STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLEARWATER SAND KEY CLUB, INC., #1 )

)

Appellant, )

)

vs. ) CASE NO. 84-2026

)

AMZA ABDULLAJ (DERVISH) )

)

Petitioner, )

and )

)

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 July 17, 1964, at Clearwater, Florida.

APPEARANCES

For Appellant: Peter Roman, Esquire

Post Office Box 1197 Dunedin, Florida 33525

For Petitioner: George Greer, Esquire

302 South Garden Avenue Clearwater, Florida 33516

For Respondent: Thomas W. Bustin, Esquire

Post Office Box 4748 Clearwater, Florida 33518

By letter dated May 29, 1984, Clearwater Sand Key Club, Inc. #1, appeals the decision of the Board of Adjustment and Appeal on Zoning approving a request for variance of clear space requirements to permit the construction of a passenger elevator on the south side of Petitioner's restaurant located at 1370 Gulf Boulevard, Clearwater, Florida.

By his application for variances to install a passenger elevator at this restaurant, Petitioner seeks a variance of 9.53 feet into the setback area on the south property line and a variance of 8 feet 8 inches into the clear space setback.

At the hearing Respondent called one witness, Appellant called two witnesses, Petitioner called two witnesses, and 23 exhibits were admitted into evidence.

Proposed findings submitted by the parties, to the extent 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. Petitioner proposes to install an elevator on the south side of the three-story building used as a restaurant located at 1370 Gulf Boulevard, Clearwater, Florida. The area is zoned CG, General Business. As planned, the elevator will extend approximately 9.5 feet into the 30-foot setback on this side of the building and will encroach 8 feet 8 inches into the 30 feet of clear air space.

   
   

2. Petitioner's restaurant is located 60 feet north of Appellant's condominiums. When initially constructed approximately 10 years ago, the building now used as a restaurant was part of the condominium complex and used as a clubhouse by the condominium owners. Shortly thereafter, the developers split off the clubhouse from the condominium and obtained a license to operate it as a restaurant. At this time the property comprising the Sand Key Club Condominium and restaurant was under one ownership. The parking established around the restaurant was in compliance with all zoning requirements, and no clear air space requirement was involved.

   
   

3. Shortly prior to Petitioner acquiring this property, the restaurant operation was in financial difficulties. When the restaurant operation and property was split off and sold to Petitioner, the parking lot extended 15 feet into the clear air space required by the code. At the time of this sale Petitioner deeded back to Appellant 30 feet on the south side of the restaurant property which resulted in the clear space requirement that did not exist before this 30 feet of property was transferred.

   
   

4. The lot on which this restaurant is located is a "narrow parcel" as defined in Section 131.200(b)(1)(b) Building and Zoning Regulations of the City of Clearwater. Accordingly, setback requirements specify that, for a lot 150 feet or greater width, the setback requirements are 20 feet on one side and 40 feet on the other. In accordance with this provision the setback variance requested meets this criteria and the sole issue in this case is the clear space variance requested.

   
   

5. Located on the property line dividing the property of Petitioner and Appellant is a planted area (circle or oval) around which automobiles turn to exit and which, to some degree, provides separate lanes for incoming and outgoing traffic over the paved area between the buildings. This planter contains shrubs and palms. The former are higher than 30 inches and the latter higher than 15 feet. The code provides shrubs and berms in the clear space shall not exceed 30 inches in height.

   
   

6. Appellant presented testimony that the elevator could be located on the southeast corner of the restaurant or on the north side of the restaurant and thereby not intrude into the clear space. The witness who so testified spent only a few minutes at the restaurant and was unaware of structural problems or relocation of bathrooms that would be involved if the elevator was located in the southeast portion of the building. Petitioner's witness who planned the elevator location had spent many more hours at the building site, had considered other locations for the elevator and concluded the location selected was the most viable option. This evidence is deemed more credible than that respecting the location of the elevator on the southeast corner of the building or on the

   north side of the building. Located on the north side of the building, the elevator would block the same view space it would block on the south side even though the clear space requirement would not be violated.

   
   

7. The proposed location of the elevator will obstruct the view of the Gulf from no part of the Appellant's condominium. Therefore, no occupant of the Sand Key Club will be affected by the proposed elevator insofar as his/her view of the Gulf from his/her condominium is concerned (Exhibit 10).

