09-003949 Patricia M. Stough vs. Panorama On Clearwater Beach, Llc, Evangeline P. Samarkos, As Trustee Of The Evageline P. Samarkos Revocable Trust Uad, Michael A. Samarkos, Victoria Harkey, Community Development Board And City Of Clearwater Status: Closed DOAH Final Order on Thursday, November 5, 2009.

Summary: Appellant failed to show that the decisions of the City of Clearwater's Community Development Board approving an 88-unit hotel project was not supported by competent substantial evidence in the record.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA M. STOUGH, )

)

Appellant, )

)

vs. )

)

PANORAMA ON CLEARWATER BEACH, )

LLC, EVANGELINE P. SAMARKOS, AS ) Case No. 09-3949

TRUSTEE OF THE EVAGELINE P. )

SAMARKOS REVOCABLE TRUST UAD, )

MICHAEL A. SAMARKOS, VICTORIA )

HARKEY, COMMUNITY DEVELOPMENT )

BOARD and CITY OF CLEARWATER, )

)

Appellees. )

)

FINAL ORDER

Appellant, Patricia Stough, seeks review of a development

order issued by the City of Clearwater Community Development

Board on June 17, 2009, following a quasi-judicial, public

hearing held on June 16, 2009. The development order approved

the “flexible development” application of Panorama on Clearwater

Beach, LLC, Evangeline P. Samarkos, as Trustee of the

Evangeline P. Samarkos Revocable Trust UAD, Michael Samarkos and

Victoria Harkey (Applicants) for an 88-unit hotel in Clearwater.

This appeal is taken pursuant to Section 4-505 of the

City’s Community Development Code (Code), which provides that a

decision of the Community Development Board may be appealed to a

hearing officer to conduct a proceeding in which the burden is

upon the appellant to show that the Board’s decision cannot be

sustained by substantial competent evidence in the record or

that the decision departs from the essential requirements of

law.

Under a contract between the City and the Division of

Administrative Hearings, an administrative law judge of the

Division was assigned to act as the hearing officer for this

appeal. A pre-hearing conference was held to determine the

record on appeal and to establish the schedule for submittal of

the parties’ briefs.

On September 29, 2009, oral argument was received at a

hearing held by video teleconference at sites in Tallahassee and

Tampa. The hearing officer attended in Tallahassee. All other

participants attended at the Tampa site. Under Section 4-505B

of the Code, all persons who were granted party status by the

Community Development Board may present oral argument. In this

case, oral argument in opposition to the decision on appeal was

presented by Patricia Stough, John Grubb, Joseph Quinn, and Ann

Quinn. Oral argument in support of the decision was presented

by the Leslie Dougall-Sides, counsel for the City, Gina Grimes,

counsel for the Community Development Board, and Ed Hooper,

representing the Applicants. The hearing was open for

attendance and observation by members of the general public.

Following the hearing, a joint proposed final order was

submitted by the Appellees. No post-hearing writing was

submitted by the Appellant.

The Factual Record

The development site is on 0.60 acres and comprises eight

parcels located between Avalon Street and Kendall Street, in

Clearwater.

The site is largely vacant. All previously existing

structures were removed except for a dwelling on the eastern

portion of the site, facing Kendall Street. The site has a

future land use designation of Resort Facilities High (RFH) under

the City of Clearwater Comprehensive Plan. The site is within

the Tourist zoning district, which allows hotel uses.

North of the site is property that is zoned Tourist and Open

Space/Recreation (OS/R) and occupied by a City parking lot and

attached dwellings. South of the site is property zoned Tourist

and developed with overnight accommodations and an automobile

service use. The properties to the east are zoned Tourist and

include a motel, a restaurant, retail sales and services, and

attached dwellings. The property to the west is zoned OS/R and

is a City parking lot that separates the development site from

the beach and Gulf of Mexico.

