STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK VASILAROS and SOPHIA )

VASILAROS, )

)

Petitioners, )

)

vs. ) CASE No. 91-6190

)

DON PIERSON and CITY OF )

CLEARWATER, )

)

Respondents. )

)

ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a public hearing in the above styled case on January 3, 1992, in Clearwater, Florida.

APPEARANCES

For Petitioners: John T. Blakely, Esquire

Post Office Box 1368 Clearwater, Florida 34617

For Respondent George W. Greer, Esquire Pierson: 600 Cleveland Street

Suite 685

Clearwater, Florida 34616

For Respondent Miles Lance, Esquire City of Post Office Box 4748

Clearwater: Clearwater, Florida 34618 STATEMENT OF THE ISSUES

Whether Respondent Pierson should be granted the following variances:

1. A variance of 18 feet to allow construction of a triplex 7 feet from a street right-of-way.

2. A variance of 2 feet to allow construction of a triplex 6 feet from a side property line.

PRELIMINARY STATEMENT

A notice of appeal from a decision of the Development Code Adjustment Board (the Board) was timely filed by Petitioners, Jack and Sophia Vasilaros (Vasilaros) on August 27, 1991. Essentially, the appeal seeks a reversal of the Board's decision to grant an application by Respondent, Don C. Pierson (Pierson), for variances which would allow expansion of an existing duplex into a triplex on property adjacent to the Vasilaros home. Petitioners contend that

the application should have been denied because it fails to satisfy many of the requirements of Section 131.012(d), Clearwater Land Development Code, that must be met before a variance can be granted.

The appeal was referred to the Division of Administrative Hearings by Respondent, City of Clearwater (Clearwater), on September 26, 1991. A tape recording of the public hearing before the Board, together with the record below, accompanied the referral, as required by Section 286.0105, Florida Statutes.

The following witnesses testified at the appeal hearing: Petitioner Jack Vasilaros, Respondent Pierson, and Scott Shuford, Respondent Clearwater's planning manager. Petitioner submitted twelve exhibits and Respondent Pierson filed four exhibits. All of the exhibits were accepted and admitted into evidence.

A tape recording of the appeal proceedings was given to the Hearing Officer on the day of final hearing. Proposed orders were timely sent by all parties.

One of these proposed orders was inadvertently mailed to the Division's former location. The postal system did not forward it to the new address. The same document was remailed when it was returned to the sender, and was filed on January 22, 1992. The Hearing Officer accepted the late filing and deferred ruling until this proposed order arrived at the Division.

The parties' proposed findings of fact, to the extent they are incorporated herein, are adopted; otherwise they are rejected as unsupported by evidence, unnecessary to the resolution of the issues, or a mere recitation of testimony presented at hearing.

FINDINGS OF FACT

1. Respondent Pierson is the owner of a parcel of land located at 7 Heilwood Street, Clearwater Beach, Florida. This parcel consists of the North 1/2 of Lot 2 and all of Lot 3 in Block 6, Revised Map of Clearwater Beach, according to the plat thereof as recorded in Plat Book 11, page 5, of the Public Records of Pinellas County, Florida. The westwardly portion of the parcel is beach front property on a coastal barrier island.

   
   

2. When the subdivision known as Clearwater Beach Subdivision was platted, fifteen lots were placed in Block 6. The three beachfront lots were smaller in area than the other twelve lots which were uniform in size and shape. However, when Lot 2 was divided and the northern half went to Lot 3 and the southern half to Lot 1, fourteen similar parcels were created in Block 6.

   
   

3. Pierson purchased the parcel in question as unimproved property in Clearwater Beach Subdivision in 1962. This was nine years prior to the creation of Coastal Construction Control Lines by the Florida Legislature.

   
   

4. The establishment of the Coastal Construction Control Line for Clearwater Beach in 1977, caused building setbacks previously established by the City of Clearwater for this unimproved parcel to become even further restricted. The Coastal Construction Control Line deleted the seaward 5/8ths of the Pierson property on which a building could have been erected previously on Clearwater Beach. Few parcels on this island were impacted as severely as Respondent Pierson's by the creation of the Coastal Construction Control Line because most of these parcels already contained permanent improvements.

