STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTONIOS MARKOPOULOS, )

)

Appellant, )

)

vs. ) CASE NO. 88-2453

)

CITY OF CLEARWATER, )

)

Appellee. )

)

FINAL ORDER

Pursuant to notice, a hearing was held in the above-styled cause on August 5, 1988, at Clearwater, Florida.

APPEARANCES

For Appellant: William J. Kimpton, Esquire

2901 U.S. 19 North, Suite 203

Clearwater, Florida 34621

For Appellee: Miles A. Lance, Esquire

Post Office Box 4748 Clearwater, Florida 34634-4748

This case involves an appeal by Antonios Markopoulos from a denial by the Development Code Adjustment Board for variances (1) of 15 feet to permit building zero feet from Coronado Drive and First Street rights-of-way, (2) of

1. feet to permit building zero feet from the south property line, (3) of 32.5 feet to permit building zero feet from the rear (west) property line, (4) of 25 percent open space to provide zero percent open space for the lot, (5) of 50 percent front yard open space to provide zero percent open space for front yard, and (6) of 55 percent building coverage to allow 100 percent building coverage at 200 Coronado Drive, Clearwater, Florida. Essentially, Appellant seeks to convert a 95 feet x 105 feet parking lot into a 7 to 9 story parking garage covering the entire lot to the lot lines on all four sides for which all variances requested are necessary.

   
   

   At the commencement of the hearing, the evidence presented to the Development Code Adjustment Board comprising a tape of the proceedings and exhibits presented was admitted into evidence. Thereafter, Appellant called seven witnesses, Appellee called no additional witness, two public witnesses testified and seven exhibits were admitted into evidence. No transcript of these proceedings was furnished.

   
   

   FINDINGS OF FACT

   
   

   1. Antonios Markopoulos, Appellant, applied for seven variances on property located at 200 Coronado Drive, Clearwater, Florida, to allow the

      construction of a 7 to 9 story parking garage covering the property from lot line to lot line.

      
      

   2. The property in question is a 95 feet x 105 feet parking lot adjacent to a hotel, shops and restaurants owned by Appellant. The first waiver requested was of the minimum lot size of 150 feet on which to build. Since this property was unique in that regard and could never attain the 150 feet minimum dimension, the Board granted that variance.

      
      

   3. The other six requests for variances involved setbacks and open space requirements. Appellant proposes to build a parking garage with two elevators to lift cars to the various parking levels with the building extending to the lot lines in all four directions.

      
      

   4. The hotel, restaurants and stores located at this site and owned by Appellant are nonconforming uses. The hotel has 86 rooms and if built today would require a minimum of 86 parking spaces. The stores and restaurants would require additional parking spaces that are now not available.

      
      

   5. Appellant proposes to construct a garage with approximately 340 parking spaces which he contends are the minimum needed to provide adequate parking for patrons at the hotel, stores and restaurants. At the hearing before the Board, Appellant contended that the parking garage would also serve to relieve parking problems at other establishments in the vicinity.

      
      

   6. Appellant proposes to have parking customers drive up a ramp through a ticket machine which will dispense a ticket which can be validated at the hotel, restaurants or shops. The car will then be parked by attendants who will drive the car onto an elevator to lift the car to a floor with parking space. This clearly indicates that Appellant is proposing to construct a parking garage which will be open to the general public.

      
      

   7. Appellant presented testimony that if the setbacks required by the Code were followed on all sides, there would be insufficient square feet per floor to make the parking garage financially feasible. He also presented testimony of the City of Clearwater Traffic Engineer to the effect that construction of a parking garage at this location would not create a traffic problem.

      
      

   8. Although most, if not all, of the property surrounding Appellant's property are nonconforming with less setbacks than are required by the existing code, none of these properties have been covered lot line to lot line with a structure or structures.

      
      

   9. The primary emphasis of the evidence submitted by Appellant is that there is insufficient parking at Clearwater Beach, and erection of a parking garage will do much to alleviate this problem.

      
      

      CONCLUSIONS OF LAW

      
      

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

   11. The issuance of variances are governed by Section 137.012 of the City of Clearwater Land Development Code. Subsection (d) thereof establishes the following standards in providing a variance shall not be granted unless the application and evidence presented clearly support the following conclusions:

       
       

       1. The variance requested arises from a condition which is unique to the prop- erty 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 appli- cant 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. This hearing was conducted pursuant to the provisions of Section 137.013(f) of this Code. Although evidence was presented at this appeal hearing, this evidence was not substantially different from that upon which the Board reached its decision to deny the requested variances.

       
       

   13. In these proceedings, the burden is on the Appellant to show that the decision of the Board cannot be sustained by the evidence before the Board and before the Hearing Officer, and that the decision of the Board departs from the essential requirements of law. Section 137.013(f)(3), Land Development Code.

       
       

   14. Applying these standards to the evidence presented shows the following:

       
       

       1. The fact that this property is only 95 feet wide resulted in the Board granting the variance to build on a lot less than 150 feet wide. The only other unique factor presented was that the lot is too small to accommodate the size structure proposed.

          
          

       2. There are no significant physical surroundings, shape or topographical conditions of this property for which a strict application of the code provisions will result in an unnecessary hardship upon the applicant other than that the lot is too small for the structure proposed.

          
          

       3. No credible evidence was presented that the variances requested are the minimum necessary to erect a parking garage on this property.

          Obviously, the more square feet of parking per floor that can be built, the less the cost of construction per square foot. However, several witnesses testified that a somewhat smaller parking garage could be constructed on this lot.

          
          

       4. This request for variances is based upon the desire of the Appellant to secure a greater financial return from the property. Obviously, Appellant has made a substantial investment in acquiring and renovating the hotel and restaurants, and providing additional parking will enhance the financial return from that investment.

          
          

       5. Granting these variances will improve the parking situation for properties in the vicinity. No credible evidence was presented from which a determination can be made as to the effect this parking garage would have on other property or improvements in the neighborhood.

          
          

       6. Granting these variance will impair light and ventilation to adjacent property and will obstruct the view of the water from properties east of this site.

          
          

       7. No evidence was presented that granting the variances requested will adversely affect the public health, safety, order, convenience, or general welfare of the community.

          
          

       8. Granting of these variances will seriously violate the general spirit and intent of the land development code.

          
          

   15. From the foregoing, it is concluded that Appellant has failed to show that the decision of the Board to deny the variances requested was not supported by competent and substantial evidence presented both to the Board and at this hearing or that the decision of the Board departed from the essential requirements of law. It is, therefore,

ORDERED that the action of the Development Code Adjustment Board be affirmed, and the appeal of Antonios Markopoulos for six variances to allow the construction of a parking garage covering the entire lot at 200 Coronado Drive, Clearwater, Florida, be dismissed.

DONE and ORDERED this 30th day of August, 1988, in Tallahassee, Florida.

K. N. AYERS 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 30th day of August, 1988.

COPIES FURNISHED:

William J. Kimpton, Esquire 2901 U.S. 19 North

Suite 203

Clearwater, Florida 34621

Miles A. Lance, Esquire Post Office Box 4748

Clearwater, Florida 34634-4748

City Clerk

City of Clearwater Post Office Box 4748

Clearwater, Florida 34634-4748

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 137.013(f)(7), L.D.C. SUCH PROCEEDINGS ARE COMMENCED BY COMMON-LAW CRITERIA FOR THE CIRCUIT COURT IN AND FOR PINELLAS COUNTY.

Docket for Case No: 88-002453

Orders for Case No: 88-002453