STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORMAN ALEXANDER, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3347

) CITY OF CLEARWATER, FLORIDA, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal public hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on January 26, 1983, in Clearwater, Florida. The issue for determination at the hearing was whether the denial of the petitioner's application for a variance to build a single-family dwelling on a lot with less than 5,000 square feet was proper.

APPEARANCES

For Petitioner: Peter M. Lipman

5010 Park Boulevard North Pinellas Park, Florida 33565

For Respondent: Thomas A. Bustin

City Attorney

Post Office Box 4748 Clearwater, Florida 33518

For nearby C. Richard Nail

property 114 Turner Street

owners: Clearwater, Florida 33516 INTRODUCTION

In this proceeding, petitioner seeks a variance from the Clearwater building and zoning regulations to permit the construction of a single-family dwelling on a residential lot with a square footage of 4,320, rather than the 5,000 square feet prescribed as the minimum lot area per dwelling unit. The Zoning Enforcement Officer for the City of Clearwater denied the petitioner's application for a variance on November 2, 1982, and the petitioner appealed this decision to the City of Clearwater Board of Adjustment and Appeal on Zoning.

After a public hearing held on November 30, 1982, the Board voted 4 to 1 to deny the petitioner's application for a variance.

Pursuant to Section 131.0165, Code of Ordinances, the petitioner appealed the decision of the Board of Adjustment and Appeal on Zoning, and the undersigned was duly designated as the Zoning Appeal Hearing Officer. At the final hearing, the City of Clearwater presented the testimony of John Richter, the City's Chief Planner, and Roy Ayres, the Director of the City Building

Inspection Department. The City's Exhibits 1 through 3 were received into evidence. The petitioner testified in his own behalf and his Exhibits 1 through

6 were received into evidence. C. Richard Nail, on behalf of himself and other residents within a 200 foot radius of the subject property, was permitted to cross-examine witnesses and present oral argument in opposition to the request for a variance.

Subsequent to the hearing, all parties were given the opportunity to file proposed findings of fact and proposed conclusions of law. The respondent City did file such proposals. To the extent that the respondent's proposed findings of fact are not included in this Order, they are rejected as being either not supported by competent substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in dispute or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. By Warranty Deed dated July 2, 1982, petitioner was conveyed "Lot 151, Less the South 1/2 thereof" in Glenwood Subdivision. Lot 151 is presently zoned RS-50. The minimum lot area per dwelling unit in an RS-50 district is 5,000 square feet. Section 131.044, Code of Ordinances of the City of Clearwater.

   
   

2. According to the subdivision plat, Glenwood Subdivision contains 154 platted lots, with an average lot size of 8,844 square feet. The smallest platted lot in the subdivision is 6,000 square feet. Lot 151 contains approximately 12,000 square feet. There is an existing single-family dwelling on the southern portion of Lot 151 which portion contains 7,700 square feet. Computations performed from a metes and bounds description of the northern part of Lot 151 which was conveyed to petitioner illustrates that petitioner's portion of Lot 151 contains 4,320 square feet.

3. Section 20-2 of Ordinance No. 1449 provides, in part, that: ". . .Building permits shall not be issued for

   structures located on subdivided property created subsequent to the adoption of this Ordinance unless such plat of record is recorded in the Public Records of Pinellas County. The City Commission may permit lots of record to be cut in size to not less than the zone permits, without requiring a replat."

   
   

   No request was made to and no approval was given by the Clearwater City Commission to divide Lot 151, a platted lot.

   
   

4. The restrictions for Glenwood Subdivision require that only one single- family dwelling house be erected on any single lot or plot.

   
   

5. In August of 1982, petitioner applied to the Building Inspection Department of the City of Clearwater for a building permit to erect a single- family residence on his property. Apparently, a survey of the property did accompany the application, but no one in the Building Inspection Department verified the lot size. Petitioner was issued a building permit.

6. Prior to October 27, 1982, petitioner had the land cleared, made soil boring tests, paid water meter fees, laid pilings and had the foundation and walls in place for the lower level of his new residence. The costs of this work, and other expenses related thereto, amounted to some $18,350.00. On or about October 27, 1982, the City issued a "red tag" on the project because it was discovered that petitioner's lot size was substandard. This was the first notification petitioner had of any problem with his lot size. He had never made inquiry concerning the zoning requirements for his lot.

   
   

7. Petitioner continued construction on his residence. Two more "red tags" were issued on or about November 2 and November 25, 1982. On the latter date, petitioner was ordered to stop work on the project. Petitioner estimates that between August, 1982, and the date of his hearing (January 26, 1983), he expended approximately $40,710.00 on the purchase of his land and the partial construction of his residence.