The Community Development Board approved the Applicants’

request to develop an 88-room hotel with 1,482 square feet of

accessory uses, including a conference room, an exercise room,

and a restaurant/bar. The first three lev els of th e hotel comprise

the parki ng garage , which w ill provi de 94 par king spac es.

The Board’s approval also allows a reduction to the lot

width along Kendall Street from 150 feet to 100 feet, a reduction

to the front (south) setback from 15 feet to 10.8 feet (to the

proposed building) and zero feet (to the proposed sidewalk), a

reduction to the front (north) setback from 15 feet to 10 feet (to

the proposed building) and zero feet (to the proposed pavement), a

reduction to the side (west) setback from 10 feet to five feet (to

the prop osed building) and zero feet (to the proposed pavement), a

reduction to the side (east) setback fro m 10 feet to five feet (to

the propo sed build ing), a r eduction to the re ar (south ) setback from

2 0 feet to five feet (t o the proposed building ), an increase to

t h e building height from 35 feet to 72 feet (to the top of roof

deck) and 86.5 fe et (to th e elevato r equipme nt), an i ncrease of the

permitted density from 30 units to 88 units, and an extension of the

duration of the development order from one year to t w o y e a rs.

Section 2-803 of the Code, entitled “Flexible development,”

establishes the permitted uses and the minimum setbacks, lot

areas, lot widths, and other criteria that apply within the

Tourist zoning district. The site is also within the Old Florida

City which has development guidelines that supplement the Code.

The maximum density normally permitted under the RFH future

land use category for hotels is 50 units per acre, which on the

Applicants’ 0.6 acres would result in 30 units. However, a H o t e l

D e n s i t y R e s e r v e p rogram was established in Beach by Design a s a

means to encourage the construction of new, mid-size, mid-priced

hotels on the beach in response t o t h e l o s s o f h o t e l r o o m s s i n c e 2 0 0 2 .

T he Hote l Density Reserve allows the transfer of units to a site

up to a maximum density of 150 units per acre.

Based on the size and proposed amenities of the proposed

hotel, it is expected to have “mid-priced” rates when compared

to rates charged by other hotels in the City and region. No

competent evidence was presented to demonstrate that the

proposed hotel could not be reasonably characterized as a mid-

priced hotel project.

The Community Development Board approved a transfer of 58

units to the site, for a total of 88 units and a resulting

density of 146.7 units per acre.

The height of the proposed hotel (72 feet) complies with

Section II.A.1. of Beach by Design, which establishes a height

limit of 75 feet for a hotel in the Old Florida Character

District. The City staff determined that the height was not

inconsistent with the purpose and intent of the Old Florida

District because the hotel would be located close to Rockaway

Street where there are other res ort uses. The proposed building

height allows for the intended t ransition of building heights from

the Destination Resort District south of the Old Florida District

to the residential neighborhoods north of the Old Florida District.

The proposed hotel site complies with the minimum lot area

in Section 2-803 of the Code.

Section 2-803 establishes a m i n i m u m l o t w i d t h f o r overnight

accommodations as 100 to 150 feet. Th e proposed lot width along

Avalon Street is approximately 2 00 feet. Along Kendall Street, the

proposed lot width is 100 feet. The City staff determined that the

proposed lot width along Kendall Street would not cause the

building to be out-of-scale with oth er buildings in the vicinity.

Section II.A.2. of Beach by Design requires a front setback

of 15 feet and side and rear setbacks of 10 feet. However,

Section II.A.4. permits setbacks to be reduced up to 5 feet, “if

the decreased setback results in an improved site plan,

landscaping areas in excess of the minimum required and/or

improved design and appearance.” A m i n i mum five-foot unobstructed

access must mainta ined along the entire side setback to ensure

unimpaired access to mechanical features of the building.

The proposed hotel has two frontages, on Avalon Street and

Kendall Street. The proposed development would have a front

setback of 10 feet from Avalon Street and 10.8 feet from Kendall

Street. The side setbacks are 5 feet. The rear setback is 5

feet.

