19-006416 2521 Countryside Blvd. Llp, Et Al. vs. City Of Clearwater (The City) Status: Closed DOAH Final Order on Thursday, April 23, 2020.

Summary: Appellants failed to show the Community Development Board's approval of renovation of property for a charter high school was not supported by substantial competent evidence or departed from the essential requirements of law.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

2521 C OUNTRYSIDE B LVD ., LLP ,

C OUNTRYSIDE P ROPERTY P RINCIPA LS ,

LLC, A ND 2505 E NTERPRISE , LLC

A PPELLANTS ,

V S . Case No. 19 - 6416

C ITY O F C LEARWATER , C ITY OF

C LEARWATER C OMMUNITY D EVELOPMENT

B OARD , AND P INELLAS E DU CATION

O RGANIZATION , I NC ., D/B/A E NTERPRISE

H IGH S CHOOL

A PPELLEES

/

F INAL O RDER

Appellants, 2521 Countryside Blvd . , LLP, Countryside Property

Principals, LLC, and 2505 Enterprise , LLC (col lectively referred to as

Appellants), seek review of a development order issued by Appellee City of

Clearwater Community Development Board (Board) on December 3, 2019

(Development Order) , pursuant to section 4 - 505 of the City of Clearwater

Community Develo pment Code (2019) (Code). 1 Administrative Law Judge

Hetal Desai of the Division of Administrative Hearings (DOAH) h eld a

hearing for oral arguments on January 23, 2020 (Oral Argument) , in

Clearwater, Florida. 2

1 All references to statutes and local ordinances are to th e 2019 versions.

2 Appellee City of Clearwater (City) has contracted with D OAH to review appeals brought

pursuant to se ction 4 - 505 of the Code .

A PPEARANCES

For Appellants: John L. Dicks , Esquire

Akerman LLP

Suite 1700

401 East Jackson Street

Tampa, Florida 33602

For Appellee City: Michael Fuino, Esquire

City of Clearwater

Suite 600

600 Cleveland Street

Clearwater, Florida 33755

For Appellee Board: Jay Daigneault, Esquire

Trask Daigneault, LLP

Suite 201

1001 South Fort Harrison Avenue

Clearwater, Florida 33756

For Appellee P inellas E ducation O rganization , I nc ., d / b / a E nterprise H igh

School :

Robert L. Chapman, Esquire

Bush Ross, P.A.

1801 North Highland Avenue

Tampa, Florida 33602

S TATEMENT O F T HE I SSUE S ON A PPEAL

The ultimate issue in this appeal is whether to approve, approve with

conditions, or deny the D evelopment O r der issued to Appellee Pinellas

Education Organization, Inc. , d/b/a Enterprise High Scho ol (Applicant or

School) , by the Board on December 3, 2019. Specifically, the following issues

must be resolved :

1. Whether Appe llants have standing to appeal the

D eve lopment Order .

2. Whether the issues raised by Appellants at the

Oral Argument were properly preserved for appeal.

3. Whether there is substantial competent evidence

in the record to support approval of the

Development O rder. 3

4. Whether the Board's de cision departs from the

essential requirements of the law.

5. If the D evelopment O rder is affirmed, whether

any additional conditions are appropriate.

P ROCEDURAL H ISTORY

Appellee School filed an applica tion to renovate an existing building to

operate a high school at 2495 Enterprise Road, in Clearwater, Florida. 4 The

Board held a quasi - judicial public hearing on the application on

November 19, 2019 (Board Hearing). The Board approved the School's

application with conditions and the City issued the Develo pment Order on

December 3, 2019.

On December 4, 20 19 , two separate Appeal Applications were filed

regarding the Development Order: (1) by 2521 Countryside Blvd., LLP,

Countryside Property Principals, LLC, Bruce Levine , and Joan Levine; and

(2) by 2505 Ent erprise, LLC, and Gr eg Willsey , and Sandra Willsey. The

Appeal A pplications were fairly similar and raised a number of issues: four

issues pertaining to traffic and parking requirements ; and one issue as to

whether a high school i s a compatible use with th e surrounding area.

