PRINT-
APPLICATION/NOTICE OF APPEAL (Code Section 4-S02.A & B)
Section 4-502.A: An appeal of a Level One approval (Flexible Standard Development) may be initiated by a property owner abutting the property which is
the subject of the approval within seven days of the date the Development Order is issued. The filing of an application/notice of appeal snail stay the
effect of the deCision pending the final detennination of the case. The hearing before the Community Development Board shall be scheduled at the first
avallable meeting of the Board (suffIcient to provide notice under Section 4-206) and may be continued at that meeting of the Board so that the Board may
receive more information, clarification, or research Tne Community Development Board shall render a decision at the meeting but not later than 70 days
from the receipt of the notice of appeal, unless the parties by mutual consent extend the time frame for the Board's decision until a subsequent meeting
Section 4-502.6: An application/notice of appeal of appeal of any decision of the City, as provided in Section 4-501, may be initiated by the applicant or
any person granted party status within 14 days of the decision. Such application shall be filed with the City Clerk in a form specified by the Community
Development Coordinator identifying with specificity the basiS for the appeal and accompanied by a fee as required by Section 4-202.E. The filing of an
application/notice of appeal shall stay the effect of the decision pending the final determination of the case
A. APPELLANT AND AGENT INFORMATION:
APPELLANT NAME Deborah Groen Sobeleski
MAIL!NGADDRESS: 191 Devon Drive, Clearwater Beach, Florida 33767
PHONE NUMBER (727) 461-0264
FAX NUMBER (727) 466-6465
AGENT NAME: Maxwell G. Battle, Jr., Esq., Battle & Edenfield, P.A.
MAILING ADDRESS 206 Mason Street, Brandon, Florida 33511
PHONENUMBER (813) 685-3014
FAX NUMBER: (813) 684-5922
B.
APPEAL INFORMATION
(This is an Appeal t~ a hearing officer of a decision
of Community Development Board regarding a Level
One approval, please see page two.) .
Aopeals to the Community Development Board 0
o Orders. requirements, decisions or determinations made by an
administrative official In the administration of the Community
Development Code, except for enforcement actions
o Administrative interpretations of the Community Development
Code
:J Level One (FlexIble Standard Development and Minimum
Standard) approval decisions
CHECK THE SPECIFIC APPEAL
Denials of any pennlt Of license Issued under the provisions of
the Community Development Code
o Any denials deemed to have occurred as result of the failure of
the Community Development Coordinator to act within the time
limits provided in this Community Development Code
FILE
Mf7JJJI /61 {j)u
1.~::eaIS t~a hearina officer t-
::I DeCISions of the Community Development Board regarding Level Two approvals
XlIX Decisions of the Community Development Board regarding Level One approvals
u OTHER (as allowed by Code)
-I ~----- - -
---.
I
SPECIFIC CASE NUMBER TO BE APPEALED (If applicable)
ADDRESS OF SUBJECT APPEAL (if applicable): 1 q ~ n,:avnn nr
APP2002-07002,193 Devon Dr./FLS 02-01-03
DATE OF DECISION:
August 20, 2002
C. BASIS OF APPEAL:
Explain 10 detail the baSIS for the appeal. Use additional sheets if necessary.
- The development order does not comply with the Community Development Code.
The application, amended application and proposal do not comply with the Community Development Code
- The Community Development Code on its face and in practice denies appellant of her right to
substantive and procedural due process of law.
- The decision of the Community Development Board was arbitrary and capricious, is not supported by
the record, and otherwise does not meet the requirements of law.
- The Community Development Board was not furnished with a complete copy of
the entire application file and/or was deprived of a reasonable
opportunity to review the entire application file prior to its decision.
- The Community Development Board denied Appellant an administrative hearing.
Please see Exhibit "A", and Exhibit "B" (August 1.6, 2002 correspondence from MEIXlrel1 G. Battle
to Cyndi Tarapani including attachment thereto) for addi~ional basis of appeal.
D. SIGNATURE:
I. the unoersigned, acknowledge that all representations made In this
application are true and accurate to the best of my knowledge
STATE OF FLORIDA, COUNTY OF PINELLAS .
Swom to and subscribed before me this .? t day of
4l/Ij-v(F A.D. 20 i/J..- to me and/or by
. , who IS personally known has
produced as
identification.
! Aal~ ;F 11 trc-.f)
Notary public,
My commiSSion expires /) /)" () ~
\\MS2\POSIP/annmg DepartmeJJllAppilcatlon Form;sldevelopment reVIew \Appeal ApplIcatIOn doc
"~~.;~~,.' . ~:f!i6 t li~.li:
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Level 1',., _ ,.
.
.
EXHffiIT A
CONTINUATION OF SPECIFICATION OF BASIS FOR APPEAL
The decision of the Community Development Board was arbitrary, capricious, and must
be reversed because:
1. The Community Development Code on its face and as applied deprives
Appellant of her right to due process under law both substantively and
procedurally. Specifically, but without limitation, the Community
Development Code is flawed on its face because it does not provide for any
meaningful appeal. The Code gives the Board unbridled discretion to approve
the decision of the Community Development, but provides to standard of
review. Further, the Code doe provide any meaningful right to appeal.
Appellant of her procedural right to due process of law in that the Board's
decision was based upon a selective subset of the records and facts upon
which the Community Development Coordinators' decision was based and
because Appellant was denied any opportunity to argue the merits of the case
while at the same time the applicant and the City were afforded such an
opportunity. The Community Development Board failed to grant Appellant
an administrative/quasi-judicial hearing to consider evidence which was part
of the application file but which was not properly provided to the Board for its
consideration at the Board's August 20,2002 meeting.
2. In spite of the requests and objections of counsel for Appellant, the
Community Development Coordinator failed and/or refused to provide the
Community Development Board with the entire application file which formed
the basis for the original decision to issue the development order, or provided
parts of the file to the Board so late as to deprive the Board with the
reasonable opportunity to review the file. The Community Development
Coordinator failed and/or refused to provide the Board with certain exhibits
including but limited to a letter from an adjoining property owner expressing
no objection to the positioning of the dock on the East side of applicants
property as well as a letter from Pinellas County addressing environmental
aspects of the application. The applicant's counsel was then allowed to argue
the merits of one or more of these exhibits without the exhibit being in the
record and without Appellant being granted a similar right.
3. The Community Development Coordinator skewed the record and the
evidence to support her own decision. The Community Development
Coordinator included exhibits supplied by the applicant and/or his counsel,
but selectively excluded exhibits furnished by Appellant.
4. The board misconstrued graphic exhibits furnished by Appellant, and refused
to allow Appellant's counsel to address the Board's erroneous conclusions
thereabout.
.
.
5. Appellant has been denied procedural due process of law in this case because
the Board did not allow Appellant to argue the merits of the case. At its
August 20, 2002 meeting, the Board allowed both the Community
Development Coordinator to argue the merits of the case, but refused to allow
Appellant or her counsel to do so.
6. At the August 20, 2002 meeting, a member of the Board moved to uphold the
decision based upon the fact that the Board Member's opinion that the City's
staff were professionals and therefore should be supported by the Board. In
effect the Board abdicated its responsibility to review the decisions of staff
members.
7. The decision of the Community Development Board is tainted by the fact that
the applicant submitted an exhibit prepared by a member of the Board. While
the particular board member abstained from the Board's consideration of this
case, the Board did consider the exhibit in its review of the case.
8. The Development Order appealed from fails to comply with the requirements
of the Community Development Code, departs from the essential
requirements of law because:
A. It is based upon and concurs with the findings of the Development
Review Committee. However, except for Mark Parry's February 15,
2002 "FAX MESSAGE" to Tim Johnson, there are no written findings
in the file [or were not on, and prior to, July 18, 2002]. If the
"comments" reported by Mr. Parry in his February 15, 2002 FAX
MESSAGE are the findings the Development Order refers to, then they
are based upon a flawed and inaccurate Staff Report. See Maxwell G.
Battle, Jr's letter to Cyndi Tarapani dated April 26, 2002; and
B. It approves a proposal based upon a non-existent plan; and
C. It was not signed by the Community Development Coordinator; and
D. It grants relief that is inconsistent with the Flexible Standard
Development criteria under 3-601.C.1.g; and
E. It grants relief that is inconsistent with other proVISIOns of the
Community Development Code including without limitation 1-103.A, 1-
103.B.2, 1-103.E.3, 3-601.C.1.d, 3-601.C.1.e, 3-601.C.1.g and 3-913;
and
F. It grants relief upon an application that does not comply with the
requirements of 4-202.A.24; and
G. It approves a proposal which is incompatible with the surrounding area;
and
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H. The Application was amended after the Development Review
Committee concluded its review; and
1. It refers to a Site Plan dated April 15, 2002 which was not in the city's
file on the dates of four (4) reviews of the City File [3/15/02, 4/23/02,
6/06/02 and 7/18/02], the last of which was on July 18, 2002, the
Thursday before the Order was signed. There was however a single
Architectural Drawing by Plisko Architecture, P.A. AlA dated, unsigned
and unsealed with revisions of 4/1 0/02 and 4/11/02 entitled DOCK
PLANS. This document depicts two dock configurations. If this is the
"site plan" referred to by the Development Order, then the Development
Order is vague and ambiguous in that it does not clearly identify which
configuration on the "site plan" is required to be adopted by the
Condition #4.
1. Although the Development Order requires concurrent issuance of a
building permit for a residence and dock, it allows the dock to be
permitted and built without first requiring the construction of a single
family residence. If the residence was permitted but not built, this
would result in the dock being allowed as a primary, rather than
accessory use.
K. The Community Development Coordinator apparently misconstrued the
effect of Section 3-60 I.C.1.g to require rather than allow deviations to
the dock criteria.
INITIAL BRIEF
Standios! of Appellant
Deborah L. Groen Soboleski, formerly known as Deborah L. Groen is the record
title holder of 191 Devon Drive, Clearwater, FL 33763, which property is adjacent to,
and contiguous to, the Mariani property to which the Development Order is addressed.
Appellant's East property line adjoins Mr. Mariani's West property line.
Flawed Staff Report
The Development Order concurs with the findings of the Development Review
Committee. With exception of Mark Parry's reported comments to Tim Johnson [Fax
Message of 02-15-02], there were no written "findings" of the Committee in the file on,
or prior to, July 18, 2002. Further, the Development Review Committee had before it at
the time of its review a seriously flawed and inaccurate Staff Report. See Maxwell G.
Battle, Jr.'s letter to Cyndi Tarapani dated April 26, 2002. The flaws are so pervasive
and egregious as to call into question the entire review process on the Application in
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question. At a minimum, allowing the Development Review Committee to act upon such
clearly erroneous and incomplete information departs from the essential requirements of
law.
Non-Existent Plan
The Development Order appealed from approves a proposal that does not yet exist
in final form. It directs submission of a new plan for review by City Staff It is
inappropriate to issue a Development Order that allows the "approved proposal" to be
created after the Development Order is issued. Such an approval subverts the entire
review, approval and appeal process, departs from the essential requirements of law and
violates both substantive and procedural due process rights of the Appellant under the
Florida and United States Constitutions.
Development Order Not Properlv Entered
The Community Development Code provides that the Community Development
Coordinator may issue a Development Order approving a Level One Review item. The
Development Order is signed by another City Employee. There is no indication in the
file that this City Employee is a duly authorized representative of the Community
Development Coordinator. Accordingly, the Development Order should be declared
void.
Inconsistent with Section 3-601.C.l.2
of the Community Development Code
The proposed dock does not need to be adjusted in length to protect
environmentally sensitive areas if the covered boatlifts are omitted and it is moved to the
East. The property configuration does not preclude placement of the proposed dock in
compliance with the required dimensional standards and the proposed dock is not similar
in dimensional characteristics to surrounding dock patterns. Moving the dock to the East
side of the Mariani lot as suggested by Appellant would serve to protect existing grass
beds. Further, under the foregoing circumstances and until proper final plans are
submitted, it can not be said unequivocally that no navigational conflicts would be
created.
Inconsistent with other Provisions of
The Community Development Code
Section l-103.A envisions that development will be conducted in a manner that
enhances the character of the City, the preservation of neighborhoods and enhances the
quality of life. The Mariani proposal violates each of these principals.
Section l-103.B states that the CDC's purpose is, inter alia, to ensure that
development and redevelopment will not have a negative impact on the value of
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surrounding properties and wherever practicable promotes the enhancement of
surrounding property values. The Mariani proposal will have a drastic negative impact
upon the value of the Appellant's property. On the waterfront, view is value.
Section l-103.E.3 requires the protection and conservation of land values
throughout the City. The Mariani proposal contravenes this goal. It destroys the
Soboleski view and devalues their property.
Section l-103.E.5 requires preservation of the aesthetic character of the
Community. The Mariani proposal contravenes this goal. It sets a precedent of allowing
covered boat lifts that rival many residences in size.
Section 1-1-3.E.6 indicates that open spaces should be provided through efficient
project design and layout that addresses appropriate relationships between buildings on
the project site and adjoining properties. The Mariani proposal attempts to crowd the site
at the waterfront when open space could be fostered by moving the dock to the East side
of the property and/or deleting the covered portion of the lifts.
Section 3-601.C.1.d prohibits vertical sidewalls on any dock or boatlift. The
Mariani proposal contains vertical sidewalls as a portion of the roof in controvention of
this section. The vertical sidewalls add to the perception of mass of the structure.
Section 3-601.C.1.e provides that no more than two slips can be created. The
Mariani proposal includes tie piles along with boatlifts, which effectively creates more
than two slips in contravention of this section.
Failure to Provide Complete Plans
in Compliance with Section 4-202.A.24
Section 4-202.A.24 requires that complete plans be submitted with the application
which are signed and sealed by a Florida Registered Professional Engineer. It clearly
says "shall" be accompanied by such plans. Under Section 8-101.E, "shall" means
mandatory in nature. This was not done by Mariani. Given the clear mandate of Section
8-l0l.E, the requirement can not be waived. The result is that neither the Staff the
Community Development Board or the Community Development Director had b;fore
them a complete application. Nor did they have an accurate and specific plan of the actual
propose~ size (height, width and depth) of the proposed dock, covered boatlifts, and slips
from WhICh to properly evaluate the proposal. Similarly, affected property owners have
been denied the same information. Accordingly, the proposal can not have been properly
evaluated and approved because the application did not comply with the Community
Development Code. By proceeding to process the application the Community
Development Coordinator departed from the essential requirements of law.