5. This parcel remained vacant until Respondent Pierson erected a duplex in 1986. This improvement was constructed according to the Land Development Code in effect at the time with the following exceptions: A variance of zero setback from the Coastal Construction Control Line and a 6 foot height variance to permit construction of a building 31 feet in height were granted by the Board. At the time the variances were granted, Respondent had the option to build either a duplex or a triplex at the site.

   
   

6. Respondent seeks to expand this structure and to convert it into a triplex. In order to complete the planned expansion, a variance of 18 feet was requested from the Board to allow construction 7 feet from the Heilwood Street right-of-way. Currently, the Code requires a 25 feet setback from a street right-of-way. In addition, a variance of two feet from the eastward property boundary was requested to allow construction up to 6 feet from this side property line. Code provisions require an 8 feet setback. The existing structure is 6 feet from this side property line. The proposed addition to the current structure would continue with that eastern setback of 6 feet to the north, with an additional 25 feet of structure extending towards Heilwood Street. The expansion of the building to the west would terminate at the Coastal Construction Control Line.

   
   

7. The property is zoned RM-20 with a land use plan designation as high density residential developed.

   
   

8. The parcel is 95.12 feet in length and 87 feet in width, an area of 8,242.38 square feet. Ordinarily, a parcel with these dimensions is of sufficient size to build the structure proposed by Respondent Pierson without violating the street right-of-way setback and the side property line setback mandated by the Code. In this case, setback variances are required to complete the triplex because of the Coastal Construction Control Line's location on the parcel.

   
   

9. In his application for variance, together with evidence presented, Respondent Pierson contends that the variance request arises from a condition unique to the property. The "unique" condition being that he did not build what he now wants to build on the property before the land use restrictions currently in place limited development of the parcel to such an extent.

   
   

10. All other lot owners in the locale chose to develop their lots earlier than Respondent did, under less restrictive conditions. As a result, Respondent Pierson's duplex is setback further from Heilwood Street than the other buildings.

    
    

11. Deciding when and what to build as a real property improvement is part of real estate ownership.

    
    

12. Now that Respondent Pierson wants to change his previous development decision to reflect his current intended property use, he wants the same setback benefits as those acquired by other property owners on Heilwood Street who developed their parcels during past time periods with less restrictive setbacks.

    
    

13. The Coastal Construction Control Line and the building setbacks have been placed on the property because of legitimate state and local concerns.

    
    

14. A driveway was placed by Respondent Pierson in front of the duplex as it faces the water at the end of a dead-end street. The location of this driveway and the existing setback of the duplex from the road beyond all of the

    other property setbacks on this street, make this portion of Respondent's property a convenient area for traveling cars to turn around or to park while using the beach.

    
    

15. Respondent Pierson contends that the variances he has requested will discourage the use of his land as a turnaround area, because it would be clear to those attempting to use his driveway that they were trespassing. His primary interest is to maintain his private interests in the property which should go beyond those currently enjoyed by the public. It is a desire for these rights that control his request for the variances as opposed to a desire to secure a greater financial return.

    
    

16. The variances granted by the Board will not be materially detrimental or injurious to the Vasilaros property. The variances, however, could impair the present value of the Petitioner's property because the expansion of the Pierson duplex into a triplex would block a large amount of the Gulf view the Vasilaros building was designed to acquire.

    
    

17. Petitioners' lot is in the same subdivision as the parcel owned by Respondent Pierson. Even before the Vasilaros lot was improved, the landowners knew or should have known that another parcel separated this lot from the beach. Respondent Pierson is under no statutory or contractual obligation to restrict his land use to allow Petitioners a view.

    
    

18. The variances granted would result in a nonconforming building. All of the other structures in the immediate vicinity are nonconforming because these structures were built before current zoning regulations were adopted. Respondent Pierson seeks to blend with the neighborhood on the street and to have the same nonconforming advantages.

    
    

19. Respondent Pierson could convert the current structure into a triplex. The apartments would be much smaller than the ones contemplated in the proposed plan. He seeks to create the third apartment for his own retirement home.

