04-002953
Mary Kate Belniak vs.
Top Flight Development, Llc, And City Of Clearwater
Status: Closed
DOAH Final Order on Tuesday, November 23, 2004.
DOAH Final Order on Tuesday, November 23, 2004.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8MARY KATE BELNIAK, )
12)
13Appellant, )
15)
16vs. ) Case No. 04 - 2953
23)
24TOP FLIGHT DEVELOPMENT, LLC, )
29and CITY OF CLEARWATER, )
34)
35Appellees, )
37______________________________)
38FINAL ORDER
40A ppellant, Mary Kate Belniak, seeks review of a Development
50Order (DO) rendered by the City of Clearwater Community
59Development Board (Board) on July 26, 2004. The Division of
69Administrative Hearings (DOAH), by contract, and pursuant to
77Article 4, Division 5, Section 4 - 505 of the Community
88Development Code (Code), has jurisd iction to consider this
97appeal. Oral argument was presented by the parties on
106October 11, 2004, in Clearwater, Florida. Appellant and
114Appellees, Top Flight Development, LLC (Top Flight) and City of
124Clearwater (City), have submitted Proposed Final Orde rs.
132STATEMENT OF THE ISSUE
136The issue is whether to approve, approve with conditions,
145or deny Top Flight's development application approved by the
154Board on July 26, 2004. That decision approved a Flexible
164Development application to permit a reduction on t he side (east)
175setback from 10 feet to 5.85 feet (to pavement) and an increase
187of building height from 35 feet to 59 feet from base flood
199elevation of 13 feet MSL (with height calculated to the midpoint
210of the roof slope) in association with the constructi on of 62
222multi - family residential (attached) units at 1925 Edgewater
231Drive, Clearwater, Florida.
234PRELIMINARY STATEMENT
236This matter began on September 25, 2003, when Top Flight
246filed a Flexible Development application with the City seeking
255approval of a site plan which increased the building height
265(from 50 to 75 feet) of a seven - story condominium (including
277covered parking) to be constructed on a 2.572 - acre site at
2891925 Edgewater Drive, Clearwater, Florida. The application was
297scheduled for considerat ion by the Board at meetings conducted
307on March 16, April 20, May 18, and July 20, 2004, and approval
320was given at the meeting on July 20, 2004. At that meeting,
332testimony and statements were given by Michael H. Reynolds, a
342City Planner III; Robert Aude, an architect employed by Top
352Flight; four property owners who were given party status and
362opposed the application: Appellant, Tracy Spikes, Dean Falk,
370and Richard Mabee; four individuals who supported the
378application; and fifteen individuals who opposed t he
386application. On July 26, 2004, a DO was rendered memorializing
396the Board's action and approving the application with certain
405modifications to the original design and subject to eighteen
414conditions.
415Under Article 4, Division 5, Section 4 - 505 of the Co de, a
429decision by the Board may be appealed to a hearing officer
440(administrative law judge). On August 3, 2004, Appellant, who
449resides near the project site, filed her Appeal Application
458seeking to overturn the decision. Borrowing from language in
467Sectio ns 4 - 504.C and 4 - 505.C of the Code, Appellant contended
481that the decision misconstrued or incorrectly interpreted the
489provisions of the Code; that the decision is not in harmony with
501the general intent and purpose of the Code; that the decision is
513detrimen tal to the public health, safety, and general welfare;
523that the decision cannot be sustained by the evidence before the
534Board; and that the decision departs from the essential
543requirements of the law. Because Section 4 - 505.C, and not
554Section 4 - 504.C, gove rns this appeal, only the last two grounds
567are relevant. As later clarified by her counsel, Appellant
576contends that she was not afforded procedural due process in
586several respects and that the Board committed errors so
595fundamental as to render approval of the project void. She also
606contends that there is no evidence to support the Board's
616decision. As further clarified by counsel, Appellant is
624concerned only with the proposed height of the condominium.
633On August 19, 2004, the Appeal Application, along with the
643Record - on - Appeal, was referred by the City to DOAH with a
657request that an administrative law judge serve as a hearing
667officer on the appeal. By Order dated October 11, 2004,
677Appellant's unopposed Motion to Supplement Record was granted,
685and the v ideotapes of the four Board meetings and an exhibit
697submitted by Appellant at the meeting on July 20, 2004, were
708made a part of the record.
