STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRED THOMAS, )

)

Appellant, )

)

vs. ) CASE NO. 88-1191

)

CITY OF CLEARWATER, )

)

Appellee, )

)

FINAL ORDER

Before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

Don Williams, of Clearwater, for Appellant, and Fred Thomas, pro se. Miles A. Lance, Esquire, of Clearwater, for Appellee.

On April 21, 1988, a hearing was held in Clearwater on the appeal of Fred Thomas from the decision of the Clearwater Development Code Adjustment Board (DCAB) denying his application for a variance from open space requirements under the Clearwater Land Development Code.

FINDINGS OF FACT

1. Fred Thomas owns a home and lot on the beach in Clearwater at 730 Eldorado Avenue, Mandalay Subdivision, Block 2, Lot 8, now zoned RS-8 (single family residential).

   
   

2. The Thomas house was built 30 years ago when front yard setbacks for the area were only 10 feet and there were no open space requirements.

   
   

3. Now the front setback in the area is 25 feet, and Section 135.029(8) of the Clearwater Land Development Code now requires lots in RS-8 zones to have a minimum open space of 35 percent of the lot and 40 percent of the front yard. There are many properties in the area of the Thomas house that maintain pre- existing non- conformities to the current setback and open space requirements. The Thomas property, in addition to the pre-existing setback non-conformity, had only 26 percent open space overall and no open space at all (all concrete) in the front yard.

   
   

4. In 1987, Thomas undertook renovations to his house. During construction, Thomas' concrete front yard deteriorated from additional cracking, and he decided to replace the concrete with brick pavers. He removed the concrete but then was required to get a building permit for this work. The building permit was not granted because the placement of brick pavers in the front yard violated the open space requirements.

5. Thomas applied for a variance to replace the concrete with brick pavers and later modified the application to be allowed to have 29 percent lot coverage and 12 percent front yard coverage with open space. The modified application was denied by the DCAB after hearing on February 11, 1988, and Thomas took this appeal.

   
   

6. Thomas also filed another variance application to be allowed to have 30 percent lot coverage and 16.8 percent front yard coverage with open space. This application was heard on March 10, 1988, and this time the DCAB granted the application.

   
   

7. The only open space required under the granted variance not required under the denied variance application is a 10' by 10' square on the far left side of the front yard (facing the house). Thomas claims that this open space requirement prevents him from using a narrow concrete alley to the left of the house (and perhaps the concrete apron in the back of the house) for guest parking, leaving him with a two-car garage and the brick paved area directly in front of the garage that could accommodate two cars but would block the garage.

   
   

8. Lack of guest parking would create a hardship of sorts on Thomas.

   There is no on-street parking in the area, and the Clearwater Police vigorously patrol and ticket violators in the area. The brick paved spaces in front of the garage could be inconvenient to the owners of the vehicles parked in the garage (probably the Thomases) and conceivably could block the cars in the garage temporarily under some circumstances.

   
   

9. However, Thomas is incorrect in his presumption that guest parking in the alley and back of the house would be blocked by the 100 square feet of open space required under the granted variance but not under the denied variance application.

   
   

   CONCLUSIONS OF LAW

   
   

10. On appeal from the DCAB decision on a variance application, the appellant has the burden to show that the decision cannot be sustained by the evidence or that the decision departs from the essential requirements of law. Clearwater Land Development Code, Section 137.013(f)(3).

    
    

11. Clearwater Land Development Code, Section 137.012(d), provides:

    
    

    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 title, 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 fire, 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 health, safety, order, convenience, or general welfare of the community.

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

       
       

12. The DCAB decided that Thomas' application and evidence did not clearly support the conclusions required by Section 137.012(d) for the grant of a variance. The DCAB decision is sustained by the evidence and does not depart from the essential requirements of law.

    
    

13. The requested variance, as a practical matter, seeks only to relieve Thomas from the requirement to maintain a 10' x 10' square of land as "open space." In all other respects, the granted variance gives Thomas the relief he seeks in the denied variance application.

    
    

14. Section 137.005, Clearwater Land Development code, defines "open space" as an area of a lot receiving permeable vegetative landscape treatment. It goes on to exclude grassed surface parking spaces from "open space." It follows that a grassed area not used for parking is "open space." Nothing in the code prevents Thomas from using the 10' square area for access to the side concrete alley and back concrete apron so long as the 10' x 10' square is grassed and Thomas does not use it for parking.

    
    

15. Because of the use Thomas legally can make of the "open space" required to be maintained in the 10' x 10' square on his front yard, he is under no hardship that would require variance. Put another way, the denied variance

application seeks more than the minimum variance required to alleviate the hardship on the property. The minimum required variance is embodied in the granted variance.

DISPOSITION

Based on the foregoing Findings Of Fact and Conclusions Of Law, it is ordered that this appeal is dismissed.

DONE AND ORDERED this 6th day of June 1988, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 6th day of June, 1988.

COPIES FURNISHED:

Don Williams Williams Architects 1445 Court Street

Clearwater, Florida 34616

Fred Thomas

730 Eldorado Avenue

Clearwater Beach, Florida 34630

Miles A. Lance, Esquire City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

Cynthia Goudeau City Clerk

Post Office Box 4748 Clearwater, Florida 34618-4748

Docket for Case No: 88-001191

Orders for Case No: 88-001191