STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENNIS GODSEY, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 81-1767

)

CITY OF CLEARWATER, )

)

Respondent. )

)

RECOMMENDED 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 26 October 1981 at Clearwater, Florida.

APPEARANCES

For Petitioner: Michael F. Hickey, President

Florida Fence

2551 Ulmerton Road

Largo, Florida 33541

For Respondent: Thomas A. Bustin, Esquire

City Attorney

Post Office Box 4748 Clearwater, Florida 33518

By letter dated July 6, 1981, Dennis Godsey, Jr., Petitioner, by and through his representative, appeals the rejection of his application for a variance to construct a six-foot fence on his property at 3387 Atwood Court, Clearwater, Florida. As grounds for the appeal it is alleged that similar variances have been granted to others and that failure to grant Petitioner a variance will create a hardship in that his children need a safe enclosure from the heavy traffic on Landmark Drive.

At the hearing Petitioner testified on his own behalf and one witness was called by Respondent.

FINDINGS OF FACT

1. Petitioner owns Lot 67 Countryside, Tract 60, which fronts on Atwood Court, with a small side (approximately 45 feet) facing Landmark Drive.

   Landmark Drive is a main thoroughfare with heavy traffic expected to increase as the area continues to grow.

   
   

2. Landmark Drive is a non-addressed street on which a property owner would be permitted to erect a four-foot high fence on the property line. If Petitioner moved the fence 25 feet back from the property line the zoning regulations would permit the erection of a six-foot high fence. Moving the

   fence this far would place the fence some 50 feet from the right-of-way of Landmark Drive and would take up so much of Petitioner's property that his future plans to install a swimming pool would be thwarted.

   
   

3. In the one and one-half mile stretch of Landmark Drive in the vicinity of Petitioner's property only two fences have been erected which required variances and those encroach only one or two feet into the setback line.

   
   

4. At the same time Petitioner's request for variance was denied the board granted a variance to another owner in the same subdivision who had put up a fence without getting a variance. There, the board found it would constitute a hardship to require that landowner to remove or relocate his fence since a swimming pool was also involved.

   
   

5. Other applications for variances to erect fences on property fronting on Landmark Drive have been denied in the past.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Section 131.016 of the City of Clearwater Building and Zoning Regulations establishes the criteria for the board to grant variances from those regulations by providing that variances shall not be granted unless and until:

   
   

   1. A written application for a variance is submitted stating substantially that certain of the following exist:

      1. That special conditions and circumstances exist which are peculiar to the land, structure or building involved and which are not applicable to other lands, buildings or structures in the same district.

      2. That liberal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the sane district under the terms of this chapter.

      3. That the special conditions and circumstances referred to in subsection a. above, do not result from the actions of the applicant.

      4. That granting the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other lands, structures or dwellings in the same district.

      
      

8. In this appeal the burden is upon the Petitioner to establish by a preponderance of the evidence that one or more of the above-quoted provisions are applicable to his request for a variance and that the decision of the Board of Adjustment and Appeal on Zoning was erroneous. This burden the Petitioner has failed to carry. It is, therefore,

ORDERED that the appeal of Dennis Godsey, Jr., for a variance to erect a six-foot high fence three feet from the property line of his property at 3387 Atwood Court, Clearwater, Florida, be denied.

ENTERED this 13th day of November, 1981, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1981.

COPIES FURNISHED:

Michael F. Hickey, President Florida Fence

2551 Ulmerton Road

Largo, Florida 33541

Thomas A. Bustin, Esquire City Attorney

City of Clearwater Post Office Box 4748

Clearwater, Florida 33518

Docket for Case No: 81-001767

Orders for Case No: 81-001767