04-002953 Mary Kate Belniak vs. Top Flight Development, Llc, And City Of Clearwater
 Status: Closed
DOAH Final Order on Tuesday, November 23, 2004.


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Summary: Due process contentions are not cognizable in a Division of Administrative Hearings review of a city land use case; there was competent, substantial evidence to support findings in the City`s order and no departure from essential requirements of law.

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 .

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PDF
Date
Proceedings
PDF:
Date: 11/23/2004
Proceedings: DOAH Final Order
PDF:
Date: 11/23/2004
Proceedings: Final Order (oral argument held October 11, 2004). CASE CLOSED.
PDF:
Date: 11/04/2004
Proceedings: Proposed Final Order (filed by the Respondent).
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: 10/07/2004
Proceedings: Motion to Supplement Record (via efiling by Alan Zimmet).
PDF:
Date: 08/31/2004
Proceedings: Notice of Hearing (oral argument set for October 11, 2004; 9:00 a.m.; Clearwater, FL).
PDF:
Date: 08/30/2004
Proceedings: Notice of Appearance (filed by D. Richards, Esquire).
PDF:
Date: 08/27/2004
Proceedings: Response to Amended Initial Order (filed by Respondent via facsimile).
PDF:
Date: 08/20/2004
Proceedings: Amended Initial Order.
PDF:
Date: 08/19/2004
Proceedings: Appeal Application (filed by Petitioner via facsimile).
PDF:
Date: 08/19/2004
Proceedings: Initial Order.
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).
PDF:
Date: 08/19/2004
Proceedings: Objection to the approval requested by Top Flight Development, LLC for a condominium construction filed by Petitioner.
PDF:
Date: 08/19/2004
Proceedings: Agency referral filed.

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