03-002585 The Cepcot Corporation And Clearwater Train Station, Inc. vs. City Of Clearwater Planning Department Status: Closed DOAH Final Order on Tuesday, December 2, 2003.

Summary: Community Development Board`s denial of an application to build convenience store with two gas pumps in downtown district is supported by competent, substantial evidence and does not depart from the essential requirements of law.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE CEPCOT CORPORATION AND )

CLEARWATER TRAIN STATION, )

INC ., )

)

Petitioners, )

)

vs. ) Case No. 03 - 2585

)

CITY OF CLEARWATER PLANNING )

DEPARTMENT, )

)

Respondent. )

____ __________________________)

FINAL ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the appeal hearing in

Clearwater, Florida, on October 9, 2003.

APPEARANCES

For Petitioner: Darryl R. Richards

Johnson, Pope, Bokor,

Ruppel & Burns, P.A.

911 Chestnut Street

Clearwater, Florida 33756

For Respondent: Leslie K. Dougall - Sides

City of Clearwa ter

Post Office Box 4748

Clearwater, Florida 33758 - 4748

STATEMENT OF THE ISSUE

The issue on appeal is whether, pursuant to Clearwater Code

of Ordinances Section 4 - 505, to sustain or reverse, with or

without co nditions, the decision of the Community Development

Board on June 20, 2003, denying Cepcot Corporation's application

to build a convenience store with two islands for pumping gas.

PRELIMINARY STATEMENT

On May 20, 2003, Petitioner filed an application with

Respondent for approval of a development. Respondent's

Development Review Committee examined the application, and

Respondent's Community Development Board published notice that

it would consider the application at its meeting of June 17,

2003. At the me eting, the Community Development Board denied

the application and issued its Development Order to this effect

on June 20, 2003.

On June 25, 2003, Petitioners timely filed a Notice of

Appeal of the determination of the Community Development Board.

Respond ent transmitted the appeal to the Division of

Administrative Hearings, which conducted the hearing pursuant to

City of Clearwater Community Development Code Section 4 - 505.

At the hearing, the parties did not present witnesses.

Instead, they presented Joi nt Exhibits 1 - 5 and Petitioner

Exhibits 1 - 2, all of which were admitted.

The court reporter filed the transcript on October 29,

2003. The parties filed their P roposed F inal O rders on the same

date.

FINDINGS OF FACT

1. Petitioner The Cepcot Corporation ( Cepcot) owns real

property located at 657 Court Street in the downtown zoning

district of the City of Clearwater (Property). On December 17,

2002, Cepcot filed a Flexible Development Application for a

comprehensive infill redevelopment project (Applicatio n) on the

Property.

2. At the time of the proposal, the Property, which

comprises 0.95 acres, was developed with a restaurant in a

building that was the former Clearwater train station, a thrift

store, and a park. The Application proposes the demolition of

these improvements and their replacement with a 3200 square - foot

convenience store and two gas pump islands.

3. The Property fronts Chestnut Street to the south, East

Avenue to the east, and Court Street to the north. The

surrounding area is developed w ith office uses to the west and

south, a privately owned utility plant to the north, and

warehouse uses to the east. Upon the completion of the Memorial

Causeway bridge, which is presently under construction, traffic

to the beach will use Court Street and traffic from the beach

will use Chestnut Street.

4. In response to questions and suggestions from

Respondent's staff, Cepcot revised the proposed site plan

several times. The Application is presently complete.

Respondent's Planning Department prepared a Staff Report, which

finds that the proposed project does not meet certain

requirements and recommends denial of the Application on several

grounds.

5. On June 17, 2003, Respondent's Community Development

Board (CDB) considered the Application. CDB denied t he

Application and issued a development order explaining the

reasons for denial as follows:

1. The proposal is inconsistent with the

adopted Community Development Code, the

Comprehensive Plan, 1995 Clearwater Downtown

Redevelopment Plan, and the Downtown Design

Guidelines.

2. The proposed automobile service station

is not a permitted use within the downtown

district.

3. Approval of the proposed use may

encourage other like uses and may be

detrimental to downtown redevelopment.

4. The proposal does no t comply with the

Flexible Development criteria as a

comprehensive infill redevelopment project

per Section 2 - 803.

5. The proposal is not in compliance with

the other standards in the Code including

the general applicability criteria for

Section 3 - 913.

6. Most of the reasons cited for denial involve

Respondent's Community Development Code (CDC), which is the land

development regulations. The Property is in the Downtown

District. CDC Section 2 - 901 states: " The intent and purpose of

the Downtown District is to establish a mixed use downtown where

citizens can work, live, and shop in a place which is the

economic, governmental, entertainment and cultural focal point

of a liveable city."