714Pursuant to a Notice issued on August 31, 2004, oral
724argument on the appeal was heard on October 11, 2004, in
735Clearw ater, Florida. Appellant and Appellees participated in
743the oral argument and were represented by counsel. Although
752three other individuals had been given party status by the
762Board, except for Appellant, none requested the right to
771participate in this app eal. At the hearing, the Record - on -
784Appeal was received in evidence.
789On October 29 and 31 and November 4, 2004, respectively,
799the City, Appellant, and Top Flight filed Proposed Final Orders
809which have been considered by the undersigned in the preparation
819o f this Final Order. In addition, Top Flight has filed a copy
832of the Transcript of the Board's July 20, 2004, meeting.
842Transcripts of the other meetings were not provided. However,
851videotapes of those meetings (without a transcription) have been
860made a p art of this record.
867Finally, even though this matter is an appeal of a Level
878Two decision, which requires that the undersigned sit in an
888appellate review capacity, Section 4 - 505.D requires that "[t]he
898decision of the hearing officer shall include finding s of fact,
909conclusions of law, and a determination approving, approving
917with conditions, or denying the requested development
924application." Notwithstanding this incongruity, in accordance
930with that requirement, the Final Order has been prepared in that
941fo rmat.
943FINDINGS OF FACT
9461. On September 25, 2003, Top Flight filed a Flexible
956Development Application for Level Two approval of a
964comprehensive infill for redevelopment of properties located on
972the southeast corner of the intersection of Sunnydale Drive and
982Edgewater Drive and just north of Sunset Pointe Road in
992Clearwater, Florida. A Comfort Suites motel is just north of
1002the property, while a Chevron gasoline station sits on the south
1013side. The property is located within the Tourist zoning
1022district, wh ich allows condominiums as a permitted use. The
1032project, as originally proposed, involved the construction of a
1041seventy - seven unit, seven - story (including covered parking),
1051luxury condominium on a 2.572 - acre tract of land now occupied by
106432 motel units an d 9 rental apartments with ancillary
1074structures, which the developer intends to raze.
10812. The original application requested a deviation from the
1090requirement in the Code that structures in the Tourist zoning
1100district not exceed 35 feet in height. Under flexible
1109development standards for that zoning district, however, a
1117structure may be built to a maximum height of between 35 and 100
1130feet. (Although the City staff is authorized to approve
1139requests for a deviation up to a maximum height of 50 feet
1151without a hearing, Top Flight was requesting a flexible
1160deviation to allow the building to be constructed an additional
117025 feet, or to a height of 75 feet. This was still less than
1184the 100 feet allowed under flexible development standards.)
11923. On December 24, 2003, Top Flight filed a second
1202application which amended its earlier application by seeking a
1211reduction of the front yard setback on Sunnydale Drive from 25
1222feet to 17 feet to allow the placement of balcony support
1233columns within the setbacks. Without a deviation, the Code
1242requires a minimum 25 - foot front yard setback. The second
1253application continued to seek a deviation in height standards to
126375 feet.
12654. Because of staff concerns, on February 5, 2004, Top
1275Flight filed a third Flexible Development appl ication for the
1285purpose of amending its earlier applications. The matter was
1294placed on the agenda for the March 16, 2004, meeting of the
1306Board.
13075. At the meeting on March 16, 2004, the City's staff
1318recommended that certain changes in the design of the building
1328be made. In order to make these suggested changes, Top Flight
1339requested that the matter be continued to a later date. That
1350request was granted, and the matter was placed on the agenda for
1362the April 20, 2004, meeting.
13676. At the April 20, 2004, meeting, Board members again
1377expressed concern over the height of the building, the lack of
1388stair stepping, and the bulk, density, and height. Because of
1398these concerns, Top Flight requested, and was granted, a 90 - day
1410continuance to address these concern s. Appellant, who was
1419present at that meeting, did not object to this request. The
1430matter was then placed on the agenda for May 18, 2004, but
1442because of a notice problem, it was continued to the July 20,
14542004, meeting.
