STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES R. GRAY, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0773

)

CITY OF CLEARWATER and )

MARY G. REALTY, INC., )

)

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 April 2, 1984, at Clearwater, Florida.

APPEARANCES

For Petitioner: George W. Greer, Esquire

302 South Garden Avenue Clearwater, Florida 33516

For Respondent/ Patrick T. McGuire, Esquire Applicant, 1253 Park Avenue

Mary G. Realty: Clearwater, Florida 33516

For Respondent, Thomas A. Bustin, Esquire City of Post Office Box 4748 Clearwater: Clearwater, Florida 33518

By letter dated February 17, 1984, James R. Gray, Petitioner, appeals the decision of the City of Clearwater, Board of Adjustment and Appeal on Zoning's grant of variances of 11-1/2 feet on the west, 6 feet on the south, and 5 feet on Mandalay Avenue for setback lines; a variance of 32 parking spaces; and a variance (waiver) of the 3-foot landscape buffer requirements both for Mandalay Avenue and Baymont Street to Mary G. Realty to build an office/retail store building and three apartments on its property on Clearwater Beach which measures approximately 100 feet by 175 feet.

At the commencement of the hearing the tapes of the proceedings and evidence submitted at the board hearing was admitted into evidence. Thereafter, the City of Clearwater called one witness, Respondent Mary G. Realty called two witnesses, Petitioner called five witnesses, including the City's witness, and ten exhibits were admitted into evidence.

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. Mary G. Realty owns Lots 57-63 and the north 10.25 feet of Lot 64, Clearwater Beach Park, which occupy the southwest corner of Mandalay Avenue and Baymont Street on Clearwater Beach. For many years this property was operated as a gasoline service station until the death of the owner-operator and its purchase by Mary G. Realty in December, 1983.

   
   

2. The property is zoned CG and has been so zoned for many years without change to the present.

   
   

3. The gasoline station building is still located on the property and the proposed development will include use of that structure, which is approximately

   40 feet by 60 feet. Applicant proposes to construct and operate a two-story office/retail store building with three large apartments on the second floor. The proposed addition would add 16 feet to the south side of the existing building extending 80 feet eastward from the west line of this building, with the eastern 40 feet of this extension 25 feet wide. It is also proposed to add an additional 70.7 feet to the north side of the existing building. As proposed, the first floor would occupy 6,680 square feet and the second floor would contain 5,878 square feet.

   
   

4. Variances approved by the zoning board include a 3.5 foot setback on the rear property line to allow the property additions to follow the line of the existing structure; a 6-foot setback on the south property line; a 15-foot setback on 25 feet of the proposed addition from Mandalay Avenue; no buffer zone between parking and street right-of-way on both Mandalay Avenue and Baymont Street; and a variance of 32 parking spaces. Applicant's proposal approved by the board is to provide 25 parking spaces, a variance of 32 in the parking space requirement for the structure proposed.

   
   

5. Petitioner's property abuts the property owned by Mary G. Realty and the structure on that property, which was built before the present zoning laws became effective, is nonconforming with the zoning regulations.

   
   

6. In its application for the variances here under review Mary G. Realty requested a zero setback from the north property line, which was withdrawn; a 3.5-foot setback at the rear of the property in lieu of the 10-foot requirement for commercial general, and the board approved 3.5 feet; a one-foot setback on south property line in lieu of the 10 feet required, and the board approved a 6- foot setback; a 15-foot front setback in lieu of 20 feet required by the code, and the board approved 15 feet; a variance of 48 parking spaces, which was reduced by applicant's withdrawal of zero setback for north property line, resulting in a smaller size structure requiring less parking spaces and the addition of parking spaces from this same reduction, and the board approved a variance of 32 parking spaces; and a zero buffering requirement abutting Mandalay Avenue and Baymont Street, which the board granted.

   
   

7. This property is unique only in that it is located in an area in which a large percentage of the buildings are nonconforming. The property is a trapezoidal shaped parcel having the following dimensions: south property line

   100.47 feet, west property line 167.52 feet, north property line 100.77 feet, and east property line 178.55 feet.

   
   

8. One of the principal factors at issue here is the requested variance in parking spaces required. Applicant purchased the property due to the pending expiration of its existing business lease and intends to move its business to

   the new location and provide additional office and shop space with apartments on the second floor, thus having a combined commercial and residential structure.

