01-000272 Ypapanti And Sevasti Alexiou/Frenchy`s Restaurant vs. City Of Clearwater And Antonios Markopoulos Status: Closed DOAH Final Order on Monday, May 14, 2001.

Summary: Applicant qualified as an infill project for redevelopment; flexibility in off-street parking requirements justified; applicant approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YPAPANTI and SEVASTI ALEXIOU, )

d/b/a FRENCHY'S ROCKAWAY )

GRILL , )

)

Petitioners , )

)

vs. ) Case No. 01-0272

)

CITY OF CLEARWATER , )

)

Respondent, )

)

and )

)

HUNTER HOTEL COMPANY , )

)

Intervenor. )

)

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 1100

Tampa, Florida 33601-1100

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

STATEMENT OF THE ISSUE

The issue is whether Petitioners' application for site

plan approval 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 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 recreation 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

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 Beach, 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 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." 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, Intervenor suggests that

there should be a moratorium on development in the Beach area.

3. Petitioners own and operate a popular and successful

one-story restaurant and bar on a 0.38-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.

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 project

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 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, Petitioners 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 ] etermined by the community 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."

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.

12. Section 2- 803J.6.c. also provides flexibility in

off-street parking requirements if "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

distance 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

confirmed 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 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 required. 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 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 for 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 interpretation is also 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 ITE 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.

18. More importantly, the criteria in Section 2-803C .,

including item 9., 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 infill

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 project. While

they contended that the lack of parking motivated their

opposition to the application, it is fair to infer from their

testimony that they 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:

[t ]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 "my

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 8-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 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."

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."

25. Notwithstanding earlier representations, by letter

dated December 7, 2000, counsel for Intervenor indicated that

"the 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 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 any explanation, at the second meeting on December 12,

2000, 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 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 matter and the parties hereto

pursuant to Section 4-505 of the Code.

30. Section 4.505C. 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 , DOAH 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 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 ex 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 application,

and Petitioners would 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.

DONE AND ORDERED this 14th day of May, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The De Soto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of May, 2001.

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. Richards, 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 4-505D ., City of Clearwater Community

Development Code.