14567. During the April 20, 2004, me eting, the Board allowed
1467Top Flight's architect, Mr. Aude, and a City Planner III,
1477Mr. Reynolds, to make their presentations prior to asking if any
1488persons wished party status. (Section 4 - 206.D.3.b. provides
1497that, as a preliminary matter, the chair of the Board shall
"1508inquire of those attending the hearing if there is any person
1519who wishes to seek party status.") Mr. Reynolds was not sworn,
1531even though Section 4 - 206.D.3.d requires that all "witnesses
1541shall be sworn." After the presentations by Mr. Au de and
1552Mr. Reynolds, Appellant was given party status. Therefore,
1560Appellant could not cross - examine the two witnesses immediately
1570after they testified. However, Appellant did not request the
1579right to examine those witnesses nor did she lodge an objec tion
1591to the procedure followed by the Board. Also, assuming that
1601Mr. Aude and Mr. Reynolds were treated as experts by the Board,
1613there is no indication that either witness submitted a resume at
1624the hearing. (Section 4 - 206.D.5.a. requires that "[a]ny exp ert
1635witness testifying shall submit a resume for the record before
1645or during the public hearing.") However, no objection to this
1656error in procedure was made by any person, including Appellant.
16668. Based on the concerns of staff and Board members at the
1678Ap ril 20, 2004, meeting, and to accommodate objections lodged by
1689nearby residents, Top Flight modified its site plan by reducing
1699the height of the building from 75 to 59 feet (which in turn
1712reduced the height of the building from six stories over parking
1723to four) and increasing the number of parking spaces. Other
1733changes during the lengthy review process included decreasing
1741the side (rather than the front) setback from a minimum of
175210 feet to 5.85 feet and preserving two large oak trees on the
1765property. The proposed height was significantly less than the
1774maximum allowed height in the Tourist district (100 feet), and
1784the proposed density of 59 units was also considerably less than
1795the maximum allowed density on the property (30 units per acre,
1806or a total of 77 on the 2.57 - acre tract). The application, as
1820amended, was presented in this form at the July 20 meeting.
1831Documents supporting the various changes were filed by Mr. Aude
1841in February, March, April, May, and June 2004, and are a part of
1854the record.
18569. At the hearing on July 20, 2004, Mr. Reynolds and
1867Mr. Aude again testified in support of the application, as
1877amended. The staff report prepared by Mr. Reynolds was made a
1888part of the record. (Section 4 - 206.G provides that the record
1900shall consist of, among other things, "all applications,
1908exhibits and papers submitted in any proceeding.") The report
1918found that "all applicable Code requirements and criteria
1926including but not limited to General Applicability criteria
1934(Section 3 - 913) and the flexibi lity criteria for attached units
1946(Section 2 - 803.B) have been met." The Board accepted this
1957evidence as the most persuasive on the issue. The Board further
1968accepted the testimony of Mr. Aude, and a determination in the
1979staff report, that the project would be compatible with the
1989character of the neighborhood. In doing so, it implicitly
1998rejected the testimony of Appellant, and other individuals, that
2007the height of the building was inconsistent with the character
2017of the neighborhood. Finally, the Board acce pted Mr. Reynolds'
2027recommendation that the application should be approved, subject
2035to eighteen conditions. The vote was 4 - 2 for approval.
204610. During the July 20, 2004, meeting, Mr. Reynolds was
2056cross - examined by another party, Mr. Falk. Although given the
2067right to do so, Appellant did not question the witness. All
2078parties, including Appellant, were given the opportunity to
2086cross - examine Mr. Aude, but none sought to do so. The parties
2099were also given the opportunity to ask questions of Top Flight's
2110co unsel, who gave argument (but not evidence) on behalf of his
2122client. Although members of the public, and Appellant, were
2131limited in the amount of time allowed for statements to three
2142minutes, all persons who gave testimony or made statements that
2152day, inc luding Appellees, were urged by the chair to limit their
2164remarks. Finally, Top Flight's counsel was allowed to make a
2174closing argument at the meeting, at which time he used a
2185demonstrative exhibit (a "chart" containing the names of area
2194residents who supp orted the project), which was shown to Board
2205members. (The same information can be found in the City files,
2216which are a part of this record and contain correspondence from
2227numerous area residents, some supporting, and others opposing,
2235the project.) Altho ugh Appellant was not shown a copy of the
2247document, the record does not show that she objected to the use
2259of a demonstrative exhibit, or that she requested to see a copy.
