B. JOHNSON PROPERTIES, INC., )
vs. ) CASE NO. 83-2510
Respondent. )
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 September 15, 1983, at Clearwater, Florida.
For Petitioner: George W. Greer, Esquire
For Respondent: Thomas A. Bustin, Esquire
By letter dated August 1, 1983, W. B. Johnson Properties, Inc., owner of Holiday Inn Surfside, appeals the Board of Adjustment and Appeals on Zoning's denial of its request for a 38-foot variance to construct a deck extending that distance seaward of the Coastal Construction Control Line. During the course of the hearing, the application for variance was amended to 28 feet into the west or oceanfront setback area.
At the hearing the evidence submitted to the Board was admitted, Petitioner called two witnesses, Respondent called one witness, four public witnesses testified in favor of the application, five public witnesses testified in opposition to the application, and seven exhibits were admitted into evidence.
Proposed findings submitted by the parties which are included herein are adopted; otherwise they are specifically rejected as not supported by the evidence or immaterial to the results reached.
W. B. Johnson Properties, Inc., Petitioner, is the owner of the 428- room Holiday Inn Surfside located on Clearwater Beach. This hotel was constructed in 1981 on land zoned CTF-28 for commercial tourist facilities. The tract of land on which the hotel is situated is approximately ten acres and the maximum density of 42 rooms per acre is utilized. This hotel is currently in conformity with all building and zoning regulations.
Holiday Inn Surfside has decking around its swimming pool which is capable of accommodating only 120 to 150 deck chairs for the guests of the hotel. Additional chair space, if needed, must be obtained by using the undecked area of the beach in front of the hotel. The occupancy rate for this hotel from the beginning of 1983 to date has been 80 percent.
Petitioner owns the entire beach fronting its property, a distance of some 340 feet. Prior to the passage of Clearwater Ordinance No. 3075-83, the western setback line for this property was 50 feet from-mean highwater (MHW). Ordinance 3075-83 made the Coastal Construction Control Line (CCCL), as established by Section 161.063, Florida Statutes, as the western setback line for property located on Clearwater Beach. This is now the Coastal Control setback line.
The Coastal Construction setback line as it crosses Petitioner's property is 338 feet from MHW of the Gulf of Mexico. Prior to the passage of Ordinance No. 3075-83, Petitioner could have constructed decking up to the then setback line, 50 feet from MHW.
Petitioner is one of the few property owners on Clearwater Beach that has undisputed ownership of the beach fronting its property seaward of the CCCL. This area of Clearwater Beach in the vicinity of Holiday Inn Surfside is the widest part of the beach between the CCCL and MHW. Exhibit 7, which was submitted as a late-filed exhibit, clearly shows the beach north of Petitioner's property is not as wide as is the beach fronting Petitioner's property, and much of the property on the beach south of Petitioner's property is owned by the City. Solely by having ownership of more beachfront property seaward of the CCCL, Petitioner is more adversely affected by Ordinance No. 3075-83 than are other property owners.
Petitioner has signs restricting the use of the decking around the pool to hotel guests. Petitioner also has a patio bar in the vicinity of the pool which is accessible from the beach and from the hotel. Drinks are served to the public at this patio bar.
By extending the deck 28 feet seaward of the OCCL, Petitioner would be able to provide decking for an additional 150 to 170 chairs for the use of hotel guests. With an 80 percent occupancy rate there is insufficient deck space to accommodate all of the hotel guests who desire to use these facilities. Currently the excess place their deck chairs in the sand seaward of the CCCL.
Those who testified in opposition to the variance requested did so on the grounds that the increased deck facilities would bring more people to the patio bar, thereby increasing the traffic and parking problems on the beach, that the hotel did not adequately restrict the use of the existing deck to guests of the hotel, and that if this application is granted it will open the doors to others who would like to construct a deck seaward of the CCCL. None of these grounds is deemed particularly meritorious. Many factors could increase the patronage of the patio bar and more adequate decking would not be a significant one, particularly in view of Petitioner's contention that the deck was reserved for guests of the hotel, albeit not strictly enforced during periods of low occupancy.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Ordinance No. 3075-83 was enacted pursuant to the police powers of the City of Clearwater upon a finding that beaches recede and accrete and buildings should not be permitted on such an unstable area so as to create a potential danger to persons and property; that the beaches should be preserved from building encroachment so they can function to protect against flood and storm dangers and retain their attraction for tourists; that setbacks should be established that will avoid irreparable alteration of the beaches by influencing the accretion and avulsion process caused by such building; to insure the preservation of the natural beach assets that serve the tourist economy; and to keep buildings off the beach which will interfere with the view and use of such beaches by the public.
These reasons are primarily aimed at deterring the construction of buildings in or near the CCCL which would be occupied by people and not for such structures as decks which would not be occupied and which will not impair the view. If these were the only provisions in this ordinance applicable to decks, it could be concluded that decks were not intended to be included in the ordinance. However, Section 2 of Ordinance No. 3075-83 amended Section 131.200(b)c. 1 by adding a new subparagraph "g" 4.c which provides:
The required setback set forth in a.
and b. above shall not apply to an open, unenclosed wood, concrete or similar deck, patio or boardwalk which may be constructed to, but not seaward of, the CCCL. Such deck, patio or boardwalk shall not be elevated more than eighteen
(18) inches above normal ground level and shall not be enclosed or roofed. Any request for relief from this provision for extension seaward of the CCCL shall be according to the otherwise applicable variance process.
The otherwise applicable variance process is contained in Section 131.016(e), Clearwater Building and Zoning Regulations, which provides in pertinent part:
A written application for a variance
is submitted stating substantially that certain of the following exist:
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.
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.
That the special conditions and circum-
stances referred to in subsection a. above, do not result from the actions of the applicant.
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 con- sidered grounds for the issuance of a variance.
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.
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.
Petitioner contends that it is the only owner in the vicinity with undisputed title to the HWL, that there is a greater expanse of such beach in front of its property than exists at any other Property in the area, and that by establishing the new setback line at the CCCL the ordinance took away from Petitioner nearly 300 feet of property on which it could formerly have built. These factors are alleged by Petitioner to be special conditions and circumstances which are peculiar to Petitioner's property and which allow for the variance requested. While all of these factors are true, this does not result in Petitioner's property being accorded different treatment than other properties in the area.
If this appeal is denied Petitioner is not denied any rights commonly enjoyed by other properties in the same district but the granting of the variance will confer on Petitioner a right not now enjoyed by others, i.e., permission to build seaward of the CCCL, unless these other landowners are granted similar variances. Cf. Town of Indialantic v. Nance, 400 So.2d 37 (Fla. 5th DCA 1981).
Of greater significance in the determination of whether the variance is granted is the provision contained in (3) above that the variance requested is the minimum variance that will make possible the reasonable use of the land, building, or structure. Construction of the additional decking would improve the accommodations for the guests of the hotel as a solid deck undoubtedly provides a more stable platform with more desirable features than is provided by the sand beach. Zoning regulations are invalid only when they preclude a reasonable use of the property, City of Ormond Beach v. Florida ex rel del Marco, 246 So.2d 1029 (Fla. 5th DCA 1983), and it is not unreasonable to require the overflow of Petitioner's guests to place their deck chairs in the sandy part of the beach rather than on a firm surface. Denying the requested variance does
not deprive Petitioner of a reasonable use of its property; it only denies Petitioner a more desirable use of its property.
From the foregoing it is concluded that the special conditions and circumstances peculiar to Petitioner's property are not sufficient to justify the variance requested since without the variance Petitioner is not denied the reasonable use of its property. It is
