STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROLF ROBERT, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2641

) CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

The final hearing in this case was held on September 14, 1989, in Clearwater, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kenneth A. Dayton, Esquire

Suite 410, Barnett Plaza 1150 Cleveland Street

Clearwater, Florida 34615

For Respondent: Miles A. Lance, Esquire

Assistant City Attorney

P. O. Box 4748 Clearwater, Florida 34618

STATEMENT OF THE ISSUE

The issue in this appeal is whether the decision of the City of Clearwater Development Code Adjustment Board denying Petitioner's application for variances for certain signage on his property is supported by the evidence in the record, or whether it departs from the essential requirements of law. See Section 137.014(f)(3), City of Clearwater Land Development Code.

PRELIMINARY STATEMENT

At the hearing, the record of prior proceedings before the Development Code Adjustment Board was accepted into evidence. Thereafter, the Petitioner called George Stamas, Heidi Hawkins, and Joseph Siciliano, tenants in Petitioner's shopping mall located on the subject property. The City of Clearwater called John Richter, Development Code Administrator. Two exhibits offered by the Petitioner have been admitted into evidence. A ruling on the admissibility of Petitioner's Exhibit #2 was reserved at the time of hearing in order to allow the undersigned to review the exhibit. Having carefully considered this exhibit, it is found that it is both relevant and material, and has therefore been admitted.

No transcript of the hearing was filed, but the parties did file post hearing memoranda and proposed findings, which have been considered in the preparation of this Final Order.

FINDINGS OF FACT

1. Petitioner is the owner of certain property located at 1923-1943 U.S. Highway 19 North, Clearwater, Florida (Section 05-29-16, M&B 23.05). This property is zoned CC (Commercial Center), and is the site of a strip shopping mall.

   
   

2. On or about March 23, 1989, Petitioner applied for three variances for the subject property, as follows:

   
   

   1. 243 square feet to permit a total of

      411 square feet of property identification signage;

      
      

   2. 13.5 feet in height to permit a 33.5 foot high pole sign;

      
      

   3. permission for a roof mounted sign.

      
      

3. The Development Code Adjustment Board denied Petitioner's application for variances on April 13, 1989, and Petitioner timely filed this appeal of the Board's decision.

   
   

4. Under the provisions of the City of Clearwater Land Development Code applicable to the Petitioner's property, only 168 square feet of property identification signage and pole signs not to exceed 20 feet in height would be allowed without a variance, and roof signs of any kind are prohibited unless a variance has been granted.

   
   

5. Several months prior to Petitioner's filing for these variances, a roof sign was erected on the building located on the subject property. This roof sign consists of individual letters spelling "Harbor Square", which is the name of this shopping mall. The letters are from 3 feet, to 4 feet 9 inches in height, and span a distance of 34 feet 9 inches in width. The roof sign replaced a property identification sign at the right of way which previously carried the name of the shopping center, but the space on the pole sign previously used to identify the mall was not eliminated. That space is now used to identify a uniform business in the mall.

   
   

6. Petitioner is seeking these after the fact variances to authorize the roof sign which has already been erected, and to approve the height of an existing pole sign. An enforcement action initiated by the City is pending this variance determination.

   
   

7. Tenants in the Harbor Square mall testified that the change in signage has made the mall more visible and accessible, and several of their customers have commented that their businesses are now easier to find. The tenants feel that this change in signage will benefit their businesses financially.

   
   

8. The Development Code Adjustment Board has previously granted variances from the signage limitations imposed by the Code, but the evidence produced at hearing indicates that none of these variances were granted after the fact. The two variances which were approved for roof signs were based upon a finding of

   conditions unique to the property which created a hardship for the applicant. In both instances, the Board found that the applicant had not created his own hardship, but that it arose from the size or positioning of the property involved in each application.

   
   

9. In this case, nothing unique about the property can be found. The applicant has caused his own problems by allowing a sign to be erected without first obtaining a permit or variance. The Petitioner urges that it was the responsibility of his sign contractor to obtain all necessary permits or variances, and that the contractor did not inform him that a variance was necessary before he erected the sign. However, neither the sign contractor nor the Petitioner himself was present to testify, and therefore, there can be no finding with regard to his credibility, or with regard to whatever arrangement he had with the contractor. In any event, as the property owner seeking a variance, Petitioner has failed to establish any basis for a finding of a hardship or circumstance unique to his property, other than the fact that he allowed this sign to be erected without obtaining the necessary approvals from the City.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 137.013, City of Clearwater Land Development Code. In this proceeding the burden is on the applicant to show that the decision of the Development Code Adjustment Board cannot be sustained by the evidence, or that the Board's decision departs from the essential requirements of law. Section 137.014(f)(3).

    
    

11. The standards for approval of variances are set forth in Section 137.012(d) of the Land Development Code to include the fact that the requested variance arises from a condition unique to the property, or from an unnecessary hardship resulting from the physical surroundings or shape of the property, and that the variance is not sought primarily to secure a greater financial benefit for the applicant. The Code specifically states that work performed without the benefit of a permit shall not be considered to be a situation which supports the granting of a variance. Section 137.012(d)(1).

    
    

12. Roof signs are specifically prohibited by the Code. Section 134.009(11). Pole signs must be limited to twenty feet in height. Section 134.012(1)(c). The square footage of property identification signage is specifically limited based upon the square footage of leasable floor space. Section 134.010(2)(a)6.(a). Notwithstanding these provisions, a roof sign was erected on Petitioner's property by a sign contractor with whom he had contracted which does not comply with any of these Code provisions. Therefore, a permit could not have been issued for this sign, and Petitioner should have sought and obtained a variance prior to erecting the sign. This he did not do, and he is now in the position of seeking an after the fact variance. While he may now suffer a hardship if the sign is removed, this is a hardship of his own making and is not one which justifies the reversal of the prior decision of the Development Code Adjustment Board.

    
    

13. The Petitioner has failed in his burden to show that the decision of the Development Code Adjustment Board from which this appeal has been taken is not supported by the record, or departs from the essential requirements of law, and accordingly, it is:

ORDERED THAT the Petitioner's application for a variance is DENIED, and the prior action of the Development Code Adjustment Board is AFFIRMED.

DONE AND ORDERED this 9th day of October, 1989 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1989.

COPIES FURNISHED:

Kenenth A. Dayton, Esquire Suite 410, Barnett Plaza 1150 Cleveland Street

Clearwater, FL 34615

Miles A. Lance, Esquire Assistant City Attorney

P.O. Box 4748 Clearwater, FL 34618

City Clerk

P.O. Box 4748 Clearwater, FL 34618

Docket for Case No: 89-002641

Orders for Case No: 89-002641