05-002475 Island Estates Civic Association vs. Community Development Board, City Of Clearwater And Skiff Point Of Clearwater, Llc Status: Closed DOAH Final Order on Thursday, October 13, 2005.

Summary: Board`s decision to approve development order for 5-story condominum project is supported by competent substantial evidence. Decision affirmed and development order approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ISLAND ESTATES CIVIC )

ASSOCIATION, )

)

Appellant, )

)

vs. ) Case No. 05-2475

)

COMMUNITY DEVELOPMENT BOARD, CITY OF CLEARWATER and SKIFF )

POINT OF CLEARWATER, LLC, )

)

)

Appellees. )

)

FINAL ORDER

This case involves an appeal of the Development Order

issued by the City of Clearwater (City) authorizing Skiff Point

of Clearwater, LLC (Applicant), to construct a five-story, 15-

unit residential condominium (the Project) on a 0.5 acre parcel

at the end of the cul-de-sac on Skiff Point (the Property). The

appeal was brought by Island Estates Civic Association

(Association), a civic association whose boundaries include the

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 September 21, 2005, before Administrative Law Judge T. Kent Wetherell, II.

At the oral argument, the record of the proceedings before

the Community Development Board (Board) was received and

argument was presented by the parties. See Code § 4-505.B. 1 As

allowed by the Code, argument was also presented by several of

the individuals who had been granted “party status” by the

Board: Frank Dame, Neil Spillane, Kevin Barry, and Carroll

Lovett. Id. The parties filed briefs detailing their

respective positions, and they were also afforded the

opportunity to file proposed final orders, which they did. See

Code § 4-505.D. Additionally, Mr. Spillane filed a letter in

which he responded to the arguments presented in the Appellees’

briefs. Due consideration has been given to the parties’

written submittals and oral arguments.

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

requirement that the 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 is also

included to provide the context necessary to evaluate the issues

raised in the Association’s appeal.

I. Procedural History and Project Overview

On March 10, 2005, the Applicant filed a sworn flexible

development application seeking approval of the Project as a

“residential infill project.” The Project requires Level Two

approval under the Code because it proposes reductions in the

minimum setbacks and an increase in the maximum height specified

in the Code.

The Property is composed of two pie-shaped lots. The width

of the Property varies from 70 feet in the front to 250 feet in

the rear along the Intracoastal Waterway. The average width of

the lot, as calculated by City planning department staff, is 160

feet.

The Property is zoned Medium High Density Residential

(MHDR). The immediately adjacent parcels and the entire

“finger” of land around Skiff Point on which the Property is

located are also zoned MHDR. All of the parcels on Skiff Point

are developed with multi-family residential attached dwellings,

except for one parcel which is developed with a single-family

residence. Attached, condominium-style dwelling units

“dominate” Skiff Point.

The “finger” of land around Dolphin Point, which is to the

south of the Property, is also zoned MHDR and is developed with

multi-family residential attached dwellings. The “finger” of

land around Palm Island Southwest, which is to the north of the

Property, is zoned Low Medium Density Residential and is

developed with single-family residences.

The Property is currently developed with two residential

buildings, comprised of a two-story building and a one-story

building containing a total of six attached dwelling units.

Those buildings will be demolished to construct the Project.

The adjacent parcel immediately to the north of the

Property is developed with a three-story condominium building

with nine units. The adjacent parcel immediately to the south

of the Property was developed with a two-story multi-family

residential building, but it was represented at the oral

argument that that building was recently demolished. There is

conflicting testimony in the record as to whether the structures

on the adjacent properties are elevated above the base flood

elevation, as is required under the Code for new construction.

The Project will have parking on the ground floor, which is

consistent with the condominium on the immediately adjacent

parcel to the north of the Property as well as other

condominiums in the Skiff Point/Dolphin Point area of Island

Estates. The condominium units in the Project will be on the

four floors above the parking.

All of the parking for the Project will be on-site. No

deviation from the parking requirements in the Code was

requested, and the 24 on-site parking spaces exceed the

requirements of the Code by one space. There will be deed

restrictions requiring owners of the units in the Project to

park on-site.