    
    

20. On August 22, 1991, the Board granted a variance of 15 feet to permit construction of a triplex 10 feet from a street right-of-way and a second variance of 2 feet to allow construction up to 6 feet from the side property line to the south because the Board found that the applicant has substantially met all the standards for approval, as listed in Section 137.012(d) of the Land Development Code. More specifically, the Board found: a) The variances arise from a condition which is unique to the property and not caused by the applicant; b) The Coastal Construction Control Line restricts the use of two- thirds of the property, allowing only 19 percent use, c) The particular physical surroundings, shape, or topographical conditions involved and the strict application of the provisions of this Development Code would result in unnecessary hardship upon the applicant; and d) The variances granted are the minimum necessary to overcome the hardship created by the minimal use of the property subject to the requisite building permit being obtained within six months from the date of this public hearing.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

21. Pursuant to Section 137.012(d) of the Land Development Code, an applicant who seeks a variance from zoning restrictions must demonstrate the

    presence of a condition unique to the parcel that results in an unnecessary hardship upon the applicant and interferes with his reasonable use of the land.

    
    

22. In this case, the Board determined that the Coastal Construction Control Line coupled with current setback requirements on Pierson's parcel, create a unique condition which prevents Respondent Pierson from expanding the duplex into a larger triplex. Ordinarily, landowners within the City's RM-20 land use designation with parcels of similar size, can build a triplex as large as the one requested without having to seek variances from the City's setback requirements. Thus, the Board concluded "unique hardship" occurred when Respondent Pierson was prevented from using his land in the same manner.

    
    

23. The proper standard for review of the Board's decision on the hardship issue is whether the Board was presented with competent substantial evidence to support it findings. Nance v. Town of Indialantic, 419 So.2d 1041 (Fla. 1982); Bernard v. Town Council of Palm Beach, 569 So.2d 853 (Fla. 4th DCA 1990).

    Absent an abuse of discretion or a clearly erroneous decision, the decision should not be set aside.

    
    

24. Reviewing courts have consistently determined that the Coastal Construction Control Line and municipal zoning ordinances which restrict land use do not create a unique condition for a landowner seeking a hardship variance. Town of Indialantic v. Nance, 400 So.2d 37 (Fla. 5th DCA 1981) affirmed, 419 So.2d 1041 (Fla. 1982); Town of Indialantic v. Nance, 485 So.2d 1318 (Fla. 5th DCA 1986); Pace v. Board of Adjustment, 492 So.2d 412 (Fla. 4th DCA 1986).

    
    

25. In order to find a hardship exists, it must be shown that no reasonable use can be made of the property. Thompson v. Planning Commission of City of Jacksonville, 464 So.2d 1231 (Fla. 1st DCA 1985). The facts in this case reveal that a duplex now exists on Respondent Pierson's property and that he could have built a triplex at the time he chose to create the onsite structure. Even now, a redesign of the duplex could convert the building into a triplex with smaller apartments than those envisioned by Respondent. Such units can be permitted under the existing Land Development Code. As a result, Respondent Pierson can use the land for the purpose for which it was zoned. Hemisphere Equity Realty Company v. Key Biscayne Property Taxpayers Association, 369 So.2d 996 (Fla. 3d DCA 1979).

    
    

26. An examination of the evidence presented before the Board and the Division of Administrative Hearings fails to demonstrate any legally cognizable hardship to support the granting of the variance. It cannot be reasonably inferred that a landowner who chose to speculate on a vacant lot, is entitled to a "hardship variance" from current zoning ordinances because he guessed wrong as to when he should improve property on Clearwater Beach, Florida.

    
    

27. The question of whether the City should exempt this particular area of development from current setback ordinances for a specific period of time, which would allow Petitioner Pierson to develop his parcel according to plan, is a different matter. Such questions involve policy decisions as opposed to legal determinations of hardship established by case law precedent.

RECOMMENDATION

Accordingly, it is ORDERED that the variances granted by the Board be set aside and the application for the variances submitted be denied.

DONE and ENTERED this 11th day of February, 1992, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

JOHN T BLAKELY ESQ PO BOX 1368

CLEARWATER FL 34617

GEORGE W GREER ESQ

600 CLEVELAND ST - STE 685

CLEARWATER FL 34616

MILES LANCE ESQ PO BOX 4748

CLEARWATER FL 34618

CINDIE GOUDEAU/CITY CLERK CITY OF CLEARWATER

PO BOX 4748

CLEARWATER FL 34618

MICHAEL WRIGHT/CITY MANAGER CITY OF CLEARWATER

112 S OSCEOLA AVE CLEARWATER FL 34618

VERONICA E. DONNELLY

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 11th day of February, 1992.

Docket for Case No: 91-006190

Orders for Case No: 91-006190