APP00-12-01
lZ-14-00; ~:~O""'IVI.l.Jldrlrll'l'iI
e CITY OF CLEAR~TER
APPLICATION FOR ADMINISTRATIVE APPEAL
pLANNING & DEVELOPMENT SERVICES ADl\tfiNISTRATION
MUNICIPAL SERVICES BUILDING, 100 soum MYRTI.E AVENUE, 2ad FLOOR
PHONE (727) 562-4567 FAX (727) 562-4576
ALL APPLICATIONS FOR APPEAL OF LEVEL 1 FLEXIBLE STANDARD APPRO V ALS MUST BE RECEIVED BY
THE PLANNING DEPART:MENT WITHIN FIVE DA YS OF THE DATE OF THE DECISION BEING APPEALED.
ALL OTHER APPLICATIONS FOR APPEAL MUST BE RECEIVED BY THE PLANNING DEPARTMENT W1TIDN 14
DAYS OF THE DATE OF THE DECISION BEING APPEALED.
APPELLANT AND AGENT INFORMATION:
APELl-ANT NAME
Ypapanti and Sevasti Alexiou/Frenchy's Restaurant
MAIUNG ADDRESS
7 Rockaway Street, Clearwater Beach, Florida 34630
PHONE NUMBER
727-449-2729
FAX NUMBER: 727-446-0588
MAIUNG ADDRESS
Ed Armstrong - Darryl Richards
Johnson, Blakely, Pope, Bokor Et AI., 911 Chestnut Street
AGENT NAME
PHONE NUMBER
727-461-1818, ext. 151
FAX NUMBER: 727-441-8617
APPEAL INFORMATION:
Community Development Board Decision on Case No. FLQO-07-25
DECISION BEING APPEALED:
Agenda Item D3
DATE OF DECISION
December 12, 2000
It is the Appellant's position that the Board wrongfully denied
BASIS FOR APPEAL
(Use additiDnal sheets
if necessary)
the application despite the appellant having conclusively
demonstrated compliance with all appropriate criteria. The Board
failed to follow essential re uirements of law
WITH YOUR APPI.ICATlON PLEASE SUBMIT:
A COpy OF THE DECISION BEING APPEALED;
NAMES, ADDRESSES AND CURRICULUM VITAE OF ALL EXPERT WITNESSES THAT WILL PRESENT INFORMATION AT THE MEETING;
COPY OF THE BASIS FOR THE APPEAL IN THE NATURE OF AN INITIAL BRIEF AND ANY EVIDENCE. INCLUDING TESTIMONY. AND
AFFIDAVITS. THE BRJEF MUST AT A MINIMUM STATE ALL GROUNDS FOR THE APPEAL, INCLUDING, BUT NOT LIMITED TO. THE LAW
BEING APPEALED AND ANY FACTS NECESSARY FOR THE INTERPRETATION OF THOSE LAWS.
I, the undersigned, acknowledge that all
representations made in this application
are true and accurate to the best of my
knowledge.
STATE OF FLORIDA, COUNTY OF PIN~L1At,
S.worn to and subscribed before me this 15 f' day of
:JJ-WY/~,-f.~-< Jtt.D., 1-9-;tyy") to me aRElfflt:-
. by ::-: J), irWfYl~l~n <;7 I who is personally
knOWf\-Ra:J produced !/ as
(~'lj(~;t>Y
Signature of property owner Dr representative
E. D. Armstrong III
..j) r . ;/ (~
~~j~ t, L
Notary public,
my commission expires:
UNOA A. CUNNINGHAM
MY COMMISSION # CC 952975
EXPIRES: July 4, 2004
Bonded Thill Notary Public Undelwrtlenl
Receip! No:
Date:
Line Items:
Case No
Payments:
Method
CITY
:~~~~?:v~
n;:::c,.2J. :100
CU/V,:;F~
TOTt.
Ct'JfJ\'
Nf13~~j62
500,,00
500.00
500.00
li+ri40 B
':':~'!;,:i~~;~:W~/l~",........,__",_ ~_ ,_=-__,,~_.-~,l~T~ "'~:"';:!';,'i':"Il~",._ ~ ,~"',<ThO'-:""",~",..U'"
1199825526
12/21/2000
.
Tran Code Description
-UNSAFE HOUSIN( Board of Adjustment & Appeals -
50,000.00 @ $0.01
Payer
FRENCHY'CORPORATE
1
e>1-~~"(':;""f1'.7':'0"'"f~~-:K:t~4f:f~3-r.~~~~i>"'.;,r;(o,',;~,_.~.~"
.
Revenue Account No.
010-00000-322108
Bank No Acct Check No
9171
TOTAL AMOUNT PAID:
Amount Due
$500.00
Amount Paid
$500.00
$500.00
r
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CITY RTTORNEY'S OFFICE
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FILE COpy
FAX MESSAGE
City of ClealWater, Florida
Office of the City Attorney
Phone Number (727) 562-4010
Fax Number (727) 562-4021
TO:
7275624021 P.01
Ralph Stone, Director of Planning, and Cyndi Tarapani
LOCATION:
Planning
FAX NO.:
4576
FROM:
Leslie K. Dougall~ides, Assistant City Attorney
DATE:
May 22. 2001
3/3bf
TIME:
NUMBER OF PAGES OF THIS MESSAGE (INCLUDING THIS PAGE):' =< /)
MESSAGE:
Attached for your information is a copy of the Final Order entered May 14, 2001 by Judge
Alexander re: Frenchv's v. City. DOAH Case No. 01-0272.
APP~
F1LE
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RECEIVED
MAY f 7 2001
CITY ATTORNEY
YPAPANTI and SEVASTI ALEXIOU, )
d/b/a FRENCHY'S ROCKAWAY )
~IU, )
)
Petitioners, )
)
VS. )
)
CITY OF CLEARWATER, )
)
Respondent, )
)
and )
)
HUNTER HOTEL COMPANY, )
)
Intervenor. )
)
Case No. 01-0272
MAY 2 2 2001
.~
FINAL ORDER
A hearing was held in this case" on March 27, 2001, in
Clearwater, Florida, by Donald R. Alexander, an Administrative
Law Judge of the Division of Administrative Hearings.
APPEARANCES
For petitioners: Darryl R. Richards, Esquire
E. D. Armstrong, III, Esquire
Johnson, Blakely, Pope, Bokor
Ruppel & Burns, P.A.
Post Office Box ll00
Tampa, Florida 3360l-1100
For Respondent: Leslie K. Dougall-sides, Esquire
Post office BoX 4748
Clearwater, Florida 33758-4748
For Intervenor: Steven O. Cole, Esquire
Harry S. Cline, Esquire
Macfarlane, Ferguson & McMullen
Post office BoX 1669
Clearwater, Florida 33757-1669
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STATEMENT OF THE ISSUE
The issue 18 whether Petitioners' application for site plan
app~oval for a proposed renovation and addition to their
restaurant should be approved.
PRELIMINARY STATEMENT
This matter began in July 2000, when Petitioners, Ypapanti
and Savasti Alexiou, doing business as Frenchy'S Rockaway Grill,
filed an application with Respondent, City of Clearwater, seeking
site plan approval for a proposed renovation and expansion of
their restaurant. After reviewing the application, the City of
Clearwater staff recommended that the Community Development Board
approve the application at its meeting held on November 21, 2000.
Despite a 3-2 vote in favor of the application, it failed since
four votes were needed for approval. The application was again
considered at a meeting held on December 12, 2000, and a 3-3 vote
was deemed to constitute a denial.
On December 15, 2000, petitioners filed an administrative
appeal contesting the decision of the Community Development Board
on the grounds that "the Board wrongfully denied the application
despite the appellant having conclusively demonstrated compliance
with all appropriate criteria," and that" [t]he Board failed to
folloW' (the) essential requirements of the law."
Pursuant to a contract between Respondent and the Division
of Administrative Hearings, the matter waS referred to the
Division of Administrative Hearings on January 19, 2001, with a
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request that an Administrative Law Judge be assigned to conduct a
hearing.
By Notice of Hearing dated January 30, 2001, a hearing was
scheduled on March 27, 2001, in Clearwater, Florida. Intervenor,
Hunter Hotel Company, which owns property adjacent to the
restaurant, was authorized to intervene in this matter on
February 23, 2001.
