STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE AND GLORIA KARAS, )

)

Appellants, )

)

vs. ) CASE NO. 88-2367

)

CITY OF CLEARWATER, )

)

Appellee. )

)

FINAL ORDER

Pursuant to notice, a hearing was held in the above-styled case on June 15, 1988, in Clearwater, Florida, before K. N. Ayers, Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Appellant: Maria and George Karas, pro se 660 Snug Island

Clearwater, Florida 34630

For Appellee: Miles Lance, Esquire

Post Office Box 4748 Clearwater, Florida 34618-4847

By letter dated May 9, 1988, George and Gloria Karas, Appellants, appealed the decision of the Development Code Adjustment Board (DCAB) denying variances

1. of 11 feet to permit deck 4 feet from rear property line, 2) of 14.7 percent open space for lot to provide 30.3 percent of open space, 3) of 11.1 percent open space for front yard to provide 38.9 percent open space, and 4) to permit construction of a wall in setback adjoining waterfront at their residence at 660 Snug Island, Clearwater, Florida.

   
   

   At the hearing, all evidence presented to the Board was admitted into evidence; and thereafter Appellants called two witnesses, Appellee called one witness, and four exhibits were admitted into evidence. Four photographs were included in Exhibit 3, and six photographs were included in Exhibit 4.

   
   

   FINDINGS OF FACT

   
   

   1. But for the circular drive proposed in front of the Appellants' residence, all of the variances here involved relate to a swimming pool and deck Appellant proposes to construct between their house and the seawall at the rear of the property.

      
      

   2. With respect to the circular drive proposed to be placed in the front yard for which a variance in required green space is sought, Appellants presented evidence purporting to show the variance requested was calculated incorrectly, and actually a lesser variance, or no variance, was required. This

      changes the application for variance and, if the correct calculations show some variance is required, this should be presented to the Board which has primary jurisdiction. Since the Board has not had an opportunity to consider the corrected calculations of open space in the front yard, this variance request is remanded to the Board.

      
      

   3. The proposed swimming pool gives rise to the other variance requests. Because the pool walls extend four feet above the surface of the existing lot, the wall variance becomes applicable which would not be the case if the deck around the pool did not extend more than one foot above the lot level.

      
      

   4. At the hearing, Appellants' argument was that they only want what all of their neighbors have and to be treated the same as their neighbors have been treated. While photographs were submitted showing walls in the setback area near the seawall of neighbors' property as well as swimming pools constructed in such areas, no credible evidence was presented that these neighbors received variances similar to those which were denied Appellants.

      
      

   5. The proposed pool is 27 feet by 17 feet with the setback variance requested in line with the 17 feet dimension of the pool width. Section 135.023(5)a.3, of the band Development Code requires a 15 foot setback from the rear property line. The deck around the pool as proposed by Appellants extends within 4 feet of the rear property line. No evidence was presented that a 17 foot-wide pool was the minimum width required or that a 15-foot wide pool, for example, would not provide an adequate width for the swimming pool. Nor was evidence submitted by Appellants that any effort had been made to reduce the variances requested to the minimum needed to provide a swimming pool and deck capable of meeting all of Appellants' needs.

      
      

      CONCLUSIONS OF LAW

      
      

   6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 137.013, City of Clearwater Land Development Code.

      
      

   7. Section 137.012 of the Land Development Code, provides grounds upon which variances may be granted. subsection (d) thereof provides:

      
      

      1. Standards for approval. A variance shall not be granted by the development code adjustment board unless the application and evidence presented clearly support the following conclusions.

         1. The variance requested arises from a condition which is unique to the property in question

            and is neither ordinarily or uniformly appli- cable to the zoning district nor created by an action or actions of the property owner, predecessor in title, or the applicant. 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.

         2. 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 the applicant.

         3. The variance is the minimum necessary to overcome the unnecessary hardship referred

            to in preceding recital "2" for the purpose of making reasonable use of the land.

         4. The request for a variance is not based primarily upon the desire of the applicant

            to secure a greater financial return from the property.

         5. The granting of the variance will not be materially detrimental or injurious to other property or improvements in the neighborhood in which the property is located.

         6. The granting of the variance will not impair an adequate supply of light or ventilation

            to adjacent property, detract from the appearance of the community, substantially increase the congestion in the public streets, increase the danger of fire, endanger the public safety in any way, or substantially diminish or impair the value of surrounding property.

         7. The variance desired will not adversely affect the public health, safety, order, convenience, or general welfare of the community.

         8. The granting of the variance desired will not violate the general spirit and intent

            of this development code.

            
            

   8. Here there is nothing unique to Appellants' property which gives rise to these requests for variances; however, the limited lot size does create some hardship on the Appellants in constructing a swimming pool deemed necessary for health reasons by Appellants.

      
      

   9. On the other hand, Appellants have made no attempt to show the variances requested are the minimum necessary to overcome the unnecessary hardship on Appellants if no swimming pool could be constructed or that the extension of the deck to within 4 feet of the real property line is the maximum distances that it can be located from the real property line without creating an unnecessary hardship on Appellants.

      
      

   10. This variance request does not violate subparagraphs (d)(4) through

       (7) of Section 137.012 above quoted; however, it violates subparagraph (8) in that Appellant has made no effort to date to comply with subparagraph (3).

       
       

   11. From the foregoing, it is concluded that Appellants have failed to show that the variances requested in the open space and setback requirements are the minimum necessary to overcome the hardship to Appellants from a strict enforcement of the Land Development Code, and this appeal should be dismissed. It is

ORDERED that the appeal of George and Gloria Karas for variances of 1) of

11 feet to permit a deck 4 feet from the rear property line, 2) of 14.7 percent open space for lot to provide 30.3 percent, 3) of 11.1 percent open space for

front yard to provide 38.9 percent, and 4) to permit construction of a wall in setback adjoining waterfront at 660 Snug Island, Clearwater, Florida, be dismissed.

DONE and ORDERED this 5th day of July, 1988, in Tallahassee, Florida.

K. N. AYERS 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 5th day of July, 1988.

COPIES FURNISHED:

Miles Lance, Esquire City Clerk

City of Clearwater City of Clearwater

Post Office Box 4748 Post Office Box 4748 Clearwater, Florida 34618-4748 Clearwater, Florida 34618-4748

George and Gloria Karas 660 Snug Island

Clearwater, Florida 34630

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 88-002367

Orders for Case No: 88-002367