STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BELLEAIR ASSOCIATES, LTD., )

)

Petitioner, )

)

vs. ) CASE NO. 86-1473

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

A final hearing was held in this case on June 20, 1966, in Clearwater, Florida, before Donald D. Conn a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

Petitioner: Rhea F. Law, Esquire

501 East Kennedy Boulevard Tampa, Florida 33602

Respondent: Miles Lance Assistant City Attorney Post Office Box 474B

Clearwater, Florida 33518

Belleair Associates, Ltd., Petitioners has applied for a variance from the provisions of the City of Clearwater Land Development Code governing signs. At the hearing, Petitioner called two witnesses and introduced one exhibit, and the City of Clearwater Respondents called one witness and introduced two exhibits. No transcript of the hearing has been filed.

The parties were allowed to submit post-hearing proposed findings of fact and conclusions of lawn and a ruling on each timely filed proposed finding is included in the Appendix to this Final Order.

FINDINGS OF FACT

1. The City of Clearwater Land Development Coded as it applies to this case, was adopted and took effect on August 29, 1965.

   
   

2. Petitioner owns and manages Belleair Cove Shopping Center located at 1451 U.S. 19 South, in the City of Clearwater. In mid-October, 1965, Petitioner replaced a panel in the shopping center's pole sign to identify a new tenant, Broyhill Furniture Rentals, at a cost of approximately $2500.

   
   

3. Several months later in early 1986, Petitioner was notified by Respondent that sign "alterations" are governed by the terms of the Land Development Coded and that the replacement of panels in an existing sign was an "alteration" which would require a variance if the existing pole sign did not conform to Code provisions.

   
   

4. On or about March 6, 1986, Petitioner applied for a variance since its existing pole sign with the Broyhill panel did not conform to the provisions of the Land Development Code. Petitioner applied for a variance of 188 square feet to permit a 300 square foot sign; and of 12 feet to permit a 32 foot high pole sign at 1451 U.S. 19 South. The property is zoned "CH", highway commercial.

   
   

5. The Land Development Code permits shopping centers, to have one pole sign to identify the shopping center, but it cannot exceed 112 square feet, and 20 feet in height without a variance. Nonconforming signs which were existing on the effective date of the Land Development Coded such as Petitioner's may remain for a period of seven years, but must be brought into conformance either at the end of that seven year periods or whenever they are altered or otherwise changed within this seven year period.

   
   

6. On March 27, 1986, the Development Code Adjustment Board denied Petitioner's application for variance, and Petitioner timely filed this appeal.

   
   

7. There is no dispute that the only alteration made by Petitioner in its sign was the replacement of one panel. Petitioner's property manager, William Dufrechou testified that shopping centers such as the one in this case experience a 15 percent turnover in tenants per year. According to the terms of its lease with its tenants, Petitioner is required to place the tenant's business sign on the shopping center pole sign.

8. Tom Webber an installer of business signs who erected Petitioner's pole sign in December, 1963 testified that changing panels in such pole signs is a routine matter, and a common activity for those who work on shopping center signs. He also stated that it would be impossible to modify Petitioner's pole sign to bring it into conformance with Code provisions as to height and square footage. Webber testified that this sign would have to be removed and replaced to meet Code provisions. This testimony was unrefuted.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.65(1), Florida Statutes, and Section 137.013, City of Clearwater Land Development Code.

   
   

10. Chapter 134 of the Land Development Code sets forth the regulations governing signs within the City of Clearwater. In order to properly apply the provisions of Chapter 134 it is necessary to consider its Statement of Purposes and also the Forward to this chapter as follows:

    
    

    134. 003--Foreward

    In order to preserve Clearwater as a desirable community in which to 1live vacation and do business, a pleasing visually attractive urban environment is of foremost importance. Furthermore, signage within the city is a highly contributive means by which to achieve this desired end. These sign regulations are prepared with the intent of enhancing the urban environment and promoting the continued well-being of Clearwater, Florida.

