STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK VASILAROS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1914

)

DON PIERSON and )

CITY OF CLEARWATER, )

)

Respondents. )

)

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 July 12, 1983, at Clearwater, Florida.

APPEARANCES

For Petitioner: John T. Blakely, Esquire

Post Office Box 1368 Clearwater, Florida 33517

For Respondent, George W. Greer, Esquire Pierson: 302 South Garden Avenue

Clearwater, Florida 33516

For Respondent, Richard Griesinger, Esquire City of Post Office Box 4748 Clearwater: Clearwater, Florida 33518

By letter dated June 3, 1983, Jack Vasilaros, Petitioner, by and through his attorney, appeals the decision of the City of Clearwater, Board of Adjustment and Appeal on Zoning's granting of variances of ten feet in front and rear setback lines to Don Pierson to build a triplex on his lot on Clearwater Beach with a 90-foot frontage and lot size less than 10,000 square feet.

At the hearing one witness testified in behalf of the City of Clearwater and the tapes of the proceedings before the Board, plus three exhibits, were admitted into evidence. Respondent Pierson contends that the only issue on appeal is the variances in the setback lines approved by the Board; however, Petitioner contends, and both parties argued, the height variance granted by the Board and the lot dimensions, as a lot of record, are exempt.

The parties' proposed findings of fact, to the extent they are incorporated herein, are adopted; otherwise they are rejected as unsupported by the evidence, unnecessary to the resolution of the issues, or a mere recitation of testimony presented at the hearing.

FINDINGS OF FACT

1. Don Pierson owns the north one-half of Lot 2 and all of Lot 3, Block 6, Revised Map of Clearwater Beach, and has owned this property for some 20 years.

   
   

2. The property is zoned RM-20 and is high density residential developed. Pierson's lot, approximately 95 feet by 87 feet (approximately 8,250 square feet), is empty and is the only vacant lot on the Gulf of Mexico in this area. Until some three years ago this area had been zoned RM-28, which provided for higher density development than does RM-20.

   
   

3. The area from Kendall Street north six blocks to Somerset Street bounded on the east by Mandalay Avenue and on the west by the Gulf of Mexico is the only section of Clearwater fronting on the Gulf which is zoned RM-20. This area was built up over the years before zoning controls were in existence, through less restrictive zoning, and down to the present, so there are few buildings in this part of Clearwater Beach that meet current zoning requirements.

   
   

4. Petitioner owns the property abutting Pierson's property to the east. The building on that lot was constructed many years ago, before setback lines were established, and balconies on this building extend to the property line; leaving zero setback.

   
   

5. The Coastal Construction Control Line, seaward of which construction is prohibited, runs through Pierson's property so as to delete the seaward 5/8ths of Petitioner's property on which a building can be erected.

   
   

6. The tidal plane in this area is 13 feet (although evidence was presented at the board hearing that this was being increased to 16 feet). The height of Pierson's property above sea level is five feet, accordingly the ground floor of a dwelling constructed on this lot must be eight feet above ground (or 11 feet if the 16-foot tidal plane is adopted). Maximum building height for a triplex, which is here proposed, is two and a half stories, or 25 feet above sea level. With the ground floor eight feet above ground, a two- story building cannot be erected without a height variance.

   
   

7. Pierson proposes to construct a two-story triplex with a lower unit in which he will live comprising approximately 2,200 square feet and the upper story containing two 1,100 square- foot apartments to be occupied as rental units. To accomplish this, he has requested a height variance of six feet to 31 feet, if such a variance is required for a platted lot.

   
   

8. Zoning density is consistent with the construction of the triplex proposed. However, zoning regulations require a lot with a minimum width of 100 feet and lot area of 10,000 square feet for the construction of a triplex. Pierson's lot meets neither of these requirements.

   
   

9. Several witnesses testified in opposition to the requested variances at the Board hearing.

   
   

   CONCLUSIONS OF LAW

   
   

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

11. Section 131.016, Clearwater Building and Zoning Regulations, provides a variance from the terms of this chapter shall not be granted unless or until:

    
    

    1. A written application for a variance

       is submitted stating substantially that cer- tain of the following exist:

       1. That special conditions and circum- stances 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 a 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 circum- stances 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 lands, 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.

