05-002265 Douglas J. Weiland And Elizabeth C. Sirna vs. Community Development Board, City Of Clearwater And Spinecare Properties, Llc Status: Closed DOAH Final Order on Monday, October 31, 2005.

Summary: The City departed from the essential requirements of law by not requiring the parking lot be screened from adjacent residential properties. Approval of the project is otherwise supported by the evidence and should be approved with a parking lot added.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS J. WEILAND and )

ELIZABETH C. SIRNA, )

)

Appellants , )

)

vs. ) Case No. 05 - 2265

)

COMMUNITY DEVELOPMENT BOARD, )

CITY OF CLEARWATER and )

SPINECARE PROPERTIES, LLC, )

)

Appellees . )

)

FINAL ORDER

This case involves an appeal of the Development Order

issued by the City of Clearwater (City) authorizing SpineCare

Properties, LLC (SpineCare), to construct a two - story medical

office building with an adjacent 225 - space parking lot (the

Project) on a 4.5 acre parcel on the west side of McMullen - Booth

Road (the Property). The appeal was brought by Douglas J.

Weiland and Elizabeth C. Sirna (Appellants), who live

immediately to the west of t he Property .

The Division of Administrative Hearings (DOAH), by contract

and pursuant to Sections 4 - 501.B.1 and 4 - 505 of the City’s

Community Development Code (Code), has jurisdiction over this

appeal. Oral argument was held in this case on October 12,

2005, before Administrative Law Judge T. Kent Wetherell, II.

At oral argument, the record before the Community

Development Board (Board) was received and argument was

presented by the parties. See Code § 4 - 505.B. 1 The parties

submitted briefs detailing their respec tive positions, and they

were also afforded the opportunity to submit proposed final

orders, which they did. See Code § 4 - 505.D. Due consideration

has been given to the parties’ written submittals and oral

arguments.

Code Section 4 - 505.D was recently ame nded to eliminate the

requirement that th is Final Order include findings of fact. See

City Ordinance No. 7413 - 05, § 21 (effective May 5, 2005). The

Final Order is only required to include “conclusions of law and

a determination approving, approving with conditions, or denying

the requested development application.” Code § 4 - 505.D. A

brief procedural history and overview of the Project are

included to provide the context necessary to evaluate the issues

raised by Appellants in this appeal.

I. Procedural History and Project Overview

On April 29, 2005, SpineCare filed a sworn flexible

development application seeking approval of the Project as a

“comprehensive infill redevelopment project.” The Project

requires Level Two approval because it proposes reduct ions in

the minimum setbacks and an increase in the maximum height

specified in the Code and because the parking lot will be

located on property that will be zoned Low Medium Density

Residential (LMDR).

In addition to the flexible development application,

SpineCare filed an application to annex 0.358 acres of the

Property along McMullen - Booth Road i nto the City, an application

to change the designation of the Property on the f uture land use

map (FLUM), and an application to rezone the property. The

partie s represented at oral argument that the City Council has

deferred final action on those matters (as well as the

Development Agreement discussed below) pending resolution of

this appeal.

If th e FLUM change and rezoning applications are approved

by the City Council , the western 2.06 acres of the Property will

be designated Residential Low (RL) on the FLUM and LMDR on the

z oning map, and the eastern 2.44 acres of the Property along

McMullen - Booth Road (including the 0.358 acres being annexed)

will be designate d Institutional on the FLUM and the zoning map.

The development currently on the Property consist s of a 13 -

unit low - income apartment complex in two one - story buildings and

a single - wide trailer with s everal ancillary sheds. One of the

neighboring property owners who spoke at the hearing referred to

the existing development on the Property as a “blighted low - cost

housing area that we’ve had to call the police on many times.” 2

The existing structures on the Property will be demolished to

construct the Proje ct.

The proposed two - story medical office building will be

located on the portion of the Property that will be zoned

Industrial. The parking lot for the building and a sto r mwater

retention pond will be located on the portion of the Property

that will be z oned LMDR .

