STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES W. and BRENDA N. WALTER, )

)

Appellants, )

)

vs. ) Case No. 97-0035

) OLEN K. and PAMELA A. MARKS, JR., ) and the CITY OF CLEARWATER, )

)

Appellees. )

)

FINAL ORDER

An administrative hearing was conducted in this proceeding on March 28, 1997, in Clearwater, Florida, before Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Appellants: Patrick Maguire, Esquire

Law Offices of Patrick Maguire

308 North Belcher Road Clearwater, Florida 34625

For Appellees, Olen K. Marks, Jr. and Pamela

A. Marks: E.D. Armstrong, III, Esquire

Johnson, Blakely, Pope, Bokor, Ruppel and Burns, P.A.

911 Chestnut Street Post Office Box 1368

Clearwater, Florida 34616-5643

For Appellee, City of

Clearwater: Leslie K. Dougall-Sides

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 decision of Appellee, City of Clearwater (the "City"), through its Development Code Adjustment Board (the "Board"), to grant a variance that would allow a 7.5-foot side setback for a single family residence proposed by Appellees, Olen K., Jr. and Pamela A. Marks (the "Marks"), is supported by competent and substantial evidence and does not depart from the essential requirements of law.

PRELIMINARY STATEMENT

On December 12, 1996, the Board approved the Marks' application for a variance. Appellants filed a Notice of Appeal on December 20, 1996. The City requested the Division of Administrative Hearings ("DOAH") to hear the appeal.

At the hearing, the record of the Board meeting conducted on December 12, 1996, was admitted pursuant to Code of Ordinances Section 36.065(5)(c). 1/ The parties presented the testimony of four witnesses and submitted 13 exhibits for admission in evidence.

The identity of the witnesses and exhibits and the rulings regarding each are set forth in the transcript of the hearing filed on July 8, 1997.

The City filed its proposed final order ("PFO") on May 1, 1997. The Marks did not file a PFO. Appellants filed their PFO on August 4, 1997.

The City objected to Appellants' PFO as untimely. The City's objection is sustained.

FINDINGS OF FACT

1. The Marks seek to build a single family residence and detached, four-car garage. The proposed residence is a two-story structure.

2. Both floors of the residence are to be constructed over a recreational area on the ground floor that includes a swimming pool. The residence and recreational area will encompass approximately 5,000 to 6,000 square feet of floor space.

3. The proposed construction site is a lot that is approximately one acre. It is located in a residential area of the City known as Harbor Oaks subdivision.

4. Harbor Oaks is an area of low-density residential land use. The homes in Harbor Oaks are generally estate homes that are non-conforming structures under the City's land development code. Most of the homes in the immediate vicinity of the construction site were built in the late 1920s and early 1930s, including a home that once occupied the Marks' property and was subsequently razed by the previous owners.

5. The construction site is one of approximately 12 lots within the block occupied by Appellants and the Marks. Each of the

   12 lots on the block are far more similar than they are different. They share similar topography, size, shape, and physical surroundings.

6. A bluff runs across the back of the 12 lots and terraces down toward Clearwater Harbor. The bluff is a unique topographic feature of the City. Protection of the bluff is one of the goals of the City's comprehensive plan.

7. Each lot fronts Druid Road to the east and abuts Clearwater Harbor to the west. The Intercoastal Waterway runs through the Harbor.

8. Like the other 12 lots on this block, the Marks' lot is long and narrow. It is approximately 94.43-feet wide at its eastern boundary on Druid Road. At its western boundary on Clearwater Harbor, the lot is an equivalent width.

9. The northern boundary of the construction site is approximately 440-feet long. Its southern boundary is approximately 430.52-feet long. The southern boundary of the construction site is the northern boundary of Appellants' lot.

10. The northern boundary of Appellants' lot is approximately 430.52-feet long. The southern boundary is approximately 418-feet long.

11. Appellants' lot is approximately 94.90-feet wide at its eastern boundary on Druid Road. It is approximately 91.62-feet wide at its western boundary on Clearwater Harbor.