The Project will have a Mediterranean-style design, which

is consistent with the condominium on the parcel immediately to

the north of the Property. The Project will also have extensive

landscaping and underground utilities.

The total height of the Project will be 71 feet, but for

purposes of calculating height under the Code, the Project will

be 49 feet. The Code calculates height from the base flood

elevation, rather than ground level, and excludes certain

aesthetic features on the roof.

The Project is considerably higher than the 30-foot to 35-

foot buildings on the immediately adjacent properties, but the

Project's height is not inconsistent with the development in the

surrounding neighborhood. The analysis prepared by the

Applicant’s planner identified several buildings within 500 feet

of the Project that are over four stories in height, and she

testified that the Skiff Point/Dolphin Point area of Island

Estates “is dominated by buildings that are multi-story,

particularly those that are over four stories in height.”

The application was considered by the Board at three

separate meetings: April 19, 2005; May 17, 2005; and June 21,

2005. The Board heard testimony at each of the meetings from

City planning department staff, the Applicant, and persons and

groups (including the Association) with “party status”. The

testimony was sworn, 2 and the opportunity for cross-examination

was provided at each meeting. The Board also heard “public

comment” on the Project at each meeting from individuals who did

not have "party status."

At the conclusion of the April meeting, the Board granted

the Applicant’s request for a continuance so that the Applicant

“could take some time to discuss this with the neighbors and

maybe have a plan that may meet the Board’s concerns, also.” No

changes were made to the Project after the meeting.

At the conclusion of the May meeting, the Board voted on a

motion to deny the application. The vote was three to three,

and because four votes are necessary for the Board to take

action, consideration of the Project automatically carried over

the Board’s next meeting.

At the conclusion of the June meeting, a motion to deny the

application failed by a vote of four to two. A subsequent

motion to approve the application passed by the same vote. The

motion for approval was based upon the proposed findings of fact

and conclusions of law in the staff report prepared by the City

planning department.

The staff report, which was prepared by planner Mark Parry

in advance of the April meeting, recommended approval of the

Project. The staff report was updated prior to the May and June

meetings, but no substantive changes were made in the report or

to the staff recommendation of approval.

The staff report included an analysis of the Project as

well as findings that the Project was consistent with each of

the criteria in Code Sections 2-404.F. and 3-913. In making

those findings, the planning department staff received input

from other City departments ( e.g. , fire, utilities, stormwater,

traffic, etc.) that reviewed the application. The Project

received favorable endorsements from the other City departments,

and no problem areas were identified.

Among other things, the staff report states that the

Project’s setbacks “are comparable to other developments in the

area” and that “[t]he proposed building of four stories over

ground level parking is consistent with other developments in

the area.” Consistent with those statements, Mr. Parry

testified at the June Board meeting that “staff has found that

the request for increased height is compatible with the

surrounding neighborhood” and that there area other buildings in

the area that are taller 30 feet, which is the height

requirement from which the Applicant is seeking a deviation.

Mr. Parry and other members of the City planning department

staff ( e.g. , Mr. Thompson and Ms. Clayton) also testified at the

Board meetings and were subject to cross-examination regarding

the staff report and the Project’s compliance with the

applicable criteria in the Code. Representatives of the

Applicant, including attorney Troy Purdue, architect Robert

Resch, engineer Housh Ghovaee, and planner Ethel Hammer, also

testified at the Board meetings and were subject to cross-

examination regarding the nature of the Project, the character

of the adjacent and surrounding development, and the Project’s

compliance with the applicable requirements in the Code.

Extensive testimony was presented by individuals opposed to

the Project at each of the Board meetings. The testimony

primarily focused on the incompatibility of the Project with the

development on the adjacent parcels and the inconsistency of the

Project with the character of the surrounding area because of

its height and bulk.

On June 23, 2005, the City issued a Development Order

approving the flexible development application for the Project

with conditions. The “bases for approval” set forth in the

Development Order are that the Project complies with the

requirements of Code Sections 2-404.F and 3-913 and that the

Project “is compatible with the surrounding area and will

enhance other redevelopment efforts.”

On or about June 30, 2005, the Association timely filed an

Appeal Application contesting the Development Order and the

Board’s approval of the Project. The appeal was transferred to

DOAH on July 12, 2005.

