STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WALTER J. ZAWADA, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1397

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Donald R. Alexander, held a formal hearing in this case on June 22, 1982, in Clearwater, Florida.

APPEARANCES

For Petitioner: Thomas P. Tafelski

12841 66th Street North Largo, Florida 33543

For Respondent: Thomas A. Bustin, Esquire

City Attorney

Post Office Box 4748 Clearwater, Florida 33518

BACKGROUND

By his application, Petitioner, Walter J. Zawada, sought a side setback variance to erect a pool enclosure two feet from his north property line on Lot 43, College Hill Estates, located at 731 Oberlin Drive, Clearwater, Florida. On March 4, 1982, the City of Clearwater Zoning Enforcement Officer denied the application on the ground it failed to conform with Section 131.033(5)(c) , Code of Ordinances. Pursuant to the provisions of Section 131.016, Code of Ordinances, the decision was appealed on March 9, 1982, to the City of Clearwater Board of Adjustment and Appeal on Zoning. The Board considered the request at its April 22, 1982, meeting and the same was denied.

The instant case arises from an appeal of that decision by Petitioner on May 3, 1982, pursuant to Section 131.0165, Code of Ordinances. That section provides a process for any party in interest to appeal a decision of the Board to a Zoning Appeal Hearing Officer. Under a contractual agreement entered into by the City of Clearwater and the Division of Administrative Hearings, and authorized by Subsection 120.65(6), Florida Statutes, and Section 131.0165(e)(1), Code of Ordinances, the undersigned Hearing Officer was designated as Zoning Appeal Hearing Officer.

The final hearing was held on June 22, 1982, in Clearwater, Florida. At the final hearing Petitioner presented the testimony of Thomas P. Tafelski, who

is president of the firm that wishes to construct the pool enclosure on Petitioner's property, and offered Petitioner's Composite Exhibit 1 which was received into evidence. Respondent presented the testimony of John Richter, Chief of the Planning Division of the City Planning Department.

Under the provisions of Section 131.0165(c)(3), Code of Ordinances, the record of the Board's meeting on April 22, 1982, has been made a part of this record.

The issue herein is whether Petitioner's application for a side setback variance to erect a pool enclosure on his north property line should be granted.

Based upon the entire record, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Walter J. Zawada, is the owner of Lot 43 in College Hill Estates located at 731 Oberlin Drive, Clearwater, Florida. A residential home is situated on the lot. The property is currently zoned RS-75 (Single-Family Residence District) and was created primarily for single-family residential development.

   
   

2. A large oak tree sits in the front yard of Zawada's property. In order to avoid cutting down the tree, the house was constructed approximately seven feet closer to the rear property line. Consequently, the back yard is smaller in size than other property owners in the neighborhood.

   
   

3. Petitioner has constructed a 15' x 30' swimming pool in his back yard. He has also placed a concrete deck around the pool. A six foot-wooden privacy fence has been erected on the rear and side property lines. Because of the small back yard, a distance of only eight feet, nine inches lies between the edge of the pool and the north side property line. The concrete deck is only two feet from the line.

   
   

4. Petitioner wishes to construct an aluminum enclosure on the north side of the pool. An enclosure is required to shield the pool from oak tree leaves that have clogged the pool filter.

   
   

5. Existing zoning regulations dictate that the minimum setback from the side property line for swimming pool enclosures be no less than six feet. Under the plans submitted by Petitioner, the enclosure would be erected two feet from the side property line, thereby requiring a four-foot variance from existing regulations.

   
   

6. Petitioner contends the variance is necessary because, if none were granted, the enclosure would have to be constructed on top of the concrete decking. This in turn would leave only two feet, seven inches of space between the edge or lip of the pool and the inside of the enclosure. Petitioner estimates that at least three feet of space is necessary in order to safely permit construction of the enclosure. He also points out that the home is unique to other property owners because a large oak tree in the front yard resulted in a smaller back yard in which to place a swimming pool.

   
   

7. The City opposes the application on the ground Petitioner created a self-imposed hardship. It reasons that he constructed the pool and deck too close to the property line and gave no consideration to the space that would be

   required should an enclosure be constructed at a future date. Therefore, it contends Petitioner does not qualify for a variance.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.65(6), Florida Statutes, and Section 131.0165, Code of Ordinances.

   
   

9. Section 131.033(5)(c), Code of Ordinances, requires that within the RS-

   75 district, swimming pool enclosures shall have a side minimum setback of not less than six feet from the lot line.

   
   

10. In order for Petitioner to deviate from the above requirement, it is necessary that he apply for an area variance. A variance is defined as ". . .a modification of the zoning ordinance regulations when such variance will not be contrary to the public interest and when, owing to conditions peculiar to the property and not the result of the actions of the applicant, a literal enforcement of the ordinance would result in unnecessary and undue hardship." Subsection 163.170(8), Florida Statutes.

    
    

11. Subsections 13.01.6(e)(1)a-d, Code of Ordinances, enumerate the criteria that must be met in order for a variance to be granted. They include:

    
    

    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.

       
       

12. The evidence discloses that Petitioner's property is indeed peculiar to other lots in the immediate area in that a large oak tree in the front yard required that the home be built closer to the rear property line. As a result, he has a smaller back yard than other area homes.

    
    

13. However, there has been no showing that the setback requirement for RS-75 deprives Petitioner of rights enjoyed by others. Further, the unique circumstances in which Petitioner finds himself have arisen as a result of his own actions. That is to say, he constructed the existing pool and deck on the

present site without considering the distance that would be required to erect an enclosure at a later date. Therefore, the hardship is self-imposed and he cannot qualify for relief under the Code.

NOW, THEREFORE, in consideration of the foregoing findings of fact and conclusions of law, it is

ORDERED that the application of Walter J. Zawada for a variance to erect a pool enclosure two feet from his north property line on Lot 43, College Hill Estates, located at 731 Oberlin Drive, Clearwater, Florida, be DENIED.

DONE and ORDERED this 8th day of July, 1982, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 8th day of July, 1982.

COPIES FURNISHED:

Thomas P. Tafelski

12841 - 66th Street North Largo, Florida 33543

Thomas A. Bustin, Esquire City Attorney

Post Office Box 4748 Clearwater, Florida 33518

Ms. Lucille Williams City Clerk

112 South Osceola Avenue Clearwater, Florida 33516

Walter J. Zawada 731 Oberlin Drive

Clearwater, Florida 33515

Docket for Case No: 82-001397RX

Orders for Case No: 82-001397RX