19-003976 Edgewater Drive Neighborhood Association, Inc. vs. Edgewater Valor Capital, Llc; Community Development Board; And City Of Clearwater Status: Closed DOAH Final Order on Thursday, October 17, 2019.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDGEWATER DRIVE NEIGHBORHOOD

ASSOCIATION, INC.,

Appellant,

vs. Case No. 19 - 3976

EDGEWATER VALOR CAPITAL, LLC;

COMMUNITY DEVELOPMENT BOARD;

AND CITY OF CLEARWATER,

Appellees.

____________________________ ___/

FINAL ORDER

Appellant, Edgewater Drive Neighborhood Association, Inc.

(EDNA), appeals a development order rendered by the City of

Clearwater Community Development Board (Board) on July 1, 2019.

The Division of Administrativ e Hearings (DOAH), by contract with

the City of Clearwater (City) and pursuant to s ection 4 - 505 of

the Community Development Code, assigned Administrative Law Judge

Francine M. Ffolkes to serve as Hearing Officer for the appeal.

Oral argument was presente d on August 27, 2019, and the parties

submitted proposed final orders on September 19, 2019.

APPEARANCES

For Appellant EDNA : Kim L. Kaszuba, Esquire

KLK Family Law

803 Turner Street

Clearwater , Florida 33756 - 5633

For Appellee City : Michael Fuino, Esquire

City of Clearwater

600 Cleveland Street, Suite 600

Clearwater, Florida 33755

For Appellee Board: Jay Daigneault, Esquire

Trask Daigneault, LLP

Suite 201

1001 South Fort Harrison Avenue

Clearwater, Florida 33756

For Appellee Edgewater Valor Capital, LLC (Edgewater Valor) :

Brian J. Aungst, Jr., Esquire

Macfarlane Ferguson & McMullen, P.A.

625 Court Street, Suite 200

Clearwater, Florida 33756

STATEMENT OF THE ISSUE S

The issues to be determined in this appeal a re whether the

decision of the Board to approve Flexible Development Application

FLD2019 - 01002 (Application) filed by Edgewater Valor cannot be

sustained by substantial competent evidence before the Board, or

that the decision of the Board departed from th e essential

requirements of law.

PRELIMINARY STATEMENT

On June 25, 2019, the Board approved the Application, which

was filed on April 12, 2019, by Edgewater Valor. The Board's

decision was rendered by written development order on July 1,

2019 (Order). Th e Order approved an 80 - unit attached dwelling

development in the Tourist (T) and Medium Density Residential

(MDR) zoning districts for properties located at 1026 Sunset

Point Road and 1919 Edgewater Drive, in Clearwater, Florida. The

City Planning and Dev elopment Department's Board Staff Report

(Staff Report) was issued on May 21, 2019. The Staff Report

included a recommendation for approval of the Application. The

Staff Report was revised on June 24, 2019 (Revised Staff Report).

On June 25, 2019, the Bo ard conducted the duly - noticed

quasi - judicial public hearing on the Application. At the

hearing, expert testimony was received from Ella Crandall, AICP,

who was the City's development review manager; Wayne M. Wells,

AICP, for Edgewater Valor; Robert Pergo lizzi, AICP, PTP, who

conducted the traffic impact study for Edgewater Valor; Alan

McDonnell, architect for Edgewater Valor; and Patricia Ortiz,

AICP, for EDNA. The Board also heard presentations and testimony

from Brian Aungst, Jr., attorney for Edgewate r Valor; Mary Kate

Belniak, president of EDNA; Gina Clayton, planning director for

the City; and Hector Hernandez, an engineer for the City.

Individuals and entities were granted party status and

allowed to present witness testimony, introduce evidence, and to

cross - examine witnesses. Those granted party status included,

Dean Falk; the Clearwater Neighborhood Coalition by and through

Karen Cunningham and William C. Jonson; Karl Balducci; Paul Tracy

Spikes, Kim L. Kaszuba , and Reid Ragsdale by and through Jeremy

Reynolds; Mariane Ortenzio; Debra Adam Chase; Lisa Lynn; and

Thomas Generalli by and through Carlton Ward, Esq uire .

Thirty - five members of the public also addressed the Board.

The hearing lasted over seven hours, and at its conclusion and

after di scussion, the Board approved the Application based on the

contents of the Application, the expert testimony and evidence

presented at the hearing, and the Staff Report. On July 1, 2019,

the City rendered the Order, which included findings of fact,

conclus ions of law, and conditions of approval.

On July 8, 2019, EDNA filed an appeal of the Order (Appeal

Application). The City transmitted the Appeal Application and

record before the Board to DOAH for assignment of a Hearing

Officer. The record before the B oard and the hearing T ranscript

were uploaded to the DOAH docket. The assigned Hearing Officer

conducted oral argument on August 27, 2019. Thereafter,

Appellant and Appellees submitted proposed final orders, which

were considered in the preparation of th is Final Order.

FINDING S OF FACT

1. Edgewater Valor proposes to develop an 80 - unit attached

dwelling with 164 associated off - street parking spaces on

2.931 acres of property it owns. The property is located at

1026 Sunset Point Road and 1919 Edgewater Dr ive in Clearwater,

Florida.