McMullen - Booth Road is a six - lane , divided arterial

highway . T he parcels across McMullen - Booth Road from the

Property , which a re in the City of Safety Harbor, are zoned

Hospital Facility (HF) and are developed with medical office

buildings. Th e parcel to the south of the eastern half of the

Property is also zoned HF and is developed with a single - story

assisted living facility. The parcels to the south of the

western half of the Property are zoned Low Density Residential

(LDR) and are develope d with single - family residences. The

parcels to the north and west of the Property are zoned LMDR and

LDR and are developed with single - family residences.

SpineCare negotiated a Development Agreement with the City

and the homeowners’ associa tion that inc ludes the residen ts to

the north of the Property . The Development Agreement includes

operational restrictions for the medical office building and

buffering requirements that exceed the requirements in the Code.

For example, the Development Agreement requ ires SpineCare to

construct and maintain a “6 - foot concrete wall (with stucco

finish)” and “vegetation no less than 10 feet in height” along

the north property line and a “6 - foot privacy fence” along the

south property line. The Development Agreement also limits the

number of parking spaces along the north property line,

restricts the hours of operation of the medial office building,

requires imaging equipment to be located on the south side of

the building, and requires SpineCare to “attempt to preserve

s eventy percent (70%) of all existing trees over 12 inches in

diameter.” The restrictions in the Development Agreement will

be recorded as restrictive covenants on the Property , and the

homeowner s ' association will have standing to enforce the

restrictions .

The buffers provided for in the Development Agreement are

primarily on the north and south property lines. There is no

wall or fence required on the west property line, which is

adjacent to Appellants’ property . However, the Development

Agreement spec ifically requires SpineCare to “reduce or

eliminate lighting on the West side of the Property during non -

peak times, consistent with safety concerns.”

There will be approximately 160 feet between the western

property line of the Property (which abuts Appel lants’ property)

and the parking lot. Th e only development in that area will be

a wet stormwater retention pond. The landscape plan for the

Project shows most of the existing trees in that area being

retained and additional trees being planted , primarily around

the stormwater retention pond. The dense stand of trees shown

on the tree survey between the area where the stormwater

retention pond will be located and the existing buildings on the

P roperty will be removed to construct the parking lot, but the

landscape plan shows a number of new trees and shrubs

surrounding the parking lot as well as trees on the islands that

are interspersed throughout the parking lot.

City planning department staff recommended approval of the

flexible development application for the Project. A detailed

Staff Report was prepared by Mark Parry, Consulting Planner.

Among other things , the Staff Report states that “[t]he

proposed, two story building design and architectural style is

similar in character with regard to size and scale of other

buildings in the area”; that the “[p]roposed landscaping

mitigates setback reductions, buffering adjacent uses, adhering

to neighborhood character”; and that the “development is

compatible with the surrounding area and will enhance other

red evelopment efforts.” As reflected in the checklists

contained in the Staff Report, the planning department staff

found the Project to be consistent with the each of the

flexibility criteria in Code Sections 2 - 204 3 and 2 - 1204, as well

as the general criter ia in Code Section 3 - 913.

The Board held a quasi - judicial hearing on the flexible

development application for the P roject on May 17, 2005. The

Board also considered the FLUM change and the Development

Agreement at that hearing.

Mr. Parry's testimony at the Board's hearing referenced and

was consistent with the Staff Report. Specifically, h e

testified that the City planning department staff found the

Project to be consistent with the Code based upon its review of

the site plan and, also, the Development Agreement .

An attorney representing SpineCare also gave testimony at

the hearing. His testimony focused on the additional

restrictions governing the Project that are contained in the

Development Agreement.

Appellants were granted “party status” and tes tified in

opposition to the Project. Their testimony focused on the

incompatibility of the proposed medical office building and

parking lot with the surrounding neighborhood because of the

building’s height and bulk and also because of the noise

generated by the patients coming and going throughout the day

and into the night .

The witness testimony was sworn, 4 and the opportunity for

cross - examination was provided. Neither Mr. Parry nor any of

the other witnesses w as cross - examined .

In addition to the in dividuals who testified and were

subject to cross - examination, several individuals spoke on the

P roject during the “public comment” portion of the hearing. The

individuals who spoke in opposition to the P roject were

neighbors who, like Appellants, had con cerns about the

compatibility o f the Project with the adjacent residential uses.