       
       

12. As noted in the findings of fact most of the property in the vicinity of Pierson's property was developed under less restrictive building and zoning regulations than now exist and is nonconforming at present. Other property in the vicinity exceeds the height limitation for RM-20; however, the six-story building on Heilwood Street across from Pierson's property was constructed under RM-28 zoning regulations which permitted the higher buildings.

13. The only special conditions and circumstances applicable to Pierson's lot which are not applicable to similarly situated lots in the vicinity is that the buildings were constructed on those lots before zoning regulations were established or while the area was zoned RM-28.

    
    

14. It is true that without the variance requested Pierson will not be able to construct the triplex he desires to construct; however, zoning regulations are invalid only when they preclude a reasonable use of the property. City of Ormond Beach v. Florida ex. rel del Marco, 426 So.2d 1029 (Fla. 5th DCA 1983).

    
    

15. The Coastal Construction Control Line runs through every lot in Clearwater Beach fronting on the Gulf of Mexico and Pierson is in the same category and subject to no different constraints as the result of this control line than are all other lot owners so situated.

    
    

16. Granting the variance requested will allow Pierson to do what he should have done before the zoning code was adopted and place him in the same position as other property owners in the same district. However, the purpose of the zoning regulations is to establish order and preclude haphazard construction without regard to the reasonable use of all property in the same district.

    
    

17. Pierson contends he is "grandfathered-in" pursuant to Section 131.020 of the Clearwater Code, and is exempt from the minimum lot width area requirement because his lot is a lot of record as defined in Section 131.020. That this lot so qualifies as a lot of record was not disputed at the hearing.

    Section 131.020 provides that lots of record

    
    

    "shall be exempt from the minimum lot area and width requirements in accordance with this chapter, but buildings erected there on shall conform with building set backs and density requirements. .

    
    

18. This code provision clearly waives the width and minimum lot area requirement and allows the construction of a triplex on this lot which is less than 100 feet wide and less than 10,000 square feet in area. However, there is some question whether such a lot is entitled to a setback or density waiver by virtue of the conditional language appended to this code provision. Here there is no density problem and the question is whether such a lot qualifying as a lot of record can also qualify for a setback waiver.

    
    

19. The starting point for interpreting a code provision is the language of the code itself; absent a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive. Consumer Safety Commission v. GTE Sylvania, 447 US 102, 100 S.Ct.2051, 64 L.Ed.2d 766 (1980).

    
    

20. Inasmuch as a statute is to be taken, construed, and applied in the form enacted, the law clearly requires that the legislative intent be determined primarily from the language of the statute, since the legislature must be assumed to know the meaning of the words and to have expressed its intent by the use of the words found in the statutes. Thayer v. State, 335 So.2d 815 (Fla. 1976).

    
    

21. It is a cardinal rule of statutory construction that the entire statute under consideration must be considered in determining legislative

    intent, and effect must be given to every part of the section and every part of the statute as a whole. State v. Gale Distributors, Inc., 349 So.2d 150 (Fla. 1977)

    
    

22. Applying these principles the words "but buildings erected thereon shall conform with building setbacks" would be redundant and have no meaning if lots of record are also entitled to waivers of setback and density requirements, pursuant to Section 131.016. Since meaning must be given to all the words used in the code, it is concluded that lots of record which qualify for exemption from minimum lot area and width requirements may not also be given a variance of setback or density requirements.

    
    

23. From the foregoing it is concluded that Don Pierson has failed to show that his lot on Clearwater Beach meets the requirements for variances of front and rear setbacks and height requirements. It is further concluded that if this lot is exempted from minimum lot area and width requirements by reason of qualifying as a lot of record, a waiver of setback requirements may not be granted. It is

ORDERED that Don Pierson be denied variances of ten feet of front and rear setback requirements and denied waiver for height of building in excess of 25 feet.

DONE AND ORDERED this 31st day of August, 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 31st day of August, 1983.

COPIES FURNISHED:

John T. Blakely, Esquire Ms. Lucille Williams Post Office Box 1368 City Clerk Clearwater, Florida 33517 Post Office Box 4748

Clearwater, Florida 33518

George W. Greer, Esquire

302 South Garden Avenue Clearwater, Florida 33516

Richard Griesinger, Esquire Post Office Box 4748 Clearwater, Florida 33518

Docket for Case No: 83-001914RX

Orders for Case No: 83-001914RX