STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EUGENE R. SMITH, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5692

)

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 December 1, 1993, at Clearwater, Florida.

APPEARANCES

For Petitioner: Gregory Fox, Esquire

2379 Drew Street

Clearwater, Florida 34625

For Respondent: Miles S. Lance, Esquire

Assistant City Attorney Post Office 4748

Clearwater, Florida 34618-4748 STATEMENT OF THE ISSUE

Whether Petitioner should be granted a variance of 13.24 feet to allow a structure 12 feet from side property line when 25.24 feet is required.

PRELIMINARY STATEMENT

Following denial of his application for a variance in the side setback requirement, Eugene R. Smith, Petitioner, requested a formal hearing to appeal this denial and these proceedings followed.

At the hearing, Petitioner, called two witnesses, Respondent called two witnesses and five exhibits were admitted into evidence. Proposed findings were timely submitted by the parties. Those proposed findings are accepted except as noted in the Appendix hereto. After fully considering all evidence received, the following is submitted.

FINDINGS OF FACT

1. The Petitioner has an option to purchase property located at 301-307 Island Way Boulevard, Island Estate, Clearwater, Florida, on which he proposes to construct ten townhouses.

2. Initially Petitioner asked for two variances. The first variance was for 25.12 feet to allow construction on a lot only 124.88 feet wide. This variance was granted for this nonconforming lot.

   
   

3. The second variance, for 13.24 feet to allow construction of the ten townhouse complex 12 feet from the side property line, was denied by the Clearwater Code Adjustment Board. The Board concluded the variance requested did not meet the requirements of Section 45.24 of the Clearwater Land Development Code.

   
   

4. Petitioner presented evidence that if the lot had been 150 feet wide they would have had 90 feet to build on without requesting any variance. However, since the lot was nonconforming, in order to have 89 feet on which to place the building, the requested variance would be necessary.

   
   

5. Petitioner also presented evidence that the construction of ten townhouses on this lot is necessary for the project to be on a solid economic basis.

   
   

6. Subsequent to the denial of this variance by the Development Code Adjustment Board, Petitioner submitted plans, which have been approved by the City of Clearwater, to erect nine townhouses on this property without any variance needed. However, these townhouses would be smaller than would be the ten townhouses initially proposed and would provide a lesser return on the capital invested.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. Section 45.25 of the City of Clearwater Development Code establishes the criteria for obtaining variances and provides:

   
   

   A variance shall not be granted 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 nor uniformly applicable to the zoning district, and is not created by an action 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 a situation which supports the granting of a variance.

   2. The particular physical surroundings, shape or topographical conditions of the property involved and the strict application of the provision 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 subsection (2) of this section 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 any 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.

   
   

9. Because the lot in question was a nonconforming lot, Petitioner was given the first variance in width to allow a building to be erected on this lot. This is the condition referred to in conclusion 1 in paragraph 8 above.

   
   

10. As to the second variance, since the property in question is rectangular in shape and contains no unique topographical condition, strict application of the code will not result in an unnecessary hardship upon the applicant.

    
    

11. By submitting plans and obtaining approval for the construction of nine townhouses on the property, the applicant has himself demonstrated that the requested variance is not the minimum necessary to make a reasonable use of the property.

    
    

12. Here, the variance is requested for the primary purpose of enhancing the economic value of the property.

    
    

13. The neighbors on the side of the property for which the variance is requested oppose the granting of the variance, alleging that encroaching into the setback zone will reduce visual access to the water and reduce the value of their property. Insufficient evidence was presented to prove this allegation.

    
    

14. Although the granting of this variance will reduce the space between buildings on this lot and the adjoining lot, this will not constitute a substantial impairment in light or ventilation or detract from the community, nor will the granting of the variance affect the public health.

15. Granting the variance here requested would violate the general spirit and intent of the Development Code.

    
    

16. Section 36.065(6)(c) of the Land Development Code provides that in this proceeding the burden shall be upon the appellant to show 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 the law.

    
    

17. Petitioner has failed to sustain this burden.

ORDER

Based on the foregoing, it is, hereby, ORDERED:

That the appeal of Eugene R. Smith for a variance of 13.24 feet to allow the construction of a structure 12 feet from the side property at 301-307 Island Way Boulevard, Island Estates, Clearwater, Florida, be dismissed.

ORDERED this 20th day of December, 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 20th day of December, 1993.

APPENDIX TO FINAL ORDER, DOAH CASE NO. 93-5692

Proposed findings submitted by Petitioner are accepted.

Proposed findings submitted by Respondent are accepted except as noted below:

1. Accepted as the testimony of witness Ramsey, but the opinion regarding unnecessary hardship is rejected. Also rejected is Ramsey's conclusion that the primary purpose of the requested variance is to permit the property to be developed in accordance with the Development Code.

2. Opinion of Hilton that request for variance is reasonable and Applicant met criteria for the requested variance is rejected.

COPIES FURNISHED:

Gregory Fox, Esquire

2380 Drew Street, Suite 3

Clearwater, Florida 34618

Miles S. Lance, Esquire Assistant City Attorney Post Office Box 4748

Clearwater, Florida 34618-4748

City Clerk's Office 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. ALTERNATIVELY, A PARTY ADVERSELY AFFECTED BY THIS FINAL ORDER MAY BRING A CIVIL ACTION FILED IN CIRCUIT COURT UNDER SECTION 230.23(4)(m)5., FLORIDA STATUTES (1990 SUPP.), OR BRING A CIVIL ACTION IN FEDERAL COURT.

Docket for Case No: 93-005692

Orders for Case No: 93-005692