227111. Mr. J. B. Johnson was appointed to the Board sometime
2282after the April 20, 2004, meeting. At the July 20, 2004,
2293meeting, he made the following statement concerning Top Flight's
2302application:
2303I can't speak for everybody here. Some
2310people have lived here a short period of
2318time. In view of every word that I have
2327heard, every word that I have read, and I've
2336been keeping up with this for several months
2344because several months ago I had telephone
2351calls from your area.
2355I don't know how you could satisfy
2362everybody. It's impossible, but I do know
2369this, this is a great project. One that
2377wou ld be good for the City. One for the
2387area, good for the area and I will support
2396this.
2397Appellant has not cited to any evidence showing that Mr. Johnson
2408did not review the record of the prior meetings or the
2419application file before he cast his vote. Furth er, Appellant
2429did not object to Mr. Johnson's participation.
243612. On July 26, 2004, the Board entered its DO
2446memorializing the action taken on July 20, 2004, which approved
2456Top Flight's application. In the DO, the Board made the
2466following findings/conclus ions supporting its decision:
24721. The proposal complies with the Flexible
2479Development criteria per Section 2 - 803.B
24862. The proposal is in compliance with other
2494standards in the Code including the General
2501Applicability Criteria per Section 3 - 913.
25083. The development is compatible with the
2515surrounding area and will enhance other
2521redevelopment efforts.
252313. The decision also included 18 Conditions of Approval
2532and a requirement that an application for a building permit be
2543made no later than July 20, 2005.
255014. On August 3, 2004, Appellant filed her Appeal
2559Application seeking a review of the Board's decision. The
2568Appeal Application set out two relevant grounds (without any
2577further specificity): that the Board's decision was not
2585supported by the evidence , and that the Board departed from the
2596essential requirements of the law. On August 19, 2004, the City
2607referred the Appeal Application to DOAH. The specific grounds
2616were not disclosed until Appellant presented oral argument and
2625filed her Proposed Final O rder. 1
2632CONCLUSIONS OF LAW
263515. The Division of Administrative Hearings has
2642jurisdiction over the subject matter of this proceeding and of
2652the parties pursuant to Article 4, Division 5, Section 4 - 505 of
2665the Code. Under that provision, the hearing officer m ay
2675approve, approve with conditions, or deny the requested
2683development application. The appeal process is described in
2691more specificity in subsections B., C., and D. of the section as
2703follows:
2704B. At the hearing, the record before the
2712community developmen t board shall be
2718received by the hearing officer.
2723Additionally, oral argument may be presented
2729by the appellant, applicant, city, and any
2736other person granted party status by the
2743community development board.
2746C. The burden shall be upon the appellant
2754to show that the decision of the community
2762development board cannot be sustained by the
2769evidence before the board, or that the
2776decision of the board departs from the
2783essential requirements of law.
2787D. The persons entitled to present oral
2794argument as set fort h in subsection B. above
2803may submit proposed final orders to the
2810hearing officer within 20 days of the
2817hearing. The hearing officer shall render a
2824decision within 45 days of the hearing. The
2832decision of the hearing officer shall
2838include findings of fact, conclusions of
2844law, and a determination approving,
2849approving with conditions, or denying the
2855requested development application.
285816. While Section 4 - 505.C of the Code simply requires that
2870the Board's decision be sustained by "the evidence," as opposed
2880to "competent substantial evidence," the discussion of that term
2889by the court in Degroot v. Sheffield , 95 So. 2d 912, 915 (Fla.
29021957), is helpful. See Sobeleski v. City of Clearwater and
2912Mariani , DOAH Case No. 02 - 3637 (DOAH Jan. 13, 2003). In
2924Degroot , th e court discussed the meaning of "competent
2933substantial evidence" as follows:
2937We have used the term "competent substantial
2944evidence" advisedly. Substantial evidence
2948has been described as such evidence as will
2956establish a substantial basis of fact from
2963w hich the fact at issue can be reasonably
2972inferred. We have stated it to be such
2980relevant evidence as a reasonable mind would
2987accept as adequate to support a conclusion.