At the hearing, petitioners presented the testimony of
cynthia Tarpani, assistant planning director for the city of
Clearwater; Robert Pergolizzi, a certified planner with Florida
Design Consultants; Steven Klar, an architect; and Roy. Chapman, a
professional engineer. Also, they offered Petitioners' Exhibits
1-19, which were received in evidence. These exhibits include
the record of the meetings of the community Development Board
held on November 21 and December 12, 2000. Intervenor presented
the testimony of Larry Edger and Ken Hamilton, who both own
restaurants near petitioners' property; Kevin Dunbar, parks and
recreatioh director for the City of Clearwater; Bill Morris,
director of the marine and aviation department of the City of
Clearwater; Harry S. Cline, an attorney; and V. Gail Easley, a
certified planner and accepted as an expert in planning and code
interpretation. Also, it offered Intervenor's Exhibits 1-3,
which were received in evidence. Finally, the undersigned took
official recognition of the Community Development Board's rules
of procedure, and sections 2-801 through 2-803, 3-1401 through
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3-1410, 4-206, 4-401 through 4-405, and 4-505 of the City of
Clearwater Community Development Code.
The Transcipt of the hearing was filed on April 12, 2001.
Proposed Findings of Fact and Conclusions of Law were filed by
Respondent, Intervenor, and petitioners on April 23, 24, and 27,
2001, respectively, and they have been considered by the
undersigned in the preparation of this Final Order.
FINDINGS OF FACT
Based upon all of the evidence, the following findings of
fact are determined:
1. In this local land use dispute, Petitioners, Ypapanti
and Sevasti Alexiou, who operate a restaurant under the name of
Frenchy's Rockaway Grill, have appealed a decision by the
Community Development Board (Board) to deny an application to
renovate and expand their restaurant located at 7 Rockaway
Street, Clearwater Eeach, Florida. The Board, which is made up
of seven local residents, acts as the local planning agency for
Respondent, - City of Clearwater (City). 'Although the-City staff
supports the project, the City is technically opposed to the
application since the Board failed to approve the project by a
3-3 tie vote. In denying the application, the Board rejected the
city staff's recommendation that the application be approved.
2. Intervenor, Hunter Hotel Company, owns and operates a
hotel known as Clearwater Beach Hotel which is contiguous to, and
south of, Petitioners' property. It objects to the application
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on the grounds that "the criteria for the flexible development
approval were not met nor proved, [and] that the relief requested
[by Petitioners] is of such a magnitude that it is not warranted
and cannot be allowed under the Code.h As further clarified by
Intervenor, the City's parking shortage in the Beach area is the
"core issue on this appeal." until the City solves the parking
problem, . Interven<Dr suggests that there. should be. a moratpri1,1m on
development in the Beach area.
3. petitioners own and operate a popular and successful
one-story restaurant and bar on a O.38~acre lot at 7 Rockaway
street, Clearwater Beach, which fronts directly on the Gulf of
Mexico. The property is zoned as a part of the city's Tourist
District and is bounded by the Gulf of Mexico on the west, a
municipal parking lot to the north, a motel on the east, and the
Clearwater Beach Hotel on the south.
4. Due to the small size of their lot, Petitioners seek to
vertically expand their restaurant by adding a second story
consisting of 3,487 square feet, including an approximately 2,300
square foot open deck and 1,200 square feet of enclosed area.
Both sections will accommodate bar patrons and diners.
Petitioners also intend to remove and replace a 945 square foot
storage room attached to the south side of the building which is
structurally unsound. To accomplish these changes, Petitioners
will need "flexibility" in meeting setback and parking
requirements.
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5. Because more than 95 percent of the city is now "built
out," and very little land is vacant, the city has adopted
comprehensive infill criteria for non-conforming structures, such
as petitioners' restaurant. The criteria which apply to
Petitioners' project are found in section 2-803C. of the City of
Clearwater Redevelopment Code (Code) and allow flexibility in
promoting redevelopment and infill throughout the city, including
the Clearwater Beach area. As pointed out by city staff, infill
projects are often used on Clearwater Beach because there are so
many non-conforming structures in that area.
6. In determining whether a project should be given
flexibility as an infill project, the City evaluates the proposed
project against its infill criteria. Strict compliance with all
criteria is not required, but rather the criteria are weighed or
balanced collectively. If a proj ect cannot meet a ., significant
number of [criteria], or a significant one in a meaningful way,"
then an applicant "would have problems [with gaining approval]."
Once a project qualifies as an infill project, an applicant may
then use flexible development standards for setbacks, height,
size, and minimum off-street parking. In this case, Petitioners
seek flexibility for setback and off-street parking requirements.
7. As noted earlier, the main concern raised by Intervenor
centers around item 9. of the criteria, which reads as follow:
9. Adequate off-street parking in the
immediate vicinity according to the shared
parking formula in Division 14 of Article 3
will be available to avoid on-street parking
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in the immediate vicinity of the parcel
proposed for development.
Intervenor contends that this criterion was not satisfied, and
thus the project cannot qualify as an infill project.
8. In addition, in its Proposed Final Order, the City
contends that petitioners have failed to satisfy items 1. and 5.,
which read as follows:
1. The development or redevelopment of the
parcel proposed for development is otherwise
impractical without deviations from the use,
intensity and development standards;
5. Suitable sites for development or
redevelopment of the uses or mix of uses
within the comprehensive infill redevelopment
project are not otherwise available in the
City of Clearwater.
9. Table 2-803 of the Code establishes minimum off-street
parking requirements of 7 to 15 parking spaces per 1,000 square
feet for restaurants in the Tourist District. Therefore, a
restaurant of Petitioners' size (that was not an infill project)
would be required to have at least 47 off-street parking spaces.
In actuality, Pet.itioners have only 13, due to a variance having
been previously granted. Since petitioners intend to add around
3,400 square feet through the second floor addition, the Code
would normally require a minimum of 24 additional parking spaces,
or a total of 71. However, these off-street standards do not
apply to infill projects. Instead, another provision in Table 2-
803 of the Code provides that minimum off-street parking for
infill projects shall be "[d]et@rmined by the community
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development coordinator based on the specific use and/or ITE
[Institute of Transportation Engineers] Manual standards."
Therefore, using the guidelines in the foregoing provision, the
community development coordinator determines the number of
additional off-street parking spaces, if any, that an infill
project will require.
10. Because the City staff concluded that a parking study
would assist it in analyzing the specific use of the property, it
requested that Petitioners perform a parking study. The study
was conducted by Robert Pergolizzi, a certified planner, who has
performed a number of parking studies during his career.
11. The Code does not describe any criteria for a parking
study for an infill project. Therefore, the staff looked at
other sections of the Code in arriving at a methodology to be
used for the study. More specifically, it first considered
Section 2-803J.6.a., which provides in part that off-street
parking requirements can be relaxed if "the physical
characteristics of the proposed building are such that the likely
uses of the property will require fewer parking spaces per floor
area than otherwise required. II Because the restaurant sits
directly on the beach, the staff believed that the primary
destination of many of the customers was the beach, and not the
restaurant, and that the visit to the restaurant was a side trip
by the customers. Thus, the parking study methodology was
designed, in part, to confirm or disaffirm that assumption.
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12. section 2-803J.6.c. also provides flexibility in off-
street parking requirements if j'adequate parking is available on
a shared basis as determined by all existing land uses within
1,000 feet of the parcel proposed for development, or parking is
available through any existing or planned and committed parking
facilities." The staff used this section of the Code to
determine that 1,000 .feet was. an appropriate distanc~ to analyze
available parking for a restaurant. Therefore, Pergolizzi was
directed by the staff to analyze available parking within 1,000
feet of the restaurant.
13. Pergolizzi conducted his study on August 25 and 26,
2000, the Friday and Saturday which preceded the Labor Day
holiday weekend. It is undisputed, and the parties have
stipulated, that Pergolozzi conducted the study entirely
consistent with the agreed methodology. The study confirmed that
the primary destination of 49 percent of the restaurant's
customers was the beach, and not the restaurant. In other words,
the expansion would not affect the parking demand generated by
almost one-half of the customers. The study also confirm@d that
there was available parking within 1,000 feet of the restaurant
to accommodate not only the existing business, but the proposed
expansion as well.
14. As noted above, Table 2-803 of the Code required that
the community development coordinator determine the minimum off-
street parking after consideration of the specific proposed use
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and/or the ITE Manual standards. Here, the city staff looked at
the specific use, the ITE Manual standards, and the parking study
to determine the minimum off-street parking required for the
restaurant. It concluded that there was available parking within
1,000 feet of the restaurant and that no additional parking
spaces were requ~red. The community development coordinator
concurred with the results of the study and analysis and likewise
determined that the minimum off-street parking for the project
were the existing 13 spaces. This determination was wholly
consistent with the requirements of the Code.
15- In recommending to the Board that the project should be
given flexibility as an infill project, the staff's report
contained the following conclusion:
The proposal is in compliance with the
standards and criteria for flexible
development approval, with maximum
development potential, requirements of the
Comprehensive Infill Redevelopment Projects,
and with all applicable standards of the
community Development Code.
