11-001531 Nemishawn, Inc. vs. Donna Maxa, Gilbert Jannelli, City Of Clearwater, And City Of Clearwater Community Development Board Status: Closed DOAH Final Order on Tuesday, June 28, 2011.

Summary: Denial of flexible development approval not supported by competent substantial evidence. Reversed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NEMISHAWN, INC. , )

)

Appellant , )

)

vs. ) Case No. 11 - 1531

)

DONNA MAXA, GILBERT JANNELLI, )

CITY OF CLEARWATER, AND CITY OF )

CLEARWATER COMMUNITY )

DEVELOPMENT BOARD , )

)

Appellee s . )

)

FINAL ORDER

This is a hearing officer appeal under section 4 - 505 of the

City of Clearwater Community Development Code (Code), from a

decision of the Community Development Board (CDB) of the City of

Clearwater (City) under section 4 - 404 of the Code. Briefs have

been filed and considered, oral argument has been heard, and

prop osed orders have been filed and considered.

The CDB denied a Level Two approval of the Flexible

Development Application (Application) for a Comprehensive Infill

Redevelopment Project (CIRP) filed by Appellant, Nemishawn, Inc.

(Nemishawn), for its two - acr e property at 1315 Cleveland Street.

The Application contemplated that NemishawnÓs existing building

on the property would be occupied and used by a tenant, WorkNet

Pinellas, Inc. (WorkNet), which is one of 24 regional workforce

boards created in Florida to carry out the federal Workforce

Investment Act of 1998 and the Florida Workforce Innovation Act

(chapter 445, Florida Statutes), and which the CityÓs Community

Development Coordinator (CDC) had determined to be a

Ðgovernmental use.Ñ

At the CDB hearing on February 15, 2011, the CityÓs Staff

Report was presented . It recommended approval, with conditions,

including conditions proposed by Nemishawn that no facilities or

services would be provided for walk - in jobseekers, that no

resource room would be open to the public, and that no services

provided by agencies or programs referring jobseekers to WorkNet

would be performed onsite.

After hearing the evidence, the CDB found that it could not

Ðconcur with staffÓs determination that WorkNet Pinellas is a

gov ernmental use.Ñ No other findings were made. The CDBÓs

single conclusion of law was that the Application Ðdoes not

comply with Community Development Code Section 2 - 704.C.Ñ This

conc lusion of law was not explained .

To succeed on appeal, Nemishawn must Ðshow that the

decision of the [CDB] cannot be sustained by substantial

competent evidence . . . or that the decision . . . departs from

the essential requirements of law.Ñ £ 4 - 505.C., Cmty. Dev.

Code. The bases for NemishawnÓs appeal are: first, that t he

CDBÓs decision departed from the essential requirements of law

because the CDB had no authority to contradict staffÓs

determination of use; and, second, that the CDBÓs determination

of use is not sustained by the evidence.

A decision would depart from the essential requirements of

law if it violated due process requirements (which is not an

issue in this case) , or applied the incorrect law. See Haines

City Cmty . Dev . v. Heggs , 658 So. 2d 523, 530 (Fla. 1995) The

CDB did not apply the incorrect law when it determined use. The

CDCÓs determination that the project was for a government al use

was part of staffÓs recommendation to the CDB to approve the

Application. See § 4 - 404, Cmty . Dev. Code. In considering the

re commendation and making its decision, the CDB is not

prohibited from interpreting and applying code provisi ons, such

as the definition of government al use. Cf. also § 5 - 201, Cmty .

Dev. Code (the CDB reviews and decides applications for Level

Two approvals ).

Nemishawn argues that the CDCÓs authority under division 7

of the Code to administrative ly interpret code provisions is

exclusive and that an appeal of the CDCÓs administrative

interpretation to the CDB under section 4 - 501.A.1. is the CDBÓs

only autho rity to interpret and apply code provisions. This

argument is rejected. T he CDBÓs jurisdiction under section 4 -

501.A.1. actually supports its authority to interpret and apply

code provisions in reviewing and deciding applications for Level

Two approvals.

Competent substantial evidence is evidence that a

reasonable mind would find adequate to support the facts found

and conclusions reached; it need not result in the best

decision, or even a wise decision, in the view of an appellate

court. See Dusseau v. Metro. Dade C n ty. , 794 So. 2d 1270, 1275 -

76 (Fla. 2001); Degroot v. Sheffield , 95 So. 2d 912, 916 (Fla.

1957); City of Hialeah Gardens v. Miami - Dade Charter Found.,

Inc. , 857 So. 2 d 202 (Fla. 3d DCA 2003).

The Code defines Ðgovernmental useÑ as:

a building, use or structure owned or

occupied by a federal, state, or local

government agency and serving as an agency

office, police station, fire station,

library, post office, or sim ilar facility,

but not including a vehicle storage yard,

jail, sanitary landfill, solid waste

transfer or disposal facility, wastewater

treatment facility, hazardous waste

treatment or storage facility, food

irradiation facility, educational or health

inst itution, university, military facility,

residential care home, housing for persons

who are participating in work release

programs or who have previously served and

completed terms of imprisonment for

violations of criminal laws, or other type

of public fac ility.

§ 8 - 102, Cmty . Dev. Code.

