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03/24/1995 PUBLIC HEARING BEFORE A HEARING OFFICER March 24, 1995 - 1:30 p.m. Frenchy’s Rockaway Grill, Inc. (Anthony Alexiou) Hearing Officer: Richard Hixson Also Present: Miles A. Lance, Esquire, Assistant City Attorney John Richter, Senior Planner Steve Sarnoff, Central Permitting Specialist Patricia Sullivan, Board Reporter Issue: Petitioner contests the decision of the Development Code Adjustment Board to deny variances of (1) 13.22 ft to permit a lot depth of 86.78 ft where 100 ft is required; (2) 8.2 ft to permit a rear setback of 6.8 ft where 15 ft is required; (3) 14 percent to permit 11 percent of open space for the lot where 25 percent is required; (4) 3 additional parking spaces to permit 0 additional parking spaces where 3 additional parking spaces are required; and (5) 52.14 ft to permit a structure seaward of the Coastal Construction Line to allow an addition to an existing deck at 7 Rockaway St., Miller's Replat, Lots 2-3, together with vacated Beach Dr. on West, zoned CR 28 (Resort Commercial). V 94-63 Appearances: James J. Dowling, Esquire, Attorney for Appellant Michael Preston, Appellant Harry Cline, Esquire, Representing adjoining property owner (Clearwater Beach Hotel) Appellant Exhibits: 1. Photo of the Subject Property 2. Action Agenda for the August 26, 1993, Development Code Adjustment Board Meeting regarding the Palm Pavilion. City Exhibits: 1. Notice of Appeal, with various attachments, dated November 21, 1994. 2. Notice of Public Hearing Notice and excerpts of the minutes of the Development Code Adjustment Board of November 10, 1994. 3. Variance Application of the petitioner with supporting documents and a map dated November 10, 1994. 4. Staff report of a meeting of August 8, 1991 of the Development Code Adjustment Board. 5. Audio tapes of the November 10, 1994, Development Code Adjustment Board meeting. Mr. Cline’s Exhibit: 1. Ordinance #2164 Hearing Officer Hixson opened the meeting at 1:30 p.m. and explained the rules governing the procedures. He requested the record reflect that this hearing was properly noticed and all parties have had the opportunity to be properly noticed regarding this hearing. In response to the Hearing Officer’s inquiry, Harry Cline, representing Clearwater Beach Hotel, stated his presence was to oppose the requested variances. Mr. Cline stated his client was not represented at the Development Code Adjustment Board (DCAB) November 10, 1994 hearing, because the notice, sent to the hotel’s Iowa corporate headquarters, was not forwarded in time. James J. Dowling, Attorney for the appellant, objected to the appearance of anyone who is not a party to this matter. Miles A. Lance, Assistant City Attorney, stated this is a “public hearing” requiring notification of property owners within 200 feet of the subject property. If necessary, the City can call respondents as witnesses for the City’s case. Mr. Lance did not object to Mr. Cline’s direct participation in the proceedings. Mr. Dowling made an opening statement for the appellant relative to the substance of the variances requested. He stated an application for a Conditional Use permit, submitted in October 1994 for alcoholic beverage sales, was approved by the Planning & Zoning Board (P&Z) and suggested the inquiry into that decision was nearly identical to the one engaged in by DCAB. He said at the November 10, 1994 hearing, staff issued a favorable report to DCAB and spoke in favor of the request. No problem was noted until the request was presented to DCAB for a vote. He said no evidence or protests were presented. He claimed DCAB’s denial was based on conjecture. Hearing Officer Hixson noted DCAB members had questioned if the request was solely for economic gain. Mr. Dowling said no presented evidence indicated that suggestion was true. He noted, in the same calendar year, the nearby Palm Pavilion was granted approval for a similar, beach front deck and the finding indicated the deck’s expansion was not for financial gain but to provide more desirable seating facilities for existing patrons. Mr. Dowling said he copied that information for this petition and suggested DCAB acted capriciously by denying this request. Mr. Lance made the opening statement for the City and reviewed the jurisdictions of the P&Z and DCAB. He said DCAB denied the request for variances because the four Standards of Approval were not met and because of economic circumstances. He suggested the only reason to add a deck to an existing restaurant is to make money. Mr. Lance noted the restaurant previously occupying the subject property had an illegal deck made legal by variances granted by DCAB in 1991. He stated the five variances sought are substantial requests. DCAB indicated the proposal would overwhelm the property’s development and violates the general spirit and intent of the land development code. Mr. Lance said this evidence was competent and substantial and DCAB has the right to evaluate it. He said the appeal raises issues not pertinent to the decision. Staff’s recommendations are considered as input by DCAB prior to reaching decisions and DCAB has the right to ignore staff recommendations. Hearing Officer Hixson noted, for the record, Mr. Dowling’s objection to Mr. Cline’s appearance and participation in the proceedings. Mr. Dowling said he objected because: 1) he did not think anyone should be permitted to intrude on these proceedings; 2) Mr. Cline is a surprise witness; and 3) Mr. Cline’s testimony is not relevant to these proceedings. He stated the decision was already made and this hearing was to determine the lawfulness of that decision. Hearing Officer Hixson stated the public is notified under code and is entitled to attend and provide input to the proceedings. Mr. Cline said the burden of proof is on the applicant to provide DCAB with sufficient evidence and felt the request meets none of the four Standards for Approval. He expressed concern regarding the adverse impact the proposed deck would have on the adjoining Clearwater Beach Hotel. He felt this matter was not properly before DCAB or the Hearing Officer because the property is not zoned CTF-28, as represented in the application and accepted by the City. He filed a certified copy of Ordinance #21-64 regarding the rezoning of this property. He said the applicant owns Lot 1 and land lying west of Lot 1 in Miller’s replat. As the zoning is bounded by the lot line, he said the property under review is zoned Open Space Recreation and this proposed use cannot happen there. Appellant Michael Preston indicated he purchased the restaurant in August 1991 after the current