08-005170 Nick Williams, Ashley Williams, Guy Buell, Alfred Risch, And Robin Hinchee vs. Belleview Biltmore, Llc, The Clearwater Development Board, And The City Of Clearwater Status: Closed DOAH Final Order on Monday, April 13, 2009.

Summary: Clearwater`s Community Devt Board did not depart from the essential requirements of law or find facts not supported by competent substantial evidence when it approved a devpt plan with a relatively large restaurant as an accessory use to a 38 unit hotel.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NICK WILLIAMS, ASHLEY WILLIAMS, )

GUY BUELL, ALFRED FISCH, and )

ROBIN HINCHEE, )

)

Appellants, )

)

vs. ) Case No. 08-5170

)

BELLEVIEW BILTMORE, LLC, )

CLEARWATER DEVELOPMENT BOARD, )

and THE CITY OF CLEARWATER, )

)

Appellees. )

________________________________)

FINAL ORDER

This is an appeal of the decision of the Community

Development Board (CDB) of the City of Clearwater (City) to

approve the Flexible Development application (Application) of

Belleview Biltmore, LLC (Developer). The decision permits

development of a 38-unit hotel with accessory uses. The dispute

in this case involves the approval of a 4981-square-foot

restaurant as one of the accessory uses of the proposed hotel.

I. Jurisdiction and Record

The jurisdiction of the Division of Administrative Hearings

arises by contract with City and Code Sections 4-501.B.1 and

4-505. Oral argument on this appeal took place on March 3,

2009, at City Hall in Clearwater before the undersigned

Administrative Law Judge. Pursuant to Code Section 4-505.B, the

Administrative Law Judge received the record before the CDB,

including the transcript of the proceedings of the CDB on

September 16, 2008, at which the CDB issued the Flexible

Development Approval.

II. Issues

The two issues raised by Appellants are whether competent

substantial evidence existed to support the CDB's findings that

the proposed restaurant is an accessory use to the proposed

hotel and the site plan meets the parking design standards of

the Code.

III. Standards of Review

A. Competent Substantial Evidence

The definition of competent substantial evidence is simple.

When review is limited by this standard, "legitimate

disagreements as to weight and credibility of the evidence

presented below" are irrelevant, and the court's task is merely

to determine "whether evidence exists to support the . . .

findings [below]." Crist v. Jaber , 908 So. 2d 426, 432 (Fla.

2005).

B. Departure from Essential Requirements of Law

A departure from the essential requirements of law is a

phrase that has not commanded a single definition over time. In

Haines City Community Development v. Heggs , 658 So. 2d 523,

527n.7 (Fla. 1995), the Court noted that a departure from the

essential requirements of law has known seven separate

definitions. However, at least for circuit-court review of a

decision of an administrative agency, the Heggs Court held that

the review is: "1) whether procedural due process is accorded;

2) whether the essential requirements of law have been observed;

and 3) whether the administrative findings and judgment are

supported by competent substantial evidence." 658 So. 2d at

530. For district-court review of a decision of the circuit

court, though:

The standard of review for certiorari . . .

effectively eliminates the substantial

competent evidence component. The inquiry

is limited to whether the circuit court

afforded procedural due process and whether

the circuit court applied the correct law.

. . . [T]hese two components are merely

expressions of ways in which the circuit

court decision may have departed from the

essential requirements of law. . . . This

standard, while narrow, also contains a

degree of flexibility and discretion. 14 For

example, a reviewing court is drawing new

lines and setting judicial policy as it

individually determines those errors

sufficiently egregious or fundamental to

merit the extra review and safeguard

provided by certiorari. This may not always

be easy since the errors in question must

always be viewed in the context of the

individual case. It may also be true that

administrative decisions may be more

difficult, since care must be exercised to

determine the nature of the administrative

proceeding under review, and to distinguish

between quasi-judicial proceedings and those

legislative in nature. . . .