A representative of the homeowners’ association to the

north of the Property spoke in favor of the Project and focused

on the various concessions agreed to by SpineCare in t he

Development Agreement. A representative of the homeowners’

association to the south of the Property also spoke in favor of

the Project , and he stated that the assisted living facility has

been a “great neighbor[]”; that the facility’s lighting has

help ed to eliminate trespassers in the area; and that the

Project would be an improvement on the “blighted” uses currently

on the Property.

At the conclusion of the hearing, the Board unanimously

voted to approve the flexible development application for the

P roject. The Board also unanimously voted to recommend approval

of the Deve lopment Agreement and the FLUM change. (The Board

apparently was not required to take action on the rezoning or

the annexation .)

The Board’s approval of the flexible development

ap plication was memorialized in the Development Order dated

May 27, 2005, which approves the Project with conditions.

Consistent with the Staff Report, t he Development Order

expressly finds/concludes that the Project complies with the

criteria in Code Secti ons 2 - 1204.A, 2 - 204.C, and 3 - 913, and that

“[t]he development is compatible with the surrounding area and

will enhance other redevelopment efforts.” Although not

explicitly stated in the Development Order, it is clear from the

S taff R eport and the testimo ny before the Board that the

approval of the Project is also implicitly conditioned on the

City Council’s approval of the related annexation, FLUM change,

rezoning, and Development Agreement. 5

On or about May 31, 2005, Appellants timely filed an Appeal

Ap plication contesting the Development Order and the Board’s

approval of the Project. The appeal was transferred to DOAH on

June 22, 2005.

II. Scope of Appeal and Standards of Review

In this appeal, the burden is on Appellants to show that:

[1] the decisio n of the [Board] cannot be

sustained by substantial competent evidence

before the board, or [2] that the decision

of the board departs from the essential

requirements of law.

Code § 4 - 505.C.

The scope of review in this appeal is limited to those two

issue s. See Belniak v. Top Flight Development, LLC , Case No.

04 - 2953, at 14 - 15 (DOAH Nov. 23, 2004).

When used as an appellate standard of review (as is the

case in Code Section 4 - 505.C), competent substantial evidence

has been construed to be “legally suffic ient evidence” or

evidence that is “sufficiently relevant and material that a

reasonable mind would accept it as adequate to support the

conclusion reached.” DeGroot v. Sheffield , 95 So. 2d 912, 916

(Fla. 1957).

In determining whether the Board’s decisio n is supported by

competent substantial evidence, the undersigned is not permitted

to second - guess the wisdom of the decision, reweigh conflicting

testimony presented to the Board, or substitute his judgment for

that of the Board as to the credibility of w itnesses. See ,

e.g. , Haines City Community Development v. Heggs , 658 So. 2d

523, 530 (Fla. 1995); Belniak , supra , at 13 - 15. Moreover, it is

immaterial that the record contains evidence supporting the view

of the Appellants so long as there is competent s ubstantial

evidence supporting the findings (both implicit and explicit)

made by the Board in reaching its decision. See , e.g. , Florida

Power & Light Co. v. City of Dania , 761 So. 2d 1089, 1093 (Fla.

2000); Collier Medical Center, Inc. v. Dept. of Health &

Rehabilitative Servs. , 462 So. 2d 83, 85 (Fla. 1st DCA 1985);

Belniak , supra , at 15.

On these points, the Florida Supreme Court has admonished

that:

the ‘competent substantial evidence’

standard cannot be used by a reviewing court

as a mechanism for exe rting covert control

over the policy determinations and factual

findings of the local agency. Rather, this

standard requires the reviewing court to

defer to the agency’s superior technical

expertise and special vantage point in such

matters. The issue be fore the court is not

whether the agency’s decision is the ‘best’

decision or the ‘right’ decision or even a

‘ wise ’ decision, for these are technical and

policy - based determinations properly within

the purview of the agency. The circuit

court has not trai ning or experience -- and

is inherently unsuited -- to sit as a roving

‘super agency’ with plenary oversight in

such matters.

Dusseau v. Metropolitan Dade County , 794 So. 2d 1270, 1275 - 76

(Fla. 2001).

The issue of whether the Board’s decision departs from the

essential requirements of law is synonymous with whether the

Board applied the correct law. See , e.g. , Haines City Community

Development Corp. , 658 So. 2d at 530; City of Deerfield Beach v.

