STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLAUDE and MYRA STINSON, )

)

Appellants, )

)

vs. ) CASE No. 92-6255

)

CITY OF CLEARWATER, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on February 3, 1993 at Clearwater, Florida.

APPEARANCES

For Appellant: James W. Bauman, Esquire

1008 Drew Stree

Clearwater, Florida 34615

For Respondent: Miles A. Lance, Esquire

Assistant City Attorney Post Office Box 4748

Clearwater, Florida 34618 4748 STATEMENT OF THE ISSUES

Whether Appellants should be granted a variance of 7.17 feet to permit construction of a storage shed 2.83 feet from the rear property line at 1387 Lemon Street, Clearwater, Florida.

PRELIMINARY STATEMENT

This is an appeal from the denial of the requested variance of 7.17 feet to permit construction of a storage shed 2.83 feet from the rear property line of Appellants' property at 1387 Lemon Street, Clearwater, Florida.

At the hearing, the record of proceedings before the Development Code Adjustment Board was admitted into evidence and thereafter Appellant called four witnesses, including himself, Respondent called one witness, one additional witness who desired to testify in opposition to the requested variance was allowed to testify, and four exhibits were admitted into evidence. There is little, if any, dispute regarding the operative facts here involved. Proposed findings submitted by the parties are accepted except as noted in the Appendix attached hereto. Having fully considered all evidence the following is submitted.

FINDINGS OF FACT

1. Appellants are the owner of the residence located at 1387 Lemon Street, Clearwater, Florida, having purchased the property in October 1991.

   
   

2. The residence is a 3-bedroom 2-bath house containing approximately 1600 square feet.

   
   

3. On the back of the property and adjacent to the house is a patio and screen porch. The proposed storage shed would be located some 10 feet from the screened room and rest on concrete blocks.

   
   

4. The proposed storage shed is 10 feet by 14 feet and would extend into the 7 feet utility easement in the rear of the property and come within 2.83 feet of the real property line.

   
   

5. The Clearwater Building Code requires a 10 foot setback from the real property line. Accordingly, Appellants have asked for a 7.17 foot variance.

   
   

6. Appellants intend to store books and records in this shed, if approved, as they contend there is insufficient room in the house for these records.

   
   

7. Appellants engaged the services of a person observed erecting a gazebo a few blocks away to construct the storage shed. The contractor employed by Appellants apparently was not licensed and when Appellant asked the contractor if he needed a permit for the storage shed the contractor advised that he didn't pull permits.

   
   

8. Appellants engaged the contractor to construct the storage shed without making any inquiries to the city building department to ascertain if a permit was required.

   
   

9. After the structure was nearly completed a stop work order was posted on Appellants residence because no permit had been issued for the work.

   
   

10. When Appellants applied for a permit it was learned that the proposed building would encroach into the setback and that a variance would be required before the permit could be issued.

    
    

11. When the variance was applied for the Planning and Zoning Board denied the variance for the stated reason that the application did not meet the requirements of Section 137.012 of the Land Development Code of the City of Clearwater. These proceedings involve Appellants' appeal from that denial.

    
    

12. Appellants' lot is neither square nor rectangular having a slight curve generated by Lemon Street in front and the rear property line runs at an oblique angle with the side property lines which run north and south. However, this rear property line is only a few degrees from being perpendicular to the side property lines.

    
    

13. The plat plan accompanying the variance request shows none of the lots in the vicinity of Appellants lot to be truly rectangular and are little different in shape than is Appellants' lot.

    
    

14. Appellants' backyard is quite small with the southeast corner of Appellants' house approximately 15 feet from the rear property line. A spa

    located in the southwest corner of this lot appears from Exhibit 2 to be approximately 10 feet from the rear property line.

    
    

15. Appellants propose to have the storage shed painted to look like the house and to be firmly secured against heavy weather. Appellants contend that it would constitute a hardship if they are not granted the requested variance.

    
    

16. Appellants also contend that their property is unique; but unless the location of the house near the rear property line constitutes a unique situation, no other evidence was presented that their lot is substantially different from all of the other lots in the vicinity.

    
    

17. When Appellants moved into this house they found that the previous owners had used the southeast portion of this lot for storing old lumber and other junk which Appellants cleaned up to make room for the proposed storage shed. They contend the proposed shed is a vast improvement over the clutter formerly existing in this location.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

19. The granting of variances is controlled by Section 137.012 of the Land Development Code which provides in pertinent part:

    
    

    1. Purpose. It is the purpose of the variance procedure to provide the city with a process for alleviating hardships in carrying out the strict letter of this development code, so that the spirit of this development code shall be observed, public safety and welfare secured, and substantial justice done.