14 One critic has noted:

Some errors are so fundamental as

to clearly fall within the term

[i.e., depart from the essential

requirements of law so as to justify

common law certiorari]; others

clearly do not fall within any

reasonable interpretation. The

vagueness of the phrase, however,

means that there is a large grey

area. Properly conceived, the

discretion often mentioned in

relation to common law certiorari

should be exercised in this grey

area. This should not be

unprincipled or arbitrary discretion

but should depend on the court's

assessment of the gravity of the

error and the adequacy of other

relief. A judicious assessment

by the appellate court will not

usurp the authority of the trial

judge or the role of any other

appellate remedy, but will preserve

the function of this great writ of

review as a "backstop" to correct

grievous errors that, for a variety

of reasons, are not otherwise

effectively subject to review.

[Citing William A. Haddad, "Writ of

Certiorari in Florida," in The

Florida Bar, Florida Appellate

Practice , § 18.3 (3d ed. 1993).]

658 So. 2d at 530-31.

Although the Heggs Court treats both procedural due process

and departure from the essential requirements of law as a

departure from the essential requirements of law, an appellant

must raise both points separately to preserve them for review.

Miami-Dade County v. Omnipoint Holdings, Inc. , 863 So. 2d 195,

200 (Fla. 2003).

An erroneous ruling constitutes a departure from the

requirements of law when it results in a miscarriage of justice,

Tedder v. Florida Parole Commission , 842 So. 2d 1022, 1024 (Fla.

1st DCA 2003), even when the ruling is a failure to apply the

correct law. State v. Farino , 915 So. 2d 685, 686 (Fla. 2d DCA

2005). See also Department of Highway Safety and Motor Vehicles

v. Hofer , 34 Fla. Law Weekly D583 (Fla. 2d DCA 2009).

IV. Facts and Procedural History

The subject parcel, which is located on Sand Key and fronts

the Gulf of Mexico, is currently developed as a two-story grill

and bar that seats approximately 175 customers in an area

otherwise composed of high-rise residential condominiums. The

parcel is 1.38 acres, consisting of 0.96 acres zoned Commercial

District that are landward of the Coastal Construction Control

Line (CCCL) and 0.42 acres zoned Open Space/Recreational and

Preservation districts that are seaward of the CCCL. Located on

the west side of Gulf Boulevard, the irregularly shaped parcel

formerly was part of the Cabana Club residential condominium to

the north and, as developed in the early 1980s, served as the

clubhouse and members-only restaurant for the Cabana Club

condominiums. Split off from the larger parcel and conveyed in

the early 1990s, at which time litigation resulted in a

determination that the subject parcel was a buildable lot, the

parcel operated as a public restaurant with 49 existing parking

spaces and no association with any hotel until 1998, when it

closed.

In 2000, the owner tried unsuccessfully to obtain

redesignation and rezoning of the parcel to permit a ten-story,

20-unit residential condominium project. In 2002, the owner

obtained a Flexible Development approval for a restaurant open

to the general public. As currently developed, the restaurant

operating on the parcel consists of 7054 square feet of enclosed

floor area and 1916 square feet of outdoor seating with an

occupational license permitting a maximum of 305 seats. The

present restaurant has banquet facilities.

In analyzing the Application, the City of Clearwater's

Development Review Committee (DRC) noted that, pursuant to Code

Table 2-704, the minimum lot area and width for overnight

accommodation uses ranges from 20,000-to-40,000 square feet and

100-to-`200 feet, respectively. The subject parcel is 41,965

square feet, but only 88.41 feet wide along Gulf Boulevard.

Although a legally recognized lot, its width does not meet the

Code requirements for any commercial use.

The DRC noted that Code Table 2-704 requires one parking

space per unit for overnight accommodation uses, so that the

proposed development would require 38 spaces. The DRC

acknowledged that the Planning Department had determined that

the proposed 4981-square-foot restaurant would be an accessory

to the hotel "based on the relationship of the Cabana Club

[proposed hotel] with the Belleview Biltmore Hotel." The DRC

noted that transportation to the Cabana Club would include

shuttle service from the Belleview Biltmore Hotel, and the

restaurant, although open to the public, would give "priority"

to guests of the Cabana Club hotel or Belleview Biltmore Hotel.

Developer had submitted a Parking Demand Study to the Traffic

Operations Section of the City of Clearwater's Engineering

Department, which had accepted the projection that 56 spaces

would meet demand on the highest peak days. The DRC observed

that Developer had also stated an intent to employ parking

attendants, who could stack-park vehicles in the available

spaces.