A more detailed analysis of how each of the ten criteria were
satisfied is found in Petitioners' Exhibits 9 and 14 received in
evidence. At the hearing on March 27, 2001, the City'S assistant
planning director also established that the proposed expansion
and renovation complied with all applicable standards of the
Code.
16. Intervenor's expert witness, Gail Easley, a certified
planner, questioned whether the methodology used by Pergolizzi
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complied with the Code. More specifically, she contended that
the City was required to determine minimum off-street parking for
infill projects in the manner described in section 2-803C.9.
That section provides that" [a]dequate off-street parking in the
immediate vicinity according to the shared parking formula in
Division 14 of Article 3 will be available to avoid on-street
parking in ,the immediate vicinity of the ,parcel proposed fol:'
development." If this contention were true, however, it would
render meaningless the provision in Section 2-803C.8., which
provides that" [f]lexibility in regard to lot width, required
setbacks, height and off-street parking are justified by the
benefits to community character in the immediate vicinity of the
parcel proposed for development and the City of Clearwater as a
whole." In other words, there would be no flexibility for off-
street parking as permitted by that section. This would be
contrary to the very purpose of infill projects.
17. witness Easley's interpr@tation,isalso inconsistent
with Table 2-803, which states that "minimum. off-street parking
will be determined by the community development coordinator based
on the specific use and/or I~E Manual standards." Under her
interpretation of the Code, the community development coordinator
would have no right to determine minimum off-street parking for
infill projects based on the specific use and/or ITE Manual
standards, despite clear language in the Code to the contrary.
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18. More importantly, the criteria in Section 2-803C.,
including item 9. r are used to determine whether a project should
be considered an infill redevelopment project under the Code.
Item 9. is simply one of those criteria, and it does not
establish minimum off-street parking requirements for an infill
project.
19. Witness Easley also opined that it was inappropriate
for the parking study to consider on-street parking. However,
the Code does not prohibit the community development coordinator
from requesting a parking study which includes on-street parking.
It only requires that he consider the specific use and/or ITE
manual standards when determining off-street parking for an
infill project. Other contentions that the methodology was
flawed, including a concern about the date and time of the study
and the use of 1,000 feet as a measuring stick for available
parking, have been considered and found to be without merit.
20. A contention was also made that certain other infil!
criteria were not met. However, there was no evidence to support
these contentions, and the more persuasive evidence supports a
finding that all criteria have been satisfied, and that
petitioners qualify as an infill project. The undersigned has
also considered the testimony of the owners of two competing
restaurants who object to the pToject. While they contended that
the lack of parking motivated their opposition to the
application, it is fair to infer from their testimony that they
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object mainly because they fear that Petitioners may capture some
of their business "through an expansion of their restaurant.
21. Finally, in its Proposed Final Order, the City has
contended that Petitioners have failed to satisfy a general
standard contained in Section 3-913A.6., which requires that an
applicant ensure that:
[tJ he design of the proposed development
minimizes adverse effects, including visual,
acoustic and olfactory and hours of operation
impacts, on adjacent properties.
Given the modifications agreed to by Petitioners in the following
Finding of Fact, the requirements of this section have been met.
22. In the nature of an affirmative defense, petitioners
have raised the issue of equitable estoppel and contend that
Intervenor should be estopped from opposing the application. The
facts underlying this argument are as follows. On November 21,
2000, the Board heard testimony and considered the application
for the first time. At that meeting, Intervenor's counsel
represented to the Board that ftmy client's concern is not the
parking. My client's concern is because of proximity of noise
and light intrusion." In light of these concerns, counsel for
Petitioners and Intervenor reached an agreement wherein
petitioners agreed to limit the addition to the northern one-half
of the existing building, construct an S-foot concrete block wall
on the south property line between the restaurant and the hotel,
close the upstairs addition at 10:00 p.m. on week nights and
11:00 p.m. on Fridays and Saturdays, place no outside speakers
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and allow no live music on the upstairs addition, and direct
upstairs lighting away from the hotel. With these
accommodations, counsel for the hotel represented to the Board
that "if [the Board] approve[s] this, you have addressed our
primary areas of concern.h
23. After the close of public comments, the Board voted to
approve the application by a 3-2 vote. Because four votes are
required to approve an application, and one member was absent
from the meeting, the matter was continued to the next meeting on
December 12, 2000.
24. By letter sent to Petitioners' counsel on December 5,
2000, Intervenor's counsel identified the "commitments at the
preceding hearing, Which [Petitioners were] willing to make to
the Clearwater Beach Hotel." Upon receipt of that letter,
Petitioners advised the City by letter that they were in
agreement with Intervenor's counsel that "these are the
conditions agreed to at the last CDB meeting, which shall be
binding upon my client. II
25. Notwithstanding earlier representations, by letter
dated December 7, 2000, counsel for Intervenor indicated that
lithe owners of Clearwater Beach Hotel have instructed us to
object to the pending application. upon further review, prompted
by the renderings, the magnitude of this project is simply too
great for the size of the property." The letter further stated
that it was to be considered "as withdrawal of our prior letter
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and position of 'no objection, '" and that Intervenor would attend
the December 12. hearing "to formally object."
26. Petitioners have further contended that Board member
William Johnson had ex parte communications with some of his
neighbors concerning the merits of this application, and this
constituted a departure from the essential requirements of the
law. Section 4-206D.2.. of :the Code provides that "no ,member of
the community development board or the city commission shall
engage in any ex parte communications with any person in regard
to the substance of a quasi-judicial matter which is to be
considered by the board or commission, as the case may be." If
such communications occur, Section 4-206D.3.a. requires that a
member disclose these communications at the meeting. There is no
record of any disclosure being made.
27. At the first Board meeting on November 21, 2000, member
Johnson had moved for approval of the application. Without a~y
explanation, at the second meeting on December 12, 20001 he voted
against the application.
28. Member Johnson did not testify at hearing to confirm or
deny Petitioners' allegation of wrongdoing. However, witness
Pergolizzi testified that he spoke with member Johnson just after
the December 12 meeting, at which time member Johnson allegedly
admitted that he had such conversations with his neighbors and
was sorry for his change of vote. But the out-of-court
statements of member Johnson are hearsay in nature, do not
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supplement or explain any other competent evidence on this issue,
and they cannot form the basis for a finding.of fact.
CONCLUSIONS OF LAW
29. The Division of Administrative Hearings has
jurisdiction over the' subject matte~ and the parties hereto
pursuant to Section 4-505 of the Code.
30. Section 4.S0SC. of the Code prescribes the burden of
proof upon an appellant (Petitioners):
The burden shall be upon the appellant to
show that the decision of the community
development board cannot be sustained by the
evidence before the board and before the
hearing officer, or that the decision of the
board departs from the essential requirements
of law.
31. petitioners argue that the Board's decision to deny the
application cannot be sustained by the evidence before it, and
that its decision constituted a departure from the essential
requirements of the law. On the first point, they argue that the
evidence clearly supports a decision in their favor. On the
second point, and citing the case of American Infoage, LLC v.
City of Clearwater, DOAR Case No. 00-0999 (DOAH, Aug. 30, 2000),
Petitioners assert that the ex parte communications of member
Johnson, at a minimum, entitle them to a new hearing on their
application.
32. The Board's decision to deny the application on
December 12, 2000, cannot be sustained by the evidence before it.
The evidence clearly shows that petitioners met all infill
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criteria in section 2-803C., and that their project qualifies as
an infill project. Objections lodged by Intervenor are either
based on a misinterpretation of the Code, or are not supported by
the evidence. Therefore, the earlier decision should be
reversed, and the application granted.
33. Petitioners have also contended that the ~ parte
communications by Board member Johnson constitute a departure
from the essential requirements of the law and, at a minimum,
entitle them to a new hearing on their application. Even if this
allegation were true, the issue is now moot, given the conclusion
reached above. Further, the allegation is based on hearsay
testimony, and petitioners have not claimed that, nor shown how,
the out-of-court statement would be admissible in a civil action.
See, e.g., Harris v. Game and Fresh Water Fish Comm., 495 So. 2d
806, 808 (Fla. 1st DCA 1986); Section 120.57(1) (c), Florida
Statutes (2000). Finally, although the findings in the Final
Order are not clear on who said what and when, the case of
American Infoage is distinguishable since, unlike here, there was
apparently competent evidence of undisclosed improper
communications by Board members and a school superintendent
(Final Order, page 17) .
34. In light of the above conclusions, it is unnecessary to
reach the issue of whether Intervenor should now be estopped from
opposing this application. Even if Intervenor were estopped, the
City would still oppose the applicationr and Petitioners would
17
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7275624021 P.19
MAY-22-2001 15:53
CITY ATTORNEY'S OFFICE
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still be required to show that their application should be
approved.
35. Finally, the five conditions agreed to. by petitioners
and Intervenor prior to the December 12, 2000, meeting, as
described in Finding of Fact 22, should be incorporated into the
site plan approved herein.
