17-006226 Michael G. Preston vs. Gulfview Lodging, Llp; Community Development Board; And City Of Clearwater Status: Closed DOAH Final Order on Tuesday, February 6, 2018.

Summary: Petitioner failed to show the Community Development Board's approval of the proposed hotel was not supported by substantial competent evidence or departed from the essential requirement of law.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL G. PRESTON,

Petitioner,

vs. Case No. 17 - 6226

GULFVIEW LODGING, LLP; COMMUNITY

DEVELOPMENT BOARD; AND CITY OF

CLEARWATER,

Respondents.

_______________________________/

FIN AL ORDER

Petitioner, Michael G. Preston (Preston), appeals a

development order rendered by the City of Clearwater Community

Development Board on October 19, 2017. The Division of

Administrative Hearings (DOAH), by contract with the City of

Clearwater and pursuant to Section 4 - 505 of the Community

Development Code, assigned Ad ministrative Law Judge Francine M.

Ffolkes to serve as Hearing Officer for the appeal. Oral

argument was presented on December 15, 2017, and the parties

submitted proposed final orde rs on January 3 and 4, 2018.

APPEARANCES

For Petitioner : Apostolos A. Gionis , Esquire

612 South Martin Luther King, Jr. Avenue

Clearwater, Florida 32756

For Respondent Community Development Board :

Jay Daigneault, Esquire

Trask Daigneault, LLP

1001 South Fort Harrison Avenue , Suite 201

Clearwater, Florida 33756

For Respondent City of Clearwater:

Camilo A. Soto , Esquire

Assistant City Attorney

City of Clearwater

Post Office Box 4748

Clearwater, Florida 33758 - 4748

For Respondent/Applicant Gulfview Lodging LLP:

Donald Allen Mihokovich, Esquire

Marilyn Mullen Healy, Esquire

Adams and Reese LLP

101 East Kennedy Boulevard , Suite 4000

Tampa, Florida 33602

STATEMENT OF THE ISSUE S

The issues to be determined in this appeal are whether the

decision of the Community Development Board (Board) to approve

Flexible Development Application FLD2017 - 07012 filed by Gulfview

Lodging , LLP (Gulfview), cannot be sustained by substantial

competent evidence before the Board, or that the decision of th e

Board departs from the essential requirements of law.

PRELIMINARY STATEMENT

On July 28, 2017, Gulfview submitted its application to the

City of Clearwater (City) to build a proposed 88 - room hotel in

the tourist zoning district for the property located at

355 South Gulfview Boulevard and 348 Coronado Drive. On

October 17, 2017, the Board conducted the quasi - judicial public

he aring on GulfviewÓs application. At the hearing , expert

testimony was received from Mark Parry, AICP , who is a senior

planne r with the City; Sue Ann Murphy, AICP , for Gulfview; and

Istvan Peteranecz, AIA , who is the architect for Gulfview. The

Board also heard comments from assistant director of Planning &

Development, Gina Clayton; Marilyn Healy, attorney for Gulfview;

Camilo Soto, attorney for the City; Jay Daigneault, attorney for

the Board ; and Paul Gionis, attorney for Preston. Preston was

granted party status and his attorney made a presentation to the

Board. PrestonÓs attorney requested a continuance citing lack

of proper no tice and insufficient time to review and prepare for

the public hearing. Preston did not introduce any testimony or

other evidence regarding the application.

All parties were given an opportunity at the public hearing

to present witness testimony, exhibit s, and to cross - examine

witnesses. A member of the public also spoke at the hearing.

At the conclusion of the hearing and after discussion, the Board

approved GulfviewÓs application based on the evidence in the

application, the expert testimony, and the Staff Report. On

October 19, 2017, the City rendered a Development Order, which

included findings of fact, conclusions of law and conditions of

approval, memorializing th e BoardÓs decision. On October 31,

2017, Preston filed an appeal of the Development Order. The

City transmitted the Appeal Application and record before the

Board to DOAH for assignment of a Hearing Officer to conduct a

hearing to receive the record before th e Board and hear oral

argument. 1 / Thereafter , the parties submitted proposed fi nal

orders , which were considered in the preparation of this Final

Order.

