STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTHA HURLEY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-047

)

CITY OF CLEARWATER, )

)

Respondent. )

)

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: Martha Hurley, pro se

816 Eldorado Avenue

Clearwater Beach, Florida 33515

For Respondent: Thomas A. Bustin, Esquire

City Attorney

Post Office Box 4748 Clearwater, Florida 33518

By letter dated December 22, 1982, Martha Hurley, Petitioner, appeals the denial by the Board of Adjustment and Appeal on Zoning of her application for a variance to construct a garage extending 17 feet into the front setback area at 816 Eldorado Avenue, Clearwater Beach, Florida. At the hearing two witnesses, including Petitioner, testified on behalf of Petitioner, one witness was called by Respondent, and three photographs of the area in question were admitted as Exhibit 1. There is no dispute regarding the facts here involved.

FINDINGS OF FACT

1. Petitioner owns a beachfront home at 816 Eldorado Avenue, Clearwater Beach, Florida. The property is zoned RS-50, which is single family residential. To the rear of the property is the Gulf of Mexico.

   
   

2. Petitioner's house is located on the setback line 25 feet from the front property line abutting Eldorado Avenue. All other homes in the vicinity have been granted variances to encroach into the front setback area. The houses to the north and south of Petitioner's home have encroached into the setback area to within ten feet of the front property line abutting Eldorado Avenue.

   
   

3. Storms in the past have taken approximately 25 feet from the rear of Petitioner's property (as well as from the rear of adjacent property). In 1978 Petitioner added a Florida room to the south side of her house.

4. By this application Petitioner seeks to construct a single car garage on the southeast part of her home extending eastward to within eight feet of the property line. Accordingly, a variance of 17 feet is requested. Respondent concurs that a variance of 15 feet should be granted to allow Petitioner to encroach into the setback area as much as has been authorized for others in the district.

   
   

5. As proposed the rear of the garage would be three feet west of the front of Petitioner's house. Moving the garage further back would block the windows of Petitioner's Florida room. A garage with overall length of 20 feet with the rear of the garage three feet west of the front of the house would extend 17 feet into the setback area abutting Eldorado Avenue. This same garage with an overall length of 20 feet would have an inside dimension of 19 feet if both front and rear walls were six inches thick. A smaller depth garage would preclude the closing of the garage door for a large car and be impractical for other than a subcompact car.

   
   

6. Petitioner's purpose for constructing the garage is to protect her car from the salt spray to which it is now subject parked in the open at this residence. Salt spray accelerates the rusting of metal on which it falls.

   
   

7. No objection to the granting of the requested variance was submitted by any property owner in the vicinity. One of these property owners, who has owned property in the area for 30 years, testified that variances have routinely been granted property owners in this area because erosion of the beach has reduced the lot sizes and such variances have become essential.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Section 131.016(e) , Clearwater Code of Ordinances, provides guidelines for the granting of variances. This section generally provides that variances will be granted only in special circumstances or unnecessary hardships so that public health, safety, and general welfare may be secure and substantial justice done. Before variances are granted the following should be shown:

   
   

   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 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.

      
      

10. Section 131.016(e)(4) further provides that the granting of the variance will be in harmony with the general purpose and intent of this chapter and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.

    
    

11. That there are special circumstances with respect to property in the vicinity of Petitioner's property is recognized by Respondent in granting setback variances to other property owners and offering to grant Petitioner a 15foot setback variance. The conditions giving rise to Petitioner's need for the variance did not result from actions of the Petitioner, and granting the variance will not confer on Petitioner any special privilege that is denied to other lands, structures, or dwellings in the same district. Granting Petitioner an additional two-foot variance which is essential to construct a usable garage is not deemed a special privilege.

    
    

12. From the foregoing it is concluded that Petitioner has shown, by a preponderance of the evidence, that she is entitled to the variance requested. It is therefore

ORDERED that Martha Hurley be granted a variance of seventeen (17) feet in the front setback to allow the construction of a garage extending to within eight (8) feet of the property line abutting Eldorado Avenue at 816 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 33518

Ms. Martha Hurley 816 Eldorado Avenue

Clearwater Beach, Florida 33515

Ms. Lucille Williams City Clerk

Post Office Box 4748 Clearwater, Florida 33518

Docket for Case No: 83-000047RX

Orders for Case No: 83-000047RX