Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government:  ZONING – Essential Requirements of the Law – Misapplication of correct law does not amount to departure from essential requirements of the law; instead, there must be application of incorrect law – Development Board did not apply incorrect law – in reviewing substantial competent evidence, court is limited to examining evidence in support of Board’s decision – even though evidence existed contrary to Board’s decision, substantial competent evidence also existed to support the Board’s decision – Petition denied.  Williams v. City of Clearwater, No. 09-000029AP-88A (Fla. 6th Cir. App. Ct. February 26, 2010).














                        Petitioners,                                         Appeal No. 09-000029-88A

                                                                                    UCN 522009AP000029XXXXCV












            THIS MATTER is before the Court on the Petition for Writ of Certiorari of several residents of the Sand Key area of Clearwater, Florida.  These residents seek review of the Clearwater Community Development Board’s (Board) flexible standard approval of Respondent Belleview’s proposal to construct a hotel/restaurant facility on Sand Key.  The Board’s action was upheld in an administrative review by Administrative Law Judge Robert E. Meale, who was acting as a hearing officer pursuant to sections 4-501.B.1 and 4-505 of the Clearwater Community Development Code (Code).  Having reviewed the Petition, Response, and Reply; the substantial Record; and being otherwise fully advised, the Court finds that the Petition must be DENIED because the Board did not depart from the essential requirements of the law and its decision was supported by substantial competent evidence.

            Belleview is currently undertaking a major renovation of the landmark Belleview Biltmore Hotel in the Town of Belleair.  As part of this renovation, Belleview desires to construct a 38-room boutique hotel, the Cabana Club, on Sand Key in the City of Clearwater.  Belleview plans to market the Cabana Club in conjunction with the Biltmore so that its guests will have the opportunity to stay on Gulf-front property. 

            The Sand Key property currently houses a restaurant of approximately 7,000 square feet that has been vacant since 1998.  The Belleview plans to reduce this restaurant to about 5,000 square feet and have about 165 seats distributed among the restaurant proper, a grill area, and a pool area.  It also plans to eliminate banquet facilities in the current restaurant.

            In Belleview’s proposal, it presented the restaurant as an accessory to the Cabana Club under the terminology of the Code.   The Code defines an accessory structure as

a building or structure which: 1) is subordinate to and serves a principal building; 2) contributes to the comfort or necessity and convenience of the users or occupants of the principal building; 3) is located on the same lot as the principal building and is not attached to such building and (4) is detached from principal structure.


Clearwater, Fla., Comm. Dev. Code § 8-102.


Further, the Code imposes the following standards on accessory uses:


1.   The accessory use and structure is subordinate to and serves an established and conforming principal use.

2.   The accessory use and structure is subordinate in area, extent, and purpose to the principal use.

3.   The accessory use and structure contributes to the comfort, convenience or use of the principal use.

4.   The accessory use and structure is located on the same property as the principal use and located behind the front edge of the principal structure.

5.   The accessory use(s) and structures, unless otherwise allowed as a permitted use in the zoning district, shall not cumulatively exceed ten percent of the gross floor area of the principal use. Such structures may be permitted up to 25 percent of the gross floor area of the principal use through a Level One (flexible standard) approval process. Gross floor area of the principal building includes the floor area of any attached garage or carport.


Id. § 3-210.B.



            Accessory status is at the heart of the parties’ dispute because under the Code, accessories to hotels do not require any additional parking beyond that required for the hotel itself (in this instance, one space per hotel room, or 38 spaces).  Code Table 2-704.  However, if a restaurant is considered a principal use, it must have its own parking.  Id.  Belleview’s proposed parking lot has 56 spaces, and it claims it will offer valet parking if necessary to increase the lot to 67 spaces.  Petitioners maintain, however, that if the restaurant were treated as a second principal use of the property under the Code, the lot would need to have up to 75 additional spaces beyond the 38 for the hotel itself.

            In addition to regulating the number of parking spaces for the hotel/restaurant, the Code also imposes a stacking requirement—that is, a minimum distance between the public roadway and the first aisleway or parking spot of a lot to lessen the possibility that cars will back out onto the roadway.   For county roads, the minimum distance is 40 feet.[1]  However, the Code authorizes the Board to approve a lesser distance if supported by a traffic study.  Id. § 3-1406.B.6.