FINDING S OF FACT

1. The 0.59 - acre project site is located at the northeast

corner of South Gulfview Boulevard and Fifth Street and wraps

around the McDonaldÓs parking lot and French yÓs Beach Caf

(FrenchyÓs) to the west. The project site includes two parcels

owned by Gulfview, and 2,195.09 square feet of the South

Gulfview Boulevard right - of - way, which will need to be vacated

by the City. GulfviewÓs proposal is to demolish all stru ctures

currently on the project site and build a seven - floor hotel with

150 units per acre, which would be 88 rooms if the City vacates

the 2,195.09 feet of right - of - way.

2. GulfviewÓs application for development approval was

filed with the City on July 2 8, 2017, including design plans.

The subject property is zoned Tourist (T) District with an

underlying Future Land Use Plan (FLUP) category of Resort

Facilities High (RFH). The subject site is located in the Beach

Wa lk district of Beach by Design . 2 / The maximum permitted

density for the site pursuant to Beach by Design is 150 units

per acre. The application contemplate s a subsequent vacation

process for the 2,195.09 square feet of City right - of - way.

3. On July 20, 2017, the City Council approved the

al location of up to 59 units from the Hotel Density Reserve

under Beach by Design (Case No. HDA2017 - 04001) and adopted a

resolution to the same effect (Res. No. 17 - 19). PrestonÓs

attorney admitted that he attended the July 20, 2017, City

Council hearing tha t resulted in the July 28, 2017, Hotel

Density Reserve Development Agreement (Development Agreement)

between Gulfview and the City. PrestonÓs attorney attended the

July 20 City Council hearing on behalf of FrenchyÓs, but

conceded to the Board and at oral argument that FrenchyÓs is

located on the land owned by Preston, as trustee, and Preston is

the sole shareholder of FrenchyÓs.

4. The Development Agreement was recorded in Book 19727,

Page 2465 - 2503 of the Public Records of Pinellas County,

Florida, on Au gust 2, 2017. The Development Agreement includes

Exhibit ÐBÑ -- the same set of design plans that were filed with

GulfviewÓs July 28, 2017, application for development approval.

Section 6.2.4 of the Development Agreement specifically states:

The overall number of proposed units density

provided for by this Agreement (88 units) is

contingent upon the proposed vacation of the

2,195.09 square feet of South Gulfview

Boulevard right - of - way within the Beach Walk

district. The City shall process a right - of -

way vacation ordinance to vacate the

2,195.09 square feet of South Gulfview Blvd.

right of way within the Beach Walk district

conditioned upon submission of a complete

set of building plans for construction of

the improvements shown on Exhibit ÐBÑ.

Regardless of whether or not the vacation is

granted the maximum permitted density of the

property may not exceed 150 units per acre.

5. GulfviewÓs application requires a Level Two approval.

Under Section 4 - 206 of the Community Development Code, a

Level Two approv al requires mailing of a notice of application

to owners of properties Ðwithin a 200 - foot radius of the

perimeter boundaries of the subject property.Ñ The notice

mailed by the City identifies both the north parcel and the

south parcel by address and parce l number. The notice also

describes the quasi - judicial public hearing process before the

Board and ends with an invitation Ð to discuss any questions or

concerns about the project and/or to better understand the

proposal and review the site planÑ with the assigned planner.

The City Clerk mailed notice of GulfviewÓs application to owners

of parcels located within 200 feet of the two parcels identified

in the notice, including Preston. Preston does not dispute

receiving the notice. Section 4 - 206 of the Com munity

Development Code also requires the posting of a sign on the

Ðparcel proposed for development.Ñ Preston does not dispute

that the sign was posted.

6. Preston objected that the mailed and posted notices did

not reference the proposal to vacate 2,19 5.09 square feet of

right - of - way. He argued that if he had known more than Ða few

days agoÑ when he received the St aff Report ahead of the

October 17, 2017, Board meeting that the right - of - way was

proposed to be vacated, he would have had expert witnesses at

the hearing to give Ðan equal presentationÑ in response to

GulfviewÓs presentation . Preston requested a continuance citing

lack of proper notice and insufficient time to prepare for the

public hearing. Preston did not introduce any testimony or

other evidence regarding the application.

