STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UNIVERSITY HIGH EQUITY REAL )

ESTATE FUND II, LTD., )

)

Petitioner, )

)

vs. ) CASE NO. 86-1724

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a final hearing was held in this case on July 25, 1986, in Clearwater, Florida, before Donald D. Conn a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: Robby R. Tompkins

National Construction Manager Southmark Management Corporation 1601 LBJ Freeway, Suite 720

Dallas, Texas 75234

For Respondent: M. A. Galbraith, Jr.

City Attorney

Post Office Box 4748 Clearwater Florida 33518

At the hearings Petitioner's representative; Robby R. Tompkins testified, and Respondent called Sandra Glatthorn, development planner, to testify. No exhibits were introduced. There was no transcript of the hearing and the parties did not file proposed recommended orders.

FINDINGS OF FACT

1. On or about March 7, 1986, Petitioner submitted an application for a variance from the open space and rear set-back line requirements applicable to property located at 2612 U.S. 19 North, Clearwater, Florida. The subject property is zoned CC (commercial center).

   
   

2. Petitioner's application requests a variance to provide 12.33% open space instead of 25%, and to construct a building 30 feet from the rear property line rather than 50 feet as required by the Land Development Code for property zoned CC.

   
   

3. On or about April 24, 1986, the Development Code Adjustment Board denied Petitioner's application for a variance, and Petitioner timely appealed on May 6, 1986.

4. The only evidence in support of its application offered by Petitioner was the testimony of Robby Tompkins. He testified that Petitioner's application is "unique" because Petitioner was 90% complete with its architectural plans for the renovation and modernization of the subject property when the current ordinance took effect, and Petitioner therefore urges that the current ordinance should not apply. Additionally, Petitioner argues that there will be no injury to the public as a result of the variance, and in fact the project will add 6800 square feet to its shopping center. Tompkins admitted that an increase in financial return was the primary reason Petitioner has sought the variance. Finally, he stated that if Petitioner complies with the 25% open space requirement, there will not be enough parking to meet Code provisions, and if sufficient parking is provided, there will not 25% open space.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.65, Florida Statutes, Section 137.013, Clearwater Land Development Code.

   
   

6. The applicant for a variance has the burden of proof. Section 137.012(d), Land Development Code. Of particular significance is this case, the applicant must show that the variance arises from a condition that is unique to the property in question, the strict application of code provisions will result in unnecessary hardship upon the applicants and the variance is not primarily requested to secure a greater financial return for the applicant. Sections 137.012(d)(1), (2) and (4).

   
   

7. Section 135.137 provides for a 50-foot rear set-back and 25% open space for property zoned CC (commercial center).

   
   

8. Petitioner has totally failed to show that these code provisions create an unnecessary hardship, or that its property is unique. The simple fact that changes were in the planning process when the current Code took effect does not constitute a unique circumstance for Petitioner, nor does the fact that by proceeding with its renovation and modernization, Petitioner will not be able to provide the required open space and also the amount of required parking. Further, Petitioner has admitted that the primary reason for this variance request is to secure greater financial return from the property, which fact alone is a sufficient basis for denial of its application.

Based upon the foregoing; it is

ORDERED that Petitioner's application for a variance is hereby DENIED. DONE and ORDERED this 18th day of August 1986, at Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 18th day of August 1986.

COPIES FURNISHED:

City Clerk

Post Office Box 4748 Clearwater Florida 33518

Robby R. Tompkins

National Construction Manager Southmark Management Corporation 1601 LBJ Freeways Suite 720

Dallas, Texas 75234

M. A. Galbraith Jr.

City Attorney

Post Office Box 4748 Clearwater, Florida 33518

Southmark Management Corporation 5401 West Kennedy Boulevard Suite 270

Tampa, Florida 33609

Docket for Case No: 86-001724

Orders for Case No: 86-001724