02-003637 Deborah Groen Sobeleski vs. City Of Clearwater And Christopher C. Mariani Status: Closed DOAH Final Order on Monday, January 13, 2003.

Summary: Neighbor appealed from decision granting deviation from dock requirements to allow longer dock. Neighbor did not meet burden for appeal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEBORAH GROEN SOBELESKI, )

)

Appellant, )

)

vs. ) Case No. 02 - 3637

)

CITY OF CLEARWATER and )

CHRISTOPHER C. MARIANI, )

)

Appellees. )

)

FINAL ORDER

On November 12, 2002, an appeal hearing was held in this

case in Clearwater, Florida, before J. Lawrence Johnston,

Administrative Law Judge, Division of Administrative Hearings

(DOAH).

APPEARANCES

For Appellant: Maxwell G. Battle, Jr., Esquire

Battle & Edenfield, P.A.

206 Mason Street

Brandon, Florida 33511

For Appellee City of Clearwater:

Leslie K. Dougall - Sides, Esquire

Assistant City Attorney

City of Clearwater

Post Office Box 4748

Clearwater, Florida 33758

For Appellee Mariani:

Timothy A. Johnson, Jr., Esquire

Johnson, Blakely, Pope, Bokor,

Ruppel & Burns, P.A.

911 Chestnut Street

Post Office Box 1368

Clearwater, Florida 33757

STATEMENT OF THE ISSUE

This hearing officer appeal under Section 4 - 505 of the City

of Clearwater Community Development Code (Code) is the second of

two administrative appeals available to an d taken by Appellant,

Deborah Groen Sobeleski (Sobeleski) under the Code. The issue

in this second appeal is whether to sustain the decision of the

City of Clearwater Community Development Board (CDB). The CDB's

decision, made under Section 4 - 504 of the Code, was to allow

Sobeleski's earlier Application for Administrative Appeal to the

CDB from a Development Order (DO) issued by the City of

Clearwater Community Development Coordinator (CDC) to remain on

the CDB's consent agenda, which had the effect of de nying the

Application for Administrative Appeal and confirming the CDC's

DO without a quasi - judicial hearing for receipt of additional

evidence. The CDC's DO granted, with conditions, the Flexible

Standard Development Application filed by Appellee, Christ opher

C. Mariani (Mariani, or Applicant), and subsequently amended,

for a deviation to allow construction of a dock exceeding the

60 - foot maximum length otherwise allowed by the Code.

PRELIMINARY STATEMENT

The CDB's decision was made on August 20, 2002. Sobeleski

(Appellant) filed her Appeal Application from the CDB's decision

on August 26, 2002. On September 20, 2002, Appellee, the City

of Clearwater (City) referred Sobeleski's Appeal Application to

DOAH under Section 4 - 505 of Code. However, the refer ral letter

from counsel for the City explained that the Appeal Application

was not being forwarded in its entirety. See Finding 11, infra .

The parties waived the 60 - day deadline for the appeal

hearing under Section 4 - 505 of the Code, and the appeal hear ing

was scheduled for November 12, 2002, in the City of Clearwater.

At the appeal hearing, Appellant argued that,

notwithstanding the language in Section 4 - 505 of the Code, that

the sole purpose of the appeal hearing was to receive the

record - on - appeal a nd hear oral argument, additional evidence

should be received and considered during this appeal under rules

of procedure in effect at the time of filing of the original

application by Appellee, Christopher C. Mariani, on January 18,

2002. 1 Appellant also moved ore tenus for a continuance to allow

time to prepare to introduce additional evidence. Appellees

opposed these requests. Appellant's motion for continuance of

the scheduled appeal hearing was denied, but ruling was reserved

for a determination as t o which rules of procedure applied to

this appeal and the need for an additional hearing for purposes

of receiving additional evidence.

Appellant raised three issues in oral argument concerning

the record - on - appeal previously forwarded by the City. Firs t,

Appellant contended the record - on - appeal was deficient in that

it did not contain original documents but only authentic copies.