In deciding to allow the Application to proceed to the CDB,

the DRC found that, among other things: 1) "the proposed hotel

will be operated by the same hotel operator of the Belleview

Biltmore Hotel in the Town of Belleair, providing guests of the

Belleview Biltmore Hotel with a beachfront experience"; 2) the

proposed development requires 38 parking spaces, and Developer

proposed 56 parking spaces for the hotel; and 3) accessory uses

do not require additional parking. The DRC concluded that the

proposed development met all applicable requirements for a Level

Two approval, pursuant to Code Section 3-913. Among the

Conditions of Approval recommended by the DRC was a deed

restriction "requiring common operation and management" of the

subject hotel and the Belleview Biltmore Hotel "in order to

maintain the operational, management and marketing

characteristics" of the two hotels. If common operation and

management ends, "this site shall be required to reduce the size

of the accessory restaurant to a square footage more in line

with a 38-room/unit hotel, acceptable to the Planning

Department."

The CDB met at 1:00 p.m. on September 16, 2008, to consider

the recommendation of the DRC to issue the Flexible Development

approval for the hotel and restaurant. Composed of volunteer

members, the CDB adhered to apparent rules of procedure and

attempted to give all interested persons an opportunity to be

heard, within the constraints of the time set aside for the

proceeding.

Among City's employees testifying at the CDB proceeding

were Planning Consultant Wayne Wells and Traffic Engineer

Humanchu Patney. Among Developer's representatives testifying

at the CDB proceeding were Richard Heisenbottle, a registered

architect; Ed Mazur, a professional engineer specializing in

site engineering; Lloyd Chapman, a traffic engineer; and Vicky

Gagliano, a parking consultant employed by Timothy Haahs and

Associates, the parking consultant for the project. Among

Appellants' representatives testifying at the CDB proceeding

were Sue Murphy, an expert in land-use planning, zoning, and

site-plan analysis employed by P&M Consulting Group, and Ronald

Oxtal, an expert in the appraisal and evaluation of real estate.

CDB determined that all of these persons were experts.

At the start of the proceeding, Mr. Wells read to the CDB

the condition, cited above, concerning the deed restriction and

joint operation and management of the proposed hotel and the

Belleview Biltmore Hotel. (Tr., pp. 38-40.)

After Mr. Heisenbottle and an appraiser testified,

Mr. Mazur testified with a slide showing the traffic circulation

of the proposed project. While showing this slide, he stated

that the project "meets all Code requirements." (Tr., p. 63.)

Mr. Chapman testified that he performed a traffic study and

found that the proposed development would have less traffic

impact than the existing use, so he projected "no traffic

problem" from the proposed development. (Tr., p. 66.)

Ms. Gagliano focused most particularly on parking. She

testified that she calculated shared parking demand based on a

peak hour of 9:00 p.m. on Saturday. She testified that a

beachfront hotel typically has low parking demand because most

customers arrive by taxi or shuttle. Using peak-hour occupancy

of 90 percent and a drive-ratio of 70 percent, Ms. Gagliano

projected a demand by the hotel of 24 peak-hour spaces.

(Tr., p. 67.) Treating the restaurant as an accessory use to

the hotel, Ms. Gagliano used a hotel-capture rate of 70 percent,

which she testified was "typical and customary for the

industry," and projected a demand by the restaurant of 14 peak-

hour spaces. (Tr., p. 68.)

For special events, even though the proposed development

would lack banquet facilities, Ms. Gagliano testified that the

contingency plans are for valet stack-parking would increase the

capacity from 56 spaces to 67 spaces and for use of the

Belleview Biltmore's 1200 spaces with shuttle service between

the two properties. (Tr., p. 69.)