The City referred the matter to DOAH on December 4, 2019, and it was

3 Section 4 - 505C states, " The burden shall be upon the appellant to show that the decision of

the community development board cannot be sustained by substantial competent evidence

before the board, or that t he decision of the board departs from the essential requirements of

law. "

4 The School's application went through a Level Two approval process which require s a

quasi - judicial public Board hearing to approve flexibility (i.e. deviation) from the minimum

de velopment standards set forth in the Code . See Code at §4 - 401. Level Two approvals must

meet both the general applicability criteria and the flexibility criteria outlined by the Code.

See Code at Art. 4, Division s 1 , 3, 4 and 6.

assigned t o an administrative law judge. On December 13, 2019, a telephonic

scheduling conference was held to determine the record on appeal and set the

oral argumen t hearing. During that conference the parties agreed not to

submit pre - argument briefs, but rather , chose to file post - hearing proposed

final orders.

The O ral A rgument was held at the Clearwater Library and was open to

the ge neral public. Applicant, the C ity, the Board, and all persons who were

granted party status at the Board Hearing were allowed to present

argument s at the Oral Argument . See Code at 4 - 505B. At the Board Hearing

the following people were granted party status: Dr. Richard Gottlieb, who

wa s represented by Todd Pressman; Sandra Willsey ; Greg Willsey; and

Todd Burch.

The transcript of the Oral Argument was filed w ith DOAH on

February 19, 2020. Pursuant to section 4 - 505 D, the proposed final orders

were due within 20 days after the filing of the transcript, or no later than

March 11, 2020. Per the City 's request , the parties were granted an extension

to submit proposed final orders. The additional time was to allow the parties

to collaborate on a master index to the record on appeal (Index) , w hich they

intend ed to cite to in their p roposed orders. The Index and the proposed final

orders were timely submitted on March 23, 2020. 5

5 At the Oral Argument, t he parties stipulated that the undersigned could take official

recognition of the Code provisions and City of Clearwater Comprehensive Plan

(Comprehensive Plan) found online. As such, the undersigned t akes official recognition of the

Code found at https:// library.municode.com/fl/clearwater/codes/

community_development_code?nodeId=CODECO (last visited April 14, 2020) ; and of the

Comprehensive Plan found at https://www.myclearwater.com/government/city -

departments/planning - development/divisions - /development - review - zoning/comprehensive -

plan ( last visited April 14, 2020) .

F ACT S I N T HE R ECORD

Pursuant to section 4 - 505A, the record includes the application file of the

Clearwater Planni ng and Development Department (Plan ning Department);

the agenda packet of the Board Hearing ; all exhibits accepted in to evidence

at the Board Hearing ; and the s treaming video of the Board H earing. 6 The

following findings of fact are supported by s ubstantia l competent evidence

found in the record.

Parties and Property

1 . The School filed an application with the Planning Department to

renovate a 16,696 square foot building located on a 1.730 acre site at 2495

Enterprise Road in Clearwater, Florida (proposed development) .

2 . The proposed development is in a retail/office plaza known as Village at

Countryside (Plaza), located on the east side of Enterprise Road, just south of

Countryside Bou levard in Clearwater, Florida. The Plaza consists of 11

parcels, incl uding a large vacant building that form erly housed a Toys - R - Us

store. The Plaza is located within the US 19 Corridor Redevelopment Plan,

and has a des ignation of " US 19 District, Regional Center sub - district "

(US 19 - RC) . Property within US 19 - RC is su bject to the special zoning

district and development st andards found at Appendix B of the Code. 7

3 . The School seeks to operate Enterprise High School, a charter high

school, at the proposed development site . 8 As explained below, r elevant to

this appeal is the number of students at the S chool and whether there will be

ade quate parking for the proposed development as required by the Code .

