STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUN WATCH, INC., )

)

Appellant, )

)

vs. ) CASE NO. 93-6819

)

CITY OF CLEARWATER, )

)

Appellee. )

)

FINAL ORDER

On February 18, 1994, a final hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Appellant: R. Carlton Ward, Esquire

Mark D. Breakstone, Esquire Richards, Gilkey, Fite,

Slaughter, Prater & Ward, P.A.

1253 Park Street

Clearwater, Florida 34616

For Appellee: Miles A. Lance, Esquire

Assistant City Attorney City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

STATEMENT OF THE ISSUE

The issue in this case is whether the evidence sustains the decision of the City of Clearwater Development Code Adjustment Board (the Board) to deny the application of the Appellant, Sun Watch, Inc., for a five foot building height variance for its property located at 670 Island Way, Clearwater, Florida. (The variance is required as a result of the Appellant's desire to build a 95 foot high condominium on the property.)

PRELIMINARY STATEMENT

On or about August 23, 1993, the Appellant, Sun Watch, Inc. (Sun Watch or the Appellant), applied to the City of Clearwater Development Code Adjustment Board (the Board) for a building height variance. After staff review and recommendation to grant the variance application, it was considered and denied by the Board at a public hearing on October 28, 1993. A timely appeal was filed on November 10, 1993.

Under Section 36.065 of the City of Clearwater Land Development Code (the Code), the appeal was forwarded to the Division of Administrative Hearings on November 19, 1993, along with a copy of the record of the proceedings below. On December 16, 1993, a Notice of Hearing was issued scheduling final hearing for January 20, 1994. However, notice of the hearing was not published, as required by Section 36.065(4)(b) of the Code, and on January 24, 1994, an Amended Notice of Hearing was issued scheduling final hearing for February 18, 1994.

At the final hearing, the record of the proceeding below was received, as required by Section 36.065(5)(c) of the Code. Additional evidence also was received, as permitted by Section 36.065(5)(d) and (6)(a) of the Code.

Summations were heard, as permitted by Section 36.065(5)(b) of the Code. In addition, the parties were permitted to file post-hearing proposed findings of fact and conclusions of law under Section 36.065(5)(h) of the Code.

FINDINGS OF FACT

1. On or about August 23, 1993, the Appellant, Sun Watch, Inc. (Sun Watch or the Appellant), applied to the City of Clearwater Development Code Adjustment Board (the Board) for a five-foot building height variance to allow it to build a 95-foot tall building where zoning regulations limit buildings to 90 feet in height. The building, as presented in the application, would have nine stories over a one-story parking garage and would accommodate 96 condominium units, each 3000 square feet. The application and supporting evidence presented to the Board was to the effect that the building cannot be constructed as planned without the five-foot height variance because: (1) eight feet of clearance from floor to ceiling is required in order to successfully market the planned luxury condominuim units; (2) the building's post-tension slab construction, designed for greater structural strength to withstand more severe wind storms, requires eight-inch thick slabs per floor; and (3) the heating and air conditioning system recommended for the building requires one foot per floor for the duct work, furring, drywall and finishing.

   
   

2. The City of Clearwater Development Code (the Code) requires only a minimum of seven feet, six inches, clearance between the floor and ceiling of the Sun Watch residential units. In addition, only seven feet, even, of clearance is required in common areas, such as corridors within the units. If the heating and air conditioning duct work is placed in the corridors, or if the ceilings in the other parts of the residential units are lowered to the seven foot, six inch, minimum, no variance would be required, according to the application and supporting evidence presented to the Board. But the Appellant proved: (1) that the desirable large rooms planned for the perimeter of the residential units were too large to be effectively heated and cooled from the common areas alone; (2) that, notwithstanding the Code allowances, seven foot ceilings are too low for optimal heating and cooling because the air coming from the ceiling registers would blow down too directly onto the unit dwellers; and

   (3) that people would not buy luxury condominium units with smaller rooms or with lower ceilings.

   
   

3. Notwithstanding the logic of the Appellant's arguments, as far as they go, it is clear that the primary purpose of the large size of the condominium units planned for the Sun Watch building, both in square footage and in ceiling height, is to secure greater profits from the sale of luxury condominiums, instead of smaller, less than luxury units.

4. The primary purpose of the ninth story of residential units is to achieve the maximum density for which the property is zoned, with the commensurate higher profits, instead of a lower zoned density. In fact, the design which necessitated the building height variance application in this case was drawn at the request of the developer, whose instructions to his architect were to design a building to utilize the maximum allowable density on the property.

   
   

5. In addition, the evidence at the final hearing established that, in response to the developer's instructions, the developer's architect drew the design which necessitated the building height variance application in this case without knowledge of the 90-foot building height restriction. Only after the design was drawn did the architect realize that the design would necessitate a variance from the building height restriction.

   
   

6. The evidence at the final hearing was that there were inaccuracies in the building design on which the variance application was based. Instead of a foot per floor for the duct work, furring, drywall and finishing, actually 13 to

   14 inches would be required. In addition, instead of the eight feet, nine inches, in the design for the parking garage and slab under the first floor, actually nine feet, eight inches, will be required. Based on those facts, instead of the five foot variance in the application, actually a variance of between nine feet, eight inches, and ten feet, five inches, would be required to build the proposed nine story, 96 unit, condominium with one story parking garage. (This actual variance requirement takes into account Section 42.23(5) of the Code, which allows parapet walls to extend up to 30 inches above a building height limitation; the Sun Watch building has a four foot parapet wall, but its variance application did not seem take advantage of the extra 30 inches allowable under the Code.) No application for the variance actually required for the proposed Sun Watch building ever has been presented to the Board for approval.