2994. . . In employing the adjective "competent"
3002to modify the word "substantial" we are
3009aware of the familiar rule that in
3016administrative proceedings the formalities
3020and the introduction of testimony common to
3027the courts of justice are not strictly
3034employed. . . . We are of the view,
3043however, that the evidence relied upon to
3050sustain the ulti mate findings should be
3057sufficiently relevant and material that a
3063reasonable mind would accept it as adequate
3070to support the conclusion reached. To this
3077extent, the "substantial" evidence should
3082also be "competent."
3085(While Section 4 - 206.D.4 provides that "[t]he burden of proof is
3097upon the applicant [at the quasi - judicial Board hearing] to show
3109by substantial competent evidence that he is entitled to the
3119approval requested," this provision is referring to the standard
3128of proof at the hearing and not the st andard of review for
3141appeals under Section 4 - 505.)
314717. A hearing officer acting in his or her appellate
3157review capacity is without authority to reweigh conflicting
3165testimony presented to the Board or to substitute his or her
3176judgment for that of the Board on the issue of credibility of
3188witnesses. See Haines City Community Development v. Heggs , 658
3197So. 2d 523, 530 (Fla. 1995).
320318. The issue of whether the Board's decision "depart[ed]
3212from the essential requirements of the law" is synonymous with
3222whether the Board "applied the correct law." Id. at 530.
3232Therefore, contentions that procedural due process violations
3239have occurred during the Board's review and hearing process must
3249be raised in another forum. This is because appeals from the
3260Board are limit ed by the Code to a two - part review - whether the
3276Board's decision can be sustained by the evidence, and whether
3286the decision of the Board departed from the essential
3295requirements of the law, that is, whether the Board applied the
3306correct law. § 4 - 505.D. Moreover, the decision here is
3317considered the final administrative action of the Board and is
"3327subject to judicial review by common law certiorari to the
3337circuit court." Id. Circuit court review of an administrative
3346agency decision is governed by a thre e - part standard of review,
3359including "whether procedural due process is accorded." Haines
3367City , 650 So. 2d at 530. Therefore, a contention that
3377procedural due process was not accorded Appellant should be
3386presented to the circuit court.
339119. Finally, the question on appeal is not whether the
3401record contains evidence supporting the view of Appellant;
3409rather, the question is whether the evidence supports the
3418findings (both implicit and explicit) made in the Board's
3427decision. Collier Medical Center, Inc. v. Department of Health
3436and Rehabilitative Services , 462 So. 2d 83, 85 (Fla. 1st DCA
34471985).
344820. As clarified by counsel at the oral argument and later
3459in his Proposed Final Order, but not stated in the Appeal
3470Application filed with the Board, Appellant con tends that a
3480number of due process violations allegedly occurred, either at
3489the April 20 or July 20 meetings, or both. They include
3500allegations that the Board gave Appellant only three minutes to
3510speak; that party status was given Appellant at the April 2 0
3522meeting only after the presentation of evidence by the Board and
3533Top Flight; that the Board failed to disclose an ex parte
3544statement (a demonstrative exhibit) submitted by Top Flight's
3552counsel at the July 20 hearing, as required by Section 4 -
3564206.D.2.c.; that one witness (Mr. Reynolds) was not sworn prior
3574to testifying, as required by Section 4 - 206.D.3.d.; that two
3585experts (Mr. Reynolds and Mr. Aude) did not submit resumes at
3596either meeting, as required by Section 4 - 206.D.5.a.; and that at
3608the April 20 mee ting parties were not allowed to cross - examine
3621all witnesses or to present evidence, as allowed by Section 4 -
3633206.D.5. Appellant also asserts that the DO did not contain
3643findings of fact and conclusions of law, as required by Section
36544 - 206.D.6, and that on e member of the Board, Mr. J. B. Johnson,
3669who voted in favor of the project, was appointed to the Board
3681after the April 20, 2004, meeting and did not hear the testimony
3693and statements made during earlier meetings. For the reasons
3702previously stated, these contentions should be addressed to a
3711circuit court, if Appellant chooses to do so. 2
372021. While characterized as a due process violation,
3728Appellant's contention that the DO fails to include findings of
3738fact and conclusions of law, as required by Section 4 - 206.D.6.a.