DISPOSITION
Based on the foregoing Findings of Fact and Conclusions of
Law, it is
ORDERED that the decision of the Community Development Board
on December 12, 2000, is reversed, and petitioners' application
is approved.
i Ll~
DONE AND ORDERED this ~ day of May, 2001, in
Tallahassee, Leon County, Florida.
frDJ IE & IE D W IE lli1
un MAY 2 Z 2001 @j
PLA
dtJN~~ar~~~~~~ ves
'~((~
DONALD R. ALEXANDE
Administrative La Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
www.doah.state.fl.us
Filed with the Clerk of the
Division\.of Administrative Hearings
this \~~~ day of May, 2001.
18
MAY-22-2001 15:53
CITY RTTORNEY'S OFFICE
7275624021 P.20
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COPIES FURNISHED:
Cynthia Goudeau, City Clerk
City of Clearwater
Post Office Box 4748
Clearwater, Florida 34618-4748
Leslie K. Dougall-Sides, Esquire
Post Office Box 4748
Clearwater, Florida 34618-4748
Darryl R. Richa'rds, Esquire
E. D. Armstrong, III, Esquire
Johnson, Blakely, Pope, Bokor,
Ruppel & Burns, P.A.
Post Office Box 1100
Tampa, Florida 33601-1100
Harry S. Cline, Esquire
Stephen O. Cole, Esquire
Macfarlane, Ferguson & McMullen
Post Office BoX 1669
Clearwater, Florida 33757-1669
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this Final Order is entitled
to judicial review by common law certiorari in circuit court. See
Section 4-S0SD., City of Clearwater Community Development Code.
1m ~ & ~ II fYl fE l1il
WI /.fA Y 2 l 2001 @I
~ . IN & DElli 'I
ITVOF Ct~~W:t1~I svcsf
19
TOTAL P. 20
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
YPAPANTI AND SEVASTI ALEXIOU/FRENCHY'S
RESTAURANT,
Petitioner,
CITY OF CLEARWATER,
",'
Case No. 01-0272
2..547 z.. 7/S-<\ w, va-..,
3 - 2.." 'O( I Z' /,0 ?""',
vs.
Respondent.
SUBPOENA AD TESTIFICANDUM
TO: Lisa Fierce
IGQ ,South Myrtle-Avenue
Clearwater, FL 33756
YOU ARE COMMANDED to appear at City Hall, Commission Chambers .:
Third Floor, 112 S. Osceola Ave., Clearwater, FL
to testify at a deposition/final(hearing) (strike
one) at 10:30 o'clock ~.m., on the 27th day of March , 200~.
YOU SHALL RESPOND to this Subpoena as directed unless excused by the
party who requested issuance of the Subpoena or by order of the Division of
Administrative Hearings.
ISSUED this 20th day of March, 2001, in Tallahassee, Leon County,
Florida.
A
~"-'"' {L a;~
DONALD R. ALEXANDER
Administrative Law Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
www.doah.state.fl.us
THIS SUBPOENA HAS BEEN ISSUED AT THE REQUEST OF:
E. D. Armstrong, III, (727) 441-0900
Post Office Box 1368
Clearwater, Florida 33758-1368
fiLE COpy
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CITY OF CLEARWATER
POST OFFICE Box 4748, CLEARWATER, FLORIDA 33758-4748
Crrr' HAll, 112 Soum OSCEOLAAVE:-.1UE, CLEARWATER, FLORIDA 33756
TELEPHO:-.1E (727) 562-4010 FAX (727) 562-4021
January 18, 2001
Cr1Y ATIORNEY'S OFFICE
James W. York, Deputy Chief Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee
Tallahassee, Florida 32399-1550
Re: Appeal of Community Development Board Decision Denying the Appellant's
Request for a Flexible Development Approval to Reduce the Front and Rear
Setbacks, Reduce Number of Parking Spaces from 71 to 13, and Reduce
Required Number of Handicap Spaces
Case No. FL 00-07-25
Dear Judge York:
Enclosed is the original and one copy of the file documents together with a verbatim
cassette recording of the proceedings regarding the above-referenced case before the
Community Development Board, whose decision is being appealed by the applicant,
Ypapanti and Sevasti Alexiou/Frenchy's Restaurant
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 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.
Please advise the parties as soon as an administrative law judge is assigned to this
case.
Ifr-n'~ ~or ;,,: .:.:.-. ~.- -~ ~ r:~ .--
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Very truly yours,
~M: 'k fJ {I~;-
Leslie K. DOUgall-Si~
Assistant City Attorney
PU\::
., ~: DE\':~ ,~i~.':~~i[J'iT
" r:ovlr';>
LDS:grh
Enclosures
Copies to:
E. D. Armstrong, Esquire
City Clerk
Planning
l....."."'....._,..~,_.
BRIAN J. ACKGST, MAYOR-COMMISSIONER
J.B. JOHNSON, VICE MAYOR-CO~I~IISSIONER
ED HART, COMMISSIONER
*
11 rD-olZS
FlE Copy
BOB CLARK, COMMISSIONER
ED HOOPER, COMMISSIONER
ONE Cr1Y, O:\E FCTURE.
"EQUAL E~IPLOY!vIENT AND AFFIRMATIVE ACTION EMPLOYER"
e
-
12/28/00
Note to Frenchy's Appeal File:
1. 12/27/00 - Delivered original Appeal and copy for Legal to City Clerk's office.
2. 12/28/00 - Prepared and delivered to Leslie Dougall-sides copy of entire
Frenchy's File FL 00-07-25.
3. 12/28/00 - Faxed Harry S. Cline copy of Appeal Filed by Frenchy's.
1:;99" Sand~
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Cc:
Subject:
Horne, Bill
Wednesday, December 27,20002:03 PM
Fierce, Lisa; Stone, Ralph; Hardin, Cyndi; Dougall-Sides, Leslie; Brumback, Garrison; Akin,
Pam; Keller, Bob; Goudeau, Cyndie
Harriger, Sandy; Ruscher, Amy; Parry, Mark; Givens, Ryan; Schodtler, John; Dittmer, Arden
RE: frenchy's appeal
From:
Sent:
To:
Lisa,
FYI, I continue to get interesting feedback on the CDB decision. Some of our most vocal
critics were surprised to learn what the staff recommendation was in the case. Many of the
viewpoints reflected a 50/50 split for and against. What was also apparent was the
assumption that the CDB is "city staff". The CDB role may need to be highlighted through
various media so that our citizens and residents understand the different roles the CDB
and staff play in addressing a host of development/planning issues. The one thing that I
want us to do periodically is to keep the Planning and Development and City Manager's
Office centered on the right planning issues for our city's future.
Bill
-----Original Message-----
From: Fierce, Lisa
Sent: Wednesday, December 27, 2000 1:09 PM
To: Stone, Ralph; Hardin, Cyndi; Dougall-Sides, Leslie; Brumback,
Garrison; Horne, Bill; Akin, Pam; Keller, Bob; Goudeau, Cyndie
Cc: Harriger, Sandy; Ruscher, Amy; Parry, Mark; Givens, Ryan; Schodtler,
John; Dittmer, Arden
Subject: frenchy's appeal
fyi:
an appeal has been filed on behalf of the frenchy's rockaway restaurant in response to the
site plan application that was denied by the cdb on december 12. the application is being
forwarded to leslie's office and to cyndie's office.
leslie - let me know what information you need from our files.
happy new year all!
1
e
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Harriger, Sandy
Cc:
Subject:
Brumback, Garrison
Wednesday, December 27,20001 :46 PM
Fierce, Lisa; Stone, Ralph; Hardin, Cyndi; Dougall-Sides, Leslie; Horne, Bill; Akin, Pam; Keller,
Bob;Goudeau,Cynd~
Harriger, Sandy; Ruscher, Amy; Parry, Mark; Givens, Ryan; Schodtler, John; Dittmer, Arden
RE: Frenchy's appeal
From:
Sent:
To:
Lisa, as this moves through the appeals process, please keep us informed of the status.
Happy New Year to you too!
Garry Brumback
562-4053
-----Original Message-----
From: Fierce, Lisa
Sent: Wednesday, December 27, 2000 1:09 PM
To: Stone, Ralph; Hardin, Cyndi; Dougall-Sides, Leslie; Brumback,
Garrison; Horne, Bill; Akin, Pam; Keller, Bob; Goudeau, Cyndie
Cc: Harriger, Sandy; Ruscher, Amy; Parry, Mark; Givens, Ryan; Schodtler,
John; Dittmer, Arden
Subject: frenchy's appeal
fyi:
an appeal has been filed on behalf of the frenchy's rockaway restaurant in response to the
site plan application that was denied by the cdb on december 12. the application is being
forwarded to leslie's office and to cyndie's office.
leslie - let me know what information you need from our files.
happy new year all!
