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05/11/1993 - 1:00 PM PUBLIC HEARING BEFORE A HEARING OFFICER May 11, 1993 - 1:00 p.m. Ramchandra & Rashmi Jakhotia, D/B/A King Cole Motel Hearing Officer: K. N. Ayers Also Present: Miles A. Lance, Assistant City Attorney Sandra Glatthorn, Senior Planner William Held, Harbor Master Camille Motley, Central Records Specialist Issue: King Cole Motel/Marina request for variance of 7 parking spaces to permit an additional 14 live-aboard vessels with zero additional parking spaces provided at 401 East Shore Drive, Barbour Morrow Sub, Blk C, Lot 14 and part of Lot 13, zoned CB (Beach Commercial) and AL/C (Aquatic Lands/Coastal). V 92.69. DOAH Case Number 93-001474 Appearances: Harry S. Cline, II Esquire Representing Appellant Don Graves, Representing Appellant Exhibits Submitted: 1. Notice of Appeal dated February 18, 1993, signed by Harry S. Cline, Esq. as representative. 2 Notices of Appeal dated February 1, 1993 and November 30, 1992. 3. Excerpt of the minutes of the Development Code Adjustment Board (DCAB) of February 11, 1993. 4. Variance Application. 5. Variance Request map and atlas sheet. 6. Variance Transmittal sheet. 7. Letter dated September 21, 1992 signed by the Jakhotias confirming a lease with Lawny Potter. 8. Letters from George W. Greer and Harry S. Cline requesting continuances. 9. Planning and Development staff's recommendations of December 10, 1992, January 14, 1993, and February 11, 1993. 10. Comments from Donald Meerians, Assistant Traffic Engineer. 11. Letter of support dated December 9, 1992 from Steven F. Chandler of the Beach Diner. Additional Exhibits submitted at the hearing: 1. Conditional Use Application 88-26 dated February 23, 1988, requesting 22 live-aboard slips; sea rescue station; and pump-out station for live-aboards. 2. Affidavit as to previous use of property and number of live-aboards. 3. Excerpt of Planning and Zoning (P&Z) minutes dated, 3/15/88 regarding CU application 88-26. Exhibits were accepted by the hearing officer. Hearing Officer, K. N. Ayers, called the hearing to order at 1:00 p.m. and explained the rules governing the procedure. Opening statement was made by Miles Lance in which he gave background for ordinance regarding the use of waterways and referenced a study done by City Marina personnel and stated the City's position in regard to live-aboards. Harry S. Cline, 400 Cleveland Street, Clearwater, FL, was sworn in to give testimony on behalf of the applicants who were not present. He stated facts regarding the applicant's original purchase and status of place of business at that time. Some live-aboards, including the previous owners of his client's place of business, were grandfathered in as of 10/13/85. Mr. Cline admitted non-conforming use for a number of live aboards. Miles Lance objected to the Affidavit stating that the previous use of the property and the number of live-aboards, offered into evidence as Exhibit 2 by Mr. Cline, were heresay. Exhibit 2 was accepted by Hearing Officer. Mr. Cline stated that he felt the owner had been denied a legal right by the City. He felt the use in question had been grandfathered in and the owner had been incorrectly advised by City staff that he needed a variance. Mr. William C. Held, Jr. was sworn in and gave testimony regarding the ordinance that was in effect prior to 1988 and the way that the study which, in effect, provided the basis for the new ordinance in 1988, had been done. Mr. Held stated that at the time of the study which was in the form of a questionnaire, King Cole Motel/Marina responded that there were 8 live-aboards. The 1988 ordinance addressed sewer pump-out stations and the applicant was given time to bring the facility into conformance. Mr. Held also read the portion of the code, 42.34(b) regarding parking requirements. The Hearing Officer, Mr Ayers, asked the purpose of the survey in 1986. Mr. Held responded the survey had been done to determine how many live-aboards were in the City. He also stated that City staff visited over 100 marinas. Sandy Glatthorn, Senior Planner gave testimony in response to questions by Mr. Lance regarding the previous application for conditional use. She stated the zoning on this property is Beach Commercial and Aquatic Lands/Coastal. The conditional use which had been granted included providing pump-out facilities and providing required parking. She stated that parking requirements were 1/2 space per slip. Ms. Glatthorn stated on December 10, 1992, the applicant asked for a variance from the Development Code Adjustment Board (DCAB), of seven parking spaces to allow 14 live-aboards. The request was denied unanimously. She read from the minutes of February 11, 1993, regarding the denial of the variance. In response to Mr. Cline's earlier question, Ms. Glatthorn explained the code states if any modification of any feature, building or activity occurs on the property, additional parking and loading shall be provided. Ms. Glatthorn further stated because of the fact that there is no conforming parking on this site, requirement for the 7 parking spaces then applied for 14 live-aboards. She also stated that there was no conforming parking because back-out parking does not meet current code and is considered dangerous. Mr. Cline asked Ms. Glatthorn to show him where the parking requirements for live-aboards appear in the code on a numbered slip basis. Ms. Glatthorn testified that this was a change of activity and several sections of the code would apply; however there was not a separate parking requirement in the code for live-aboards and thus, the section for commercial marinas was used for parking requirements. Mr. Cline, the applicant, and Mr. Held. She further stated that if the use is not permitted use outright but is a conditional use, which is permitted, those districts. Mr. Cline then referenced Code 114.05(a)(1) regarding conditional uses as related to marina facilities. He pointed out that a Marina could legally have existed prior to 1985. Mr. Lance redirected questions to Ms. Glatthorn. She stated that in 1985, if the marina did not have the proper parking it still would have been grandfathered in; however, if they wanted to change the use and activity of the property by way of a conditional use application, they would be required to supply additional parking places. She further agreed that records indicated the applicant applied for a conditional use which was approved contingent on receiving a parking variance; however, the DCAB denied the variance. Mr. Cline spoke regarding the grandfather concept relating to live-aboards. He submitted court rulings on cases regarding cessation of use and cases of abandonment. Mr. Lance commented regarding the adoption of the 1988 City ordinance to grandfather with respect to live-aboards. He stated it was not known how many live-aboards there were, so the survey of every marina in the City acted as the basis for the ordinance. He felt the applicant did not meet the standards required for variance approval and the applicant wanted the variance in order to receive financial gain. The Hearing Officer asked both attorneys to consider the grandfather clause with respect to live-aboards in their proposed orders and to submit their proposed orders in 10 days. Hearing was adjourned at 2:10 pm.