            The Clearwater Planning Department (Department) reviewed a substantial amount of documentation from the developers, including two traffic studies and a parking study.  It then recommended approval of the project in a report prepared by Planner III staff member Wayne Wells.  This report did not address the stacking issue in any detail other than to note that the project met all parking and traffic requirements.  However, regarding accessory use, the report included the following:

The Planning Department has determined the restaurant of 4,981 square feet to be accessory to the hotel.  The determination is based on the relationship of the Cabana Club with the Belleview Biltmore Hotel, where operation and marketing will be by a common hotel operator.  . . . To ensure the maintenance of the operational, management and marketing characteristics with the Belleview Biltmore Hotel in the Town of Belleair, a deed restriction, acceptable to and enforceable by the City, should be recorded in the public records requiring common operation and management by the same hotel operator prior to the issuance of any permits.  Should this common operation and management be discontinued, this site should be required to reduce the size of the accessory restaurant to a square footage more in line with a 38-room /unit hotel.


            Further, in the delineated conditions of approval at the close of the report, the Department states that if common operation is discontinued, “this site shall be required to reduce the size of the accessory restaurant to a square footage more in line with a 38-room/unit hotel, acceptable to the Planning Department.”

The Board conducted an extensive public hearing on this project on September 16, 2008.    During the hearing, Wells read the common management provision into the Record and noted that if the relationship ceased between the Biltmore and the Cabana Club,  “they may have to take and reduce the restaurant to what the required parking is based on a separate free-standing—or not separate, but another primary use on the property.”  However, he also testified that since the Code has no specific figures on what constitutes an accessory use, the Planning Department makes that determination.

Richard Heisenbottle, the project architect, also testified that while the restaurant might be larger than typical for a 38-room hotel, “there is no such thing as a typical 38 room hotel.”  He also noted that the size of the restaurant was well within 10 to 25 percent of the principal use, as required by section 3.210.B.5. of the Code.

Vicky Gagliano, a parking expert who conducted a study for the Cabana Club on the Biltmore’s behalf, testified that even at peak hours, parking industry standards indicated that the combined demand from the Cabana Club and restaurant would still be only 38 spaces.  She also noted that for unusual demand, valet parking could increase the lot to 67 spaces, and a shuttle would be available from the Biltmore.  Hence, the proposed 56-space lot would be more than adequate.

However, Sue Murphy, a land planning expert retained by the Petitioners, disputed that the parking would be sufficient.  She also testified that while other high level beach resorts in the area had an average of about one restaurant seat per hotel room, the Cabana Club restaurant would have over four seats per hotel room.   Murphy maintained that this large proportion, coupled with the proposed condition requiring joint management, established that the restaurant could not be regarded as an accessory of the Cabana Club standing alone.

In contrast to the accessory issue, little testimony was given regarding the stacking issue.  All Department review documents and testimony from the Planning Department and Biltmore’s parking and traffic experts simply stated that the proposal was in compliance with various provisions pertaining to parking and traffic.  However, Murphy testified that the stacking space would be only about 20 feet, but the Code requires a minimum distance of 40 feet.  She did not go into any further detail on this issue, though.

Finally, on cross-examination, the Petitioners’ attorney attempted to ask Vicky Gagliano about a similar parking study she had done for the Biltmore itself, to which she had referred in her direct testimony.  However, when the Petitioners’ attorney attempted to refresh her recollection with a copy of the study, the Board’s attorney objected that since the Board apparently had no chance to evaluate the Biltmore study, Gagliano could not be questioned about it.  The assistant city attorney and the Biltmore’s attorney also objected, arguing that the Biltmore study was outside the scope of direct.  While Petitioners’ attorney argued that evidentiary rules allowed him to use Gagliano’s own report to refresh her memory, the Board heeded its attorney’s advice and disallowed use of the Biltmore report.

At the close of the hearing, the Board unanimously approved the project with a list of conditions, including the one concerning the ongoing relationship between the Biltmore and the Cabana Club.  Petitioners then appealed this decision under section 4-505 of the Code, which provides for review by a hearing officer.  Clearwater contracts with the Office of Administrative Appeals for this service, but the Administrative Law Judge is acting as a hearing officer under the Code, not as an ALJ under the Administrative Procedures Act, and the Act does not apply.  See Soboleski v. City of Clearwater, No. 03-1152CI-88B (Fla. 6th Cir. App. Ct. Dec. 8, 2003).

By decision dated April 13, 2009, ALJ Robert E. Meale upheld the Board’s action, finding that substantial competent evidence existed to support the Board’s decisions and that the Board did not depart from the essential requirements of the law.[2]  While he acknowledged that the Board had impermissibly considered the Biltmore in evaluating whether the restaurant was an accessory, he found that the Code could be interpreted to give accessory status to the restaurant without regard to the Biltmore.  He also found that substantial competent evidence existed to support the conclusion that the restaurant was an accessory.

