STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANN KELLER, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3703

)

CITY OF CLEARWATER, )

)

Respondent, )

and )

)

WILLIAM A. BORJA, )

)

Intervenor. )

)

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 January 26, 1984, at Clearwater, Florida.

APPEARANCES

For Petitioner: William J. Kimpton, Esquire

487 Mandalay Avenue Clearwater, Florida 33515

For Respondent: Frank A. Kowalski, Esquire

Post Office Box 4748 Clearwater, Florida 33518

For Intervenor: William A. Borja, Esquire

201 South Fort Harrison Avenue, Suite 204 Clearwater, Florida 33516

By letter dated November 21, 1983, received in the office of the City Clerk, Clearwater, on November 22, 1983, William A. Borja, Esquire, appeals the decision of the Board of Adjustment and Appeal on Zoning granting a variance in the front setback line for lot located at 601 Oberlin Drive, Clearwater, Florida, to Ann Keller.

At the commencement of the hearing, Petitioner filed a Motion to Dismiss the appeal on grounds the appeal was untimely filed, in that it was not filed within ten days of the decision of the Board of Adjustment and Appeal on Zoning. Ruling on that motion was reserved at the hearing and the Intervenor was allowed to present evidence. Three witnesses were called and two exhibits were admitted into evidence. In view of the ruling on the Motion to Dismiss, the facts become immaterial. However, the evidence submitted by appellant consists primarily, if not solely, of testimony that the area is subject to flooding and photographs of the lot and adjacent residences.

Proposed findings submitted by the parties insofar as they are included herein are adopted; otherwise, they are rejected as unsupported by the evidence, immaterial, or unnecessary to the results reached.

FINDINGS OF FACT

1. Ann Keller was granted a variance to construct a dwelling ten feet from the front property line at 601 Oberlin Drive, Clearwater, Florida, and these proceedings follow an appeal from that decision of the Board of Adjustment and Appeal on Zoning.

   
   

2. The area is zoned RF-75 (single family) and the proposed construction conforms to this zoning.

   
   

3. This lot has a drainage easement over the back one-half (away from Oberlin Drive) which leaves a minimum depth of approximately 30 feet from the drainage easement to the front of the lot. Without the requested variance of 15 feet from the 25- foot setback, there would be little more than five feet on which to build. With the requested variance, Petitioner proposes to construct a residence 65 feet wide and 20 feet deep.

   
   

4. Appellant contends that the area is subject to flooding, the drainage easement on this lot includes a cemented culvert 21.5 feet wide, the creek flowing through this culvert frequently overflows and floods Oberlin Drive and yards across Oberlin from this lot, yet no evidence was submitted to show how or why the construction of a residence on this lot would affect the flooding of Oberlin Drive or the adjacent lots. Protestants contend the area is in a flood plain and homes should not be built in a flood plain. The extent of this flood plain was not shown so it cannot be said that protestants' homes are not also located in this flood plain.

   
   

5. The setback variance is the only variance requested and here involved.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. This appeal was instituted by letter dated November 21, 1983, from William A. Borja, attorney at law. Nowhere in this letter does Mr. Borja state that the appeal is being made by adjoining property owners or that he represents parties having standing to protest the action of the Hoard of Adjustment and Appeal on Zoning. Mr. Borja does not have standing to prosecute this appeal and the appeal could be dismissed upon that ground. At the hearing several of the owners of adjacent properties appeared and Mr. Borja stated that they were his clients.

   
   

8. Petitioner moved to dismiss this appeal as being untimely filed. There was no dispute that the decision of the Board of Adjustment and Appeal on Zoning was rendered November 10, 1983, and published at that time; and that this appeal was received in the office of the City Clerk on November 22, 1983, more than ten days after the decision of the Board.

   
   

9. Section 131.0165(h)(2), Clearwater Building and Zoning Regulations, provides:

   (2) Appeals to the zoning appeal hearing officer shall be commenced through the filing of a notice of appeal with the city clerk within ten (10) days of the decision of the board of adjustment and appeal on zoning.

   
   

10. Appellant contends that his client's letter dated November 14, 1983, addressed to the Mayor of Clearwater, with a copy to the City Attorney, satisfied the timeliness requirement of the code. That seven-page, hand-written letter goes to great length to explain the flooding problems existing at Oberlin Drive and, while the letter commences with the author's attendance at the Zoning board hearing at which the instant variance was granted, nowhere in this letter does the author request a reversal of that decision. Even if that letter could be interpreted as an appeal from that decision of the Board, it was not filed with the City Clerk as required by the regulation above-quoted.

    
    

11. Where rules and regulations specify a particular time for appealing actions of courts or agencies, the courts generally consider those time restrictions jurisdictional and not subject to waiver by courts or agencies. In holding that the Public Employees Relations Commission (PERC) had the power to enact rules which authorize motions to reconsider, but they do not have authority to grant extensions of time for filing such a motion, the court stated in City of Hollywood v. PERC, 432 So. 2d 79 (Fla. 4th DCA 1983) at p. 81:

    
    

    By analogizing an agency's inherent power to that of a court of general jurisdiction, we conclude that if a circuit court cannot extend the time for filing a motion for a new trial in a criminal case, then it would seem to follow that an agency cannot extend the time for filing a motion for reconsideration in an administrative proceeding.

    
    

12. Since the appeal in this case was filed more than ten (10) days following the rendering of the decision of the Board of Adjustment and Appeal on Zoning, this tribunal is without jurisdiction to consider the appeal. It is therefore

ORDERED that the appeal of William A. Borja be dismissed.

DONE AND ORDERED this 14th day of February, 1984, 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 14th day of February, 1984.

COPIES FURNISHED:

William J. Kimpton, Esquire

487 Mandalay Avenue Clearwater, Florida 33515

Frank A. Kowalski, Esquire Post Office Box 4748 Clearwater, Florida 33518

William A. Borja, Esquire

201 South Fort Harrison Avenue Suite 204

Clearwater, Florida 33516

Ms. Lucille Williams City Clerk

Post Office Box 4748 Clearwater, Florida 33518

Docket for Case No: 83-003703RX

Orders for Case No: 83-003703RX