II. Scope of Appeal and Standard of Review

In this appeal, the burden is on the Association to show

that:

[1] the decision 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.

City Code § 4-505.C.

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

issues. See , e.g. , Belniak v. Top Flight Development, LLC , Case

No. 04-2953, at 14-15 (DOAH Nov. 23, 2004).

The Association does not argue that the Board’s approval of

the Project departs from the essential requirements of law. It

only argues that the Board’s decision is not supported by

competent substantial evidence.

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 sufficient 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 decision is supported by

competent substantial evidence, the undersigned is not permitted

to second-guess the wisdom of the Board’s decision, reweigh

conflicting testimony presented to the Board, or substitute his

judgment for that of the Board as to the credibility of

witnesses. 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 Association so long as there is

competent substantial 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 exerting 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 before 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 training 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).

III. Analysis of the Association’s Arguments

and Conclusions of Law

The “basis of appeal” set forth in the Appeal Application

filed by the Association was that the Project failed to comply

with Code Section 4-204.F (Criteria Nos. 1 and 7), Code Section

3-913 (Criteria Nos. 1, 3, 4, 5, and 6), and Code Section 4-404;

and that the Board failed to comply with its procedural rules by

not allowing cross-examination at the June meeting. In its

initial brief, the Association argued that the Project fails to

comply with Code Section 4-204.F.6 (in addition to Criteria Nos.

1 and 7), all six criteria in Code Section 3-913 (not just the

five criteria identified in the Appeal Application), and Code

Section 4-404. The Association’s briefs do not discuss the

cross-examination issue. At oral argument, the Association also

argued that the Project fails to comply with the Code Section 2-

1602, which relates to the Island Estates Neighborhood

Conservation Overlay District (IENCOD).

The Association is deemed to have abandoned the cross-

examination issue by not raising the issue in its briefs. 3 The

Association is also deemed to have waived any argument regarding

the Project’s compliance with Code Sections 4-204.F.6 and 3-

913.2 by not specifically referencing those Code provisions in

its Appeal Application. 4 See Code § 4-502.B. (requiring Appeal

Application to “identify[] with specificity the basis for the

appeal”). Similarly, the Association is deemed to have waived

any argument regarding the Project’s compliance with Code

Section 2-1602, by not identifying that issue in its Appeal

Application and/or by not raising the issue in its briefs. 5

The Association’s remaining arguments will be discussed in

turn.

A. Code § 2-404.F. (Criteria No. 1 and 7)

Code Section 2-404.F sets forth the “flexibility criteria”

that must be met in order for a residential infill project to be

approved with variations from the development standards in Code

Section 2-404, Table 2-404. The criteria include:

1. The development or redevelopment of

the parcel proposed for development is

otherwise impractical without deviations

from one or more of the following:

intensity; other development standards.

* * *

7. Flexibility in regard to lot width,

required setbacks, height and off-street

parking are justified by benefits to

community character and to the immediate

vicinity of the parcel proposed for

development and the City of Clearwater as a

whole.

Code § 2-404.F.

The record contains competent substantial evidence that

development of the Property would be impractical without the

deviations in the height or setback requirements in the Code.

For example, there was testimony that the irregular shape of the

Property and its location at the end of a cul-de-sac make

development of the Property difficult without deviations from

the Code, and that reducing the height of the Project would

result in more building coverage on the Property, which in turn

would reduce the view corridors across the Property.

Additionally, there is competent substantial evidence that

reducing the number of units in the Project was not a viable

alternative to the deviations that were requested. On this

point, the sworn application states that financial viability was

a consideration in the design of the Project, and City planning

department staff testified that “the area has generally been

undeveloped, and what [the Applicant] would be doing [is] more

appropriately develop[ing] the site according to the underlying

land use and the zoning criteria.”

