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

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY KATE BELNIAK, )

)

Appellant, )

)

vs. ) Case No. 04 - 2953

)

TOP FLIGHT DEVELOPMENT, LLC, )

and CITY OF CLEARWATER, )

)

Appellees, )

______________________________)

FINAL ORDER

A ppellant, Mary Kate Belniak, seeks review of a Development

Order (DO) rendered by the City of Clearwater Community

Development Board (Board) on July 26, 2004. The Division of

Administrative Hearings (DOAH), by contract, and pursuant to

Article 4, Division 5, Section 4 - 505 of the Community

Development Code (Code), has jurisd iction to consider this

appeal. Oral argument was presented by the parties on

October 11, 2004, in Clearwater, Florida. Appellant and

Appellees, Top Flight Development, LLC (Top Flight) and City of

Clearwater (City), have submitted Proposed Final Orde rs.

STATEMENT OF THE ISSUE

The issue is whether to approve, approve with conditions,

or deny Top Flight's development application approved by the

Board on July 26, 2004. That decision approved a Flexible

Development application to permit a reduction on t he side (east)

setback from 10 feet to 5.85 feet (to pavement) and an increase

of building height from 35 feet to 59 feet from base flood

elevation of 13 feet MSL (with height calculated to the midpoint

of the roof slope) in association with the constructi on of 62

multi - family residential (attached) units at 1925 Edgewater

Drive, Clearwater, Florida.

PRELIMINARY STATEMENT

This matter began on September 25, 2003, when Top Flight

filed a Flexible Development application with the City seeking

approval of a site plan which increased the building height

(from 50 to 75 feet) of a seven - story condominium (including

covered parking) to be constructed on a 2.572 - acre site at

1925 Edgewater Drive, Clearwater, Florida. The application was

scheduled for considerat ion by the Board at meetings conducted

on March 16, April 20, May 18, and July 20, 2004, and approval

was given at the meeting on July 20, 2004. At that meeting,

testimony and statements were given by Michael H. Reynolds, a

City Planner III; Robert Aude, an architect employed by Top

Flight; four property owners who were given party status and

opposed the application: Appellant, Tracy Spikes, Dean Falk,

and Richard Mabee; four individuals who supported the

application; and fifteen individuals who opposed t he

application. On July 26, 2004, a DO was rendered memorializing

the Board's action and approving the application with certain

modifications to the original design and subject to eighteen

conditions.

Under Article 4, Division 5, Section 4 - 505 of the Co de, a

decision by the Board may be appealed to a hearing officer

(administrative law judge). On August 3, 2004, Appellant, who

resides near the project site, filed her Appeal Application

seeking to overturn the decision. Borrowing from language in

Sectio ns 4 - 504.C and 4 - 505.C of the Code, Appellant contended

that the decision misconstrued or incorrectly interpreted the

provisions of the Code; that the decision is not in harmony with

the general intent and purpose of the Code; that the decision is

detrimen tal to the public health, safety, and general welfare;

that the decision cannot be sustained by the evidence before the

Board; and that the decision departs from the essential

requirements of the law. Because Section 4 - 505.C, and not

Section 4 - 504.C, gove rns this appeal, only the last two grounds

are relevant. As later clarified by her counsel, Appellant

contends that she was not afforded procedural due process in

several respects and that the Board committed errors so

fundamental as to render approval of the project void. She also

contends that there is no evidence to support the Board's

decision. As further clarified by counsel, Appellant is

concerned only with the proposed height of the condominium.

On August 19, 2004, the Appeal Application, along with the

Record - on - Appeal, was referred by the City to DOAH with a

request that an administrative law judge serve as a hearing

officer on the appeal. By Order dated October 11, 2004,

Appellant's unopposed Motion to Supplement Record was granted,

and the v ideotapes of the four Board meetings and an exhibit

submitted by Appellant at the meeting on July 20, 2004, were

made a part of the record.

