STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES W. AND BRENDA N. WALTER, )

)

Appellants, )

)

vs. ) CASE NO. 93-7068

)

CITY OF CLEARWATER, )

)

Appellee. )

)

FINAL ORDER

On February 17, 1994, a final hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Appellants: Patrick T. McGuire, Esquire

308 North Belcher Road Clearwater, Florida 34625

For Appellee: Miles A. Lance, Esquire

Assistant City Attorney City of Clearwater

Post Office Box 4748 Clearwater, Florida 34618-4748

STATEMENT OF THE ISSUE

The issue in this case is whether the evidence sustains the decision of the City of Clearwater Development Code Adjustment Board (the Board) to grant the application of the Appellant, the City of Clearwater for dock length, width and setback variances to allow the reconstruction of the public pier facility located at the west end of Magnolia Drive in Clearwater, Florida. (The pier was destroyed by the "No Name Storm of the Century" on March 12-13, 1993.)

PRELIMINARY STATEMENT

On or about September 1, 1993, the Appellant, the City of Clearwater, applied to the City of Clearwater Development Code Adjustment Board (the Board) for dock length, width and setback variances to allow the reconstruction of the public pier facility located at the west end of Magnolia Drive in Clearwater, Florida. After staff review and recommendation to grant the variance application, it was considered by the Board at a public hearing on October 14, 1993. However, when opposition was expressed by neighboring property owners, the matter was continued in order to ascertain whether the application had the full support of the City Commission. A second public hearing on the matter was scheduled for October 28, 1993, but the City Commission was not scheduled to address the matter until its meeting on November 8, 1993, so the matter was

continued and scheduled for November 17, 1993. At its November 17, 1993, meeting, the Board voted 3-2 to grant the variances, with the following conditions: (1) no deviation from the proposed materials and building plans;

1. the erection of signs as to closing times to be enforced by the police; (3) proper lighting; (4) the installation of an electronic safety system, including a gate, to be monitored by the police. A timely appeal was filed on December 1, 1993.

   
   

   Under Section 36.065 of the City of Clearwater Land Development Code (the Code), the appeal was forwarded to the Division of Administrative Hearings on December 13, 1993, along with a copy of the record of the proceedings below. On January 6, 1994, a Notice of Hearing was issued scheduling final hearing for February 17, 1994.

   
   

   At the final hearing, the record of the proceeding below was received, as required by Section 36.065(5)(c) of the Code. Additional evidence also was received, as permitted by Section 36.065(5)(d) and (6)(a) of the Code.

   Summations were heard, as permitted by Section 36.065(5)(b) of the Code. In addition, the parties were permitted to file post-hearing proposed findings of fact and conclusions of law under Section 36.065(5)(h) of the Code.

   
   

   FINDINGS OF FACT

   
   

   1. On or about September 1, 1993, the City of Clearwater applied to the City of Clearwater Development Code Adjustment Board (the Board) for dock length, width and setback variances to reconstruct the public pier facility located at the west end of Magnolia Drive in Clearwater, Florida, where it terminates at the waterfront in an "aquatic lands/coastal zoning district." The pier was 91.5 feet in length and 40 feet in width; it was set back 12.5 feet from the extension of the adjacent property lines. It was destroyed by the "No Name Storm of the Century" on March 12-13, 1993. Since the site has 65 feet of waterfront, reconstructing it to its previous dimensions requires variances of:

      (1) 59 feet in dock length (over the 32.5 feet allowed by the City of Clearwater Development Code); (2) 17.25 feet in dock width (over the 22.75 feet allowed by the Code); and (3) 7.5 feet reduction in setback from the extended adjacent property lines (below the 20 feet required by the Code.)

      
      

   2. Before its destruction, the public pier at the west end of Magnolia Drive in Clearwater had been in existence for many years. (The original version was built in approximately 1915.) The evidence is that the community at large desires to reconstruct the pier to its former dimensions. The old pier has historic and sentimental significance. It also serves as a recreational facility for residents without private access to a dock on the waterfront.