On that issue, it was ruled that authentic copies were

sufficient if not ideal. Second, Appellant contended that

black - and - white copies of original color photographs presented

to the City's Community Development Board (CDB) in the

proceeding below were inadequate; and it was agreed that

Appellant would substitute color photographs. Third, Appellant

sought to add items to the record - on - appeal on the ground that

they should have been received and considered by the CDB in the

proceeding below. However, Appellant did not make it clear

exactly what items she thought the CDB improperly failed to

receive and consider (although this could have been ascertained

if the City had forwarded the entire Appeal Application with the

referral to DOAH. See Finding 11, infra .).

It was ruled that the City should have included the

complete Appeal Application in its entirety, as filed, with all

e xhibits, in the referral to DOAH; that documents not received

and considered by the CDB were not properly part of the "record -

on - appeal" before to the CDB below; and that whether additional

items should have been received and considered by the CDB could

be considered as one of Appellant's points on appeal to the

hearing officer. After these rulings, the record - on - appeal was

received over Appellant's objections.

On December 2, 2002, Appellant substituted color photographs

for inclusion in the record - on - ap peal, as agreed, and the parties

submitted proposed final orders, which have been considered in the

preparation of this final order.

On December 19, 2002, Appellant filed a complete copy of

the Appeal Application. This filing made it possible for the

fi rst time to ascertain exactly what documents the City had

failed to refer as part of the record - on - appeal in this case and

what documents the CDC had failed to present to the CDB as part

of the earlier Application for Administrative Appeal from the

CDC's D O.

FINDINGS OF FACT

1. On January 18, 2002, Appellee, Christopher C. Mariani

(Mariani, or Applicant), filed a Flexible Standard Development

Application for a deviation from Section 3 - 601.C.1.b. 2 of the

City of Clearwater Community Development Code (the Code) to

allow construction of a 101 - foot long dock (98 feet in length

with a 3 - foot step - down) where 60 feet would be the maximum

otherwise allowed by the Code.

2. The deviation from Code apparently was requested

because a Pinellas County Department o f Environmental Management

Water and Navigation Report dated November 26, 2001, stated:

Seagrass beds are located along this entire

property, and extend out to a maximum of 65

ft. from the seawall in the area of the

proposed dock although it becomes spar se at

approximately 60 ft. It is the policy of

this Department to limit structures over

seagrasses to 4 ft. in width and to place

the terminal platforms and boat slips beyond

the limits of the seagrasses wherever

possible.

3. At the time the applicati on was filed, Section 4 - 505 of

the Code provided that, in an appeal to a hearing officer from a

decision of the City of Clearwater Community Development Board

(CDB), the record before the CDB could be "supplemented by such

additional evidence as may be bro ught forward during the

hearing"; and the appellant's burden was to show that the CDB's

decision could not be "sustained by the evidence before the

board and before the hearing officer."

4. The "City of Clearwater Planning Department Staff

Report for 2/ 14/02 DRC Meeting" recommended flexible standard

development approval for a 92 - foot long dock. 3 The stated "Bases

for approval" were: compliance with the flexible standard

development criteria under Section 3 - 601.C.1.g. 4 of the Code;

compliance with the general applicability criteria under Section

3 - 913 of the Code; and compatibility with the surrounding area.

The Staff Report noted: (1) "there are no navigational concerns

with the proposed development"; and (2) "the proposal is more

environmentally sen sitive than the existing 5 dock and constitute

an improvement over existing conditions." The Report also

stated that, since only one of the three criteria in Section 3 -

601.C.1.g. need be met, similarity to surrounding dock patterns

was not applicable but t hat "the proposed dock, as amended, will

be similar to surrounding dock patterns."

5. By letter dated March 5, 2002, Mariani amended his

application to: decrease the length of the proposed dock to 95

feet; reduce the roof length over the larger capacit y boat lift

from 48 feet to 38 feet (to match the roof length over the

smaller capacity lift); and reduce the total dock square footage

to 476.25 square feet versus the 498 feet previously requested.