Pursuant to a Notice issued on August 31, 2004, oral

argument on the appeal was heard on October 11, 2004, in

Clearw ater, Florida. Appellant and Appellees participated in

the oral argument and were represented by counsel. Although

three other individuals had been given party status by the

Board, except for Appellant, none requested the right to

participate in this app eal. At the hearing, the Record - on -

Appeal was received in evidence.

On October 29 and 31 and November 4, 2004, respectively,

the City, Appellant, and Top Flight filed Proposed Final Orders

which have been considered by the undersigned in the preparation

o f this Final Order. In addition, Top Flight has filed a copy

of the Transcript of the Board's July 20, 2004, meeting.

Transcripts of the other meetings were not provided. However,

videotapes of those meetings (without a transcription) have been

made a p art of this record.

Finally, even though this matter is an appeal of a Level

Two decision, which requires that the undersigned sit in an

appellate review capacity, Section 4 - 505.D requires that "[t]he

decision of the hearing officer shall include finding s of fact,

conclusions of law, and a determination approving, approving

with conditions, or denying the requested development

application." Notwithstanding this incongruity, in accordance

with that requirement, the Final Order has been prepared in that

fo rmat.

FINDINGS OF FACT

1. On September 25, 2003, Top Flight filed a Flexible

Development Application for Level Two approval of a

comprehensive infill for redevelopment of properties located on

the southeast corner of the intersection of Sunnydale Drive and

Edgewater Drive and just north of Sunset Pointe Road in

Clearwater, Florida. A Comfort Suites motel is just north of

the property, while a Chevron gasoline station sits on the south

side. The property is located within the Tourist zoning

district, wh ich allows condominiums as a permitted use. The

project, as originally proposed, involved the construction of a

seventy - seven unit, seven - story (including covered parking),

luxury condominium on a 2.572 - acre tract of land now occupied by

32 motel units an d 9 rental apartments with ancillary

structures, which the developer intends to raze.

2. The original application requested a deviation from the

requirement in the Code that structures in the Tourist zoning

district not exceed 35 feet in height. Under flexible

development standards for that zoning district, however, a

structure may be built to a maximum height of between 35 and 100

feet. (Although the City staff is authorized to approve

requests for a deviation up to a maximum height of 50 feet

without a hearing, Top Flight was requesting a flexible

deviation to allow the building to be constructed an additional

25 feet, or to a height of 75 feet. This was still less than

the 100 feet allowed under flexible development standards.)

3. On December 24, 2003, Top Flight filed a second

application which amended its earlier application by seeking a

reduction of the front yard setback on Sunnydale Drive from 25

feet to 17 feet to allow the placement of balcony support

columns within the setbacks. Without a deviation, the Code

requires a minimum 25 - foot front yard setback. The second

application continued to seek a deviation in height standards to

75 feet.

4. Because of staff concerns, on February 5, 2004, Top

Flight filed a third Flexible Development appl ication for the

purpose of amending its earlier applications. The matter was

placed on the agenda for the March 16, 2004, meeting of the

Board.

5. At the meeting on March 16, 2004, the City's staff

recommended that certain changes in the design of the building

be made. In order to make these suggested changes, Top Flight

requested that the matter be continued to a later date. That

request was granted, and the matter was placed on the agenda for

the April 20, 2004, meeting.

6. At the April 20, 2004, meeting, Board members again

expressed concern over the height of the building, the lack of

stair stepping, and the bulk, density, and height. Because of

these concerns, Top Flight requested, and was granted, a 90 - day

continuance to address these concern s. Appellant, who was

present at that meeting, did not object to this request. The

matter was then placed on the agenda for May 18, 2004, but

because of a notice problem, it was continued to the July 20,

2004, meeting.