6 See Video of Board Hearing held November 19, 2019 , on Agenda FLD2019 - 8026 at time

marker 9:25 at http://clearwater.granicus.com/MediaPlayer.php?view_id=50&clip_id=3782

( last visited April 1, 2020) .

7 See Code at Appendix B Ï US 19 Zoning District and Development Standards , found at

https://library.municode.com/fl/clearwater/codes/community_develop ment_code?nodeId=APX

BUS19ZODIDEST ( last visited April 14, 2020).

8 Enterprise High School is an existing charter school which intends to move from its current

location to the proposed development site . The S chool is subject to section 1013.33, Florida

St atutes .

4 . Appellants own and operate property within the Plaza and adjacent to

the proposed development site. Specifically, Bruc e and Joan Levine own

Appellants 2521 Countryside Blvd., LLP , 9 and Countryside Property

Principals, LLC . The LLP and /or LLC operate the Countryside Foot and

Ankle Center. 10 The Countryside Foot and Ankle Center's administrator,

Todd Burch, was granted party status at the Board Hearing.

5 . Greg and Sandra Willsey own Appellant 2505 Enterprise, LLC , which is

a property in the Plaza . The Willseys were also granted party status at the

Board Hearing.

6 . At the conclusion of the Board H earing, the Board voted to approve the

School's application . On December 3, 2019, a D evelopment O rder was issued

to memorialize the Board' s action.

7 . Thereafter , Appellants filed the Appeal Applications with a document

titled "Notice and Stateme nt " which stated the following gro unds for the

appeals :

The Neighbors assert that the decision of the

Community Development Board ("the Board") was

not supported by substantial competent evidence

and was a departure from essential requirements of

law. Specifically:

1. The Board's decisio n was based upon a high

school with two, 200 - student shifts. However, the

record below established that these student shifts

would substantially overlap during the noon hour.

In other words, the evaluation of the proposed

change of use was based on impacts and site

requirements that were substantially less than

what would actually occur on the site.

9 The Appeal Application lists this entity as 2521 Countryside Boulevard Land Trust.

10 Although Appellants state that Bruce Levine was granted party status at the Board

Hearing, there is no substantial competent evidence in the rec ord supporting this statement.

See Appellees' Proposed Final Order at p. 3; compare Tab 3 0 of the Index , Board Meeting

Minut es for November 19, 2019 , at p. 3 and 5.

2. The Board's decision was based on a traffic

analysis provided by the applicant that used a

wrong ITE trip generation code - an elementary

school instead of a high school - so it cannot be

relied upon as a basis for the underlying decision.

3. The change of use to a high school required that

the applicant establish that it had one parking

space per three students. There is no substantial

competent evidence to establish that this parking

requirement was satisfied. To the contrary, the

substantial competent evidence establishes that the

parking on the property failed to meet this

requirement. In fact, granting this change of use

would result in a substantial o versubscription of

the available parking at the site.

4. The proposed use would create tortured on - site

parking and traffic circulation patterns that would

substantially impact the existing medical office

uses on the property, including a kidney dialysis

office that serves a substantial elderly population.

There is no substantial competent evidence to

support the finding that th e change of use would

"have no impacts on the adjacent retail plaza." To

the contrary, the change of use would have

substantial i mpacts on the current retail and office

plaza.

5. The proposed change of use would have

substantial negative impacts on the surrounding

community and is incompatible with the existing

surrounding retail, office and residential uses.

8 . A t the O ral Argu ment, Appellants raised for the first time whether the

operation of a school i s an inconsistent use with : (1) an Amended and

Restated Declaration of Establishment of Restrictive Covenants, Conditions,

and Restrictions, and Grants of Easements dated Decembe r 7, 1983 (the

"Parking Easement"); and (2) the Comprehensive Plan.

The Stud ies

9 . The first four issues raised in the Appeal Applications are related to the

Parking Study and Traffic Study ( collectively referred to as the Stud ies )

which were submitted by the School as part of its applicat ion. The Parking

Study, dated September 2, 2019, consists of over all parking calculations;

aerial photographs of the development site and surrounding areas ; and the

Parking Easement.