6. On or about April 14, 2002, Mariani submitted to t he

City a set of "Dock Plans" for a 92 - foot long dock. 6 The

document included "Diagram A Permittable Construction" and

"Diagram B Proposed Construction." The apparent purpose was to

contrast the dock Mariani would have been permitted to build in

the abse nce of seagrasses with his proposed dock. 7

7. On May 2, 2002, Section 4 - 505 of the Code was amended

to provide that the appeal hearing before a hearing officer

consists solely of reception of the record before the CDB and

oral argument and that the burd en on appeal to the hearing

officer is for "the appellant to show that the decision of the

[CDB] cannot be sustained by the evidence before the [CDB], or

that the decision of the [CDB] departs from the essential

requirements of law." Under the amendment, no other evidence is

to be considered. 8

8. By letter dated July 22, 2002, the CDC 9 issued a DO

stating concurrence with the DRC's "findings." Except for this

reference, the record - on - appeal does not contain any evidence of

the DRC's recommendation or a ny written findings by the DRC. 10

But the CDC approved Mariani's application, as amended, upon the

same "Bases for approval" contained in the "City of Clearwater

Planning Department Staff Report for 2/14/02 DRC Meeting," with

the following conditions:

1. That a building permit for the proposed

dock only be issued concurrently with, or

subsequent to, building permit issuance for

a principal, residential structure on the

site;

2. That the proposed dock be relocated

farther east (with the dock head centered on

the midpoint of the waterfront property

line, as measured at the seawall) and

constructed perpendicular to the waterfront

property line;

3. That the relocation of the dock meet all

criteria under Section 3 - 601.C.1; and

4. That revised plans reflecting

conformance with condition #2 be submitted

with the building permit application, to the

satisfaction of staff.

The DO then stated: "The approval is based on and must adhere

to the site plan dated received April 15, 2002, or as modified

by condition #2 ." 11

9. On July 26, 2002, Sobeleski filed an Application for

Administrative Appeal to the CDB from the CDC's decision. It

included numerous exhibits. It appears that not all of the

Application for Administrative Appeal and attachments were

presented to the CDB for its consideration on August 20, 2002.

One attachment was a letter dated March 27, 2002, from

Sobeleski's attorney to the CDC and the City's Land Planner.

This letter had 15 exhibits attached, but the CDC removed

Exhibits 9 - 15 from the versio n of the letter presented to the

CDB for its consideration. However, the letter stated that

Exhibits 10 - 15 were attached for "ease of review," and the CDC

separately presented copies of the documents contained in

Exhibits 12 - 15 for the CDB's consideration . As for the other

exhibits removed from the letter, Exhibit 9 was a computer

diskette containing the photographs that were presented to the

CDB for its consideration as Exhibits 1 - 8. Exhibit 10 was a

letter dated March 6, 2002, from individuals named Bl um to the

City Planner stating no objection to the proposed dock. Exhibit

11 was a letter dated March 7, 2002, from Mariani to the CDC

responding to opposition from Sobeleski and another individual

to the proposed dock. While Exhibit 11 apparently was no t

presented to the CDB for its consideration, it clearly was

adverse to Sobeleski's position and was addressed at length in

the letter from Sobeleski's attorney dated March 27, 2002. In

10. On August 20, 2002, the CDB considered the documents

described in the immediately preceding Finding, together with a

"City of Clearwater Planning Department Summary of Events,"

dated August 20, 2002, as well as oral presentations by the CDC,

counsel for Sobeleski, and counsel for Mariani. The audiotape -

recording of t he oral presentations reveals that, upon the

advice of the CDC and the Assistant City Attorney, the CDB

attempted to limit the oral presentations to the question

whether the CDB should remove Sobeleski's Application for

Administrative Appeal from the CDB's consent agenda so as to

cause a quasi - judicial hearing to be conducted, or should leave

it on the consent agenda, which would result in upholding the

CDC's decision. After being restricted by the CDB from

addressing the merits, counsel for Sobeleski argu ed for a quasi -

judicial hearing for reasons of "public policy." The CDB then

allowed counsel for Mariani to address the merits in arguing

that Sobeleski had made no showing as to why the CDC decision

was incorrect so as to justify a quasi - judicial hearing . 12 The

Assistant City Attorney concurred that some such showing should

be necessary to justify removal from the consent agenda. After

the oral presentations, the CDB voted to leave Sobeleski's

Application for Administrative Appeal on the CDB's consent

ag enda, thereby upholding the CDC's decision to issue the DO.