Ms. Murphy testified that the 165 restaurant and

bar-and-grill seats in a 4981-square-foot restaurant and a

1096-square-foot bar and grill area by the pool are not

accessory to the 38-room hotel. (Tr., p. 86.) Ms. Murphy

testified that the Code defines an accessory use as subordinate

to the principal use and on the same property and subordinate in

extent to the principal use. Because of the ratio of restaurant

seats to hotel rooms, Mr. Murphy testified that the restaurant

was not accessory to the hotel. Based on a survey that she had

conducted of quality hotels in the area, the ratio of restaurant

seats to hotel rooms was 0.97 to 1, not the 4.34 to 1 proposed

by Developer. (Tr., p. 87.) Ms. Murphy testified that the

restaurant was not an accessory use to the Belleview Biltmore

Hotel, which is six miles from the proposed development, because

the two uses are not on the same property, as required by the

Code. She testified that the condition read by Mr. Wells

concerning the deed restriction acknowledged that staff believed

that the accessory definition could not be met without

considering the Belleview Biltmore Hotel as a principal use,

together with the proposed 38-unit hotel. (Tr., p. 88.)

Ms. Murphy testified that the contingent valet parking

would violate the Code by blocking drive lanes and parking

spaces. (Tr., pp. 88-89.) She also expressed disbelief in the

above-identified assumptions used by Ms. Gagliano. (Tr.,

p. 89.) Ms. Murphy presented photographs depicting widespread

illegal parking in the vicinity of an area hotel. She testified

that the Code required, under flexible development standards,

35-75 spaces for a restaurant of the size of the proposed

restaurant.

Lastly, Ms. Murphy testified that the proposed parking

layout does not meet the stacking requirements of the Code

because it fails to observe a minimum of 40 feet of depth from

the curb. She questioned whether the parking problems would not

pose safety problems for Gulf Boulevard because vehicles would

queue-up in the roadway trying to enter the parking area.

Appellants' counsel argued to the CDB that the proposed

restaurant requires 75 parking spaces, not the 14 that Developer

is offering, because the restaurant fails to qualify as an

accessory use to the 38-unit hotel. (Tr., p. 100.) He

contended that the intent of the Code's permission of accessory

uses is to allow for shared use of infrastructure (Tr.,

p. 101.), or, in this case, to recognize that persons using the

restaurant will already have parked in connection with their use

of the hotel. However, Appellants' counsel argued that this

will not be possible with restaurant patrons coming from a

principal use six miles away. (Tr., p. 102.) Appellants'

counsel pointed out that the Code requires that an accessory use

be located on the same property as the principal use, as well as

be subordinate to, and serve, the principal use. (Tr., p. 103.)

Appellants' counsel characterized the above-identified deed

restriction as an admission that the restaurant is not an

accessory use to a 38-unit hotel without consideration of the

448-room Belleview Biltmore Hotel (Tr., p. 104.)

Michel Nardi, a Clearwater attorney, next addressed the

CDB. Having been granted party status and previously having

stated that he was not appearing in a representative capacity,

Ms. Nardi testified that he has resided on Sand Key since 1991,

at which time very little beach existed in front of the subject

parcel. (Tr., p. 109.) Expressing concern that overflow

parking from the proposed restaurant would occupy Sand Key Bay

Park, Ms. Nardi testified that such use of the park parking

spaces might violate an agreement entered into by City and the

Florida Department of Environmental Protection, in connection

with a beach nourishment project constructed in the 1990s.

Ms. Nardi testified that he had chaired the original task force

organized by the Sand Key Civic Association for developing the

plan that would provide public parking and enhanced public

access to the beach, so as to overcome state agency objections

to including Sand Key in a larger Pinellas County beach

nourishment project. (Tr., pp. 111-13.)

Todd Pressman, who represented himself, as a nearby

property owner, and several other persons, who are also nearby

property owners, all of whom had been given party status by the

CDB. Mr. Pressman presented two letters. One letter was from

Steve Ellison, a member of the American Institute of Certified

Planners, whose analysis of accessory use was the same as that

of Ms. Murphy (Tr., p. 123), and the other letter was from Mike

Raysor, a transportation consultant and Florida professional

engineer, whose analysis of parking was the same as that of

Appellants' counsel and Ms. Murphy. (Tr., p. 125.)

After the conclusion of the presentation of direct

testimony, by narration, of the above-described persons, and

others who addressed issues not relevant to the present appeal,

the CDB Chair opened the proceeding to cross-examination.

Developer's counsel first cross-examined Ms. Murphy, after which

Mr. Heisenbottle also asked her some questions. During the

latter's cross-examination, an issue arose concerning the

percentages, based on area, for accessory uses.

