STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MOBIL OIL COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4381

) CITY OF CLEARWATER, )

)

Respondent. )

)

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 case on October 3, 1990, at Clearwater, Florida.

APPEARANCES

For Petitioner: Angela M. Adams, Esquire

Post Office Drawer T

St. Petersburg, Florida 33731

For Respondent: Miles A. Lance, Esquire

Post Office Box 4748 Clearwater, Florida 33618-4748

STATEMENT OF THE ISSUES

Whether Appellant should be granted a variance of 22 feet from the front setback line of its property at 1601 Gulf to Bay Boulevard, Clearwater, Florida, to permit the replacement of existing canopies.

PRELIMINARY STATEMENT

By this appeal, Mobil Oil Corporation seeks a variance of 22 feet from the front setback line of its property at 1601 Gulf to Bay Boulevard to allow it to replace existing canopies over its fuel dispensing islands at the service station located on this property. This variance was denied by the Development Code Adjustment Board for the stated reasons that the requested variance was not the minimum Appellant could have requested, and there was no condition which is unique to the property creating a hardship the requested variance would alleviate.

At the hearing, the evidence presented to the Development Code Adjustment Board was admitted into evidence. Thereafter, Appellant called two witnesses, Respondent called one witness, and five exhibits were admitted into evidence. Proposed findings of fact and conclusions of law submitted by the parties have been considered. Since there is no basic dispute regarding the operative facts

here involved, all proposed findings are generally accepted. Those not included herein were deemed unnecessary to the conclusions reached. Based upon all evidence presented, I make the following findings of fact.

FINDINGS OF FACT

1. In 1964, a service station was located on the property now known as 1601 Gulf to Bay Boulevard, and the property has been owned by Mobil since 1972. When constructed, the station was in full compliance with all zoning regulations. The site is 142 feet by 128 feet, and the minimum area on which the service station can be erected under the existing code is 10,000 square feet.

   
   

2. At the time the station was opened, a concrete block rectangular structure approximately 45 feet by 28 feet was erected near the center of the site, and two dispensing islands with circular canopies over each was installed to provide lighting at night and weather protection for patrons.

   
   

3. This station is located on the south side of Gulf to Bay Boulevard at its intersection with Lake Avenue. There are currently two entrances to the station from Lake Avenue, one of which will be closed if this variance is granted.

   
   

4. The existing circular canopy nearest Gulf to Bay Boulevard extends into the setback line 22 feet, the same amount the replacement canopies will extend if this variance is granted.

   
   

5. The existing sign on the property is nonconforming. This will be corrected to a conforming sign when the canopies are replaced.

   
   

6. There is presently no landscaping on the site. If the proposed renovation is approved, landscaping conforming to all code requirements will be installed on all sides of the property as shown on plat plan dated 4-18-90 submitted with Mobil's application.

   
   

7. The existing canopies have deteriorated to the stage they can no longer be repaired, but must be replaced.

   
   

8. Subsequent to the erection of this facility, code changes have been enacted by the City of Clearwater to now require the 25 foot setback from which this variance is requested. All other changes being made to the station such as replacing storage tanks, landscaping, and realigning of service islands are in compliance with the Code.

   
   

9. The proposed layout of the service islands is such that if cars are on the inside of each service island, there is insufficient room for a third car to pass between them. There is sufficient room on the service island nearest Gulf to Bay Boulevard for a motor home to fuel on the street side of this island.

   
   

10. It is possible for Mobil Oil to erect a station on this site which would comply with all provisions of the Code, if the existing building is razed and relocated further back on the property from the intersection of Gulf to Bay and Lake Avenue. Assuming construction costs of $80 per square foot (including razing of the existing building) this would represent a cost of approximately

    $100,000. This is not a reasonable requirement to place upon the applicant.

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Section 137.012(d), Land Development Code of the City of Clearwater, provides:

    
    

    A variance shall not be granted by the Development Code Adjustment Board unless

    the applicant 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 execu- tion 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 the preceding recital "2" for the purpose of making reasonable use of the land.

    4. The request for the 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 ventila- tion 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 will not adversely affect the public health, safety, order, convenience, or general welfare of the community.

    8. The granting of the variance will not violate the general spirit and intent of this development code.

13. The condition unique to this property which give rise to this variance request is that all structures on this property were erected in full compliance with zoning requirements and, thereafter, changes were made in these zoning requirements which made the structure to be replaced, nonconforming. At the time the concrete block building was erected and the service islands and canopies installed, the configuration of these structures resulted in an optimum utilization of the property. The one structure that cannot be relocated without causing substantial hardship is the concrete block building. With this building in its present location, the service islands cannot be moved further from Gulf to Bay Boulevard so as to permit a canopy over the service islands that would not extend into the setback. The existing non-conformity, which Appellant here seeks to continue, was caused solely by changes in the City's zoning regulations and not by acts of Mobil. Accordingly, the hardship was not the result of action taken by Mobil, but resulted solely from actions taken by the City. This topographical hardship is unique to this property and is not applicable to other properties in the area. Strict application of the provisions of the development code will result in an unnecessary hardship on the Appellant. While it can be argued that Mobil could reduce the size of the canopy by a few inches without materially reducing the effectiveness of this canopy and, therefore, the variance requested is not the minimum necessary to overcome the hardship, this is quibbling. A request for a variance of 21 feet should receive the same response as a variance of 22 feet in this situation.

    
    

14. The variance requested must be a reasonable minimum-- not an absolute minimum. The requested variance of 22 feet is the reasonable minimum necessary to overcome the hardship. Nor is this request based primarily upon the desire of Mobil to obtain a greater financial return from the property, but upon the need to replace the existing dilapidated canopies.

    
    

15. Granting this variance will not be materially detrimental to the other property or improvements in the neighborhood. To the contrary, the proposed changes to bring other areas of the property into conformance with the development code and the addition of landscaping to this property will enhance the appearance of the neighborhood.

    
    

16. Nor will the granting of this variance impair an adequate supply of light or ventilation to adjacent property, increase the congestion in the neighborhood or be deleterious to the public health, safety, or welfare. Granting this variance will not violate the general spirit and intent of the development code.

    
    

17. From the foregoing, it is concluded that Appellant has demonstrated a unique situation at this location which creates a special hardship to the effective use of this property if the variance is not granted. Accordingly, it is

ORDERED

That Mobil Oil Corporation be granted a variance of 22 feet, as requested, in the front setback of its station located at the intersection of Gulf to Bay Boulevard and Lake Avenue subject to Mobil complying with all other applicable provisions of the development code.

DONE and ORDERED this 24th day of October, 1990, in Tallahassee, Florida.

K.N. AYERS 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 24th day of October, 1990.

COPIES FURNISHED:

Angela M. Adams, Esquire Post Office Drawer T St. Petersburg, FL 33731

Miles A. Lance, Esquire Post Office Box 4748 Clearwater, FL 33618-4748

Cyndi Goudeau Clerk

City of Clearwater Post Office Box 4748

Clearwater, FL 33618-4748

Docket for Case No: 90-004381

Orders for Case No: 90-004381