7. During the April 20, 2004, me eting, the Board allowed

Top Flight's architect, Mr. Aude, and a City Planner III,

Mr. Reynolds, to make their presentations prior to asking if any

persons wished party status. (Section 4 - 206.D.3.b. provides

that, as a preliminary matter, the chair of the Board shall

"inquire of those attending the hearing if there is any person

who wishes to seek party status.") Mr. Reynolds was not sworn,

even though Section 4 - 206.D.3.d requires that all "witnesses

shall be sworn." After the presentations by Mr. Au de and

Mr. Reynolds, Appellant was given party status. Therefore,

Appellant could not cross - examine the two witnesses immediately

after they testified. However, Appellant did not request the

right to examine those witnesses nor did she lodge an objec tion

to the procedure followed by the Board. Also, assuming that

Mr. Aude and Mr. Reynolds were treated as experts by the Board,

there is no indication that either witness submitted a resume at

the hearing. (Section 4 - 206.D.5.a. requires that "[a]ny exp ert

witness testifying shall submit a resume for the record before

or during the public hearing.") However, no objection to this

error in procedure was made by any person, including Appellant.

8. Based on the concerns of staff and Board members at the

Ap ril 20, 2004, meeting, and to accommodate objections lodged by

nearby residents, Top Flight modified its site plan by reducing

the height of the building from 75 to 59 feet (which in turn

reduced the height of the building from six stories over parking

to four) and increasing the number of parking spaces. Other

changes during the lengthy review process included decreasing

the side (rather than the front) setback from a minimum of

10 feet to 5.85 feet and preserving two large oak trees on the

property. The proposed height was significantly less than the

maximum allowed height in the Tourist district (100 feet), and

the proposed density of 59 units was also considerably less than

the maximum allowed density on the property (30 units per acre,

or a total of 77 on the 2.57 - acre tract). The application, as

amended, was presented in this form at the July 20 meeting.

Documents supporting the various changes were filed by Mr. Aude

in February, March, April, May, and June 2004, and are a part of

the record.

9. At the hearing on July 20, 2004, Mr. Reynolds and

Mr. Aude again testified in support of the application, as

amended. The staff report prepared by Mr. Reynolds was made a

part of the record. (Section 4 - 206.G provides that the record

shall consist of, among other things, "all applications,

exhibits and papers submitted in any proceeding.") The report

found that "all applicable Code requirements and criteria

including but not limited to General Applicability criteria

(Section 3 - 913) and the flexibi lity criteria for attached units

(Section 2 - 803.B) have been met." The Board accepted this

evidence as the most persuasive on the issue. The Board further

accepted the testimony of Mr. Aude, and a determination in the

staff report, that the project would be compatible with the

character of the neighborhood. In doing so, it implicitly

rejected the testimony of Appellant, and other individuals, that

the height of the building was inconsistent with the character

of the neighborhood. Finally, the Board acce pted Mr. Reynolds'

recommendation that the application should be approved, subject

to eighteen conditions. The vote was 4 - 2 for approval.

10. During the July 20, 2004, meeting, Mr. Reynolds was

cross - examined by another party, Mr. Falk. Although given the

right to do so, Appellant did not question the witness. All

parties, including Appellant, were given the opportunity to

cross - examine Mr. Aude, but none sought to do so. The parties

were also given the opportunity to ask questions of Top Flight's

co unsel, who gave argument (but not evidence) on behalf of his

client. Although members of the public, and Appellant, were

limited in the amount of time allowed for statements to three

minutes, all persons who gave testimony or made statements that

day, inc luding Appellees, were urged by the chair to limit their

remarks. Finally, Top Flight's counsel was allowed to make a

closing argument at the meeting, at which time he used a

demonstrative exhibit (a "chart" containing the names of area

residents who supp orted the project), which was shown to Board

members. (The same information can be found in the City files,

which are a part of this record and contain correspondence from

numerous area residents, some supporting, and others opposing,

the project.) Altho ugh Appellant was not shown a copy of the

document, the record does not show that she objected to the use

of a demonstrative exhibit, or that she requested to see a copy.

11. Mr. J. B. Johnson was appointed to the Board sometime

after the April 20, 2004, meeting. At the July 20, 2004,

meeting, he made the following statement concerning Top Flight's

application:

I can't speak for everybody here. Some

people have lived here a short period of

time. In view of every word that I have

heard, every word that I have read, and I've

been keeping up with this for several months

because several months ago I had telephone

calls from your area.