      
      

   3. Especially in the last several years before its destruction, public use of the old pier brought with it problems of misuse, loitering, litter, noise, trespassing, and crime. The police did not have the resources to prevent these problems. Criminal activity in the area seems to have decreased since the destruction of the old pier. As a result, the property owners closest to the pier do not want the public pier reconstructed at all, and certainly do not want it reconstructed to its former dimensions. They oppose the variance application.

   4. The conditions imposed by the Board (no deviation from the proposed materials and building plan, the erection of signs as to closing times to be enforced by the police, proper lighting, and the installation of an electronic safety system, including a gate, to be monitored by the police) will help alleviate many of the concerns of the neighboring property owners but are not guaranteed to eliminate them in their entirety.

      
      

   5. The water is shallow in the vicinity of the site, and a dock of a certain length is necessary for the dock to be used for boats of any appreciable size and draft. However, this condition is not unique to the particular site in question, but is uniformly applicable all along the City waterfront, and there was no evidence as to the length of dock required for adequate water depth for use by boats.

      
      

   6. There is no competent, substantial evidence in the record from which it could be found that the granting of the variances will not be materially detrimental or injurious to other property or improvements in the neighborhood in which the property is located.

      
      

   7. There is no competent, substantial evidence in the record from which it could be found that the granting of the variance will not impair the value of surrounding property.

      
      

      CONCLUSIONS OF LAW

      
      

   8. Section 41.151 of the City of Clearwater Land Development Code (the Code), applies to any and all docks "proposed to be constructed, added to, or structurally altered." Under Section 41.151(5), a dock is an "accessory use within the aquatic lands/coastal and aquatic lands/interior zoning districts."

      
      

   9. Dimension requirements for docks are set out in Section 41.151(3):

      
      

      1. Maximum width: Equal to 35 percent of the width of the property measured at the waterfront or 50 feet, whichever is the lesser.

      2. Maximum length: Equal to one-half of the width of the property measured at the waterfront or one-fourth of the width of the waterway, whichever is the lesser.

      3. Positioning from extended property line: Equal to one-third of the width of the property measured at the waterfront or 20 feet, which- ever is the lesser.

         
         

         Section 41.151(4) provides for the sharing of docks by contiguous property owners but specifies that the length and width of such docks are to be computed in accordance with Section 41.151(3)(a)- (b).

         
         

   10. It is concluded that the reconstruction of prior non- conforming structures must comply with the Code, or properly obtain a variance. There is no exception in the Code for the reconstruction of prior non-conforming structures. Nor is any distinction made between private and public docks.

   11. The standards for approval of an application for a variance are set out in Section 45.24 of the Code, which 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. . . .

       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 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 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 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.

   12. Appeals from decisions of the Board are governed by Section 36.065 of the Code, which provides in pertinent part:

       
       

       (1) Purpose. It is the purpose of this section to provide an administrative process for appealing decisions rendered on variances and conditional uses by the development code adjustment board and the planning and zoning board respectively, prior to any available re- course in a court of law. In particular, it is intended that such administrative relief be provided in the most professional, objective and equitable manner possible through the ap- pointment of a hearing officer to adjudicate matters as provided in this section. The function of the hearing officer shall be to serve as the second step of a two-step admini- strative process relating to variances and conditional uses.

       * * *

       (6) Decision. The decision of the hearing officer shall be based upon the following cri- teria and rendered as follows:

       1. The hearing officer shall review

          the record and testimony presented at the hearing before the board and the hearing officer relative to the guidelines for consideration of conditional uses or variances as contained in chapter 41, article II, or chapter 45, respectively. Although additional evidence may be brought before the hearing officer, the hearing shall not be deemed a hearing de novo, and the record before the board shall be incorporated into the record before the hearing officer, supplemented by such additional evidence as may be brought before the hearing officer.

       2. The hearing officer shall be guided by the city comprehensive plan, relevant portions of this Code and established case law.

