STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEN POSDAL, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3695

) CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

After due notice, duly designated Hearing Officer J. Lawrence Johnston, held a public hearing in this case on January 23, 1987, at Pinellas Park, Florida.

Ben Posdal, of Tampa, pro se, for Petitioner.

Miles A. Lance, Esquire, of, Clearwater, for Respondent.

By letter dated September 9, 1986, Ben A. Posdal, Appellant, appealed the decision of the Development Code Adjustment Board denying him three variances as follows:

1. 7 feet to permit a deck 5 feet from the West side property line;

   
   

2. 7.1 feet to permit a deck 4.9 feet from the East side of the property line; and

   
   

3. 13 feet to permit a deck 12 feet from the mean high water line.

At the appeal hearing Appellant abandoned his appeal of the denial of the first two variances and requested that a variance be granted for the setback of

13 feet from the mean high water line. The purpose for the reguest of the variances was to permit the construction of two wooden decks on the rear of the building.

FINDINGS OF FACT

1. Ben A. Posdal is the owner of property commonly known as 166 Brightwater Drive, in the City of Clearwater, Florida.

   
   

2. On August 7, 1986, he applied for variances to construct two wooden decks on his property, located at the above address.

   
   

3. The property which is the subject of the variance request is a building which contains four apartments, which are rented by Ben A. Posdal to various tenants.

4. On August 28, 1986, the Development Code Adjustment Board (DCAB) denied the variance requested by Mr. Posdal on the grounds that he had not demonstrated a hardship and that he had not demonstrated that the requested variance would not violate the general spirit and intent of the Clearwater Land Development Code.

   
   

5. On September 9, 1986, an appeal was filed by Ben A. Posdal from the decision of the Development Code Adjustment Board. The appeal alleges that the DCAB decision was arbitrary, capricious and unreasonable on the following grounds:

   
   

   1. Other properties allegedly are in violation of the back line setback regulations;

      
      

   2. The DCAB failed to give enough evidentiary weight to photographs he submitted; and

      
      

   3. Appellant allegedly is being deprived of the beneficial use of the property in a manner commensurate with the community.

      
      

6. There are no physical conditions which are unique to the property. There is no particular physical surroundings, shape or topographical condition that would result in an unnecessary hardship upon the Appellant.

   
   

7. Failure to obtain a variance would not impinge upon Appellant's use of the property in any way.

   
   

8. The record on appeal contains competent, substantial evidence to support the DCAB decision.

   
   

9. Nonconforming uses in the area of the subject property are legal nonconforming uses.

   
   

   CONCLUSIONS OF LAW

   
   

10. Appellant did not show that the particular physical surroundings, shape or topographical conditions of the property involved and the strict application of the provisions of this Development Code would result in an unnecessary hardship upon Appellant, pursuant to Section 137.012(2).

    
    

11. Appellant has not shown that the granting of the desired variance will not violate the general spirit and intent of the Development Code, pursuant to Section 137.012(8).

    
    

12. None of the grounds specified in his notice of appeal are legally sufficient to overturn the Development Code Adjustment Boards decision. The fact that there may be legal nonconforming uses is irrelevant to a pending application. The weight to be given to particular evidence is within the discretion of the Development Code Adjustment Board, and the deprivation of use is not critical unless it deprives an applicant of any reasonable use of the property.

    
    

13. In order to overturn the determination of the Development Code Adjustment Board, an appellant must establish that the decision of the Development Code Adjustment Board was not supported by competent, substantial evidence. Appellant has failed to meet his burden.

DISPOSITION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is ORDERED that the appeal of Ben A. Posdal be dismissed and the Development Code Adjustment Board denial of his application for the indicated variances for his property located at 166 Brightwater Drive, Clearwater, Florida, be affirmed.

DONE AND ORDERED this 17th day of February, 1987, in Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON 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 17th day of February, 1987.

COPIES FURNISHED:

Ben A. Posdal

Post Office Box 23632 Tampa, Florida 33623

Miles Lance, Esquire Assistant City Attorney City of Clearwater

Post Office Box 4748 Clearwater, Florida 33518-4748

Cynthia Goudeau City Clerk

Post Office Box 4748 Clearwater, Florida 33518-4748

Docket for Case No: 86-003695

Orders for Case No: 86-003695