       * * *

       1. Standards for approval. A variance shall not be granted by the development code adjustment board unless the application and evidence presented clearly support the following conclusions:

          1. 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.

          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 the 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 applicant 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.

       
       

20. Appellants fail to satisfy condition (d)(1) above quoted as there is nothing unique to the property here involved. The hardship on Appellants, if there be one, results from the construction of the storage shed without the benefit of a permit.

    
    

21. Nor is the physical surroundings, shape or topography of the property such as to create a hardship on Appellants if this variance is not granted.

    
    

22. With respect to (d)(3) no credible evidence was presented to show that the variance requested is the minimum necessary to overcome the "hardship" in subparagraph (d)(2), which hardship was not shown.

    
    

23. Without the storage shed for which this variance is requested, Appellant testified he will have to obtain additional storage space outside his residence for which he will incur additional expenses. Accordingly, requesting the variance is to secure a greater financial return by eliminating the expense of outside storage off of the property.

    
    

24. Subsection (d)(5) thru (d)(7) above would not be materially affected by the granting of the variance requested.

    
    

25. Appellant contends that the granting of this variance would be in accord with the intent of the Development Code as expressed in subsection (a) above quoted to provide the City with a process for alleviating hardship in carrying out the strict letter of this development code. However, in interpreting statutes or codes it is a cardinal rule of statutory construction that the entire code under consideration must be considered in determining the intent of the drafters of the code. From a review of the whole code in para materia the Hearing Officer will determine the intent. State v. Gale

    Distributors, Inc., 349 So.2d 150 (Fla. 1977). Where legislative intent as evidenced by the code is plain and unambiguous, there is no necessity for any construction or interpretation of the code and courts need only to give effect to the plain meaning of its terms. State v. Egan, 287 So.2d 1 (Fla. 1973).

    Another cardinal rule of statutory interpretation is that no provision should be considered to be entirely redundant. Colautti v. Franklin, 439 US 379, 392 (1979).

    
    

26. Section 137.012(d) above quoted clearly states that a variance shall not be granted unless the evidence presented supports the findings that granting the variance will not violate any of those provisions cited in subparagraphs (1) thru (8).

    
    

27. From the above findings it is clear that Appellants have failed to meet the Code requirements necessary for the granting of the variance requested. Accordingly, it is ORDERED:

    
    

28. That the request by Claude and Myra Stinson for a variance of 7.17 feet in the back setback line to construct a storage shed 2.83 feet from the rear property line at 1387 Lemon Street, Clearwater, Florida be denied.

DONE and ORDERED this 23rd day of February, 1993, in Tallahassee, Leon County, 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 23rd day of February, 1993.

APPENDIX

Proposed findings submitted by Appellants are accepted except as noted below. Those proposed findings neither rejected nor included in Hearing Officer's findings were deemed necessary to the conclusions reached. Although Appellants' findings are not broken down into numbered paragraphs as is customary and required, there are 7 paragraphs under Statement of Facts and each sentence will be treated as a separate fact.

Paragraph 2 - First sentence rejected. See HO #12 and #13. Third sentence same as first. Sixth sentence - no evidence was presented that this steel shed constitutes an attractive nuisance. Even if it did such evidence would be irrelevant.

Paragraph 3 - Third sentence rejected as uncorroborated hearsay. Fifth sentence rejected as uncorroborated hearsay.

Paragraph 5 - References to hardship due to configuration of Appellant's lot is rejected.

Paragraph 6 - Accepted as Appellants' testimony not as fact.

Proposed findings submitted by Respondent are accepted except as noted below. Those proposed findings not included in Hearing Officer's findings or noted below were deemed unnecessary to the conclusions reached.

Findings 3 - Those portions respecting detrimental to other property in neighborhood, detract from the appearance of the community and endanger public safety are rejected as unsupported by credible evidence.

COPIES FURNISHED:

James W. Bauman, Esquire 1008 Drew Street

Clearwater, Florida 34615

Miles A. Lance, Esquire Assistant City Attorney City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618

City Clerk

City of Clearwater Post Office Box 4748

Clearwater, Florida 34618

Michael Wright, City Manager City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 92-006255

Orders for Case No: 92-006255