1
e
e
Harriger, Sandy
From:
Sent:
To:
Subject:
Fierce, Lisa
Wednesday, December 27,20003:11 PM
Harriger, Sandy
FW: frenchy's appeal
/-po{\(L
,;------
could you please work out leslie's request with her? perhaps she could borrow the file or
you could copy. thanks for attending to this.
-----Original Message-----
From: Dougall-Sides, Leslie
Sent: Wednesday, December 27, 2000 1:59 PM
To: Fierce, Lisa
Subject: RE: frenchy's appeal
I will need a copy of your entire file. Thanks.
-----Original Message-----
From: Fierce, Lisa
Sent: Wednesday, December 27, 2000 1:09 PM
To: Stone, Ralph; Hardin, Cyndi; Dougall-Sides, Leslie; Brumback,
Garrison; Horne, Bill; Akin, Pam; Keller, Bob; Goudeau, Cyndie
Cc: Harriger, Sandy; Ruscher, Amy; Parry, Mark; Givens, Ryan; Schodtler,
John; Dittmer, Arden
Subject: frenchy's appeal
fyi:
an appeal has been filed on behalf of the frenchy's rockaway restaurant in response to the
site plan application that was denied by the cdb on december 12. the application is being
forwarded to leslie's office and to cyndie's office.
leslie - let me know what information you need from our files.
happy new year all!
Se..n+- c.up1 ~-f-
~---h re.- ~ \ e..-
<Or'\ \L\"L<rloo.
p.
1
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Harriger, Sandy
From:
Sent:
To:
Subject:
Fierce, Lisa
Wednesday, December 27,20001 :11 PM
Harriger, Sandy
FW: frenchy's appeal
/ DoA<--
regarding the appeal, please send to sue diana's attention in addition to leslie dougall-
sides. thanks
(need appeal number for file)
-----Original Message-----
From: Goudeau, Cyndie
Sent: Wednesday, December 27, 2000 1:09 PM
To: Fierce, Lisa
Subject: Out of Office AutoReply: frenchy's appeal
I will be out of the office Wednesday, December 20, 2000, until Wednesday, January 3,
2001. If you need assistance prior to my return please contact Sue Diana (e-mail or 562-
4096) or call the City Clerk Department at 562-4093.
o .: ':3 .L.- COP,
c9-v \ ~ 2-'7
""to ~\e..r\L \2-I.J~c
>>.
1
e
e
Harriger, Sandy
Cc:
Subject:
Fierce, Lisa
Wednesday, December 27,20001 :09 PM
Stone, Ralph; Hardin, Cyndi; Dougall-Sides, Leslie; Brumback, Garrison; Horne, Bill; Akin,
Pam; Keller, Bob; Goudeau, Cyndie
Harriger, Sandy; Ruscher, Amy; Parry, Mark; Givens, Ryan; Schodtler, John; Dittmer, Arden
frenchy's appeal
From:
Sent:
To:
fyi:
an appeal has been filed on behalf of the frenchy's rockaway restaurant in response to the
site plan application that was denied by the cdb on december 12. the application is being
forwarded to leslie's office and to cyndie's office.
leslie - let me know what information you need from our files.
happy new year all!
1
.
I~NSMISSION VERIFICATION REPORT
TIME 12/28/2000 11:30
NAME PLAN
FAX 7275524575
TEL 7275524557
DATE, TIME
FAX ~m. /NAME
DURA TI ON
PAGE(S)
RESULT
MODE
12/28 11:29
94428470
00:01:23
03
OK
STANDARD
ECM
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FAX MESSAGE
CITY OF CLEARWATER
PLANNING & DEVELOPMENT SERVICES
ADMINISTRATION
100 S. MYRTLE AVE.
CLEARWATER" FL 33756
(727) 562-4567
FAX (727)562-4576
TO:
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FAX:
FROM:
DATE:
MESSAGE:_H~..r \4ovr re.e; .;e..r t- - "'-e.r~ ~ ~ c-. C-o f "-(
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NUMBER OF PAGES(INCLUDING THIS PAGE) 3
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Mr. Parry reviewed the request. This case was continued from the
November 21, 2000 COB (Community Development Board) meeting after a lengthy
discussion. The COB voted 3:2 to approve the application. As 4 votes are needed
to take action, the item was continued. Minor changes to the staff report reflect
the design change for the south elevation. The proposal also includes the requisite
handicap parking space.
The 0.38-acre site, fronting the Gulf of Mexico and Rockaway Street,
features a 6,723 square-foot, restaurant and 210 square-foot storage building,
which is 3.7 feet from the south rear property line and 2.5 feet from the east side
property line. The restaurant sits on the rear property line and is 1.7 feet from the
front property line. The parking lot, on the east property line, has 13 parking
spaces.
The site is in a desirable commercial neighborhood. The restaurant's
entrance, a covered, wood deck with ramp on the north side of the building,
encroaches 5.3 feet into the public right-of-way. A partially covered wood deck is
attached to the building, approximately 20 feet from the west property line.
To improve customer service, the business owners wish to expand the
restaurant by adding a 3,487 square-foot, second story with approximately 1,200
square-feet of open deck and 2,300 square-feet of enclosed space. Both sections
will accommodate bar patrons and diners; the enclosed portion will include bar
seating. The addition will accommodate 92 diners and 32 bar patrons and increase
the building's size to 10,210 square-feet and the total number of seats to 372.
The applicants also propose to remove and replace the storage room.
The second-floor addition and replaced storage room will occupy the current
foundation. The project also will renovate and improve the restaurant's interior and
exterior. An eight-foot extension of a stucco parapet wall on the south side of the
building, as measured from the finished floor of the new second story, has been
added to buffer impacts to the abutting Clearwater Beach Hotel to the south. The
existing sign will be removed during construction but later reattached. The
applicants have not proposed additional signage.
The applicants request reducing the required front and rear setbacks from 10
feet to zero feet and the number of required parking spaces from 71 to 13 spaces.
The restaurant currently is required to have 47 parking spaces. The proposed
addition will require an additional 24 spaces. The on-site parking lot will be
restripped to include the required handicap space, as required by Code.
Before the parking analysis was done, staff concurred with its methodology.
Florida Design Consultants has submitted a parking analysis, which includes a
survey of 100 Frenchy's customers, and a parking accumulation study performed
on a Friday and Saturday between 11 :00 a.m. and 10:00 p.m. of Frenchy's
parking lot, Municipal Lots #36 and 38, on-street parking along Bay Esplanade, on
Mandalay Avenue between Baymont Street and Bay Esplanade and along Rockaway
Street.
Mcd 1200
5
12/12/00
The study indicated 309 parking spaces are within 1,000 feet of the
restaurant and that at least 45 parking spaces are available within the study area at
any given time, including peak times. The study also indicates that the majority of
restaurant patrons use the City-owned, metered parking immediately to the north.
This parking lot serves beach visitors and patrons of other area businesses. Of the
100 customers surveyed, 49 stated their primary destination was the beach and
that eating at Frenchy's was a secondary purpose. This data indicate dual reasons
for restaurant patrons to visit the area and that the use of shared parking is valid for
this business.
The DRC reviewed the application and supporting materials on August 10,
2000. Staff recommends approval. Ms. Fierce stated the site only requires one
handicap parking space. The applicants restriped the lot to meet that requirement.
Harry Cline, representative for the Hunter family, owners of the Clearwater
Beach Hotel, said upon further review of the plan, he opposed the proposed
expansion. In response to a question from Mr. Cline related to the City's land use
plan, Mr. Parry stated the western portion of the subject property is designated
recreation open space.
Mr. Gildersleeve moved to accept Mr. Cline's co py of the City's land use
plan into the record. The motion was duly seconded and carried unanimously.
Mr. Stone said the PPC (Pinellas Planning Council), not staff, interprets fine
lines related to open space.
In reference to minimum parking space requirement for this expansion
project, Mr. Cline said staff had based that figure on the scale minimum for parking
requirements for this type of beach business. He said the scale maximum would
have more than doubled the number of parking spaces required. Mr. Parry stated
staff had based the parking requirement on the restaurant's pedestrian oriented
location. In response to questions from Mr. Cline, Mr. Parry said the applicants plan
improvements to the building's architecture and exterior and wish to expand to
better serve the community and tourists. He knew of no greater parking variance
request since he began his employment with the City.
Robert Pergolizzi, representative for the applicant, said staff had approved
the methodology used to conduct the study of parking within 1,000 feet of the
restaurant, which was done on August 25 - 26, 2000, between 11 :00 a.m. and
10:00 p.m. He said traffic in August is well above the annual average, but below
the peak in late March. In response to questions from Mr. Cline, Mr. Pergolizzi said
the football game in Tampa and 45-minute thunderstorm Saturday evening during
the study did not affect the availability of parking.
