STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MORTON F. PLANT HOSPITAL, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1608

)

CITY OF CLEARWATER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative A Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 26 July 1982 at Clearwater, Florida.

APPEARANCES

For Petitioner: Emil C. Marquardt, Jr., Esquire

Post Office Box 1669 Clearwater, Florida 33517

For Respondent: Frank Kowalski, Esquire

Post Office Box 4748 Clearwater, Florida 33518

By letter dated June 2, 1982, Morton F. Plant Hospital, Petitioner, appeals the denial by the Clearwater Board of Adjustment and Appeal on Zoning of its requests for variances in connection with a planned expansion of Plant Hospital. The specific variances requested were:

1. To allow construction of the proposed addition to be 84 feet in height, which requires a variance of two feet;

   
   

2. To allow the addition to be built two feet from the north property line

   which abuts Jeffords Street, which requires a variance of 57.5 feet; and

   
   

3. To allow a 15-inch projection from the proposed building wall line for a concrete window shading fin on this addition.

At this appeal the transcript of the proceedings before the Board of Adjustment and Appeal on Zoning and evidence presented to the Board were admitted into evidence. Thereafter, one witness was called by Respondent, three witnesses were called by Petitioner, and one additional exhibit was admitted into evidence.

The critical variance requested is the setback. Without this variance, the proposed addition cannot be constructed and, if this variance is granted, no basic reason for denying the other two variances requested is evident. There is no dispute regarding the facts here involved.

FINDINGS OF FACT

1. Morton F. Plant Hospital is a privately owned nonprofit hospital which has served the residents of Clearwater and the surrounding area for many years. The principal buildings were constructed long before the City adopted its first zoning ordinance.

   
   

2. Plant Hospital is licensed by the State of Florida as a 745-bed hospital. Currently some 29 of these beds are not usable because they do not meet code provisions for fire protection. Of the remaining beds, few are available as private rooms. Some of the purposes of the proposed addition are to make more private rooms available at the hospital, to replace the 29 beds presently unusable, to increase the capacity of the cafeteria and to provide more space for administrative personnel.

   
   

3. The proposed addition is part of the long-range plans of the hospital and the addition is currently needed to provide adequate service and facilities for the patients.

   
   

4. During the past few years Petitioner has purchased land adjacent to the hospital complex as it became available. The idea of building the proposed facilities on this adjacent land was discarded because of the additional staff, support personnel and equipment that would be required if the addition was constructed separate from the existing facilities. Also considered was constructing the proposed addition at three other locations on campus but these sites were ruled out because of engineering problems or because of the disruption to the hospital routine a nine-month construction program at those locations would engender.

   
   

5. The land on which Plant Hospital is located is zoned Institutional Semi-Public (ISP). Group I under ISP includes hospitals. City of Clearwater Building and Zoning Regulation for ISP districts, Section 131.181, provides

   building setbacks for front and side streets are 35 feet. Height of building at setback line shall not be greater than the setback; plus, beyond the setback line and from that height, the rest of the building shall be set back one foot for each additional two-(2) foot rise. Id. Sec. 131.182. Thus, the minimum setback required for an 84-foot high building in an ISP district is 59.5 feet.

   
   

   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, Building and Zoning Regulations for the City of Clearwater, establishes the following criteria for granting of variances from these building and zoning regulations:

   
   

   (e) Variances. The board shall have power

   in specific cases, after due notice, investigation, and hearings on the aforesaid, where there are practical difficulties or unnecessary hardships

   in the way of carrying out the strict letter of

   the provisions of this chapter, to determine and vary any such provisions in harmony with the general purposes and intent of this chapter so that the public health, safety and general welfare may be secure and substantial justice done.

   
   

   A variance from the terms of this chapter shall not be granted by the board 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 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, 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. With respect to the lettered subparagraphs above quoted:

   
   

   1. The evidence presented is that a special condition exists with respect to Plant Hospital in that it would be economically more feasible to construct the addition as proposed, but no evidence was presented that these conditions would not be applicable to other structures in ISP districts;

      
      

   2. No evidence was presented that Plant Hospital has been denied variances commonly granted to other property owners in ISP districts;

      
      

   3. The special circumstances here involved item from Plant Hospital's desire to keep all patient care facilities in one location (on campus) and Petitioner's earlier construction has occupied much of this available space; and

      
      

   4. Granting the variance would bestow on petitioner privileges (waiver) not granted to others in similar circumstances.

      
      

9. Petitioner's primary position in regard to this waiver request is that Petitioner provides a public benefit to the City of Clearwater and it would be in the public interest and enhance the welfare of the community if the waiver is granted and Petitioner is allowed to construct the proposed addition to the hospital. This may very well be true. Enacting building and zoning regulations is done pursuant to the police powers of the community to enact laws to protect the public health, safety and welfare. If it is found that requiring Petitioner to conform to these regulations would be contrary to the public health, safety

   and welfare, the City Commission has plenary power to provide the necessary exemption. However, it is not within the province of the Board of Adjustment and Appeal on Zoning, and certainly not within the province of this Hearing Officer, to determine that the zoning regulations shall not apply to Plant Hospital. That would constitute derogation of the regulations, not interpretation. Absent some basis for the requested waiver in the regulations, the appeal must be denied.

   
   

10. From the foregoing it is concluded that Plant Hospital has presented no evidence upon which the requested waiver of 57.5 feet of the proposed setback requirement can be granted. It is therefore

ORDERED that the appeal of Morton F. Plant Hospital for variances in height of building, setback, and projection for window shading fin be dismissed.

DONE AND ORDERED this 17th day of August, 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 17th day of August, 1982.

COPIES FURNISHED:

Emil C. Marquardt, Jr., Esquire McMullen, Everett, Logan,

Marquardt & Cline, P.A. Post Office Box 1669 Clearwater, Florida 33517

Frank Kowalski, Esquire Post Office Box 4748 Clearwater, Florida 33518

Ms. Lucille Williams

City Clerk, City of Clearwater

112 South Osceola Avenue Clearwater, Florida 33518

Docket for Case No: 82-001608

Orders for Case No: 82-001608