7. PrestonÓs primary objection to the project was vacation

of the right - of - way and he wanted the opportunity to present

witnesses regarding that issue. Vacating the right - of - way is a

separate process and the hearing before the Board is not the

proceeding in which the right - of - way vacation is decided.

However, the substantial competent record evidence shows that

Preston had actual notice as early as July 20, 2017, that the

proposed project contemplated vacating 2,195. 09 square feet of

right - of - way.

8. PrestonÓs other objection was that GulfviewÓs design

plans did not meet the requirements of Beach by DesignÓs Beach

Walk District overlay. Preston argued to the Board that the

hotelÓs proposed design did not meet the r edevelopment goals for

addition of facilities and amenities generally described as

areas for outdoor dining, outside cafes , and other seaside

amenities. 3 / However, although Preston had actual notice of the

hotel design plans as early as July 20, 2017, he did not

introduce any expert testimony or other evidence to support

those objections.

9. The Staff Report states that Beach by Design proposed

to create a great beach front, known as ÐBeach Walk,Ñ by

relocating South Gulfview Boulevard from the existing right of

way.

Beach by Design recognized that the

redevelopment and revitalization of the

properties that front on South Gulfview were

and, to a certain extent, still are

generally constrained by several factors

including small parcel sizes and the Coasta l

Construction Control Line. As a result,

most of the motels and hotels which existed

along the east side of South Gulfview would

have limited opportunities for redevelopment

even if Clearwater Beach were repositioned

in the tourism market place. Beach b y

Design proposed to relocate South Gulfview

to the west of its current alignment in

order to achieve multiple purposes. First,

it would create a drive with a real view of

the Beach and the Gulf of Mexico. Second,

it would allow the City to vacate the ea st

35 feet of the existing right of way in

favor of the properties along the eastern

frontage of existing South Gulfview as an

incentive for appropriate redevelopment.

Many of those existing properties would

substantially benefit from an additional 35

fee t of depth which could be used for the

addition of facilities and amenities such as

safe and comfortable areas for outdoor

dining.

The creation of Beach Walk and the

realignment of South Gulfview Boulevard have

all been realized. Several segments of the

South Gulfview Boulevard have already been

vacated and many of the properties along

South Gulfview Boulevard have, in the years

since the initial adoption of Beach by

Design, been redeveloped with hotels. As

noted, this proposal also includes a

vacation o f a portion of the South Gulfview

Boulevard right - of - way which will facilitate

the redevelopment of the subject site with a

new hotel playing an important role in the

ongoing renewal and revitalization of the

Beach. Specifically, the vacation will

allow f or the location of an outdoor seating

area providing a strong link between Beach

Walk and the proposed hotel as supported by

Beach by Design . Therefore, the proposal is

consistent with this provision.

(Emphasis added).

10. The Staff Report concluded t hat the proposed project

is consistent with applicable provisions of the Community

Development Code , applicable components of the CityÓs

Comprehensive Plan , the Beach Walk District of Beach by Design ,

and the Design Guidelines of Beach by Design . Mark Par ry,

Senior Planner with the City, testified that Ðthe proposed

number of units, 88, is contingent on vacation of that right - of -

way,Ñ and if the right - of - way is not later vacated, it Ðwould

knock out about eight units.Ñ Mr. Parry also testified that the

pr oposed project provides amenities and an outdoor seating area

as specified by Beach by Design . Preston only conducted a very

short cross - examination of Mr. Parry, despite having party

status to do so.

11. Sue Ann Murphy, an experienced land use planner , also

testified that the proposed development complied with all

applicable Community Development Code, Comprehensive Plan and

Beach by Design requirements. The project architect, Istvan

Peteranecz, AIA, was accepted by the Board as an expert.

Mr. Petera necz answered questions from Board members regarding

the design of the proposed hotelÓs main entrance, including the

porte cochere and public seating area adjacent to the Beach Walk

and immediately south of FrenchyÓs. Preston did not cross -

examine Ms. Mur phy or Mr. Peteranecz, despite having party

status to do so.