Valliant , 419 So. 2d 624, 626 (Fla. 1982); Belniak , supra , a t

14.

III. Analysis of Appellants’ Arguments

and Conclusions of Law

First, Appellants argue that the Board departed from the

essential requirements of law by failing to consider Goal 2,

Objective 2.2, and Policy 2.2.1 of the Future Land Use Element

(FLU E) of the City’s comprehensive plan in reaching its

decision. Those provisions state:

Goal 2

THE CITY OF CLEARWATER SHALL UTILIZE

INNOVATIVE AND FLEXIBLE PLANNING AND

ENGINEERING PRACTICES, AND URBAN DESIGN

STANDARDS IN ORDER TO PROTECT HISTORIC

RESOURCE S, ENSURE NEIGHBORHOOD PRESERVATION,

REDEVELOP BLIGHTED AREAS, AND ENCOURAGE

INFILL DEVELOPMENT.

Objective 2.2

The City of Clearwater shall continue to

support innovative planned development and

mixed use development techniques in order to

promote infill development that is

consistent and compatible with the

surrounding environment.

Policy 2.2.1

On a continuing basis, the Community

Development Code and the site plan approval

process shall be utilized in promoting

infill development and/or planned

develo pments that are compatible.

A determination of the consistency of the Project with the

FLUE (or any other portion of the City’s comprehensive plan) is

beyond the scope of this appeal. That issue must be litigated

in a “de novo action for declaratory, inj unctive or other

relief” filed pursuant to Section 163.3215, Florida Statutes.

The fact that such an action need not be filed until after this

“local administrative appeal” is exhausted, see § 163.3215(3),

Fla. Stat., does not change the fact that a civil action is the

“exclusive method[] . . . to appeal and challenge the

consistency of a development order with a comprehensive plan . .

. .” § 163.3215(1), Fla. Stat.

Nevertheless, the Board’s failure to consider the

“compatibility” of the Project with surr ounding development

(which is the crux of Appellants’ argument related to the

comprehensive plan provisions) is cognizable in this appeal

because Code Section 3 - 913 requires that issue to be considered

by the Board. See , e.g. , Code § 3 - 913 (Criteria No s . 1 and 5 ) .

However, contrary to Appellants’ argument, the record reflects

that the Board did consider the compatibility issue in approving

the Project . For example, the completed checklists in the Staff

R eport show that staff considered each of the criter ia in Code

Sections 2 - 204 .C, 2 - 1204.A, and 3 - 913; the Staff Report states

that “[p]roposed landscaping mitigates setback reductions,

buffering adjacent uses, adhering to neighborhood character” and

that the “development is compa tible with the surrounding a rea ” ;

and Mr. Parry testified that staff took into account the

surrounding uses in its review of the Project.

It appears that what Appellants are actually arguing on

this issue is not that the Board failed to consider the

compatibility of the Project with surrounding development, but

rather that the evidence presented to the Board on this issue

establishes that the Project is not compatible wi th the

surrounding residential development. See , e.g. , Initial Brief,

at 6 - 8. The fact that there was testimony be fore the Board

supporting Appellants’ position that the Project is incompatible

with the surrounding development is immaterial for purposes of

the undersigned’s review. See Florida Power & Light , 761 So. 2d

at 1093. As long as the record contains compete nt substantial

evidence to support the Board’s decision that the Project is

compatible with surrounding properties, the decision mu st be

affirmed. Id .

The record contains competent substantial evidence

supporting the Board’s conclusion that the Project is compatible

with the surrounding development. The proposed medical office

building will be located on the far east side of the Property,

adjacent to McMullen - Booth Road and is similar to the other

institution al uses along that road . T he parking lot is

ad equately buffered from the adjacent residential uses with a

six - foot high wall and trees along the north property line, a

six - foot high privacy fence along the south property line, and

approximately 160 - feet of open space with trees and a stormwater

retent ion pond between the west property line and the parking

lot.

Next, Appellants argue that the Board departed from the

essential requirements of law with respect to its approval of

the parking lot as part of the Project within the LMDR zoning

district . Appe llants rely primarily on Code Section 2 - 204.C .3 ,

which provides that off - street parking spaces in the LMDR zoning

district are to be “screened by a wall or fence of at least

three feet in height which is landscaped on the external side

with a continuous he dge or non - deciduous vine.”