   
   

8. As noted in the Introduction, petitioner's application for a variance from the lot size requirements was denied by the City's Zoning Enforcement Officer, his appeal to the Board of Adjustment and Appeal on Zoning was denied and the instant proceeding resulted.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Petitioner desires to construct a single-family residence on his 4,320 square foot lot. It is contended that he is entitled to a variance from the 5,000 square feet minimum lot area per dwelling unit requirement for an RS-50 district because the City issued a building permit to him and he expended monies in reliance thereon. It is alleged that this is a hardship situation and that a theory of equitable estoppel should be applied to grant the variance requested. The City opposes the granting of a variance on the ground that any hardship suffered by the petitioner was self-created and that no estoppel rights accrued when the City erroneously issued an illegal building permit to the petitioner.

    
    

11. Where practical difficulties or unnecessary hardships stand in the way of carrying out the strict letter of the zoning law, that law may be varied in harmony with the general purposes and intent of the zoning law so that the public health, safety and general welfare may be secure and substantial justice done. Section 131.016(e), Code of Ordinances. Such a variance may not be granted, according to the terms of Section 131.016(e)(1), 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.

          
          

12. The facts of the instant case do not meet any of the criteria listed above. The petitioner purchased the substandard-sized lot after an illegal division of the platted Lot 151 and did not make inquiry into the zoning regulations which govern lots zoned RS-50. This is a self-induced or self- created hardship, and is not the "unnecessary hardship" or a "special condition and circumstance. . .peculiar to the land, structure or building involved" required before one is entitled to a variance. The 5,000 square foot minimum lot size requirements are applicable to all property owners in the RS-50 district. Indeed, to allow petitioner a variance from this requirement would be to grant him the special privilege of allowing him to construct a residence on property which is one-half the size of the average-sized lot in Glenwood Subdivision. Petitioner is being deprived of no right commonly enjoyed by other property owners in the same district.

    
    

13. The fact that the City erroneously issued a building permit to the petitioner, and that monies were expended by the petitioner in reliance thereon, does not entitle petitioner to a variance. Over one-half the expenditures claimed were incurred after the first "red tag" when petitioner allegedly became aware of the fact that he was in violation of the zoning ordinances with regard to lot size. An improper or illegal act on the part of the City may not provide the basis for invoking the doctrine of equitable estoppel so as to obtain a variance to which the applicant is not otherwise entitled. Dade County v. Gayer, 388 So.2d 1292 (Fla. 3rd DCA, 1980). The state, or its political subdivisions, is not ordinarily estopped by the unauthorized acts of its officers. Greenhut Construction Co. v. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA, 1971). The cases relied upon by the petitioner in support of the doctrine of equitable estoppel involve instances where the original governmental action was authorized and legal at the time it occurred, and later became illegal due to a change in the law or the political climate. Here, the original issuance of a building permit to the petitioner violated a lawful ordinance and therefore was not a valid building permit. It was unauthorized and illegal ab initio. As stated in the case of Dade County v. Gayer, supra at 1294:

    
    

    "While at first blush it seems that the application of the rule may be harsh, it would be inconceivable that public officials could issue a permit, either inadvertently, through error, or intentionally, by design, which would sanction a violation of an ordinance adopted by the legislative branch of the government. Only the duly constituted members of the Metropolitan Dade County Commission enjoy that prerogative and then only in accordance with established procedure."

14. In this case, petitioner purchased a substandard-sized lot which was illegally divided and then proceeded to build pursuant to a permit issued contrary to the terms of the laws of the City of Clearwater. Such a self- created situation does not provide justification for a variance nor does it justify the application of the doctrine of equitable estoppel.

    
    

15. The petitioner having failed to demonstrate that he falls within any of the criteria for a variance set forth in Section 131.016(e), Code of Ordinances, and there being no justification for the application of the doctrine of equitable estoppel against the City in denying the requested variance,

IT IS ORDERED THAT the petitioner's request for a variance from the provision of Section 1331.044(1), Code of Ordinances, is DENIED.

DONE and ENTERED this 25th day of February, 1983, in Tallahassee, Florida.

DIANE D. TREMOR, 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 25th day of February, 1983.

COPIES FURNISHED:

Peter M. Lipman

5010 Park Boulevard North Pinellas Park, Florida 33565

Thomas A. Bustin City Attorney

Post Office Box 4748 Clearwater, Florida 33518

C. Richard Nail

114 Turner Street Clearwater, Florida 33516

Lucille Williams City Clerk

112 South Osceola Avenue Clearwater, Florida 33516

Docket for Case No: 82-003347RX

Orders for Case No: 82-003347RX