STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PERKINS OF CLEARWATER, LTD., )

)

Petitioner, )

vs. ) CASE NO. 89-5575

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

The final hearing in this case was held on January 23, 1990, in Clearwater, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ronald E. Nichols

Perkins of Clearwater, Ltd. 2626 Gulf to Bay Blvd.

Clearwater, FL 34619

For Respondent: Miles A. Lance, Esquire

P. O. Box 4748 Clearwater, FL 34618

STATEMENT OF THE ISSUE

The issue in this case is whether the decision of the City of Clearwater Development Code Adjustment Board denying Petitioner's application for a variance for certain signage 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, Ronald E. Nichols testified on behalf of the Petitioner, and introduced one exhibit. John Richter, Development Code Administrator, testified on behalf of the Respondent. The record of proceedings before the Development

Code Adjustment Board was accepted into evidence. No transcript or proposed findings have been filed.

FINDINGS OF FACT

1. On or about August 2, 1989, the Petitioner applied

   for a variance concerning certain signage on its property located at 2626 Gulf to Bay Boulevard, in Clearwater, Florida, which is zoned CH (highway commercial).

2. At hearing, Petitioner abandoned its variance request concerning total square footage of its signage, and stated that the only variance presently by the Petitioner

   is for 21 feet in height to allow a 41 foot high pole sign to remain after October 13, 1992. This is an sign which

   has been in place since 1971, and, thus, was in place when the pertinent provisions of the Land Development Code governing sign height were enacted. The Petitioner does not propose to change this sign in any way, but simply seeks authorization to retain the sign after October 13, 1992, the date on which all nonconforming signs must be brought into compliance.

   
   

3. Petitioner's property is located on the northeast corner of the intersection of U.S. 19 and Gulf to Bay Boulevard. At that point, U.S. 19 passes over Gulf to Bay Boulevard, and

   Petitioner contends that without the additional 21 feet in height, this sign will not be visible to motorists along U.S. 19,

   or to those approaching this intersection driving east on Gulf to Bay Boulevard.

   
   

4. Without a variance, Petitioner will be required to bring this sign into conformance with the signage height requirements of the Land Development Code by October 13, 1992, and for property zoned CH, the maximum height allowed for signs is twenty feet.

   
   

5. The Development Code Adjustment Board denied Petitioner's variance application on September 14, 1989, and Petitioner timely filed this appeal of the Board's decision.

   
   

6. The only reason given in support of this variance

   is that without the continued authorization for the additional height, this sign will be of little economic benefit to Petitioner after October 13, 1992, and Petitioner would be unwilling to expend the funds necessary to reduce the height of this sign since the resulting 20 foot high sign would be of little benefit. Petitioner would rather just remove the sign than to have a 20 foot high sign that is of no economic benefit, according to Nichols.

   
   

   CONCLUSIONS OF LAW

   
   

7. 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 applicant has the burden 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).

   
   

8. The standards for variance approval 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.

   
   

9. Section 134.015(f)(1) through (15) sets forth factors which the Board may consider in approving an extension for a nonconforming sign beyond October 13, 1992. The Petitioner offered no evidence at hearing which would show that the Board failed to consider these factors, or that it acted contrary to

these factors and thereby departed from the essential requirements of law. In fact, it was shown that the primary reason Petitioner is seeking this variance is to secure continued economic benefits from this nonconforming sign, and this is not a

valid basis for approval of this request.

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 12 day of February, 1990, in Tallahassee, Florida.

COPIES FURNISHED:

Miles A. Lance, Esquire

P. O. Box 4748 Clearwater, FL 34618

Ronald E. Nichols

Perkins of Clearwater, Ltd. 2626 Gulf to Bay Blvd.

Clearwater, FL 34619

City Clerk

P. O. Box 4748 Clearwater, FL 34618

DONALD D. CONN

Hearing Officer

Division of administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 12 day of February, 1990.

Docket for Case No: 89-005575

Orders for Case No: 89-005575