STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE ORBAN, o/b/o BRANCH ) SUNSET ASSOCIATES (Workplace), )

)

Petitioner, )

)

vs. ) CASE NO. 89-3541

)

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: Owen Tegan

295 Danbury Road

Wilton, Connecticut 06897

For Respondent: Miles A. Lance, Esquire

Assistant City Attorney Post Office Box 4748 Clearwater, Florida 34618

STATEMENT OF THE ISSUES

The issue in this appeal is whether the decision of the City of Clearwater Development Code Adjustment Board denying Petitioner's application for a variance 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, Owen Tegan and Norman Hullinger testified on behalf of the Petitioner. The City of Clearwater called John Richter, Development Code Administrator. Two exhibits offered by the Petitioner have been admitted into evidence.

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. On or about May 15, 1989, Branch Sunset Associates (Petitioner), the owner of certain property located at 1856 U.S. Highway 19 North, Clearwater, Florida (Section 6-29-16), applied for a variance to eliminate a condition previously imposed by the Development Code Adjustment Board on a prior variance. The property is zoned CC (Commercial Center), and is the site of a strip shopping mall.

   
   

2. In March, 1988, the Board granted a variance allowing a tenant in Petitioner's mall, Workplace, to have a building identification sign which is larger than would be allowed under the Code without a variance. In November, 1988, Petitioner was granted a variance for the square footage of a pylon property identification sign with the condition that a Workplace sign not be placed on the pylon property identification sign located at the right of way. Petitioner and this tenant, Workplace, are now seeking removal of this condition in order to allow Workplace to be identified on the existing pylon sign, while leaving Workplace's large building identification sign in place.

   
   

3. The Development Code Adjustment Board denied Petitioner's application for variance on June 8, 1989, and Petitioner timely filed this appeal of the Board's decision.

   
   

4. Workplace is located approximately 800 feet off of U.S. Highway 19, and due to this distance, the prior variance of 97 square feet was granted in March, 1988, to allow a business identification sign of 225 square feet. The Code allows business identification signs up to 128 square feet without a variance. The letters spelling out "Workplace" are from 4 to 6 feet in height.

   
   

5. Since opening in May, 1988, Workplace has experienced a steady growth in its business, and now completes approximately 1000 transactions per day. It is an office products store, and is open seven days a week.

   
   

6. When the condition was placed on the variance for the pylon identification sign in November, 1988, the property owner agreed to this condition. At this time, it is primarily the tenant, Workplace, which is seeking this variance to eliminate the condition agreed to in November, 1988, by the property owner. Workplace seeks to be allowed to be included on the property identification sign, but is unwilling to immediately conform to Code on its building identification sign, a variance for which was granted in March, 1988, if this currently sought variance is approved. Thus, Workplace seeks to retain its variance for the size of its building identification sign, while also being included on the pylon property identification sign, which is larger than otherwise allowed due to the November, 1988, variance.

   
   

7. The reason that the Development Code Adjustment Board approved the variance for Workplace in March, 1988, was that there was no property identification sign on site at that time, and the store was to be located so far off the right of way. This was a newly opening mall, and Workplace was one of the first new tenants to open for business. There are some prior tenants on this property that had business identification signs on their buildings that are in excess of the square footage allowed by the Code, but these are prior nonconforming signs which must be removed or brought into compliance by October, 1992. Section 134.015(c). However, when the property owner sought the variance in square footage limits to erect a pylon property identification sign in November, 1988, the Workplace business identification sign was already in place. Rather than allow Workplace to benefit from two variances, the Board conditioned

   the November, 1988, variance on precluding Workplace from being shown on the pylon sign. This was a reasonable condition under the circumstances, and was agreed to by the property owner.

   
   

8. There was no showing of hardship on behalf of Workplace since business has been very good, and since any concerns about distance from the right of way were fully addressed by the March, 1988, variance.

   
   

   CONCLUSIONS OF LAW

   
   

9. 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).

   
   

10. 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.

    
    

11. There has been no showing of hardship in this case, or that conditions unique to this property justify the approval of this third variance. The distance of Workplace from the right of way was a condition previously considered by the Board when it granted a variance in March, 1988, for the square footage of the Workplace sign. This condition cannot now be used to justify another variance. The property owner specifically agreed to the condition on the November, 1988, variance which allowed the erection of a pylon sign in excess of what the Code would have allowed. Workplace now seeks a variance from the condition which was the very basis upon which the Board granted the November, 1988, variance. Yet, Workplace is unwilling to immediately relinquish its March, 1988 variance, and there is no indication that the property owner would be willing to relinquish its November, 1988, variance to allow this variance now sought by Workplace. Thus, Workplace and the Petitioner seek to add variance upon variance, even when the property owner has given specific consent to the condition which they now seek to remove.

    
    

12. The Petitioner has failed in its 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:

Owen Tegan

295 Danbury Road

Wilton, Connecticut 06897

Miles A. Lance, Esquire Assistant City Attorney

P. O. Box 4748 Clearwater, FL 34618

City Clerk

P. O. Box 4748 Clearwater, FL 34618

George Orban Workplace

501 First Avenue, North Suite 1000

St. Petersburg, FL 33701

William D. Coates 1201 Peachtree Street

Suite 1600

Atlanta, GA 30361

Docket for Case No: 89-003541

Orders for Case No: 89-003541