11. On August 26, 2002, Sobeleski filed an Appeal

Application from the CDB's decision. On September 20, 2002, the

City referred the Appeal Application to DOAH under Section 4 - 505

of the Code. However, the referral letter from counsel for the

City stated:

Please note that I am not forwarding

Exhibits 1 - 15 to the Appeal Application.

Items 1 - 9 and 12 - 15 are already of record

before the Board and are thus otherwise

included. Items 10 and 11 were not of

record below and are not being included, on

that basis.

Although the manner in which the record - on - appeal was prepared

made it exceedingly difficult to ascertain, it appears that the

referral actually failed to forward the entirety of Exhibit B to

the Appeal Application, which consisted of letters from

Appellant's counsel dated August 16 and March 27, 2002. 13 The

documents called "Exhibits" or "Items" in the referral letter

actually were Exhibits 1 - 15 attached to the letter from

Appellant's counsel dated March 27, 2002. As previously found,

the CDC decided not to present to the CDB all attachments to the

letter dated March 27, 2002. See Finding 9, supra . For that

reason, the Assistant City Attorney "redacted" the Appeal

Application by deleting th e items not in fact presented

(Exhibits 9, 10, and 11), as well as the items identical to

documents separately presented (Exhibits 12 - 15), to the CDB for

its consideration. See Finding 11, supra . 14

CONCLUSIONS OF LAW

Applicable Procedure and Burden on Ap peal

12. Under Section 4 - 501 of the Code, the hearing officer

has jurisdiction to hear appeals from decisions of the CDB

regarding Level One approvals, such as the CDC's DO in this

case.

13. Section 4 - 505 of the Code, governing hearing officer

appeals, was amended on May 2, 2002, and again on July 18, 2002.

See Finding 7, supra . It is concluded that those amendments are

procedural in nature and apply to cases pending at the time of

their adoption. See Life Care Centers of America, Inc. v.

Sawgrass Ca re Center, Inc. , 683 So. 2d 609, 613 (Fla. 1st DCA

1996). As a result, they would apply to this case even if it

were considered to have been commenced upon the filing of

Mariani's original application on January 18, 2002, instead of

upon the filing of eit her Sobeleski's Application for

Administrative Appeal to the CDB from the CDC's decision and her

Appeal Application from the CDB's decision, both of which were

after adoption of the amendments. See Findings 9 and 11, supra .

14. In its current form as a result of those amendments,

the appeal hearing before the hearing officer consists solely of

reception of the record before the CDB and oral argument. No

other evidence is to be considered. In addition, the burden on

appeal to the hearing officer is for "the appellant to show that

the decision of the [CDB] cannot be sustained by the evidence

before the [CDB], or that the decision of the [CDB] departs from

the essential requirements of law." Section 4 - 505.C. of the

Code.

15. While Section 4 - 505.C. of the Code requires the CDB's

decision to be sustained by "the evidence," not by "competent,

substantial evidence," the Court's discussion of the meaning of

that concept in DeGroot v. Sheffield , 95 So. 2d 912 (Fla. 1957),

is instructive :

We have used the ter m "competent substantial

evidence" advisedly. Substantial evidence

has been described as such evidence as will

establish a substantial basis of fact from

which the fact at issue can be reasonably

inferred. We have stated it to be such

relevant evidence a s a reasonable mind would

accept as adequate to support a conclusion.

