STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHATEAUX DE VILLE, )

)

Appellant, )

) CASE NO. 85-0811

vs. )

)

CITY OF CLEARWATER, )

)

Respondent. )

)

ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above-styled case on May 2, 1985, at Clearwater Florida.

APPEARANCES

For Appellant: Irene M. Arfaras, Esquire

Post Office Box 6801 Clearwater, Florida 33518

For Respondent: Frank A. Kowalski, Esquire

Post Office Box 4748 Clearwater, Florida 33518

By Notice of Appeal dated March 12, 1985, Chateaux de Ville, Appellant, by and through its attorney, appeals the decision of the Board of Adjustment and Appeal on Zoning denying a variance on fences, walls, and screening for its housing project located at 2539 Nursery Road, Clearwater, Florida.

At the hearing the evidence presented to the Zoning Board was admitted, Respondent called one witness, Appellant called one witness, and 12 exhibits were admitted into evidence.

Proposed findings submitted by the parties, to the extent incorporated herein, are adopted; otherwise, they are rejected as not supported by the evidence, cumulative, immaterial, or unnecessary to the conclusions reached.

FINDINGS OF FACT

1. The property here involved comprises 6.2 acres located in Southeast Clearwater near U.S. 19 and Nursery Road. It fronts on Nursery Road, which is on the north side of the property and the zoning is RM-16 (medium density multifamily). A multifamily HUD project is under construction and approximately two-thirds complete. The issue in this case is the denial of Chateaux de Ville's application for a variance to erect a six-foot wall on the front property line which abuts Nursery Road. Zoning regulations authorize a 30-inch fence along the front property line.

   
   

2. Preliminary site plan for this townhouse development was approved by the City Commission on November 19, 1981 (Exhibit 1), as a Final Site plan. A minor amendment to this plan to erect the 30-inch masonry wall in the setback area in the northwesterly corner of the property was approved December 15, 1983 (Exhibit 2).

   
   

3. On August 13, 1982, the City of Clearwater Engineering Department approved Final Site plans which showed the proposed six-foot high concrete wall on the front property line running the entire length of the property along Nursery Road (Exhibit 8). That approval was granted subject to compliance with all zoning regulations. No approval from the City Planning Department was obtained for this proposed wall.

   
   

4. A second amendment to the site plan to add a bath house adjacent to the swimming pool was approved April 19, 1984, by the City Manager upon recommendation of the Planning Department (Exhibit 3).

   
   

5. A third revision to the site plan to provide for a six foot perimeter wood fence along the east, west, and south sides of the property and to provide six-foot fences between the individual townhouse unit rear yards located both internally and along the east, west, and south perimeter of the project area was approved in July 1984 (Exhibit 4). In recommending approval of this amendment, which complied with the zoning regulations, the Planning Director noted that no fencing is being provided for the townhouse units along the north side of the project adjacent to Nursery Road.

6. Without obtaining a building permit for its construction, a six-foot concrete block wall was erected on the front property line (adjacent to Nursery Road) by the developer. No building permit for such construction would have been issued by the City until a variance in permitted fence height had been obtained. The building and zoning regulations provide that no fence higher than 30 inches can be erected in the front setback area without first obtaining a variance.

   
   

7. Approximately one-third of the tract being developed is occupied by a lake on the south end of the property. This lake was described as a very attractive lake with good fishing. Appellant contends that this lake constitutes an attractive nuisance and the wall on the front of the property is needed to keep children from entering the property. Appellant also contends that the six-foot wall along the front of the property is needed to protect the residents from burglars, thieves, and other criminal elements who easily could enter the property from Nursery Road if the fence is not there to deter them. The wall also serves to complete the six-foot enclosure around the property.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings.

   
   

9. Section 131.016(e), Clearwater Building and Zoning Regulations, provides that variance from the terms of this chapter will not be granted 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 struc- tures 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, struc- tures 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 considered grounds for the issuance of a variances.

         * * *

         1. 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.

         2. 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.

         
         

10. No evidence was submitted that special conditions exist which make the land here involved different than other lands in the same district. The fact that a lake occupies nearly one third of the tract undoubtedly enhances the value of the remaining 4+ acres in the tract. The six- foot fence around the east, south and west sides of the lake and all housing units on the north side of the lake provide adequate protection to deter children from playing around the lake if the lake is subsequently determined to constitute an attractive nuisance.

    
    

11. No evidence was submitted that other landowners in the vicinity were granted similar variances to that here

    requested or that Appellant is being deprived of rights commonly enjoyed by other properties in the same district.

    
    

12. Absent evidence that similar variances have been granted to others, granting this variance will bestow upon Appellant the special privilege of erecting a six-foot fence along the front property line which the zoning regulations denies to others.

    
    

13. It is to be noted that, if a six-foot wall is truly needed for protection as claimed by Appellant, this wall could have been erected on or behind the 25-foot setback line from Nursery Road. This would have necessitated Appellant forfeiting for building purposes this 25-foot wide tract along the north side of the property, an area comprising approximately 0.2 acre.

    
    

14. From the foregoing it is concluded that Appellant has failed to prove, by a preponderance of the evidence, that it complies with the provisions of Section 131.016(e) above-quoted so as to authorize the granting of the variance needed to erect a six-foot concrete block wall along the front property line. It is

ORDERED that Chateaux de Ville's application for variance to construct a six-foot concrete block wall along the front property line of its property located at 2539 Nursery Road, Clearwater, Florida, be denied.

DONE and ORDERED this 17th day of May, 1985, at Tallahassee, Florida.

Hearings

Hearings

K. N. AYERS Hearing Officer

Division of Administrative

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative

this 17th day of May, 1985.

COPIES FURNISHED:

Frank A. Kowalski, Esquire Post Office Box 4748 Clearwater, Florida 33518

Irene M. Arfaras, Esquire Post Office Box 6801 Clearwater, Florida 33518

Ms. Lucille Williams City Clerk

Post Office Box 4748 Clearwater, Florida 33518

Docket for Case No: 85-000811

Orders for Case No: 85-000811