16-000853 Kohut Family Trust vs. City Of Clearwater And Community Development Board Status: Closed DOAH Final Order on Friday, May 20, 2016.

Summary: Appellant failed to show the Community Development Board's approval of improvements proposed for the Clearwater Marine Aquarium was not supported by substantial competent evidence or departed from the essential requirements of law.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KOHUT FAMILY TRUST,

Appellant ,

vs. Case No. 16 - 0853

CITY OF CLEARWATER AND COMMUNITY

DEVELOPMENT BOARD,

Appellees .

_______________________________/

FINAL ORDER

Appellant, Kohut Family Trust, appeals a development order

rendered by the City of Clearwater Community Development Board on

January 22, 2016. The Division of Administrative Hearings

(ÐDOAHÑ), by contract with the City of Clearwater and pursuant to

Section 4 - 505 of the C ommunity Development Code, assigned

Administrative Law Judge Bram D.E. Canter to serve as Hearing

Officer for the appeal. Oral argument was presented by the

parties on April 8, 2016, and they submitted proposed orders on

April 28, 2016.

APPEARANCES

For Appellant Kohut Family Trust:

Edward C. Castagna, Jr., Esquire

Nicole A. Kerr, Esquire

611 Druid Road East, Suite 702

Clearwater, Florida 33756

For Appellee City of Clearwater and Community Development

Board:

Camilo A. Soto

Assistant City Attorn ey

City of Clearwater

Post Office Box 4748

Clearwater, Florida 33758 - 4748

Jay Daigneault, Esquire

Trask Daigneault, LLP

1001 South Fort Harrison Avenue, Suite 201

Clearwater, Florida 33756

For Appellee/Applicant Clearwater Marine Aquarium, Inc.:

Bria n J. Aungst, Jr. Esquire

Macfarlane Ferguson & McMullen, P.A.

625 Court Street, Suite 200

Clearwater, Florida 33756

For Appellee/Party Island Way Grill, Inc.:

Michael C. Foley, Esquire

Macfarlane Ferguson & McMullen, P.A.

625 Court Street, Suite 200

Cl earwater, Florida 33756

STATEMENT OF THE ISSUES

The issues to be determined in this appeal are whether the

decision of the Community Development Board (ÐCDBÑ) to approve

Flexible Development Application FLD2015 - 10040 filed by Appellee

Clearwater Marine Aquarium, Inc. (Ðthe AquariumÑ), cannot be

sustained by substantial competent evidence before the Board, or

that the decision of the Board departed from the essential

requirements of law.

PRELIMINARY STATEMENT

On September 30, 2015, the Aquarium subm itted its

application to the City of Clearwater (ÐCityÑ) to expand the

Aquarium by adding a parking garage, two buildings, and dolphin

tank. On January 19, 2016, the CDB conducted a public hearing on

the AquariumÓs application. At the hearing, comments w ere

received from the City Planner, Matt Jackson; from the AquariumÓs

attorney, Brian Aungst, Jr.; and from three entities who

requested and were granted party status by the CDB: Peter Kohut;

Island Way Grill, Inc., by and through its attorney

Michael Fole y; and Steven Traum. All parties were given an

opportunity at the public hearing to present witness testimony,

exhibits, and to cross - examine witnesses. Members of the public

also spoke at the hearing. At the conclusion of the discussion,

the CDB approv ed the AquariumÓs application.

On January 22, 2016, the City rendered a Development Order,

which included findings of fact and conclusions of law,

memorializing the CDBÓs approval of the AquariumÓs application.

On February 2, 2016, the Appellant filed an appeal of the

Development Order. The City transmitted the Appeal Application

and record before the CDB to DOAH for assignment of a Hearing

Officer to receive oral argument, consider the partiesÓ proposed

orders, and issue a Final Order.

FINDINGS OF FACT

1. The Aquarium is the owner of a 4.53 - acre site,

consisting of three parcels, located at 249 Windward Passage in

Clearwater, Florida (Ðthe propertyÑ).

2. The site is on a small island near Clearwater Beach,

known as Island Estates. A single roadway, called Island Way,

provides ingress and egress to Island Estates.

3. The Aquarium property is zoned Commercial. The property

is designated Commercial General in the Future Land Use Element

of the City of Clearwater Comprehensive Plan.

4. The area aro und the Aquarium property is developed with

attached dwellings, offices, a marina, an automobile service

station, a restaurant, and a retail plaza with building heights

ranging from one to six stories.

