STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. J. VACCARO, )

   )

   Appellant, )

   )

   vs. ) CASE NO. 88-3549

   )

   CITY OF CLEARWATER, )

   )

   Appellee. )

   )

   
   

   FINAL ORDER

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled cause on August 5, 1988, at Clearwater, Florida.

   
   

   APPEARANCES

   
   

   For Appellant: S. J. Vaccaro, pro se

   1011 North Fort Harrison Avenue Clearwater, Florida 34615

   
   

   For Appellee: Miles A. Lance, Esquire

   Post Office Box 4748 Clearwater, Florida 34516

   
   

   By letter dated July 13, 1988, S. J. Vaccaro, Appellant, appealed the decision of the City of Clearwater Development Code Adjustment Board denying variances of (1) 9.13 percent building coverage to permit 39.13 percent coverage of the property and (2) 0.3063 to permit 0.6063 floor area ratio at 1011 North Fort Harrison Avenue, Clearwater, Florida.

   
   

   At the commencement of the hearing, the evidence presented to the Board was admitted, and thereafter Appellant testified in his own behalf, Appellee called one witness and six exhibits were admitted into evidence.

   
   

   FINDINGS OF FACT

   
   

   1. Appellant currently operates a retail boat sales business in a building he recently (December 1987) constructed at 1011 North Fort Harrison Avenue. In this variance request, he proposes to construct an addition to this building containing space for nine shops on the ground floor and space to exhibit boats for sale on the second floor. The addition will be approximately the same height as the existing building, and no height variances are required.

      
      

   2. The property on which the proposed addition will be located is zoned CN (neighborhood commercial). Contiguous property approximately 150 feet x 125 feet, owned by Appellant west of that property zoned CN, is zoned RM-8 (multi- family residential with a maximum of 8 residential units per acre).

   3. Appellant has removed some thirteen low income and dilapidated residential buildings from the property he acquired. In addition to reducing habitats in a high crime area, Appellant thereby acquired parking spaces for his business.

      
      

   4. Appellant presently is required to stow most of his boats in racks inside his existing building which makes it difficult, and dangerous, for a customer to take a close look at a boat in which the customer is interested. Boats can be removed from the rack for safe viewing by the customer, but this is a time consuming process requiring several boats to be moved. It is to improve the efficiency of selling boats that motivates Appellant to construct the proposed addition. Rental of the first floor as separate stores is necessary to provide the cash flow needed to pay the investment debt to be incurred.

      
      

   5. Usage permitted for CN zoned property includes sixteen dwelling units per net acre, minimum open space of thirty (30) percent of the lot area and maximum floor area ratio of three-tenths (0.3). The variances here requested involve open space, an increase of 9 percent to 39 percent and floor area ratio increase from 0.3 to 0.6 approximately.

      
      

   6. If the PM-8 zoned property was zoned CN, Appellant would not need the variances here requested.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

      
      

   8. The issuance of variances are governed by Section 137.012 of the City of Clearwater Land Development Code. Subsection (d) thereof establishes the following standards in providing a variance shall not be granted 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 applicable

         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.

         
         

   9. This hearing was conducted pursuant to the provisions of Section 137.013(e) of the Land Development Code, and the decision in this appeal is governed by the provisions of Section 137.013(f) of this code. Although evidence was presented at this appeal hearing, this evidence was not substantially different from that upon which the Board reached its decision to deny the requested variances.

      
      

   10. In these proceedings, the burden is on the Appellant to show that the decision of the Board cannot be sustained by the evidence before the Board and before the Hearing Officer, or that the decision of the Board departs from the essential requirements of law. Section 137.013(f)(3) Land Development Code.

       
       

   11. Applying the evidence presented to the standards for approval of variances above quoted, there is nothing unique about the property here involved which creates an unnecessary hardship upon the Appellant. While the two parcels of this property are located in different zoning districts, this condition has existed for many years and existed when Appellant acquired the property.

       
       

   12. Since no unnecessary hardship to Appellant has been shown as a result of physical surroundings, shape or topographical conditions of the property involved, the requirement that applicant apply for the minimum variance necessary to overcome this hardship is not applicable. Even if this minimal variance requirement is applicable, as the Board concluded, a doubling of the maximum floor area ratio allowed by the Code does not fulfill this minimum variance requirement.

       
       

   13. From the evidence presented, it is clear that the purpose of the variances requested is to secure a greater financial return on the property by the Appellant.

   14. While granting the requested variance will not be materially detrimental to other property in the neighborhood, detract from the appearance of the community, substantially increase congestion in the public streets, or adversely affect the public health and safety, granting the requested variances will violate the general spirit and intent of the Land Development Code.

       
       

   15. From the foregoing, it is concluded that Appellant has failed to show that the action of the Board in denying his application for variances in open space and floor area ratios was not supported by competent and substantial evidence or that the decision of the Board departed from the essential requirements of law. It is

ORDERED that the action of the Development Code Adjustment Board be affirmed and this appeal dismissed.

DONE and ORDERED this 29th day of August, 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 29th day of August, 1988.

COPIES FURNISHED TO:

MILES A. LANCE, ESQUIRE POST OFFICE BOX 4748 CLEARWATER, FLORIDA 34516

CLERK

CITY OF CLEARWATER POST OFFICE BOX 4748

CLEARWATER, FLORIDA 34516

S. J. VACCARO

1101 NORTH FORT HARRISON AVENUE CLEARWATER, FLORIDA 34516

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 137.013(f)(7), L.D.C. SUCH PROCEEDINGS ARE COMMENCED BY COMMON-LAW CRITERIA FOR THE CIRCUIT COURT IN AND FOR PINELLAS COUNTY.

Docket for Case No: 88-003549

Orders for Case No: 88-003549