The front setback reduction s would p lace the proposed hotel 5

feet clos er to Ava lon Stree t and 4.2 feet clo ser to Ke ndall Str eet.

The west side setb ack reduc tion woul d place t he hotel 5 feet cl oser to

a City parking lot. The east side (northern) setback reduction would

place the hotel 5 feet closer to a two-story development consisting o f

a restaurant, of fice, retail, and attached dwellings which have no

setback from the boundary they share with the hotel site. The east

side (southern) set back reductio n would place the ho tel 5 feet closer

to the two-story Snowflake Motel w hich is set back only 2 feet from

the pro pe rty lin e it s har es wit h t h e hot el si te. The sout h ( r e ar)

setback reductio n would place the hotel 5 feet close r to a one-story

building.

Section II.A.6. of Beach by Design requires a 10-foot landscape

buffer along t h e s t r e e t f r o n t a g e . T h e p r o p o s e d h o t e l ’ s K e n d a l l

Street frontage would have a 10 .8-foot landscape b u f f e r a n d t h e

Avalon Street fronta ge would have a 10-f oot landscape buffer. I n

addition, the side and rear setback areas wou ld be lan dscaped.

Therefore , the pro posed lan dscaping would exc eed the r equiremen ts of

Beach by Design. The City staff als o charact erized th e off-str eet

parking g arage as a “m o r e efficient” design. T h e side (east)

setback will provi de the required five feet of unobstructed access to

the mechanical features of the building.

Section II.A.3. of Beach by Design also establishes a

shifting of the building massing toward the center of the

building.” The required stepback ratio is 1 foot of stepback for

every 2 feet of building height above 35 feet. For a building 72

feet in height the stepback would be 18.5 feet.

Section II.A.4. allows a reduction in the stepback

requirement of up to 5 feet “if the decreased stepback results

in an improved site plan, landscaping areas in excess of the

minimum required and/or improved design and appearance.” The

proposed hotel would be allowed to reduce the stepback by 3.5

feet on the two fronts (on Avalon and Kendall Streets), for a

resulting stepback of 15 feet.

The City’s Planning Department Manager, Robert Tefft,

testified at the hearing as an expert witness. It was

Mr. Teffts’ opinion that the proposed development complied with

all applicable provisions of the Code and Beach by Design,

including the height, setback, and stepback requirements.

Mr. Tefft determined that the proposed development qualified for

the setback and stepback reductions because the reductions

resulted in an improved site plan and landscaping in excess of

minimum requirements.

The City staff and the Board determined, in accordance with

requirement of Section 3-913(2) of the Code, that the proposed

development would not significantly impair the value of adjacent

lands or buildings. No competent evidence was presented that

property values would be impaired.

The Appli cants req uested a two-year developme nt order due to

market co nditions. Section 4-407 of the Code requires an appli cation

for a bui lding per mit to b e s u b m i t t e d w i t h i n o n e y e a r o f p r o j e c t

a p p r o v a l , “ u n l e s s o t h e r w i s e specified.” The Appl icants req uested and

the Board approved a one-year exte nsion, so that the Applicant s would

have two years to apply for a building permit.

Appellant Stough owns property near the development site.

She appeared at the public hearing and spoke in opposition to the

project. Ms. Stough is an architect, but she did not submit a

resume to the Board, which is required of expert witnesses

pursuant to Section 4.206D of the Code.

Ms. Stough objected to building height, the reduction of

setbacks, the density, the expected room rates not being “mid-

priced,” adverse effect on property values, and inconsistency

with the intended Old Florida District.

Ann and Joseph Quinn, and John Grubb were granted party

status by the Board. The Quinns own the Snowflake Motel, which

is adjacent to the site. They objected to the proposed hotel

blocking their view of the Gulf, the 5-foot setback, vehicle

fumes, and noise. They believe that the proposed development

would destroy the value of their property. Mr. Grubb objected to

the loss of his view and the diminution of his property value.

