Judges: K. N. AYERS
Agency: Contract Hearings
Latest Update: Oct. 10, 1983
Summary: Petitioner's request for zoning variance denied because he couldn't prove real hardship/denial of reasonable use would result from denial.
83-2592STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CIRO VACCARO, )
)
Petitioner, )
)
vs. ) CASE NO. 83-2592
)
CITY OF CLEARWATER, )
)
Respondent. )
)
ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K.N. Ayers, held public hearing in the above-styled case on September 15, 1983, at Clearwater, Florida.
APPEARANCES
For Petitioner: Ciro Vaccaro, pro se
19 Heilwood Avenue
Clearwater Beach, Florida 33515
For Respondent: Thomas A. Bustin, Esquire
Post Office Box 4748 Clearwater, Florida 33518
By letter dated August 8, 1983, Ciro Vaccaro, Petitioner, appeals the denial by the Board of Adjustment and Appeal on Zoning of his request for variances to increase the area of his residence at 19 Heilwood Avenue, Clearwater Beach, Florida. As grounds therefor it is alleged the requested variances would improve the appearance of the house, give him more living space, add to the property values in the neighborhood, not interfere with parking, and the neighbors did not object to the variances requested.
At the hearing Petitioner testified in his own behalf, Respondent called one witness, and two exhibits were admitted into evidence. Exhibit 1 consists of six photographs of the property in question, and Exhibit 2 is a petition signed by property owners on Heilwood Avenue that they do not object to the variances requested by Petitioner.
FINDINGS OF FACT
Petitioner owns the residence located at 19 Heilwood Avenue, Clearwater Beach, Florida. The property is zoned RM-20 (high density residential). Petitioner requests a front and side setback variance, lot density variance, variance to impermeable lot coverage, and a variance to add 275 square feet of living area to a nonconforming structure.
The existing property extends into the setback area on both the front and one side and exceeds the impermeable lot coverage and the house coverage
currently allowed by the building code. Petitioner proposes to extend the entire front of the house to the line of the screen porch which now intrudes into the front setback 8.5 feet. This would reduce the front setback across the entire front of the house from the code prescribed 25 feet to 16.5 feet. The west side of the house now encroaches two feet into the code prescribed five feet, leaving only three feet setback on this side. To extend this side towards the front by 8.5 feet, a side variance of two feet is required for this extension.
By adding 275 square feet to the area of the house, the lot coverage would be increased to 46.2 percent. The maximum coverage allowed by the code is
42 percent. By adding 275 square feet of impermeable area to the lot, the percent of the lot coverage with impermeable surface would increase to 95 percent. The maximum impermeable lot coverage permitted by the code is 65 percent.
Petitioner contends he only wants to "square" up his house and to make the entire front of the house intrude into the setback area by 8.5 feet; that this addition will improve the looks and usability of the house; and that there is no objection by the neighbors.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and tee subject matter of, these proceedings.
The area of Clearwater Beach where Petitioner's house is located has developed over the years when no building restrictions existed or when they were less than they are today. As a result most of the older buildings on Clearwater Beach are nonconforming. Petitioner's house is also nonconforming.
Section 131.016(e), City of Clearwater Building and Zoning Regulations, provides the board shall have the power to grant variances in special cases but a variance shall not be granted unless and until:
A written application for a variance is submitted stating substantially that certain of the following exist:
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.
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.
That the special conditions and cir- cumstances referred to in subsection a. above, do not result from the actions of the applicant.
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.
* * *
The board shall further make a finding 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.
The board shall further make a finding that the granting of the variance will be in harmony with the general pur- pose and intent of this chapter, will not be injurious to the neighborhood, or
otherwise detrimental to the public welfare.
There are no special conditions or circumstances which are peculiar to Petitioner's land or building which are not A applicable to other lands or buildings in the same district.
While some of the existing dwellings in this district enjoy the same rights Petitioner is here requesting, these buildings were erected before the zoning code was passed or when the code was more lenient than it is today.
Other applicants for setback variances in this district are routinely denied unless special circumstances exist and no such special circumstances have been shown in this application. The fact that other buildings in this district are nonconforming, as is Petitioner's dwelling at the present time, is specifically noted as not constituting a valid ground for granting a variance.
Of primary consideration is the requirement that to authorize the variance it must be the minimum variance that will make possible reasonable use of the land. This code provision is consonant with the purpose of zoning regulations which are invalid only when they preclude a reasonable use of the property. City of Ormond Beach v. Florida ex rel del Marco, 426 So.2d 1029 (Fla. 5th DCA 1983). It can hardly be said that Petitioner is not now obtaining a reasonable use of his land when the existing dwelling' encroaches into the front and side setbacks and covers more of the permeable lot surface than the code permits.
From the foregoing it is concluded that Petitioner is currently obtaining a reasonable use of his property and has presented insufficient evidence that he is suffering a hardship that would authorize the variances requested, or that others in the same district are receiving variances similar to those requested by Petitioner. It is
ORDERED that the appeal of Ciro Vaccaro for five variances to his property at 19 Heilwood Avenue, Clearwater Beach, Florida, be DENIED.
DONE AND ORDERED this 10th day of October, 1983, at Tallahassee, Florida.
K. N. AYERS, 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 10th day of October, 1983.
COPIES FURNISHED:
Thomas A. Bustin, Esquire City Attorney
Post Office Box 4748 Clearwater, Florida 33518
Ciro Vaccaro
19 Heilwood Street
Clearwater Beach, Florida 33515
Ms. Lucille Williams City Clerk
Post Office Box 4748 Clearwater, Florida 33518
Docket for Case No: 83-002592
Orders for Case No: 83-002592
| Issue Date |
Document |
Summary |
|
Oct. 10, 1983 |
Recommended Order
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Petitioner's request for zoning variance denied because he couldn't prove real hardship/denial of reasonable use would result from denial.
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