STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DALE K. NIEMANN and )

JANET R. NIEMANN, )

)

Petitioners, )

)

vs. ) CASE NO. 90-4263

)

JOHN BLAKELY and )

CITY OF CLEARWATER, )

)

Respondents. )

)

FINAL ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on September 24, 1990, in Clearwater, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioners: Dale K. Niemann

Janet R. Niemann

171 Devon Drive

Clearwater, Florida 34630

For Respondent: John Blakely

191 Devon Drive

Clearwater, Florida 34630 STATEMENT OF THE ISSUES

The central issue in this case is to consider whether the decision of the Development Code Adjustment Board to grant variances to John Blakely to allow for the construction of a dock extension and boat lift is supported by the evidence in the record, or whether it departs from the essential requirements of law.

PRELIMINARY STATEMENT

This case was forwarded to the Division of Administrative Hearings for formal proceedings on July 11, 1990. The hearing was originally scheduled for August 31, 1990, and subsequently continued to September 24, 1990, following a motion for continuance filed by the City.

At the hearing, the Petitioners testified in their own behalf and offered exhibits numbered 1 through 11 which were received into evidence. The Respondent, John Blakely, also appeared and presented the testimony of Mr. Moore together with exhibits which have been marked and received into evidence as

Respondent's exhibits 1-5, 7-9, A,B, and the five original photographs which had been submitted during the Board meeting conducted on June 14, 1990.

Additionally, the Respondent submitted an aerial photograph/placemat that shows the general vicinity of his and the Petitioners' properties.

After the hearing, the parties filed proposed orders which have been considered in the preparation of this order.

FINDINGS OF FACT

1. The Petitioners, Dale K. Niemann and Janet R. Niemann, own property on Devon Drive, in Clearwater, Florida, which is approximately two houses down the street from the Respondent, John Blakely.

   
   

2. On or about May 25, 1990, Mr. Blakely requested two variances from the Development Code Adjustment Board of the City of Clearwater. It was his intention to seek the variances in order to extend his present dock approximately twenty-five feet (to a length of eighty-nine feet) and to allow the dock to be positioned 8 feet from an extended side property line.

   
   

3. The Petitioners oppose the requests and argue that the extension is not necessary to make reasonable use of Respondent's dock. Further, they claim that, if allowed, the dock extension, together with the boat lift the Respondent proposes, will interfere with their view of the water.

   
   

4. The proposed dock extension will not obstruct navigational activities.

   
   

5. The natural shoaling process has resulted in the accretion of sand and silt along the Respondent's property. As a result, during low tides it is difficult to utilize the existing dock and would be impossible to use it for the proposed boat lift.

   
   

6. Also, there is a grass flat landward of the proposed boat lift site upon which the Respondent's construction will not infringe. The construction of the lift at the terminus of the existing dock might disrupt that grass bed.

   
   

7. The Respondent will not financially gain from the granting of the requested variances.

   
   

8. The approval of the variances will not impair an adequate supply of light or ventilation to the adjacent properties, nor substantially diminish or impair the value of the surrounding property.

   
   

9. The approval of the variances will not adversely affect the public health, safety, order, convenience or general welfare of the community.

   
   

10. The approval of the variances will not violate the general spirit and intent of the Development Code.

    
    

11. While the approval of the variances may alter the Petitioners' view from the side window of their residence, such alteration should not materially detract or injure their property or the property or improvements of others in the neighborhood. Other structures which Respondent could construct without the approval of variances could be more detrimental to the neighborhood.

    CONCLUSIONS OF LAW

    
    

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

    
    

13. In this proceeding, the Petitioners have 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.

    
    

14. The standards for variance approval are set forth in the Land Development Code and 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 variance applicant.

    
    

15. In this case the variance applicant, the Respondent, John Blakely, has established that his property and the proposed variances result from the physical characteristics of the property. Further, Respondent has established that the remaining variance criteria have been met. Accordingly, since the Petitioners have not established that the Board's decision to approve the requests cannot be sustained by the evidence, or that the decision departed from the essential requirements related to this proposal, that decision must be affirmed.

Based on the foregoing, it is ORDERED:

That the Petitioner's appeal is DENIED and the prior action of the Development Code Adjustment Board is AFFIRMED.

DONE and ENTERED this 14th day of November, 1990, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings

this 14th day of November, 1990.

Copies Furnished:

Miles A. Lance

P.O. Box 4748

Clearwater, Florida 34618

Docket for Case No: 90-004263

Orders for Case No: 90-004263