   
   

7. There was some evidence that the additional height of the proposed Sun Watch condominium would interfere with the view of some of the neighbors in the building immediately to the north, that the reduced light reaching the building immediately to the north will adversely affect the heating and cooling of the building, causing increased electric bills, and that the proposed Sun Watch condominium would impair the value of the units in the building immediately to the north. The application and evidence did not clearly prove the contrary.

   
   

   CONCLUSIONS OF LAW

   
   

8. The standards for approval of an application for a variance are set out in Section 45.24 of the City of Clearwater Land Development Code (the Code), which provides:

   
   

   A variance shall not be granted unless the application 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. . . ..

   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 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 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.

   
   

9. Appeals from decisions of the Board are governed by Section 36.065 of the Code, which provides in pertinent part:

   
   

   1. Purpose. It is the purpose of this section to provide an administrative process for appealing decisions rendered on variances and conditional uses by the development code adjustment board and the planning and zoning

      board respectively, prior to any available recourse in a court of law. In particular, it is intended that such administrative relief be provided in the most professional, objective and equitable manner possible through the appointment of a hearing officer to adjudicate matters as provided in this section. The function of the hearing officer shall

      be to serve as the second step of a two-step administrative process relating to variances and conditional uses.

      * * *

      1. Conduct of the hearing. Conduct of the

         hearing before the hearing officer shall be as follows:

         * * *

         1. The hearing officer shall have the authority to determine the applicability and relevance of all materials, exhibits and testimony and to exclude irrelevant, immaterial or repetitious matter.

         2. The hearing officer is authorized to administer oaths to witnesses.

         3. A reasonable amount of cross examination of witnesses shall be permitted at the discretion of the hearing officer.

         * * *

      2. Decision. The decision of the hearing officer shall be based upon the following criteria and rendered as follows:

      1. The hearing officer shall review the record and testimony presented at the hearing before the board and the hearing officer relative to the guidelines for consideration of conditional uses or variances as contained in chapter 41, article II, or chapter 45, respectively. Although additional evidence may be brought before the hearing officer, the hearing shall not be deemed a hearing de novo, and the record before the board shall be incorporated into the record before the hearing officer, supplemented by such additional evidence as may be brought before the hearing officer.

      2. The hearing officer shall be guided by the city comprehensive plan, relevant portions of this Code and established

         case law.

      3. The burden shall be upon the appellant to show that the decision of the board cannot be sustained by the evidence

         before the board and before the hearing officer, or that the decision of the board departs from the essential requirements of law.

      4. The hearing officer's determination shall include appropriate findings of fact, conclusions of law and decision

      in the matter of the appeal. The hearing officer may affirm or reverse

      the decision of the board, and may impose such reasonable conditions as the board may have imposed.

      
      

10. These provisions appear to provide for a curious hybrid proceeding that is an appellate review on the one hand, in the sense that the issue is whether the evidence sustains the board's decision, and a de novo proceeding on the other hand, in the sense that additional evidence can be adduced at the appeal hearing. In other words, whether the Board's decision is sustainable under the pertinent law is tested not only against the evidence presented before it but also against the evidence presented before the Hearing Officer.

    
    

11. It is concluded that the Appellant has not met its burden of proving that the evidence does not sustain the Board's decision that the application and evidence do not clearly support the conclusion that the standards for approval set out in Section 45.24 of the Code have been met.

    
    

12. The application and evidence presented do not clearly support the conclusion that 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, or that the variance requested arises from a condition which is not created by the Appellant's action.

    
    

13. The application and evidence presented do not clearly support the conclusion that the particular physical surroundings, shape or topographical conditions of the property involved and the strict application of the provisions of the Code would result in an unnecessary hardship upon the applicant.

    
    

14. Even assuming a hardship, the application and evidence presented do not clearly support the conclusion that the variance requested would be the minimum necessary to overcome any unnecessary hardship for the purpose of making reasonable use of the land.

    
    

15. The application and evidence presented do not clearly support the conclusion that the request for a variance is not based primarily upon the desire of the Appellant to secure a greater financial return from the property.

    
    

16. The application and evidence presented do not clearly support the conclusion that the variance will not impair an adequate supply of light or ventilation to adjacent property, or impair the value of surrounding property.

    
    

17. The application and evidence presented do not clearly support the conclusion that the variance will not violate the general spirit and intent of the Code.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of Law, the decision of the City of Clearwater Land Development Code Adjustment Board denying the application of the Appellant, Sun Watch, Inc., for a five foot building height variance for its property located at 670 Island Way, Clearwater, Florida, is affirmed.

DONE AND ORDERED this 25th day of March, 1994, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 25th day of March, 1994.

COPIES FURNISHED:

R. Carlton Ward, Esquire Mark D. Breakstone, Esquire Richards, Gilkey, Fite,

Slaughter, Prater & Ward, P.A.

1253 Park Street

Clearwater, Florida 34616

Miles A. Lance, Esquire Assistant City Attorney City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

Cynthia Goudeau City Clerk

City of Clearwater Post Office Box 4748

Clearwater, Florida 34618-4748

Docket for Case No: 93-006819

Orders for Case No: 93-006819