Mr. Heisenbottle then cross-examined Mr. Wells on this point,

and Mr. Wells testified that all accessory uses of structures--

if not a permitted use--shall not cumulatively exceed ten

percent of the gross floor area of the principal use, but 25

percent with staff approval. (Tr., pp. 138-39.)

Mr. Heisenbottle cross-examined Ms. Nardi about the impact,

if any, of the proposed development on the ability of City to

conform to its beach nourishment contract. (Tr., p. 144-46.)

Next, the CDB Chair allowed cross-examination by persons

with party status. Appellants' counsel cross-examined

Mr. Heisenbottle, who testified that the proposed restaurant, at

nearly 5000 square feet, "certainly is perhaps" more than would

be necessary for a 38-room hotel, but added that the smaller

hotel is connected with the 425-room Belleview Biltmore Hotel.

Admitting that the proposed restaurant is "larger than what is

typical for a typical 38-room hotel," Mr. Heisenbottle testified

that there is no such thing as a typical 38-room hotel, and the

accessory use is well within the 10-25 percent range, to which

Mr. Wells had testified, so it is permitted by the Code. (Tr.,

p. 148.)

Appellants' counsel then cross-examined Ms. Gagliano. His

attempt to cross-examine her using a parking study that she had

prepared for the same client in connection with the use, if any,

of a hotel capture rate for the restaurant at the Belleview

Biltmore, was prevented when counsel for the CDB, City and

Developer objected because the study was not part of the

evidentiary record before the CDB and, according to Developer's

counsel, this cross-examination was outside the scope of direct.

Although the use of such material in cross-examination was

clearly not improper, nor was it outside of the scope of direct

examination, the CDB complied with the advice of its counsel and

excluded the material. (Tr., pp. 153-55.) This ended the

cross-examination of Ms. Gagliano by Appellants' counsel, who

then cross-examined Mr. Wells.

When asked if the proposed restaurant is larger than normal

for a 38-room hotel, Mr. Wells testified that the relevant

definitions do not set any limits, (Tr., p. 156.), but he

conceded that he previously had indicated in his comments to the

DRC that the proposed restaurant appeared to be larger than

normal for a 38-room hotel. (Tr., p. 157.) Mr. Wells declined

to justify the inclusion of the above-identified deed

restriction on the ground that the size of the proposed

restaurant precluded that it could be an accessory use to the

38-room hotel unless the larger Belleview Biltmore were

considered. (Tr., pp. 157-58.) However, he admitted that the

Code requires that the principal use to which the accessory use

relates must be at the same location. (Tr., pp. 158-59.)

Mr. Wells testified that a 20,000-square-foot restaurant could

not be an accessory use to a 38-room hotel.

At this point, the cross-examination ended, and the CDB

received public comments. After receiving numerous public

comments, the CDB listened to closing argument from planning

staff. In his comments, Mr. Wells explained that City could

enforce a deed restriction in case the common management and

operation of the proposed hotel and the Belleview Biltmore Hotel

ended. (Tr., p. 201.) He also indicated that he did not have

documentation concerning recent parking violations in the area

of the subject parcel. Following this argument, Appellants'

counsel and Developer's counsel presented brief closings.

The CDB chair expressed his concern about, among other

things, the adequacy of the parking, given the likelihood of

restaurant customers driving to the their destination. He

suggested a condition of approval prohibiting "special events or

holiday parties," which would increase parking demands.

(Tr., p. 213.) However, he had to leave the meeting immediately

after making these comments. Another CDB member approved of the

proposed development and suggested that Developer would ensure

that it not have a parking problem, given the amount of its

likely investment. (Tr., pp. 216-17.) Another CDB member

agreed. (Tr., p. 217.) A third CDB member admitted that

initially he was "concerned about parking," but the comments and

testimony "has sort of changed my mind on that," and he now

favored the proposal. (Tr., p. 218.) After another CDB member

voiced his agreement, (Tr., p. 218), another CDB member stated

that this property is a "bastard," meaning that the owner has

"attempted to rezone it as residential high, which would have

fit in with the adjacent properties[, but i]t was denied." The

proposed restaurant remained "an issue in my mind" due to the

parking, as customers would likely use cars to go to the

restaurant. This member correctly identified the parking

capacity by numbers of spaces, with and without valet-conducted

stacking, and conceded that it, "Still may not . . . be enough.