I don't know how you could satisfy

everybody. It's impossible, but I do know

this, this is a great project. One that

wou ld be good for the City. One for the

area, good for the area and I will support

this.

Appellant has not cited to any evidence showing that Mr. Johnson

did not review the record of the prior meetings or the

application file before he cast his vote. Furth er, Appellant

did not object to Mr. Johnson's participation.

12. On July 26, 2004, the Board entered its DO

memorializing the action taken on July 20, 2004, which approved

Top Flight's application. In the DO, the Board made the

following findings/conclus ions supporting its decision:

1. The proposal complies with the Flexible

Development criteria per Section 2 - 803.B

2. The proposal is in compliance with other

standards in the Code including the General

Applicability Criteria per Section 3 - 913.

3. The development is compatible with the

surrounding area and will enhance other

redevelopment efforts.

13. The decision also included 18 Conditions of Approval

and a requirement that an application for a building permit be

made no later than July 20, 2005.

14. On August 3, 2004, Appellant filed her Appeal

Application seeking a review of the Board's decision. The

Appeal Application set out two relevant grounds (without any

further specificity): that the Board's decision was not

supported by the evidence , and that the Board departed from the

essential requirements of the law. On August 19, 2004, the City

referred the Appeal Application to DOAH. The specific grounds

were not disclosed until Appellant presented oral argument and

filed her Proposed Final O rder. 1

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties pursuant to Article 4, Division 5, Section 4 - 505 of

the Code. Under that provision, the hearing officer m ay

approve, approve with conditions, or deny the requested

development application. The appeal process is described in

more specificity in subsections B., C., and D. of the section as

follows:

B. At the hearing, the record before the

community developmen t board shall be

received by the hearing officer.

Additionally, oral argument may be presented

by the appellant, applicant, city, and any

other person granted party status by the

community development board.

C. The burden shall be upon the appellant

to show that the decision of the community

development board cannot be sustained by the

evidence before the board, or that the

decision of the board departs from the

essential requirements of law.

D. The persons entitled to present oral

argument as set fort h in subsection B. above

may submit proposed final orders to the

hearing officer within 20 days of the

hearing. The hearing officer shall render a

decision within 45 days of the hearing. The

decision of the hearing officer shall

include findings of fact, conclusions of

law, and a determination approving,

approving with conditions, or denying the

requested development application.

16. While Section 4 - 505.C of the Code simply requires that

the Board's decision be sustained by "the evidence," as opposed

to "competent substantial evidence," the discussion of that term

by the court in Degroot v. Sheffield , 95 So. 2d 912, 915 (Fla.

1957), is helpful. See Sobeleski v. City of Clearwater and

Mariani , DOAH Case No. 02 - 3637 (DOAH Jan. 13, 2003). In

Degroot , th e court discussed the meaning of "competent

substantial evidence" as follows:

We have used the term "competent substantial

evidence" advisedly. Substantial evidence

has been described as such evidence as will

establish a substantial basis of fact from

w hich the fact at issue can be reasonably

inferred. We have stated it to be such

relevant evidence as 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 of 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 ulti mate 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."

(While Section 4 - 206.D.4 provides that "[t]he burden of proof is

upon the applicant [at the quasi - judicial Board hearing] to show

by substantial competent evidence that he is entitled to the

approval requested," this provision is referring to the standard

of proof at the hearing and not the st andard of review for

appeals under Section 4 - 505.)

17. A hearing officer acting in his or her appellate

review capacity is without authority to reweigh conflicting

testimony presented to the Board or to substitute his or her

judgment for that of the Board on the issue of credibility of

witnesses. See Haines City Community Development v. Heggs , 658

So. 2d 523, 530 (Fla. 1995).

18. The issue of whether the Board's decision "depart[ed]

from the essential requirements of the law" is synonymous with

whether the Board "applied the correct law." Id. at 530.

