STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRIEDRICH ULFERS and )

YVONNE ULFERS, )

)

Petitioners, )

)

vs. ) CASE NO. 86-2447

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

A final hearing was held in Clearwater, Florida, on September 12, 1986, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: Yvonne Ulfers, pro se

761 Bruce Avenue

Clearwater, Florida 33515

For Respondent: Miles A. Lance, Esquire

Post Office Box 4748 Clearwater, Florida 33518

At the hearing, the record of proceedings before the Development Code Adjustment Board on June 12, 1986, was received. The City of Clearwater called Sandra Glatthorn, development planner, and Yvonne Ulfers, applicant, testified on her own behalf. Public testimony was received in support of, and in opposition to the variance request. Three exhibits were received on behalf of Petitioners. No transcript of the hearing has been filed.

FINDINGS OF FACT

1. On May 20, 1986, Petitioners submitted a request for two variances concerning property located at 761 Bruce Avenue, Mandalay Subdivision, Block 24, Lot 7 in the City of Clearwater. The property is zoned RS-8 (single family residential).

   
   

2. The variances requested were for the construction of a garage 4.8 feet from the rear set-back line, rather than the required set-back of ten feet, and

   4.2 feet from the side set-back line, rather than the required set-back of five feet.

   
   

3. On June 12, 1986, the Development Code Adjustment Board granted the variance of the side set-back requirements, but denied the requested rear set- back line variance.

   
   

4. The Petitioners own the property in question and also own the property directly behind the subject property which backs up to the rear property line.

5. There is presently a one story frame house on the property, as well as a small cottage to the rear of the property. The cottage is 12.7 feet wide by

   16.5 feet deep. Petitioners want to construct a garage next to the cottage on an existing concrete slab. The dimensions of the garage shown in their application are 12 feet wide by 16.5 feet deep. At one time a garage was attached to the cottage but now only the concrete slab remains.

   
   

6. If the rear set-back line variance is granted, the Petitioners will be able to construct the garage with rear and front walls attached to, and flush with, the cottage. If the rear set-back variance is not granted, the garage will have to be moved forward on the property and will only partially connect to the cottage. The Petitioners will not be prevented from building the garage if the variance is denied, but will simply have to move it forward rather than attaching it fully to the cottage.

   
   

7. It is the Petitioners' intent to use the garage primarily for storage. Yvonne Ulfers denied any intention of expanding the existing cottage, or using this variance to add another room on the cottage.

   
   

8. If the rear set-back line variance is denied, Yvonne Ulfers testified that she would construct the garage anyway, but would move it forward on the property and would also make it deeper than the 16.5 feet proposed in her application. She stated repeatedly that she would deepen the garage by extending it all the way down the side line of her property toward the frame house in the front.

   
   

9. The Petitioners offered no evidence concerning conditions unique to this property, or hardship that would result if the variance is not granted. There is also no evidence that this variance is the minimum necessary to construct the garage on the subject property. To the contrary, there is no dispute that the garage can be built without the rear set-back line variance.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Section 137.012(d), Land Development Code, sets forth the standards for approval of a variance and places the burden of proof on the applicant to show clearly that the variance requested arises from conditions unique to the property, that a strict application of the Code would result in an unnecessary hardship, and that the variance is the minimum necessary to overcome the hardship. The applicant in this case has offered absolutely no proof to establish that this application meets these standards, and therefore the Petitioners have not sustained their burden of proof. The evidence does establish that the garage can be built without this variance, although not exactly where Petitioners would like it to be.

    
    

12. While the granting of the side set-back variance is not under review in this case, the testimony of Yvonne Ulfers during this hearing is brought to the attention of the City. If the side variance was granted by the Development Code Adjustment Board conditioned upon construction of the garage with dimensions shown in the variance application, the City may wish to monitor and review construction of this garage to insure compliance with this condition in view of Yvonne Ulfers' testimony that she will construct a larger, deeper garage if the rear set-back variance is not granted.

Accordingly, it is

ORDERED that the appeal of Friedrich and Yvonne Ulfers concerning their request for a rear set-back variance is DENIED and the action of the Development Code Adjustment Hoard denying said variance is therefore upheld.

DONE AND ORDERED this 22nd of September 1986 in 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 22nd day of September 1986.

COPIES FURNISHED:

Yvonne Ulfers 761 Bruce Street

Clearwater, Florida 33515

Miles A. Lance, Esquire Assistant City Attorney Post Office Box 4748 Clearwater, Florida 33518

Cynthia Goudeau, City Clerk Post Office Box 4748 Clearwater, Florida 33518

Docket for Case No: 86-002447

Orders for Case No: 86-002447