Roy Chapman, representative for the applicant, said he is a professional
engineer and that the parking study is complete and accurate. He recommended
approval. Mr. Cline objected to Mr. Chapman's conclusions.
Mcd1200
6
12/12/00
Ed Armstrong, representative for the applicant, said the applicant has
demonstrated nearby parking is adequate for the expanded use. He said the
applicant intends to honor conditions agreed to previously.
Ken Hamilton, owner of the nearby Palm Pavilion restaurant, opposed the
request. In response to questions, he said his observations on the beach parking
situation since 1967 have been as a lay person, he had no hard evidence to refute
the parking study, and he never had performed a scientific parking study.
Discussion ensued regarding the weight of lay testimony. Larry Edger, representing
the nearby Cooters restaurant, also opposed the request.
Mr. Cline said when he previously had agreed to the expansion and related
conditions, he had not yet seen drawings of the proposed expansion and was
unaware of the vast scale of the project. He said the expansion is huge and would
intrude on the Clearwater Beach Hotel with light, noise, and unpleasant visuals. He
said the application is defective as no proof of ownership for the vacated roadway
had been presented. He questioned the validity of the parking study and requested
the board deny this request.
Assistant City Attorney Leslie Dougall-Sides said the City's zoning atlas
indicates the roadway is zoned "T." Reference to the vacation ordinance indicates
the entire width of the roadway was vacated.
Mr. Stone said the applicant is aware of the parking shortage on the beach.
Discussion ensued regarding proposed parking garage projects. Staff has determined
adequate shared parking is available within 1 ,000 feet of the restaurant. Mr. Stone
said the study seems to indicate additional spaces will be available even if the
expansion occurs.
Mr. Armstrong stated the applicant had provided substantial competent
evidence that enough parking is available to handle the proposed expansion. He
said three expert opinions recommended approval: 1) Mr. Pergolizzi; 2) Mr.
Chapman; and 3) staff.
Member Gildersleeve moved for the CDB to approve the request for flexible
development of a Comprehensive Infill Redevelopment Project to reduce the front
setback from 10 feet to 0 feet, reduce the rear setback from 10 feet to 0 feet and
reduce the required number of parking spaces from 71 spaces to 13 parking spaces
at Sec 32-28-16, part of M&B 43.06. The motion was duly seconded. Members
Gildersleeve, Petersen and Chair Figurski voted "Aye" ; Members Johnson, Moran,
and Plisko voted "Nay." Member Mazur abstained.
Ms. Dougall-Sides stated the board's rules do not address tied votes. She
recommended the CDB follow Roberts Rules and construe a tie as a denial.
Consensus was to follow Roberts Rule and construe the tie as a denial.
Motion failed.
Mcd 1 200
7
1 211 2/00
COMMUNITY DEVELOPMENT BOARD MEETING
CITY OF CLEARWATER
November 21, 2000
Not approved
Present: Gerald Figurski
Edward Mazur, Jr.
William Johnson
Shirley Moran
Carlen A. Petersen
Alex Plisko
Chair - arrived 2:27 p.m.
Vice Chair - departed 2: 17 p.m.
Board Member
Board Member
Board Member
Board Member
Absent:
David Gildersleeve
Board Member
Also Present: Leslie Dougall-Sides
Ralph Stone
Cynthia Hardin
Lisa L. Fierce
Patricia O. Sullivan
Assistant City Attorney
Planning Director
Assistant Planning Director
Development Review Manager
Board Reporter
The Chair called the meeting to order at 1 :00 p.m. at City Hall, followed by
the Invocation and Pledge of Allegiance.
To provide continuity for research, items are in agenda order although not
necessarily discussed in that order.
ITEM A - REQUESTS FOR CONTINUANCE/RECONSIDERATION
Cases: FL 00-08-32 - 443 East Shore Drive (Portofino Villaqe); LUZ 00-08-10 -
1106 Druid Road South (Chapman); and ANX 00-08-20 - 2217 South Laqoon Circle
(Shaw)
Development Review Manager Lisa Fierce reviewed the requests for
continuance.
Member Johnson moved to continue Case FL 00-08-32 at 443 East Shore
Drive and Case LUZ 00-08-10 at 1106 Druid Road South to a date uncertain; and to
continue Case ANX 00-08-20 at 2217 South Lagoon Circle to December 12, 2000.
The motion was duly seconded and carried unanimously.
ITEM B - CONTINUED ITEMS - See Item #D4, page 9.
ITEM C - LEVEL 3 APPLICATIONS
Item #C1 - Downtown Clearwater Periphery Plan 2000 Update: Planninq
Department - Applicant, Request recommendation for approval of update to 1993
Downtown Clearwater Periphery Plan.
Mcd 1100
11 121 100
Senior Planner Gina L. Clayton reviewed the request. In 1993, the
Clearwater City Commission approved the Downtown Clearwater Periphery Plan,
which included extensive revisions to the Downtown Redevelopment Plan. The
Periphery Plan considers the development potential of four areas on the edge of
downtown identified as important to the success of overall downtown
redevelopment. These areas are the "No rthwest," "s outhwest," Northeast," and
Southeast" expansion areas.
The Northwest area is bound by Clearwater Harbor, Nicholson Street, the
Pinellas Trail/Myrtle Avenue, and Jones Street. The Southwest area is bound by
South Fort Harrison Avenue, Chestnut Street, the Pinellas Trail/East Avenue, and
Druid Road.
In addition to the Periphery Plan, the Commission also adopted ordinances,
which changed the Future Land Use Map designation of each expansion area to
Central Business District (CBD). The Northeast and Southeast areas were rezoned
later in 1993 to Urban Center.
In 1995, the City submitted the amendments to the Future Land Use Map
and Periphery Plan to the PPC (Pinellas Planning Council) and Countywide Planning
Authority. The agencies approved the Plan, including the re-designation of the
expansion areas to CBD with the condition that the City would submit a specific
plan that fully qualifies for COB designation.
The Downtown Periphery Plan 2000 Update revises the original Periphery
Plan. Its purpose is to better define the land use plan and development potential for
each expansion area and provide recommendations to guide redevelopment. The
Update shall supersede the original plan and fulfill the requirements of a Special
Area Plan for the Countywide Planning Authority. The future land use plan
categories for these areas will remain CBD and the Periphery Plan 2000 Update and
Downtown (D) zoning district will govern the development potential.
In response to a question, Ms. Clayton said the update affects all four areas.
The following item supports amending the zoning for the Northwest and Southwest
areas. She reviewed which nonconforming uses would result from a change in
zoning.
Planning Director Ralph Stone stated staff had sent notice to all property
owners in the periphery area and invited them to attend the October 12, 2000
public workshop. In response to a question, Mr. Stone said some people had
expressed concern that heavy industrial uses not be allowed. All properties would
be subject to reconstruction limits of 50% of the property's value should disaster
strike. If repair costs are greater than permitted, the structure and use would have
to conform to Code.
A resident of the Southwest Area opposed proposed limits for retail sales to
properties fronting Ft. Harrison Avenue.
Mcd 1 100
2
11/21/00
Mr. Stone requested the COB (Community Development Board) to determine
if the periphery areas are appropriate for inclusion in downtown. The alternative
would be to perpetuate the current mix of uses. In response to a question,
Assistant City Attorney Leslie Dougall-Sides said if approved, the City Commission
would codify the Periphery Plan as an ordinance.
Member Johnson moved for the COB to recommend approval of the
Downtown Clearwater Periphery Plan 2000 Update to update the 1993 Downtown
Clearwater Periphery Plan. The motion was duly seconded and carried
unanimously.
Item #C2 - Downtown Clearwater Periphery Plan - Northwest Expansion Area
between Clearwater Harbor, Myrtle Street/Pinellas Trail, Nicholson Street, and
Jones Street and Southwest Expansion Area, between South Fort Harrison Avenue,
Chestnut Street, the Pinellas Trail/East Avenue, and Druid Road: Planning Department
- Applicant, Request recommendation for approval of the Northwest Expansion Area
as part of the 2000 Downtown Clearwater Periphery Plan. Z 00-10-01
Ms. Clayton reviewed the request. In 1993, the City Commission approved
the Downtown Periphery Plan, which governs four expansion areas on the edge of
downtown. Although outside the CRA (Community Redevelopment Area), the
Commission had specified detailed zoning and redevelopment concepts for these
areas.
In 1993, the City changed the use designation within the four expansion
areas to Central Business District. In 1995, the PPC (Pinellas Planning Council) and
Countywide Planning Authority approved the Future Land Use Map amendments.