   
   

8. One or two witnesses testified that the Gulf can be seen by a pedestrian on Gulf Boulevard looking from a position between the restaurant and Sand Key Club. However, Exhibit 1 indicates the planter on the property line blocks most of the view of the water and if cars were parked in his parking area which extends 15 feet into the clear view area the water beyond those automobiles could not be seen by a pedestrian on Gulf Boulevard.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Section 131.016(e), Clearwater Building and Zoning Regulations, provides a variance from the terms of this chapter shall not be granted by the Board unless and until 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 ether lands, buildings or structures in the same district.

    2. That literal interpretation of the provisions of this chapter would deprive the applicant of rights com- monly 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 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.

       * * *

       1. 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.

       2. The board shall further make a finding that the granting of the variance `gill be in harmony with the general purpose and intent of this

       chapter, will not be injurious to the neighbor- hood, or otherwise detrimental to the public welfare.

       
       

11. As noted in the findings above, the clear space the elevator will invade is already invaded by parking spaces and by the planter. No evidence was presented that the proposed elevator would block any view from any part of the Appellant's premises.

    
    

12. Here, special circumstances exist which are peculiar to this area. First, the clear space restriction came into being only when the property was divided and separated into two parcels comprising the restaurant and the Sand Key Club. Even that division would not have involved the clear view restriction had Petitioner not conveyed 30 feet of the property back to Appellant.

    
    

13. A literal interpretation of the clear space requirement would deprive Petitioner from providing access to his restaurant by the handicapped who cannot negotiate stairs. This is significant when it is considered the clear space has already been invaded by the parking lot and the planter.

    
    

14. From the foregoing it is concluded that special circumstances and conditions exist which require the granting of the variance sought in the clear space requirement.

    
    

15. Although not brought up by the parties at the hearing, the standing of the Appellant to bring this appeal was questioned by the Hearing Officer and will be discussed.

    
    

16. Section 131.0165(b) provides that an appeal from the decision of the Board of Adjustment and Appeal on Zoning may be made by any party in interest affected by the decision or any representative of the City acting at the request of the City Manager.

    
    

17. While an association may represent its members in a proceeding in which the individual members have standing, Florida Home Builders Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982) , those members' standing must relate to their ties with the association as opposed to any standing they may have which is unrelated to their membership in the association. Only a person whose substantial interests are affected by these proceedings has standing as a party to the proceeding. Before one can be considered to have a substantial interest in the outcome of the administrative proceeding and thus be entitled to appear as a party, he must show that he will suffer injury in fact which is of sufficient immediacy to entitle him to a hearing under the Administrative Procedure Act and that his substantial injury is of the type or nature which the proceeding is designed to protect. Agrico Chemical Company v. Department of Environmental Regulation, et al, 406 So.2d

    478 (Fla. 2nd DCA 1981)

    
    

18. The issue here is a variance to invade the clear space by Petitioner' and the proposed invasion will interfere with no view of the water from the Sand Key Club. While it could be argued that the individual owners of condominiums in the Sand Key Club may have the right to protest the granting of a variance that would block their view of the water from Gulf Boulevard the association can only represent those interests flowing from these individuals' ownership of units in the Sand Key Club.

19. It is therefore concluded that the Sand Key Club, Inc. #1 does not have standing to maintain this action to contest the granting of a variance to Petitioner to extend 8 feet 8 inches into the clear space on the south side of his restaurant located at 1750 Gulf Boulevard.

    
    

20. From the foregoing it is concluded that Amza Abdullaj (Dervish) is entitled to a variance of approximately 9.5 feet in the south setback area of his property and of 8 feet 8 inches into the clear space on the south side of his restaurant located at 1750 Gulf Boulevard, Clearwater Beach, Florida. It is further concluded that Sand Key Club is without standing to challenge the grant of these variances to Petitioner. It is therefore

ORDERED the appeal of Sand Key Club, Inc. #1 be dismissed and the variance granted by the Hoard be affirmed.

DONE AND ORDERED this 10th day of August, 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 10th day of August, 1984.

COPIES FURNISHED:

Thomas A. Bustin, Esquire City Attorney

Post Office Box 4748 Clearwater, Florida 33518

Ms. Lucille Williams Post Office Box 4748

Clearwater, Florida 33518

Peter Roman, Esquire Post Office Box 1197 Dunedin, Florida 33528

George Greer, Esquire

302 South Garden Avenue Clearwater, Florida 33516

Docket for Case No: 84-002026RX

Orders for Case No: 84-002026RX