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Incompatibility with Surroundin2 Area
The proposal is not compatible with the surrounding area. A review of the
materials submitted by James and Deborah Soboleski clearly show that there are no
private docks with dual covered lifts of the size proposed by Mariani. The Mariani
proposal constitutes a substantial departure from the character of docks in the
neighborhood.
Amendment after Review
The Mariani proposal was repeatedly amended after the Development Review
Committee completed its review. Accordingly, the Development Review Committee
reviewed and commented upon a different proposal than the Planning Director ostensibly
approved. None of the surrounding property owners appear to have been notified of the
amendments, and certainly none of them could possibly have any idea of what the end
result might be because the final plan still has not been submitted. Accordingly, the City
Plannmg Department has not acted in accordance with its own Codes and has departed
from the essential requirements of law.
April 15. 2002 Site Plan
The Development Order requires compliance with an April 15, 2002 Site Plan.
No such site plan was in the file on July 18, 2002 [nor on 3/15/02, 4/23/02 or 6/06/02]. If
such a site plan exists [and was submitted], it has been shielded from Public view.
Further, it clearly was not evaluated by Staff prior to the Development Review
Committee Meeting, or by the Development Review Committee because no such plan
could have existed at that time by simple examination of the dates of each. If the "Site
Plan" referred to is the Plisko Architecture, P.A. "DOCK PLANS" revision dates 4-10-02
and 4-11-02, the order is too vague and ambiguous. It does not clearly identify what
portion of the Plisko "DOCK PLANS" is to be incorporated into the revised plans to be
submitted in accordance with Condition #4.
Accessory Use
The Development Order requires only that a residence permit be issued at or
before the dock permit is issued. It does not requires that the residence be constructed
first. The issuance of a permit to build a residence does not require that the residence be
built. Unless the residence is built, the dock would be an impermissible primary use
rather than an accessory use. Accordingly, the Development Order departs from the
essential requirements of law by not requiring that the residence be constructed before the
dock.
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Communitv Development Coordinator
Misconstrued Section 3-601.C.l.e:
It appears that the Community Development Coordinator misconstrued Se~tio~ ~-
601.C.l.g to require rather than allow the granting of a deviation from the dock cntena If
any of the 3 criteria for deviation was met. Section 3-601.C.1.g uses the te~ "may"
which under Section 8-101.F means "permissive", not mandatory. Accordmgly, the
Community Development Coordinator was not required to grant the relief sought by Mr.
Mariani.
ADOPTION OF PRIOR POSITIONS
In addition to the foregoing issues, Appellant adopts the positions set forth in
Maxwell G. Battle, Jr.'s letters dated March 14, 2002, March 27, 2002 and April 26,
2002, copies of which are attached to this Application for Administrative Appeal.
WITNESSES AND PROOF
. At hearing th~ appell~nt intends to. offer additional argument, testimony from live
WItness~s and ~anglble eVIdence. WItnesses may include a Florida Registered
ProfeSSIOnal Engmeer, a Florida Registered Land Surveyor, one or more Florida Licensed
~eal Estate .Brokers, one or more ~lorida Licensed Real Estate Appraisers, a duly
hcensed Flonda Contractor and lay Witnesses. These witnesses will be designated more
fully at a later date.
CONCLUSION AND REQUESTED RELIEF
of the ~~~:~:s~n:v~~~pf~~~thBereinda?ovCe, theN Development Order, and the decision
d oar m ase 0 APP2002-07002 m t b d
an the application in Case No FLS02-0 1-03 d . d I . us e reverse
Order should be modified to r'eq . . heme. n the alternative, the Development
. Ulre movmg t e proposed M . . d k
most SIde of his Lot and deleting the cover;ed l.ft rt' f h anam oc to the Eastern
I po Ions 0 t e dock.
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BATTLE & EDENFIELD, P.A.
A TTORNEYS AT LAW
MAXWFLiC:. RATIU.. JR. .
MICHAEl S. EDFNfTEUl
:0(, MASO!\' STRI:FI
RRANnON. rL 11'511'1:77
(1'13) 68'1-3014
FAX (Rll) iSM-50;:
AI.S() i\nMJ'lTED
. COLORADO
. NE"\XlMf:X\CO
t MONT:\N/\
August 16, 2002
Cyndi Tarapani, Community Development Coordinator
City of Clearwater Planning Department
100 South Myrtle A venue
Clearwater, FL 33756
HAND DELIVERY
RE: Application for Flexible Development Standard
Approval submitted by Chris Mariani; FLS 02-01-03;
APPUCA TION FOR ADMTNlSTRA TIVE APPEAL;
Dear Ms. Tarapani:
Thank you for returning my call yesterday regarding the packets forwarded by Mark Parry to the
Community Development Board for their consideration with respect to this Appeal at the August
20,2002 Board Meeting. As 1 advised you during that call yesterday, I am very dismayed that Mr.
Parry would choose to omit my submission of March 27, 2002 from the packets provided to the
Community' Development Board for the August 20, 2002 meeting, while at the same time he chose
to include Mr. Johnson's submissions. The voice mail I received from your office staff prior to your
call advised that this was due to the fact that the March 27, 2002 submission was not part of the
APPUCA TTON FOR ADMINISTRATIVE APPEAL. This is incorrect
My Client's APPLICATION FOR ADMINISTRATIVE APPEAL with respect to the Development
Order entered in this matter was Hand Delivered to your Office along with payment of the
Administrative Fihng Fee in the amount of $100.00 on July 26,2002. Physically attached to the
APPUCA TION FOR ADMINISTRA TIYE APPEAL was a complete copy of my letter of March 27,
2002 including all 15 Exhibits to the letter in a bound booklet. In addition, Page 5 of Exhibit B to
the APPUCA TION FOR ADMINISTRA TJVE APPEAL expressly incorporates the March 27, 2002
submission by reference and states that a copy is attached. It is simply very difficult to discern any
basis for omitting this submission with its telling renderings and photographs, other than a desire
to deprive the Community Development Board of infonnation which would support the granting of
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a public quasi-judicial hearing and reversal of your Development Order.
Further, the statement from "Lisa" on your staff that my March 27, 2002 submission was not
included because it was not part of the APPLICATION FOR ADMINTSTRA TIVE APPEAL is also
suspect because while my March 27, 2002 submission was clearly part of the APPUCA TION FOR
ADMlNlSTRATIVE APPEAL, Mr. Johnson's submissions which you did send to the Community
Development Board were certainly not attached to the APPLICATION FOR ADMTNISTRA TIVE
APPEAL.
For the Appeal Process contained in the Community Development Code to have any validity at all,
it is necessary for the Community Development Board to be provided with the complete record upon
which you made your decision, rather than a biased rendition by the staff of the very Official whose
decision is being appealed. Failure to provide a complete record to the Community Development
Board deprives the Community Development Board of the ability to conduct a meaningful review
of your decision and reach an informed decision. I doubt that the drafters of the Community
Development Code intended for the Community Development Board to merely "rubber stamp" your
decisions.
Accordingly, I respectfully demand that you immediately courier a complete copy of the entire
record on this matter to each member of the Community Development Board by 12:00 Noon today
so that they may review the entire file prior to the August 20, 2002 Board Meeting. Even though
there is no requirement in the Code or your form to provide multiple copies of any Appeal materials,
I have enclosed thirteen (13) copies of my March 27, 2002 submission. Unfortunate Iv, due to the
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late timing of your advice that you would not incur the expense of copying the submission with its
color photographs, I was unable to obtain copies of Exhibit 9 [which is the CD containing Exhihits
] through 8 in electronic form] or bind the copies with tabbed dividers. However, the balance of the
Exhibits are attached and labeled and Exhibit') may be viewed on the Internet at the following
address:
http://www.visualasbuilts.com/dock.htm I
Very truly yours,
~~~
Maxwell G. Battle, Jr.
Cc: James and Deborah Soboleski
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BATTLE Be EDENFIELD, P.A.
ATTORNEYS AT LAW
MAXWELL G. BATTLE, .JR."
MICHAEL S. EDENFIELD
ALSO ADMITTED
. COLORADO
. NEW MEXICO
. MONTANA
March 27,2002
206 MASON STREET
BRANDON, FL 33511
(813) 685-3014
FAX (813) 684-5922
Mark Parry, Lead Planner
Cyndi Tarapani, Community Development Coordinator
Planning Department
City of Clearwater
100 South Myrtle Avenue
Clearwater, FL 33756
LJ COpy
RE: 193 Devon Drive; Lot 31;
Application for Flexible Development
Standard Approval submitted by
Chris Mariani; FLS 02-01-03
Dear Mr. Parry and Ms. Tarapani:
As you know, I represent James and Deborah Soboleski who own the residence to
the immediate West of Mr. Chris Mariani's lot for which the above application was
submitted. My clients remain vehemently opposed to Mr. Mariani's request as it is now
constituted. This letter and accompanying documentation are submitted to supplement
my letter to you of March 14, 2002. I have broken this letter into sections for ease of
reVIew.
OpeniDl! Discussion and Description of Materials
The booklet submitted with this letter includes eight (8) pages photographs of my
Clients' home and the neighborhood and a CD containing all of the photographs as
individual images. On several of the photographs an artist's rendering of the proposed
dock has been overlaid on the photograph to reflect the actual view with the proposed
dock added. To achieve the proper scale and provide a realistic portrayal of the dock's
effect upon the views from my Clients' residence, a surveyor was commissioned to place
control markers in the water prior to the photographs being taken. The size of the dock
footprint was taken from the sketches submitted by Mr. Mariani. The size of the boat
houses was taken from the plan dimensions of the sketches submitted by Mr. Mariani and
actual field measurements of the boat house submitted as the model by Mr. Mariani. It
was necessary to combine this data because Mr. Mariani did not submit detailed plans
and specifications prepared, si!,1J1ed and sealed by a Florida Registered Professional
Engineer as required by Section 4-202, Subsection A, 24, Community Development
Code.
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Clearly the most devastating effect of granting Mr. Mariani's request is the
destruction of the view from the back of the Soboleski residence. Exhibit 1 is a
photograph taken from the Soboleski residence deck. As you can clearly see, it is
presently a multi-million dollar view. Exhibit 2 is the same photograph with the proposed
Mariani dock overlayed. The effect is sel r evident and ,bTfaphic.
Exhibit 3 is an aerial view of the Soboleski residence and Mariani lot. Exhibit 4 is
the same aerial view with the proposed Mariani dock overlayed. Please note the
devastation to the Soboleski's view is mirrored by the devastation to the view of the
Soboleski residence from the water.
Exhibit 5 is the same aerial view of the Soboleski residence and Mariani lot as
shown in Exhibit 3 with the Mariani dock overlayed in the alternate location to the East
that has been suggested by the Pinellas County Department of Environmental
Management. This alternate location would accomplish a number of goals. First, it
would not adversely impact the view from the Soboleski residence to anywhere near the
extent as the location proposed by Mr. Mariani. Second, it would disrupt considerably
less of the sea grass beds, as can clearly be seen in the Exhibit. Third, it would place
boats at the dock at an oblique angle to waves [and wakes] approaching from the channel
to the East. Fourth, it would be in keeping with the general unifonnity of spacing
between dock installations along the fingers in the neighborhood [See also Exhibits 7 and
8].
Exhibit 6 consists of reduced scale versions of Exhibits 3 and 5 with a "line of
sight" depicted as a single broken blue line. The "line of sight" is extended from the
camera location for Exhibits 1 and 2 across the intersection of the SoboleskilMariani
property line and the seawall cap. It sets the left most [Northern most] portion of the view
from my Clients' lot without looking over the Mariani lot. The differing effect of the two
proposed locations for the Mariani dock is clear. Placing the Mariani dock in the location
proposed by Mr. Mariani [top photo,bTfaph, Exhibit 6] destroys the view from the
Soboleski residence, des~roys the view from their dock, and seriously devalues their
property. If the dock is placed in the alternative location to the East [bottom photograph
Exhibit 6], it moves out of the Soboleskis' line of sight.
Exhibits 7 and 8 are a compilation of aerial views of the neighborhood. The
somewhat symmetrical spacing of docks and the minimal number of boathouses in the
neighborhood is evident in the photographs. It should also be noted that most of the
boathouses are at the seawall behind the residences that they serve. The two exceptions at
the end of the Devon finger are situated in a fashion that does not adversely effect the
views from the residences adjacent to them.
Exhibit 9 is a CD that contains copies of each photograph in Exhibits 1 through 8.
If you insert it in a desktop or laptop computer you will be able to view the photographs
with ease by either selecting the number of the photograph or by clicking "Next" and
"Previous". This CD should make it very easy for you to evaluate the visual impact of the
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lwo alternative locations for the dock. The CD version of the photographs also allows
t:asy viewing of the grass beds and the character of the existing neighborhood.
Exhibit 10 is a copy ofthe Mark Blum's March 6,2002 letter to Mr. Pary.
Exhibit II is a copy ofMr. Mariani.s March 7, 2002 letter.
Exhibit 12 is a copy of Mr. Johnson's March 5, 2002 letter.
Exhibit 13 is a copy of the City of Clearwater's Staff Report.
Exhibit 14 is a copy of my March 14, 2002 [corrected] letter to Mr. Pary.
Exhibit 15 is a copy of the Pinellas County Department of Environmental
Management's Water and Navigation Report.
Exhibits 10 through 15 are included for your ease of review.
Mr. Mariani's March 7.2002 Letter'
Now I address Mr. Mariani's letter of March 7, 2002 to Ms. Cyndi Tarapani. Mr.
Mariani starts his diatribe with the sobriquet that the "... Soboleski's... completely
misconstrue... or are totally erroneous...". This is an interesting approach by Mr. Mariani
because this is actually what his letter does. I note as an aside that Mr. Mariani, who has
the burden of establishing his entitlement to the relief requested, has completely failed to
provide any pictorial evidence of the visual effect of his proposal. In any event, I address
his letter by corresponding numbered paragraph.
1) The issue is not whether Mr. Mariani should be allowed to build a dock, but
where and how large. When a variance is granted, it should always be the
minimum variance necessary. Further, despite what Mr. Mariani opines, the
aerial photographs (Exhibits 3 through 7] clearly show that construction to the
East would affect a smaller area of sea grass. With respect to the alleged
encroachment to the East, that property Owner, the Mark Blum, does not
object. [See Exhibit 10].