. . . In employing the adjective "competent"

to modify the word "substantial" we are

aware of the familiar rule that in

administrative proceedings the formalities

and the introduction o f testimony common to

the courts of justice are not strictly

employed. . . . We are of the view,

however, that the evidence relied upon to

sustain the ultimate findings should be

sufficiently relevant and material that a

reasonable mind would accept it as adequate

to support the conclusion reached. To this

extent, the "substantial" evidence should

also be "competent."

Id. at 916 (citations omitted.) It also has been held that

whether a decision "departs from the essential requirements of

law" amounts to an inquiry into whether the decision - maker

"applied the correct law." Haines City Community Development ,

658 So. 2d 523, 530 (Fla. 1995) . In this case, Appellant was

unable to demonstrate either that the CDB's decision could "not

be sustained by the e vidence before the [CDB]," or that it

"departs from the essential requirements of law."

Findings of Fact Requirement

16. Notwithstanding the clear appellate review nature of

the hearing officer appeal process under current Section 4 - 505,

part D of Secti on 4 - 505 still requires the decision of the

hearing officer to include findings of fact. This requirement

is problematic. Review under Section 4 - 505 of the Code is the

second of two appellate reviews available for what the Code

calls Level One developmen t approval decisions. See Section 4 -

501 of the Code. A hearing officer (Administrative Law Judge)

acting in an appellate review capacity is without authority to

reweigh conflicting evidence presented below or to substitute

his or her judgment for that of the fact finder below on the

issue of the credibility of witnesses. See Haines City

Community Development v. Heggs , supra , at 530. As such, the

only true "findings of fact" that properly could be made at this

level of review would be findings reporting what occurred below

and what occurred procedurally in this case ( i.e. , in this case,

findings as to the preparation of the record - on - appeal.) Such

"findings of fact" could report findings below, but such

findings are minimal. No findings were made by the CDB during

its appellate review below. The DO stated that the CDC

"concurred with the findings of the Development Review

Committee," but it does not appear from the record - on - appeal in

this case that any written "findings" were made by the DRC other

than the ultimate findings of fact that can be gleaned from the

DRC's Bases for Approval, which were adopted in the DO. In the

absence of any other "findings of fact" below, the problematic

requirement in Section 4 - 505 of the Code that the Final Order

include findings of fact has been met by reciting parts of the

proceedings below, including the Bases for Approval.

Legal Context of CDB Decision

17. The decision of the CDB on the first administrative

appeal from the CDC's DO was made pursuant Section 4 - 504 o f the

Code, which provides in pertinent part:

B. Upon receipt of an application/notice of

appeal from a Level One approval (flexible

standard) from an abutting property owner,

the [CDB] shall place the appeal on the

consent agenda of the next scheduled me eting

of the board. . . . The appeal may be

removed from the consent agenda only by a

vote of at least four members of the [CDB].

If the appeal is not removed from the

consent agenda, the decision of the [CDC] is

confirmed as part of the consent agenda by a

vote of the majority of the members of the

board. If the appeal is removed from the

consent agenda, the [CDB] shall review the

application, the recommendation of the

[CDC], conduct a quasi - judicial public

hearing on the application in accordance

with t he requirements of Section 4 - 206 and

render a decision in accordance with the

provisions of Section 4 - 206(D)(5) granting

the appeal, granting the appeal subject to

specified conditions or denying the appeal.

C. In order to grant an appeal, overturning

or modifying the decision appealed from, the

[CDB] shall find that based on substantial

competent evidence presented by the

applicant or other party:

1. The decision appealed from

misconstrued or incorrectly interpreted the

provisions of this developm ent code;

2. That the decision will be in harmony

with the general intent and purpose of this

development code; and

3. Will not be detrimental to the public

health, safety and general welfare.

