STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIE BREWTON, )

)

Appellant, )

)

vs. ) CASE NO. 85-0067

)

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 March 7, 1985, at Clearwater, Florida.

APPEARANCES

For Appellant: William Lopez

2431 Estancia Boulevard Building B2

Clearwater, Florida 33519

For Respondent: Thomas A. Bustin, Esquire

Post Office Box 4748 Clearwater, Florida 33518

By letter dated December 27, 1984, William Lopez, as representative of Willie Brewton, Appellant, appeals the decision of the Board of Adjustment and Appeal on Zoning denying Brewton's request for a variance of two feet to erect a six-foot block/stucco fence abutting Lakeshore Lane, at 2606 Brewton Court, Clearwater, Florida.

At the hearing the evidence presented at the Board of Adjustment and Appeal on Zoning hearing was admitted into evidence. Thereafter, Respondent called one witness, one exhibit was admitted into evidence, and Appellant's representative reiterated Appellant's position that a four-

foot wall at this location is not adequate to provide the privacy desired by Appellant.

FINDINGS OF FACT

1. Willie Brewton owns a single family home on a lot approximately 200 feet by 600 feet bounded on the front (south) by Brewton Court and on the west by Lakeshore Lane. Across from Lakeshore Lane a new development is underway and traffic on Lakeshore Lane is increasing. Appellant's variance request involves increasing the solid fence along Lakeshore Lane in the vicinity of his entrance drive to 6 feet to provide more protection from noise and automobile headlights.

   
   

2. This property is zoned RS-100. This code allows for a four-foot fence along the side of the residence and a 30-inch fence in front of the residence. Accordingly, the maximum allowed height of fence on Appellant's property is four feet along Lakeshore Lane.

   
   

3. No evidence was presented that similar variances have been granted to other properties in the same district or that special conditions and circumstances exist which are peculiar to Appellant's property which are not applicable to other lands in the same district.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Section 131.016(e), Clearwater Building and Zoning Regulations authorizes variances from code provisions to prevent necessary hardship and secure the general welfare. That section specifically provides a variance shall not be granted by the board 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 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 circum- stances 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.

         
         

6. Here no evidence was presented that there are special circumstances or conditions peculiar to this property which are not applicable to others in the same district; Appellant is denied no right commonly enjoyed by others in the district; and granting the variance will confer on Appellant special privileges not enjoyed by others whose fences comply with code heights.

   
   

7. Another consideration is the requirement that to authorize the variance it must be the minimum variance that will make possible reasonable use of the land. This code provision is consonant with the purpose of zoning regulations which are invalid only when they preclude a reasonable use of the property. City of Ormond Beach v. Florida ex rel Del Marco, 426 So.2d 1029 (Fla. 5th DCA 1983)

   
   

8. From the foregoing it is concluded that Appellant is currently enjoying a reasonable use of his property and presented no evidence that he is suffering such a hardship that the requested variance should be granted. It is

ORDERED that the appeal of Willie Brewton from a denial of his request for a variance of two feet in fence height for his property located at 2606 Brewton Court, Clearwater, Florida be dismissed.

DONE AND ORDERED this 28th day of March, 1985, at Tallahassee, Florida.

Hearings

K. N. AYERS, Hearing Officer Division of Administrative

Hearings

Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

Filed with the Clerk of the Division of Administrative

this 28th day of March, 1985.

COPIES FURNISHED:

Thomas A. Bustin, Esquire City Attorney

Post Office Box 4748 Clearwater, Florida 33518

Willie Brewton Box 71

1118 Harris Lane

Clearwater, Florida 33517

William Lopez, Vice President The Babcock Company

2431 Estancia Boulevard, Bldg. 2

Clearwater, Florida 33519

Ms. Lucille Williams City Clerk

Post Office Box 4748 Clearwater, Florida 33518

Docket for Case No: 85-000067

Orders for Case No: 85-000067