7. CDC Section 2 - 902 sets forth the permitted uses within

the Downtown District, and CDC Chart 2 - 100 lists permitted uses

by zoning district. The proposed uses are not among the

permitted uses for the Downtown District (or the Tourist

District, to which portions of the record refer). CDC Section

2 - 903.C sets forth the follo wing ten criteria to be applied in

determining if the proposed use qualifies as a Comprehensive

Infill Redevelopment Project (CIRP) that may qualify an

otherwise non - permitted use:

1. The development or redevelopment of the

parcel proposed for development is otherwise

impractical without deviations from the use,

intensity and development standards;

2. The development of the parcel proposed

for development as a Comprehensive Infill

Redevelopment Project will not reduce the

fair market value of abutting pr operties;

3. The uses within the comprehensive infill

redevelopment project are otherwise permitted

in the City of Clearwater;

4. The uses or mix of uses within the

comprehensive infill redevelopment project

are compatible with adjacent land uses;

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;

6. The development of the parcel proposed

for development as an compr ehensive infill

redevelopment project will upgrade the

immediate vicinity of the parcel proposed for

development;

7. The design of the proposed comprehensive

infill redevelopment project creates a form

and function which enhances the community

character of the immediate vicinity of the

parcel proposed for development and the City

of Clearwater as a whole;

8. Flexibility in regard to lot width,

required setbacks, height and off - street

parking are justified by the benefits to

community character and the i mmediate

vicinity of the parcel proposed for

development and the City of Clearwater as a

whole;

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 - str eet parking

in the immediate vicinity of the parcel

proposed for development;

10. The design of all buildings complies

with the Downtown District design guidelines

in Division 5 of Article 3.

8. CDC Section 3 - 913.A sets forth the General

Applicability cr iteria. CDC Section 3 - 913.A.1 states: "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." CDC Section 3 - 913.A.5

states: The proposed development is consistent with the

community character of the immediate vicinity of the parcel

proposed for development."

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.569, Fla

Stat. (2003), and CD C Sections 4 - 501 and 4 - 505.

10. CDC Section 4 - 505.B provides that the hearing officer

conducting this appeal shall receive "the record before [CDB]"

and "oral argument." Absent a factual dispute concerning the

contents of the record before CDB, the hearing officer does not

receive evidence at the appeal hearing.

11. There is no material factual dispute as to the

contents of the record before CDB in this case. The inclusion

and consideration of Petitioners' exhibits as part of the record

before CDB does not di ctate a different result.

12. CDC Section 4 - 505.D directs the hearing officer to

enter findings of fact, conclusions of law, and a determination

approving, approving with conditions, or denying the

Application. The appellate nature of this proceeding comman ds a

greater level of deference to the actions of CDB than would

apply if this case were de novo . The findings of fact thus

consist of undisputed direct facts, largely culled from the

Application, CDB's development order, and Respondent's planning

documen ts. Based upon these findings of fact, the hearing

officer then reviews the ultimate findings of fact and

conclusions of law of CDB.

13. CDC Section 4 - 505.C provides:

The burden shall be upon the appellant to

show that the decision of [CDB] cannot be

sustaine d by the evidence before the board,

or that the decision of the board departs

from the essential requirements of law.

14. The reference to "evidence" in CDC Section 4 - 505.C is

to "competent, substantial evidence." See Sobeliski v. City of

Clearwater and Mari ani , DOAH Case No. 02 - 3637 (January 13,

2003). Compare DeGroot v. Sheffield , 95 So. 2d 912, 916 (Fla.

1957) ("Substantial evidence has been described as such evidence

as will establish a substantial basis of fact from which the

fact at issue can be reason ably inferred. . . . [T]he evidence

relied upon to sustain the ultimate finding 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.'")

15. Petitioners do not cite any procedural irregularities

as grounds for their challenge in this case. Instead, they

challenge CDB's substantive determinations that the proposed

project was inconsistent with various planning docu ments.

Because CDB's determination that the proposed project was

inconsistent with the CDC is sustained, it is unnecessary to

consider the other planning documents, with which CDC found

inconsistencies.

16. CDB's determination that the proposed project is

inc onsistent with the CDC is supported by competent, substantial

evidence and does not depart from the essential requirements of

law.