2) Mr. Mariani is incorrect. His application seeks to affect more sea grass than
necessary, build a larger dock than necessary, obtain a larger deviation from
the standards than necessary, and destroy my Clients' view and property
val ues.
3) Please see response to Mariani paragraphs 1 and 2. The question is not
whether to allow some variance, it is the magnitude of the variance and the
conditions under which it may be granted. The Soboleskis do not have a
boathouse.
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4) Mr. Mariani's obfuscation of the true import of his proposal in this parab'Taph
is incredible. He says that his proposed dock does not set a new precedent. His
incredible statement ignores the fact that he is proposing to build an
unprecedented double boathouse consisting of 532 square feet of coverage
each, plus dock walking deck area of 476.5 square feet [accepting for the
purposes of this parab'Taph Mr. Johnson's calculations as accurate], for a total
of 1540.5 SQuare feet of covera2e. The approval of this application would
allow Mr. Mariani to construct what amounts visually and environmentally to
a second home over the water. This is clearly unprecedented in Clearwater.s
modem history.
It should also be noted that the metal roof will have a substantially larger
surface area than the plan view indicates due to the pitch involved. This
surface area and pitch has a substantial propensity for reflecting a obnoxious
glare onto the Soboleskis' property during substantial periods of the day.
Mr. Mariani also implies that the Soboleskis are seeking to deprive him of a
benefit that they enjoy. Nothing could be further from the truth. The
Soboleskis do not have 1064 sQuare feet of boathouse '. The Soboleskis did
not block their neighbors view. They do not have even one boathouse. In fact
the Soboleskis spent substantial monies to improve their neighbor's view by
moving lifts.
5) The Soboleskis do not advocate that Mr. Mariani should not be allowed to
construct a dock or residence upon his lot. They contend that his development
should be reasonable and not impair their view and property values. As shown
in Exhibits 1 through 6, it is possible for Mr. Mariani to do so and improve his
own situation at the same time. Why he is so adamant about destroying the
Soboleskis' view and property value is a mystery.
It should be n~ted that Mr. Mariani makes an interesting statement about the
failure of Ress Marine to ever experience the lifting or destruction of a dock
that they built. I would be interested to know the basis for this statement and
what Mr. Mariani defines as "lifted" or "destroyed". While Ress Marine is a
marine contractor of excellent reputation and qualification, no one can beat
Mother Nature at every turn. At least one dock on St. Joseph's Sound built by
Ress Marine that suffered substantial damage including loss of timbers during
the "No Name Stonn".
Moving on to the balance of Mr. Mariani's letter, I find it interesting that Mr.
Mariani suggests that the Neimanns have no right to object. If this were true, the City
would not require notice to the Neimanns. Further, Mr. Mariani suggests that there is no
loss of value to Neimanns' residence as a result of the Soboleskis' docks [located on two
lots, not one small one like Mariani's], ergo there can be no loss of value to Soboleskis'
residence due to his. proposed dock. This incredible assertion is dispelled by one look at
Exhibits 1 and 2. In addition, you must consider two other salient facts. First, the
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Soboleskis purchased their property with the docks in place and then made expensive
moditications which benefited the Neimanns. Second, the Soboleski docks do not block
the Neimanns' view and there are no house sized boat houses on the Soboleski docks.
Next, Mr. Mariani suggests that the Soboleskis want his dock in its present
proposed location. This is obviously incorrect. If Mr. Mariani's assertion were true, you
would never have heard an objection from my Clients and you certainly never would
have heard from me. In addition, Mr. Mariani's comments about the view are completely
dispelled by Exhibits 1,2 and 6.
FinalIy, Mr. Mariani suggests that he bought his lot specifically due to its
Southern exposure. A more probable reason is that it was on the market. One look at
Exhibits 7, 8 and 9 shows a dearth of vacant lots in the area. In any event, the placement
of the dock to the East in the alternate location stilI places it in a protected position from
the NorthINorthwest winds.
NO MATTER WHAT MR. MARIANI SAYS, GRANTING IDS REQUEST
SETS AN UNCOMFORTABLE PRECEDENT FOR ~LLOWING THE
CONSTRUCTION OF MASSIVE VIEW, DESTROYING STRUCTURES OVER
THE WATERS OF CLEARWATER HARBOR.
Timothv Johnson's March 5. 2002Letter
To avoid unnecessarily lengthening this letter, I wiII confine my comments to Mr.
Johnson's letter to Page 3, paragraph 5 (c)(3). The closing sentence of this paragraph of
Mr. Johnson's letter states that "The logic of the Soboleskis is elusive."
The Soboleskis' logic is elusive only to Mr. Johnson who fails to seek it [or who
perhaps chooses consciously to ignore it]. Mr. Johnson is a real estate and land use
attorney of some repute. His prowess at presentations before land regulatory authorities
is legendary. Yet he failed to produce for your office the very type of pictorial evidence
that the Soboleskis have presented with this letter. Given his experience and professional
competence, there seems to be only one reason that he would fail to present such valuable
evidence. He knew that it would have a devastating impact on the position he advocates.
Therefore, he omitted this pictorial evidence and resorted to criticizing the Soboleskis for
striving to protect the substantial investment that they have in their property and the
community.
FinalIy, his comments about the location of docks close to property lines ignores
the clear fact that the Soboleskis not only worked to protect their neighbors view with
respect to docks in place when they purchased their property, but more importantlv that
the Soboleski docks are not in the prevailin!! view of the Mariani lot.
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Concludinl! Comments
reiterate the positions cspoused in my March 14, 2002 lettcr that: 1) Mr.
Mariani's application fails to comply with the requirements of the Community
Development Code; 2) due to the size of the proposed dock a Level 2 Revicw is required;
and 3) without the prior construction of a residence on the Mariani lot, the proposed dock
would constitute an impennissible primary use rather than an accessory use [the lot is
now vacant]. My corrected March 14, 2002 letter is incorporated in this letter by
reference [See Exhibit 14]. Each of those positions constitute independent !:,Tfounds for
denial ofMr. Mariani's request.
However, if you continue to review Mr. Mariani's application as a Level 1
Review, I suggest to you that Mr. Mariani's application as it is presently constituted must
be denied. Granting it would constitute an unconscionable abuse of the flexible
development standards that were implemented to balance the protection of individual
property owners and the character of the community with the right qf a property owner to
reasonably develop his property. Exhibits I through 9 clearly support this denial.
Mr. Mariani says that he wants to meet with the Soboleskis to work out an
acceptable location for his dock. If this is true, then abate the review process and direct
Mr. Mariani and Mr. Johnson to meet with the Soboleskis and myself to discuss the
project further. This letter and the Exhibits thereto clearly outline potentially acceptable
proposals.
Finally, I request that the Soboleskis and I be granted an opportunity to meet with
you and your staff to discuss Mr. Mariani's application and make a presentation to you. I
believe that due process and basic fairness dictates that the Soboleskis be given the same
opportunity that Messrs. Mariani and Johnson were provided.
I look forward to hearing from you at your earliest convenience.
Cc: James and Deborah Soboleski
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f
,'.\<-~ -".1'2 '. .
'.:~:~;~;:"<~; .-? ' .. . "
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l>>HOTO - w/o Dock
Mariani Letter
03/07/02
Johnson Letter
03/05/02
.. CITY
STAFF REPORT
.. Battle Letter 03/14102
_ CountyWater&
Navigation Report
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---------
Wednesday, March 13, 2002 10.
SOBOLESKI 847824 4856
.
p02
Mark Blum
195 Devon Drive
Clearwater Beach. FL 33767-2439
March 6, 2002
Mark Parry, City Planner
City of Clearwater
Planning Department
Development Review Division
PO Box 4748
Clearwater, FL 33758-4748
Dear Mr. pany:
We have been asked by our neighbors to clarify our position regatding the
proposed construction of a boat dock on the vacant lot at the end of Devon Drive,
between our property at 195 Devon Drive, to the North and 191 Devon Drive, to
tbe Southwest (approximately).
We have no objection to the construction ofa dock on the vacant lot, at any
location along the sea wall.
~ tSL-.
Diane Blum
EXHIBIT 10
Mar 1 \-?,~o}:~~:~~f.';o oeES & DEBORAH SOBOLESKI 7.,,~~.,,~~6S
"P ~?
a.a. m
a.ri a.n i E3spha.l1: c::e>mpa.ny
5201 Causeway Blvd. . P.O. Box 75437 . Tampa. FL 33675 . Phone (813) 623-3941 . Fax (813) 626-4103
March 7, 2002
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PlANNC~":;O.'=FD~Y~~.o~iV~,'lJTSIICS
,. . VLCMRW4TER v.
Ms. Cyndi Tarapani
Community Development Coordinator
City of Clearwater
PlalUling and Development
Services Administration
100 S. Myrtle Avenue, 2nd Floor
Clearwater, FL 33756
Re: Application for Flexible Standard, 193 Devon Drive.
Dear Ms. Tarapani:
1 Vvould like to respond to the letters of opposition regarding my proposed dock written
by James and Deborah Soboleski and Dale Neimann. The letters were written in response
to the Notice of Filing of an Application for Flexible Standard Development Approval at
193 Devon Drive (FLS 02-01-03).
The Soboleski's reason their opposition through five points which either completely
misconstrue the fuets submitted in the application or are totally erroneous altogether.
I will to respond to each point in order of their letter (Soboleski letter attached):
I) The County will not permit a dock anywhere on the property limited to 50' as
the Soboleski's suggest. Therefore, the dock can not be built without a
variance regardless of its location on the property. The Pinellas County Water
and Navigation Report (pCWN) notes that some moderate sea grass exist at
50' on the left (east) property line. At 60' on the left (east) property line, no
sea grass is observed. Therefore, somewhere between 50' and 60' the sea
grass ends. lfthe dock was built in this location, a variance for a minimum of
34' would be necessary just to build the proposed structure on the cast
property line. My application does not seek to encroach on any side set-back.
If the proposed dock was buih off the east property line set back, the variance
for length would be the same as is now proposed. Building the dock in this
position places the western most edge oftbe structure 60' from the east
property Iiae. The county documents in the PCWN report under "Depths at
left side of proposed dock" that the sea grass ends somewhere between 62'
and 70'. The county's report is addressing a proposed dock built such that the
eastern most edge of the strocture would be 56' from the east propertv
Jioe. In each case, the structure overlaps the same area of sea grass. In this
position, the dock would require a length of at least 94 feet. The dock would
be no shorter in length unless it encroaches the eastern side set-back.
-
Mar
1 \_?'~:)}:~;:~;~";PI.~ES & DEBORAH SOBOLESKI
7.~~~., ,~465
2) My application for Flexible Standard seeks only to lengthen the dock beyond
the "Environmentally St:nsitive Zone," as designated by Pinellas County. If I
do not extend beyond the sea grass, the County will not permit. Clearly,
according to the PCWN report, a variance is required, regardless of location,
to protect the sea grasses and to allow adequate depth in which to float a boat.
3) The location of my property and the Soboleski's has the widest region of
environmentally sensitive area. It is obviously from the two aerial photos I
submitted to the Development Review Committee on February 14th that the
sea grasses extend furthest from land along my property and the Soboleski's.
The Soboleski's second dock was permitted at 98 feet for the same reason, to
preserve the environmentally sensitive area around our property. Again, I
further defer to rebuttal point # 1 and #2.
4) My proposed dock does not set new precedent. The dock, which the
Soboleski's claim is "extraordinarily large", is smaller in total square footage
than either one of their two docks. Furthermore, their second dock extends
to a length of at ktJst 98 feet, 3 feet longer than my proposed dock, as
revised. Their prinuuy dock extends 90 feet and has over twice the square
footage as my proposed dock. Furthennore, any obstruction to-the
Soboleski's navigational exercise of the water assmnes that my proposed
dock:
a Encroaches the set-back. In &~ it exceeds the minimum setback by
50%. The Soboleski's primary dock, however, encroaches the set
back almost to our common property line. A photo, showing their
dock in relation to a wall that rests completely inside my property and
runs parallel to our mutual property line graphically illustrates this. If
a navigational obstruction truly exists, it is because their dock clearly
violates the side set back.
b. Extends well beyond any otber dock structure typical to its
surroundings. Again, the revised dock is 95', 5 feet longer than their
primary dock, 3 feet shorter than their second dock
c. Is extraordin:uily larger in square footage than their own. In fact,
it is considerably smaller than their primary dock by at least balftbe
square footage.
I respectfully ask that you speak with Harbormaster Morris regarding
navigational matters as tbey relate to this application. Also, please accept
my permission to visit with me at my property to view the site.
5) The Soboleski's last point assumes that no structure should be permitted on or
attached to the property. Any structure built on the beach or coastal inland
Il
_ ~)~ ~ .8
Mar 113_ ~:':O};~~ :~~fM; c ,seES 8. DEBORAH SOBOLESKI 7.~~~4 ,~~65
risks damage from hurricane furces. I certainly agree that the Soboleski's
home or anyone of their two docks could cause damage to my future home or
dock should hurricane winds drive debris from their property on to mine. As
you know, my future home will be required to conform to standards more
rigid than their home or any other home on the street because of the new
building codes took effect March I st. I intend for the dock to be built to the
same high standard. In met, there has never been a dock built by Ress Marine
Construction that bas ever been lifted or destroyed by a heavy storm in the
Tampa Bay area.
The following comments address the points in the opposition letter from Mr. Dale
Neimann. In Me. Neimann's letter, he claims that his property value will be negatively
impacted because my proposed dock, located 210 feet from his eastern property line, will
block his view.
The impact of my dock is negligible at best simply because the western edge of my dock
would be located 210 feet from his eastern property line. Furthermore. in between Mr.
Neimann's property and my proposed dock are the Soboleski's two docks located
approximately 30 feet and 152' to the east of Mr. Neimann's property line. Nevertheless,
the Soboleski's 98' dock, closest to Mr. Neimann, was still pennitted. Likewise, as
stated previously, the Soboleski's primary dock sits on my property line and extends to
90 feet in length. In spite of this, the assessed value of my property increased 600~ from
January 1,2000 to January 1,2001 according to the Pinellas COWlty Property Appraisers
Office. Mr. Neimann offers no evidence that his property suffered any Joss of marketable
value due existence of the Soboleski's two docks. I can offer no evidence that my
property value suffered loss from the Soboleski's docks either.
Mr. Neimann goes on to state in point #2 that if the dock is built to the east, it would not
negatively impact the environment. The dock as proposed in the Flexible Standard
Application does not negatively impact the environment either.