He thinks the development is too dense and that it would not be a

mid-priced hotel.

Members of the general public spoke for and against the

proposed development.

At the conclusion of the hearing, the Board voted to approve

the application, adopting the findings of fact and conclusions of

law stated in the staff report with the conditions of approval.

On June 17, 2009, a development order was issued to

memorialize the Board’s action.

Conclusions of Law

No procedural errors were raised by the Appellant. No

procedural errors appear in the record. There was no departure

from the essential requirements of law.

In her Appeal Application and in her briefs, Appellant

Stough raises a number of issues that she did not raise before

the Board. Appellant did not raise before the Board the issues

that she describes in paragraphs 1 (lack of coordination between

City departments), 2a (landscaping, sidewalks, visibility

triangle, pedestrian access), 2d (landscaping, drainage plans),

3 (floor area ratio), 4 (sidewalks, pedestrian access), 5

(parking garage openings, screening), 7 (development agreement

duration), 9 (architecture, energy efficiency), 11 (infill

criteria), and 12 (standards for flexibility) of her Initial

Brief.

Appellant’s statement to the Board that the proposed

project is too dense or intense a use of the site is too general

a statement to constitute a meaningful notification or

identification of the specific matters cited above. Such a

general statement does not provide the Board with a reasonable

opportunity to consider the criteria associated with these

specific issues, to seek input or opinions from the City staff

or other witnesses at the hearing, or to discuss and resolve the

disputes. It is fundamental that an issue not raised below

cannot be raised for the first time on appeal. See First

Savings Corp. of Texas v. S & B Partners , 548 So. 2d 1156, 1158

(Fla. 5th DCA 1989); Battaglia Fruit Co. v. City of Maitland ,

530 So. 2d 940, 943 (Fla. 5th DCA 1988).

The balance of Appellant’s issues raised on appeal,

regarding building height, setbacks, stepbacks, and guidelines

in Beach by Design are claims that the Board’s decision is not

supported by substantial competent evidence in the record. In

each case, Appellant’s claims are based on her dispute with the

evidence in the record that was presented to the Board by the

City staff and other competent witnesses.

On appeal, the hearing officer cannot reweigh the evidence

presented to the Board and determine, for example, that certain

contrary evidence was more persuasive. Nor does it matter

whether the evidence could have supported a different decision

by the Board. The only question that matters is whether the

decision that was made by the Board is supported by competent

substantial evidence in the record. See City of Hialeah Gardens

v. Miami-Dade Charter Foundation, Inc. , 857 So. 2d 202 (Fla. 3rd

DCA 2003).

In explaining the “competent substantial evidence”

standard, the Supreme Court of Florida stated that the issue “is

‘right’ decision or even a ‘wise’ decision.” Dusseau v. Metro.

Dade County , 794 So. 2d 1270, 1275-76 (Fla. 2001). Competent

substantial evidence is evidence that a reasonable mind would

find adequate to support the conclusion reached. See Degroot v.

Sheffield , 95 So. 2d 912, 916 (Fla. 1957).

DETERMINATION

Because the Appellant did not meet her burden to show that

the decision of the Community Development Board cannot be

sustained by substantial competent evidence in the record or

that the decision of the Board departs from the essential

requirements of law, the decision of the Board to approve the

Applicants’ flexible development, subject to the conditions

identified in the development order, is AFFIRMED.

Pursuant to Section 4-505D of the Community Development

Code, an affirmation of the Board’s decision shall be the final

action of the Board.

DONE AND ORDERED this 5th day of November, 2009, in

Tallahassee, Leon County, Florida.

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of November, 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

Patricia Stough

1634 San Roy Drive

Dunedin, Florida 34698

Ed Hooper

Post Office Box 4268

Clearwater, Florida 33756

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 4-505D of the

Community Development Code by appealing to the appropriate court

by a petition for certiorari.