10. The purpose of the Traffic Study was to analyze the impact of the

development on the traffic intersection at Countryside Boulevard and

Enterprise Road, as well as the full access drive at the site. The 50 - page

Traffic Study , dated October 18, 2019, included numerous charts, maps, and

tab les with underlying information and data relating to the traffic counts for

the proposed development. Jerry Dabkowski, a local tra ffic engineer who

prepared the Stud ies for the School , testified at the Board Hearing about the

traffic and parking calculatio ns .

11. To rebut the Studies , at the Board Hearing Mr. Pressman presented a

two - page letter from a professional engineer dated November 15, 2019, titled

"Traffic Study Review . " Relevant to the appeal, the letter finds fault in the

number of students and t he "ITE Code" used in the Traffic Stud y and in the

Planning Department's Staff Report an d Recommendation (Staff Report) ,

dated November 19, 2019, which was also presented to the Board . These

factors would affect the calculations for the number of parking s paces

required for and the trip distribution caused by the proposed development.

Number of Students

12. Appellants argue the parking calculations should be based on the total

number of students enrolled a t the S chool, or 400 students. The Studies and

the S taff Report calculated the traffic and number of parking spaces

necessary based on two shifts with 200 students per shift.

13. At the Board Hearing , Donna Hulbert, the School's Director , testified

that unlike a traditional high school, the School operated in two shifts to

allow the students to hold employment while completing their high s chool

education . Although the School intends to enroll a total of 400 students, she

explained, each of the two shift s would h ave a maximum of 200 students.

Additionally, t h e students are eligible for a public transportation bus pass,

which some students utilize instead of driving their personal vehicles.

14. The Study establishes that "[t]o reduce the impacts during the AM and

PM peak hours, the school intends to split the day into two shifts, each with

200 students attending." Although there was conflicting information between

the School's application and Ms. Hulbert's testimony at the Board Hearing

about whether the shifts would overlap, the Staff Report recommends

approva l of the application because , "[t] he applicant has provided the school

will operate in two shifts . . . with no more than 20 0 students present per

shift." There is subs tantial competent evidence that there will be only 200

students at the S chool at a time, and that this number was correctly used in

calculating the required parking spaces and the trip generation for the

proposed development.

ITE Trip Calculation

15. Appellants argue the Traffic Study utilized the wrong Instit ute of

Transportation Engineers' (ITE) Trip Generation Code , 520 , which is the code

applicable to an elementary school. The Study, however, states it utilized ITE

Code 530 from the Instit ute of Transportation Engineers' Trip Generation,

10th Edition for Office, to calculate the change in trips attributed to the

proposed development. A copy of the ITE Code 530 was attached to the

Traffic Study. Add itionally, Mr. Dabkowski testified that ITE Code 530 was

the correct code for high schools.

16. There is substantial competent evidence that IT E Code 530 was used

in calculating the change in trips for the Traffic Study which was relied upon

in the Staff Report, and which was accepted by the Board.

Parking Requirements

17. Table 2 in s ection B - 303, Permitted uses and parking , provides the

foll owing parking requirements relevant to this appeal.

Use Regional Use Specific Minimum

Standards Off - St r eet

Parking

Spaces

Retail BCP[Level 1 [Not included] 4/1,000 SF

Plaza Minimum GFA

Standard(Building

Construction permit) ]

Schools FLD [ Level 2 Flexibl e 1. All off - street 1 per 3

Development (Board parking is located students

approval required) ] at least 200 feet

from any

property

designated as

residential in the

Zoning Atlas

18. Based on this criterion , the School would require 67 parking spaces

(200 stu dents/3 = 66.6667).

19. The Staff Report and Studies establish the proposed site has 55

parking spaces, but five of these spaces cannot be used because they are

within 200 feet from a parcel designated as Residential. Thus , there are 49

available parking spaces "on site," leaving 18 spaces to be designated.

