STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. S. HOME CORPORATION, )

   RUTENBERG DIVISION, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 81-2162

   )

   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 30 October 1981 at Clearwater, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Jessica Capps, Esquire

   2915 State Road 590

   Clearwater, Florida 33519

   
   

   For Respondent: Frank Kowalski, Esquire

   Assistant City Attorney Post Office Box 4748 Clearwater, Florida 33518

   
   

   By letter dated August 24, 1981, U.S. Home Corporation, Petitioner, by and through its agent, appeals the denial of its request for a variance to erect a six-foot high wall along Landmark Drive to protect its condominium development from car headlights and traffic noises. At the hearing one witness was called by Petitioner, one witness was called by Respondent and three exhibits were admitted into evidence.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner is developing a tract of land bordering on Landmark Drive in the Countryside area of Clearwater by erecting condominiums thereon. The area along Landmark Drive is predominantly single family residential, zoned RS-50, and Petitioner's property is zoned RM-16 (medium density multi-family). There are no commercial developments along Landmark Drive in this vicinity except for a maintenance area associated with the golf course.

      
      

   2. Since Petitioner's property fronts on Landmark Drive, the zoning provisions limit the height of a fence that can be erected in the setback area to 30 inches (2.5 feet). Petitioner is here requesting a variance to erect a six-foot high wall.

   3. On other property along Landmark Drive it is considered the side of the property (instead of the front) faces Landmark Drive. For property siding on Landmark Drive (as opposed to fronting) the code allows a four-foot high fence.

      
      

   4. Petitioner's property is located along a curve of Landmark Drive and headlights of cars entering this curve could shine into two of the eight condominiums proposed. Landmark Drive is currently heavily traveled and more traffic is expected on this road in the future.

      
      

   5. The purpose of the fence zoning regulation is to keep the spaces open. At present only two fences exceeding code requirements exist on Landmark Drive in this area. One is at the maintenance area of the golf course and the other resulted from a variance granted on an after-the-fact application. The board found hardship would have resulted had the variance been denied. The fence for which that variance was granted was only a few feet into the setback area and the location of a swimming pool made it impracticable to relocate the fence.

      
      

   6. The previous practice of granting most applications for fence height variances alongside heavily travelled roads has been changed.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   8. 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 same 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.

         
         

   9. In this case there is no basic difference between Petitioner's land fronting on Landmark Drive while other property is deemed to side on Landmark Drive. The latter is entitled to erect a four-foot fence while Petitioner is limited to a 2.5-foot fence. In this respect Petitioner is deprived of rights enjoyed by other property owners, viz. the right to erect a four-foot fence.

   10. In this appeal the burden is upon 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 Petitioner failed to carry insofar as the erection of the six-foot high wall applied for is concerned. If applied for, Petitioner should be granted a variance to erect a four-foot high wall in the same position covered by the instant application.

       
       

   11. From the foregoing it is concluded that U.S. Home Corporation, Rutenberg Division, has failed to prove by a preponderance of the evidence that it should be granted a variance to erect a six-foot high wall along its property on Landmark Drive. From the evidence presented U.S. Home Corporation, Rutenberg Division, should be granted a variance to erect a four-foot high wall. It is, therefore,

ORDERED that the appeal of U.S. Home Corporation, Rutenberg Division, for a variance to erect a six-foot high wall along its property on Landmark Drive in 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:

Jessica Capps, Esquire 2915 S.R. 590

Clearwater, Florida 33519

Frank Kowalski, Esquire Assistant City Attorney City of Clearwater

Post Office Box 4748 Clearwater, Florida 33518

Docket for Case No: 81-002162

Orders for Case No: 81-002162