I don't know." (Tr., p. 219.) This member concluded by saying

that he would support 2.63 seats per room, but realized that

that might not be economically feasible. (Tr., p. 221.)

Another CDB member asked the other members how they felt

about conditions suggested by the Chair concerning the seawall

and CCCL before he had to leave the meeting. (Tr., p. 223.)

She did not mention the condition prohibiting special events or

holiday parties. After a brief discussion of the CCCL, a CDB

member--not the one who concluded that he did not know if the

proposed parking was enough--stated, "I do agree with parking.

My biggest concern with this is parking. . . . I agree that

[Developer] is not going to put this caliber of a project on the

table and not be willing to handle the parking." (Tr., pp. 224-

25.) This member noted that the restaurant could receive

considerable pedestrian traffic, and he welcomed the prospect of

people walking to restaurants, perhaps up the beach. The member

said he was disinclined to regulate the number of seats that the

restaurant could contain. (Tr., pp. 224-25.) This member asked

a question about another means of access to the parking area, in

order to address stacking in more detail, but some members of

the large audience became unruly and shouted comments adverse to

the proposed development. (Tr., pp. 226-28.) The CDB

discussion moved on to other parking issues following these

interruptions. Another CDB member noted that the removal of the

existing banquet facility would alleviate parking concerns and

predicted that area residents would love the resort when it is

finished. (Tr., p. 230.)

The CDB then took up a motion to approve the proposal. A

brief discussion followed concerning a condition about the CCCL.

After resolving this issue, the CDB unanimously approved the

application and adjourned the meeting at 6:07 p.m.

V. Law and Analysis

A. Accessory Use

In the present case, Appellants challenge two

determinations of the CDB in granting the Flexible Development

Application: 1) that the proposed restaurant is an accessory

use and 2) that the proposed parking otherwise met the

applicable Code requirements.

Code Section 3-201.B defines an accessory use as:

1. The accessory use is subordinate to and

serves an established and conforming

principal use.

2. The accessory use and structure is

subordinate in area, extent, and purpose to

the principal use.

3. The accessory use contributes to the

comfort, convenience or use of the principal

use.

4. The accessory use and structure is

located on the same property as the

principal use and located behind the front

edge of the principal structure.

5. The accessory use(s) and structure,

unless otherwise allowed as a permitted use

in the zoning district, shall not

cumulatively exceed ten percent of the gross

floor area of the principal use. Such

structures may be permitted up to 25 percent

of gross floor area of the principal use

through a Level One (flexible standard)

approval process. . . .

The record suggests that the Planning Department and DRC

thought that they could include the Belleview Biltmore Hotel as

part of the principal use with the proposed 38-room hotel. This

conclusion was erroneous because Code Section 3-201.B.4 requires

that the accessory use be located on the same property as the

principal use. Even if this misconception of law had permeated

the CDB proceeding, and it did not, it would not have been a

departure from the essential requirements of law because it

would not have resulted in a miscarriage of justice. As

discussed below, the conclusion that the proposed restaurant is

an accessory use is possible even when considered solely in

relationship to the proposed 38-room hotel and without regard to

the Belleview Biltmore.

As Appellants argue, the accessory-use requirements are

conjunctive, so the proposed restaurant must meet all of them.

However, the relevant accessory-use requirements are subjective

in nature and invite the exercise of judgment by the CDB, so

that it is difficult for Appellants to show that no evidence

supports the CDB's determinations on this point.

The Code requires only that the proposed restaurant be

"subordinate" to and serve the proposed 38-room hotel;

contribute to the comfort, convenience, or use of the proposed

hotel; and be subordinate in area, extent and purpose to the

proposed hotel.

There is no doubt that the proposed restaurant will serve

the proposed hotel; will contribute to the comfort, convenience,

or use of the proposed hotel; and will be subordinate in area to

the proposed hotel. "Extent" lacks any clear meaning, so it is

impossible to invalidate the CDB's determination on this basis.