20. As stated earlier, the proposed site is one of 1 1 parcels in the Plaza.

The Parking Study contain s a copy of a Parking Easement that allows cr oss -

parking among the parcels. Based on the square foota ge of the buildings on

the parcels (including the proposed development site), the entire Plaza is

required to have 975 parking spaces . The Plaza a ctually has 1,137 parking

spaces , an excess of 162 parking spaces.

21. The Code also requires off - street parking spaces be located within 600

feet of the principal and accessory uses they serve. See Code at § 3 - 1404A.

Next to and within 600 feet of the proposed development site is currently a

vacant building that formerly housed a Toys - R - Us store. That parcel has 228

parking spaces, but only 177 spaces are required for that building, leaving an

extra 51 parking spaces.

22. Based on the excess spaces available throu gh the Parking Easement,

there is substantial competent evidence supporting the City's staff find ing of

adequate parking spaces to satisfy the additional 18 spaces necessary for the

proposed development , and the Board's approval of the same.

Compatible Use

23. The fifth issue raised in the Appeal Applications is regar ding the use

of the proposed devel opment site as a charter high school . Whether this site

i s appropriate for the type of school operated by the Applicant was a topic of

discussion among the Board members at the Board Hearing .

24. At the Board Hearing, Planning Department Manager Mark P a r r y

testifi ed as an expert witness. Mr. Pa rry explained the nature of the US 19 -

RC standards and gave his opinion that t he proposed development complies

with all applicable provisions of the Code, including the use requirements.

25. In contrast, Appellants expressed anecdotal fears that the types of

students attending the School would d isrupt Appellants' medical businesses.

For example, at the Board Hearing, Mrs. Willsey expressed concern that the

students at the School were known to have "behavioral proble ms." Mr. Burch

spoke about the increased number of pedestrians in the Plaza and cited to a

letter in the record from Dr. Levine : "For us to have to monitor and police our

properties for trespassing students would be unt enable." There was no actual

evidence in the record that the School's operations would cause any problems

such as increased crime or trespassing in the area.

26. At the Oral Argument and in their proposed final order, however,

Appellants ' argument shifted away from the potential e ffect s of th e students

in the area and instead offered the new argument s that the School was

inconsistent with the Parking Easement which states the Plaza shall be used

"fo r commercial purposes only, including without limitation the operation of

merchandi s ing establis hments, restaurants, and professional offices." 11

Regardless, as explained below, this argument is not appropriate on appeal

because it was not raised at the Board Hearing or in the Appeal Applications.

27. At the Oral Argument, Appellant s also argued tha t the School i s an

inconsistent use with the Comprehensive Plan. Appellants cited a paragraph

from the Staff Report :

The proposal includes a new charter school with

grades nine through 12 and constitutes a public

educational facility as defined by Policy J .2.1.2. The

school w ill be located within the US 19 Ï RC future

land use designation. The prior designation was

Commercial General (CG). The intent is that all

uses permitted in the CG are also permitted in the

US 19 Ï RC classification. The City is planning t o

update the Comprehensive Plan to reflect this.

Schools are a listed permitted use in the CG

classification.

As explained below, this argument is also inappropriate because it was not

raised at the Board Hearing or in the Appeal Applications.

28. Appe llants also argue the proposed development is an inconsistent use

with the existing business es because the adjacent properties are commercial

in nature and the School is not commercial. The Code, however, clearly allows

Schools as an allowable use in the U S 19 - RC zoning district, and in the

11 The Complete section of the Parking Easement titled "Uses" states:

2.1 Uses in General The Proper ty , consisting of both the

Building Area and the Common Areas, shall be used for

commercial purposes only, including without limitation the

operation of merchandising establishments, restaurants, and

professional offices. No portion of the Property shall be used

or operated as a discotheque, bar or cocktail lounge (except in

connection with a restaurant) . . . theatre, bowling alley,

skating rink, roller disco or catering hall, funeral parlor, or

for the sale of pornographic literature or material, or an adult

book store or so called "head shop" or for a video or other

game arcade, flea market, or for a use which would be noxious

or immoral or otherwise constitute moral turpitude or

constitute an undignified, disreputable use.

previous zoning designation of CG. See Code at § B - 303 . Moreover, unlike the

Parking Easement, the Code does not divide use categories into "Com mercial"

and "Non - C ommercial." Rather, the uses are categorized as "Resident ial" and

"Non - Residential." Id. Based on the Code and the review of the application

submissions, the Staff Report conclu ded the School will be an appropriate use

in the area.