In point #3, Mr. Neimann claims that a dock can be built limited to 60 feet in length on
the eastern side. Again, the PCNW Report docs not indicate this to be so. The CoWlty
will only permit a walkway to a maximum of 4 feet wide when crossing over sea grass.
A 60' foot dock 4 feet wide could not accommodate two lifts. which are permissible
Wlder both City and County Codes, or be reasonably functional. Please note, Mr.
Neimann's dock also exceeds the current codes on length (57' dock on a 75'wide lot).
I purchased the property specifically because of it southerly exposure which protects me
from the prevailing storm winds and because of the abundant sea grass. I am seeking,
through this application nothing more than that which the objectors already have; a
variance on length. While Mr. Neimann acknowledges respect for my right to build a
dock, it seems contrary as he and the Soboleski's are trying to influence their control over
my property rights.
I - -
_ "",)D~_9
Mar 11"_~~_,-,}.~:~~f,,,;~,.~ES .. DEBORAH SOBOLESKI .:s66~47~;65
I have altered the design ofthc dock three times in an effort to fOld common ground with
the Soboleski's. Upon our first meeting, we all agreed that if the dock was built as close
to our property line as legally permissible, it woukl impact their eastward view the least. I
still believe this to be the case. It became evident, however, that their only motive was to
purchase or trade for my property. It is not for sale. Likewise, I have offered twice to
meet with the Neirnann's in an effort to fmd common ground. They refused to meet with
me entirely.
My purpose for the application is to build a dock that is pennissible under the County and
City Codes. Unfortunately, the County will not allow me to build a dock as short as the
City will permit due to the reasons mentioned in this letter. I have chosen the location
because:
1) It protects the dock and the boats from stann weather that
predominantly originates from the north and moves south.
2) It mitigates exposure from ever increasing boat traffic that runs across
the tip of Devon Drive as boaters seek to avoid existing and future "no
wake" zones when traveling from the marinas to Clearwater Pass.
My proposed dock:
1) Seeks variance on length only, as required by tbe Co.nty. It conforms
to County and City codes in all other aspects including, but not limited to,
permissible square footage, side set-back and permissible boat lifts. The
majority of docks on Devon Drive, especially those on the north side of
the street, exceed the permissible length according to the current City
codes. This is true of both objectors. The two neighbors located east of
my property, each have covers over their lifts. There are other docks
which have covers on Devon and Bayside Drives.
2) Does Dot set precedent. It does not exceed the longest dock on Devon
Drive or the largest dock according to square footage. The precedent has
been established by the Soboleski's.
I respectfully ask that the requested approval be granted based on the fuets stated above
and in the original application. As long as the dock does not violate any side set-back,
the position of the dock should be left to the discretion of the property owner, not the
neighbors.
Sincerely,
Christopher Mariani
f'. 1 1
.. '0/ 14
Mar
II. 02 _~.2:. 2_~f..,. _, .ES 8. DEBORAH SOBOLESK I
7.5j~"7~;65
2-1~-O~; 9~ ,eAM;QI.nnl.
:~e:""TO'
Page 2
February 11.2002
4) The substantial variances from Code requirement are being requested to aUow an
cmaordinarily large dock structure:, with covered boat lift for two (2) ~S'els. The proposed
rtructure will cause adverse impact upon my property, including without limitation:
J) The purposed structure will cause a substantial obstruction of view of the
water. Please accept our permission to come on to our property to view the site.
2) The proposed structure wiD obstruct navigation and exercise afwater use
rights by me and by other property owners.
5) The increased strDCt\Jre: WIll increase the risks of hazard resulting from damage debris
which may be caused by hurricanes or other strotlg storm forces.
It is respectfully soggestcd that the Applicant can design a dock of reasOJUlble length. size
and dimensions which will not require such extent ofvarlanccs to requiremenls and conditions
imposed by Code and which will not cllUse the c:mnt of adverse impact UPOD our property as the
proposed stl'Ucture would cause. .
Thanking you for your courresy and attention to our concerns and objeetions, we are
<
p. 12
n 12./ , '"
III T/ .,
-
Mar
113_?'~O/~~'~;!.1;,,:.:ES 8. DEBORAH SOB_LESKI
. :s~~.-r~(65
p.2
W ...;./ 1"
JOHNSON, BLAKELY, POPE, BOKOR, RCPPEL & BURNS, P.A.
.....TTOR;>IEYS A:'IIJ CC1..r~SELLORS AT LAW
E. D. AIlMS'ntONO III
IOHN T BL.."\J<liL Y
SRUCP. H. BO!tOR
Gt.."YM. BllRNS
IONA-mAN S. COU;:V.AN
MICl-IAllL 7. C:l:JNlN
ELIZABETH: DANIELS
BECKY FlJll.J\ELl..ANTON
).IARION HAll!
~COTl' C ILGF:.':Fll.ITZ
l'Iv.!'1l< ll.. lA1a>S
TIMOTHY A. JOHNSON, JR.
SIlMO!': U. KIU CK
ROGER A LARSON
:Oh""N R.. LAWSON, JR'
MICHJ\.!!L O. UTl1.E
MICllAELC MAR:OIMl
STJ:PHA!{IE T. MARQIJARDT
ZACHAA YD. MessA
AR. "CHARUE" NEAL
1'. w AU.AC1! POP!!, JR.
ROBBRT v. rOITER, Ill.
AUDREY' B. tlAUCHW A Y
DARRYLR.. RICHARDS
PE1EIt A RIVEU..:Nf
DENNlS G Rt.1'PBV
CP.~S,\, SAI><lAj".KO~
PHI:..J? M. SIlA511ll!..'1
10A.'1 M VEccmOLl
S'l"EVEN ~I Wl!lN'IlERGBR
luutJ3 ... ZSCHAU
'0;; COUNSEL
P:'EASE Rl!1'LY 10 CI.BARWA~
FI"ENO.42809.104550
March 5, 2002
uG; @ [~ 0 ~1f[~ -r: Ii
W r MAR 0 7 2002 llili'll
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Ms. Cyndi Tarapani
Community Development Coordinator
City of Clearwater
Planning and Development
Services Administration
100 South Myrtle Avenue, 2nd Floor
Clearwater, FL 33756
Re: FLS02-01-03-193 Devon Drive - Mariani Dock Flexible Standard
Development Approval
Dear Ms. Tarapani:
This letter is written in response to the report of the ORe meeting of February
15, 2002, in connection with the referenced matter (the "Report"). While this letter will
address the issues raised in the Report. it also serves as an amendment to Mr.
Mariani's application for flexible standard development approval. SpecificaJJy, enclosed'
is a drawing of Mr. Mariani's revised proposed dock. The overall length of the newly
designed dock is 95 feet, which is 6.5 feet shorter than the design originally submitted.
In addition, the roof length over the larger capacity lift has been reduced from 48 feet to
38 feet and now equals in dimension the roof over the smaller capacity lift. The total
dock square footage is now 476.25 square feet. versus the 498 feet previously
requested. Each of the two boatlifts has a coverage area of five hundred and thirty two
532 feet, although it doe~ not appear that this is a factor to be considered in whether to
approve the application.
)=
Turning to the Report, I will respond to the staff comments where corrections are
appropriate or additional information is requested. The paragraph numbers listed below
correspond with the paragraph numbers in the Report:
CUAAW^T~:lOHIC'E
911 C/Ui.'<llnr. .~-r.U;[lT
POST OFFICE llOX 0:1<51
f.."I..IIARWA1l!R, Pt.ORIDA J3157.IJ6!
T1'U!J'1f0l'lJi:: l'27) 061.1111
fllUlOOP11!lI (72"1) ~62.0J65
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TA1.cI'A Fl.ORlDA ]360\.1100
T!LEPIlOIIS (m) 22'.=
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..
Mar
113_~2_0;;~ ~ 2::~~'.1; C.~~E~;
& DEBORAH SOBOLESKI
. ;~G~47~:65
p.3
" 3/ . ~
JOH'l'iSON, BLAKELY, POF S, BOKOR, RUPPEL & BURNS, P.A.
A TTOR NEYS AND COt:NSELLORS A'l' LA W
Ms. Cyndi Tarapani
March 5, 2002
Page 2
5 a) The County Staff Report does not indicate "that the dock may be
moved to the east side of the property and would only be required to be 50' in
length...... The County Staff Report d~contain the fo/lowing comment .....the
proposed length wculd be consistent with the environmental criteria of the Pinellas
County Code if the dock were moved to the east side of the property where sea
grasses end about 50' from the seawall." The sea grasses end about 60' from the
seawall at the proposed dock location, Thus, a dock at .the eastern side of the
applicant's property would be 84' in length. not 50' as suggested in the Report.1 . To
move the dock to the east side of the property would shift the obstruction complained of
by the objectors from their view to the view of the neighbor to the east. The self interest
of the objectors is manifest. The proposed location of the dock was selected because it
best shelters the dock from northerly winds and preVailing boat traffic patterns off the tip
of the Devon Drive finger.
.
c) The Report states "it's not clear how three criteria of the Genera'
Applicability (Section 3-913) are met (and must be addressed prior to the issuance of a
DO)". Section 3.913 lists conditions which are to be imposed by the Community
Development Coordinator pursuant to a level one or level two approval. which
conditions shall insure that the listed issues are adequately addressed. These are not
criteria that the applicant is required to establish. Nonethefess, I will address the three
issues listed in the Report:
1. "The proposed development of the land will be in harmony with
the scale. bulk. coverage, density, and character of adjacent
properties in which it is located." We distributed at the hearing
information showing the many docks on Devon that exceed the
"standard" dock length provided in the Code. Most tellingly, the
dock of the objectors Soboleski sits on Mr. Mariani's west property
line and is 90' in length. (The Soboleskis have another duck on
the west side of their property that is 98 feet in length.) Further,
Harbormaster MOrris stated at the hearing that Mr. Mariani's
proposal, even at Its then proposed 101 foot length, was not a
navigational hazard or obtrusive and was in keeping with the
character of the neighborhood.
1 The dock extends 34' beyond the grass fine. The grass fine is at 61' on the west Side of the property
and SO' on the east side of the property.
-
Mar
113_~,2..0};~; ~;f.";o,.~ES l!. DEBORAH SOLOLESKI
. :,,~~.. ,~(65
p.4
'It' '." 1 ("
JOHNSON, BLAKELY, POPE, BOKOR, RUPPEL & BURNS, P.A.
ATTCR1'3YS AND COU~.sS:'LORS AT !..AW
Ms. Cyndi Tarapani
March 5, 2002
Page 3
2. "The proposed development is consistent with the community
character of the immediate vicinity of the parcel proposed for
development." See the answer to the preceding issue.
3. "The design of the propcsed development minimizes adverse
effects including visual, acoustic and olfactory and hours of
operation impacts. on adjacent property." The only issue here is
visual impact. This has been minimized, given the existing sea
grass siruation at this location. This is especially true, in light of the
nearby location of Objectors Soboleskis' dock, which is of
substantially equal length. Apparently, it is acceptable for the
objectors Soboleskis to build their dock on Mr. Mariani's property
line, but it is not acceplable for Mr. Mariani to build his dock 30 feet
from the Soboleskis' property line. The logic of the Solboleskis is
elusive, '
11 a) The Report states that "the dock can be shortened to
approximately 75' and miss the sea grass area." Clear1y, this statement
misapprehends the facts. A dock of 75' would allow only 14' of dock seaward of the
sea grass area, which is plainly inadequate to accommodate the two boatlifts allowed
by Code. In fact, a lift constructed in this manner would not aJlow a boat to froat at low
tide. The bow of the boat would damage the sea grass and the roof overhang would
shade the sea grass.
(b) The Report states "application is inconsistent with the information
contairled In .the County Report {specifically, the length of the dock)." The dock initially
reviewed by the County was 86' feet in length, 9' shorter than this proposed dock. That
proposal also consisted of two boatlifts side by side, which the County found to be
acceptable, Now the boatlifts flank the dock as suggested by the County.
I request that you speak personally with Harbarmaster Morris regarding Mr.
Mariani's applicatton. He is very familiar with all of the facts and circumstances
surrounding the request and the objections of the neighbors.2
2 It is noted that the objedors Niemann are separated from Mr. Mariani's property by the objectors
Soboleski. Their east pro perty line is 220 feet from the location of the proposed dock.. The impact of Mr.
Mariani's proposed dock on the Niemanns is negligible at best.
-
.:,,~~~.~~65
Mar
113_?'~O};~;:~;!.<;DI.~ES 8. mZBORW, SOBOLESKI
JOHNSON, BLAKELY, PO!'E. BOKOR, RUPPEL & BURNS, P .A.
ATTORNEY:; AND CCUNSELLOR~ AT LAW
Ms. Cyndi Tarapani
March 5, 2002
Page 4
If you have any questions, please calf me.
Very truly yours,
JOHNSON, BLAKELY, POPE, BOKOR,
RUPPEL & BURNS, P.A.
T
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not object to~e proposed dock and requested variances as drawn in the space provided above.
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CITY OF CLEAR\-V A TER
PLANNING DEPARTMENT
STAFF REPORT FOR 2/14/02 DRC MEETING
BACKGROUND INFORMATION:
APPLICANT:
Mr. Christopher Mariani
PROPERTY LOCATION:
193 Devon Drive
REQUEST:
Flexible Standard Development approval to increase the
length of a permitted dock from 60 feet (50 percent of the
width of the property) to 101 feet (84 percent of the width
of 1= It I under the provisions of Section 3-601.
FLS 02-01-03
APPLICA TION NUMBER:
ZONING:
LMDR, Low Medium Density Residential District
EXISTING USE:
Single-family residential
ADJACENT LAND USES:
North:
South:
East: .
West:
Single-family residential
Clearwater Bay
Single-family residential
Single-family residential
"'\
Page 1
.
.
STAFF ANALYSIS
The O.33-acre site is site located on the south side of Devon Drive approximately 1,350 feet east
of Harnden Drive. The site is vacant.
The neighborhood consists entirely of well-maintained, single-family dwellings.
The proposal includes a 498 square foot dock and two 144 square foot covered boatlifts. The
proposed dock will be located gg feet from the east property line and ~ feet from the west
property line. The proposed boatlift will be located .m feet from the west property line. All other
Code requirements regarding docks will be met.
All required building permits would need to be obtained prior to construction.
The site is located in a stable, residential neighborhood that is undergoing redevelopment. The
request to increase the permitted length of the dock is in keeping with t~e established character of
the area and will provide a more environmentally sensitive situation over existing conditions.