Regarding stacking, he noted the ambiguity on Gulf Boulevard’s status but found that the prevalent assumption was that Gulf Boulevard was a county road.  He found that at least one document allowed for the conclusion that the stacking distance was at least 40 feet, and that furthermore, the Board could have decided to allow a shorter stacking distance based on the testimony of traffic parking experts and the proposed valet parking.

Although Petitioners did not raise the Board’s refusal to allow them to ask Vicky Gagliano about her Biltmore parking study, Judge Meale commented on this subject.  He noted that although the use of the earlier study was “clearly not improper, nor was it outside the scope of direct examination, the CDB complied with the advice of its counsel and excluded the material.” 

            This Court’s review of the administrative action below is limited to whether Petitioners were afforded procedural due process, the essential requirements of law were observed, and the Board’s action is supported by competent substantial evidence.  See Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995)(setting forth the standard of certiorari review of administrative action).   Petitioners have raised no due process claims.

Concerning essential requirements of the law, the Court must consider whether an error occurred and, if so, whether such error resulted in a gross miscarriage of justice.  See Haines, 658 So. 2d at 527; see also Housing Auth. v. Burton, 874 So. 2d 6, 8 (Fla. 2d DCA 2004) (explaining that in determining whether there has been a departure from the essential requirements of law, the appellate court should focus on the seriousness of a legal error rather than the mere fact that an error occurred).  A misapplication of the correct law is not enough to deviate from the essential requirements of the law.  Instead, the necessary departure requires “‘inherent illegality or irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice.  The writ of certiorari properly issues to correct essential illegality but not legal error .’”  Haines City, 658 So. 2d at 527-28 (quoting Jones v. State, 477 So. 2d 566, 569 (Fla. 1985) (Boyd, C.J., concurring specially).

            Competent substantial evidence has been described as evidence that is “‘sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.’”  See Department of Highway Safety & Motor Vehicles v. Trimble, 821 So. 2d 1084, 1087 (Fla. 1st DCA 2002)(quoting De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).  The Court is not entitled to reweigh the evidence or substitute its judgment for that of the agency.  See id.   

            Also, the certiorari standard of review requires this Court to defer to the City’s “superior technical expertise and special vantage point” in its policy determinations and factual findings.  Dusseau v. Metropolitan Dade County Bd. of County Comm’rs, 794 So. 2d 1270, 1276 (Fla. 2001).  As Dusseau further clarified,

The issue before the court is not whether the agency’s decision is the “best” decision or the “right” decision or even a “wise” decision, for these are technical and policy-based determinations properly within the purview of the agency.  The circuit court has no training or experience—and is inherently unsuited—to sit as a roving “super agency” with plenary oversight in such matters.




            As the essential requirements and substantial evidence prongs often involve the same arguments and evidence, these prongs will be discussed together with regard to both the accessory and stacking issues.  First, however, the Court will address the cross-examination issue, which was raised under essential requirements only.


I.             Denial of Opportunity to Cross-Examine Parking Expert


            Petitioners claim that the Board departed from the essential requirements of the law by denying their attorney the opportunity to cross-examine the development’s parking expert, Vicky Gagliano, about a similar parking study she had done for the Belleview Biltmore.  Petitioners note that the Florida Evidence Code allows the use of any document to refresh a witness’s recollection, see Fla. Stat. § 90.613, and it is indeed the present recollection of the witness that is the evidence—not the document itself.  K.E.A. v. State, 802 So. 2d 410, 411 (Fla. 3d DCA 2001).  Petitioners also argue that since Gagliano made reference to the Biltmore parking situation in her direct testimony, the study was in no way outside the scope of such testimony.

            Respondents reply that since Petitioners did not raise this argument before the hearing officer, they are barred from raising it in the instant Petition.  However, this Court has made clear that the Code’s requirement of administrative review does not abrogate this Court’s first tier certiorari review, which is granted to Petitioners as of right.  See Soboleski, n.2.  Petitioners did object at the hearing to having their cross-examination barred, and the Court finds this sufficient to invoke its review.

            Although the Court agrees with Petitioners that the Board was incorrectly advised on the rules of evidence, this mistake did not result in any miscarriage of justice.  The Record indicates that Petitioners wanted to ask Ms. Gagliano about the Biltmore parking study because she had apparently concluded that at any given time, the Biltmore guests would occupy about 268 parking spaces there.  Presumably, Petitioners wanted to use that information to argue that many more cars might be driven from the Biltmore to the Cabana Club than the Cabana Club could accommodate.