Appellees contend that Appellants waived this issue by not

raising it before the Board. Th at contention is rejected. Even

though Code Section 2 - 2 04.C.3 was not specifically mentioned

during Appellants’ presentations to the Boa rd, the issues of the

parking lot’s incompatibility with the adjacent residential uses

and the insufficiency of the buffer area to minimize the

incompatibility were generally raised by Appellants and the

other individuals who spoke in opposition to the Pro ject .

Appellees also contend that Code Section 2 - 204 must be read

together with Code Section 2 - 1204 because the Project was

approved as a “comprehensive infill redevelopment project.”

Specifically, Appellees cite Code Section 2 - 1204.A.7, which

allows flex ibility “in regard to lot width, required setbacks,

height and off - street parking [if] justified by benefits to the

community character and the immediate vicinity of the parcel

proposed for development and th e City of Clearwater as a whole”

(emphasis suppl ied).

Code Section 2 - 1204 .A establishes the flexibility criteria

for development in the Institutional zoning district. By

contrast, Code Section 2 - 204 .C establishes the flexibility

criteria for development in the LMDR zoning district. The

medical office building is to be located in the Institutional

zoning district, whereas the parking lot is to be located in the

LMDR zoning district. As reflected in the Staff Report (and as

acknowledged at oral argument) , Level Two approval is required

for both aspects of the Project even though the Project was

con sidered and approved as a whole.

T he flexibility criteria in Code Section 2 - 204.C (not those

in Code Section 2 - 1204.A ) govern the approval of the parking

lot. T he checklist in the Staff Report indicated that t he

Project is “ consistent ” with the above - quoted requirement in

Code Section 2 - 204.C.3, but the basis of that finding as it

relates to the west property line appears to be the buffering

provided by the stormwater retention area because it is

undisputed tha t no fence or wall is proposed along the west

property line. On this point, the Staff Report states:

The residential uses to the west will be

buffered from the parking lot by

approximately 150 [sic] feet in which will

be located a stormwater retention fac ility.

Residential uses to the north and south will

be buffered by solid fencing and walls six

feet in height.

Appendix III, Exhibit 7, at 3.

Similarly, Appellees contend on appeal that the 160 - foot

buffer area satisfies the “purpose” of Code Section 2 - 2 04.C.3,

which they assert is to “provide a buffer between non -

residential off - street parking and adjacent properties. " See

Joint Response to Initial Brief, at 14. While that may be true,

there is nothing in Code Section 2 - 204.C that authorizes the

Board to approve off - street parking spaces in the LMDR zoning

district without a fence or wall even if an expansive buffer

area is provided. Thus, t o the extent that the Board’s approval

of the parking lot was based upon its determination that the

160 - foot buff er area is a reasonable substitute for a fence or

wall and/or th at the approval of the parking lot is governed by

Code Section 2 - 1204.A , rather than Code Section 2 - 204.C , the

Board departed from t he essential requirements of law.

Next, Appellants argue th at the Board departed from the

essential requirements of law by not imposing conditions on the

approval of the Project as required by Code Section 3 - 913. That

Code section no longer requires conditions to be imposed, but it

does require the Project to mee t “each and every one of” the

following criteria to be approved :

1. The proposed development of the land

will be in harmony with the scale, bulk,

coverage, density, and character of adjacent

properties in which it is located.

2. The proposed develop ment will not

hinder or discourage the appropriate

development and use of adjacent land and

buildings or significantly impair the value

thereof.

3. The proposed development will not

adversely affect the health or safety of

persons residing or working i n the

neighborhood of the proposed use.

4. The proposed development is designed

to minimize traffic congestion.

5. The proposed development is consistent

with the community character of the

immediate vicinity of the parcel proposed

for development.

6. The design of the proposed development

minimizes adverse effects including visual,

acoustic and olfactory and hours of

operation impacts, on adjacent properties.

Code § 3 - 913, as amended by City Ordinance No. 7413 - 05, § 18

(effective May 5, 2005).