B. FLEXIBILITY STANDARDS FOR DOCKS IN ASSOCIATION WITH SINGLE-
F AMIL Y DWELLINGS IN THE LlVIDR, LOW l\1EDIUM 'DENSITY RESIDENTIAL
DISTRICT (Section 3-601):
STANDARD REQUIRED! EXISTING PROPOSED IN
PERMITTED COMPLIANCE?
LENGTH 50 percent of the Vacant 86 feet (71 No
maximum width of the percent)
property (60
feet) -
WIDTH Thirty-five (35) Vacant 36 feet Yes
Maximum percen t of the
width of the
property (42
feet) or fifty (50)
feet, whichever
is less
Page 2
STANDARD
SIDE
SETBACK
.
.
REQUIREDI EXISTING
PERMITTED
Docks: the Vacant
center one-third
of the lot (40
feet) or twenty
(20) feet from
any property
line, whichever
is less
Boatlifts/service
catwalks:
minimum of ten
(10) feet from
an ro ert line
PROPOSED
IN
COMPLIANCE?
Yes
.
C. FLEXIBILITY CRITERIA FOR DOCKS IN THE LMDR, LOW :MEDIUM DENSITY
RESIDENTIAL (Section 2-203):
1. The proposed dock wiJI result in no navigational conflicts and the length of the
proposed dock will not exceed twenty-five (25) percent of the width of the waterway;
or
The Pinellas County Department of Environmental Management has issued a report
which states that there are no navigational concerns with the proposed development.
2. The proposed dock location needs to be adjusted to protect environmentally
sensitive areas; or
The Pinellas County Department of Environmental Management has issued a report
which states that the proposal is more environmentally sensitive than the existing dock
and constitute an improvement over existing conditions.
3. The property configuration precludes the placement of a dock in compliance with
the required dimensional standards; however, the proposed dock will be similar in
dimensional characteristics as surrounding dock patterns.
Not applicable as the only one of the above three criteria must be met. The first two
criteria have been satisfied.
Page 3
.
.
D. GENERAL APPLICABILITY (Section 3-913): Conditions which are imposed by the
Community Development Coordinator and the Community Development Board
pursuant to a Level One or a Level Two Approval shall ensure that:
1. The proposed development of the land will be in harmony with the scale, bulk,
coverage, density, and character of adjacent properties in which it is located.
The proposal includes a dock as accessory to an existing single-family residence. It will
have no impact on density or impervious surface ratio limitations. The immediate area
consists of single-family homes. The development will be in harmony with the scale and
character of adjacent properties. Adjacent properties are residential. The applicant will
replace an existing dock with a more, environmentally sensitive one. The development
will be in harmony with the scale and character of adjacent properties.
2. The proposed development will not hinder or discourage the appropriate
development and use of adjacent land and buildings or significantly impair the
value thereof.
The site is zoned LMDR District and the proposed use will be in compliance with that
zoning. The proposed development should not discourage appropriate development and
use of adjacent land buildings.
3. The proposed development will not adversely affect the health or safety or persons
residing or working in the neighborhood of the proposed use.
The use will not change with this proposal. The development will not negatively affect
the health or safety or persons residing or working in the neighborhood.
4. The proposed development is designed to minimize traffic congestion.
The use does not change with this proposal and will have no increased effect on traffic.
S. The proposed development is consistent with the community character of the
immediate vicinity of the parcel proposed for development.
The proposed development is consistent with and will improve the community character
of the immediate vicinity.
6. The design of the proposed development minimizes adverse effects, including visual,
acoustic and olfactory and hours of operation impacts, on adjacent properties.
There will be no adverse effects generated by the proposed development.
Page 4
.
.
STAFF RECOMi\tIENDATION:
Based on the on the application, the proposal is in compliance with the standards and criteria for
Flexible Standard Development approval, with the maximum development potential and with all
applicable standards of the Community Development Code.
Therefore, staff recommends APPROVAL of the application for Flexible Standard Development
approval to increase the length of a permitted dock from 60 feet (50 percent of the width of the
property) to 101 feet (84 percent of the width of the property) under the provisions of Section 3-
601 at 193 Devon Drive.
Basis for Approval:
1. The proposal complies with Flexible Development and Residential Infill Project criteria
u~der the provisions of Section 3-601;
2. The plan complies with General Applicability Criteria under the provisions of Section 3-913;
and
3. The proposed development is compatible with the surrounding area;
Condition:
1. That the final design of the dock and boatlift be consistent with the conceptual elevations
submitted or as modified by the DRC;
S:\Planning Deparrmen^C D 8I.Stalldard FleX\Pending CasesV - Up for the Next DR0.Devoll 193 Mariam\Devoll 193 Reporr.doc
\..
Page 5
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JOIINSON, BLAKELY, POPE, BOKOR, RUPPEL & BURNS, P.A.
ATTORNEYS AND COUNSELLIlRS AT LAW
E D AR..\,ISTRONG III
JOHN T BLAKEL Y
BRUCE H BOKOR
GUY M BURNS
JONATIlAN S COLEMAN
~UCHAEL T CRONIN
ELIZABETH I. DANIELS
BECK Y FERRELL.AmON
:VlARION HALE
SCOTT C. ILGENFRITZ
FRANK R. JAKES
TIMOTI!Y A JOHNSON. JR.
SHARON E. KRlCK
ROGER A LARSON
JOHN R. LAWSON. JR.
MICHAEL G L1TI1..E
~UCHAEL C. MARKHA}.,j
STEPHANIE T ~lARQUARDT
ZACHAR Y D. MESSA
AR. "CHARLIE"' NEAL
F W ALI.ACE POPE. JR.
ROBERT V. POTIER. JR.
AUDREY 13. RAUCHWAY
DARR YI. R. RICHARDS
PETER A RIVELLlNI
DENNIS G. RUPPEL.
CHARLES A. SAMARKOS
PHILIP M. SIIA:;TEEN
JOAN M. VECCIlIOLl
STEVEN H. WEINBERGER
JULIUS I. Z:;CIIAU
.OF COUNSEL
PLEASE REPL Y TO CLEAR WATER
FILE NO. 42809.104550
'\
January 25, 2002
Via Hand Delivery
rn O? (~l.l", n; q WI r~ n"
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'U\ . .,,, "'00" \1 \ I !
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PLAN^\I'I\!r.,I:. DEVELOf':.":::~' ~
Ie" ...,~~io'" ~'-"~A"'\.
'I ~ .'
Mr. Mark Parry
Plan'ning Dept.
City of Clearwater
100 South Myrtle Avenue
Clearwater, FL 33756
Re: Application for Flexible Standard Approval (FLS Q2 (\1-(\3) submitted by
Chris Mariani
Dear Mark:
On behalf of the applicant, Christopher C. Mariani, we enclose an original and
12 copies of an amended application in connection with the referenced case. The
applicant requests an increase in the permitted dock length from 60 feet to 101 feet as
described in detail in the enclosed application.
Also enclosed is a consent from the adjoining property owner to the left, Mark
and Diane Blum of 195 Devon Drive.
If you have any questions in connection with this application, please do not
hesitate to contact my legal assistant, Jayne Sears, or me.
T AJ/js
ends.
cc: Mr. Christopher C. Mariani
#258983 v1
CLEARWATER OFFICE
011 cHEsrnvrmEET
POST OFFICE BOX 1308
rLEARWATER. FLORIDA 33757.1368
TELEPHONE: (727) 401.1818
TELECOPIER (727) 46~.0365
TAMPA OFFICE
100 NORTIi TAMPA STREET
SUITE 1800
POST OFFICE BOX 1100
TAMPA. FLORIDA 33601.1100
TELEPHONE (813) 225.2500
TELECOPIER (813) 223.71IR
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BATTLE &. EDENFIELD, P.A.
ATTORNEYS AT LAW
MAXWELL G. BATTLE, JR..
MICHAEL S. EDENFIELD
ALSO AOMITTE:O
. COLORADO
. NE:W Me:xICO
. MONTANA
206 MASON STREET
BRANDON, FL 33511
(813) 685-3014
FAX (813) 684.5922
March 14, 2002
(date and typos corrected from prior fax
of 03/14/02 which was incorrectly dated 03/15/02)
Mark Parry
Planning Deparlment
City ofClearwaler
100 South Myrtle A venue
Clearwater, FL 33756
RE: Appl ication for Flexible Development
Standard Approval submitted by
Chris Mariani; FLS 02-01-03
Dear Mr. Parry:
J represent James and Deborah Soboleski who own the residence to the immediate
West of Mr. Chris Mariani's lot (Lot 31, 193 Devon Drive) for which the above
application was submitted. As you already know, my clients are vehemently opposed to
Mr. Mariani's request as it is now constituted. [ write to ask that you refrain from issuing
a decision on Mr. Mariani's request until at least March 28, 2002 to allow us time to
provide you with additional infonnation which we believe will be helpful to you in
reaching a fully infonned decision.
The reasons that we need this additional time are:
1) r was just retained by the Soboleskis and I was unavailable to review the
City's file until today. Obviously I need some time to fully digest the file
and respond to the contents thereof; and
2) We wish to provide you with a graphic pictorial representation of how Mr.
Mariani's proposed dock will affect the view from the Soboleskis
property. This requires actual field surveying and photography as well as
a substantial amount of computer work to generate the visual models; and
3) We need time to assemble pictorial evidence of how the proposed project
will affect the character of the neighborhood.
I hope that given the depth of opposition to Mr. Mariani's application that you can grant
us the additional time. I would not ask for the additional time if I did not truly believe
that it was necessary to provide the additional infonnation and visual tools to you and
that this information would have an effect upon your decision.
While we are working diligently to prepare and submit the above infonnation to
you, I felt that it would be appropriate to address several issues initially. First, r am
.
.
concerned thaI you do not yet have a compldc application. It appears to me that the
Section 4-202 . Community Development Code requires:
I) Subsection A, 12(e) requires that structural overhangs and building
heights be depicted; and
2) Subsection A 24 requires detailed plans and specifications
prepared, signed and sealcd by a Florida Registered Professional
Engineer.
In my review of the application file today, I was unable to locate either a plan depicting
the structural overhangs or detailed plans and specifications sif:,'lled and sealed by a
Florida Registered Professional Engineer.
Second, we believe that the staff may have overlooked several key facts in their
review. Page 4, Paragraph D2 states, inter alia. that "... the proposal includes a dock as an
accessory use to an existin!! sin!!le familv residence." This is incorrect. The lot is
vacant. Accordingly, the proposed dock would at this time constitute a primary use not
an accessorv use. Docks are not pennitted as primary uses in a residential zone.
- .
Further, the staff report suggests that"... the development will be in hannony \\ith
the scale and character of adjacent properties." This is also incorrect. While other
properties have docks, they do not have docks of the size and magnitude of the proposed
dock and boathouses. While no detailed plans were submitted with the application, a
"guesstimate" from the sketch and photo submitted suggests that the roof line of the
boathouses at the end of the dock will approach, if not be in excess of, the height of
adjacent homes. When you consider that the boathouse roof over the larger capacity lift
will be 38 feet in length [as amended] and presumably have a boat out of the water on the
lift much of the time, it becomes clear that the visual effect wiII be to have a small house
in the view of my clients.
Third, we suggest to you that the roof decks should be included in the dock deck
for determining the applicable standard of review. If you include the total area covered
by the dock and roofs, excluding the tie piles, the dock area exceeds 500 square feet. This
would require a Level Two Review.
Fourth, while r have not had time to fully review and consider Mr. Mariani"s
assertions, including Tim Johnson's letter of March 5, 2002, I did note several curious
comments in Mr. Johnson's March 5, 2002 letter. J address these as follows:
I) How is it that Harbonnaster Morris is supposed to be so
knowledgeable of ".'.. the facts and circumstances surrounding the
request and objections of the neighbors."? The file certainly does
not reflect that he spoke to either of my Clients. In fact they report
that he has not. In addition, it seems clear that he also did not know
that the Blums contiguous on the East do not mind having Mr.
.
.
Mariani's dock located closer to their property line [see their letter
dated 03/06/2002 in your filel.
2) Mr. Johnson complains about the logic of the Soboleskis having
docks and opposing Mr. Mariani's project. The Soboleskis oppose
the location, size and character of the Mariani proposal, not the
concept of his building a dock once he has a residence on Lot 3/. If
the Mariani project is moved to the East adjacent to the Slums Jot
line, they are not blocked in their view [so long as the size of the
boathouses does not get out of scale]. Both Mr. Mariani and Mr.
Johnson undoubtedly know this, but ignore it.
3) Mr. Johnson complains that shifting to the East will impinge upon
the Blum's view But Mr. Johnson fails to mention that the Blums
don't o~ject.
4) Mr. Johnson and Harbonnaster Morris both appear to be ignorant of
the fact that my Clients did not build the docks on their property
[they were existing] and that they spent approximately $20,000 to
move boat lifts and address fence and landscaping issues in a manner
that benefited their neighbors.
As you can see from the foregoing brief comments, there are many disputed
issues that I need to address for the Soboleskis. I hope that you will agree to grant the
additional time for my Clients and I to respond further prior to reaching a decision.
Very truly Yours~.
/~&A
/
Maxwell G. Battle, Jr.
Cc: James and Deborah Soboleski
","",Y ~u
UJ I2113~ 411fav~ Walk~~
.7J~53-337~
(O.Z
PINELLAS COL'NIY
DEPARTM~:NT OF ENVIRONMENTAL MANAGEMENT
WATER AND NAVIGATI01\- REPORT
SUBJECT: Dock Preapp.
Christopner Mariani
Lot 31 Devon Drive, Clear.vater
FROM: Susan Pirolo ~
Environmental Specialist II
Department of F.nvironm~n:aJ ~'1anage'fficnr
THRV: David L. Walker, Jr., Env. Program Manager~
Water and Navigation S~c!ion .
Department of Envirorunental Managemen:
DATE: Novembe:- 26, 2001
The subject site was inspected by this Department on November 8. 2001.
PROJECT A;,\D SITE DESCRIPTIO;\':
The applicant pr:Jposes construct a private dock: in the wa~ers 0: Clearwater Harbor.
The proposed dock will consist of a 4 ft. x 86 f1. walkout \\lith a 26 ft. x 2.5 ft. catwalk, a .
2.5 ft x 36 ft. cat.walk, two beat iifts, and a roof. The total area of the d~ \\;11 be 499 sf.
