STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUTH M. WALSH and BARBARA BEAKES, )

)

Petitioners, )

)

vs. ) CASE NO. 81-257

)

CITY OF CLEARWATER, )

)

Respondent, )

and )

)

RAY AND CHRISTINE MAYER, )

)

Intervenors. )

)

ORDER

Pursuant to notice, a hearing was held on March 25, 1981. This hearing was conducted in the Commission Chambers, City Hall, 112 South Osceola Avenue, Clearwater, Florida.

APPEARANCES

For Petitioners: Nugent M. Walsh, Esquire

Suite 204, Legal Arts Building

501 South Fort Harrison Avenue Clearwater, Florida 33516

For Respondent: Thomas A. Bustin, Esquire

City Attorney

Post Office Box 4748 Clearwater, Florida 33518

For Intervenors: Harry S. Cline, Esquire

First National Bank Building Post Office Box 1669 Clearwater, Florida 33517

ISSUES

The issues presented by this case concern the entitlement of the Intervenors, Mr. and Mrs. Mayer, to be granted zoning variances, in keeping with the provisions of Section 131.016(e), City of Clearwater Building and Zoning Regulations, to vary from the conditions set forth in Section 131.044, City of Clearwater Building and Zoning Regulations, dealing with the area and dimension regulations for RS-50, Single-Family Residents. In particular, the Intervenors would request that the front setback line be reduced from 25 feet to roughly

1. feet and that a variance concerning the area covered by the dwelling be increased from 25 percent to 33.7 percent. 1/

   FINDINGS OF FACT

   
   

   1. On November 12, 1980, the Intervenors requested that they be granted the variances set out in the Issues Statement of this order. The terms and details of that variance application may be found as part of the City's Composite Exhibit No. 1, admitted into evidence. A public hearing was conducted on this request and that hearing was held on January 15, 1981. The taped transcript of that hearing may be found as the City's Exhibit No. 2, admitted into evidence. Following that hearing, a decision was made by the Board of Adjustment and Appeal for the City of Clearwater, Florida, to grant the variance requests. The Petitioners in this cause were opposed to that grant of variance and requested a hearing. The matter was forwarded from the City of Clearwater to the Division of Administrative Hearings and on March 25, 1981, a hearing de novo was conducted to consider this dispute.

      
      

   2. At the time of the hearing, the Petitioner, Barbara Beakes, was presented as a witness and identified the claim of the Petitioners as being one of opposition to the project in question which requested variances, for reason that it obscured her view of the water; caused a decrease in the value of her property and in addition to her attorney, expressed opposition to the area of coverage to be involved with the proposed building project of the Intervenors and to the front setback line at issue.

      
      

   3. The Intervenors, Ray and Christine Mayer, who reside at 940 El Dorado Avenue, Clearwater Beach, Florida, through their project, would desire to construct a garage which would be approximately 15.4 feet from the front property line as opposed to the 25 foot front setback line required of the City of Clearwater. The construction in question would not advance the building line in the direction of the street. Moreover, the distance from the street to the front of the building had originally been 13.1 feet when present front setback lines were not in effect. The Intervenors have also requested what they deemed to be a variance from the requirement of maximum lot coverage by their residence, varying it from 25 percent to the 33.7 percent proposed by their construction. As stated in a preceding footnote, it was determined at the hearing that the new requirement for maximum lot coverage is 42 percent and it having been agreed by the parties that the area coverage in question is only

      33.7 percent, the necessity for variance on that issue no longer exists.

      
      

   4. Intervenors' Exhibits Nos. 1, 2, 3, 5, 6, 7 and 8, are photographs depicting the nature of the structure in question in various stages of construction and modification.

      
      

   5. Notwithstanding the Petitioner Beakes' complaint that her view was obstructed by the construction, there was no specific proof related to the clear space requirement of Section 131.200, City of Clearwater Building and Zoning Requirements, and in fact her view is already obstructed by a fence which now exists on the Mayers' property and the constriction proposed by the Mayers would not materially change that circumstance.

      
      

   6. The proof on the issue of decreased property value offered by Petitioner Beakes does not seem to be a specific criterion addressed by the variance ordinance.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in keeping with Section 120.65(6),

      Florida Statutes, and Section 35.10, Code of Ordinances of the City of Clearwater.