The record also contains competent substantial evidence

that the deviations from the setback and height requirements in

the Code are justified by benefits to “community character” and

to the immediate vicinity of the Property. For example, there

is testimony and evidence in the record that the Project will

have greater setbacks than the buildings currently on the

Property, that the Project will have underground utilities

(rather than the existing, “unsightly” overhead power lines

described by Mr. Spillane in his testimony at the Board’s April

meeting) and extensive landscaping, and that the Project will

have less lot coverage and better view corridors than an

alternative design with a lower building. Additionally, there

is testimony in the record that the neighborhood is in

transition and that the Project would enhance the area because,

according to City planning department staff, “it is an

attractive looking building.”

On these points, it is immaterial for purposes of the

undersigned’s review that there was extensive testimony from

representatives of the Association and others opposed to the

Project regarding the negative impacts on the “community

character” of Skiff Point because of the Project’s size and

bulk. It was the Board’s duty to weigh the conflicting

testimony and evidence on this subjective criteria, and the

undersigned is without authority to reweigh that testimony and

evidence. See Dusseau , 794 So. 2d at 1275-76.

B. Code § 3-913 (Criteria No. 1, 3, 4, 5, and 6)

Code Section 3-913 identifies the “general standards” that

must be met for a Level Two use to be approved. The application

must “meet each and every one of the . . . criteria.” The

criteria at issue in this appeal provide:

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.

* * *

3. The proposed development will not

hinder or discourage the appropriate

development and use of adjacent land and

buildings or significantly impair the value

thereof.

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.

There was conflicting testimony presented to the Board

regarding the Project’s compliance with the criteria in Code

Section 3-913. However, as noted above, it was the Board’s duty

to weigh the conflicting testimony on these subjective criteria,

and the undersigned is without authority to reweigh that

testimony. See Dusseau , 794 So. 2d at 1275-76.

The record contains competent substantial evidence

regarding the Project’s compliance with each of the criteria in

Code Section 3-913, particularly those subjective criteria

and its consistency with the “community character” of Skiff

Point. For example, the staff report states that “[t]he

proposed building of four stories over ground level parking is

consistent with other developments in the area.” Similar

testimony was presented by City planning department staff and

the Applicant’s planner at the June Board meeting. There is

also testimony in the record that the Project will have “no

adverse affects” on the values of adjacent properties and will

improve view corridors, and that the Project is respectful of

and adheres to the existing character of the neighborhood and

the adjacent properties. As to minimization of traffic

congestion, there is testimony in the record from City planning

department staff and representatives of the Applicant that the

Project meets the parking requirements in the Code and that the

Project’s on-site parking will be an improvement to the existing

parking situation on the Property.

In making these conclusions, the undersigned did not

overlook the Association’s argument that the evaluation of the

“harmony” with surrounding development under Code Section 3-913

should be limited to the existing development on the parcels

abutting the Property (as compared to existing development in

Island Estates in the general vicinity of the Property, or as

the City and the Board argued in their brief and at oral

argument, the development potential of the abutting properties).

Even though some of the testimony and evidence in the record

focuses on the compatibility of the Project with the existing

development in the broader Skiff Point/Dolphin Point area of

Island Estates, there is also testimony and evidence regarding

the compatibility of the Project with the development on the

abutting parcels. For example, Mr. Parry testified at the June

Board meeting that, in his expert opinion, the proposed five-

story building is compatible with the three-story condominium

building on the parcel immediately to the north of the Property.

Thus, even if the Association’s interpretation of Code Section

3-913 is correct, there is competent substantial evidence to

support the Board’s ultimate findings that the Project satisfies

the criteria in that section of the Code.

C. Code § 4-404

Code Section 4-404 requires an applicant for a Level Two

approval to “demonstrate to the [Board] that all required

criteria for approval are met.” That section does not impose

any additional requirements beyond those found elsewhere in the

Code.

The Association’s argument on this issue simply makes

reference in a summary fashion to the criteria in Code Section

3-913 that the Association argues were not met by the Applicant.

Because, as discussed above, there is competent substantial

evidence to support the Board’s determination that Project

complies with Code Section 3-913 (as well as Code Section 2-

404.F), the Association’s argument regarding the Project’s non-

compliance with Code Section 4-404 is rejected.

IV. Determination

Based upon the foregoing, the Board’s decision is affirmed,

and it is determined that the flexible development application

for the Project is approved with the conditions set forth in the

Development Order.

