STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRED SCOFIELD, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0523

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

A final hearing was held on March 27, 1987 in Clearwater, Florida before Donald D. Conn, a duly designated Hearing officer of the Division of Administrative Hearings, to consider the appeal of Fred Scofield (Petitioner) from the denial of his application for variances by the Development Code Adjustment Board of the City of Clearwater (Respondent). The parties were represented by:

Petitioner: Paul Bako, Esquire

Post Office Box 10213 Clearwater, Florida 33517

Respondent: Miles A. Lance, Esquire

Post Office Box 4748 Clearwater, Florida 33518

At the hearing, the record established before the Development Code Adjustment Board was admitted. Thereafter, Petitioner testified on his own behalf and also called Brian Bennett, who was accepted as an expert in traffic and safety engineering, and Respondent called John Richter, Development Code Administrator. Two public witnesses testified in opposition to this application. Two exhibits have been received in evidence from Petitioner; Respondent had one exhibit marked, but did not move it into evidence. No transcript of the hearing has been filed. The parties have filed post-hearing proposed orders and memoranda which have been considered in the preparation of this Final Order.

FINDINGS OF FACT

1. On or about December 16, 1986, Petitioner filed an application for variances concerning a sign he proposes to erect at 1419 Sunset Point Road, Clearwater, Florida. This property is zoned "OL", limited office.

   
   

2. Petitioner is seeking a variance of 24 square feet to permit a 48 square foot sign, and a variance of 14 feet to permit a sign 20 feet high. Without the requested variances, a sign cannot exceed 24 square feet and 6 feet in height at the subject location.

3. The Development Code Adjustment Board denied Petitioner's application on January 22, 1987, and Petitioner timely appealed.

   
   

4. John Richter, Development Code Administrator, testified that approval of these variances would have an adverse affect on surrounding properties, and would deviate from Code requirements without the establishment of any conditions unique to this property, or showing of topographical conditions which present an unnecessary hardship to the applicant if the Code is strictly applied. Public witnesses supported Richter's testimony.

   
   

5. The property in question is the site of a child care facility known as Creative Learning Center which offers pre- school and after school care. The property slopes approximately three feet from east to west, and there is a sidewalk across the front of the property which is intersected by the driveway that provides ingress and egress to the child care facility. Due to the location of public schools in the neighborhood, children and others pass regularly in front of Petitioner's facility along the sidewalk. There is no sidewalk on the other side of the street across from Petitioner's property.

   
   

6. Petitioner argues that placing the sign at a 6 foot height next to the driveway and sidewalk will cause a visual obstruction for cars using the driveway due to the slope of the property, and further that it will be hazardous for children and others passing in front of this facility on the sidewalk. A sign placed at a six foot height will also block the view of on-coming traffic for cars exiting the driveway, according to Petitioner. He also testified that a sign which is 6 foot in height will be subject to vandalism, which has occurred frequently in the area.

   
   

7. Brian Bennett, who was accepted as an expert in traffic and safety engineering, testified that any driver leaving the subject property would have his vision impaired by a sign erected on the property at a height of six feet and located as shown in architectural drawings of the site. The slope of the property would also cause any child on a bicycle to increase speed as he approached the driveway, and this would increase the safety hazard if the sign is placed next to the driveway and sidewalk. In Bennett's opinion, a sign 20 feet in height would allow for a clear line of sight and prevent any safety hazards which would otherwise result from this location of the sign on the property.

   
   

8. Petitioner contends that the only place on the subject property he can locate this sign is as shown on a series of architectural drawings introduced in evidence at hearing. He also argues that Respondent's approval of these drawings specifically included the location of the sign. These drawings show a pylon sign located next to the driveway and the sidewalk which passes in front of the property. The drawings are accompanied by approvals concerning Code compliance from various departments of the City. However, the approvals do not specifically deal with the location of the sign. The drawings do not show the proposed height or square footage of the proposed sign. Therefore, these drawings, and the City's approval thereof, do not constitute prior approval of the variances here at issue; nor do they establish that the only place Petitioner can locate a sign on the property is as shown in these drawings. Competent substantial evidence was not produced to establish that Petitioner's sign can only be located as shown on these drawings.

   
   

9. Since it has not been established that the sign in question can only be located next to the driveway and the sidewalk, the expert testimony of Brain Bennett is irrelevant and immaterial since it related solely to a sign at such

   location. While a safety hazard might result from the sign placement shown on the drawings, it has not been shown that increased height and square footage is the only way to eliminate this hazard. Placement of a sign which is in full compliance with the Code at another location could also remove the safety hazard. It has not been established that prior approvals by departments of the City as shown on, and as accompanying these drawings, preclude such alternative placement.

   
   

10. Petitioner seeks these variances to increase the business exposure of his child care facility.

    
    

11. It has not been shown that conditions unique to this property exist which would result in an undue hardship if the Code's provisions were strictly applied. The fact that there are other signs in the area that exceed Code limits does not, per se, establish that Petitioner may also exceed such limits and be granted a variance.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Section 137.012(d), Land Development Code, provides that a variance shall not be granted unless the record clearly establishes, in pertinent part, that:

    
    

    1. The variance requested arises from a condition which is unique to the property in question and is neither ordinarilv or uniformly applicable to the-zoning district nor created by an action or actions of the property owner, predecessor intitle, or the applicant. . . .

    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.

       * * *

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

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

       
       

       Petitioner has failed to establish any unique conditions or undue hardship which would constitute grounds to approve his application. He also has failed to show that the requested variances are the minimum necessary under the circumstances since he has not established he has only one alterative for placement of this sign. Clearly the variances are sought for business purposes. Competent substantial evidence has not been provided that granting of these variances will not adversely affect the general welfare of the community or be injurious to the neighborhood.

       
       

14. Respondent has adopted a comprehensive set of regulations governing signs which is found at Chapter 134, Land Development Code. Nonconforming signs are given seven years from the enactment of these regulations to be brought into compliance, but new signs must comply with requirements which include height and square footage limits. Section 134.015. The provisions of the sign regulations must be strictly construed to carry out the purposes and intent thereof.

Section 134.005(b). The purposes of Respondent's sign regulations, as set forth in Section 134.004, include to:

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.

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

Protect the public from the dangers of unsafe signs.

Permit signs that are compatible with their surroundings, aid orientation and preclude placement in a manner that conceals or obstructs adjacentland uses or signs.

Encourage signs that are appropriate to the zoning district in which they are located and consistent with the category of use to which they pertain.

Curtail the size and number of sign messages to the minimum reasonably necessary to identify a residential or business location and the nature of any such business.

Preclude signs from conflicting with the principal permitted use of the site or adjoining sites.

Preserve the natural and scenic characteristics of this waterfront resort community.

Approval of the variances sought herein would be contrary to the above-cited expression of the intent and purposes of Respondent's sign regulations, and there is no basis in the record for such deviation.

Accordingly, it is

ORDERED that Petitioner's application for variances is hereby DENIED and the prior action of the Development Code Adjustment Board is therefore affirmed.

DONE AND ORDERED this 15th day of April, 1987 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 15th day of April, 1987.

COPIES FURNISHED:

Paul Bako, Esquire Post Office Box 10213

Clearwater, Florida 33517

Miles A. Lance, Esquire Post Office Box 4748

Clearwater, Florida 33518-4748

Cynthia Goudeau, Clerk Post Office Box 4748

Clearwater, Florida 33518-4748

Docket for Case No: 87-000523

Orders for Case No: 87-000523