12. S ubstantial competent evidence in the record supports

the conclusion that the proposed project is consistent with

applicable provisions of the Community Development Code,

applicable compon ents of the CityÓs Comprehensive Plan, the

Beach Walk District of Beach by Design , and the Design

Guidelines of Beach by Design .

13. At the conclusion of the public hearing, the Board

acknowledged PrestonÓs pending request for continuance and

proceeded wi th discussion. After extensive discussion among the

Board members, a motion was made and seconded for the Board Ðto

approve case number FLD2017 - 07012 based on the evidence, the

testimony presented, and the application, the staff report, and

at todayÓs hea ring, and to adopt the findings of fact and

conclusions of law stated in the staff report with all of the

conditions of approval, as listed.Ñ The motion carried.

14. On October 19, 2017, the City entered a Development

Order memorializing the BoardÓs deci sion. The Development Order

includes a Finding of Fact that Ð[t]he total lot area includes

2,195 square feet of the South Gulfvi ew Boulevard right - of - way

which would need to be vacated by the City,Ñ and includes a

Condition of Approval that Ðapplication f or a building permit be

submitted no later than October 17, 2019, unless time extensions

are granted.Ñ The City represented at oral argument that if the

proposed development is not consistent with the Development

Order (e.g. , if the approximately 2,195 sq uare feet of the South

Gulfview Boulevard right - of - way is not vacated), Gulfview will

not be able to get a building permit without going through a

minor amendment process for a less intense project.

CONCLUSIONS OF LAW

15. Preston has the burden to demonst rate that the

decision of the Board 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, Clearwater C mty . Dev. Code.

16. The Hearing Officer ca nnot re - weigh conflicting

testimony presented to the Board or substitute her judgment for

that of the Board on the issue of credibility of witnesses.

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

1995).

17. Preston did not present any ev idence to the Board

tending to prove that any applicable development criteria were

not met. Preston did not carry his burden to show the decision

of the Board cannot be sustained by substantial competent

evidence before the Board.

18. During oral argume nt, Preston argued that the mailed

and posted notices were insufficient, that the Board ignored his

motion for continuance, that the project did not meet certain

Beach by Design criteria, and that the Development Order should

be expressly conditioned on th e vacation of the right - of - way.

PrestonÓs proposed final order confined his argument to

insufficient notice and the motion for continuance as procedural

due process issues, and the Development Order as not complying

with the essential requirements of law.

19. Preston argued that the notice was insufficient

because the mailed notice identified two parcels comprising the

project site and did not provide an address or parcel

identification for the 2,195.09 square feet which may later be

vacated. However, va cation of the right - of - way is a process

that cannot be decided by the Board. It is a separate process

that occurs in a hearing before the City Council , where the City

Council will give due consideration to any objections that are

proposed and Ðdetermine t he matter affirmatively or to the

contrary at its discretion.Ñ See Clearwater Code of Ordinances

§ 28.05(4).

20. Section 4 - 206.C of the Community Development Code

requires the notice of public hearing to include Ðthe address of

the property.Ñ The right - of - way does not have an ÐaddressÑ

separate and apart from the addresses provided in the notice.

In any event, Preston had actual notice as early as July 20,

2017, about the proposal to vacate 2,195.09 square feet of

right - of - way as part of the proposed d evelopment. Preston also

had the opportunity based on the mailed notice to be adequately

informed of the details regarding GulfviewÓs application and

site plans prior to the October 17, 2017, hearing before the

Board. See Marion Cnty. v. Kirk , 965 So. 2d 330, 332 (Fla.

5 th DCA 2007); Massey v. Charlotte Cnty. , 842 So. 2d 142, 146

(Fla. 2d DCA 2003) (ÐProcedural due process requires both fair

notice and a real opportunity to be heard.Ñ).

21. The quality of due process required in a quasi -

judicial hearing is not the same as that of a full judicial

hearing. See Jennings v. Dade Cnty. , 589 So. 2d 1337, 1340

(Fla. 3d DCA 1991). Quasi - judicial proceedings are not

controlled by strict rules of evidence and procedure. Id.