12. All 12 of the lots on the block are zoned RS 2. RS 2 zoning requires 15-foot side setbacks. The Marks seek a variance that would allow a side setback of 7.5-feet. 2/

1. The Board Meeting

   1. The Marks' presented their application and supporting evidence at the Board's regular meeting conducted on December 12, 1996. The Marks' architect represented them before the Board. Appellants were represented by their attorney.

   2. The Board considered evidence consisting of the unsworn presentation of its staff report, the sworn testimony of the representatives for the Marks and the Appellants, a document that is hearsay and purports to evidence the acquiescence to the variance by the Marks' neighbor to the north, and the unsworn statement of Mr. Marks. The Board discussed the evidence and related issues. A motion to grant the variance was made, seconded, and approved by a 4-1 vote; subject to two standard conditions that are not relevant or material to this proceeding.

   3. Appellants appealed the decision of the Board in accordance with the requirements of Code Sections 36.065(2) and (3). The matter was referred to DOAH for assignment of an Administrative Law Judge to hear the appeal.

2. Scope Of Review

   1. Unlike an administrative hearing conducted pursuant to Section 120.57(1), Florida Statutes (1995), 3/ this is not a de novo hearing. It is an appellate hearing.

   2. Where an administrative tribunal such as DOAH acts in an appellate capacity, the lower administrative tribunal, the Board in this case, is the finder of fact. DOAH does not reweigh the

      evidence or formulate final agency action. The appellate review is limited to a determination of whether the Board's findings are supported by competent and substantial evidence. 4/

   3. The City has created a peculiar procedure for appellate review of the Board's decision. The City requires the Administrative Law Judge to determine whether the Board's decision is supported by competent and substantial evidence before the Board at the time of its meeting and by additional evidence before the Administrative Law Judge, even if the additional evidence was not before the Board when the Board made its decision. In relevant part, Code Section 36.065(6)(a) provides:

      Although additional evidence may be brought before the . . . [judge], the hearing shall not be deemed a hearing de novo, and the record before the board shall be incorporated into the record before the . . . [judge], supplemented by such additional evidence as may be brought before the . . . [judge]. (emphasis supplied)

   4. Code Section 36.065(6)(d) limits the Administrative Law Judge to a decision that either affirms or reverses the decision of the Board. The Administrative Law Judge can impose any reasonable conditions that the Board could have imposed. However, no other exception to the requirement to affirm or reverse the Board's decision is authorized in the Code.

   5. Code Section 36.065(6)(b) requires the decision of the Administrative Law Judge to be guided by the City's comprehensive plan and established case law. In addition, Code Section 36.065(6)(a) requires the decision of the Administrative Law Judge

      to be based on evidence relevant to the guidelines prescribed in the Code for variances. In relevant part, Code Section 36.065(6)(a) provides:

      The . . . [judge] shall review the record and testimony presented at the hearing before the board and the . . . [judge] relative to the guidelines for consideration of . . . variances as contained in . . . chapter 45

      . . . .

   6. The guidelines for consideration of variances are prescribed in Code Section 45.24. Code Section 45.24 provides:

      A variance shall not be granted unless the application and evidence presented clearly support all of the following conclusions:

      1. There are special circumstances related to the particular physical surroundings, shape or topographical conditions applicable to the land or buildings, and such circumstances are peculiar to such land or buildings and do not apply generally to the land or buildings in the applicable zoning district.

         
         

      2. The strict application of the provisions of the code would deprive the applicant of the reasonable use of the land or buildings.

         
         

      3. The variance is not based exclusively upon a desire for economic or other material gain by the applicant or owner.

         
         

      4. The granting of the variance will be in harmony with the general purpose and intent of the land development code and comprehensive plan and will not be materially injurious to surrounding properties or otherwise detrimental to the public welfare.

   7. The motion to approve the Marks' application for a variance included a proposed finding that the application and evidence clearly support a conclusion that all of the guidelines for variances prescribed in Code Section 45.24 were met. In relevant part, the motion stated:

   I move to grant the variance . . . because the applicant has substantially met all of the standards for approval as listed in Section

   45.24 . . . . I feel there are special circumstances. I feel that strict application of the provisions of the Code would deprive the applicant of the reasonable use of the land or buildings. I feel that waterfront property and the type of . . . expensive home being built that what's proposed is a reasonable use of

   . . . this unique property. I don't feel that the variance . . . is based exclusively upon the applicant's desire for economic or material gain. And, finally, I don't believe that, if we grant this variance, it would have a negative impact; certainly not on the neighborhood, and I don't believe on Mr.