3750and b., is more likely a contention that the decision of the
3762Board constitutes a departure from the essential requirements of
3771the law. As to this claim, the DO contains a mixture of
3783findings of fact and/or conclusions of law, albeit bare - bones ,
3794which arguably satisfy the Code requirement that a Level Two
3804decision be in writing and that it contain "findings of fact in
3816regard to any questions of fact presented during the
3825proceedings," "conclusions of law in regard to any applicable
3834provisions of the comprehensive plan and the community
3842development code," and "[a]pproval or approval with conditions."
3850See § 4 - 206.D.6.a. - c. (The cited section does not require any
3864more specificity than that enumerated above.)
387022. Appellant also contends that "Top F light did not
3880provide substantially competent evidence to support the Board's
3888decision." To sustain this contention, there must be no
3897evidence in the record to support the DO. The staff report
3908accepted by the Board as being persuasive on the issue conclu ded
3920that the application was consistent with all flexible
3928development criteria in Section 2 - 803.B, which contains the
3938standards and criteria that must be met in order to approve an
3950application. It also found that the proposal was in compliance
3960with all ot her standards in the Code, including the general
3971applicability criteria in Section 2 - 913. (That section contains
3981the general standards for Level One and Level Two approval
3991conditions and applies only to conditions attached to the
4000approval.) Finally, the report found that the development was
4009compatible with the surrounding area and would enhance other
4018redevelopment efforts. While there may have been conflicting
4026evidence on some of these issues, the Board resolved these
4036conflicts in favor of Top Flight. T herefore, Appellant has
4046failed to show that the decision "cannot be sustained by the
4057evidence before the [B]oard." § 4 - 505.C.
4065DECISION
4066Based on the foregoing Findings of Fact and Conclusions of
4076Law, the Community Development Board's Development Order
4083ren dered on July 26, 2004, is AFFIRMED.
4091DONE AND ORDERED this 23rd day of November, 2004, in
4101Tallahassee, Leon County, Florida.
4105S
4106DONALD R. ALEXANDER
4109Administrative Law Judge
4112Division of Administrative Hearings
4116The DeSoto B uilding
41201230 Apalachee Parkway
4123Tallahassee, Florida 32399 - 3060
4128(850) 488 - 9675 SUNCOM 278 - 9675
4136Fax Filing (850) 921 - 6847
4142www.doah.state.fl.us
4143Filed with the Clerk of the
4149Division of Administrative Hearings
4153this 23rd day of November, 2004.
4159ENDNOTES
41601/ Section 4 - 502.B requires that appeals of all applications
4171other than Level One approval shall be "filed with the city clerk
4183in a form specified by the community development coordinator
4192identifying with specificity the basis for the appeal ."
4201(Emphasis adde d). Assuming that this provision applies to the
4211instant appeal, Appellant failed to comply with these
4219requirements.
42202/ Even assuming arguendo that due process contentions are
4229cognizable in this forum or that they constitute a departure
"4239from the essen tial requirements of the law," the alleged
4249procedural errors still do not rise to a level that would warrant
4261denying the application or remanding the proceeding to the Board
4271to conduct another hearing. More importantly, the record does
4280not show that Appel lant, or any other person or party, objected
4292to any ruling by the chair or requested that the Board enforce a
4305particular procedural requirement. See , e.g. , Castor v. State ,
4313365 So. 2d 701, 703 (Fla. 1978)(a contemporaneous motion or
4323objection is required so that the trial court (administrative
4332board) has an opportunity to correct an alleged error).
4341Therefore, if any errors in procedure did occur, they have been
4352waived by Appellant. Compare City of Jacksonville v. Huffman ,
4361764 So. 2d 695 (Fla. 1st DCA 200 0). In addition, the errors that
4375Appellant complains of appear to be de minimus in nature and did
4387not affect the fairness of the proceeding. For example, the fact
4398that Appellant may have been given three minutes to testify,
4408while a City Planner and archi tect were given five minutes each,
4420or that two witnesses, one of whom is a City Planner and
4432presumably well - known to Board members, did not submit formal
4443resumes, do not appear to be so material as to affect the outcome
4456of this proceeding. (In fact, the r ecord shows that nineteen
4467persons were allowed to testify in opposition to the project at
4478the July 20 meeting, while only six, including Mr. Reynolds and
4489Mr. Aude, appeared in support of the project; thus, the total
4500time allotted the opponents exceeded tha t of the proponents.)
