STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BENNIE MAE RUTLEDGE, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3553

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

A final hearing was held in this case on October 24, 1986 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: Mark K. Logan, Esquire

Post Office Box 1669 Clearwater, Florida 33517

Respondent: Miles A. Lance, Esquire

Post Office Box 4748 Clearwater, Florida 33515

At the hearing, three witnesses were called on behalf of Petitioner and one on behalf of Respondent. Petitioner introduced one exhibit, the parties stipulated to three exhibits, and the record before the Development Code Adjustment Board was accepted. No transcript has been filed. Proposed findings of fact and conclusions of law filed by the parties have been considered in the preparation of this Final Order.

FINDINGS OF FACT

1. Bennie Mae Rutledge, Petitioner, owns property located at 422 Madison Avenue, Clearwater, Florida which is the northwest corner of the intersection of South Madison Avenue and Brown Street. The legal description of the property is Lot 12, Block 1, Moase and Harrison Subdivision. The property is zoned commercial general.

   
   

2. David Legault has a contract with Petitioner to purchase the subject property which is conditioned upon the granting of the variance which Petitioner is seeking. Legault's primary objective in this proceeding is to enhance business opportunities available to him through the purchase and use of Petitioner's property, if the variance sought herein is granted.

   
   

3. On or about July 24, 1956 an application for a variance of the side property setback line requirement was submitted on behalf of Petitioner. This variance would permit the construction of an indoor storage or warehouse building 3.6 feet from the side property line, rather than ten feet. This is a variance of 6.4 feet.

4. On August 14, 1986 the Development Code Adjustment Board denied this variance, and a timely appeal was taken on behalf of Petitioner.

   
   

5. Prior to submission of this variance request, the Petitioner had sought four variances which were also denied. At that time, a 2,500 square foot building was proposed for the property which has now been reduced to a 2,000 square foot building, 100 feet long and 20 feet deep.

   
   

6. The subject property is 136 feet long and 48.6 feet deep. Given the dimensions of the lot, and considering the requirements for parking, green space, and other setbacks, the variance sought herein is the minimum necessary to use this property for a warehouse or indoor storage. Without this variance, the building could only be 13 feet deep, and this would not be functional.

   
   

7. Therefore, the particular size and shape of the subject property will result in an unnecessary hardship upon the Petitioner if the provisions of the Clearwater Land Development Code are strictly applied since the maximum depth of a commercial warehouse constructed on the lot could only be 13 feet.

   
   

8. According to John Richter, development code administrator, there are several commercial warehouses in the area of the subject property, and in his opinion the approval of this variance would neither have an adverse impact on the neighborhood, nor would it be a benefit.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Section 137.012(d) of the Land Development Code sets forth the standards for approval of a variance and places the burden of proof on the applicant to show clearly that the strict application of the Code would result in an unnecessary hardship due to the size and shape of the property in question, the variance requested is the minimum necessary to overcome such hardship, the granting of the variance will not be materially detrimental or injurious to other property in the neighborhood, or detract from the appearance of the community. Although Legault's primary purpose in this proceeding is to enhance his own business opportunities, Petitioner's primary reason for requesting the variance is to overcome a hardship which would result from the strict application of the Code due to the size and shape of her lot.

    
    

11. The evidence presented at the hearing establishes that Petitioner has met her burden of proof, and has shown that this variance request meets the standards for approval set forth in Section 137.012(d). The strict application of the setback requirements of the Code would result in a warehouse 13 feet deep and 100 feet long, which would not be a functional building. Petitioner has reduced the size of the proposed building and also the number of variances being sought, and is now presenting the minimum variance request to overcome this hardship. The neighborhood is commercial, and there are several warehouses in the area. According to the development code administrator, there `i11 be no adverse impact on the neighborhood if this variance is approved.

Accordingly, it is

ORDERED that Petitioner's application for a variance of the side setback line requirement is APPROVED, and the prior action of the Development Code Adjustment Hoard is REVERSED.

DONE and ORDERED this 5th day of November, 1986 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 1986.

COPIES FURNISHED:

Mark K. Logan, Esquire

P.O. Box 1669

Clearwater, Florida 33517

Miles A. Lance, Esquire

P.O. Box 4748

Clearwater, Florida 33518

Cynthia Goudeau, City Clerk

P.O. Box 4748

Clearwater, Florida 33518

Docket for Case No: 86-003553

Orders for Case No: 86-003553