       3. The burden shall be upon 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.

       4. The hearing officer's determination shall include appropriate findings of fact, conclusions of law and decision in the matter of the appeal. The hearing officer may affirm or reverse

       the decision of the board, and may impose such reasonable conditions as the board may have imposed.

       
       

   13. These provisions appear to provide for a curious hybrid proceeding that is an appellate review on the one hand, in the sense that the issue is whether the evidence sustains the board's decision, and a de novo proceeding on the other hand, in the sense that additional evidence can be adduced at the appeal hearing. In other words, whether the Board's decision is sustainable under the pertinent law is tested not only against the evidence presented before it but also against the evidence presented before the Hearing Officer.

       
       

   14. To prevail in this proceeding, the Appellants must show that the evidence does not sustain the Board's decision that the application and evidence clearly support the conclusion that the standards for approval set out in Section 45.24 of the Code have been met. The Board's decision must be based on competent, substantial evidence. See Bd. of County Commissioners v. Snyder, 18 Fla. L. Weekly S522 (Fla. Oct. 7, 1993).

       
       

   15. It conceivably could be concluded on the record in this case that 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. The western terminus of Magnolia Drive differs from the other waterfront property in that it is in public ownership, not private, and is a public road. If a dock is constructed as an "accessory use" of the property, it necessarily would have to be for public, not private, use. As a public facility, it would be reasonable to size the dock larger than a dock intended for private use.

       
       

   16. There was no competent, substantial evidence from which it could be found that "the variance is the minimum necessary to overcome the unnecessary hardship . . . for the purpose of making reasonable use of the land." Although it would be reasonable to size the dock larger than a dock intended for private use, there was no competent, substantial evidence from which it could be found how large a dock is necessary for public use. The only basis in the record for rebuilding the dock to its prior, non- conforming dimensions was the historic and sentimental significance which some people attach to the old Magnolia Drive dock. It is concluded that those reasons are legally insufficient to establish necessity "for the purpose of making reasonable use of the land."

       
       

   17. There was evidence that the water is shallow in the vicinity of the site, and a dock of a certain length is necessary for the dock to be used for boats of any appreciable size and draft. However, this condition is not unique to the particular site in question, but is uniformly applicable all along the City waterfront, and there was no evidence as to the length of dock required for adequate water depth for use by boats.

       
       

   18. There is no competent, substantial evidence in the record from which it could be found that the granting of the variances will not be materially detrimental or injurious to other property or improvements in the neighborhood in which the property is located.

       
       

   19. There is no competent, substantial evidence in the record from which it could be found that the granting of the variances will not impair the value of surrounding property.

   20. Given the Code's limitations on docks, whether private or public, as accessory uses in aquatic lands/coastal zoning districts, and given the Code's requirements for obtaining variances from those requirements, it is concluded on the evidence in the record in this case that the requested variances would violate the general spirit and intent of the Code.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of Law, the decision of the City of Clearwater Land Development Code Adjustment Board granting the application of the Appellant, the City of Clearwater, for dock length, width and setback variances to allow the reconstruction of the public pier facility located at the west end of Magnolia Drive in Clearwater, Florida, is reversed, and the variance application is denied.

DONE AND ORDERED this 6th day of April, 1994, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 6th day of April, 1994.

COPIES FURNISHED:

Patrick T. McGuire, Esquire

308 North Belcher Road Clearwater, Florida 34625

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

Post Office Box 4748 Clearwater, Florida 34618-4748

Cynthia Goudeau City Clerk

City of Clearwater Post Office Box 4748

Clearwater, Florida 34618-4748

Charles A. Samarkos, Esquire

Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A. 911 Chestnut Street

Clearwater, Florida 34616

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW OF THE FINAL ORDER BY COMMON LAW CERTIORARI REVIEW IN CIRCUIT COURT. SECTION 36.065(6)(g), CITY OF CLEARWATER LAND DEVELOPMENT CODE.

Docket for Case No: 93-007068

Orders for Case No: 93-007068