Shortly after the plan was approved, the Northeast expansion area was rezoned to
Urban Center (Transition) and the Southeast area was rezoned to Urban Center
(Eastern). No zoning changes were planned immediately for the Northwest and
designated areas, however, staff had drafted a new performance, zoning district to
govern these areas. The Periphery Plan appendix included this proposed zoning
district.
Current zoning in the Northwest Expansion Area ranges from Medium
Density Residential to Industrial, Research and Technology. While the Southwest
Area is zoned Commercial and Office, the only zoning district consistent with the
underlying Future Land Use Designation of the CBD is Downtown (D). The
proposed rezoning of these two areas will fulfill the intent of the Periphery Plan and
reach consistency between the City's zoning map and the Future Land Use Map.
Member Johnson moved for the CDB to recommend approval of the rezoning
for the Northwest Expansion Area, between Clearwater Harbor, Myrtle
Street/Pinellas Trail, Nicholson Street, and Jones Street, and the Southwest
Expansion Area, between South Fort Harrison Avenue, Chestnut Street, the Pinellas
Trail/East Avenue, and Druid Road. The motion was duly seconded and carried
unanimously.
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Assistant Planning Director Cyndi Hardin reported staff would renotice all
property owners in Periphery Plan areas before the City Commission considers this
issue in February 2001 .
ITEM 0 - LEVEL TWO APPLICATIONS
Item #D1 - 27001 US 19N: Bellwether Properties of Florida, Ltd./J.C. Penny Co.
Inc.!Allied Stores General Real Estate Co./Dillard Dept Store Inc./Sears Roebuck &
Co. - Owner/Applicant, Request amendment to flexible development application
conditions of approval at See 30-28-16, M&B's 41.01, 41.02, 41.03, 41.04,
42.01,42.02 & 42.04. FL 1999-F-1008
Development Review Manager Lisa Fierce reviewed the request. On June
15, 1999, the CDB approved a Flexible Development application, as part of a
Comprehensive Infill Redevelopment Project, for Countryside Mall (V AR 1999-F-
1008). The approved plan permitted a 73,000 square foot addition to Dillard's
Department Store and a 73,000 square foot addition to Burdines Department Store.
An attached signage proposal for Dillard's also was approved as part of the
application. Approval required a Comprehensive Landscape Program to exceed
standard requirements. Most landscaping will border the property's perimeter and
entrance drives.
When approving the request, the CDS had imposed conditions: 1) all
landscaping shall be installed as part of Dillard's expansion, except for interior
parking lot landscaping which may be installed in phases. Completion to be no later
than 3 years after issuance of main construction permits for Dillard's ad dition.
Status - To be completed: 2) final landscape plan shall be submitted within 45 days
of development order approving project. Landscape plan shall include calculations
for internal open space & vehicular use area & other such requirements established
in the Code. Status - Completed. Approved by Staff: 3) all landscaping areas shall
feature shrubs, ground cover, trees and/or perennial beds, and a year-round
maintenance program. Sod shall not be allowed in these landscaping areas. Status
- Shown on approved Landscape Plan: and 4) all trees determined by City Arborist
to be declining, dead, or hazardous shall be removed & replaced tree for tree. Tree
removal/replacement shall be accomplished as part of Dillard's addition
construction. Status - To be completed.
The applicant had anticipated construction of the Dillard's addition would
commence in mid 1999, while construction of Burdines would begin 6 months later.
However, Burdines submitted its permit request first. The City received Dillard's
request for a building permit on January 3, 2000. Based on CDB conditions,
completion of interior landscaping is required by January 3, 2001.
The applicants request to amend a condition of the approval of their Flexible
Development application, stating a time extension is needed due to a change in mall
ownership and problems related to renovating an older building. The request is to
extend the landscape completion date to no later then September 1, 2001.
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Delaying installation of the landscaping will be more cost effective than installing it
during construction, which could damage plant material.
The applicants also request extending the time frame required attaining a
Certificate of Occupancy permit, pursuant to Section 4-407 of the Code. The
Certificate of Occupancy for the Dilliard's addition is required by March 30, 2001.
The applicants request an extension to September 1, 2001 for Burdines and
Dilliard's.
Staff recommends approval of the request to amend V AR 1999-F-1 008
Condition #1 to require completion of all interior and perimeter landscaping in
accordance with the approved landscape plan, with a condition that it be installed
with the issuance of the certificate of occupancy for the latest building expansion
(Burdines or Dillard's) , but no later than September 1, 2001. Should installation of
the landscaping not be completed by that time, the City will agree to accept a bond
in the amount of 125% of the value of landscaping not yet installed. A date for
work completion would need to be addressed at that time.
Staff also recommends extending the time frame requiring a Certificate of
Occupancy for Burdines and Dillard's to September 1, 2001.
One letter opposed the extension and requested installation of a signal light
at the Summerdale/ SR 580 intersection.
Tom Marsicano, representative, reviewed the history of the expansion
project. He said the firm is prepared to bond unfinished landscaping but did not
expect that would be necessary.
Member Johnson moved to approve an amendment to the flexible
development application conditions of approval at Sec 30-28-16, M&B's 41.01,
41.02, 41.03, 41.04, 42.01, 42.02 & 42.04 with condition: landscaping to be
installed with issuance of certificate of occupancy for latest building expansion
(Dillard's or Burdines), but no later than September 1, 2001. The motion was duly
seconded and carried unanimously.
Item #D2 - 2104 WinQs Way: Larrv B. & Marcella M. Winq / Scott & Wanda Moeller
- Owner/Applicant. Request flexible development approval of a Residentiallnfill
Project to reduce the front setback from 25 feet to 10 feet along Wings Way, to
reduce the north side setback from 15 feet to 5 feet and to increase the height from
30 feet to 31 feet, at Sec 32-28-16, part of M&B 43.06. FL 00-09-35
Planner Ryan Givens reviewed the request. The 0.5-acre site, at the corner
of Union Street and Wings Way, is heavily wooded with live oaks and is within the
newly platted, six-lot, Whispering Wings subdivision. A 0.25-acre detention basin,
on the southern portion of the lot, serves the entire subdivision. One lot in the
subdivision is developed. The lot to the north is vacant. The applicants propose to
construct a 3,000 square-foot, two-story, brick colonial-style house with a 3-car
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garage on its north side. The house will be consistent with the size and character
of houses proposed for the subdivision.
The applicants request reducing the north side setback from 15 feet to five
feet. The applicants have designed the house around the natural environment and
request the reduction to save trees and preserve the tree canopy. The detention
basin also constrains the home's design by reducing the effective lot width to 80
feet and its size to 0.25 acre. Only a portion of the garage will encroach into the
side setback. Living areas will be farther south to establish privacy for the
homeowners and future neighbors to the north. Staff feels the home's placement
is the best possible.
The applicants also propose to install a 5-foot wide sidewalk to connect the
front porch with the driveway. The main porch will have a 25-foot front setback.
Also, the applicants propose for the house to be 31 feet high, one foot above the
Code standard of 30 feet.
In response to a question, Mr. Givens said trees will create a large buffer
between this property and the abutting lot to the north. The proposed variance will
not impact adjacent property owners.
In response to a question, Steve Fowler, representative, said the requests
are based on the location of the trees. As the tree survey is not exact, he needs to
determine the exact layout of the house. The setback from the adjacent property
will be at least 5 feet.
Larry Wing, subdivision owner, said to save as many large oaks as possible,
the purchase agreements for the lots require marked trees to remain untouched. He
said the basin on the subject lot is dry.
It was noted a front yard variance is not required for the front door sidewalk.
Ms. Dougall-Sides recommended that issue be deleted from the request.
Member Petersen moved for the COB to approve the Flexible Development of
a Residential Infill Project to reduce the north side setback from 15 feet to 5 feet
and to increase the height from 30 feet to 31 feet for Sec 32-28-16, part of M&B
43.06. The motion was duly seconded and carried unanimously.
The meeting recessed from 2: 17 to 2:27 p.m.
Item #03 - 7 Rockaway St.: Charalampos & Sevasti Alexiou (Kirk Construction) -
Owner/Applicant. Request flexible development approval of a Comprehensive Infill
Redevelopment Project to reduce the front setback from 10 feet to 0 feet, reduce
the rear setback from 10 feet to 0 feet and reduce the required number of parking
spaces from 71 spaces to 13 parking spaces, and reduce required number of
handicap spaces, at See 32-28-16, part of M&B 43.06.
FL 00-09-35
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Planner Mark Parry reviewed the request. The 0.38 acre site, on the south
side of Rockaway Street approximately 500 feet west of Mandalay Avenue, fronts
the Gulf of Mexico and Rockaway Street. The site features a 6,723 square-foot,
one-story restaurant and a one-story, 210 square-foot storage building, which is 3.7
feet from the south rear property line and 2.5 feet from the east side property line.
