STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM LARKINS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2448

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

A final hearing was held in Clearwater, Florida on September 12, 1956 before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

Petitioner: Tom Larkins, pro se

440 Gulf View #1007 Clearwater, Florida 33515

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 Philip Bennis, Sr., Chief of the Permits Division. Tom Larkins, applicant, testified on his own behalf. Each party introduced one exhibit, and no transcript has been filed.

FINDINGS OF FACT

1. On May 20, 1986 the applicant submitted a reguest for four Variances to the City of Clearwater. These variances concern property he owns which is located at 304 and 306 Nimbus, Skycrest Subdivision, Unit 9, Block B, Lot 9 in the City of Clearwater This property is zoned RN-28 (multiple family residential)

   
   

2. A duplex apartment is presently located on the subject property, and the applicant is seeking these variances to construct a third apartment on the property, thereby making it a triplex. He intends to live in the new apartment. At the present time he is renting out the two existing units and is renting an apartment elsewhere for himself. Therefore, the purpose of this variance request is not to create a third rental unit on the subject property, but to construct a unit in which the applicant himself will reside. However, there is no restriction on future use of the new unit, which could he used to enhance the overall value of the subject property.

   
   

3. The applicant is specifically requesting variances in overall lot size, lot width, driveway width, and of the minimum parking requirements which are

   applicable to a triplex. The size of the lot is 9,360 square feet, rather than the required 10,000 square feet, and the lot is 75 feet wide, rather than the required 80 feet. The current driveway is 10 feet wide, rather than 20 feet, and there are 4 parking spaces, rather than the required 5 spaces.

   
   

4. The construction of the new unit has already begun, and in fact has been substantially completed. Total value of the construction is approximately

   $8,000. This work was done without a proper building permit and without the variances sought herein. Prior to commencing construction, the applicant made no effort to find out for himself what permits would be required, or if he would have to seek any variances.

   
   

5. The applicant contracted with Tom Pettit, a licensed contractor, for the construction of the footer and block walls for the new unit. Total cost to the applicant for this work was $1,634. Pettit applied for a permit for remodeling and repairs on April 8, 1985, and received permit number B-85040243 on April 10, 1985. This was the only permit applied for or obtained in connection with this construction. No general construction permit was ever applied for or obtained.

   
   

6. After Pettit completed the footer and block walls, the applicant completed all interior work, with the exception of electrical, and also finished the exterior. A separate permit is required for electrical work, and when the applicant applied for an electrical permit, he was told he did not have a proper building permit for the work already completed, and further would need the variances sought in this case.

   
   

7. On June 12, 1986 the Development Code Adjustment Board denied these variances and the applicant has timely sought this review.

   
   

8. No evidence was presented by the applicant concerning conditions unique to this property or hardship that would support his request. There is also no evidence that these variances are the minimum necessary to construct a new unit on the subject property. Rather, these variances are sought due to construction which has already taken place without proper authorization.

CONCLUSIONS OF LAW

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.

Section 137.012(d) of the Land Development Code sets forth the standards for approval of variances, and specifies that:

Any mistake made in the execution of a building permit or work performed without the benefit of a permit shall not be considered to be situations which support the granting of a variance.

Therefore, the fact that an improper permit was obtained for the work that was done, and such work was performed without a proper permit, cannot be considered in support of the requested variances. This neither creates a condition unique to the property or an unnecessary hardship on the applicant.

In requesting a variance, the applicant has the burden of proof. Section 137.012(d), Land Development Code. Other than explaining the circumstances which lead to his construction of the additional unit on the subject property without a proper permit, the applicant offered absolutely no proof in support of his application. Under these circumstances, the applicant has not met his burden to establish that his application meets the standards for a variance set forth in Section 137.012(d). Accordingly, it is

ORDERED that the appeal of Tom Larkins concerning his request for variances is DENIED and the action of the Development Code Adjustment Board denying said variances is therefore upheld.

DONE AND ORDERED this 22nd day of Septemher, 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:

Tom Larkins

440 Gulf View #1007 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: 86-002448

Orders for Case No: 86-002448