There is competent substantial evidence in the record to

support the Board’s determination that the Project meets the

criteria in Code Sec tion 3 - 913 , including the three criteria

(Nos. 1, 5 and 6) specifically contested by Appellants. See

Initial Brief, at 10. F or example, in addition to the evidence

referenced above relating to the “compatibility” issue, there is

competent substantial evidence in the record that the Project

will not generate traffic congestion; that adverse effects on

the surrounding pr operties have been minimized through the

additional buffering requirements and operational restrictions

in the Development Agreement; that the medical use to the south

of the Property ( i.e. , the assisted living facility) enhances

safety on the surrounding residential properties; and that the

Project will similarly enhance the area by removing the

“blighted” low - income housing complex that is currently on the

Property.

The conclusion that there is competent substantial evidence

to support the Board’s finding that the Project meets the

criteria in Code Section 3 - 913 is not inconsistent with the

conclusion that the Board departed from the essential

requirements of law in approving the parking lot in the LMDR

zoning district without a fence or wall along the wes t property

line . The latter conclusion was based upon the Code Section 2 -

204.C.3, which, as noted above, unambiguously requires t he

parking lot to be screened by a wall or fence even though there

is competent substantial evidence that the parking lot will be

adequately buffered from the residential uses to the west of the

Property.

Finally, Appellants argue that the Board’s decision is not

supported by competent substantial evidence to the extent that

it is based upon the testimony of Mr. Parry because ( 1) he did

not provide his resume to the Board as experts are required to

do under Code Section 4 - 206 and (2) his testimony “consisted

only of simple conclusory statements.” This argument is

rejected.

On the first point, it has be en held that an expert’s

f ailure to submit a resume in accordance with Code Section 4 - 206

is the nature of a due process violation that is beyond the

scope of this appeal. See Belniak , supra , at 16. Moreover,

because Appellants did not object at the hearing regarding Mr.

Parry’s failure to submit a resume, they may not raise the issue

on appeal. Id. at 19 n.2. Accord Clear Channel Communications,

Inc. v. City of North Bay Village , 2005 WL 2219617, at *1 (Fla.

3d DCA Sept. 14, 2005) (concluding that circuit court sitting in

its appellate capacity over a local government’s resolution did

not misapply the law “in holding that petitioners failed to

preserve legal challenges for appellate review by not filing

proper objections before the city commission”) . In light of

these conclusi ons, it is not necessary to reach the Appellees’

contention that Mr. Parry has been designated as a “standing

expert” and, therefore, is not required to submit a resume each

t ime he appears before the Board. See Joint Response to Initial

Brief, at 18 - 19 ( relying on Supplemental Appendix Exhibits 3 - 5,

which were not received as part of the record in this appeal).

On the second point, that portion of Mr. Parry’s testimony

that was specifically directed to the flexible development

application must be consider ed in conjunction with the detailed

Staff Report on the application and Mr. Parry’s testimony on the

interrelated FLUM change and Development Agreement that were

being considered by the Board at the same time. Indeed, Mr.

Parry began his presentation to t he Board stating that he

intended to address all of the pending applicati ons related to

the Property in “ one presentation” and the Board agreed to that

procedure. See Supplemental Appendix, Exhibit 1, at 8 - 9.

In any event, contrary to Appellants’ argument , Mr. Parry’s

testimony at the hearing consisted of more than just “simple

conclusory statements .” H e specifically testified regarding the

consistency of the Project with the other institutional uses

along McMullen - Booth Road , and h e also t estified that s taff

reviewed the site plan, took into account the surrounding uses,

and considered the provisions of the Development Agreement in

formulating the Staff Report that recommended approval of the

Project. In that regard, Mr. Parry’s testimony was fact - based

and is similar to that which was found sufficient to support the

local government’s decision in City of Hialeah Gardens v. Miami -

Dade Charter Foundation, Inc. , 857 So. 2d 202 (Fla. 3d DCA

2003).

In sum, Appellants failed to show that the Board’s decision

i s not supported by competent substantial evidence , but they did

show that the Board departed from the essential requirements of

law when it approved the parking lot in the LMDR zoning district

without requiring a fence or wall along the west property line.

IV. Determination

As noted above, Code Section 4 - 505.D authorizes the

undersigned “approv[e], approv[e] with conditions, or deny[] the

requested development application.” The Code does not

specifically authorize a remand of the matter to the Board for

a dditional fact - finding, as suggested by the parties at oral

argument. In any event, a remand is not necessary under the

circumstances of this case.