Based on Staff visits, aerial photographs and

material submitted by the applicant it is evident

that the proposal will be in harmony and consistent

with the scale, bulk, coverage and character of

adjacent properties and, generally, with properties

in the greater neighborhood. The reuse of the

16,700 square foot building with a school w ill not

result in any adverse visual impacts on adjacent

properties. Since the character of the site will not

change with the proposal, and it is currently

similar in nature vis - a - vis placement of other uses

in the area it is not expected to impair the val ue of

those properties. The proposal will likely have no

effect, negative or otherwise, on the health or safety

of persons residing or working in the neighborhood.

29. The testimony of Mr. Parry, coupled with the Staff Report , constitute

substantial comp etent evidence supporting the Board's finding that the

School is a compatible use with the area.

C ONCLUSIONS O F L AW

30. The Division of Administrative Hearings has jurisdiction over the

subject matter of this proceeding and of the parties pursuant to s ect ion 4 - 505

of the Code. Under that provision, the hearing officer 's decision shall be final.

31. As an initial matter, Appellees challenge Appellants ' standing to bring

this appeal. Section 4 - 502B of the Code allows an appeal of the Board's

decision to be initiated by "any person granted party status." Because the

individual owners and/or representatives of Appellants were granted party

status at the Board Hearing, all of the Appellants have standing to bring this

appeal.

32. As to the merits of the appeal , the burden is upon Appellants to show

that the BoardÔs decision cannot be sustained by " substantial competent

evidence " in the record or that the decision departs from the essential

requirements of law. See Code at § 4 - 505C .

33. S ubstantial competent ev idence is evidence that a reasonable mind

would find adequate to support the facts found and conclusions reached.

Degroot v. Sheffield , 95 So. 2d 912, 916 (Fla. 1957 ) ( construing competent

substantial evidence to be sufficiently relevant and material to su pport the

decision on appeal). 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 Cnty. ,

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

34. The undersigned, acting in an appellate 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 or reliability of

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

1995).

35. Reg arding the traffic and parking issue s , Appellants essential ly argue

their expert's report i s more accurate than the School's S tudies , the S taff

R epo r t, and the testimony regar ding the traffic and parking calculations.

While there may have been conflicting evidence on some of these issues, the

Board resolved these con flicts in favor of the School. Therefore, Appellants

have not shown the Board's d ecision in finding the School has satisfied the

parking and traffic requirement s , and approv ing the application i s

unsupported by substantial competent evidence.

36. Regarding the compatible use issue, the School is a permitted use in

US 19 - RC ( and the previous designation of CG ), and therefore is presumed to

be a compatible use . 12 See Ocean Conc rete, Inc. v. Indian River C n ty. Bd. of

C n ty. Commissioners , 241 So. 3d 181, 188 (Fla. 4th 2018) (" It is axiomatic

that if an area is zoned for a particular use, that use is deemed compatible

with surrounding uses. Before the County amended the code [the use was a]

permitted use on Appellants' property. Therefore, the use [ ] was per se

compatible with the surrounding land uses ." ( citations omitted ) ) ; and

Nostimo, Inc. v. City of Clearwater , 594 So. 2d 779, 781 (Fla. 2d DCA 1 992)

(holding use of property was compatible with su rrounding or adjacent uses

because it was a permitted use) . T he only direct testimony at the Board

H earing agains t finding that the School was a compatible use was the

testimony of the Willseys and Mr. Burch. Such g eneralized concerns and

opinions from nei ghbors and citizens, which often are speculative, based on

fear and similar emotions, and based on unsubstantiated facts are not

substantial competent evidence. See City of Hialeah Gardens v. Miami - Dade

Charter Found., Inc. , 857 So. 2d 202 (Fla. 3 d DCA 200 3); 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. 3 d DCA 1998); Metro. Dade Cnty. v.