The waterfront width of the property is 120 ft The proposed structure will be located 56 ft.
from the cast property line and 31.5 ft. from the west property line, The total length of the
structure will be 86 ft. a:ld the 'Width of the structure will be 32.5 ft. The water depth wi!:
tle greater than 5 ft, (ML W) at :he end of the proposed structure. The width of the
navigable portion of the waterway at this location is approximately 570 ft. The structure -
extends a tola} of86 ft., :5.1 % into the ~avigabre waterway.
The shorelir.e is seawalled at this location Oysters (Cr.assos1rea virginica) are attached to.
the seawall. Dense seagrass beds consisting of cuban shoal grass and manatee grass
(Ha{odule wright;i and Syringodium fi'iforme, respectively) are located offs:tcre along t~e
enti:-e prope:'t)'. The seagrass is located from I f:. to 65 ft. from the seawall in tl:e area of
tie propcsed dOCK. ~o emergent vegetation is present on this property.
Wildlife observed curing the rield review included a brown pelican (Pe/ecanus
occid~'nlali~'), cormorant (Phala,;rocorax al/rirus), and great egret (Ca.smerodius a/bus).
-. _w
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Field conditions at this site were as follows:
Depths at lef. side of proposed dock:
Dis:ance
from seawall
0'
De::lh
0,3' (0.1 · ML W)
, ,
.
4'
10'
20'
30'
40'
50'
60'
62'
70'
8D'
86'
0.9' (0. 7' ~1L W)
1.3' (1.1 · ~fLW)
1.8' (1.2. \1L W)
2.6' (2.4' \fLW)
3.5' (3.3' ~ilL W)
4.3' (4.1' MLW)
5.8' (5.6' ML W)
6.1' (5.9' ML W)
6.3' (6.1' ~1L W)
Depths at right side of prot:osed lifts:
N"ut~s
start of mod. sparse Halodule
start of dense Ha/.
very dense Halodule
., ..
"
.. "
..
moderatel y sparse seagrass
very spar.s~ seagrass
no seagrass
Distance
Fron: seawall De,th .__Notes
0' 0.2' (0.0' ML W) a few pieces horizontal cOT!crete riprap
l' stan of sparse Halodule
3' mx.erate Hal.
4' dense Hal.
10' 0.5' (0.3' ML W) . veri dense Hal.
20' 0.8' (O.6'-ML W) ..
30' 1.2' (1.0' ML W) .. ..
40' 1.9' (1.7' Ml W) ..
50' 2.4' (2.2' MLW) .. ..
60' 3.8' (3.6' ML W) .. ..
62' end of dense seagrass
65' end of all seagrass
70' 4.6' (4.4' MLW)
gO' 5.4' (5.2' ML W)
g(j' 5.7' (5.5' MLW)
90' end of adj. cock to righ~ (poles extend funher), property cu:-ves to right
Nov 3~ 01 12:14p nav@ Walk@r
.
.)453-3371
p.4
Note: Inn~[ 10' (east side) to 20' (west side) ofroofanc structure will be oyer dense
s~agrass.
Deptb at right (we:st) propt:ny line:
Dis:an.:e
from seawall
O'
6'
10'
20'
30'
40'
50'
60'
70'
80'
'10'
Depth
0.2' (0 O' MLW)
0.3' (0. J . ML W)
0.1' (0.5' ML W)
o.<r (0.7' MLW)
1.5' (l J" ML W)
2.1' (1.9' ML W)
3.3' (3.1' ML W)
4.2' (4.0' MLW)
4.9' (4.7' MLW)
5.5' (5.3' MLW)
Deprhs at left (cast) pr~perty line:
Dista.'lce
[rorr: sea\',iall
0'
1 '
3'
8'
10'
20'
24'
30'
40'
50'
60'
70'
80'
86'
Deot!:
0.3' (0.1' MLW)
1.0' (O.S' MLW)
1.6' (l.'r ML W)
2.3' (2.1' to.1LW)
3.1' (2.9' MLWO
5.5' (5.3' MLW)
5.8' (5.6' MLW)
6.5' (6.3' MLW)
6.9' (6.7' YILW)
7.3' (7.1' MI.W)
!\ otes
start of seagrass
dense seagrass
;.
a "
u. ...
end of most seagrass
Note s
start \,)1' Halodule (mod. sparse)
dense lIalodllle.
very dense Halodule
., "..
..
Syr;ngodium mixed in with Hal
mostly \'ery dense 5)'ringodilim
still some moderate seagrass
r:o sea grass
Nov 30 01
12:1<4p
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W61k.~
(.1453-3371
p.5
COl\f\fENTS:
I. Seagrass beds are located along ~his entire property, and extend out to a ma.ximum
of 6S ft. from the seawall :n the Erea of the propost;d dock although it becomes
sparse at approximately 60 ft. It 1S the p(.~licy of this Departr:1er.t to limit
st:uc.ures ove~ seagrasses to J ft. in \\idth and to p~ace tl1e tenT.inaJ platfcrms and
boat slips beyond the limits of ;he seagrasses wherever possible. In the proposed
location, the walko;.!t would need to be lengthened by 10 feet to meet this crite:ia.
The applicant is adyisec.. hc"...ever, that the proposed length would be consistent
with the environmental criteria of the Pinelias County Code if the dock were
moved to the eastern side of the property where seagrasses end about 50 ft. from
the seawall.
2 The applicant is also advised that it is the policy of this Department that all boat
slips be located adjacent to th~ main dock. and therefore or:.e boat lift will need to
be located on each side of the main deck.
FINDINGS:
~o tir.dings are being Issued at this ~ir.le ;J~ncing rec~ipt of a fcnnal application.
The applicant is advised that approvals for this project may a15\-; be required from the
Florida Department of Envir;Jnmental f'rokctiDf. and the '.). S. Army Corps of Engineers.
A~y modi:icatio:lS required by these agencies must ~e reflected in revised plans
submitted to lhe County.
STR: S 112 8-29-15
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SHORELINE
Slcn_cure
Date
roval
0611V~"~~MC ......
JOH.ON, POPE, BOKOR, RUPPEL & B.S, LLP
ATTORNEYS AND COUNSELLORS AT LAW
E. D. ARMSTRONG III
BRUCE H. BOKOR
JOHN R. BONNER. SR.'
GUY M. BURNS
JONATHAN S COLEMAN
STACY COSTNER
MICHAEL T CRONIN
ELIZABETH .I. DANlELS
BECKY FERRELL-ANTON
COLLEEN M. FLYNN
MARION HALE
SCOTI C ILGENFRITZ
FRANK R. JAKES
TIMOTHY A JOHNSON, JR.
SHARON E. KRICK
ROGER A LARSON
JOHNR. LAWSON,JR'
LEANNE LETIZE
MICHAEL G. LITILE
MICHAEL C MARKHAM
ZACHARY D. MESSA
A.R. "CHARLIE" NEAL
TROY J. PERDUE
F. WALLACE POPE, JR
ROBERT V. POTTER, JR.
AUDREY B. RAUCHW A Y
DARRYL R. RICHARDS
PETER A RIVELLINI
DENNIS G. RUPPEL'
CHARLES A SAMARKOS
PHILIP M. SHASTEEN
JOAN M. VECCHIOLI
STEVEN H. WEINBERGER
JOSEPH J. WEISSMAN
STEVEN A WILLIAMSON
'OF COUNSEL
PLEASE REPLY TO CLEAR WATER
FILE NO. 42809.104550
March 10, 2004
Ms. Cynthia H. Tarapani, AICP
Planning Director
City of Clearwater
P.O. Box 4748
Clearwater, FL 33758-4748
Re: Development Order regarding case FLS 02-01-03
at 193 Devon Drive
Dear Ms. Tarapani:
This firm represents Christopher C. Mariani, the owner of the property located at
193 Devon Drive, Clearwater, Florida, in connection with the referenced matter. On
behalf of Mr. Mariani, please accept this letter as notice that he hereby withdraws his
pending flexible standard development application.
Sincerely,
JOHNSON, POPE, BOKOR,
RUPPEL & BURNS, P.A.
!'
~",~,~"-"'''.".''~.'.~' "~
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Timothy A. Johnson, Jr.
TAJ/lrc
cc: Mr. Chris Mariani
314131
EIVE
MAR 1 1. 2004
CLEARWATER OFFICE
011 CHESTNUT ST
POST OFFICE BOX 1368
CLEARWATER, FLORIDA 33757.1368
TELEPHONE (727) 461.1818
TELECOPIER: (727) 462.0365
DEPARTMENT
CITY! u"l= C.! r::!~.P'flV!'.TFP.
~ ~ ~f",_, ,~~ .. ,-: .,. -_ . ~ '<>"'" ,
TAMPA OFFICE
100 N. TAMPA ST
SUITE 1800
POST OFFICE BOX 1100
TAMPA, FLORIDA 33601-1100
TELEPHONE: (813) 225.2500
TELECOPIER: (813) 223.7118
.
.
~~
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C I T Y 0 F
CLEARWATER
LoNG RANGE PlANNING
DEVELOPMENT REvIEW
PlANNING DEPARTMENT
POST OFFICE Box 4748, CLEARWATER, FLORIDA 33758-4748
MUNICIPAL SERVICES BUILDING, 100 SOUTH MYRTLE AVENUE, CLEARWATER, FLORIDA 33756
TELEPHONE (727) 562-4567 FAX (727) 562-4576
February 27,2004
Mr. Timothy Johnson
Johnson, Blakely, Pope, Bokor, Ruppel & Bums, P.A.
911 Chestnut Street
Clearwater, FL 33756 EILI
RE: Development Order regarding case PI flrtlt .e 1 e~l'{ll 193 Devon Drive
Dear Mr. Johnson:
This letter constitutes a Development Order pursuant to Section 4-202.E of the Community Development Code.
On December 05, 2003, the Circuit Court for the Sixth Judicial Circuit in and for Pinellas County, Florida
Appellate Division (Court) reviewed an appeal of the approval of your application for Flexible Standard
Development approval to increase the length of a dock from 60 feet (50 percent of the width of the property) to
92 feet (76.6 percent of the width of the property) under the provisions of Section 3-601 and subsequent appeals
to the Community Development (CDB) and Hearing Officer. The application includes a 440 square foot dock
and two 532 square foot covered boatlifts to be located a minimum of 30 feet from the side (east and west)
property lines, under the provisions of Section 3-601.e.g. The Court upheld the appeal through appeal number
03-5007 AP-88A UCN522003AP005007XXXXCV effectively denying your application as outlined in the
attached "Order Granting Petition for Certiorari".
Based on the above referenced Court Order and through this letter, your application for Flexible Standard
Development is denied.
If you have any questions, please do not hesitate to call Mark Parry, Planner, at 727-562-4558. You can access
zoning for parcels within the City through our website: http://www.myclearwater.com/. * Make Us Your
Favorite!
Sincerely,
Cynthia H. Tarapani, AlCP
Planning Director
CC: Adjoining Property Owners
S:\Planning Department\C D B\Standard Flex\Inactive or Finished Cases\Devon 193 Mariani - Denied\Devon 193 DEVELOPMENT ORDER Denied.dQc
BRIAN j. AUNGST, MAYOR-COMMISSIONER
HoYT HAMILTON, VICE MAYOR-COMMISSIONER WHITNEY GRAY, COMMISSIONER
FRANK HIBBARD, COMMISSIONER * BlI.l.jONSON, COMMISSIONER
"EQUAL EMPLOYMENT AND AFFIRMATIVE ACTION EMPLOYER"
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IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT..~_~... :u ~" ":nn3
IN AND FOR PINELLAS COUNTY, FLORIDA ;d';:l. ~ '':, !U'll
APPELLATE DIVISION
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DEBORAH GROEN SOBOLESKI,
Petitioner,
vs.
Appeal No. 03-5007 AP.88A
UCN522003APOOS007XXXXCV
CITY OF CLEARWATER and
CHRISTOPHER C. MARIANI,
Respondents.
I
I
ORDER GRANTING PETITION FOR CERTIORARI
THIS CAUSE came before the Court on the Petition for Writ of Certiorari, filed by
Deborah Groen Soboleski (Soboleski), the Responses filed by the City of Clearwater (City) and
Christopher C. Mariani (Mariani), and Soboleski's Replies thereto. Upon consideration of the
same and being otherwise fully advised, the Court finds that the Petition must be granted as set
forth below.
Soboleski seeks review of the Final Order, entered January 13, 2003, by the City's
hearing officer, Administrative Law Judge J. Lawrence Johnston, I finding that Soboleski had not
met her burden of showing that the "decision of the community development board cannot be
sustained by the evidence before the board, or that the decision of the board departs from the
essential requirements of law." See Community Development Code of the City of Clearvvater
(Code), Sect. 4-505.C. (setting forth the second-tier standard of review of decisions entered by
the Community Development Board (Board)). The Final Order affirmed the decision of the
I Although Judge Johnston is an Administrative Law Judge for the Division of Administrative Hearings, he was not
acting in that capacity to review Soboleski's appeal. Rather, as Judge Johnston states in the first sentence under the
"Statement of the Issues," he was sitting as a hearing officer under Section 4-505 of the City's Code. Indeed, the
Court notes that had the appeal come under the Administrative Procedure Act, the core issue presented by the
Petitioner, whether she was denied procedural due process, may have been averted. See ~ Fla, Stat. S
120.57( l)(b )(stating, in part, that all parties shall have an opportunity to respond, to present evidence and argument
on all issues involved).
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Board to not grant Soboleski a quasi-judicial hearing and upheld Development Order entered by
the City's Community Development Coordinator, Ms. Tarapani, granting Mariani's application
to build a ptivate dock on a vacant lot he owns overlooking Clearwater Harbor. Soboleski had
objected to the proposed dock from the beginning of the application process.
In reviewing the Final Order and the administrative action taken by the City, this Court
must consider whether Soboleski was afforded procedural due process, whether the essential
requirements of law were observed and whether the City's action is supported by competent
substantial evidence. See Haines City Commtmity Development v. Heggs, 658 So.2d 523, 530
(Fla. 1995)(setting forth the standard of certiorari review of administrative action).2 The Court
finds that, based on the undisputed findings set forth in the Final Order and upon review of the
appellate record before this Court, Soboleski was not afforded procedural due process in the
proceedings below.
