STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID GANGELHOFF, )

)

Appellant, )

)

vs. ) CASE NO. 85-1340

)

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 May 29, 1985, at Clearwater, Florida.

APPEARANCES

For Appellant: David Gangelhoff, pro se

Post Office Box 3309 Holiday, Florida 33590

and Peter Mangano

c/o Kenneth W. Vogel, General Contractor 703 Lewis Avenue

Holiday, Florida 33590

For Respondent: Miles A. Lance, Esquire

Assistant City Attorney Post Office Box 4748 Clearwater, Florida 33518

By letter dated April 10, 1985, David Gangelhoff, Appellant, appeals the decision of the Board of Adjustment and Appeal on Zoning denying his request for variances at property owned by Appellant at 405 North Fort Harrison Avenue, Clearwater, Florida. Specifically, Appellant here

contests the denial of the following four requests for variances:

1. Variance of 16' 3-1/2" from the south property line abutting Hart Street to allow the construction of a building 1' from the property line instead of 17'

   3-1/2" as required by the Code.

2. Variance of 2' to allow the con- struction of a parking lot 1' from the north side of the property line instead of 3' required by the Code.

3. Variance to omit landscaping between the parking lot and the property line.

4. Variance of 3' to place the fence on the property line abutting Hart Street.

At the hearing Appellant called two witnesses, Respondent called one witness, one public witness testified in support of part of the appeal and against part of the appeal, and one exhibit was admitted into evidence.

Proposed findings have been submitted by Respondent.

To the extent those proposed findings are incorporated herein, they are adopted; otherwise, they are rejected as not supported by the evidence, cumulative, mere recitation of witnesses' testimony, immaterial, or unnecessary to the results reached.

FINDINGS OF FACT

1. David Gangelhoff operates a boat sales and service facility on property he owns at 405 North Fort Harrison Avenue. This property is divided into two parcels by Hart Street, which dead end at the back of a building facing North Fort Harrison. For the past few years the Appellant has been buying lots in two parcels separated by Hart Street and intends to acquire all the lots in the entire two blocks. After acquiring all of the lots he proposes to request the City to vacate Hart Street.

   
   

2. Appellant currently owns the property abutting both sides of Hart Street and the setback requirements for Hart Street will disappear if the City abandons its right- of-way over Hart Street. Building and zoning regulations

   require a 17' 3" side setback on a building siding on Hart Street, a 3' buffer zone between parking and the property line, landscaping in the 3' buffer zone between the parking area and the north property line, and a 3' setback in the fence parallel to the south property line along Hart Street. Variances (1) and (4) involve the property line abutting Hart Street and variances (2) and (3) involve the north property line of the property where parking is to be provided.

   
   

3. Appellant apparently stores some of his boats in an open area toward the back of the property. He proposes to erect a one-story building on a portion of the property north of Hart Street and to construct the south side of this building one foot from the property line abutting Hart Street. This will provide more inside storage. A proposed canopy area along the main building on the north side of the property is to be used for additional storage and to provide better security in the high crime area in which this business is located.

   
   

4. The property is zoned CG. The variance in setback in buffer zones for landscaping which are requested by Appellant are such that practically no setback would remain nor would there be a buffer zone if the variances are granted.

   
   

5. Allowing Appellant use of his property to the boundary lines would be beneficial to Appellant's business as it would provide a better facility with more enclosed space to provide security for the boats and equipment.

   
   

6. No evidence was presented that other property owners in the vicinity have been granted variances similar to those denied to Appellant or that the special conditions and circumstances exist which make this property unique so that denial of the variance would create an undue hardship on the Appellant.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. Section 131.016, Clearwater Building and Zoning Regulations, provides in pertinent part:

   
   

   A variance from the terms of this chapter shall not be granted by the board unless an until:

   1. A written application for a variance is submitted stating sub- stantially 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 cir- cumstances referred to in subsection

         1. 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 dis- trict, and no permitted use of land, structures or buildings in other districts shall be considered grounds for 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.

   
   

9. The only evidence of hardship presented is that Appellant's business could be operated more effectively if the variances are granted, that the location is in a depressed area which would benefit if business opportunities are improved in the area, and that the variances would help provide protection to Appellant's equipment and boats stored on the property.

   
   

10. Whether the City would relinquish its right-of- way over Hart Street, in the event Appellant acquires all of the property in the two-block area and thereby obviate the setback requirements for property lines abutting Hart Street, is a political decision which the board is better equipped to answer than is the Hearing Officer. By denying the requested variances, the board has determined this issue adversely to Appellant.

11. No special conditions or circumstances were shown which are peculiar to this property other than Hart Street, which dead end on the property and divides the two parcels. Since some evidence was presented that Hart Street is currently used for garbage pickup by City vehicles and may be required for access by the fire department, the future closing of Hart Street may never occur.

    
    

12. Denying this application will not deprive Appellant of rights commonly enjoyed by other properties in the same district.

    
    

13. While granting the variances would have the effect of giving Appellant more property on which he could erect buildings, use of the property with the existing setbacks is feasible and a determination that the setback requirements be followed will not deprive Appellant of the effective use of his property.

    
    

14. From the foregoing it is concluded that Appellant has failed to show, by a preponderance of the evidence, that he should be granted the specific variances denied him by the Board of Adjustment and Appeal on Zoning. It is

ORDERED the appeal of David Gangelhoff from denial by the Board of Adjustment and Appeal on Zoning for four variances at his property located at 405 North Fort Harrison Avenue, Clearwater, Florida, be dismissed.

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

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 Hearings this 28th day of June, 1985.

COPIES FURNISHED:

Frank Kowalski, Esquire Acting City Attorney Post Office Box 4748

Clearwater, Florida 33518

David Gangelhoff

405 North Fort Harrison Avenue Clearwater, Florida 33515

Peter Mangano

c/o Kenneth W. Vogel, General Contractor

703 Lewis Avenue

Holiday, Florida 33590 p

Ms. Lucille Williams City Clerk

Post Office Box 4748 Clearwater, Florida 33518

Mark A. Lance, Esquire Assistant City Attorney Post Office Box 4748 Clearwater, Florida 33518

Docket for Case No: 85-001340

Orders for Case No: 85-001340