    134.004--Purpose

    It is the purpose of this chapter to promote the public health, safety and general welfare through a comprehensive system of reasonable1 consistent and nondiscriminatory sign standards and requirements. These sign regulations are intended to:

    1. Enable the identification of places of residence and business.

    2. Allow for the communication of information necessary for the conduct of commerce.

    3. Lessen hazardous situations, confusion and visual clutter caused by

       proliferation improper placement, illumination animation and excessive height, area and bulk of signs which compete for the attention of pedestrian and vehicular traffic.

    4. Enhance the attractiveness and economic well-being of the city as a place to lived vacation, and conduct business.

       (B) Curtail the size and number of signs and sign messages to the minimum reasonably necessary to identify a residential or business location and

       the nature of any such business.

       (9) Establish sign size in relationship to the scale of the lot and building on

       which the sign is to be placed or to which it pertains.

       
       

11. In enacting Chapter 134 dealing with signs, a provision for nonconforming signs was included which requires every non- conforming sign to be brought into compliance with the Code whenever it is "altered" or "otherwise changed." Section 134.015(a). However, if no alteration or change is made, non- conforming signs may remain until October, 1992 which is seven years from the Code's effective date. Section 134.015(c). The Code requires pole signs such as the one involved in this case to be a maximum size of 118 square feet and a maximum height of twenty feet. Sections 134.010(2)(c)2c, 134.012(1)c.

    
    

12. Petitioner's pole sign is nonconforming and the replacement of a panel is a "change" or "alteration" of this sign. Therefore, Petitioner must either bring its sign into conformance with the Coded or obtain a variance. In evaluating Petitioner's application for variance, Section 134.015(f) specifies that the following factors shall be considered:

    
    

    1. Potential adverse cosmetic effects on the property or building if any.

    2. Leasing arrangements, if any.

    3. Date of installation or erection.

    4. Initial capital investment.

    5. Life expectancy of the investment.

    6. Investment realization to date.

    7. Cost to alter or remove the sign.

    8. Salvage value.

13. Granting this variance will have no adverse cosmetic effects on the property in question, will be consistent with lease provisions, and will recognize that a pole sign erected. in December, 1963, has many years of expected useful life remaining. It will also recognize that pole signs that cannot be updated as tenants move in and out of a shopping center on a fairly regular basis will have to be replaced in a period of time much shorter than the seven year period prescribed in Section 134.015(c) which would make this seven year period virtually meaningless regarding paneled pole signs. Chapter 134 should be interpreted and applied in a manner which will give meaning to its requirements and not render provisions meaningless which have been included by Respondent to specifically address nonconforming uses.

    
    

14. Granting of this variance will also be consistent with the purpose and intent of Chapter 134, as set forth above. Updating the panels on a pole sign enables business identification and the communication of information necessary to conduct business, avoids confusion and thereby enhances the economic well-being of the city. Since Petitioner has not changed either the size or height of its sign, but simply replaced one pane1 a variance will not increase the size or number of signs, or in any way change the relationship of the size of Petitioner's sign to the size of its shopping center. If Petitioner is denied this variance and does not remove its sign until October, 1992, its pole sign will become incorrect and meaningless.. If this were to occur at shopping centers with similar signs throughout the city, the desirability of the community in which to live and do business and its continued well-being could be impaired, contrary to the Forward to Chapter 134, set forth above.

15. Finally Section 134.010 specifies that variances from the sign requirements of the Code must also conform to Section 137.012, which provides in pertinent part:

    
    

    1. Standards for approval. A variance shall not be granted by the development code adjustment board unless the application and evidence presented clearly support the following conclusions:

       1. The variance requested arises from a condition which is unique to the property in question and is neither ordinarily or uniformly applicable to the zoning district nor created by an action or

          actions of the property owner, predecessor in tit1e or the applicant. Any mistake made in the execution of a building permit or work performed without the benefit of a permit shall not be considered to be situations which support the granting of a variance.

       2. The particular physical surroundings- shape or topographical conditions of the property involved and the strict application of the provisions of this development code would result in an unnecessary hardship upon the applicant.

