Judges: K. N. AYERS
Agency: Contract Hearings
Latest Update: Jul. 19, 1989
Summary: Whether Appellant was wrongfully denied a variance of 21.33 feet to construct a second floor deck at 673 Bay Esplanade, Five Palms Motel Condo, Clearwater, Florida.Applicant failed to meet code requirements for variance.
89-1849STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOHN SHAW, )
)
APPELLANT, )
)
vs. ) CASE NO. 89-1849
)
CITY OF CLEARWATER, )
)
APPELLEE. )
)
FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a hearing in the above-styled appeal on July 5, 1989, at Clearwater, Florida.
APPEARANCES
For Petitioner: Sidney W. Kilgore, Esquire
Post Office Box 4631 Clearwater, Florida 34618-4631
For Respondent: Miles Lance, Esquire
Post Office Box 4748 Clearwater, Florida 33618-4748
STATEMENT OF THE ISSUES
Whether Appellant was wrongfully denied a variance of 21.33 feet to construct a second floor deck at 673 Bay Esplanade, Five Palms Motel Condo, Clearwater, Florida.
PRELIMINARY STATEMENT
By letter dated March 23, 1989, John Shaw, by and through his attorney, appeals the denial by the Development Code Adjustment Board of his application for a variance of 21.33 feet in the setback requirements in order to construct a second floor deck at the condominium he recently purchased at 673 Bay Esplanade, Clearwater, Florida.
At the hearing, Appellant testified in his own behalf, Respondent called one witness, and two exhibits plus the record of the proceedings of the Adjustment Board hearing were admitted into evidence.
Proposed findings were submitted by the City of Clearwater and are substantially included herein. Proposed findings submitted by Respondent and not included herein are rejected.
FINDINGS OF FACT
John Shaw, a resident of Massachusetts, purchased the condominium for which the variance is here requested in December, 1988 without first visiting the property or inquiring about zoning restrictions. The unit purchased is on the second floor of a two story building earlier converted from a hotel or motel into condominiums.
The seller told Shaw he could construct a deck over the existing deck on the ground floor condominium below the unit purchased by Shaw.
While the construction of this deck was in progress it was discovered no permit had been pulled for the project and the work was stopped. The subsequent application for a permit was denied because the proposed deck encroached some 21.33 feet into the setback area.
The application for a variance was denied by the Clearwater Development Code Adjustment Board and this appeal followed.
The two buildings comprising this complex were erected many years ago and are non-conforming, i.e., the buildings themselves violate the current Development Code.
An existing deck extending into the setback area was constructed on the unit directly below the condominium purchased by Shaw and a similar deck extending to the seawall was constructed on an adjacent building. No permits are on file for those decks.
Construction of the proposed deck would improve the livability of the condominium greatly by expanding the area usable for looking seaward. The condominium has been used without this deck for many years.
This property is zoned CR-24 and the setback requirement is 25 feet from the water's edge.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceeding.
Procedures for conducting appeals from the development code adjustment board are contained in Section 137.013 of the Land Development Code of the City of Clearwater. 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, or that the decision of the board departs from the essential requirements of law.
The evidence presented at this appeal hearing was not substantially different from that presented to the board upon which the board based its decision to deny the variance requested. The principal difference is that the Appellant testified at this appeal hearing, but was absent from the hearing before the board.
Section 137.012 of the Land Development Code provides that variances shall not be granted unless the application and evidence presented clearly support the following conclusions:
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.
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.
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.
The request for a variance is not based primarily upon the desire of the applicant to secure a greater financial return from the property.
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.
The granting of the variance will not impair an adequate supply of light or ventillation 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.
The variance requested will not adversely affect the public health, safety, order, convenience, or general welfare of the community.
The granting of the variance will not violate the general spirit and intent of the development code.
Applying the evidence presented to the standards for approval of variances above quoted there is nothing unique about the condition of the property in question other than the building itself is non-conforming as part of this building is already in the setback areas. This resulted from the erection
of the building before the advent of the code. This factor does not provide a basis for further intrusions into the setback area.
Nor are there any particular physical surroundings, shape or topographical conditions of the property involved which would result in an necessary hardship if the code provisions are initially enforced. Absent such unnecessary hardship being shown, the requirement that Applicant apply for the minimum variance necessary to overcome this hardship is not applicable.
The application for this variance is not based primarily upon the desire of the Applicant to secure a greater financial return from the property. While it will not be materially detrimental or injurious to other property or improvements in the neighborhood, detract from the appearance of the community, substantially increase congestion in the public streets, increase the danger of fire, or be adverse to the public health, safety, or general welfare of the community, the granting of this variance will violate the general spirit and intent of the development code.
From the foregoing it is concluded that the Appellant has failed to show that the action of the board in denying his application for variance in the setback from the water's edge was not supported by competent and substantial evidence 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 in denying John Shaw a variance of 21.33 feet in the setback from the water's edge at Clearwater Harbor be affirmed and this appeal dismissed.
DONE AND ENTERED this 19th day of July, 1989, in Tallahassee, Leon County, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1989.
COPIES FURNISHED:
Sidney W. Kilgore, Esquire Post Office Box 4631 Clearwater, Florida 34618-4631
Miles Lance, Esquire Post Office Box 4748
Clearwater, Florida 33618-4748
Clerk
Post Office Box 4748 Clearwater, Florida 33618-4748
Docket for Case No: 89-001849
Orders for Case No: 89-001849
| Issue Date |
Document |
Summary |
|
Jul. 19, 1989 |
DOAH Final Order
|
Applicant failed to meet code requirements for variance.
|
