STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA CLEARWATER BEACH )

HOTEL, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 82-1374

)

CITY OF CLEARWATER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on June 22, 1982, in Clearwater, Florida.

APPEARANCES

For Petitioner: Harry S. Cline, Esquire

Post Office Box 1669 Clearwater, Florida 33517

For Respondent: Thomas A. Bustin, Esquire

Post Office Box 4748 Clearwater, Florida 33518

BACKGROUND

By this application, Petitioner, Florida Clearwater Beach Hotel, Inc., seeks (1) a vista variance graduating to four feet at the northwest corner of a building, and (2) a height variance to construct a building forty-four feet high on Lots 1-5, Clearwater Beach Park, located at 490 North Gulfview Boulevard, Clearwater, Florida. On April 1, 1982, the application was denied by the City of Clearwater Zoning Enforcement Officer on the ground the request did not conform with Sections 131.101, 131.094, and 131.200, Code of Ordinances.

Pursuant to the provisions of Section 131.016, Code of Ordinances, the decision was appealed to the City of Clearwater Board of Adjustment and Appeal on Zoning on April 5, 1982. The Board considered the request at its April 22, 1982, meeting and denied the same by a 3-2 vote.

The instant case arises from an appeal of that decision by Petitioner on April 29, 1982, pursuant to Section 131.0165, Code of Ordinances. That section provides a process for any party in interest to appeal a decision of the Board to a Zoning Appeal Hearing Officer. Under a contractual agreement entered into by the City of Clearwater and the Division of Administrative Hearings, and authorized by Subsection 120.56(6), Florida Statutes, and Section 131.0165(e)(1), Code of Ordinances, the undersigned Hearing Officer was designated as Zoning Appeal Hearing Officer.

By notice of hearing dated May 27, 1982, the final hearing was scheduled for June 22, 1982, in Clearwater, Florida. At the final hearing, Petitioner presented the testimony of Harry S. Cline and offered Petitioner's Exhibits A-C which were received in evidence. Respondent presented the testimony of John Richter, a member of the City Planning Department. Also testifying in opposition to the application were Charles Finton, Joseph H. Fletcher, and Ann Garris, all members of the general public. Witness Fletcher offered Intervenor's Exhibit 1, which was received in evidence.

Pursuant to the provisions of Section 131.0165(c)(3), Code of Ordinances, the record of the Board's meeting on April 22, 1982, has been made a part of this record. There is no transcript of hearing in this proceeding. Proposed findings of fact and conclusions of law were filed by Petitioner and Respondent on July 6 and 7, 1982, respectively, and have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered immaterial to the results reached, irrelevant to the issues, or not supported by competent and substantial evidence.

Based upon the entire record, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Florida Clearwater Beach Hotel, Inc., is the owner of Lots 1-5 and 49-52 at 490 North Gulfview Boulevard, Clearwater Beach, Florida. Lots 1-5 are located on the southwest corner of Baymont Street and Gulfview Boulevard and front directly on Clearwater Beach. They measure approximately one hundred feet in depth and one hundred forty-one feet at their widest point. Lots 49-52 lie immediately across the street from Lots 1-5 and are approximately one hundred feet south of Baymont Street. They form a square and measure one hundred feet on each side.

   
   

2. Petitioner purchased the property in question in 1978. Prior to that time the two parcels of land enjoyed common ownership and a common development pattern for at least forty years. A twenty-two room facility presently sits on Lots 1-5 and is rented out as ten units. Lots 49-52 are used as a parking lot for the tenants and guests of the facility.

   
   

3. The property is presently zoned CTF-28 (High Density Commercial Tourist Facilities), which provides for a complete range of motel/hotel developments. The major emphasis of the district is tourist oriented with a permitted maximum density of forty-two hotel or motel units per acre.

   
   

4. Petitioner wishes to destroy the existing structure and replace it with a new rectangular-shaped facility containing approximately twenty-two motel or hotel units. Because of the need to comply with flood ordinances, it must be built on pilings or piers. The proposed new structure will consist of four living levels over grade level parking.