   Walter's property because of the fact that his view would not be impaired. . . . Therefore, I think we should grant it subject to the two conditions as recommended by staff.

   Tape of Board Meeting on December 12, 1996 ("Taped Record"). The motion was seconded and approved by 4 to 1 vote.

3. Material Gain And Public Welfare

   23. It is uncontroverted that the variance is not based exclusively upon a desire for economic or other material gain by the Marks within the meaning of Code Section 45.24(3). The granting of the variance will not be detrimental to the public welfare within the meaning of Code Section 45.24(4).

4. Comprehensive Plan

   1. As a threshold matter, the Board made no express finding that the contested variance is in harmony with the general purpose and intent of the land development code and comprehensive plan within the meaning of Code Section 45.24(4). Even if such a finding were deemed to arise by necessary implication, it is not supported by competent and substantial evidence before the Board and the Administrative Law Judge.

   2. One of the purposes of the land development code and comprehensive plan is to eliminate non-conforming uses. Neither the code nor the plan seeks to perpetuate non-conforming uses.

   3. Numerous variances have historically been granted in Harbor Oaks. The Board granted the variance, in part, based on evidence of similar variances previously given for homes in Harbor Oaks, including Appellants' home.

   4. A decision to grant a variance based on variances previously given perpetuates non-conforming uses. 5/ It does not eliminate them.

   5. A decision to grant a variance because previous variances were granted is not in harmony with the comprehensive plan's goal of eliminating non-conforming uses. Such a decision is not guided by the comprehensive plan within the meaning of Code Section 36.065(6)(b).

   6. The proposed residence will be constructed on the bluff that runs the length of the block. The bluff is a unique topographic feature of the City. Protection of the bluff is a goal and objective of the City's comprehensive plan.

   7. The Board made no express finding that construction of the proposed residence and recreation area on the bluff will harmonize with the goal of the comprehensive plan to protect the bluff. Even if such a finding were deemed to arise by necessary implication, it is not supported by competent and substantial evidence before the Board and the Administrative Law Judge.

   8. The primary reason for building the house on the bluff is the protection of three oak trees in front of the house. The oak trees are specimen oak trees. The respective circumference of each tree is 42, 42, and 60 inches.

   9. The evidence before the Board showed:

      There are several reasons for the way we have situated the house on the piece of property. There are the three large oak trees. One's 42 inches, and the other one's 42, and then there is a 60. They sit approximately 170 feet back from Druid Road, and then there's another 54 inch oak . . . [on adjacent property] which is to the north . . . and its tree limbs go over

      . . . almost the total front of this piece of property. . . . All these houses I'm talking about . . . were developed in the late 20s, early 30s. There was a house that was on this piece of property that was tore down, and it actually was built . . . in front of the oak trees. . . . We don't have enough width in the lot to put the traditional garage that would face the street in combination with the tree situation. So, what we're doing, we're putting the garage sideways. It'll be a free standing building. It is roughly 80 feet back from

      Druid Road. And, then the main front of the house . . . is actually going to be built on top of that bluff, and it is about 190 feet back from the street. . . .

   10. In rebuttal to testimony by Appellants' attorney at the Board meeting, the Marks' architect testified as follows:

       The trees . . . in the middle of the property obviously that is something that attracted us to the property because of the beauty of the trees, but we know the difficulty of building around them. . . . [W]e . . . decided to build the house on the back side of the trees because we didn't want to have a view We're

       going to have to come right up to the back

       . . . . And, those are obviously very large trunk trees. So, the idea was to put the house to the back side so that our view was not blocked by the trees. But, we want to keep the trees because obviously it enhances the property. I mean that is the beauty of the property; the trees. So, it's either the front or the back, and we determined to be on the back. . . .

       Taped Record.