2. The proposal consists of three buildings and a

structured parking platform with a pool and deck on the west side

of the parking platform. Sixty percent of the 164 parking spaces

is garage parking, with the rest as exposed s urface parking. Two

of the buildings, both in the T district, are proposed at a

height of 86 feet measured from base flood elevation. The third

building, in the MDR district, is proposed at a height of 38 feet

measured from base flood elevation. The bui ldings in the

T district are set back 152 feet from the east property line.

The building in the MDR district is set back 75 feet from the

east property line. The proposal includes landscaping and

setbacks that exceed the Board's requirements for approval .

3. The Application requests Level Two approval of

flexibility for a building height of 86 feet from base flood

elevation in the T zoning district. A Level One approval allows

a building height of up to 50 feet, and up to 100 feet as a Level

Two approva l.

4. The Application also requests Level Two approval of

flexibility for an attached dwelling use in the MDR zoning

district. The attached dwelling has a building height of 38 feet

from base flood elevation, where up to 40 feet is allowed as a

Level Two approval and flexibility from lot width in the MDR

zoning district.

5. Edgewater Valor owns 2.437 acres of the property which

is zoned T with an underlying Comprehensive Plan Future Land Use

category of Resort Facilities High (RFH). The remaining

0.494 acres is zoned MDR with an underlying Comprehensive Plan

Future Land Use category of Residential Medium (RM).

6. The property to the north of the proposed development is

zoned T and is currently developed as a Comfort Suites hotel.

The property to the so uth is zoned Office (O), MDR, and

Preservation (P). There is a vacant automobile service station

adjacent to the proposed development to the southwest, and a

multi - family development to the south across Sunset Point Road.

The property to the east is zone d MDR and P with single - family

detached dwellings and attached dwellings further east along

Sunset Point Road. The property to the west is zoned

Commercial (C) and P.

7. EDNA's boundaries are Sunset Point Road north to Union

Street, and Edgewater Drive e ast to Pinellas Trail. The

neighborhood consists of 400 homes that are mostly single - family,

single - story detached dwellings. The proposed development would

be located in the southwest corner of the neighborhood at the

intersection of Edgewater Drive and Sunnydale Drive. The Comfort

Suites hotel is located directly across from the proposed

development on the opposite corner of Sunnydale Drive and

Edgewater Drive. Sunnydale Drive travels east away from

Edgewater Drive and dead - ends as a cul - de - sac with m ostly single -

family detached dwellings.

CONCLUSIONS OF LAW

8. In this appeal, EDNA has the burden to demonstrate 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 Cmty. Dev. Code.

9. While section 4 - 206.D.4 of the Community Development

Code provides that "[t]he burden of proof is upon the applicant

[at the quasi - judicial Board hearing] to show by substa ntial

competent evidence that he is entitled to the approval

requested," this provision refers to the standard of proof at the

quasi - judicial hearing and not the standard of review for appeals

under section 4 - 505.

10. The Hearing Officer, acting in an app ellate capacity,

cannot reweigh conflicting evidence 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).

11. Competent sub stantial evidence has been construed to be

"legally sufficient evidence" or "evidence that is sufficiently

relevant and material that a reasonable mind would accept it to

support the conclusion reached." Degroot v. Sheffield , 95 So. 2d

912, 916 (Fla. 1957 ).

12. The issue of whether the Board's decision "depart[ed]

from the essential requirements of the law" is synonymous with

whether the Board "applied the correct law." See Heggs ,

658 So. 2d at 530.

13. Pursuant to the Community Development Code , there are

three levels of development approval in the City. Level One

approvals are staff level approvals and require the applicant to

comply with the minimum development standards and the general

applicability criteria set forth in section 3 - 914.A. of the

Comm unity Development Code. Level Two approvals require a quasi -

judicial public hearing before the Board to approve available

flexibility from the minimum development standards. Level Two

approvals must meet both the general applicability criteria and

the fl exibility criteria. Level Three approvals are heard by the

City Council and are reserved for development agreements, text

amendments, zoning atlas amendments, comprehensive plan

amendments, annexations, developments of regional impact,

historic designatio ns, neighborhood conservation overlay

districts, determinations of vested development rights, and

actions affecting mobile home owners.

EDNA's Issues on Appeal

14. EDNA's proposed final order sets forth the issues

raised and argued by it in this appeal. EDNA asserted that

Edgewater Valor failed to present substantial competent evidence

that it met each and every one of the general applicability

criteria in section 3 - 914.A. , and m ore specifically,

subsections 1, 2, 4, 5, and 6 of that section. EDNA also

asserted that the Board departed from the essential requirements

of the law by finding that Edgewater Valor met its burden of

proof for approval.

15. EDNA explained that its only actual dispute was with

the flexibility approval that allowed the buildings in the

T zoning district to exceed 50 feet in height, specifically

86 feet above base flood elevation. Each of EDNA's arguments

regarding the five criteria in section 3 - 914.A. were framed by

detailing Edgewater Valor and the City's evidence versus EDNA an d

the other parties' evidence. EDNA then argued that for each

disputed criterion, the overwhelming evidence was against

approval.