While the word construction in Section 4 - 504.C. of the Code is

awkward and results in facial ambiguity, it is concluded that,

for it to make any sense in context, the "decision" mentioned in

paragraph 2 must refer to the decision of the CDB granting,

overturning or modifying the decision appealed from, not th e

decision appealed from, and that paragraph 3 also must refer to

the decision of the CDB for the same reason. For that reason,

to prevail in the first - tier appeal to the CDB, an appellant

would have to persuade the CDB (after a quasi - judicial hearing)

th at the CDC's decision misconstrued or incorrectly interpreted

the provisions of the Code. The questions on this second - tier,

hearing officer appeal are whether the CDB's decision, made

without the benefit of a quasi - judicial hearing, is "sustained

by the evidence before the [CDB]" and whether it "departs from

the essential requirements of law." Section 4 - 505.C. of the

Code.

Review of CDB's Decision

18. Addressing Mariani's position first, the law generally

does not require a useless act. See DeWitt v. School Bd. of

Sarasota County , 799 So. 2d 322, 325 (Fla. 2d DCA 2001).

Mariani argued that the CDC clearly did not misconstrue or

incorrectly interpret any Code provision and that a quasi -

judicial hearing would have served no purpose. For that reason,

M ariani contended, the CDB's decision was sustained by the

evidence and did not depart from essential requirements of law.

19. Under Section 4 - 206.D.4. of the Code, the "burden of

proof is upon the applicant to show by substantial competent

evidence that he is entitled to the approval requested." Dock

requirements are set out in Section 3 - 601 of the Code, which

provides in subsection C.1.g. in pertinent part as follows:

The [CDC] may grant deviations from the

requirements of this section as a Level One

( minimum standard) approval provided that

signed and notarized statements of no

objection are submitted from adjacent

waterfront property owners, as well as

signed and notarized statements on the

Pinellas County Water and Navigation Control

Authority permit application. In the event

that such statements cannot be obtained,

applications for deviations may be approved

by the [CDC] through a Level One (flexible

standard) approval process based on one of

the following:

i) The proposed dock will result in no

navigational conflicts and the length of the

proposed dock will not exceed 25 percent of

the width of the waterway; or

ii) The proposed dock location needs to be

adjusted to protect environmentally

sensitive areas; or

iii) The property configurations precludes

the placement of a dock in compliance with

the required dimensional standards; however,

the proposed dock will be similar in

dimensional characteristics as surrounding

dock patterns.

Only one of these conditions for approval are required to be

met, and there was no question but that Mariani met both of the

first two conditions.

20. Appellant contends that, notwithstanding compliance

with Section 3 - 601.C.1.g. of the Code, the CDB erred by not

requiring a quasi - judicial hearing on the issue wh ether Mariani

met the "General Standards for Level One and Level Two approval

conditions" under Section 3 - 913 of the Code, which provides:

A. Conditions which are imposed by the

[CDC] and the [CDB] pursuant to a Level One

or a Level Two approval shall e nsure that:

1. The proposed development of the land

will be in harmony with the scale, bulk,

coverage, density, and character of adjacent

properties in which it is located.

2. The proposed development will not

hinder or discourage the appropriate

d evelopment and use of adjacent land and

buildings or significantly impair the value

thereof.

3. The proposed development will not

adversely affect the health or safety or

persons residing or working in the

neighborhood of the proposed use.

4. The proposed development is designed

to minimize traffic congestion.

5. The proposed development is consistent

with the community character of the

immediate vicinity of the parcel proposed

for development.

6. The design of the proposed development

mi nimizes adverse effects, including visual,

acoustic and olfactory and hours of

operation impacts, on adjacent properties.

B. In the event of an express conflict

between a particular flexibility criterion

and a provision of Article 3, the

flexibility cri terion shall govern unless

the context clearly implies that the Article

3 provision should control.

21. Mariani argues that, under Section 3 - 913.B., Section

3 - 601.C.1.g. supercedes the requirements of Section 3 - 913.A.

