STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN GALLANT, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4968

) CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

The final hearing in this case was held on December 2, 1988, in Clearwater, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: John Gallant

643 Harbor Island

Clearwater, Florida 34630

For Respondent: Miles A. Lance, Esquire

Post Office Box 4748 Clearwater, Florida 34618

The issue in this case is whether the application of John Gallant (Petitioner) for a variance to permit a fence in the setback area adjoining his waterfront property should be approved. The record of proceedings before the Development Code Adjustment Board concerning this, and a prior application for a variance by the Petitioner, were introduced into evidence. Petitioner testified on his own behalf, and introduced one exhibit. The City of Clearwater called one witness, Kemper Merriam, and introduced one additional exhibit. A transcript of the final hearing was not filed, and the parties waived the filing of post-hearing proposals.

FINDINGS OF FACT

1. On or about April 5, 1988, Petitioner filed an application for a variance to replace an existing four foot fence extending to the seawall on his property at 643 Harbor Island, Lot 12 Island Estates, Clearwater, Florida. The subject property is zoned RS-6. Petitioner had already replaced his previous fencing prior to the filing of this application with wooden fencing which extends on the north and south side of his property through the setback to the seawall.

   
   

2. The Development Code Adjustment Board considered Petitioner's application at its meeting on May 12, 1988, and based upon the Petitioner's explanation that the variance was sought simply to replace an existing fence that had termite damage, the Board approved his application on a 3 to 2 vote. The variance approval was conditioned upon the Petitioner obtaining a building permit within one month of the approval.

3. Petitioner failed to obtain the required building permit, and no excuse was offered for this failure. Therefore, he had to reapply for the variance.

   
   

4. On or about July 21, 1988, Petitioner filed his variance reapplication. The Development Code Adjustment Board considered this reapplication on August 25, 1988, at which time Petitioner again stated that he was simply replacing an existing fence. Due to a tie vote, consideration of the reapplication was continued to the Board's meeting of September 8, 1988. At the meeting on September 8, he explained for the first time that while the fencing on the south side of his property was simply the replacement of a previous fence which had extended to the seawall, the fencing on the north side was not. The previous fence on the north side of his property had stopped prior to the fifteen foot setback. With this clarification, the Board approved his variance reapplication for the south side of his property, but denied the variance for the north side. Petitioner has timely appealed the denial of his variance reapplication as it relates to the north side of his property.

   
   

5. Petitioner testified at hearing that prior to the construction of his current wooden fence, he had a wood fence all the way to the seawall on the south side of his property. Since he had to replace that fencing due to termite damage, he took the opportunity to also replace and extend the wooden fencing on the northern side of his property through the setback. This action was not based on any hardship, but simply because he and his family felt it would look better if he had the same fencing on both sides of his property.

   
   

6. It is clear and undisputed that Petitioner constructed a new fence on the north side of his property through the setback without obtaining a variance or permit. He did this simply for aesthetic reasons, and not due to any hardship. He failed to disclose this in his applications, or when the Board met on May 12 and August 25, 1988 to consider this matter.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. The dispute in this case involves only the denial of Petitioner's variance reapplication as it relates to the north side of his property. His application is based upon the assertion that the fencing he has constructed is simply a replacement of a previously existing fence which was damaged by termites. At the Board meeting on September 8, 1988, and again at this hearing, Petitioner admitted that the portion of the fencing on the north side of his property which extends through the setback is new, and does not replace a previous fence. There was no attempt by the Petitioner to establish any hardship basis for the variance, and in fact he testified that his only reason for extending the fence on the north side was so that it would match the fence on the south side of his property, and thereby improve the appearance of his property.

   
   

9. Section 136.016(f)(1), Clearwater Land Development Code, specifies that fences are not permitted on any waterfront property within the structural setback area adjoining the water, and Section 136.010 establishes a rear (waterfront) setback of twenty-five feet. Petitioner's fence on the north side of his property was constructed through this setback to the seawall. Section 137.012(d), Clearwater Land Development Code, provides that a variance shall not

be granted unless the applicant establishes that the request arises from a condition unique to the subject property, and the denial of the variance would result in a unnecessary hardship for the property owner. The failure of a property owner to obtain a required permit before proceeding with a construction project is specifically excluded from conditions which would support the granting of a variance. Petitioner has not met his burden of proof in this case since he had not shown that his application, as it relates to the north side of his property, meets the standards for approval set forth in the Clearwater Land Development Code.

Based upon the foregoing, it is:

ORDERED THAT the application for a variance filed by Petitioner relating to the north side of his property is DENIED, and the action taken by the Development Code Adjustment Board on September 8, 1988, is upheld.

DONE AND ORDERED this day 5th of January, 1989, 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 January, 1989.

COPIES FURNISHED:

John Gallant

643 Harbor Island

Clearwater, Florida 34630

Miles A. Lance, Esquire Post Office Box 4748 Clearwater, Florida 34618

Cynthia Goudeau, Clerk Post Office Box 4748 Clearwater, Florida 34618

Docket for Case No: 88-004968

Orders for Case No: 88-004968