   There are no shopping facilities on Mandalay Avenue north of State Road 60; the area is mostly built up with motels, hotels, apartments, and restaurants; and the shopping customers are generally the same people who walk along Mandalay.

   Accordingly, there is less need for parking to accommodate a shop in this area than would be required in another part of Clearwater, although the magnitude of this difference has not as yet been determined.

   
   

9. Witnesses testified to the need for additional shopping facilities north of State Road 60; to the fact that few people in automobiles shop on North Clearwater Beach; and, while functioning as a service station, no parking spaces were provided on this property.

   
   

10. This property was purchased by Mary G. Realty for $295,000 and evidence was presented that less building space than proposed would not make the purchase economically feasible. However, insufficient evidence was presented to support this conclusion. This factor is given little weight because the purchaser knew, or should have known, of the zoning restrictions before the property was purchased.

    
    

11. Most of the property in the vicinity was developed long before the current zoning regulations were adopted and the structures thereon are generally nonconforming both with respect to setbacks and parking, even though they offer rooms to transients who arrive in automobiles. These nonconforming structures result in some of the buildings in the vicinity being built right to the property line.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

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

    
    

    1. A written application for a variance is submitted stating substantially

       that certain 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, building or struc- tures 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 circumstances referred to in sub- section 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, struc-

       tures or dwellings in the same district.

       
       

       No nonconforming use of neighboring lands, structures or buildings in the same dis- trict, 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 subsection (d))

       
       

    3. The board shall further make a finding that the reasons set forth

       in the application justify the grant- ing of the variance, and that the variance is the minimum variance

       that will make possible the reason- able 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.

       
       

14. As noted above, few of the buildings in the vicinity of the property here under consideration comply with the setback and other building code requirements. The back setback here approved on the west property line is exactly the same as that of the existing building. The other variances in setback requested were modified by the applicant and, as modified, were approved by the board. The applicant also reduced the size of the structure to provide four more parking spaces while the reduction in size of the building reduced the code required parking spaces by ten.

    
    

15. Applying the above-quoted code provisions to the property here under consideration, it is clear there are no special conditions and circumstances peculiar to this parcel which are not applicable to other lands, buildings or structures in the same district other than those other structures are nonconforming and do not comply with setbacks and parking.

    
    

16. A literal interpretation of the setback requirement and parking requirements will deprive this applicant of rights enjoyed by others in the same district whose property was developed before these code provisions became effective. Those properties were not developed under the terms of this building code.

    
    

17. Granting the variances requested will not confer on the applicant any special privilege that is denied to other lands in the same district which were developed before the code provisions came into being. However, Section 131.016 specifically provides no existing nonconforming use shall be considered grounds for the issuance of a variance.

18. Insufficient evidence was submitted to show the requested variances are the minimum variances that will make possible the reasonable use of the land.

    
    

19. It clearly appears that the application of these code provisions will create difficulties for those wishing to upgrade their property or rebuild structures needed to be replaced. This factor was obviously considered when these code provisions were enacted. While it will take many years of code enforcement to eliminate nonconforming buildings, unless these code provisions are followed in difficult cases such as this, they will never be eliminated. By enacting this code, they City of Clearwater obviously intended to ultimately bring all developments into compliance with the code.

    
    

20. But for the code requirements for setbacks and parking, the construction of the proposed building, as approved by the board, will not be injurious to the neighborhood, or otherwise detrimental to the public welfare. However, the applicant has not shown that the requested variances are the minimum necessary to make possible the reasonable use of the land. It is therefore

ORDERED that the application of Mary G. Realty, Inc., for variances at Lots 57-63 and the north 10.25 feet of Lot 64 at Clearwater Beach, Florida, be denied.

ENTERED this 26th day of April, 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 26th day of April, 1984.

COPIES FURNISHED:

George W. Greer, Esquire

320 South Garden Avenue Clearwater, Florida 33516

Patrick T. McGuire, Esquire 1253 Park Avenue

Clearwater, Florida 33516

Thomas A. Bustin, Esquire Post Office Box 4748 Clearwater, Florida 33518

Ms. Lucille Williams City Clerk

Post Office Box 4748 Clearwater, Florida 33513

Docket for Case No: 84-000773RX

Orders for Case No: 84-000773RX