STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOEL SAINER, )

)

Appellant, )

)

vs. ) CASE NO. 84-2326

)

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 August 15, 1984, at Clearwater, Florida.

APPEARANCES

For Appellant: George W. Greer, Esquire

302 South Garden Avenue Clearwater, Florida 33516

For Respondent: Frank A. Kowalski, Esquire

Post Office Box 4748 Clearwater, Florida 33512

By letter dated June 22, 1984, Joel Sainer, Appellant, by and through his attorney, appeals the decision of the City of Clearwater Hoard of Adjustment and Appeal on Zoning (Board) of his request for variances of lot size and setbacks in order to erect a triplex at 1510 Lakeview Road, Clearwater, Florida.

Specifically, Appellant seeks variances of 5,150 square feet in lot size, of 10 feet in the east property setback, and of five feet in the west property setback. Stated differently, Appellant seeks to build a triplex on a lot containing less than 5,000 square feet, while the code requires 10,000 square feet; to build to within five feet of the east property line, a variance of 10 feet; and to build o within 10 feet of the west property line, a variance of five feet from the 15-foot setback prescribed. At the commencement of the hearing the evidence submitted to the Board was admitted into evidence.

Thereafter, Appellant called one witness, Respondent called one witness, two adjoining property owners testified in opposition to the variances sought, and two exhibits were admitted into evidence.

Proposed findings submitted by Appellant, to the extent incorporated herein, are adopted; otherwise, they are rejected as not supported by the evidence, immaterial, or unnecessary to the conclusions reached.

FINDINGS OF FACT

1. Appellant owns an L-shaped tract of land situated on Lakeview Avenue, Clearwater, Florida. This property contains 4,916 square feet and is presently zoned CG. However, the City is in the process of rezoning this property to RM- 28, High Density Residential, and only RM-28 zoning uses are now permitted.

   
   

2. There are no minimum lot sizes for CG zoned property uses except when used for multi-family dwellings, at which time they are required to comply with RM-28 zoning requirements. Minimum lot size for a triplex in RM-28 zoning is 10,000 square feet.

   
   

3. The property of Appellant is surrounded by lands owned by Kalmia Condominiums and there is no additional property which can be purchased to make this property conforming.

   
   

4. In December, 1973, a tract of land which included the property here involved was purchased by Kalsa from Highland Apartment Management. Kalsa was owned by Sainer, the Appellant here, president of Kalsa and the contractor who built Kalmia Condominiums; and Kalan, an investor who was secretary of Kalsa.

   
   

5. In July, 1976, the eastern portion (approximately one- half of this property) was sold back to Highland Apartment Management. Most of the western portion of this property was developed as Kalmia Condominiums and subsequently conveyed to the condominium owners with a north-south easement over the lot here involved to provide access to Lakeview Avenue.

   
   

6. In April, 1980, the remainder of the original tract not previously conveyed and which included the land here under consideration was conveyed to Sainer and Kalan, with each owning one-half. No evidence was submitted how the sole ownership of the property here involved vested in Appellant but this issue was not raised at the hearing and, for the purpose of this order, it is assumed Appellant owns the tract as alleged.

   
   

7. The principal use of this property has been as a parking lot for the residents of Kalmia Condominiums. Negotiations to sell this property to the Kalmia Condominiums broke down when Petitioner drastically increased the asking price.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. The applicable variance process is contained in Section 131.016(e), Clearwater Building and Zoning Regulations, which provides in pertinent part:

   
   

   1. A written application for a variance is submitted stating substantially that certain of the following exist:

      1. That special conditions and circumstances 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 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 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 land, structures or buildings in other districts shall be considered grounds for the issuance of a variance.

      * * *

      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 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.

      
      

10. Although special circumstances exist which makes this property unique in that all of the surrounding property was sold leaving this parcel too small to build more than a single family de1ling, this resulted from the actions of Kalsa corporation, of which Petitioner was president and from whom he acquired title to this property.

    
    

11. While it is true that Petitioner would require a variance of lot size to build a single family residence, the variance needed would be minimal since a single family dwelling requires 5,000 square feet and this parcel contains 4,916 square feet. Such a variance is a far cry from that here requested of more than 5,000 square feet.

    
    

12. Without a change in zoning from CG to RM-28, Petitioner still would be unable to meet the zoning requirements to build the triplex here proposed. This is so because CG zoning, while having no minimum lot size requirements per se, authorizes multiple dwellings as regulated in RM-28. Minimum lot size in RM-28 is 10,000 square feet.

    
    

13. From the foregoing it is concluded that Petitioner does not meet the legal requirements for the variances requested. It is

ORDERED that the Petition of Joel Sainer for variances in lot size and setback lines to erect a triplex on land located at 1510 Lakeview Avenue, Clearwater, Florida, be denied and the decision of the Board he affirmed.

DONE AND ORDERED this 13th day of September, 1984, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-0675

FILED with the Clerk of the Division of Administrative Hearings this 13th day of September, 1984.

COPIES FURNISHED:

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

Ms. Lucille Williams City Clerk

Post Office Box 4748 Clearwater, Florida 33518

George W. Greer, Esquire

302 South Garden Avenue Clearwater, Florida 33516

Docket for Case No: 84-002326RX

Orders for Case No: 84-002326RX