The underlying facts are that Mariani, filed, on January 18, 2002, an application for a
Level One Flexible Standard Dock Penuit requesting approval to build a dock and two boat
lifts.3 The original application requested an increase in the permitted length of a dock from 60
2 As explained by the Florida Supreme Court in Haines City Community Development, "certiorari in circllit court to
review local administrative action under Florida Rule of Appellate Proced1.ll"e 9.030(c)(3) is not truly discretionary
common-law certiorari, because the review is of right." It is undisputed that the Petitioner seeks review before this
Court, as a matter of right, pursuant to Rule 9.030(c )(3). This "right" is particularly poignant under the facts of this
case wherein the hearing officer made "findings offact," including that the record before him was "censored,"
without allowing Soboleski to present any evidence or testimony. The Court would suggest that in such future
proceedings, the City recognize that "[t)here is a distinction between the standard by which an administrative
tribunal measures proof presented to it, i.e. preponderance of the evidence, and the standard by which a reviewing
court measures the correctness of an administrative order under, i.e. competent substantial evidence." See
Fitzpatrick \'. City of Miami Beach, 328 So.2d 578, 579 (Fla. 3d DCA 1976}(explaining that the functions between
the two tribunals are dissimilar and the standards are not interchangeable)(citations omitted).
J Mariani had to seek "flexible" versuS "minimum" standard approval, as he was not able to provide "signed and
notarized statements of no objection" from both adjacent waterfront property owners and from the Pinellas County
Water and Navigation Control Authority, aIkIa the Pinellas County Department of Environrnental Management S~
Code Sect. 3-601.C.l.g.
2
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feet to 101 feet.4 On January 22,2002, the Lead Planner, Mark Parry, notified Mariani, via his
attorney, Timothy Jolmson, that the application was deemed "complete." January 30, 2002, Mr.
Parry, pursuant to the City's Code,S sent a letter to property owners within 200 feet of the
proposed site. The letter states that Mariana's application requests the City to permit a dock
from 60 feet to 101 feet, and includes a proposal for a 498 square foot dock and two 144 square
foot boatlifts. The letter "encourages" the surrounding property owners to "participate in the
review of this case." The letter also provides that should the nearby property owner be
dissatisfied with the Development Order, he or she would "have the right to appeal the decision
of the Community Development Board."
On February 14,2002, the Development Review Committee (Committee) met to discuss
the dock application.6 Following the meeting, on February 15, 2002, Mr. Parry faxed Mr.
Johnson the Committee's comments and notes, which stated, in part, that three of the general
dock criteria had to be addressed before the issuance of a development order, that the length of
the dock in the application was inconsistent \'Iith the information contained in the county report
and, that revised site plans had to be resubmitted to the Staff by July 14,2002.
On March 5, 2002, Mariani amended his application to reflect that he was now proposing
to construct a dock 9S feet in length and increasing the two-boatlift coverage area to a total of
532 square feet. The letter also disputed several of the Committee's findings. Thereafter, on
4 An amended application, submitted January 28,2002, requested the same dock length, 101 feet. A second
amended application, via letter submitted March 5, 2002, requested dock approval for 95 feet; again, on April 15,
2002, Mariani requested a new dock length of92 feet. The Water and Navigation report, prepared by the County's
Dept. of Envirorunent Management on November 26,2001, indicated that Mariani was requesting a total dock
length of 86 feet. The Staff Report, prepared by the City's Planning Dept., contradictorily states that both a 101 foot
and 86 foot dock were proposed; the staff recommended approval of an 101 foot dock as an "accessory to an
existing single-family residence" which would "replace an existing dock with a more environmentally sensitive
one."
5 See Code Sect. 4-202.C.1.b. Notice of abutting property owners.
6 As enumerated in footnote 3, supra, the City's Staff Report, presumably relied upon by the CDC in its meeting, is
seriously t1awed.
3
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March 14, 2002, the Petitioner, Ms. Soboleski, as the abutting property owner immediately to the
west, submitted her objection to the original proposed dock as set forth in the January 30th letter
received from Mr. Parry. Through her attorney, Maxwell Battle, Jr., Soboleski outlined several
concerns of the original proposed dock.7 Again, on March 27, 2002, Soboleski provided a
detailed letter, with several attachments, setting forth specific concerns with the original
proposed dock.
On April 15, 2002, in response to Soboleski's concerns, Mr. Johnson hand delivered a
four-page response with several attachments to the City, including a drawing prepared by
Mariani's architect, Alex Pliska,s dated April 11, 2002. Thereafter, it is unclear what
correspondence there was between the parties, if any, but, on July 22, 2002, the Community
Development Coordinator, Ms. Tarapani, through her designee, entered a Development Order, in
the fonn of a letter addressed to Mr. Johnson. The Development Order approved a dock 92 feet
in the length and also approved a 440 square foot dock and two 532 square foot covered boatlifts.
The letter states that "[t]he DRe [Committee) recommended approval of the application with
conditions" and that the coordinator concurs with the "findings of the Development Review
Committee.,,9
1 The abutting property owners directly to the east of the site, Mark and Diane Blum, stated, via letter dated March
6, 2002, that they had no objection to the construGtion of the dock at any location along the sea wall. The Court
notes, from the photographic exhibits, that the Blum's dock is built on the most easterly side of their waterfront lot.
The Court also notes that the record indicates that all affected parties, including Mariani and Soboleski, may have
agreed at this juncture to build the dock on the eastern side of Mariani's property. The Court would suggest in the
event of such future scenarios, mediation be encouraged bet-Neen the parties to reach an amicable agreement so as to
avoid long, drawn-out, and, possibly needless, litigation.
g During the time of these proceedings, Alex Pliska was a member of the Community Development Board, which
hears appeals fmm development orders entered by the community development coordinator. Although Mr. Pliska
abstained from participating in Soboleski's appeal before the Board, the Court is troubled that a board member
would perform such services under the facts of this case.
9 As set forth above, the only "findings" that came out of the February 14, 2002, meeting of the Conurjnee were the
fax to Mr. Johnson from Mr. Parry which specifically stated that the dock application did not meet Code criteria and
that a revised site pLan would need to be resubmitted.
4
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As provided by the Code, Soboleski filed her Application for Administrative Appeal,
with several attachments. See Code Sect. 4-502. Part of the Application,to along with the City's
Staff Summary of Events, came before the Board on August 20, 2002. The transcript reveals
that the Board was uncertain as to the procedural posture of the case and what they were suppose
to decide. II Although the Board's basic function was to detennine whether or not to remove the
appeal from the "consent agenda," there were no factors set forth by the Code as to how this
would be accomplished. See Code Sect. 4-504.B. (stating only that "[t]he appeal may be
removed from the consent agenda only by a vote of at least four members of the community
development board"). However, it is undisputed that the Board was not to consider the merits of
the case, rather it was to decide only whether a quasi-judicial hearing was warranted.
Nonetheless, after hearing argument of counsel, and receiving the testimony of both Ms.
Tarapani and Mariani as to why the "appeal" should be denied, the Board decided to keep the
appeal on its consent agenda, thereby upholding the Coordinator's Development Order. I 2
Soboleski then filed a second "appeal" of the Board's decision to the hearing officer. As
provided by the Code, the hearing officer was to determine, based on the record before the Board
and oral argument, whether Soboleskis met her burden of showing that the Board's decision
"cannot be sustained by the evidence" or "that the decision of the board departs from the
essential requirements of law.',13 Adhering to the Code, Judge Johnston, sitting as a hearing
10 It is undisputed that Ms. Tarapani did not forward the entire Appeal Application submitted by Soboleski to the
Board.
II For example, the Staff Summary of Events, submitted to the Board with the presumable objective of providing
guidance, states an erroneous standard of review of the Soboleski's appeal application, i.e. it enumerated the criteria
the Board would consider in the event the Board removed the appeal from the consent agenda and granted the
Soboleski's a quasi-judicial hearing, which it decided not to do. (emphasis added). See Code Sect. 4-505.C.1.-3.
(setting forth the factors the Board must consider if the appeal was removed from the consent agenda).
12 See Final Order, nnmber 10., page 10., and Transcript ofCDB hearing.
IJ As set forth in his order, Judge Jolmston, was constrained by the Code's recent amendment of Section 4-505 (on
May 2, 2002), that had previously allowed the record before the hearing officer to be "supplemented by such
additional evidence as may be brought forward during the hearing."
5
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officer, was prohibited from deciding whether procedural due process was accorded Soboleski.
Even so, it is clear from his findings that Judge Johnston determined procedural due process
violations had occurred.
Judge Johnston found that, whlle the Board should have limited the parties' ?ral
presentations to the question of whether Soboleski's Appeal Application should be removed
from the consent agenda, the Board "allowed counsel for Mariani to address the merits [of the
case] in arguing that Soboleski had made no showing as to why the Commission's decision was
incorrect so as to justify a quasi-judicial hearing." Further, in discussing the "Record-on-
Appeal," Judge Johnston states,
A troublesome aspect of this case was the City's handling of the records in the two
appeals. In the first-tier appeal, Section 4-S04.B. of the Code required that the CDB
[Board] make its decision whether to remove Soboleski's appeal from the CDB's consent
agenda based on the Application for Administrative Appeal. BlIt the CDC [Commission]
failed to present to the CDB the entire Application for Administrative Appeal for its
consideration. In the second-tier appeal. the City "censored" the Appeal Application
and did not forward items not presented to the CDB for its consideration. It is concluded
that the Appeal Application should have been forwarded to the DOAH in its entirety and
that, while Section 4-505 of the Code does not specify the contents of the record-on-
appeal, it should have included items requested to be presented but, for whatever reason,
not presented to the CDB for its consideration. (emphasis added).
Accordingly, in reviewing the appellate record before this Court, the Court agrees with
Soboleski that she was denied due process at every stage of the proceedings below. As
explained by the Florida Supreme Court in Keys Citizen for Responsible Government. Inc. v.
Florida Kevs Aqueduct Authority, 795 So.2d 940, 938 (Fla. 2001),
The basic due process guarantee of the Florida Constitution provides that "[n]o person
shall be deprived of life, liberty or property without due process of law." The Fifth
Amendment to the United States Constitution guarantees the same. As this Court
explained in Department of Law Enforcement v. Real Property, 588 So.2d 957, 960 (Fla.
1991), "[p ]rocedural due process serves as a vehicle to ensure fair treatment through the
proper administration of justice where substantive rights are at issue:' Procedural due
process requires both fair notice and a real opportunity to be heard. As the United States
Supreme Court explained, the notice must be "reasonably calculated, under all the
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circumstances, to apprise interested parties of the pendency of the action and afford them
an opport1.mity to present their objections. The notice must be of such nature as
reasonably to convey the required information, and it must afford a reasonable time for
those interested to make their appearance." Further the opportunity to be heard must be
"at a meaningful time and in a meaningful manner."
The specific parameters of the notice and the opportunity to be heard required by
procedural due process are not evaluated by fixed rules of law, but rather by the
requirements of a particular proceeding. As the Supreme Court has explained, due
process, "unlike some legal rules, is not a technical concept with a fixed content unrelated
to time, place and circumstances." Instead, "due process is flexible and calls for such
procedural protections as the particular situation demands." (citations omitted).
In this particular situation, there is no dispute that, as an abutting property owner,
Soboleski's basic substantive property rights were at stake. See Massey v. Charlotte County,
842 So.2d 142, 146 (Fla. 2d DCA 2003)(explaining procedural due process as it relates to
residential property rights); see also Wentworth v. Dept. ofEnvirorunental Protection, 771 So.2d
1279, 1280 (Fla. 4th DCA 2000)(finding that "[d]ne process considerations in this case run not
only to Wentworth, in his attempt to obtain consent to build the dock, but also to his neighbors
who would be substantially affected by the constnlction"). Indeed, the City's Code recognizes
that property owners within 200 feet of the proposed site should receive notice of a development
application; thus those neighboring property owners were sent a letter with the details of
Mariani's original application and were "encouraged" to participate in review of Mariani's case.
It's difficult to envision a scenario wherein a homeowner could have attempted to
participate in the review process anymore than Soboleski, whose concerns were then 'lever
addressed.14 Furthermore, the Court finds that any notice given to Soboleski and those property
owners within 200 feet of the proposed site, is meaningless and does not "adequately apprise
interested parties of the pendency of an action," if the applicant is able to subsequently amend
14 The Court notes that the first objection raised by Soboleski appears to be on or about March 14, 20'}2, via letter
submit1ed by Mr. Battlefield, approximately 4 weeks following the Corrunittee meeting. However, the record shows
that the application process was far from complete at the time this first objection was made.
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his application, without updating notification to the neighbors. See Kevs Citizens, 795 So.2d at
948; compare with Wentworth, 771 So.2d at 1282 (explaining that the agency's rules must
clearly signal when its decisional process is completed or at a point when it is appropriate for an
affected party to request formal proceedings; that an agency must grant affected parties a clear
point of entry, within a specified time after some recognizable event).
Additionally, although the Code is silent on when a matter should be removed from its
"consent agenda," it would appear that in any case in which a party objects to the development
and his or her substantive property rights are at issue, a quasi-judicial hearing should be held to
receive testimony and evidence. That would provide a "real opportunity to be heard." rd.; ~
also Massev, 842 So.2d at 145 (finding that procedural gaps in Chapter 162 [under which the
Board was created] must necessarily by filled "by the common-sense application of basic
principles of due process"); compare with Miami-Dade Count'! v. New Life Apostolic Church of
Jesus Christ. Ioc..:., 750 So.2d 738, 739 (Fla. 3d DCA 2000)(finding that the neighbors testimony
on proposed variance was factual, relevant and material, and that the Commission properly
allowed the neighbors to be heard).
Of obvious concern to Judge Johnston, as set forth above, is that the City "censored" the
record before both "appeals." The Court finds that neither the appeal to the Board or the hearing
officer, was truly an appeal, as no testimony or evidence was ever received by the City, and
several of the documents that Soboleski did submit to the City in an attempt to create a record
were unilaterally removed. See A1tchiler v. Dept. of Professional Regulation, 442 So.2d 349,
350 (Fla. l8t DCA 1983)(stating that an appeal has never been an evidentiary proceeding; rather,
it is a proceeding to review a judgment or order of a lower tribunal based upon the record made
before the lower tribunal based on the evidence and testimony presented to it.; see also Smiley \'.
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Greyhound Lines, Inc., 704 So.2d 204, 205 (Fla. 5th DCA I 998)(explaining that the trial court's
decision is clothed with the presumption of correctness "[b]ecause it is the trial court who has the
first-hand opportunity to hear and observe the witnesses as they testify" and is in "a superior
position to weigh the evidence and credibility of the witnesses").