Therefore, contentions that procedural due process violations

have occurred during the Board's review and hearing process must

be raised in another forum. This is because appeals from the

Board are limit ed by the Code to a two - part review - whether the

Board's decision can be sustained by the evidence, and whether

the decision of the Board departed from the essential

requirements of the law, that is, whether the Board applied the

correct law. § 4 - 505.D. Moreover, the decision here is

considered the final administrative action of the Board and is

"subject to judicial review by common law certiorari to the

circuit court." Id. Circuit court review of an administrative

agency decision is governed by a thre e - part standard of review,

including "whether procedural due process is accorded." Haines

City , 650 So. 2d at 530. Therefore, a contention that

procedural due process was not accorded Appellant should be

presented to the circuit court.

19. Finally, the question on appeal is not whether the

record contains evidence supporting the view of Appellant;

rather, the question is whether the evidence supports the

findings (both implicit and explicit) made in the Board's

decision. Collier Medical Center, Inc. v. Department of Health

and Rehabilitative Services , 462 So. 2d 83, 85 (Fla. 1st DCA

1985).

20. As clarified by counsel at the oral argument and later

in his Proposed Final Order, but not stated in the Appeal

Application filed with the Board, Appellant con tends that a

number of due process violations allegedly occurred, either at

the April 20 or July 20 meetings, or both. They include

allegations that the Board gave Appellant only three minutes to

speak; that party status was given Appellant at the April 2 0

meeting only after the presentation of evidence by the Board and

Top Flight; that the Board failed to disclose an ex parte

statement (a demonstrative exhibit) submitted by Top Flight's

counsel at the July 20 hearing, as required by Section 4 -

206.D.2.c.; that one witness (Mr. Reynolds) was not sworn prior

to testifying, as required by Section 4 - 206.D.3.d.; that two

experts (Mr. Reynolds and Mr. Aude) did not submit resumes at

either meeting, as required by Section 4 - 206.D.5.a.; and that at

the April 20 mee ting parties were not allowed to cross - examine

all witnesses or to present evidence, as allowed by Section 4 -

206.D.5. Appellant also asserts that the DO did not contain

findings of fact and conclusions of law, as required by Section

4 - 206.D.6, and that on e member of the Board, Mr. J. B. Johnson,

who voted in favor of the project, was appointed to the Board

after the April 20, 2004, meeting and did not hear the testimony

and statements made during earlier meetings. For the reasons

previously stated, these contentions should be addressed to a

circuit court, if Appellant chooses to do so. 2

21. While characterized as a due process violation,

Appellant's contention that the DO fails to include findings of

fact and conclusions of law, as required by Section 4 - 206.D.6.a.

and b., is more likely a contention that the decision of the

Board constitutes a departure from the essential requirements of

the law. As to this claim, the DO contains a mixture of

findings of fact and/or conclusions of law, albeit bare - bones ,

which arguably satisfy the Code requirement that a Level Two

decision be in writing and that it contain "findings of fact in

regard to any questions of fact presented during the

proceedings," "conclusions of law in regard to any applicable

provisions of the comprehensive plan and the community

development code," and "[a]pproval or approval with conditions."

See § 4 - 206.D.6.a. - c. (The cited section does not require any

more specificity than that enumerated above.)

22. Appellant also contends that "Top F light did not

provide substantially competent evidence to support the Board's

decision." To sustain this contention, there must be no

evidence in the record to support the DO. The staff report

accepted by the Board as being persuasive on the issue conclu ded

that the application was consistent with all flexible

development criteria in Section 2 - 803.B, which contains the

standards and criteria that must be met in order to approve an

application. It also found that the proposal was in compliance

with all ot her standards in the Code, including the general

applicability criteria in Section 2 - 913. (That section contains

the general standards for Level One and Level Two approval

conditions and applies only to conditions attached to the

approval.) Finally, the report found that the development was

compatible with the surrounding area and would enhance other

redevelopment efforts. While there may have been conflicting

evidence on some of these issues, the Board resolved these

conflicts in favor of Top Flight. T herefore, Appellant has

failed to show that the decision "cannot be sustained by the

evidence before the [B]oard." § 4 - 505.C.

