STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AVI OVAKNIN (SURF WEST, INC.), )

)

Petitioner, )

)

vs. ) CASE No. 93-1475

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on May 11, 1993, at Clearwater, Florida.

APPEARANCES

For Appellant: Harry S. Cline, Esquire

4000 Cleveland Street

Clearwater, Florida 34615

For Respondent: Miles A. Lance, Esquire

Post Office Box 4748 Clearwater, Florida 34618-4748

STATEMENT OF THE ISSUES

Whether Appellant should be granted variances in setback lines to allow construction of a retail store on a lot at the northeast corner of the intersection of Papaya Street and Gulfview Boulevard on Clearwater Beach, Florida.

PRELIMINARY STATEMENT

By application for variances considered at the January 28, 1993, meeting of the City of Clearwater Development Code Adjustment Board, Avi Ovaknin (Surf West, Inc.), Appellant, requested 5 variances to permit the construction of a retail establishment on the parcel of land located on the northeast corner of the intersection of Papaya Street and Gulfview Boulevard. Those variances are:

1. a variance of 3 percent to permit 48 percent building coverage where 45 percent maximum is allowed; (2) a variance of 5 feet to permit a building setback of 10 feet from North Gulfview Boulevard where 15 feet is required; (3) a variance of 11.4 feet to permit a building setback of 3.6 feet from Papaya Street where 15 feet is required; (4) a variance of 9.1 feet to permit a building setback of 6.4 feet from the rear (north) property line where 15.5 feet is required; and (5) A variance of 6.5 feet to permit a building setback of 6.0 feet from the side (east) property line where 12.5 feet is required. The Development Code Adjustment Board granted variance (1) above and denied the four variances in setback and this appeal followed.

   At a previous hearing on December 10, 1992, the Board granted variances on this property to allow construction of a building on the nonstandard lot but denied the setbacks, parking and coverage variances requested.

   
   

   At the commencement of this hearing the evidence submitted to the Board was admitted into evidence. Thereafter Appellant called 4 witnesses, Respondent called one witness, and 3 exhibits were admitted into evidence. Seven photographs of the area were presented to the Hearing Officer at the close of the hearing, but these photographs were never offered or admitted into evidence. Proposed findings have been submitted by the parties and considered in the preparation of this Final Order. Having fully considered all evidence presented, I make the following:

   
   

   FINDINGS OF FACT

   
   

   1. Appellant purchased the property at 24 Papaya Street in Clearwater Beach (lots 29-32, inclusive, Clearwater Beach Park) approximately two years ago. The only inquiry made of zoning officials regarding use of the property, other than zoning, was what part of the lot could be covered with a building.

      
      

   2. This lot is nearly square but is nonstandard in both width and depth to construct a building without a variance. These variances were granted at the initial variance request heard in December 1992.

      
      

   3. Appellant proposes to construct a retail store containing some 4700 square feet of floor space. To erect a building of this size on the lot a variance of 3 percent to allow 48 percent coverage of the lot was required.

      This variance was granted by the Board; however, without the variances in setback on the four sides of the parcel, this 3 percent variance in lot coverage is useless to the Appellant.

      
      

   4. This lot currently has four old buildings with a combined total of 2723 square feet. The largest is nearly square and contains approximately 1120 square feet. There are rental apartments in some, if not all, of these buildings. It is proposed to remove these buildings, if the permit to construct the proposed store is granted. The existing buildings are nonconforming and three are between 2 to 4 feet of the lot lines on the north, east and south sides of the property.

      
      

   5. The property is zoned CR-28 (Resort Commercial) and the proposed use is authorized in this zoning classification.

      
      

   6. The plans are and the applicant proposes to provide the required parking spaces for this establishment under the proposed structure.

      
      

   7. Appellant presented evidence that adjacent properties were built to the lot line with no setback. Most of these buildings were erected before setbacks were required in this area and are grandfathered in so long as the structures remain.

      
      

   8. In 1986 the Development Code Adjustment Board granted setback variances on all four sides of the property across Gulfview Boulevard from Appellant's property. That parcel was also nonstandard and even smaller than the parcel of land here involved. Because of the size of the property the Board found a hardship existed and without the requested variances the property had little

      value. One significant difference in these two parcels is that one had been owned by one family since 1932 while the instant parcel was required circa 1990.

      
      

   9. Further, evidence was presented that being one block east of Mandalay Avenue, the main traveled beach road, the proposed structure needs to be seen from Mandalay to attract pedestrian traffic. The building just west of Appellant's lot is built to the lot line and partially blocks the view of Appellant's property from Mandalay.

      
      

   10. The use of the property sought here is consistent with the Comprehensive Land Use Plan and no protest to the granting of the variances requested were received from adjacent property owners.

       
       

   11. Razing the existing structures and erecting the proposed store in which the applicant intends to sell upscale beach wear would improve the appearance of the neighborhood.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   13. This appeal is controlled by Section 45.24 of the City of Clearwater Land Development Code which provides:

       
       

       A variance shall not be granted 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 nor uniformly applicable to the zoning district, and is not created by an action of the property owner, predecessor in title or the applicant. Any mistakes made in the execution of a building permit or work performed without the benefit of a permit shall not be considered to be a situation which supports 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 subsection (2) of this section for the purpose of making reasonable use of the land.

       4. The request for a 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 ventilation to adjacent property, detract form 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 desired will not adversely affect the public health, safety, order, convenience, or general welfare of the community.