The main questions are whether the proposed restaurant will be

subordinate in purpose to the proposed hotel and whether, in

general, the proposed restaurant will be subordinate to the

proposed hotel.

The meaning of "extent" is problematic. According to the

Merriam-Webster online dictionary, the most applicable

definition is: "a) the range over which something extends :

SCOPE [;] b) the point, degree,

or limit to which something extends

greatest extent >[; or] c) the amount of space or surface that

something occupies or the distance over which it extends :

MAGNITUDE [.]" The last definition

could be applied here. Although it is similar to area, it could

mean footprint, so that, in the case of a high-rise hotel and

outparcel building, the two footprints could be compared.

However, this result could place undue emphasis on a sprawling

pool-and-cabana operation, due to its large footprint, at the

expense of a more intense high-rise hotel operation.

The better definition, in this case, may be the first: the

range over which something extends, where the something is hours

of operation. Obviously, a nightclub that operates during hours

that the hotel front desk is closed raises questions of the

subordination of the nightclub operation relative to the hotel,

just as would a 24-hour restaurant operating in a hotel with

limited front desk hours. Here, though, the reverse applies:

the hotel front desk will always be open, and the restaurant

will have more limited hours.

Appellants seize on admissions that the proposed restaurant

is relatively large for a hotel the size of that proposed. This

fact does not preclude the existence of evidence of

subordination in purpose, in extent, or in general. Repeated

testimony from staff and Developer's witnesses, especially

Ms. Gagliano, support the CDB's determination of a subordinate

relationship of the proposed restaurant to the proposed hotel,

including, in particular, the source of business. Appellants

object that this testimony is conclusory, but the open-ended

nature of the Code's requirements are satisfied by such

conclusory testimony based on the experience of the witness.

Appellants argue that the primary business of the proposed

restaurant will be drawn from sources outside of the proposed

hotel. Although the greater weight of the evidence would

support this argument, some evidence suggests otherwise.

Moreover, the CDB was free to determine that the proposed

restaurant is an accessory use to the proposed hotel, even if

the primary business of the proposed restaurant were drawn from

sources outside of the proposed hotel. Nothing in the Code

requires the interpretation that Appellants have given the

requirements of subordination in general and subordination of

purpose or extent in particular.

It is true that the existence of considerable business from

outside the hotel suggests a certain independence on the part of

the restaurant that may be inconsistent with its subordinate

role with respect to the hotel. But such independence does not

dictate a finding that the proposed restaurant cannot qualify as

an accessory use to the proposed hotel. The ultimate point is

the relationship between the proposed restaurant and the

proposed hotel, not the relationship between the proposed

restaurant and its revenue sources. The restaurant may derive

most of its revenues and profits from outside the hotel, but

point is whether the hotel remains dominant over the restaurant.

Under the subjective standards in the Code, for instance, a

multi-service marina might be the principal use when compared to

a fueling service located within the marina, even though the

fueling service derived a majority of its revenues and profits

from passing boaters who never otherwise used the other marina

services. The point is that the fueling service serves the

marina, even though the fueling service derives most of its

revenues and profits from nonmarina sources.

Appellants' other argument is that the evident purpose of

the accessory-use provisions of the Code is, as relevant to this

case, to relieve certain uses of meeting parking requirements

because they will share parking facilities with the principal

use. This is a good argument if the City, in its legislative

capacity, considers revising its Code concerning accessory uses.

This argument would support more quantitative, less subjective

Code provisions that would better serve the functional purpose

of an accessory-use exception to parking requirements. But, in

an adjudicative case such as this, with the CDB acting in a

quasi-judicial capacity, this argument has traction only in

interpreting ambiguous Code provisions, of which there is none.

More likely, this argument betrays Appellants' frustration with

the open-ended nature of the applicable Code standards, but the

Code is what it is, not what Appellants would wish it to be, and

Appellants must take the Code as they find it. Their function-

based argument, however appealing, cannot be applied to

unambiguous Code provisions that are indisputably subjective and

qualitative and invite the application of the experience of the

Planning Department and CDB.

B. Parking

Code Section 3-1406.B addresses "off-street loading and

vehicle stacking spaces":

B. Stacking spaces : Provisions must be

made for stacking and transition of incoming

traffic from a public street, such that

traffic may not back-up into the public

street system.