4510Likewise, Appellant has failed to demonstrate that Mr. Johnson
4519did not review the entire file before voting at the July 20
4531meeting, and Appellant did not object to his participation. The
4541record also shows that Appellant did not obje ct to the Board
4553allowing two proponents to give testimony at the April 20 meeting
4564before granting her party status. Indeed, the videotape of that
4574meeting reflects that Board counsel advised the chair that any
4584person given party status after the two witnes ses testified would
4595have the right "to conduct cross - examination of the persons who
4607previously testified." Appellant apparently chose not to do so.
4616At the July 20 meeting, the same two persons testified concerning
4627the final amended version of the applica tion, which was
4637ultimately approved, and Appellant was given the opportunity to
4646cross - examine those witnesses. Next, even if the testimony of
4657Mr. Reynolds is ignored because he was not sworn, his staff
4668report would still remain a part of the record and co ntinue to
4681form a basis for the Board's decision. Finally, the "ex parte"
4692communication seen by the Board members (a demonstrative exhibit)
4701during the July 20 meeting appears to be nothing more than a list
4714of area residents who supported the application an d merely
4724duplicated information already found in the City files.
4732COPIES FURNISHED:
4734Alan S. Zimmet, Esquire
4738Zimmet, Unice, Salzman,
4741Heyman & Jardine, P.A.
47452570 Coral Landings Boulevard, Suite 201
4751Palm Harbor, Florida 34684 - 5123
4757Leslie K. Dougall - Side s, Esquire
4764City of Clearwater
4767Post Office Box 4748
4771Clearwater, Florida 33758 - 4748
4776Darryl R. Richards, Esquire
4780Johnson, Pope, Bokor,
4783Ruppel & Burns, P.A.
4787Post Office Box 1100
4791Tampa, Florida 33757 - 1368
4796Cynthia Goudeau, City Clerk
4800City of Clearwater
4803P ost Office Box 1100
4808Clearwater, Florida 33758 - 4748
4813NOTICE OF RIGHT TO JUDICIAL REVIEW
4819Pursuant to Article 4, Division 5, Section 4 - 505.D of the Code,
4832this decision shall be final, subject to judicial review by
4842common law certiorari to the circuit court .
- Date
- Proceedings
- PDF:
- Date: 11/01/2004
- Proceedings: Appellant`s Proposed Finding of Fact and Conclusions of Law (via efiling by Alan Zimmet).
- PDF:
- Date: 11/01/2004
- Proceedings: Appellant`s Proposed Finding of Fact and Conclusions of Law (via efiling by Alan Zimmet).
- PDF:
- Date: 10/28/2004
- Proceedings: Respondent City of Clearwater`s Recommended Final Order (filed via facsimile).
- Date: 10/11/2004
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 10/11/2004
- Proceedings: Order (Appellant`s unopposed Motion to Supplement Record is granted).
- PDF:
- Date: 08/31/2004
- Proceedings: Notice of Hearing (oral argument set for October 11, 2004; 9:00 a.m.; Clearwater, FL).
- PDF:
- Date: 08/27/2004
- Proceedings: Response to Amended Initial Order (filed by Respondent via facsimile).
- PDF:
- Date: 08/19/2004
- Proceedings: Development Order (approved) filed with supporting documentation. (Note: Oversized maps and associated supporting documents are not available for viewing).
Case Information
- Judge:
- D. R. ALEXANDER
- Date Filed:
- 08/19/2004
- Date Assignment:
- 08/20/2004
- Last Docket Entry:
- 11/23/2004
- Location:
- Clearwater, Florida
- District:
- Middle
- Agency:
- Contract Hearings
Counsels
-
Leslie K. Dougall-Sides, Esquire
Address of Record -
Darryl R. Richards, Esquire
Address of Record -
Alan S. Zimmet, Esquire
Address of Record