17. Stressing the literal wording of the first CIRP

criterion, Petitioners argue that their proposed project

satisfies this crite rion because it would deviate only from the

use standard of the CDC, not the "use, intensity and development

standards" of the CDC. CDB applied this requirement in the

disjunctive, so that the failure of the proposed project to

satisfy the use standard me ant that it failed the first CIRP

criterion, absent evidence that the redevelopment of the

Property is otherwise "impractical."

18. CDB's application of the first CIRP criterion is

supported by competent, substantial evidence and does not depart

from the es sential requirements of law. Common sense suggests

that the CDC's use of the conjunctive, rather than the

disjunctive, was inadvertent; otherwise, the attempt to

designate certain uses at certain intensities would fail, as

partial compliance would satisfy the language of this

regulation. Moreover, the redevelopment of the Property is not

impractical without deviations from the applicable use,

intensity, or development standards. Permitted uses are

numerous, and the Property appears suitable for any numbe r of

them.

19. The proposed project satisfies the second, third,

fifth, eighth, and ninth CIRP criteria. Respondent did not

contend to the contrary at the appeal hearing or in its proposed

final order. Although Respondent argued at the appeal hearing

that th e proposed project fails to satisfy the fourth criterion,

based in part on a strained reading of this criterion to apply

to future rather than existing land uses, Respondent has not so

argued in its proposed final order. Likewise, Respondent has

abandoned its argument that the proposed project is not

consistent with the sixth criterion.

20. Respondent continues to contend that the proposed

project fails to satisfy the seventh and tenth CIRP criteria.

The immediate vicinity of the Property is occupied by office s,

warehouses, and a small utility plant. A gas station and

convenience store would serve the beach - bound traffic, although

it would serve as well the nontransportation functions of

surrounding uses. Additionally, t he proposed project, as a

nonurban conv enience store with a couple of gas pumps, would

cover little of the Property, and CDB may lawfully determine

that the proposed project would appear disharmonious with the

surrounding bulkier structures. Under these circumstances,

CDC's determination conce rning the seventh CIRP criterion is

supported by competent, substantial evidence and does not depart

from the essential requirements of law.

21. However, it is unclear how the proposed project fails

to satisfy the tenth CIRP criterion. In its proposed final

o rder, Respondent did not expand upon its claim that the project

fails to satisfy this criterion. The basis for this claim seems

to involve off - street parking, but, if the proposed project

satisfies the ninth CIRP criterion, it should also satisfy the

tent h CIRP criteria, after that criterion is reduced to off -

street parking concerns. Under these circumstances, CDC's

determination concerning the tenth CIRP criterion is not

supported by competent, substantial evidence and departs from

the essential requirem ents of law.

22. Petitioners argue that Respondent must balance the ten

CIRP criteria, so that the failure to satisfy any single

criterion does not preclude qualification as a CIRP. CDC

applied these ten criteria in the conjunctive, so that the

failure to sat isfy any single criterion precludes qualification

as a CIRP. As the practical reading of the first CIRP criterion

supported CDB's application of this criterion's three

requirements in the disjunctive, so does the practical reading

of the ten CIRP criteria support CDB's application of these

requirements in the conjunctive. Failing to satisfy the first

and seventh CIRP criteria, the proposed project therefore does

not qualify as a CIRP.

23. It is unnecessary to consider CDB's determination that

the proposed pro ject fails to satisfy the first and fifth

General Applicability criteria, or Petitioners' argument that

the General Applicability criteria are inapplicable. These

General Applicability criteria emphasize the form and appearance

of adjacent properties and are incorporated into the part of the

seventh CIRP criterion covering form.

ORDER

It is

ORDERED that the decision of the Community Development

Board to deny the Application is sustained.

DONE AND ORDERED this 2nd day of December, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Admini strative 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 2nd day of December, 200 3.

COPIES FURNISHED:

Cynthia Goudeau, City Clerk

City of Clearwater

Post Office Box 4748

Clearwater, Florida 34618 - 4748

Cynthia Tarapani, Planning Director

City of Clearwater

Post Office Box 4748

Clearwater, Florida 34618 - 4748

Darryl R. Richards

Joh nson, Pope, Bokor,

Ruppel & Burns, P.A.

911 Chestnut Street

Clearwater, Florida 33756

Leslie K. Dougall - Sides

City of Clearwater

Post Office Box 4748

Clearwater, Florida 33758 - 4748

NOTICE OF RIGHT TO JUDICIAL REVIEW

Pursuant to Clearwater Code of Or dinances Section 4 - 505.D, a

party may obtain judicial review of this Final Order by filing

an application for a writ of common law certiorari in the

appropriate circuit court.