STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CEASAR BRIAN GARCIA, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3407

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 4 March 1983 at Clearwater, Florida.

APPEARANCES

For Petitioner: Neil R. Covert, Esquire

1212 South Highland Avenue Clearwater, Florida 33516

For Respondent: Thomas A. Bustin, Esquire

Post Office Box 4748 Clearwater, Florida 33518

By letter dated December 10, 1982, Ceasar Brian Garcia, Petitioner, appealed the decision of the Board of Adjustment and Appeal on Zoning in denying his application for a variance to erect a four-foot chain link fence on the front property line of his property located at 926 Eldorado Avenue, Clearwater Beach, Florida. The Board of Adjustment and Appeal on Zoning granted Petitioner's application for variance to erect a four-foot chain link fence in the waterfront setback area at the rear of his house but denied the variance requested in the setback area abutting Eldorado Avenue.

At the hearing two witnesses were called by Petitioner and one witness was called by Respondent, and two exhibits were admitted into evidence. There was no dispute as to the facts here involved.

FINDINGS OF FACT

1. In 1982 Petitioner erected a stilt home on the beachfront lot located at 926 Eldorado Avenue. The property is zoned RS-50.

   
   

2. Prior thereto the property had been vacant and fenced with a four-foot chain link fence to keep trespassers off the property. The original fence was erected before the zoning regulations were passed, and upon passage of these regulations the fence became nonconforming. This fence was removed to facilitate construction of the residence and, when Petitioner applied for a permit to replace the fence, he was told he needed a variance and the

   proceedings leading to this appeal were started. His application for a permit came within less than one year from the time the fence was removed.

   
   

3. Property in the vicinity is characterized by the use of four-foot chain link fences. The property immediately to the north of Petitioner's property has a four-foot chain link fence across the front of the property. Most of the other fences in the area are located on the sides of the property.

   
   

4. Although there is a public access to the beach in the near vicinity of Petitioner's property, people cross Petitioner's property to get to the beach, park in his driveway, discard litter on his property, and even use the private outdoor shower on his mother's adjacent property.

   
   

5. The regulations would allow Petitioner to erect a 30-inch fence on the front of his property. This would not contain the large dog Petitioner has. If the front fence were set back to the front of Petitioner's house and from each corner thereof run to the fence at each side of his property, this would not keep trespassers off his property, because people could walk up his driveway and under the stilt house.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

7. Petitioner's request for variance is controlled by Section 131.016(e) Clearwater Code of Ordinances, which provides in pertinent part:

   
   

   (e) Variances. The board shall have power in specific cases, after due notice, investigation, and hearings on the afore- said, where there are practical difficulties

   or unnecessary hardships in the way of carry- ing 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 cer- tain of the following exist:

      1. That special conditions and cir- cumstances 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 cir- cumstances 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.

   2. Notice of public hearing (see sub- section (d))

   3. The board shall further 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.

   4. The board shall further make a finding that the granting of the variance will be in harmony with the general purpose and intent of this chapter, will not be injurious to

      the neighborhood, or otherwise detrimental to the public welfare.

      
      

8. Other property owners in the area have four-foot chain link fences to keep trespassers off their property. Furthermore, the property is located between Eldorado Avenue and the Gulf of Mexico and if one stops on Eldorado in front of Petitioner's house, the shortest way to the public beach is across Petitioner's property.

   
   

9. Petitioner contends that the original nonconforming fence constituted a nonconforming use and not a nonconforming structure as is contended by Respondent. Section 131.006, Clearwater Code of Ordinances, contains the following definitions:

   
   

   Nonconforming structure: A building or structure which does not conform to the requirements for location or dimension of such building or structure in the zoning district in which it is situated as regards minimum yard dimensions, maximum height or maximum lot coverage.

   
   

   Nonconforming uses: Any use of a building, structure or land that does not comply with the permitted use or special exception pro- Visions for the zoning district in which such use is situated, and where the use existed legally on the effective date of the appli- cable provisions of the zoning ordinance.

   Use: The specific purpose for which land or building is designed, arranged, intended or for which it is or may be occupied or

   maintained. The term 'permitted use' or its equivalent shall not be deemed to include any nonconforming use.

   
   

10. The determination of whether the prior fence was a nonconforming structure or a nonconforming use becomes significant under the provisions of Section 131.015 of the Clearwater Code of Ordinances. Subsection (a) provides in part:

    
    

    It is the intent of this section, except as otherwise provided herein, to permit those legal nonconformities to continue

    until they are removed, but not to encourage their survival or replacement.

    
    

11. Subsection (c)(2) prohibits replacement of nonconforming structures which are damaged or destroyed in excess of 50 percent of replacement costs. Subsection (d) allows a nonconforming use to continue subject to certain limitations as to expanding, enlarging, etc., and subsection (4) provides:

    
    

    Any nonconforming use discontinued

    for a continuous period of one year or more shall not thereafter be reestablished, and any subsequent use shall be in conformity with the zoning ordinance.

    
    

12. Looking back to the definition of "use" above-quoted it is clear that the original fence was erected for a specific purpose, i.e. , to deter trespassers, and not as an artistic structure to beautify the landscape. The fence was erected solely to perform a function, somewhat extrinsic to itself, in that as a "structure" it serves the purpose of deterring strangers from entering upon the property instead of providing an intrinsic service to the owner. The proposed replacement fence would serve the same purpose or use. This permit to replace the original fence was applied for within one year from the time that fence was removed.

    
    

13. From the foregoing it is concluded that the original fence around Petitioner's property constituted a nonconforming use more so than a nonconforming structure, that other property owners in the district have fences around their property to deter trespassers, and to deny Petitioner a permit to replace the nonconforming fence he tore down to build his house, would deny him rights enjoyed by other property owners in the district. It is further concluded that the grant of this variance will be in harmony with the general purposes and intent of the Clearwater Code of Ordinances to secure the public health, safety and welfare and perform substantial justice. It is

ORDERED that Ceasar B. Garcia be issued a permit to erect a four-foot chain link fence in the setback area abutting Eldorado Avenue at 926 Eldorado Avenue, Clearwater Beach, Florida.

DONE AND ORDERED this 5th day of April, 1983, 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 5th day of April, 1983.

COPIES FURNISHED:

Thomas A. Bustin, Esquire City Attorney

Post Office Box 4748 Clearwater, Florida 33516

Neil R. Covert, Esquire 1212 South Highland Avenue Clearwater, Florida 33516

Ms. Lucille Williams City Clerk

Post Office Box 4748 Clearwater, Florida 33516

Docket for Case No: 82-003407

Orders for Case No: 82-003407