STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK VASILAROS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2919

)

CITY OF CLEARWATER and )

DON PIERSON, )

)

Respondents. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, K. N. Ayers, held a public hearing in the above- styled case on December 7, 1990, at Clearwater, Florida.

APPEARANCES

For Appellant: John T. Blakely, Esquire

Post Office Box 1368 Clearwater, FL 34617-1368

For Respondent: George W. Greer, Esquire

Pierson: 308 S. Garden Avenue Clearwater, FL 34616

For Respondent: Miles A. Lance, Esquire Clearwater: Post Office Box 4748

Clearwater, FL 34618-4748

STATEMENT OF THE ISSUES

Whether Respondent Pierson should be granted variances to permit construction of a triplex on a lot 95 feet wide and 87 feet deep. To do so the three variances required are (1) of 5 feet in width, (2) of 13 feet in depth, and (3) 753 square feet in area (10,000 square feet required).

PRELIMINARY STATEMENT

Don Pierson, the owner of a nonconforming lot at the corner of Heilwood Street and Beach Drive in Clearwater Beach, requested 5 variances to allow the conversion of a duplex at this location to a triplex. Three of these variances were approved by the Development Code Adjustment Board, and two were denied.

Those approved are (1) 5 feet in width, (2) 13 feet in depth, and (3) 753 square feet in area, all of which are required to meet the minimum lot size of 10,000 square feet (width, depth and area), the development code requires for the construction of a triplex in this zoning, RM-20.

The adjacent property owner, Jack Vasilaros, protested the grant of the variances requested at the Board hearing and filed this appeal.

At the hearing, Pierson testified on behalf of his application, Appellant called two witnesses; and four exhibits were admitted into evidence.

At the conclusion of the hearing, the parties were advised of their right to submit proposed orders to the hearing officer. The parties' proposed findings of fact to the extent they are incorporated herein, are adopted; otherwise, they are rejected as unsupported by the evidence, by to the resolution of the issues, or a mere recitation of the testimony presented at the hearing.

FINDINGS OF FACT

1. Don Curtis Pierson owns the north one-half of Lot 2 and all of Lot 3, Block 6, Revised Map of Clearwater Beach, and has owned this property for some

   28 years.

   
   

2. The property is zoned RM-20 and is high density residential developed. Pierson's lot is approximately 95 feet by 87 feet (approximately 82,500 square feet).

   
   

3. The property is currently occupied by a duplex which was constructed according to Code, except for variances of zero setback from the coastal construction control zone and a 6 foot height variance to permit the construction of a building 31 feet in height.

   
   

4. Appellant is the owner of a multifamily building adjacent to Pierson's property which was constructed before various code provisions became effective and was constructed to the lot lines without any setbacks.

   
   

5. When Pierson applied for variances in 1983 to construct a triplex on his property, the Board of Adjustment Appeal granted setback variances of 10 feet in rear and front setback lines to permit the construction of a triplex on this property. Vasilaros appealed that grant, and on July 12, 1983 the undersigned heard that appeal. On August 31, 1983, an order was entered denying the setbacks, but approving the construction of a triplex on the lot less than 10,000 square feet in area.

   
   

6. That approval was predicated upon then Section 131.020 of the Land Development Code which waived the area requirement for a lot of record. This Section was removed in the 1985 rewrite of the Land Development Code.

   
   

7. Specific code provisions respecting the size of the lot on which a three family structure may be erected are in Section 135.044 which requires a minimum lot area of 10,000 square feet, and minimum lot width and depth of 100 feet each.

   
   

8. The applicant's only hardship upon which the requested variance can be granted is the uniqueness of the property becoming nonconforming solely by reason of zoning changes.

   CONCLUSIONS OF LAW

   
   

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

   
   

10. But for the repeal of Section 131.020 of the Land Development Code, the issues here raised would be res judicata, because this very issue was decided between the same parties, i.e., that Pierson could legally construct a triplex on this lot. The reason for this was the fact that the lot was a lot of record which removed the minimum lot size requirements.

    
    

11. Section 136.007 was enacted in 1985 and replaced the lot of record exemptions. This Section provides generally that the purpose of this Section is to permit certain legal nonconforming lands and developments to continue until they are removed. Subsection (b) thereof specifically provides:

    
    

    1. Nonconforming lots. No building shall be erected or structurally altered on

       any lot that does not comply with the minimum area, width or depth specified in chapter 135 as determined by zone, except as may be permitted in accord with the following:

       1. A lot with nonconforming area may be used as otherwise permitted provided that:

          1. such area conformed with applicable zoning and code requirement at the time of its creation and was made nonconforming through a subsequent rezoning or code amendment.

          2. the owner of the nonconforming lot owns no adjoining unimproved land which, if combined with the non- conforming lot, would create a conforming lot area or a lot unconforming to a lesser degree.

          3. the development for the property is consistent with all other applicable development regulations contained in this development code including density, except that no property

          shall be prohibited from being developed with one detached single- family dwelling due to a lack of area where such use is identified as per- mitted within the zoning district assigned to the property and such single-family dwelling complies

          with all development regulations other than density and lot area.

       2. A lot with nonconforming width may be used as otherwise permitted provided that:

          1. such width conformed to applicable zoning and code requirements at the time of its creation and was made nonconforming through a subsequent

             rezoning or code amendment.

          2. the owner of the nonconforming lot owns no adjoining unimproved land which, if combined with the non- conforming lot, would create a conforming lot with or a lot nonconforming to a lesser degree.

          3. the development for the property is consistent with all other applicable development regulations contained in this development code.

       3. A lot with nonconforming depth may be used as otherwise permitted provided that:

          1. such depth conformed to applicable zoning and code requirements at she time of its creation and was made nonconforming through a subsequent rezoning or code amendment.

          2. the owner of the nonconforming lot owns no adjoining unimproved land which, if combined with a non- conforming lot, would create a conforming lot depth or lot conforming to a lesser degree.

          3. the development for the property is consistent with all other applicable development regulations contained in this development code.

          
          

12. The lot in issue in these proceedings meets all of the requirements for variances above listed. Accordingly, the variances approved by the Development Code Adjustment Board subject to the time frame within which the construction permit must be obtained is approved. It is

ORDERED the appeal be dismissed.

DONE and ORDERED this 14th day of January, 1991, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1991.

COPIES FURNISHED:

John T. Blakely, Esquire Cyndi Goudeau Post Office Box 1368 Clerk

Clearwater, FL 34617-1368 City of Clearwater

Post Office Box 4748 George W. Greer, Esquire Clearwater, FL 34618-4748

308 S. Garden Avenue Clearwater, FL 34616

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

Docket for Case No: 90-002919

Orders for Case No: 90-002919