1. The minimum distance between a state

right-of-way and the first parking space or

aisleway in a parking lot shall be as set

forth in the Florida Department of

Transportation . . . Driveway Handbook.

2. The minimum distance between all

other rights-of-way and the first parking

space or aisleway in a parking lot shall be

as outlined in the following table:

Number of Spaces Minimum Stacking Distance

50 or fewer 20 feet

51 or more 40 feet

* * *

6. Additional stacking may be required

as a condition of site plan approval. The

length of the stacking area may be reduced

when supported by a traffic study.

In the record, the jurisdiction of the relevant segment of

Gulf Boulevard--whether state or county--is not entirely free of

ambiguity. However, the only references to state jurisdiction

are incidental, as in designating the road as "SR 699" for

identification purposes, not for jurisdictional purposes. It

would appear that the more consistent treatment below of the

relevant segment was that it is under county jurisdiction.

Because Appellants have not directly challenged this

determination, but in fact advance it in their proposed final

order, the relevant Code provisions address county roads and, in

this case, would require 40 feet under the above-cited table.

Again, the applicable Code provisions vest considerable

discretion in the CDB. Early discussion of the parking issue

suggest that some CDB members placed considerable trust in their

expectation that Developer would not invest in a project with

serious parking problems, but later discussion focused somewhat

more on the parking solution contained in the proposal.

Moreover, the CDB displayed independence in approaching the

parking issue. CDB members considered imposing an additional

condition prohibiting special events or restricting the number

of restaurant seats, but implicitly rejected such a condition as

impracticable.

Mr. Mazur testified that the proposed project met the Code

requirements. Although he testified about many aspects of

infrastructure, he made this representation while showing the

CDB a slide about traffic circulation in the immediate vicinity

of the subject parcel--an obvious factor in addressing the

concerns of Appellants in this issue. Mr. Chapman's testimony

seemed more directed toward trips, which is more indirectly

involved in Appellants' concerns. Ms. Gagliano focused

specifically on parking, although on the adequacy of the number

of spaces, not the adequacy of stacking.

It is not entirely clear from at least one site plan that

the 40-foot stacking requirement is not met. If not, though,

the CDB could have relied on the valet parking as assurance that

this margin between the highway and the aisleway or first

parking space would be maintained. In any event, the traffic

analyses offered by Mr. Mazur, Mr. Chapman, and particularly

Ms. Gagliano also would have supported any decision by the CDB

to shorten the stacking distance due to its determination that

Developer had adequately addressed the peak-hour onsite parking

demands of the proposed hotel and restaurant. Late in a long

proceeding, as one CDB member seemed about to discuss stacking

itself, audience unruliness distracted the members, who moved on

to another aspect of parking--such things happen.

C. Conclusion

Code Section 4-404 requires Developer in a Level Two case

"to demonstrate to the [CDB] that all required criteria for

approval are met." The CDB was dealt a difficult hand--

analyzing a proposal for the development of a narrow parcel

separated years earlier from an adjoining parcel and later

determined to be buildable--and played it as best it could--

conducting a proceeding that allowed all interested persons a

reasonable opportunity to try to inform and persuade its

members. In their discussion, the members addressed the

important points, evidencing their serious consideration of the

testimony presented to them. Obviously impressed by the

expertise that Developer had brought to bear on the development

problems presented by the subject parcel, the CDB exercised its

discretion, as provided by the relevant provisions of the Code,

to approve the proposal.

Based on the foregoing, the CDB's approval is affirmed.

DONE AND ORDERED this 13th day of April, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

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 April, 2009.

COPIES FURNISHED:

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

Thomas E. Reynolds, Esquire

Rahdert, Steele, Bole & Reynolds, P.A.

535 Central Avenue

St. Petersburg, Florida 33701

Alan S. Zimmet, Esquire

Zimmet, Unice, Salzman, P.A.

2570 Coral Landings Boulevard, Suite 201

Palm Harbor, Florida 34684

City Clerk

Official Records and Legislative Services

Clearwater City Hall, Second Floor

112 South Osceola Avenue

Clearwater, Florida 33756

NOTICE OF RIGHT OF JUDICIAL REVIEW

This decision is final and 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.