      
      

   8. Section 131.044(5), requires that the main building in an RS-50, Single-Family Residential area be located 25 feet from the street on the front side. The proposed project of constructing the garage would not place that structure which now exists closer to the street, but the construction would be located within approximately 15.4 feet of the street. Consequently, it is not in keeping with that provision's requirement. In order to go forward with this

      construction, it would be necessary for the Intervenors to be granted a variance within the meaning of Section 131.016(e), City of Clearwater Building and Zoning Regulations. That provision states:

      
      

      (e) Variances. The board shall have power in specific cases, after due notice, inves- tigation, and hearings on the aforesaid, where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of this chapter, to determine and vary any

      such provisions in harmony with the general purposes and intent of this chapter so that the public health, safety and general welfare may be secure and substantial justice done.

      A variance from the terms of this chapter shall not be granted by the board unless and until:

      1. A written application for a variance is submitted stating substantially that certain of the following exist:

         1. That special conditions and circum- stances exist which are peculiar to the land, structure or building involved and which are not applicable to other lands, buildings or structures in the same district.

         2. That liberal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this chapter.

         3. That the special conditions and circumstances referred to in subsection

         a. above, do not result from the actions of the applicant.

         d. That granting the variance requested will not confer on the applicant any special privilege that is denied by

         this chapter to other lands, structures or dwellings in the same district.

         No nonconforming use of neighboring lands, structures or buildings in the same district, and no permitted use of land, structures or buildings in other districts shall be con- sidered grounds for the issuance of a variance.

      2. Notice of public hearing (see subsec- tion (d);

      3. The board shall further make a find- ing that the reasons set forth in the application justify the granting of the variance, and that the variance is the minimum variance that will make possible the reasonable use of the land, building

         or structure.

      4. The board shall further make a finding that the granting of the variance will be

         in harmony with the general purpose and intent of this chapter, will not be injurious to the neighborhood, or otherwise detrimental to the public welfare.

         In granting any variance, the board may prescribe appropriate conditions and safe- guards in conformity with this chapter.

         Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a viola- tion of this chapter and punishable as pro- vided by this chapter. Under no circumstances [sic] shall the board grant a variance to permit a use not generally or by special exception permitted in the district involved, or any use expressly or by implication pro- hibited by the terms of this chapter.

         
         

   9. Because of the nature of the home in question, there are practical difficulties with attempting to comply with the front street setback line and to cause that compliance would promote unnecessary hardship on the part of the Mayers. The granting of this variance will not confer special privilege on the applicant denied by this chapter to other lands existing and structures and dwelling's in the same district. The setback line is not being reduced. The granting of the variance would be in harmony with the general purpose and intent of the zoning regulation and would not be injurious to the neighborhood or detrimental to the public welfare.

      
      

   10. The proof offered by the Petitioner Beakes, directed to the propriety of the variance does not suffice to alter the opinion that a variance should be granted on the question of a reduction from 25 feet to approximately 15.4 feet.

       
       

   11. The requested variance in terms of area coverage of the dwelling set forth in Section 131.044(6), having been increased from 25 percent to 42 percent and it having been stipulated between the parties that the dwelling in question with the improvements would only cover 33.7 percent, there no longer exists a necessity for a variance on that item.

Based upon a consideration of the foregoing Findings of Fact and Conclusions of Law, it is

DETERMINED that Ray Mayer and Christine Mayer should be granted a variance from the requirements of the front street setback line from 25 feet to approximately 15.4 feet necessary to achieve their present construction and that those persons be entitled to take the necessary steps to obtain building permits to construct the said addition and to do so within the time prescribed by law,

the failure to make timely application for building permit thereby promoting the expiration of the variance. 2/

DONE and ENTERED this 21st day of April, 1981, in Tallahassee,

Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1981.

ENDNOTES

1/ It should be noted, that by ordinance, lot coverage by the dwelling has been increased from 25 percent to 42 percent since the time of the initial application for variance and in view of that fact and the fact that the dwelling does not cover more than 33.7 percent, the parties have agreed that there is no continuing dispute on the question of the variance related to maximum lot coverage by the dwelling. Nonetheless, a finding will be reached on this matter because the issue remained for consideration at the time of the hearing.

2/ The Intervenors in the person of their counsel have provided proposed Findings of Fact, Conclusions of Law and a Recommended disposition in this cause. Those proposals, conclusions and recommendation have been reviewed prior to the entry of this order and to the extent that they are consistent with the order, they have been utilized. To the extent the proposals, conclusions and recommendation are inconsistent with the order, the are hereby rejected.

COPIES FURNISHED:

Nugent M. Walsh, Esquire

Suite 204, Legal Arts Building

501 South Fort Harrison Avenue Clearwater, Florida 33516

Thomas A. Bustin, Esquire City Attorney

Post Office Box 4748 Clearwater, Florida 33518

Harry S. Cline, Esquire First National Bank Building Post Office Box 1669 Clearwater, Florida 33517

Docket for Case No: 81-000257

Orders for Case No: 81-000257