16. Thus, EDNA's arguments urged the undersigned to violate

the applicable appellate standard of review by reweighing the

co nflicting evidence and substituting her judgment for that of

the Board regarding the credibility of witnesses. See Collier

Med . Ctr., Inc. v. Dep't of Health & Rehab. S erv s. , 462 So. 2d

83, 85 (Fla. 1st DCA 1985). The question on appeal is not

whether th e record contains evidence supporting the contrary view

of EDNA, but whether there is evidence to support the Board's

decision. See Dusseau v. Metro. Dade Cnty. Bd. of Cnty. Comm'rs ,

794 So. 2d 1270, 1276 (Fla. 2001)(holding that as long as the

record con tains competent substantial evidence to support the

agency's decision, the decision is presumed lawful).

17. Upon review of the record evidence, the undersigned

finds that the record before the Board contained substantial

competent evidence to support the Board's decision that Edgewater

Valor's Application met the criteria in section 3 - 914.A . ,

including the five criteria specifically contested by EDNA.

18. Woven into its evidence argument, was EDNA's assertion

that the City's interpretation and applicatio n of certain terms

in the general applicability criteria amounted to an unreasonable

interpretation, or was clearly erroneous. See Las Olas Tower Co.

v. City of Ft. Lauderdale , 742 So. 2d 308 (Fla. 4th DCA 1999).

EDNA pointed out that the terms "harmony" and "community

character" were not defined in the Community Development Code,

and that the City's staff testified that these terms could be

subjective.

19. EDNA conceded, however, that Edgewater Valor's

reference in its Application to "'use' as being com patible and

consistent with the neighborhood[,] is not in dispute." EDNA

also conceded that "harmony" is included in the dictionary

definition of "compatible."

20. The City and Edgewater Valor's interpretation of the

general applicability criteria was re asonable. Therefore, the

Board's application of those criteria to the record evidence

before the Board was not a departure from the essential

requirements of the law. See Las Olas Tower Co. , 742 So. 2d

at 308, 312 (holding that interpretation of word in city code by the agency responsible for its administration was a reasonable

interpretation , and therefore , lower court applied correct law in

determining that agency did not depart from essential

requirements of law).

21. In addition, EDNA's argument that the Board departed

from the essential requirements of the law by finding that

Edgewater Valor met its burden of proof for approval is not

subject to review in this type of appeal. As outlined above, the

standard of proof at the quasi - judicial hearing is not the

standard of review for appeals under section 4 - 505. See Dusseau ,

794 So. 2d at 1275 - 1276; Heggs , 658 So. 2d at 530.

22. EDNA also asserted that the Board departed from the

essential requirements of the law by failing to afford due

process in two areas. First, the Board allegedly failed to allow

certain persons to admit relevant evidence, and second , failed to

consider as relevant certain testimony of the residents related

to traffic congestion.

23. Although EDNA characterized these alleged failu res as

due process violations, neither one presented a procedural due

process issue. EDNA's argument conflated the two issues into a

weight of the evidence argument regarding conflicting testimony

about traffic congestion. Thus, EDNA's argument again urg ed the

undersigned to violate the applicable appellate standard of

review by reweighing the conflicting evidence and substituting

her judgment for that of the Board regarding the credibility of

witnesses. See Collier Med . Ctr., Inc. , 462 So. 2d at 85.

24. EDNA did not meet its burden to show that the Board's

decision was not supported by substantial competent evidence

before the Board, or that the decision departed from the

essential requirements of the law.

DETERMINATION

Based on the foregoing Findings o f Fact and Conclusions of

Law, the decision of the Community Development Board is AFFIRMED.

DONE AND ORDERED this 17th day of October , 2019 , in

Tallahassee, Leon County, Florida.

FRANCINE M. FFOLKES

Administrative Law J udge

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 17th da y of October , 2019 .

COPIES FURNISHED:

Jay Daigneault, Esquire

Trask Daigneault, LLP Suite 201 1001 South Fort Harrison Avenue

Clearwater, Florida 33756

(eServed)

Michael Fuino, Esquire

City of Clearwater

600 Cleveland Street , Suite 600

Clearwater, Flo rida 33755

(eServed)

Kim L. Kaszuba, Esquire

KLK Family Law

803 Turner Street

Clearwater, Florida 33756 - 5633

(eServed)

Brian J. Aungst, Jr., Esquire

Macfarlane , Ferguson & McMullen , P.A.

625 Court Street , Suite 200

Clearwater, Florida 33756

(eServed)

Todd A. Jennings, Esquire

Macfarlane, Ferguson & McMullen , P.A.

625 Court Street , Suite 200

Clearwater, Florida 33756

(eServed)

Nancy S. Paikoff, Esquire

Macfarlane Ferguson & McMullen , P.A.

625 Court Street , Suite 200

Clearwater, Florida 33757

(eServe d)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Pursuant to Article 4, Division 5, Section 4 - 505.D of the Community Development Code, this decision shall be final, subject to judicial review by common law certiorari to the circuit court.