            However, the Record also shows that the Board members were skeptical about how many Biltmore guests would choose a shuttle or water taxi—two transportation options the developers proposed to alleviate car traffic—over their cars.  In fact, the Board chairman stated his concern that the approximately 300 members of the Belleview Biltmore Golf Club would not drive back to the Biltmore itself to take a shuttle, but would instead just drive on over to the Cabana Club.

            Therefore, although the Board’s refusal to allow reference to the Biltmore parking study was in error, this did not amount to a departure from the essential requirements of the law.  Instead, Board members’ comments showed that the Board was aware of the potential for a large number of drivers from the Biltmore.   Thus, any testimony elicited from Ms. Gagliano on the Biltmore study would have been cumulative on this potential.

            II.        Accessory Status of the Restaurant

            In arguing that the Board departed from the essential requirements of the law by deeming the restaurant an accessory under the Code, Petitioners stress the condition requiring the downsizing of the restaurant if the Cabana Club and Biltmore parted ways.  In Petitioners’ view, this condition establishes that the Board regarded the restaurant as an accessory only if the Biltmore and Cabana Club were lumped together as the dominant use.  However, they could not be lumped together under the Code because it requires that the dominant and accessory use be on the same property.   Code §§ 3-201.B., 8-102.

Judge Meale acknowledged that, to the extent that the Board considered the Biltmore in its accessory analysis, it erred.  However, he found that “even if this misconception of law had permeated the CDB proceeding, and it did not, it would not have been a departure from the essential requirements of the law because it would not have resulted in a miscarriage of justice.”  Instead, he determined that even eliminating the Biltmore from the analysis, the restaurant could qualify as an accessory use.

This Court agrees that in considering the Biltmore in its evaluation of whether the restaurant was an accessory, the Board incorrectly applied the relevant Code provisions.  However, the Court disagrees with Petitioners that this misapplication was sufficient to constitute a departure from the essential requirements of the law.  While Petitioners cite several cases which they claim to support their position, a review of these cases shows that the lower tribunal did not misconstrue an applicable provision but instead applied the incorrect provision of law.  See Verizon Wireless Personal Commc’ns, L.P. v. Sanctuary at Wulfert Point Cmty. Ass’n, Inc., 916 So. 2d 850, 855 (Fla. 2d DCA 2005) (lower tribunal applied incorrect legal provision); Southern Group Indem., Inc. v. Humanitary Health Care, Inc., 975 So. 2d 1247, 1250 (Fla. 3d DCA 2008) (court granted certiorari not because it disagreed with circuit court’s interpretation of the law, but because the law on which the circuit court relied was inapplicable); City Nat’l Bank v. City of Tampa, 2005 WL 4891057 (Fla. 13th Cir. Ct. App. Div. 2005) (board impermissibly determined that one code provision trumped another).

The only case Petitioners cite that arguably supports their position is Maturo v. City of Coral Gables, 619 So. 2d 455 (Fla. 3d DCA 1993), in which the district court granted certiorari because the circuit court had incorrectly applied a long line of case law on what constituted a hardship for purposes of receiving a variance.[3]   However, in so doing, the district court recognized that it might be criticized for impermissibly basing its decision on its disagreement with the circuit court’s evaluation of the evidence.  Nonetheless, the court stated, “To allow a decision to stand where the correct law was wrongly utilized, simply because that particular law was itself applicable, does not provide a valid or just reason sufficient to support a legal decision.”  Id. at 457.

Thus, the district court itself noted that its ruling was subject to disagreement.  Also, on second-tier certiorari review, the district court was prohibited from examining whether substantial competent evidence supported the circuit court’s decision.  Stevenson v. Department of Highway Safety & Motor Vehicles, 17 So. 3d 1260, 1261 (Fla. 2d DCA 2009).  Therefore, this Court does not find the reasoning of Maturo persuasive.

In the present matter, while there was a deviation from the law in considering the Biltmore with the Cabana Club as a principal use, the Board did apply the proper code provisions, and the Court does not find the Board’s error to be so egregious or fundamental so as to constitute a departure from the essential requirements of the law.  See Burton, 874 So. 2d at 9.  Instead, as discussed by Judge Meale, the restaurant could qualify under Code provisions as an accessory regardless of the Biltmore.  Judge Meale focused on the Code’s requirement that the restaurant be subordinate in “area, extent and purpose” to the principal, and noted that “extent” was the only problematic term.  However, given the lack of definitions in the Code, Judge Meale concluded that “extent” could mean something as simple as extent of hours, and presumably the restaurant’s hours would be subordinate to—that is, lesser than—those of the Cabana Club.