       3. The variance is the minimum necessary to overcome the unnecessary hardship referred to in preceding recital "2" for the purpose of making reasonable use of

          the land.

       4. The request for a variance is not based primarily upon the desire of the applicant to secure a greater financial return from the property.

       5. The granting of the variance will not be materially detrimental or injurious to other property or improvements in the neighborhood in which the property is located.

       6. The granting of the variance will not impair an adequate supply of light or ventilation to adjacent property, detract from the appearance of the community, substantially increase the congestion in the public streets, increase the danger of fired endanger the public safety in any way, or substantially diminish or impair the value of surrounding property.

       7. The variance desired will not adversely affect the public healthy safety, order, convenience or general welfare of the community.

    (10) The granting of the variance desired will not violate the general spirit and intent of this development code.

16. This variance request applies only to situations involving paneled pole signs which are intended and designed in a manner to facilitate frequent panel changes. The strict application of the sign requirements to applicants such as Petitioner would present a unique and unnecessary hardship in that signs such as the one in this case would

    have to be removed, although only a couple of years old since they could not be, modified to meet Code requirements. There is no evidence that the applicant desires to secure a greater financial return by this variance; but to the contrary the applicant seeks to maintain its current level of return. In additions no evidence was presented which would show that this variance would be detrimental to other businesses or properties, would impair light or ventilation or detract from the community's appearance, or would be contrary to the general spirit or intent of the Code.

    
    

17. Finally, it must be noted that Section 134.013(a)(1) of the Land Development Code specifically exempts advertising copy, announcements or messages on a marquee, or changeable copy sign boards from the permitting requirements of the Coded and further, Section 134.015(c)(1) exempts nonconforming signs along U.S. 19 from removal under certain conditions.

RECOMMENDATION

Based upon the foregoing, it is concluded that Petitioner has met the criteria for the granting of a variance in this case, and therefore it is ORDERED that the March 27, 1966 decision of the Development Code Adjustment Board is hereby REVERSED, and Petitioners' application for variance is GRANTED.

DONE and ORDERED this 2nd day of October, 1986, at Tallahassee, Florida.

Hearings

Hearings

DONALD D. CONN

Hearing Officer

Division of Administrative

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative

this 2nd day of October, 1986.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-1473C

Rulings on the City of Clearwater's Proposed Findings of Fact.

1. Adopted in Finding of Fact 2, 4.

2. Adopted in Finding of Fact 6.

3. Rejected as irrelevant and unnecessary.

4. Adopted in Findings of Fact 1, 2, and 3.

5. Adopted in Finding of Fact 2.

6-8. Rejected since these paragraphs set forth conclusions of law rather than findings of fact.

9. Rejected as not based on competent substantial evidence

requested

and otherwise irrelevant to the variances

herein.

10-19. Rejected since these paragraphs set forth conclusions

of law rather than findings of fact.

Rulings on Belleair Associates' Proposed Findings of Fact. 1-2. Adopted in Finding of Fact 2.

1. Rejected as irrelevant and unnecessary.

2. Adopted in Finding of Fact 4.

3. Adopted in Finding of Fact 6. 6-7. Rejected as irrelevant.

1. Adopted in Finding of Fact 1.

2. Rejected as a conclusion of law rather than a finding

   of fact.

3. Rejected as irrelevant.

4. Adopted in Finding of Fact 2.

5. Adopted in Finding of Fact 3.

13-16. Adopted in Findings of Fact 4, 5, and 6.

1. Adopted in Finding of Fact 6.

2. Adopted in part in Findings of Fact 2 through 6, but

otherwise rejected as cumulative and unnecessary.

COPIES FURNISHED:

Rhea F. Lawn, Esquire

501 East Kennedy Boulevard Tampa, Florida 33602

Miles Lancer, Assistant City Attorney Post Office Box 4740

Clearwater, Florida 33510

Cynthia Goudeau, City Clerk Post Office Box 4740 Clearwater, Florida 33510

Docket for Case No: 86-001473

Orders for Case No: 86-001473