Blumenthal , 675 So. 2d 598, 607 (Fla. 3d DCA 1996) (en banc).

37. The issue of whether th e Board's decision "depart[ed] from the

essential requirements of the law" is synonymous with whether the Board

"applied the correct law." Haines City Cmty. Dev., 658 So. 2d at 530. Here,

12 Appellants erroneously argue pu blic educational facilities are not an allowable use within

the Commercial General (CG) zoning designation . To the contrary, Appendix B of the Code ,

relating to the US 19 - RC special district, and the Comprehensive Plan establish that

educational facilities are allowable uses in the area's previous category of CG. Appellants

seem to have relied on the wrong version of the Comprehensive Plan, section J. See

Appellant s ' proposed f inal o rder at ¶ ¶25 - 29 (arguing schools are not permitted in the CG

classificati on) . The applicable version clearly allows a school in the "Commercial General"

category. See Section J.2.1.3, Comprehensive Plan ("Public educational facilities of the School

District are an allowable use within the following land use categories in the Ci ty ...

Commercial General") found at https://www.myclearwater.com/home/showdocument?id=1068

(last visited April 14, 2020).

Appellants essentially argue d for the first time at Oral Argument th at the

Board failed to appl y the correct law b ecause it did not consider the "Use s "

provision in the Parking Easeme nt and because the application i s allegedly

inconsistent with the Comprehensive Plan. As stated above, these

arguments were not considered b y the Board, because they were never raised

at the Board Hearing.

38. It is fundamental that an issue not raised before the deciding tribunal

cannot be raised for the first time on appeal. See First Savings Corp. of Tex. 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

undersigned, in an appellate capacity, may not consider and resolve an issue

raised for the first time on appeal. See Sunset Harbour Condo. Ass 'n v.

Robbins , 914 So. 2d 925, 928 (Fla. 2005) ("As a general rule, it is not

appropriate for a party to raise an issue for the first time on appeal.") .

39. The general statements made by Mr. Pressman, Mr. Burch, and the

Willseys ( about traffic, parking, o r the types of students that would attend

the S chool ) did not provide the Board (or the undersigned) with a reasonable

opportunity to consider th ese late raised issues. For example, The Board was

never asked to enforce the Parking Easement's "Uses" sectio n. T he Board

also was not given an opportunity to evaluate whether the permitted use of

"Schools" in Table 2 of section B - 303 was inconsistent with the

Comprehensive Plan. Had these arguments been raised at the Board

Hearing, the Board members could have s ought input or opinions from City

staff or other witnesses before taking a vote on the application . Therefore, the

undersigned declines to address the alleged con flict s with the Parking

Easement or the compatibility with the Comprehensive Plan .

Conditions to the Development Order

40. Appe llants correctly note that the D evelopment O rder does not contain

any conditions that would cap the num ber of students at the School per shift .

According to the Staff Report, based on the square footage o f the proposed

deve lopment site , the School could have as many as 521 students. At the Oral

Argument and in their p roposed f inal o rder , Appellees admit ted there wa s

not hing in the record mandating that the School operate in two shifts, cap

enrollment at 400 students, or limi t each shift to a 200 - student enrollment .