But there is no express conflict be tween Section 3 - 601.C.1.g.

and Section 3 - 913.A. As a result, it is concluded that Section

3 - 913.A. did apply. (The CDC's DO seemed to imply as much by

making compliance with Section 3 - 913 one of the "Bases for

approval." See Findings 4 and 8, supra . In addition, the City

argues in its Proposed Final Order that Appellant "failed to

show that the General Standards for Level One approval . . .

contained in Section 3 - 913 of the Code were not met.") For that

reason, it cannot be said that a quasi - judicial h earing would be

a "useless act," as argued by Mariani. On the other hand, it

also cannot be said, based on the record - on - appeal in this case,

that the CDC misconstrued or misinterpreted Section 3 - 913 of the

Code.

22. As previously concluded, no standar ds are provided in

Section 4 - 504.B. of the Code to guide the CDB's decision on the

question of whether to remove an appeal from its consent agenda

for purposes of conducting a quasi - judicial public hearing. As

a result, it cannot be said that the CDB appl ied the incorrect

law.

23. The City suggested that the CBD's decision was

sustained by the evidence under either of two possible

standards: a requirement that the CDB exercise sound

discretion; or a requirement that the appellant make a showing

of a co lorable basis for overturning the CDC's DO. It is

concluded that the former standard applied and that the CDB's

decision should only be overturned if the CDB abused its

discretion. Cf. e.g. Smith v. Coalition to Reduce Class Size ,

827 So. 2d 959, 961 (Fl a. 2002)("order imposing a permanent

injunction lies within the sound discretion of the trial court

and will be affirmed absent a showing of abuse of discretion");

Aerolineas Argentinas, S.A. v. Gimenez , 807 So. 2d 111, 116

(Fla. 3d DCA 2002)(trial court's exercise of discretion to

determine forum non conveniens to be upheld if reasonable);

State v. Batterton , 784 So. 2d 1259 (Fla. 5th DCA 2001)(motion

for new trial addressed to court's sound discretion, which is

upheld unless abuse of discretion).

24. A ppellant argued in her Proposed Order that the City's

proposed "showing of colorable basis" standard was met. But it

is concluded that the CDB's decision would also be sustained by

the evidence under that standard.

25. Appellant also argued that the CD B erroneously

believed that a second - tier appeal to a hearing officer under

Section 4 - 505 of the Code would afford Appellant a "full and

meaningful appeal" -- essentially, a de novo hearing. But the

record - on - appeal does not support this argument. 15

Recor d - on - Appeal

26. A troublesome aspect of this case was the City's

handling of the records in the two appeals. In the first - tier

appeal, Section 4 - 504.B. of the Code required that the CDB make

its decision whether to remove Sobeleski's appeal from the CDB' s

consent agenda based on the Application for Administrative

Appeal. But the CDC failed to present to the CDB the entire

Application for Administrative Appeal for its consideration.

See Finding 9, supra . In the second - tier appeal, the City

"censored" th e Appeal Application and did not forward items not

presented to the CDB for its consideration. See Finding 11,

supra . It is concluded that the Appeal Application should have

been forwarded to DOAH in its entirety and that, while Section

4 - 505 of the Code does not specify the contents of the record -

on - appeal, it should have included items requested to be

presented but, for whatever reason, not presented to the CDB for

its consideration. Cf. Rules 9.190(c) and 9.200(a), Florida

Rules of Appellate Procedure 16 . While it ultimately was

determined that the shortcomings in the handling of the record -

on - appeal both below and in this appeal did not require

reversal, they added to the time and effort required to fully

comprehend and decide some of the issues presen ted.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, the Appeal Application is denied, the decision of the CDB

is sustained, and the CDC's DO is upheld.

DONE AND ORDERED this 13th day of January, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filin g (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of January, 2003.

ENDNOTES

1 / The Planning Department's Staff Summary of Events, dated

August 20, 2002, indicates th at the original application was re -

filed ten days later. The record - on - appeal includes the re -

filed application, not the originally - filed application.

2 / Either by mistake or in an apparent attempt to make them

clearer, some Code citations in the reco rd - on - appeal and in the

parties' filings include hyphens or parentheses to separate

subsections and paragraphs. But the Code itself uses periods

for this purpose.