5. On September 30, 2015, the Aquarium filed a Flexib le

Development Application for a Comprehensive Infill Redevelopment

Project to develop two buildings, a dolphin pool , and a parking

garage.

6. To be approved, the proposed development must meet

Ðflexibility standardsÑ set forth in the CityÓs Community

Dev elopment Code.

7. The application required a Level Two approval. Under

Section 4 - 206 of the Community Development Code, a Level Two

approval requires that notice of the application be mailed to

owners of properties Ðwithin a 200 - foot radius of the perime ter

boundaries of the subject property.Ñ

8. The notice mailed by the City identifies (by parcel

number) only one of the three parcels which comprise the Aquarium

site.

9. The City Clerk mailed notice of the AquariumÓs

application to owners of parcels loc ated within 200 feet of the

single parcel identified in the notice. The calculation of

200 feet was not made from the boundaries of the AquariumÓs

combined three - parcel property.

10. Whether the mailed notice conformed with Section 4 - 206

was not an issue raised before the CDB. The record does not show

the reason the calculation was made in the manner it was made,

whether it was consistent with the CityÓs interpretation of the

applicable code requirement, or whether it was based on the

location of the pro posed structures. There is no evidence in the

record about what additional property owners, if any, would have

received notice if the boundaries of the entire site had been

used.

11. Section 4 - 206 of the Community Development Code also

requires that a si gn be posted on the Ðparcel proposed for

development.Ñ The record does not show whether the sign was

posted.

12. Appellant Kohut Family Trust received mailed notice of

the AquariumÓs application by and through Peter Kohut at his

residential address.

13. On January 12, 2106, Mr. Kohut attended a town hall

meeting about the AquariumÓs application, held at St. BrendanÓs

Church on Island Estates. Mr. Kohut stated that he sent e - mails

and through word - of - mouth was able to get about 55 people to

attend the t own hall meeting. At the town hall meeting, an

Aquarium representative presented information about the proposed

project and answered questions.

14. On January 19, 2016, the CDB conducted a public hearing

on the AquariumÓs application. Mr. Kohut appeared at the public

hearing, requested and was granted party status by the CDB, and

made a presentation to the CDB.

15. Mr. Kohut did not mention the Kohut Family Trust in his

presentation to the CDB and did not request party status for the

Kohut Family Trust.

16. Mr. Kohut told the CDB that Ðthe only notification that

was given was given by the civic organization to its members.Ñ

Because Mr. Kohut knew he had received mailed notice, Mr. Kohut

likely meant that the only detailed information about the

Aquari umÓs proposed project was provided at the town hall

meeting.

17. Mr. Kohut was provided an opportunity to present

witnesses, introduce evidence, and to cross - examine witnesses at

the public hearing. He did not introduce any exhibits or present

any witne sses.

18. Mr. Kohut objected, generally, about increased traffic

and lowered property values and, specifically, about his desire

for curbs and gutters. Mr. Kohut did not identify any specific

criterion for approval of the AquariumÓs application that he

b elieved would not be met.

19. The City Planner, Matt Jackson, was accepted by the CDB

as an expert witness in the areas of zoning, site plan analysis,

planning in general, and the CityÓs landscape ordinance.

Mr. Jackson discussed the AquariumÓs applica tion and stated his

opinion that it complied with all applicable Community

Development Code and Comprehensive Plan requirements.

Mr. Jackson was cross - examined by Mr. Kohut.

20. The AquariumÓs attorney made a presentation to the CDB

in support of the application and introduced the testimony of

engineers Al Carrier and Robert Pergolizzi. The CDB accepted

Mr. Carrier as an expert witness in the areas of civil

engineering, land use planning, and planning in general. The CDB

accepted Mr. Pergolizzi as an expert witness in the areas of

planning, land use, and traffic impact studies. Mr. Pergolizzi

was cross - examined by Mr. Kohut.

21. The attorney for Island Way Grill, Inc., obtained party

status for his client and made a presentation in support of the

Aq uariumÓs application.

22. Steven Traum obtained party status and made a

presentation to the CDB. Mraum did not appear for oral

argument on April 8, 2016, and did not file a proposed order.

23. On January 22, 2016, the City entered a Development

Orde r memorializing the CDBÓs approval of the AquariumÓs

application.

CONCLUSIONS OF LAW

24. Appellant has the burden to demonstrate that the

decision of the CDB cannot be sustained by substantial competent

evidence before the Board, or that the decision departs from the

essential requirements of the law. See § 4 - 505.C, Comm. Dev.