The record - on - appeal does not contain competent substantial

evidence to support a finding that NemishawnÓs proposed use by

its tenant, WorkNet, is not a governmenta l use. WorkNet is a

workforce board created by statu te to carry out the federal

Workforce Investment Act of 1998 and the Florida Workforce

Innovation Act. See § 445.007, Fla. Stat. It entered into an

interlocal agreement with Pinellas County as a "public agency"

under section 163.01, Florida Statutes. As such, it is

a political subdivision, agency, or officer

of this state or of any state of the United

States, including, but not limited to, state

government, county, city, school district,

single and multipurpose special district,

single and multipurpose public authority,

metropolitan or consolidated government, a

separate legal entity or administrative

entity created under subsection (7), an

independently elected county officer, any

agency of the United States Government, a

federally recognized Native Ame rican tribe,

and any similar entity of any other state of

the United States.

§ 163.01(3)(b), Fla. Stat. The evidence that WorkNet is a

federal section 501(c)(3) corporation that receives funding from

governmental agencies and files federal tax returns , a nd that

WorkNet provides counseling and some training for jobseekers, in

addition to connecting the unemployed with prospective

employers, does not alter WorkNetÓs legal status as a Ðpublic

agencyÑ and does not support a finding that it is not a

Ðgovernmen tal useÑ under the Code.

The CDBÓs conclusion of law was that the Application Ðdoes

not comply with Community Development Code Section 2 - 704.C.Ñ

Paragraph 5 of section 2 - 704.C. requires that CIRPs Ðbe

compatible with adjacent land uses [and] not substan tially alter

the essential use characteristics of the neighborhood . . . .Ñ

It also requires a demonstration of compliance with one or more

of objectives a. through f.

NemishawnÓs property is zoned for the commercial use

proposed in the Application, whi ch s taff found to be compatible

with and an improvement on the essential use characteristics of

the neighborhood (Ða mixed land use pattern of residential

housing interspersed with pockets of poorly maintained rental

properties and outdated strip commercia l [that] struggles with a

negative image of crime due to the location of problematic uses

such as day labor facilities, old motels and social service

agencies that provide services to the homeless population.Ñ).

See Nostimo, Inc. v. City of Clearwater , 594 So. 2d 779, 781

(Fla. 2d DCA 1992) (if area is zoned for the use, the use is

compatible with the surrounding area). Staff also found that

NemishawnÓs Application complied with the visions, goals,

objectives, and policies of the Clearwater Downtown

Rede velopment Plan and the policies of the East Gateway

Character District portion of that plan.

The CDBÓs contrary conclusion of law was based on citizen

concerns about compatibility and consistency with the East

Gateway Character District policies and Down town Redevelopment

Plan. Relevant fact - based testimony and evidence presented by

citizens, whether or not they are qualified as experts, can be

competent, substantial evidence; generalized citizen concerns

and opinions, which often are speculative and bas ed on fear and

similar emotions, and based not on substantiated facts, are not

competent, substantial evidence. See City of Hialeah Gardens v.

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

2003); Marion Cnty. v. Priest , 786 So. 2d 623 (Fla . 5th DCA

2001); Metro. Dade Cnty. v. Section II Prop. Corp. , 719 So. 2d

1204 (Fla. 3rd DCA 1998); Metro. Dade Cnty. v. Blumenthal , 675

So. 2d 598, 607 (Fla. 3d DCA)( en banc , adopting dissent), review

dismissed , Blumenthal v. Metro. Dade Cnty. , 680 So. 2d 421 (Fla.

1996). In this case the testimony and evidence in opposition to

the Application were of the latter kind, in large part based on

misunderstandings , and unreasonable under the conditions of

approval proposed by Nemishawn and incorporated in staffÓ s

recommendation.

While not explicit in its decision, it appeared from the

record - on - appeal that the CDB disagreed with staffÓs

determination of governmental use because WorkNet seemed more

like a Ðsocial/public service agency.Ñ S ection 2 - 704.R.2.

provi des that a social/public service agency cannot be located

within 1,500 feet of another such agency. But the CDB did not

find that WorkNet was a social/public service agency and did not

find or conclude that the Application did not comply with

section 2 - 70 4.R.2.

For these reasons, NemishawnÓs appeal and Application are

granted, with the conditions attached to staffÓs recommendation.

See § 4 - 505.D., Cmty . Dev. Code (the hearing officer can

Ðapprove, approve with conditions, or deny the requested

development application . Ñ) .

DONE AND ORDERED this 28th day of June , 2011 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of June , 2011 .

COPIES FURNISHED :

Leslie K. Dougall - Sides, Esquire

City of Clearwater

Post Office Box 4748

Clearwater, Florida 33758 - 4748

John Richard Hixenbaugh, Esquire

Trenam Kemker Attorneys

200 Central Avenue, Suite 1600

St. Petersburg, Florida 33701 - 4335

Gilbert Jannelli

909 South Fort Harrison Avenue

Clearwater, Florida 33756

Donna Elaine Maxa

1275 Cleveland Street

Clearwater, Florida 33755

Rosemary Call

City of Clearwater

112 South Osceola Avenue

Clearwater, Florida 33756

Gina K. Grimes, Esquire

Hill Ward & Henderson

3700 Bank of America Plaza

101 East Kennedy Boulevard

Tampa, Florida 33602

Craig Little, Esquire

Law Office of Craig W. Little, P.A.

933 Granville Court North

St. Petersburg, Florida 33701

NOTICE REGARDING JUDICIAL REVIEW

This Final Order is subject to judicial review b y common law

certiorari to the circuit court. See § 4 - 505.D., Cmty. Dev.

Code.