STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NOEL and ANN JONES, )

)

Petitioners, )

)

vs. ) CASE NO. 82-2211

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL 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 November 9, 1982 in Clearwater, Florida.

APPEARANCES

For Petitioner: L. Noel Jones, Jr., pro se

2122 Beckett Lake Drive Clearwater, Florida 33515

For Respondent: Thomas A. Bustin, Esquire

Post Office Box 4748 Clearwater, Florida 33518

BACKGROUND

By their application, Petitioners, Noel and Ann Jones, sought a variance to construct a six foot fence paralleling their property line along Montclair Road, at Lot 4, Block 3, Beckett Lake Estates, Clearwater, Florida. On May 13, 1982, the City of Clearwater Zoning Enforcement Officer denied their request on the ground it failed to comply with Section 131.2053(d)(2), Code of Ordinances.

Pursuant to the provisions of Section 131.033(5)(c), Code of Ordinances, the decision was appeared on June 14, 1982 to the City of Clearwater Board of Adjustment and Appeal on Zoning. The Board considered the request at its July 15, 1982 meeting and the same was denied.

The instant case arises from an appeal of that decision by Petitioners on July 19, 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 120.65(6), Florida Statutes, and Section 131.0165(e)(1), Code of Ordinances, the undersigned Hearing Officer was designated as Zoning Appeal Hearing Officer.

The final hearing was held on November 9, 1982, in Clearwater, Florida. At the final hearing Petitioner Noel Jones testified on his own behalf and offered Petitioner's Exhibits 1-3; all were received in evidence. Respondent presented

the testimony of John Richter, Chief of the City's Planning Division, and offered Respondent's Exhibit 1 which was received in evidence.

Under the terms of Section 131.0165(c)(3), Code of Ordinances, the record of the Board's meeting on July 15, 1982 has been made a part of this record.

The parties were given the opportunity to file proposed findings of fact and conclusions of law. However, none were filed.

The issue herein is whether Petitioners' application for a variance to construct a six-foot fence on their rear property line should be granted.

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

FINDINGS OF FACT

1. Petitioners, L. Noel Jones and Ann Jones, are the owners of Lot 4, Block 3, Beckett Lake Estates, located at 2122 Beckett Lake Drive, Clearwater, Florida. The property is currently zoned RS-60 (Single-Family Residence District) and was created primarily for low-density single-family residential development.

   
   

2. Petitioners' lot lies between Sunset Point Road on the north, and Montclair Road on the south. It is located within Beckett Lakes Subdivision, an exclusive single-family subdivision approved for development by the City in April, 1978. The lot is one of only six within the subdivision that has frontage on both Sunset Point and Montclair Roads. These lots are numbered Lots 1-6 in Block 3. There are approximately 62 other lots within the subdivision.

   
   

3. Under an agreement with the City, the developer of the subdivision erected a four-foot open wood ranch-style fence on Montclair Road. The fence sits approximately one and one-half feet from the right-of-way line and runs the length of Lots 1-6. The developer also agreed to landscape the area adjacent to the fence to comply with a fence and landscaping plan approved by the City.

   
   

4. Petitioners applied for a building permit to construct a fence on Montclair Road and were verbally advised by a City Building Department official that it would be granted. Based on this representation, Mr. Jones removed the existing four foot fence and replaced it with a six foot fence at a cost of

   $325. He was later cited for violating the zoning code because he had failed to obtain a variance to construct the fence. The citation precipitated the instant case. Existing zoning regulations require that the height of the fence on Petitioners' property be no more than four feet. Therefore, in order to erect a six foot fence, a variance from the City is required.

   
   

5. Petitioners desire to retain their new fence in order to provide more privacy from a public sidewalk and street which run adjacent to their rear property line. Further, their home has been broken into on two occasions within the last year, and they believe a fence would provide more security. They also point out that the owner of Lot 6 recently obtained approval from the City to construct an identical fence on his property. Finally, Petitioners contend that the City initially approved their application, and it is unfair to now require them to tear down their fence. They have agreed to provide appropriate landscaping in conjunction with the fence.

6. The City opposes the application on the ground the new fence is not in conformity with the style and height of the other fence erected on Montclair Road, and would lead to multiple types of fences on the street. It also fears that if this application is approved, it will trigger similar applications from Petitioners' neighbors, and will destroy the neighborhood's aesthetic appeal and character.

   
   

   CONCLUSIONS OF LAW

   
   

7. 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.

   
   

8. Section 131.2053(d)(2), Code of Ordinances, provides in part as follows:

   
   

   (d) Two or more front yards. Fences. . .on lots which have two (2) or more required front yard setbacks, as in the case of double frontage. . .lots, are permitted in all zoning districts. . .subject to the following:

   (2) All secondary street frontages. Fences. . . are permitted to a maximum height of four (4) feet along all multiple front yards other than that street from which the property is addressed;

   
   

   Petitioners seek a variance from this restriction.

   
   

9. Subsections 131.016(e)(1)a-d, Code of Ordinances, specify that the following criteria must be met in order for a variance to be granted:

   
   

   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, building or structures in the same district.

   2. That 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.

   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.

      
      

      Under the terms of the foregoing ordinance, an applicant for a variance must affirmatively demonstrate (a) that unique circumstances exist which are peculiar to the applicant's property, (b) that the application of the zoning code to applicant's property creates an unnecessary hardship, ( c) that the hardship is

      not self-created or imposed, and (d) that by granting the variance applicant will not receive special treatment denied to others in his neighborhood.

      
      

10. The evidence discloses that Petitioners' lot is indeed unique to the subdivision in that only six of sixty-eight lots have double frontage. All others front on only one street. However, the height restriction within the area is applicable to all lots, and is necessary to insure compliance with the fence and landscaping plan adopted by the City. That is to say, Petitioners are similarly situated with all other homeowners who must adhere to the design and height restrictions embodied in the plan, and Petitioners enjoy the same rights as do all other homeowners in the subdivision. If the variance were granted, it would confer a special privilege that is denied by the zoning regulations to other property owners in the area.

    
    

11. It is unfortunate that Petitioners' neighbor obtained approval to construct the same type of fence, and that oral approval was incorrectly given by the City to Mr. Jones to do the same. These events understandably make it difficult for him to understand why the code must be strictly construed, and variances granted only after all conditions have been met. However, until the existing code is amended, or Petitioners can demonstrate that all criteria in Subsection 131.016(e)(1) are satisfied, the application must be denied.

Now therefore, in consideration of the above findings of fact and conclusions of law, it is

ORDERED that the application of Petitioners for a variance be DENIED.

DONE and ORDERED this 30th day of November, 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 30th day of November, 1982.

COPIES FURNISHED:

L. Noel Jones, Jr.

2122 Beckett Lake Drive Clearwater, Florida 33515

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

Docket for Case No: 82-002211RX

Orders for Case No: 82-002211RX