However, in a quasi - judicial proceedi ng the standard of review

for the decision on a motion for continuance is the same as in a

judicial proceeding, i.e., whether the refusal to grant the

continuance is an abuse of discretion. When the Board discussed

and voted to approve GulfviewÓs applicat ion, it implicitly ruled

on PrestonÓs pending request for continuance. See Sieracki v.

Pizza Hut , 599 So. 2d 678 (Fla. 1st DCA 1992) (reflecting that

an appellate court may discern a lower courtÓs implicit ruling

on a particular issue); see also Clearwate r v. StudebakerÓs

Dance Club , 516 So. 2d 1106 ( Fla. 2d DCA 1987). Preston had

actual notice as early as July 20, 2017, about the proposal to

vacate 2,195 .09 square feet of right - of - way and fair notice of

the October 17, 2017, hearing. Therefore, the Boar d did not

abuse its discretion by not granting PrestonÓs request for

continuance.

22. Preston waived his claim of insufficient notice

because he received fair notice, attended the hearing, was

granted party status, participated in the quasi - judicial

pro ceeding, and availed himself of the opportunity to fully and

adequately present his objections. See Malley v. Clay Cnty.

Zoning CommÓn , 225 So. 2d 555, 557 (Fla. 1st DCA 1969); City of

Jacksonville v. Huffman , 764 So. 2d 695 (Fla. 1st DCA 2000).

T herefor e, his claims of prejudice are not supported by the

substantial competent record evidence or the actions of the

Board. See Schumacher v. Town of Jupiter , 643 So. 2d 8 (Fla.

4th DCA 1994) (Ð[T]he record reflects that appellant, through

counsel, had substan tial and continuous knowledge of the pending

proceedings and did appear at the final hearing . . . and [did]

express his objections.Ñ).

23. Preston argued that the Development Order under review

does not comply with the essential requirements of law beca use

it does not mandate vacation of the right - of - way as a condition

of approval. Preston did not provide any legal authority to

support adding such a mandate as a condition of approval. The

City represented at oral argument that if the proposed

developme nt is not consistent with the Development Order (e.g. ,

if the approximately 2,195 square feet of the South Gulfview

Boulevard right - of - way is not vacated), Gulfview will not be

able to get a building permit without going through a minor

amendment process f or a less intense project. This amendment

process is contemplated in the Code. See § 4 - 506.F, Clearwater

C mty . Dev. Code.

24. Preston did not meet his burden to show that the

decision of the Board departs from the essential requirements of

law.

1 5

DETER MINATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, the decision of the Community Development Board is

AFFIRMED.

DONE AND ORDERED this 6th day of February , 2018 , in

Tallahassee, Leon County, Florida.

S

FRANCINE M. FFOLKES

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

Divi sion of Administrative Hearings

this 6th day of February , 2018 .

ENDNOTE S

1 / The City provided DOAH with an electronic record that was

duplicated in hard copy by PrestonÓs counsel and provided as a

tabbed binder at oral argument. The City objected. Th at

objection is overruled and the tabbed binder is being returned

to the City as part of the record because the tabs were

referenced during oral argument.

2 / Beach by Design : A Preliminary Design for Clearwater Beach

and Design Guidelines, Adopted b y Ord inance No. 6689 - 01

(February 15, 2001); Amen ded by Ordinance No. 8497 (January 16,

2014).

3 / Beach by Design , pp. 23, and 59 - 60.

COPIES FURNISHED:

Jay Daigneault, Esquire

Trask Daigneault, LLP

Suite 201

1001 South Fort Harrison Avenue

Clearwater, Flor ida 33756

(eServed)

Camilo A. Soto, Esquire

City of Clearwater

Post Office Box 4748

Clearwater, Florida 33758 - 4748

(eServed)

Donald Allen Mihokovich, Esquire

Marilyn Mullen Healy, Esquire

Adams and Reese LLP

Suite 4000

101 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

Apostolos A. Gionis, Esquire

Law Office of Paul A. Gionis

612 South Martin Luther King Jr. Avenue

Clearwater, Florida 33756

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

this decision shall be final, subject to judicial review by

common law certiorari to the circuit court.