STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH WILLIAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 82-005

)

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 formal hearing in the above- styled case on 10 February 1982 at Clearwater, Florida.

APPEARANCES

For Petitioner: William J. Kimpton, Esquire

487 Mandalay Avenue

Clearwater Beach, Florida 33515

For Respondent: Thomas A. Bustin, Esquire

City Attorney

Post Office Box 4748 Clearwater, Florida 33518

By letter dated December 15, 1981, Joseph Williams, by and through his attorney, appeals the denial of a variance request to eliminate off-street parking requirements for property located at 614-620 Mandalay Avenue, Clearwater Beach, Florida. At this hearing the proceedings of the hearing before the Board of Adjustment and Appeal on Zoning was admitted into evidence, Petitioner called two witnesses, one of whom was counsel for Respondent, Respondent called one witness, and three exhibits were admitted into evidence.

FINDINGS OF FACT

1. Petitioner, within the past year, purchased two tracts of property 50 feet by 100 feet located at 614-620 Mandalay Avenue on Clearwater Beach. This property is zoned "CG" or "General Business" and there are four buildings on this property comprising five dwelling units. The land use plan for this location is commercial/tourist facilities.

   
   

2. Petitioner submitted an artist's drawing of what the site could look like if the variance requested was granted. No building permits have been requested; accordingly, no specific plans have been submitted to establish the use to which the property would be put if the variance requested is granted.

   
   

3. The proposal of Petitioner (such as it is) contemplates converting the ground floors of the existing structures to commercial use. If the existing

   buildings were so converted, with the upper floors remaining residential, the zoning code requires provision be made for twenty-eight off-street parking spaces. Since the existing five dwelling units would be credited (grandfathered) for having eight such parking spaces due to the construction having occurred before the zoning code was enacted, Petitioner is requesting a variance for the remaining twenty off-street parking spaces that would be required. Actually, there are no off-street parking spaces on this property but five or six parking spaces exist in the right-of-way for Mandalay Avenue.

   
   

4. There are no off-street parking spaces on Mandalay Avenue in the vicinity of Petitioner's property and none are proposed to be provided by Petitioner. Mandalay Avenue is the main north-south artery on Clearwater Beach and is four-laned in the vicinity of Petitioner's property, which lies near the northern terminus of "CG" zoning.

   
   

5. At the hearing before the Board one witness spoke in favor of the variance requested because the proposal by Petitioner was better than if the property was used for the construction of a high-rise residential unit, which the zoning would permit. Since no specific proposal is before the Respondent for the issuance of a permit, there is no assurance that granting the requested variance would preclude the construction of high-rise residential units.

   
   

6. The dwellings occupying this property were constructed some thirty years ago and are expensive to maintain and are not a very attractive investment.

   
   

7. Petitioner referred to several other businesses where variances in parking requirements have been granted when bars and restaurants on Mandalay Avenue were rebuilt or expanded; however, little evidence was presented that parking variances have been granted when a new use for the property was proposed.

   
   

   CONCLUSIONS OF LAW

   
   

8. This appeal was properly brought in accordance with Section 131.0165 of the City of Clearwater Building and Zoning Code.

   
   

9. Section 131.016 of this Code sets the following criteria that must be met by an applicant for a variance from the terms of the regulations:

   
   

   1. That special conditions and circumstances exist which are peculiar to 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.

      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.

      
      

10. Petitioner has not established that his application for variance meets these criteria. While parking is a problem throughout Clearwater Beach, the solution thereto does not lie in granting waivers or variances to those finding the regulations onerous. Exceptions are special privileges and one seeking the exception (or variance) must strictly comply with the requirement for same. Here, Petitioner could be required to provide twenty-eight parking spaces if the usage is changed and no parking spaces were grandfathered. He proposes to provide none. As so aptly noted in Hamilton v. City of Clearwater, DOAH Case No. 81-1928, dated 4 December 1981:

Such an extreme variation from the requirements of the building and zoning regulations would constitute an amendment to the regulations, not a variance from them.

Amendments to the building and zoning regulations should be accomplished through ordinances adopted by the City Commission, not through individual variance requests.

FINAL ORDER

Based upon the foregoing findings of fact and conclusions of law, it is hereby

ORDERED:

That the decision of the City of Clearwater Board of Adjustment and Appeal on Zoning denying the application of Joseph Williams for a variance from the off-street parking requirements of the City of Clearwater Building and Zoning Regulations is hereby AFFIRMED, and the application is hereby DENIED.

DONE AND ORDERED this 4th day of March, 1982, at 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 4th day of March, 1982.

COPIES FURNISHED:

William J. Kimpton, Esquire

487 Mandalay Avenue

Clearwater Beach, Florida 33515

Thomas A. Bustin, Esquire City Attorney

Post Office Box 474'8 Clearwater, Florida 33518

Ms. Lucille Williams City Clerk

Post Office Box 4748 Clearwater, Florida 33518

Docket for Case No: 82-000005

Orders for Case No: 82-000005