            Therefore, the Board did not depart from the essential requirements of the law in deeming the restaurant an accessory use.  Likewise, there is substantial competent evidence to support the Board’s decision that the restaurant is an accessory use. 

Petitioners advance a valid argument that given the size and seating of the restaurant relative to the Cabana Club, the restaurant cannot logically be deemed an accessory to the Cabana Club standing alone.  However, on certiorari review, this Court is limited to examining the adequacy of evidence in support of the Board’s decision and may not reweigh the pros and cons of conflicting evidence.  Dusseau, 794 So. 2d at 1276.  Focusing on the evidence supporting the Board’s decision, the Court finds it to be adequate.

On cross-examination, Petitioners’ counsel tried to get both Wayne Wells and Richard Heisenbottle to concede that without the Biltmore, the restaurant could not be considered an accessory.  However, both of these witnesses testified that the Code was rather open-ended on what constituted an accessory use and that the restaurant did qualify as an accessory to the Cabana Club on its own.

Also, noting the Code provision that an accessory use could be approved at up to 25 percent of the gross floor area of the dominant use, Heisenbottle testified that the restaurant was just over 10 percent of the Cabana Club.  Petitioner argues that this provision does not apply because it is for accessories that are otherwise not allowed by the Code, and the restaurant would otherwise be allowed.  However, a more logical reading of this provision is that if the accessory is not an otherwise allowed use, the City wanted to cap its size at 25 percent.  For allowed uses, the maximum size would be left to the discretion of the Board.

Therefore, while Petitioners have raised valid questions about whether the Biltmore is the true dominant property in this case, this Court cannot conclude that the Board lacked substantial competent evidence to support its decision. 

III.       Stacking Requirements

Concerning stacking, Petitioners’ evidence showed the distance from Gulf Boulevard to the first parking space or aisleway is just 23 feet, well short of the 40 feet required by the Code.  Their land use expert also testified that the distance was approximately 20 feet.  Petitioners argue that since the Respondents offered no evidence to counter their expert’s testimony, there was no substantial competent evidence to support a decision that the stacking requirement had been satisfied.

However, while the Respondents’ witnesses did not expressly address stacking, an expert in civil engineering testified that the traffic circulation for the project met all Code requirements.  Certainly, flow could be regarded to encompass the flow from the public roadway into the lot, and as one Board member noted after hearing all the evidence, “the flow of traffic is going to be corrected.” 

Also, section 3-1406.B.6. of the Code expressly allows a reduction of the stacking area if supported by a traffic study. Two traffic studies and a parking study were submitted by Respondents, and since the Planning Department never mentioned any stacking concerns in its report to the Board, it could reasonably be assumed that the Department was satisfied with the stacking situation even if it did not allow for a 40-foot distance.

Therefore, although the Board could have addressed the stacking issue in more detail, there was substantial competent evidence to support the conclusion that the stacking requirements were satisfied.  Likewise, it does not appear that the Board departed from the essential requirements of the law, particularly when it could reduce the stacking distance if supported by a parking study.

            Therefore, it is hereby

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is DENIED.

            DONE AND ORDERED in Chambers in St. Petersburg and Clearwater, Pinellas County, Florida, this ____ day of ___________________, 2010.

Original order entered on February 26, 2010 by Circuit Judges Pamela A.M. Campbell, George W. Greer, and John A. Schaefer.

Copies to:


Robert E. Meale

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-3060


Leslie K. Dougall-Sides, Esq.

City of Clearwater

P.O. Box 4748

Clearwater, FL  33758-4748


Alan S. Zimmet, Esq.

2570 Coral Landings Blvd., Suite 201

Palm Harbor, FL  34684


Thomas E. Reynolds, Esq.

535 Central Ave.

St. Petersburg, FL  33701


[1] There is some confusion in the Record over whether Gulf Boulevard, the public roadway at issue here, is a state or county road.  If a state road, section 3-1406 of the Code requires the minimum distance to be that set forth in the Florida Department of Transportation Driveway Handbook.  That handbook was never made a part of the Record.  However, the City of Clearwater concedes that during the review process, it treated Gulf Boulevard as a county road.  Therefore, this Court will evaluate the stacking issue under the 40 foot distance.

[2] Under the Code, the hearing officer’s review may not consider due process.  Code § 4-505.C.

[3] The circuit court found a hardship justifying a variance because the landowner, who owned contiguous lots in Coral Gables and unincorporated Dade County, had signed an agreement that he would not develop the Dade County lots if Coral Gables granted him a variance.  However, the district court noted that the legal standard for hardship requires a condition peculiar to the property rather than one created by the owner’s conduct or expectations.