DECISION

Based on the foregoing Findings of Fact and Conclusions of

Law, the Community Development Board's Development Order

ren dered on July 26, 2004, is AFFIRMED.

DONE AND ORDERED this 23rd day of November, 2004, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto B uilding

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 23rd day of November, 2004.

ENDNOTES

1/ Section 4 - 502.B requires that appeals of all applications

other than Level One approval shall be "filed with the city clerk

in a form specified by the community development coordinator

identifying with specificity the basis for the appeal ."

(Emphasis adde d). Assuming that this provision applies to the

instant appeal, Appellant failed to comply with these

requirements.

2/ Even assuming arguendo that due process contentions are

cognizable in this forum or that they constitute a departure

"from the essen tial requirements of the law," the alleged

procedural errors still do not rise to a level that would warrant

denying the application or remanding the proceeding to the Board

to conduct another hearing. More importantly, the record does

not show that Appel lant, or any other person or party, objected

to any ruling by the chair or requested that the Board enforce a

particular procedural requirement. See , e.g. , Castor v. State ,

365 So. 2d 701, 703 (Fla. 1978)(a contemporaneous motion or

objection is required so that the trial court (administrative

board) has an opportunity to correct an alleged error).

Therefore, if any errors in procedure did occur, they have been

waived by Appellant. Compare City of Jacksonville v. Huffman ,

764 So. 2d 695 (Fla. 1st DCA 200 0). In addition, the errors that

Appellant complains of appear to be de minimus in nature and did

not affect the fairness of the proceeding. For example, the fact

that Appellant may have been given three minutes to testify,

while a City Planner and archi tect were given five minutes each,

or that two witnesses, one of whom is a City Planner and

presumably well - known to Board members, did not submit formal

resumes, do not appear to be so material as to affect the outcome

of this proceeding. (In fact, the r ecord shows that nineteen

persons were allowed to testify in opposition to the project at

the July 20 meeting, while only six, including Mr. Reynolds and

Mr. Aude, appeared in support of the project; thus, the total

time allotted the opponents exceeded tha t of the proponents.)

Likewise, Appellant has failed to demonstrate that Mr. Johnson

did not review the entire file before voting at the July 20

meeting, and Appellant did not object to his participation. The

record also shows that Appellant did not obje ct to the Board

allowing two proponents to give testimony at the April 20 meeting

before granting her party status. Indeed, the videotape of that

meeting reflects that Board counsel advised the chair that any

person given party status after the two witnes ses testified would

have the right "to conduct cross - examination of the persons who

previously testified." Appellant apparently chose not to do so.

At the July 20 meeting, the same two persons testified concerning

the final amended version of the applica tion, which was

ultimately approved, and Appellant was given the opportunity to

cross - examine those witnesses. Next, even if the testimony of

Mr. Reynolds is ignored because he was not sworn, his staff

report would still remain a part of the record and co ntinue to

form a basis for the Board's decision. Finally, the "ex parte"

communication seen by the Board members (a demonstrative exhibit)

during the July 20 meeting appears to be nothing more than a list

of area residents who supported the application an d merely

duplicated information already found in the City files.

COPIES FURNISHED:

Alan S. Zimmet, Esquire

Zimmet, Unice, Salzman,

Heyman & Jardine, P.A.

2570 Coral Landings Boulevard, Suite 201

Palm Harbor, Florida 34684 - 5123

Leslie K. Dougall - Side s, Esquire

City of Clearwater

Post Office Box 4748

Clearwater, Florida 33758 - 4748

Darryl R. Richards, Esquire

Johnson, Pope, Bokor,

Ruppel & Burns, P.A.

Post Office Box 1100

Tampa, Florida 33757 - 1368

Cynthia Goudeau, City Clerk

City of Clearwater

P ost Office Box 1100

Clearwater, Florida 33758 - 4748

NOTICE OF RIGHT TO JUDICIAL REVIEW

Pursuant to Article 4, Division 5, Section 4 - 505.D of the Code,

this decision shall be final, subject to judicial review by

common law certiorari to the circuit court .