3 / The DRC cited to Section 2 - 203 of the Code for "Flexibility

Criteria for Docks." Act ually, the criteria are found in

Section 3 - 601.C.1.g. Also, it is not clear why the DRC

considered Mariani's application to be for a 92 - foot long dock

at that point in time.

4 / The Report incorrectly cited the provision as "Section 3 -

601.C.g."

5 / One of Appellant's issues on appeal and below before the CDB

was that this basis for approval was incorrect in that there is

no "existing" dock. It appears that the intended reference was

to the dock that could have been built without any deviation to

mee t environmental concerns.

6 / For reasons not made clear from the record - on - appeal, there

are two filed - stamp dates on the document -- one for April 14,

2002, indicating receipt by "Development Services Department,"

and another for April 15, 2002, indicatin g receipt by "Planning

and Development Services." Also for reasons not made clear from

the record - on - appeal, the document also bears the notation,

"Exhibit C (Site Plan).

7 / Another issue raised by Appellant on this appeal and below

before the CDB was that it was not clear from these "Dock Plans"

which alternative was being proposed.

8 / There was another amendment to Section 4 - 505 on July 18,

2002, relating to the timing of the appeal hearings.

9 / Another issue raised on this appeal and below befo re the CDB

was that the DO was signed by someone other than the CDC for the

CDC. However, there was no indication that the person signing

was not properly authorized to sign for the CDC. To the

contrary, the Planning Department Staff Summary of Events, d ated

August 20, 2002, indicates that the DO was "approved by the

[CDC] (Planning Director) through its designee (Assistant

Planning Director) . . . ."

10 / This was another issue raised by Appellant on this appeal

and below before the CDB.

11 / Appella nt contended on this appeal and below before the CDB

not only that the "Dock Plans" were ambiguous, as already

addressed in Endnote 7, supra , but also that the use of the

disjunctive "or" made this condition ambiguous. But it was

clarified in proceedings before the CDB that the DO made

condition #2 mandatory.

12 / On this appeal and below before the CDB, Appellant argued

not only that it was error to limit her oral presentation but

also that the CDB's disparate treatment of the parties was a

violation o f due process.

13 / Because the referral letter "censored" the Appeal

Application, it was not clear until much later (when Appellant

filed a complete copy of the Appeal Application on December 19,

2002) what was omitted from the referral. See last parag raph of

Preliminary Statement and Finding 11, supra . Until then, it

could not even be ascertained that there was a letter dated

August 16, 2002, attached to the Appeal Application. (That

letter essentially transmitted a copy of the letter dated

March 27, 2002, for presentation to the CDB when it considered

Sobeleski's Application for Administrative Appeal to the CDB.)

14 / See also Conclusion 26, infra , for additional discussion of

the manner in which the record - on - appeal was prepared in this

case.

15 / Among the other points - on - appeal not meeting the this

standard are those reflected in Endnotes 5, 7, 9, 10, 11, and

12, supra .

16 / It may be advisable for the City to amend Section 4 - 505 of

the Code to specify the method of preparation of the record - on -

appeal, as is done in the court Rules of Appellate Procedure.

COPIES FURNISHED :

Maxwell G. Battle, Jr., Esquire

Battle & Edenfield, P.A.

206 Mason Street

Brandon, Florida 33511

Leslie K. Dougall - Sides, Esquire

City of Clearwater

Post Office Box 4 748

Clearwater, Florida 33758 - 4748

Timothy A. Johnson, Jr., Esquire

Johnson, Blakely, Pope,

Bokor, Ruppel & Burns, P.A.

911 Chestnut Street

Post Office Box 1368

Clearwater, Florida 33757

Cynthia Goudeau, City Clerk

City of Clearwater

Post Office Box 4748

Clearwater, Florida 34618

NOTICE OF RIGHT TO JUDICIAL REVIEW

According to Section 4 - 505.D. of the Code, this Final Order is

subject to judicial review by common law certiorari to the

circuit court.