STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERALD YEGGE, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2935

)

CITY OF CLEARWATER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in the above-styled case on March 10, 1982, in Clearwater, Florida.

APPEARANCES

For Petitioner: W. Thompson Thorn, III, Esquire

ANDERSON, THORN, GROSE & QUESADA, P.A.

711 Grand Central Street Clearwater, Florida 33516

For Respondent: Thomas A. Bustin, Esquire

City Attorney

Post Office Box 4748 Clearwater, Florida 33518

This is an appeal from a ruling of the Clearwater Board of Adjustment and Appeal on Zoning denying Gerald Yegge (Petitioner herein) application for a variance to erect a recreation/community meeting room on his property located at

407 South Mars Avenue, Clearwater, Florida.

At the hearing, the transcript of the hearing before the Board was admitted into evidence, along with supporting papers of the Board of Adjustment and Appeal on Zoning at its hearing on November 12, 1981. At the conclusion of the hearing, the parties requested, and were granted, leave to submit proposed findings of fact and conclusions of law which were considered by me in preparation of this Final Order. The parties submitted proposed findings of fact and conclusions of law and were received by the undersigned on April 1, 1982. 1/

FINDINGS OF FACT

Based on the testimony adduced at the hearing and the entire record compiled herein, the following relevant facts are found.

1. Petitioner seeks three variances as follows: (a) a variance of 13 feet from the real property line rather than the 15 feet required by the Code; 2/

   (b) a variance of 12 feet 6 inches from the south property line rather than the

   15 feet required by the Code; and (c) a variance of 15 feet from the side of the adjacent building rather than the 20 feet required by the Code. The real property, which is the subject of the application for variance, is zoned CG (general business district) according to Respondent's Code. However, Respondent is allowing the property owners to utilize the standards of RM-28 (high density multi-family use) zoning in order that property owners can develop the subject property to maximum density.

   
   

2. The property is developed, and has been, as a six-unit apartment building since 1977. The lot area of the subject real property is 10,000 square feet, which is the minimum lot area in RM-28 districts. Petitioner asserts that the subject variance is needed in order to allow for the construction of a meeting or recreational room for tenants who reside at the six-unit apartment building. Additionally, Petitioner asserts that the facility will allow adequate storage space for its tenants. However, noteworthy was the absence of any residing tenants who could express, or otherwise demonstrate, a need for a community meeting or recreational room.

   
   

3. None of the other properties in the area, similarly developed, have a meeting or recreational room.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.65(6), Florida Statutes, and Section 35.10, Code of Ordinances.

   
   

5. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes,

   
   

6. The City of Clearwater zoning regulations set forth, in particular, in Section 131.016(e), provide that an applicant must first establish the existence of certain criteria, the presence of which demonstrates that either an unnecessary hardship or practical difficulty exists warranting the grant of such variance. Those criteria are set forth in Section 131.016(e)(1) of the Code for the City of Clearwater as follows:

   
   

   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 buildings involved and which are not applicable to other lands, building, or structures in the same district.

      2. That literal 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, did 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.

         No nonconforming use of neighboring lands, structures or buildings in the same district, and no permitted use of land, structures or buildings in other districts shall be considered grounds for the issuance of a variance.

         
         

         Additionally, the Board of Adjustment and Appeal on Zoning or the undersigned is required to make a finding that the reasons set forth in the application justify the granting of the variance, and that the variance is the minimum variance that will make possible the reasonable use of the land, building or structure.

         
         

7. Petitioner has not presented evidence which will provide a basis for concluding that he either fits within the threshold criteria set forth in Section 131.016(e)(1) or that without the grant of the requested variance, no reasonable use of the property could be made. To the contrary, the property is developed to the highest residential use permitted and therefore, the grant of a variance is not necessary, in this case, to allow Petitioner a reasonable use of the subject property.

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED:

That the Petitioners application for the subject variance as set forth herein is hereby DENIED.

DONE and ORDERED this 7th day of May, 1982, in Tallahassee, Florida.

JAMES E. BRADWELL, 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 7th day of May, 1982.

ENDNOTES

1/ To the extent that the parties' proposed findings of fact and conclusions of law are not incorporated herein, they were deemed either irrelevant, immaterial, or not otherwise supported by the evidence of record.

2/ As the term Code is used herein, it refers to Title XI, Building and Zoning regulations of the Code of Ordinances, Clearwater, Florida.

COPIES FURNISHED:

W. Thompson Thorn, III, Esquire ANDERSON, THORN, GROSE,

& QUESADA, P.A.

711 Grand Central Street Clearwater, Florida 33516

Thomas A. Bustin, Esquire City Attorney

Post Office Box 4748 Clearwater, Florida 33518

Mrs. Lucille Williams City Clerk

City of Clearwater Clearwater, Florida 33518

Docket for Case No: 81-002935

Orders for Case No: 81-002935