Code.

25. The Hearing Officer cannot re - weigh conflicting

testimony presented to the CDB or sub stitute his judgment for

that of the CDB on the issue of credibility of witnesses . See

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

26 . The issue is whether there is substantial competent

evidence for the CDBÓs decision, not whether there is substantial

competent evidence to support a contrary position. See Educ .

Dev. Ctr., Inc. v. City of West Palm Beach Zoning Bd. of App. ,

541 So. 2d 106, 108 (Fla. 1989) .

27. Appellant presented no evidence to the CDB tending to

prove that any applicable development criterion was not met.

28. Appellant did not meet its burden to show the decision

of the CDB cannot be sustained by substantial competent evidence

before the board.

29. During oral argument, Appellant confined its argument

to its contention that the notice was insufficient and the

decision of the CDB thereby depar ted from the essential

requirements of the law. Appellant argued that the notice was

insufficient because (1) the mailed notice only identified one

parcel rather than all three parcels comprising the Aquarium

site, (2) the City mailed the notice only to o wners of properties

located 200 feet from the single identified parcel, and (3) there

is no evidence in the record showing that a sign was posted on

the Aquarium property.

30. There are three reasons AppellantÓs claim of

insufficient notice must fail. Fi rst, the errors which Appellant

alleges were made in the notice provided by the City and

applicant were not raised before the CDB. They were raised for

the first time at oral argument. Therefore, these claims of

error were waived. See Goodson v. Fla. De pÓt Bus . & Prof Ól Reg. ,

978 So. 2d 195, 196 (Fla. 1st DCA 2008) .

31. An appellantÓs burden to show the decision on appeal is

not supported by substantial competent evidence does not mean the

appellant can search through the record after an appeal is filed

and then, for the first time, assert that the record does not

show how the appellee complied with some of the requirements for

approval. This is true whether the assertion is that a required

landscape plan is not in the record or that it contains no

evid ence of sign - posting. Whether the record on appeal includes

a landscape plan or proof of sign - posting is not the same as the

CDBÓs determination that there was no landscape plan submitted by

the applicant or that no sign was posted. That is why appellant s

must raise their claims of error before the CDB.

32. Second, Appellant waived its claim of insufficient

notice because its representative received notice , attended the

hearing, was granted party status, and participated in the quasi -

judicial proceedin g. See Malley v. Clay C n ty Zoning CommÓn , 225

So. 2d 555, 557 ( Fla. 1st DCA 1969) ; City of Jacksonville v.

Huffman , 764 So. 2d 695, 698 - 97 ( Fla. 1st DCA 2000)(Right to

assert a defect in notice may be waived if the party appeared at

the hearing and availe d himself of the opportunity to fully and

adequately present objections.)

33. AppellantÓs conten ds he was unaware of the scope of the

proposed project because the mailed notice only made reference to

one of the three parcels which comprise the Aquarium si te . If

Appellant had made this claim to the CDB, it could have been

explored by cross - examination. That is why the claim should have

been raised before the CDB. The claim is not credible based on

the information Mr. Kohut had prior to the public hearing .

34. Third, Appellant did not show that notice was

insufficient. The record does not show that the 200 - foot

calculation was done wrong, that someone did not receive notice,

or that the sign was not posted.

35. Appellant did not meet its burden to show that the

decision of the CDB departs from the essential requirements of

law.

DETERMI N ATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, the decision of the CDB is AFFIRMED.

DONE AND ORDERED this 20th day of May , 2016 , in Tallahassee,

Leon County, Florida.

S

BRAM D. E. CANTER

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

w ww.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of May , 2016 .

COPIES FURNISHED:

Brian J. Aungst, Jr., Esquire

Michael C. Foley, Esquire

Macfarlane Ferguson & McMullen, P.A.

625 Court Street, Suite 200

Cl earwater, Florida 33756

(eServed)

Edward C. Castagna, Jr., Esquire

Nicole A. Kerr, Esquire

Suite 702

611 Druid Road East

Clearwater, Florida 33756

(eServed)

Camilo A. Soto, Assistant City Attorney

City of Clearwater

Post Office Box 4748

Clearwater, Flo rida 33758 - 4748

(eServed)

Jay Daigneault, Esquire

Trask Daigneault, LLP

Suite 201

1001 South Fort Harrison Avenue

Clearwater, Florida 33756

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Pursuant to Article 4, Division 5, Section 4 - 505.D of the Code,

this decision shall be final, subject to judicial review by

common law certiorari to the circuit court.