   11. The Board granted the variance, in part, to preserve the oak trees. That goal is evidenced by the statement of one of the Board members on the record before the Board voted:

       Before I forget, I wanted to do something unusual . . . and commend [the architect] upon the imagination of his plans. I think those trees are just fantastic, and I'm not a tree man. But, that's a beautiful layout in taking those trees in . . . .

       Taped Record.

   12. No evidence shows that the preservation of oak trees is either an express or implied goal of the City's comprehensive plan or, if it is, that it takes priority over the express goal of protecting the bluff. There is no evidence that the decision to

   approve a variance for construction on the bluff in order to spare oak trees is in harmony with the comprehensive plan within the meaning of Code Section 45.24(4). Such a decision is not guided by the City's comprehensive plan within the meaning of Code Section 36.065(6)(b).

5. Reasonable Use

   1. The Board's finding that strict application of the 15- foot setback requirement will deprive the applicant of the reasonable use of the land or buildings, within the meaning of Code Section 45.24(2), is not supported by competent and substantial evidence before the Board and the Administrative Law Judge.

      Rather, evidence before the Board and the Administrative Law Judge clearly shows that the Marks can build a house of 5,000 to 6,000 square feet on the property without the contested variance.

   2. The Marks can construct a residence with the same footprint, but without the contested variance, by moving the residence to the front of their lot and removing the oak trees. If the Marks do not wish to destroy the trees, they can change the configuration or size of the proposed residence at its current location. Alternatively, the Marks can build the proposed residence in front of the oak trees.

   3. At the Board meeting, the attorney for Appellants asked the architect for the Marks the following question:

      Can a 5 to 6,000 square foot home be built on the applicant's property without the granting of the side setback variances?

      The architect answered:

      Yes, the house can be built. But, it can't take full utilization of this piece of property. And, there is a big difference.

      Taped Record.

   4. Code Section 45.24(2) does not require the evidence to clearly show that failure to grant a variance would deprive the applicants of the full utilization of their property. It requires the evidence to clearly show that failure to grant a variance would deprive the applicants of the reasonable use of their property.

   5. There can be a "big difference" between full utilization and reasonable use. Moving the residence toward Druid Road so that the foundation, recreation area, and pool are not constructed on the bluff does not deprive the applicants of the reasonable use of their property. The applicants can build the identical house with no variance by eliminating the oak trees. If the applicants choose to preserve the trees, they can do so by changing the size or configuration of the residence in its current site or by moving the site in front of the trees. Use of the property that includes such an array of choices does not deprive the applicants of the reasonable use of their property within the meaning of Code Section 45.24(2).

6. Injury To Appellants' Property

   1. The Board's finding that the granting of a variance will not be materially injurious to Appellants' property, within the meaning of Code Section 45.24(4), is not supported by competent and

      substantial evidence before the Board and the Administrative Law Judge. The Appellants' representative testified before the Board that the granting of the variance will have:

      . . . an adverse effect on the Walter's home. It's down closer to the Bay, and the way it's situated on the lot, it will cut off a degree or angle of view to the north. . . .

      Especially where this house is proposed to be constructed, that setback encroaches in the light, view, and air issues.

      Taped Record.

   2. The Board limited the scope of its inquiry to a determination of the effect of the variance on the view from Appellants' home. The Board did not inquire into other adverse impacts on Appellants' property.

   3. Other adverse impacts include those caused by the towering effect of the proposed construction. The proposed construction would tower approximately 40 feet over the Appellants' back yard. A 40-foot tower encompassing 5,000 to 6,000 square feet of floor space would encroach into the Appellants' reasonable use of their property including their view, their light, their air, and their privacy. Moving the proposed construction toward Druid Road would reduce the encroachment caused by the current configuration without depriving the Marks of the reasonable use of their property.

7. Special Circumstances

1. The Board's finding that there are special circumstances related to the particular surroundings, shape, or topographical conditions of the Marks' property that do not generally apply to the land or buildings in the zoning district, within the meaning of Code Section 45.24(1), is not supported by competent and substantial evidence. Rather, the record before the Board and the Administrative Law Judge is replete with evidence of the similarities between the construction site and other properties in the neighborhood.

2. The only special circumstance related to the proposed construction site are the oak trees. The City's land development code makes no provision for the protection of the oak trees.