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

       
       

   14. The only thing unique to the property here involved is the parcel is a corner lot and substandard in size. Being a corner lot requires larger setbacks on two sides of the building. To compensate for substandard depth and width of this property, a variance was earlier granted by the Board. However, this variance, like the variance in lot coverage, does nothing for the applicant without some variances in setbacks.

       
       

   15. The size of this parcel, just under 10,000 square feet, is inadequate to erect a building covering 45 percent of the property as allowed by the code if the prescribed setbacks are followed. This creates a hardship; thus indicating that some relief should be granted.

       
       

   16. Although Appellant testified that the variances requested are the minimum necessary to overcome the hardship noted above, this evidence was not convincing.

       
       

   17. The variances requested are based primarily on the desire of the applicant to secure a greater financial return from the property. One of the joint owners, Mr. Eli Levy, testified that the income from the present use of the property was not sufficient to cover the interest on the money needed to purchase the property.

       
       

   18. The granting of the variances needed to construct the proposed store will not be detrimental or injurious to other property or improvements to the neighborhood. In fact, the proposed construction will be a great improvement over the existing buildings on the property and will upgrade the neighborhood.

       
       

   19. No evidence was submitted that the granting of the variances will impair an adequate supply of light or air to adjacent properties, detract from the appearance of the community, increase congestion in the streets, or impair public health or safety in any manner. To the contrary, evidence was presented that the proposed development will improve the neighborhood.

       
       

   20. Whether granting the variances requested will violate the general spirit or intent of the development code is a close question. The existing buildings on this property intrude into the required setbacks on the north, east and south sides of the property more than would the proposed structure if the requested variances are granted. Further, all of the existing buildings in the immediate area intrude into the code prescribed setbacks. Accordingly, granting

       the requested variances would not violate the general spirit and intent of the development code.

       
       

   21. Appellant cites Snyder v. Board of County Commissioners of Brevard County, 595 So.2d 65 (Fla. 5th DCA 1991), as authority to grant variances requested. The court there held at p. 81:

       
       

       The initial burden is upon the landowner to demonstrate that his petition or application for use of privately owned lands (rezoning, special exceptions, conditional use permit, variance, site plan approval, etc.) complies with the reasonable and procedural requirements of the ordinance and that the use sought is consistent with the applicable zoning plan. Upon such a showing the landowner is presumptively entitled to use his property in the manner he seeks unless the opposing governmental agency asserts and proves by clear and convincing evidence that a specifically stated public necessity requires a specified more restrictive use.

       After such a showing the burden shifts to the landowner to assert and prove that such specified more restrictive land use constitutes a taking of his property for public use for which he is entitled to compensation under the taking provisions of the state or federal constitutions.

       
       

   22. Snyder, involved a rezoning and the reference to variance above quoted is dicta. Variances are granted as a privilege, not as a right. The applicant carries the burden of proof with respect to showing that exceptional or undue hardship will result if the variance is not granted, and that a substantial detriment to the public good or the zoning plan will not result. 83 Am Jur 2d Zoning and Planing Section 838. Further, the provisions of the Land Development Code until overturned by a court of competent jurisdiction, are binding on this tribunal. These code provisions clearly place upon the applicant the burden of establishing his entitlement to the requested variances.

       
       

   23. The fact that Appellant required the property without determining the code provisions which limit the size of the structure that may be erected thereon when prescribed setbacks are taken into consideration, militates against granting the requested variances.

       
       

   24. Imposing all setbacks described by the code to this property would allow the owner to construct a building containing only 1600 square feet. A freestanding store of this size is totally impractical and to require such construction would constitute an unnecessary hardship. Accordingly, the evidence presented to the Board and at this hearing does establish an unnecessary hardship, but not one that requires granting all of the variances requested.

       
       

   25. It is to be noted that the Planning and Zoning staff for respondent recommended granting the variances requested on the north, east and south sides of the property. Before the Board considerable opposition was expressed

       requiring the setback variance requested on the south side of the property (Papaya Street).

       
       

   26. Although Appellant's desire to build a viable store is for the purpose of securing a greater financial return from the property, in its present condition the property does not produce enough revenue to pay the interest on the purchase price for the property. The hardship here involved is a financial hardship as are most hardships for which the code allows a variance to be granted.

       
       

   27. From the foregoing it is concluded that the substandard lot creates a hardship which is not corrected by granting a variance for the width and depth of the parcel; that the proposed construction will approve the appearance of the neighborhood; and that the requested variances should be granted on the north, east and south sides of the property. Accordingly, it is ORDERED:

That Avi Ovaknin (Surf West, Inc.) be granted: (1) a variance of 11.4 feet to permit a building setback of 3.6 feet from Papaya Street where 15 feet is required; (2) a variance of 9.1 feet to permit a building setback of 6.4 feet from the rear (north) property line where 15.5 feet is required; (3) a variance of 6.5 feet to permit a building setback of 6.0 feet from the side (east) property line where 12.5 feet is required; and (4) that the requested variance at Gulfview Boulevard be denied.

DONE AND ORDERED this 26th day of May, 1993, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Harry S. Cline, Esquire

400 Cleveland Street Clearwater, Florida 34615

Miles A. Lance, Esquire Assistant City Attorney Post Office Box 4748

Clearwater, Florida 34616-4748

Michael Wright, City Manager City of Clearwater

Post Office Box 4748 Clearwater, Florida 34616 4748

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1993.

Cynthia Goudeau City Clerk

Post Office Box 4748 Clearwater, Florida 34616 4748

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 36.065(g), City of Clearwater Land Development Code. This appeal shall be by common law certiorari to the Circuit Court.

Docket for Case No: 93-001475

Orders for Case No: 93-001475