deck was constructed. He wanted to add decking to fulfill a public need and address two hour waits for deck seating. He said the additional seating would affect his kitchen staff more than provide him with economic gain. Mr. Preston said the setting is unique and he did not think a larger deck would negatively impact anyone. He said the Clearwater Beach Hotel had never voiced any objection to the proposal. He noted the money spent by restaurant patrons on City parking meters and tickets. He said his restaurants are an asset to the City and indicated his wish to work with the City. Mr. Lance noted Charles and Ypapanti Alexiou, owner of the property, applied in July 1991 for variances: 55.5 feet to permit a deck seaward of the Coastal Construction Control Line (CCCL); a 15-foot variance to permit a deck zero feet from the street right-of-way; and 3) 7 parking spaces to permit a 1,338 square foot deck at 7 Rockaway Street. Mr. Preston agreed variances have been granted for this property in the past, including one for an awning. He agreed the variances would help increase his business and indicated he knew DCAB would make the final decision regarding his variance requests. Mr. Preston indicated he knew he would have to present his case to DCAB but said he was not aware of the four Standards of Approval. He agreed his restaurant has live entertainment and outside music although outside speakers and entertainment are limited to daylight hours on Saturdays and Sundays. Mr. Preston agreed the sounds can be heard next door at the Clearwater Beach Hotel but noted he has never been cited for noise ordinance violations and the hotel has not issued complaints regarding the restaurant’s noise level. Senior Planner John Richter reviewed the procedure for requesting a variance. He indicated applicants are required to sign the application page listing the four Standards of Approval. Mr. Dowling said he had no question regarding procedure and stipulated he was aware of the Standards of Approval, the requirement regarding the burden of proof, and stated staff had provided that information. Mr. Richter said the property is zoned Resort Commercial 28. He stated staff recommended approval of the variance subject to five conditions because staff felt the request met the Standards for Approval. He agreed DCAB has the right to disagree with staff recommendations and they voted to deny the requested variances by unanimous vote. He stated DCAB members are permitted to exercise their judgement and discretion and reach decisions based on the four Standards of Approval and the property’s history. He said the property is nearly fully developed and the purpose of the land development code is to manage development consistent with the City’s public health and safety objectives. Mr. Richter said it was unlikely recorded violations by the previous business affected DCAB’s decision. Steve Sarnoff, Central Permitting Specialist, said the property is zoned Resort Commercial-28 and not Open Space Recreation. A scrivener’s error, caught during a 1989 case involving the Clearwater Beach Hotel, resolved a dispute regarding the vacation of a street right-of-way named Beach Drive, which, in the 1925 Clearwater Park Subplat, was created as part of the Clearwater Park Subdivision. When that street was vacated, the 40-foot wide right-of-way went to the adjoining property owners and was included as part of their property. Surveyor Leo Butler’s replatting of part of the area in 1947 is known as the Miller Replat. Mr. Butler noted the Beach Drive vacation but did not add the 40 feet to the length of the Subplat in his drawing. The intent was to zone private property on the upland, Commercial Resort, and zone the land between that point and mean high tide as Open Space Recreational. Mr. Sarnoff said this error was corrected in later atlases. Hearing Officer Hixson indicated he would listen to the tape of the November 10, 1994 DCAB meeting. He denied Mr. Cline “party status” but permitted him to present testimony. Mr. Cline indicated the Clearwater Beach Hotel attracts mature, older guests. He said the requested deck is “an empty beer cup toss” from Clearwater Beach Hotel’s wall where the property’s more expensive rooms are located. He estimated the deck would impact between four and six rooms. He stated a six-foot wall is meaningless as the hotel’s second floor starts at 10 feet. He expressed concern the proposed addition would adversely impact the hotel property. Mr. Cline suggested the applicant did not meet one Standard of Approval. He noted the restaurant property was permitted to operate outside City code by earlier approval of variances. In 1991, he had objected to a request to expand the illegal deck to 1,300 square feet and noted this request is for 1,600 square feet. He expressed concern regarding problems for the Clearwater Beach Hotel if the deck expands closer to the hotel’s property. Mr. Cline indicated he was the attorney for the deck expansion at the Palm Pavilion, which is surrounded by parking lots and beach and is not contiguous to residentially used properties, like a hotel. He said that request was for a new deck, approximately the same size as the current deck at the subject property. The Palm Pavilion property is two or three times larger than the subject property and the deck is totally within its property lines. Mr. Cline suggested the maps are not the controlling document regarding the property’s zoning; the ordinance is the controlling document. He said the property line for Lot 1 is the divisional line between building and deck. He suggested the entire deck is seaward of the platted lot line. He agreed the restaurant property owner owns that land but did not think it can be built on. He suggested the case should be dismissed without jurisdiction. He noted no testimony was presented to support this request. Mr. Cline suggested the purpose of the application is for economic benefit only. Mr. Dowling objected to the motion to dismiss. The Hearing Officer stated the participants have 14 days to submit their recommended findings and proposed final orders that set out their recommended findings of fact and conclusions of law. He requested Mr. Cline submit his findings via memorandum, rather than a proposed final order, with copies to all parties. Final summations were waived. The parties agreed to an extension of the 14-day submission schedule to submit their findings. Hearing Officer Hixson requested the parties notify him of the proposed date and stated the order will be sent within 15 days of the materials’ submission. Proceedings were concluded at 2:53 p.m. by Hearing Officer Hixson.