   CONCLUSIONS OF LAW

3. The Division of Administrative Hearings has jurisdiction over the subject matter and parties. The parties were duly noticed for the administrative hearing.

4. When an applicant applies to the Board for a variance, Code Section 45.24 places the burden of proof on the applicant. In relevant part, Code Section 45.24 provides:

   A variance shall not be granted unless the application and evidence . . . clearly support all of the . . . [guidelines for variances]

   . . . .

   When the decision of the Board is appealed, Code Section 36.065 places the burden of proof on the appellant. The appellant may be

   either the applicant or an adjacent property owner, depending on the particular decision appealed.

5. Appellants have the burden of proof in this proceeding. Code Section 36.065(6)(c). Appellants must show that the decision of the Board can not be sustained by the evidence before the Board and before the Administrative Law Judge, or that the decision of the Board departs from the essential requirements of law. Id.

6. The City's Code does not prescribe the standard of proof applicable to an appeal of a Board decision. In the absence of such a statutorily prescribed standard, Appellants must show by a preponderance of evidence that the decision of the Board can not be sustained by competent and substantial evidence or that the decision departs from the essential requirements of law. Florida Department of Transportation vs. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino vs. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Appellants satisfied their burden of proof.

7. The City argues in its PFO that Code Section 36.065(6)(c) imposes upon the Appellants the burden of showing that the contested variance does not meet the criteria prescribed in Code Section 45.24. See, e.g., City's PFO at 9, paragraphs 22-24. Code Section 36.065(6)(c) does not require Appellants to make an affirmative showing in order to prove the negative of an issue.

8. Code Section 36.065(6)(c) requires only that Appellants show there is no competent and substantial evidence to support the Board's decision or that the Board's decision departs from the

   essential elements of law. Appellants do not need to prove, by any standard of proof, that the proposed project does not satisfy one or all of the guidelines prescribed in Code Section 45.24.

9. The City also addresses in its PFO the proper weight to be given to various types of evidence before the Board and before the Administrative Law Judge. It is not the function of the Administrative Law Judge to reweigh the evidence before the Board. O'Neil vs. Pallot et al, 257 So. 2d 59, 61 (Fla. 1st DCA 1972). This is not a de novo hearing. Code Section 36.065(6)(a).

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that decision of the Board is reversed. DONE AND ENTERED this 18th day of August, 1997, in

Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997.

ENDNOTES

1/ Unless otherwise stated, all references to Sections in the Code of Ordinances are to "Code Section."

2/ The Marks actually seek three variances. Variance 1 is a variance for the lot width. RS 2 zoning requires a minimum lot width of 100 feet. Variance 2 is for the side setbacks. Variance

3 is for a wall height of six feet. Appellants do not contest Variance 1 or 3 or a variance for the side setback requirement on the Marks' northern boundary. The only variance contested by Appellants is the variance for a side setback of 7.5 feet on the Marks' southern boundary with Appellants’ property.

3/ All references to chapter and section are to Florida Statutes (1995) unless otherwise stated.

4/ O'Neil vs. Pallot et al, 257 So. 2d 59, 61 (Fla. 1st DCA 1972).

5/ The unsworn presentation of the staff report and recommendations to the Board based its recommendation to grant the variance, in part, upon a finding in the report that the variance was consistent with the general development character of Harbor Oaks. Harbor Oaks is generally characterized by development comprised of non-conforming uses. As the staff member who presented the report stated:

In looking at the general developed character of Harbor Oaks, this doesn't seem to be inconsistent. You could observe numerous non-conformities with regard to the setback requirements.

Taped Record.

COPIES FURNISHED:

Cynthia Goudeau, City Clerk City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

Patrick Maguire, Esquire

Law Offices of Patrick Maguire

308 North Belcher Road Clearwater, Florida 34625

E.D. Armstrong, III, Esquire Johnson, Blakely, Pope, Bokor,

Ruppel and Burns, P.A.

911 Chestnut Street Post Office Box 1368

Clearwater, Florida 34616-5643

Leslie K. Dougall-Sides Assistant City Attorney City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review by common law certiorari review in circuit court. See Code Section 36.065(6)(g).

Docket for Case No: 97-000035

Orders for Case No: 97-000035