The restaurant sits on the rear property line and is 1.7 feet from the front property
line. The parking lot, on the east property line, has 13 parking spaces.
The site is in a desirable commercial neighborhood. The wooden, Florida-
Cracker style structure has a metal roof and sand-colored, stucco siding. The
restaurant's entrance, a covered, wood deck with ramp on the north side of the
building, encroaches 5.3 feet into the public right-of-way. A partially covered wood
deck is attached to the building, approximately 20 feet from the west property line.
To improve customer service, the business owners wish to expand the
restaurant by adding a 3,487 square-foot, second story with approximately 1,200
square-feet of open deck and 2,300 square feet of enclosed space. Both sections
will accommodate bar patrons and diners; the enclosed portion will include bar
seating. The addition will accommodate 92 diners and 32 bar patrons and increase
the building's size to 10,210 square-feet and the total number of seats to 372.
The applicants also propose to remove and replace the storage room, which is
structurally unsound and unsafe.
The second-floor addition and replaced storage room will not extend farther
into the front or rear setbacks than currently exists and will occupy its current
foundation. The project also will renovate and improve the restaurant's interior and
exterior. The second-floor addition will enhance the restaurant's architectural style
and feature stucco walls, decorative railings, and a metal roof. The existing sign
will be removed during construction but later reattached. The applicants have not
proposed additional signage.
The applicants request reducing the required front and rear setbacks from 10
feet to zero feet, the number of required parking spaces from 71 to 13, and the
number of required handicap parking spaces to zero. The City-owned lot, north of
the restaurant, has five handicap spaces. One handicap space is adjacent to the
restaurant. The restaurant currently is required to have 47 parking spaces. The
proposed addition will require an additional 24 spaces.
Before the parking analysis was done, staff concurred with its methodology.
Florida Design Consultants has submitted a parking analysis, which includes a
survey of 100 Frenchy's customers, and a parking accumulation study performed
on a Friday and Saturday between 11 :00 a.m. and 10:00 p.m. of Frenchy's
parking lot, Municipal Lots #36 and 38, on-street parking along Bay Esplanade, on
Mandalay Avenue between Baymont Street and Bay Esplanade and along Rockaway
Street.
The study indicated 309 parking spaces are within 1,000 feet of the
restaurant and that at least 45 parking spaces are available within the study area at
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any given time, including peak times. The study also indicates that the majority of
restaurant patrons use the City-owned, metered parking immediately to the north.
This parking lot serves beach visitors and patrons of other area businesses. Of the
100 customers surveyed, 49 stated their primary destination was the beach and
that eating at Frenchy's was a secondary purpose. This data indicate dual reasons
for restaurant patrons to visit the area and that the use of shared parking is valid for
this business.
Ed Armstrong, representative of the applicant, said he had discussed this
plan with Harry Cline, representative of the adjacent Clearwater Beach Hotel, to
mitigate concerns. Mr. Cline reported he had agreed to conditions related to the
expansion: 1) addition of restaurant bar & deck to be limited to north half of
building; 2) restaurant to construct a concrete block wall that extends 8 feet above
the deck to act as a sound barrier (not shown on plan); 3) hours of operation for the
second floor deck will not extend later than 10:00 p.m. on weeknights and 11 :00
p.m. on weekends; 4) no outside speakers or live music; 5) lights to be directed
away from the hotel; and 6) City to provide Mr. Cline with copy of site plan for
review.
Concern was expressed the proposed wall does not meet code. Steve Krar,
architect of the applicant, said an additional wall will not be constructed. Added
height will be constructed on an existing wall. The elevator is required for
compliance with ADA (Americans with Disabilities Act). The bathrooms, on the
south side of the second floor, will be enclosed and buffer noise. A cabana will
cover the bar area only.
In response to a question, Mr. Cline said the hotel's manager would prefer
no nightclub activities occur at the subject property but is willing to make
reasonable concessions. His interest is to protect the guest's sleep.
One property owner expressed concern regarding the extent of the parking
variance requested and related parking problems, stating the study had occurred on
a weekend when it rained and a football game took place.
Robert Pergolizzi, representative of the applicant, said staff had approved the
methodology used to conduct the study of parking within 1,000 feet of the
restaurant, which was done on August 25 - 26, 2000, between 11 :00 a.m. and
10:00 p.m. Mr. Armstrong stated the LOS (level of service) on Mandalay Avenue is
rated "B." He said the Code does not recognize a business operating in an area
with high pedestrian traffic. Ms. Hardin said it would be unfair to conduct the
study during Spring Break. She said this action does not preclude the owners of the
Palm Pavilion from requesting an expansion, although staff is mindful of the
cumulative effects on parking. The City is working on a new beach plan.
It was noted the disabled parking spaces in the City's lot are not free. It
was stated variances for handicapped spaces are not permitted. Ms. Hardin said
staff will make sure handicapped spaces on the subject property comply with
Federal and State law.
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Concern was expressed the expansion will compound beach parking
problems. It was noted the City had never granted a parking variance this large. It
was felt the request is nor an overuse of the property. It was suggested parking
spaces would turnover more quickly if the restaurant is expanded and patrons are
seated sooner. It was noted beach parking will continue to be difficult until new
facilities are constructed. It was suggested the request will not increase parking
problems. In response to a question, Ms. Hardin said it is natural for businesses in
urban settings to count on public parking.
Member Johnson moved to approve the request for flexible development of a
Comprehensive Infill Redevelopment Project to reduce the front setback from 10
feet to 0 feet, reduce the rear setback from 10 feet to 0 feet and reduce the
required number of parking spaces from 71 spaces to 13 parking spaces, and
reduce required number of handicap spaces to 0, if allowed by law, at Sec 32-28-
16, part of M&B 43.06. The motion was duly seconded. Members Petersen and
Johnson and Chair Figurski voted U Aye" Members Plisko and Moran voted "Nay."
Member Mazur abstained. Motion failed due to required four affirmative votes.
Item automatically continued to December 12, 2000.
Item #D4 - 3006 Gulf-to-Bav Boulevard.: Thanh Phuoc & Kimtruc Thi Nquven _
Owner/Applicant. Request flexible development approval of a Comprehensive Infill
Redevelopment Project with Comprehensive Landscape Program to operate a
nightclub within the Commercial District, and to reduce the required number of
parking spaces from 20 spaces to 18 parking spaces at Bay View City Sub, Blk 8,
Lots 8, 9, 10 & 1/2 of vac alley on N less Rd. right-of-way on S. Fl 00-08-33
The applicant requested a continuance so request is heard by full board.
Member Johnson moved to continue Case FLOO-09-33 to December 12,
2000. The motion was duly seconded and carried unanimously.
ITEM E - DIRECTORS ITEMS
Approval of Minutes
Member Johnson moved to approve the minutes of the special meeting of
October 10, 2000 and the regular meeting of October 17,2000, as recorded and
submitted in written summation to each board member. The motion was duly
seconded and carried unanimously.
Annexation, land Use Plan Amendment & Rezoning Cases
Ms. Hardin reported the City Commission to hear the rezoning request for
the Connelly property, adjacent to Bayview, on December 12, 2000.
2001 Meetinq Schedule
Mcd 1 100
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Ms. Fierce distributed the proposed schedule of COB meetings for 2001.
Consensus was to the December meeting during the second week. It was
recommended the board also consider rescheduling the November meeting.
The 2001 COB meeting schedule: 1) January 23; 2) February 20; 3) March
20; 4) April 17; 5) May 15; 6) June 19; 7); July 17; 8) August 21; 9) September
18; 10) October 16; 11) November 13; and 12) December 11, 2001.
Holidav Luncheon/Meetinq
The Holiday Luncheon is scheduled for December 12, 2000, at the
Harborview Center at 11 :30 a.m. Canned goods and unwrapped toys will be
collected for the Officer Friendly holiday drive.
The COB meeting will follow at 1 :00 p.m. at City Hall.
Appointment of Alternate Board Member
Mr. Stone requested board support of a Code amendment to appoint an
alternate board member to serve when board members are absent. If the full board
is present, the alternate would listen to the meeting. The position would provide
experience before appointment as a permanent member and reduce continuances
due to absent members. Discussion ensued regarding other cities' boards.
Consensus was to recommend appointment of an alternate board member.
Board Member Comments
It was noted the cell tower, under construction near Gulf-to-Bay Boulevard,
looks terrible and does not blend into its surroundings as promised.
It was recommended City applications be heard at the end of the agenda.
Mr. Stone said staff would do that. Today's items were placed at the beginning of
the agenda as approximately 35 residents had attended the workshop and may
have wished to provide input to the board.
ITEM F - ADJOURNMENT
The meeting adjourned at 3:24 p.m.
Chair
Community Development Board
Attest:
Board Reporter
Mcd 11 00
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