In approving the flexible development application for the

Project, the only area in which the Board departe d from the

essential requirements of law w as its approval of the parking

lot without a wall or fence along the west property line as

required by Code Section 2 - 204.C.3. That error can be cured by

conditioning the approval of the Project on a requirement t hat

SpineCare construct and maintain “a wall or fence of at least

three feet in height which is landscaped on the external side

with a continuous hedge or non - deciduous vine” along the west

property line. The Board could have imposed such a condition as

p art of its approval of the Project, see Code § 4 - 404 (last

sentence) , and such a condition is a minor revision that does

not require additional Board review . See Code § 4 - 406.A.

Additionally, the approval of the f lexible development

application should be expressly conditioned on the City

Council’ s approval of the related annexation, FLUM change,

rezoning, and Development Agreement. Th e parties agreed at oral

argument that th is condition is implicit in the Board’s approval

of the Project , but the condition should be made explicit.

Based upon the foregoing, the Board’s decision approving

the flexible development application for the Project is

affirmed, and the application is approved subject to:

1. the cond itions set forth in the Development Order;

2. the City Council’s approval of the related annexation,

FLUM change, rezoning, and Development Agr eement; and

3. a requirement that SpineCare construct and maintain a

wall or fence of at least three feet in height , which is

landscaped on the external side with a continuous hedge or non -

deciduous vine , along the west property line.

DONE AND ORDER ED this 31st day of October, 2005, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of October, 2005.

ENDNOTES

1/ The “record before the community development board” is

defined by Code Section 4 - 505.A, but with the agreement of the

parties, the record received at oral argument also includes

transcripts of the Board’s hearing on the application (Appendix

I and Supplemental Appendix, Exhibit 1) and the Development

Agreement considered by the Board in conjunction with the

flexible development application for the Project (Supplemental

Appendix, Exhibit 6). Exhibits 3, 4, and 5 in the S upplemental

Appendix were not received because those exhibits were not part

of the record before the Board and no timely motion to

supplement the record was filed. See Code § 4 - 505.A.

2/ Board Member Coates made a similar comment prior to making

the mo tion to approve the application. He stated:

I just wanted to make one comment addressed

to safety issues as regards what is out

there right now. And having a parking lot

that’s well lit at nigh t , I would take the

parking lot, frankly. Having been out t here

and seen the place and driven around, I’ll

take an open parking lot any day.

Supplemental Appendix, Exhibit 1, at 58 - 59.

3/ The checklist on pages 4 and 5 of the Staff Report refers to

Code Section 2 - 20 3 , but th e correct reference is Code Section 2 -

20 4 .

4/ The transcripts of the Board’s hearing d o not reflect that

any of the witnesses w as sworn immediately prior to giving their

testimony. However, it was represented at oral argument that

the Board’s practice is to swear all individuals who intend to

make presentations to the Board en masse at the outset of the

hearing , and there i s no dispute that the policy was followed in

this case.

5/ Counsel for each of the Appellees confirmed at oral argument

that if those items are not approved by the City Council, th en

development of the Project cannot go forward.

COPIES FURNISHED :

Cynthia Goudeau, City Clerk

Official Records and Legislative Services

Clearwater City Hall, Second Floor

112 South Osceola Avenue

Clearwater, Florida 33756

Leslie K. Dougall - Sides, Esquire

City of Clearwater

Post Office Box 4748

Clearwater, Florida 33758 - 4748

David A. Theriaque, Esquire

Theriaque Vorbeck & Spain

1114 East Park Avenue

Tallahassee, Florida 32301 - 2651

Gina K. Grimes, Esquire

Hill Ward & Henderson

3700 Bank o f America Plaza

101 East Kennedy Boulevard

Tampa, Florida 33602 - 5195

Alan S. Zimmet, Esquire

Zimmet, Unice, Salzman,

Heyman & Jardine, P.A.

Post Office Box 15309

Clearwater, Florida 33766

NOTICE OF RIGHT TO JUDICIAL REVIEW

This decision is final a nd is subject to judicial review by

filing a petition for common law certiorari with the appropriate

circuit court in accordance with Section 4 - 505.D of the City of

Clearwater Community Development Code.