   
   

5. Petitioner's property measures less than two hundred feet in depth; therefore, the maximum height of its proposed facility cannot exceed forty feet under existing zoning requirements. Other property owners whose lots exceed two hundred feet in depth may construct buildings not to exceed eighty feet in height.

   
   

6. Under present plans, the proposed hotel will have a forty-four foot height, which will require a four-foot variance. Petitioner contends that the

   hotel cannot be built with smaller dimensions. It also contends that a vista or side setback on the northwest corner of the building is required since present plans call for a small portion of the building to project into the vista area.

   This is due to the north property line running at an angle to the south property line and the proposed building being rectangular in shape. This variance will be contingent upon the City vacating a right-of-way adjacent to Baymont Street, thereby giving Petitioner an additional twenty feet in which to build its new facility.

   
   

7. The City opposes the application on the ground that all criteria necessary to grant a variance have not been met. It specifically points out that the problems encountered by Petitioner are not unique to Petitioner alone, but are hardships common to all area owners.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.65(6), Florida Statutes, and Section 131.0165, Code of Ordinances.

   
   

9. Petitioner seeks two area variances from existing zoning regulations. An area variance permits deviation from a zoning restriction governing the manner in which a certain use is accomplished on the property in question. See Subsection 163.170 (8), Florida Statutes.

   
   

10. The City of Clearwater has established certain criteria that must be met in order for a variance to be granted. Subsections 131.016(3)(1)a-d, Code of Ordinances. They require a showing by the applicant:

    
    

    1. That special conditions and circumstances 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.

    4. 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.

       
       

       If any of the criteria are not met, the request must be denied. City of Naples

       v. Clam Court Marina Trust, 413 So.2d 475, 477 (Fla. 2d DCA 1982).

       
       

11. Petitioner purchased the property in question in 1978. It obviously did so with the knowledge that certain zoning restrictions applied. Among these were a height restriction on buildings which applied to all lots having a depth of less than two hundred feet, and vista requirements on all lots. As such, any "hardship" that Petitioner may have was self-created, and it may not now reap an

    advantage created by its own conduct. Green v. City of Miami, 107 So.2d 390 (Fla. 3d DCA 1959); Josephson v. Autrey, 96 So.2d 784 (Fla. 1957). This being so, the criteria set forth in paragraph (c) cannot be met.

    
    

12. By the same token, there are no special conditions and circumstances peculiar to the property involved. Other owners in the district having lots of less than two hundred feet in depth are bound by the same height and vista requirements. The fact that the two parcels of land are split by Gulfview Boulevard is not unique, for all property in the area abuts the same street. Therefore, the conditions in paragraph (a) have not been met.

    
    

13. During the course of the hearing, Petitioner contended that the parking level is not a "story" within the meaning of the code, and therefore the structure should be viewed as a four-story building rather than five, and measured from the first living level (or the second floor) for compliance with the code. However, it presented no authoritative support for this unique proposition. The argument of the City is deemed to be more persuasive, and Petitioner's contention is hereby rejected. See Section 131.006, Code of Ordinances; Selvette v. Building Inspector of Revere, 233 NE 2d 915, 918 (Mass.).

    
    

14. There being a failure to meet the criteria set forth in the zoning code, the requested variances should be denied. City of Naples, supra.

NOW, THEREFORE, IN CONSIDERATION OF THE ABOVE, IT IS

ORDERED that the application of Florida Clearwater Beach Hotel, Inc., for two variances on its property at 490 North Gulfview Boulevard be and it is hereby DENIED.

DONE AND ENTERED this 22nd day of July, 1982, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 22nd day of July, 1982.

COPIES FURNISHED:

Harry S. Cline, Esquire Post Office Box 1669 Clearwater, Florida 33517

Thomas A. Bustin, Esquire Post Office Box 4748 Clearwater, Florida 33518

Lucille Williams City Clerk

112 South Osceola Avenue Clearwater, Florida 33516

Docket for Case No: 82-001374RX

Orders for Case No: 82-001374RX