In conclusion, the Court finds that the Final Order must be quashed, as Soboleski was
not afforded procedural due process in the proceedings below. For the sake of clarity on remand,
the Court also finds that the Development Order, as entered July 22, 2002, is not supported by
competent substantial evidence. IS As set forth above, the Development Order appears to rely on
the Staff Report, which contains several discrepancies and erroneous statements. It is also clear
that the Water and Navigation Report, prepared by the County's Department of Environment
Management, and the comments made by the City's Lead Planner, Mr. Parry, provide that
several criteria still needed to be met. The Court would suggest that the application process
begin anew, with the community development coordinator reviewing the application with the
community development committee, to ensure compliance with the Code, and then providing
lawful due process notice and hearing to those property owners whose substantive property
rights are at stake. See Code Sect. 4-302.B. (setting forth level one approval for flexible
development). 16
IS As Judge Johnston notes, there were no findings of fact made before the CDB. Witoout reaching this issue, the
Court finds that the "deviation" from the required dock criteria. of Section 3-60 lis more akin to an "exception"
which may require that the Board enter specific findings of fact upon which its ultimate action is taken. See Redner
v. City Council ofllle City ofTamoa, 2002 WL 32lC0836 (Fla. 13th Cir. App. Ct. Nov. 5, 2002), on remand,
Redner v. City of Tampa, 827 So.2d 1056 (Fla. 2d DCA 2002)(stating that "due process and equal protection
requires every final order entered by an administrative agency in the exercise of quasi-judicial functions to contain
specific findings offaet upon which ultimate action is taken); see also Viehich v. DHSMV. 799 So.2d 1069, 1074
(Fla. 2d DCA 2001 )(finding that, in the quasi-judicial conteKt, certiorari review works best when the lower tribunal
creates and maintains case-specific evidentiary records); Redner, 827 So.2d at 1059 (explaining the difference
between a variance and a special exception).
l6 The Court notes that the Coordinator, Ms. Tarapani, appeared to determine that Mariani's application was
complete and legally sufficient under the authority granted to her pursuant to Section 3-601.C.I.g. However, this
section must be construed in pari materia with the requirements set forth in Section 3-913.A.I.-6., general standards
for Level One approval, Section 4-202, application for development approval, and, Section 4-302,
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Therefore, it is,
ORDERED AND ADJlJDGED that the Petition for Writ of Certiorari is hereby granted
and the Final Order is quashed and this cause is remanded for action consistent with this order
and opinion.
DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this
day of December 2003.
ORIGINAL. SIGi'~~D
lRUECOPY .
DEe 0 5 ~QO~
IJfj.\JI[~ l', l,i,~,:_~/'~l?:"~'
CirGu~~. .J::rln(
DAVID A. DEMERS
Circuit Judge, Appellate Division
Copies furnished to:
Maxwell G. Battle, Jr., Esquire
622 Bypass Drive, Suite 100
Clearwater, FL 33764
Leslie ~':Dougla;-SIdes, Esquire
Post Offiqe Box4748
Clearwater', FC 33758-4748
Timothy A. Johnson, Jr., Esquire
Post Office Box 1368
Clearwater, FL 33757
Honorable J. Lawrence Jolmson
Administrative Law Judge
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-3060
application/approval by conununity development director. However, in construing these sections of the Code, the
more restrictive provisions apply. ~ Code Sect. 4-320,B., Level one approval for flexible development; see also
Code Sect. 8-101.0. Rules of construction.
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CITY OF
CLEARWATER
LONG RANGE PLANNING
DEVELOPMENT REviEW
HOUSING DMSION
NEIGHBORHOOD SERVICES
PLANNING DEPARTMENT
POST OFFICE Box 4748, CLEARWATER, FLORIDA 33758-4748
MUNICIPAL SERVICES BUILDING, 100 SOUTH MYRTIE AVENUE, CLEARWATER, FLORIDA 33756
TELEPHONE (727) 562-4567 FAX (727) 562-4576
August 29,2002
Ms. Deborah Groen Soboleski
191 Devon Drive
Clearwater, Florida 33767 F
RE: Development Order regarding case A~t 193 Devon Drive
-
Dear Ms. Soboleski:
This letter constitutes a Development Order pursuant to Section 4-206.D.6 of the Community
Development Code. On August 20,2002, the Community Development Board (CDB) reviewed
your appeal application of an approval of a Level One (Flexible Standard Development) decision
by the Community Development Coordinator to increase the length of a dock from 60 feet (50
percent of the width of the property) to 92 feet (76.6 percent of the width of the property), per
Section 3-601, under the appeal provisions of Section 4-501 of the Community Development
Code. The Community Development Board denied the appeal application because the appellant
did not show that the decision appealed from, misconstrued or incorrectly interpreted the
provisions of the Community Development Code. The decision of the Community Development
Coordinator was confirmed, as part of the approval of the consent agenda, by a majority of the
members of the Board.
Please be aware that an appeal of the CDB decision must be initiated within 14 days of the date
of the decision by the Board. The appeal period for your case will expire on September 3, 2002.
If you have any questions, please do not hesitate to call Lisa Fierce, Assistant Planning Director,
at 727-562-4561.
~~
Cynthia Tarapani, AICP
Planning Director
Cc: Leslie Dougall-Sides, Assistant City Attorney
Maxwell Battle, Jr. Esquire; agent for the appellant
E.D. Armstrong, agent for the applicant
S:\Planning Departlllen^C D /JIAPPEALS\Devon 193 Mariani dock\Devon 193 DEVELOPMENT ORDER. doc
BRllJ\ J. AU]\GST, IviAYOR-CO),C\iI~S10NER
ED HART, VICE MAYOR-CO~l'\lISSIONER \VHiTI\EY GI0\Y. CmiMISSIOi\ER
HOYT HA"\ULTON, CmIMISSIOI\ER BU.LJor:sm:. CmlMISSIOi\ER
"EQUAL EMPLOYMENT AND AFFIRMA1WE ACTION E~lPLOYER"
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CDB Meeting Date: August 20. 2002
Case Number: APP2002-07002
Agenda Item: El
CITY OF CLEARWATER
PLANNING DEPARTMENT
STAFF SUMMARY OF EVENTS
FIL~' E..~
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GENERAL INFORMATION:
OWNER:
Christopher C. Mariani
APPLICANTI
APPELLANT:
Deborah L. Groen Soboleski (191 Devon Drive)
APPLICANT'S
REPRESENTATIVE:
Maxwell G. Battle, Jr., Attorney
LOCATION:
193 Devon Drive
REQUEST:
Appeal of a Level One (Flexible Standard Development) decision
by the Community Development Coordinator who approved
certain deviations to the dock requirements for the property located
at 193 Devon Drive, under the appeal provisions of Section 4-501
of the Community Development Code.
BASIS OF STAFF'S DECISION:
This 0.32-acre site is located on the south side and terminus of Devon Drive, approximately
1,350 feet east of Harnden Drive. The site fronts on a channel off of Clearwater Harbor and is
currently vacant.
On January 18, 2002, Mr. Timothy Johnson, Jr., Esquire, filed an application for Flexible
Standard Development approval on behalf of Mr. Christopher C. Mariani (property owner) for a
dock. It was later amended and refiled on January 28, 2002. (Refer to Exhibit A.) This
application requested an increase in the permitted length of a dock from 60 feet to 101 feet, due
to the proximity of sea grasses. Following the DRC meeting of February 14, 2002, the applicant
submitted a second amendment to the application. The March 5, 2002 submittal included a letter
stating the overall length of dock would be 95 feet (refer to Exhibit B.) An April 14,2002 letter
and accompanying site plan included a 92-foot long dock (refer to Exhibit C).
Section 3-601.C.1.b of the Code provides that the length of docks and boatlifts that serve a
single-family dwelling shall not exceed 25 percent of the waterway or half of the width of the
property measured at the waterfront property line, whichever is less. In this case, the lot is 120
feet wide at the east, waterfront property line and the waterway is approximately 700 feet wide.
In this case, half of the lot width is used to determine permitted length of the dock and is 60 feet.
Staff Report - Community Development Board - August 20, 2002 - Case APP2002-07002 - Page 1
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The proposed dock was shown 128 feet from the extended east property line and 44 feet from the
extended west property line. The boatlift location was shown 30 feet from the west property line.
Section 3-601.C.1.g of the Code provides for deviations from dock requirements for single-
family (and two-family) dwellings. The Community Development Coordinator may grant
deviations as part of a Level One, Minimum Standard review, provided signed and notarized
statements of no objection are secured from both adjacent waterfront property owners. In the
event such statements cannot be obtained, deviations are reviewed under Flexible Standard
Development applications, based on one of the following criteria:
1) That the proposed dock will result in no navigational conflicts and the length of the
proposed dock will not exceed 25 percent of the width of the waterway; or
2) The proposed dock location needs to be adjusted to protect environmentally sensitive
areas; or
3) The property configuration precludes the placement of a dock in compliance with the
required dimensional standards; however, the proposed dock will be similar in
dimensional characteristics as surrounding dock patterns.
The applicant was not able to provide statement of no objection from both adjacent waterfront
property owners and applied as part of a Level One, Flexible Standard Development review.
Consent was provided from the adjacent property owner to the east ("left"), at 195 Devon Drive,
within the application submittal (Exhibit A). As part of his submission, the applicant provided
documentation from the Pinellas County Department of Environmental Management stating that
there are no navigational concerns associated with the proposed dock. It was also stated that the
proposed structure is more environmentally sensitive than the existing structure, reducing
negative environmental impacts to existing sea grasses. The Development Review Committee
(DRC) reviewed the application on February 14, 2002. There were no objections raised by the
DRC whose members include the Environmental Manager of the Public Works Administration
and Harbormaster.
The application was approved by the Community Development Coordinator (Planning Director)
through its designee (Assistant Planning Director) on July 22, 2002 (refer to attached Staff
Report and Development Order for case FLS 02-01-03, Exhibits D and E). It should be noted
that the Community Development Coordinator supervised the review of this application and the
decision made, as is done with all cases. During the Coordinator's absence from the office, the
Assistant Planning Director was designated to act on behalf of the Planning Director on all
matters, including the issuance of the Development Order. The application was approved with
the following bases and conditions:
Staff Report - Community Development Board - August 20, 2002 - Case APP2002-07002 - Page 2
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Bases for approval:
1. The proposal complies with the Flexible Standard Development criteria under the provisions
of Section 3-601.C.g;
2. The proposal, as amended, is in compliance with other standards in the Code induding the
General Applicability Criteria per Section 3-913; and
3. The development, as amended, is compatible with the surrounding area.
Conditions of approval:
1. That a building permit for the proposed dock only be issued concurrently with, or subsequent
to, building permit issuance for a principal, residential structure on the site;
2. That the proposed dock be relocated farther east (with the dock head centered on the
midpoint of the waterfront property line, as measured at the seawall) and constructed perpen-
dicular to the waterfront property line;
3. That the relocation of the dock meet all criteria under Section 3-601.C.1; and
4. That revised plans reflecting conformance with condition #2 be submitted with the building
permit application, to the satisfaction of staff.
APPEAL:
Section 4-504 of the Code, Community Development Board Appeals, states that appeals may be
filed from a Level One (Flexible Standard Development) approval from an abutting property
owner. This appeal was filed on July 26, 2002 by the abutting property owners to the west
(Deborah L. Groen Soboleski. - 191 Devon Drive). Refer to Exhibit F. The appeal was properly
filed.
AUTHORITY OF THE COMMUNITY DEVELOPMENT BOARD TO HEAR APPEALS:
The Community Development Board has the authority to hear appeals from Level One approval
decisions, including Flexible Standard Development applications, in accordance with Section 4-
501.A.2 of Community Development Code. In this case, the decision by the Community
Development Coordinator was the July 22, 2002 Development Order to the applicant's
representative, Timothy Johnson, approving the application for Flexible Standard Development.
Upon receipt of a notice of appeal/application from an abutting property owner, it shall be placed
on consent agenda of the next scheduled meeting of the Community Development Board. The
appeal may be removed from the consent agenda by a vote of at least four members of the Board.
If the appeal is not removed from the consent agenda by the Community Development Board, the
decision of the Community Development Coordinator (Planning Director), is confirmed as part
of the consent agenda by a vote of a majority of the members of the Board. If the appeal is
removed from the consent agenda, the Community Development Board shall review the
application, the recommendation of the Community Development Coordinator, conduct a quasi-
judicial public hearing on the application (per Section 4-206) and render a decision in accord
with Section 4-206.D.5. Due to notice requirements, should the appeal be removed from the
consent agenda, the full review of the CDB will be scheduled for the September 17, 2002 public
hearing.
Staff Report - Community Development Board - August 20, 2002 - Case APP2002-07002 - Page 3
.
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Pursuant to Section 4-504.C of the Community Development Code, in order to grant an appeal,
overturning or modifying the decision appealed from, the Community Development Board shall
find that based on substantial competent evidence presented by the applicant or other party:
1) The decision appealed from misconstrued or incorrectly interpreted the provisions
of the Community Development Code;
2) That the decision will be in harmony with the general intent and purpose of the
Community Development Code; and
3) Will not be detrimental to the public health, safety and general welfare.
L
Prepared by Planning Department staff: J.
Mark Parry, Planner
ATTACHMENTS:
Aerial Photograph of Site and Vicinity
Zoning Atlas Map
Exhibits A-F
S:\Planning Departmen^C D BlAPPEALS\Devon 193 Mariani dock\JJevon 193 STAFF REPORT appeal. doc
Staff Report - Community Development Board - August 20, 2002 - Case APP2002-07002 - Page 4
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APPEAL REQUEST
OWNER: Christopher C. Mariani I CASE: APP2002-07002
I
..- - --
SITE: 193 Devon Drive PROPERTY SIZE (ACRES): 0.19
------- i-________ ----
PIN: 08/29/15/04914/000/0310
ATLAS PAGE: 276 A
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APPEAL REQUEST
OWNER: Christopher C. Mariani
SITE: 193 Devon Drive
CASE: APP2002-07002
PROPERTY SIZE (ACRES): 0.19
PIN: 08/29/15/04914/000/0310
ATLAS PAGE: 276 A
S:\Planning Dcpartmcnt\C 0 B\APPEALS\Dc\'on 193 Mariani dock\^PP2002~07002 zoningMAP.PLlB