DONE AND ORDERED this 13th 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th 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 the oral argument also included

the transcripts of the Board hearings in the Appendix prepared

by the parties as part of this appeal. Three photographs were

tendered at the oral argument by Neil Spillane, one of the

individuals who had been granted “party status” by the Board.

According to Mr. Spillane, he showed the photographs to the

Board during its hearings on the Project. The City, the Board,

and the Applicant objected to the photographs being part of the

record upon which the undersigned’s decision will be based

because the photographs were not part of the record upon which

the Board made its decision. The photographs were apparently

not handed to the City Clerk at the Board’s hearing, which

according to counsel for the City, is required for a document to

become part of the record before the Board. The objection was

sustained at the oral argument, and Mr. Spillane’s tender of the

photographs was treated as a proffer so that the photographs

would be included in the record of this appeal in the event of

subsequent judicial review. However, the photographs have not

been considered by the undersigned in preparing this Final

Order. Upon reflection, the tender of the photographs should

have been treated as a motion to supplement the record, but the

ruling would have been the same. See Code § 4-505.A (motion to

supplement the record must be filed “within 10 days of filing

the notice of appeal”).

2/ The transcripts included in the Appendix filed as part of

this appeal do not reflect that any of the witnesses, except for

the Applicant’s planner, were sworn prior to 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 start of the meeting,

and that the practice was followed in this case.

3/ In making this conclusion, the undersigned did not overlook

the fact that the cross-examination issue was raised in Mr.

Spillane’s letter. Aside from the fact that Mr. Spillane is not

a direct party to this appeal, his letter is tantamount to a

reply brief, and it is well-settled that issues raised for the

first time in a reply brief will not be considered. See , e.g. ,

Williams v. State, 845 So. 2d 987, 989 (Fla. 1st DCA 2003).

Furthermore, the Board’s alleged failure to provide cross-

examination is effectively a procedural due process claim, which

is beyond the scope of this appeal. See Belniak , supra , at 14-

15. Finally, the record does not support the claims in Mr.

Spillane’s letter, but rather shows that he and others with

"party status" conducted extensive cross-examination of City

staff and the witnesses presented by the Applicant, including

attorney Troy Purdue when he presented factual testimony at the

April and May Board meetings.

4/ Even if it was concluded that the issue had not been waived,

the Association’s argument that the Project failed to comply

with Code Section 2-404.F.6 would be rejected because, as

discussed in connection with Code Section 2-404.F.7, there is

competent substantial evidence in the record that the Project

will enhance “community character.”

5/ Even if it was concluded that the issue had not been waived,

the Association’s argument that the Project failed to comply

with Code Section 2-1602 would be rejected. Mr. Parry testified

at the May Board meeting that “when it comes to multi-family

dwellings, the [IENCOD] pretty much defaults back to the MHDR

district section within the Code for things light height,

setbacks and all of your site plan parameters . . . .”

Moreover, there is competent substantial evidence in the record

that the Project satisfies the “additional development

standards” in Code Section 2-1602.H and that the Project is

consistent with “the protection of the existing established

character within the [IENCOD]” under Code Section 2-1602.A. On

the latter point, for example, the Applicant’s planner, Ms.

Hammer, testified based upon her analysis that the Skiff

Point/Dolphin Point area of Island Estates “is dominated by

buildings that are multi-story, particularly those that are over

four stories in height” and City planning department staff

testified that the proposed five-story building is compatible

with the adjacent three-story building and that the Project will

enhance the "community character." The Applicant’s attorney,

Mr. Purdue, provided testimony consistent with that of Ms.

Hammer at the May Board meeting.

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

Gina K. Grimes, Esquire

Hill Ward & Henderson

3700 Bank of America Plaza

101 East Kennedy Boulevard

Tampa, Florida 33602-5195

Darryl R. Richards, Esquire

Johnson, Pope, Bokor,

Ruppel & Burns, LLP

Post Office Box 1368

Clearwater, Florida 33757-1368

Don McCreery

Island Estates Civic Association

140 Island Way, No. 239

Clearwater, Florida 33767-2216

NOTICE OF RIGHT TO JUDICIAL REVIEW

This decision is final and 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.