41. Section 4 - 505 D authorizes the undersigned to approve, approve with

conditions, or deny the requested development application. The Code

provides no guidance as to when a hearing officer can approve a developmen t

appl ication and impose additional conditions. Although an appellate court

has wide discretion in disposing of a case, that discretion is not without

limits. C . f. R.J. Reynolds Tobacco Co. v. Prentice , 2019 Fla. App. LEXIS

16147 , at *3 Ï 4 (Fla. 1 st DCA Oc t. 24, 2019) ( ÑIt is a long - standing legal

principle that appellate courts have broad powers to make such disposition of

the case as justice requires . .. [b] ut that discr etion is not without limits. "

(c itation and quotations omitted) ) ; Tracey v. Wells Farg o Bank, N.A. as Tr. for

Certificateholders of Banc of Am. Mortg. Sec., Inc. , 264 So. 3 d 1152, 1160 (Fla.

2d DCA 2019) (" What drives that discretionary decision? The potential

considerations may be myriad, but when the question arises, the appellate

courts' decisions on the scope of remand universally harken to basic

principles of equity and fairness fashioned to the particular facts and

circumstances of the case. ").

42. Her e , Appellants did not meet their burden to overtu rn the Board's

approval of the D eve lopment O rder , but they have raised leg itimate concerns

regarding the Development O rder ' s failure to explicitly require the School to

operate two shift s and cap enrollment at 200 student s per shift . These were

the underlying facts utilized in the Stud ies a nd Staff Repo rt and presented to

the Board. Because there is substantial competent evidence in the record that

the satisf action of the parking requirements is contingent on the School

operating on shift s and a 200 student per shift enrollment limit , the

un dersigned finds these are fair and reasonable condition s to add to the

Development Order . See generally, Delgado v. Ag . for Health Care Admin .,

237 So. 3d 432, 439 (Fla. 1st DCA 2018) ( reversing denial of award, but

finding remand for f urther evidentiary pr oceedings wa s unnecessary given

the ALJ's finding of fact as to calculation of potential amount of award was

" fair, reasonable, and accurate .").

D ETERMINATION

Because Appellants did not meet their burden to show that the decision of

the Clearwater Communi ty Development Board cannot be sustained by

substantial competent evidence in the record or that the decision departs

from the essential requirements of law, the D evelopment O rder subject to the

conditions identified in the City of Clearwater's letter issu ed December 3,

2019 , there in is AFFIRMED, with the additional condition s : (1) the School

operate in two shifts , and (2) the School enroll no more th an 200 students per

shift. Pursuant to Section 4 - 505 D of the Community Development Code, an

affirmation of t he Board' s decision with the additional condition shall be the

final action of the Board.

D ONE A ND O RDERED this 23rd day of April , 2020 , in Tallahassee, Leon

County, Florida.

S

H ETAL D ESAI

Administrative Law Judge

Divis ion 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 23rd day of April , 2020 .

C OPIES F URNISHED :

John L. Dicks, Esquire

Akerman LLP

Suite 1700

401 East Jackson Street

Tampa, Florida 33602

(eServed)

Michael Fuino, Esquire

The City of Clearwater

Suite 600

600 Cleveland Street

Clearwater, Florida 33755

(eServed)

Donna Hulb ert

2461 McMullen Booth Road

Clearwater, Florida 33759

Jay Daigneault, Esquire

Trask Daigneault, LLP

Suite 201

1001 South Fort Harrison Avenue

Clearwater, Florida 33756

(eServed)

Robert L. Chapman, Esquire

Bush Ross, P.A.

1801 North Highland Avenue

Tam pa, Florida 33602

(eServed)

Bryan D. Hull, Esquire

Bush Ross, P.A.

1801 North Highland Avenue

Tampa, Florida 33602

(eServed)

Rosemarie Call, City Clerk

City of Clearwater

Post Office Box 4748

Clearwater, Florida 33758 - 4748

Camilo A. Soto, Assistant Ci ty Attorney

City of Clearwater

Post Office Box 4948

Clearwater, Florida 33758 - 4748

N OTICE O F R IGHT T O J UDICIAL R EVIEW

A party who is adversely affected by this Final Order is entitled to judicial

review pursuant to Section 4 - 505D of the City of Clearwate r Community

Development Code by appealing to the appropriate court by a petition for

certiorari.