Judges: STEPHEN F. DEAN
Agency: Contract Hearings
Latest Update: Nov. 08, 1982
Summary: The sole issue is whether Petitioner's application for a variance meets the criteria set forth in Section 131.016(e) of the Clearwater City Ordinances. Both parties submitted proposed findings of fact and conclusions of law. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based on the most credible evidence, or not being a finding of fact.Deny Clearwater zoning variance--condit
Summary: The sole issue is whether Petitioner's application for a variance meets the criteria set forth in Section 131.016(e) of the Clearwater City Ordinances. Both parties submitted proposed findings of fact and conclusions of law. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based on the most credible evidence, or not being a finding of fact.Deny Clearwater zoning variance--condition resulted from the actions of the petitioner and granting would result in special privileges for petitioner.
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6.. The lots within the subdivision, including the subject lot, were platted by Petitioner.
Petitioner submitted a site plan and plans and specifications in application for a building permit to construct a home on the subject lot. Certain of the building plans and specifications show an optional hot tub. From the plans, it is unclear whether the construction would include the option. The plans also call for construction of a swimming pool.
Respondent processed Petitioner's application for a building permit for a single-family dwelling on the subject lot.
Respondent's zoning enforcement officer stamped approval on Petitioner's site plan (Petitioner's Exhibit "A", page 3), noting on the approval that a minimum side setback is six feet and an additional permit(s) would be required for pool and enclosure.
Petitioner constructed a single-family dwelling on the subject lot pursuant to the plans and specifications for the home which it had submitted to Respondent, to include a wooden deck extending from the side of the model. The deck encircled a hot tub, which in turn was encircled by a fence. The deck, hot tub and fence extend to within one foot of the side property (set-a back) line.
The fence is six feet high, but because the house is on a grade the fence measures approximately nine feet from the ground level. The maximum allowable height for a fence, absent a variance, is six feet above ground level.
After construction of the dwelling, hot tub and fence, Respondent cited Petitioner for violation of the building setback requirements of the Code of Ordinances of the City of Clearwater, Section 131.033.
The value of the improvements is between $6,500 and $7,000, and the cost of their removal and re-landscaping, etc., is approximately $3,000.
Petitioner applied for a variance from the Board of Adjustment and Appeals on Zoning to permit the hot tub, decking and enclosure within the side setback area and for a variance to permit a fence in excess of the permitted height. Both variances were denied.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of this cause and the parties thereto pursuant to Section 120.65(6), Florida Statutes, and Section 131.0165(c), Clearwater Code of Ordinances.
Section 131.016(e) of the Clearwater Code of Ordinances controls the grant of variances. It provides that a variance will be granted if:
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;
Literal 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;
The special conditions and circumstances referred to in subsection (a) above do not result from the actions of the applicant; and
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.
There is nothing peculiar about the subject land or structure which would entitle the property to special consideration. The only peculiarity regarding the lot is that it is too small to accommodate the house, swimming pool, hot tub and decking that the Petitioner has placed on the property. Petitioner had the option of building a smaller home on the lot, building the home on a larger lot, or omitting the hot tub in the model. The problem which the Petitioner faces is a self-created hardship.
If the variance were granted, it would confer upon the Petitioner a special privilege denied to other lands or structures within the same zoning district. Other property owners in an RS-75 district are not entitled to construct a pool enclosure to include a hot tub installation within one food of the setback line. There is no showing that Petitioner should be entitled to special treatment.
Petitioner's only argument in favor of a variance is that Respondent approved building plans submitted by the Petitioner showing a hot tub to be constructed within the side setback area and Petitioner installed the hot tub in reliance on the Respondent's approval. As a matter of fact, it is not at all clear that Respondent approved construction of a hot tub within the side setback area. The site plan upon which zoning approval is stamped does not clearly show Petitioner's intent to construct on the lot in question the optional hot tub (Petitioner's Exhibit "A", page 3). The approved plan is annotated to show that a minimum six-foot setback is required along the side of the house and that additional permit(s) would be required for a pool and enclosure.
The Respondent's alleged approval is at best ambiguous, and Petitioner should have obtained a separate permit for the hot tub or inquired as to whether an additional permit was required. Petitioner made no such inquiry and did not obtain the additional permit for the hot tub. Petitioner had no right to rely on the ambiguous approval of the plan as granting permission to construct a hot tub, fence and deck within the side setback area without seeking the additional permit. However, even if Respondent is deemed to have approved building plains which are contrary to existing zoning regulations, such an approval is null and void and cannot work as an estoppel against a governmental agency. Dade County v. Gayer, 388 So.2d 1292 (Fla. 3d DCA 1980).
This case is similar to Florida Clearwater Beach Hotel, Inc. v. City of Clearwater (DOAH Case No. 82-1374). In both cases, the only hardship is
self-created and in fact could have been avoided by due diligence on the part of Petitioner. In both cases, it is the developmental proposal rather than the tract itself which triggers the appeal, and other-lots in the neighborhood have similar limitations. Clearly, the criteria set forth in Section 131.016(e), Clearwater Code of Ordinances, have not been met.
Failure to meet the criteria set out in the zoning code for a variance is grounds for denial of the variance. City of Naples v. Clam Court Marina Trust, 4I3 So.2d 475 (Fla. 2d DCA 1982). Therefore, the decision of the Board of Adjustment and Appeals on Zoning denying the variance must be affirmed.
Based on the foregoing Findings of Fact and Conclusions of Law, the Petitioner's application for a variance is denied.
DONE and ORDERED this 8th day of November, 1982, in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1982.
Henry J. Kulakowski, Jr., Esquire 2515 Countryside Boulevard, Suite A Clearwater, Florida 33515
