CHRISTOPHER G. ROETZER AND )
vs. ) CASE NO. 94-4693
Appellee. )
The final hearing in this case was held on January 12, 1995, in Clearwater, Florida, before Richard Hixson, Hearing Officer, Division of Administrative Hearings. The parties were represented as follows:
The issue in this case is whether the application of Christopher and Caroline Roetzer (Appellants) for two variances allowing fences of greater than permitted height on their property should be approved.
The record of the proceedings before the Development Code Adjustment Board was introduced into evidence. Appellants testified on their own behalf and introduced one composite exhibit consisting of nine photographs of the property in this case. The Appellants also called one witness, Craig Hill. The City called five witnesses Robert King, Irving Carlson, Camplin Straker, Carolyn King, and John Richter, and introduced one additional exhibit, a petition signed by thirty-four residents in opposition to the granting of the variances.
Appellants, Christopher and Caroline Roetzer, are the owners of property located at 3001 Sunset Point Road in Clearwater, Florida.
On or about July 7, 1994, Appellants filed an application with the Appellee, City of Clearwater, for variances of:
3.5 feet to permit a fence height of 6 feet where 2.5 feet maximum height is permitted
in a structural setback area from a street right- of-way (Sunset Point Road) where the property
is addressed from; and, (2) 2 feet to permit a fence height of 6 feet where 4 feet maximum is permitted in a structural setback from a street right- of-way where the property is not addressed from at 3001 Sunset Point Road.
The Appellants purchased the subject property in November of 1993. At the time of purchase, the property was in an incorporated part of Pinellas County and was zoned for commercial use.
The Appellants purchased the property for the purpose of constructing a single-family residence. The county issued a permit for construction of the residence on December 8, 1993, and construction began shortly thereafter. The residence was completed in March of 1994.
The Appellants' residence is addressed from Sunset Point Road. The back of Appellants' property adjoins Oak Forest Drive. Oak Forest Drive is located in Forest Wood Estates, a residential subdivision that was initially developed more than twenty years ago. Appellants' property was not, prior to their purchase, and is not now, a part of Forest Wood Estates. Appellants' residence is a large two-story, three-car garage structure. The Appellants have also constructed a fenced dog-pen immediately adjacent to their residence. The surrounding residences are generally smaller, single story structures. Unlike Appellants' residence, the other residences adjoining Oak Forest Drive front on, and are addressed from that street, and not Sunset Point Road.
The back of the residential property located at 3006 Oak Forest Drive, which is immediately adjacent to the Appellants' property, has a wooden fence in excess of 2.5 feet located along Sunset Point Road.
In February of 1994 Appellants applied for annexation by the City of Clearwater. The purpose of the application for annexation was to enable the Appellants to access the City sewage system. On March 17, 1994 the subject property was annexed by the City. The Appellants were not informed that the annexation had been effected at that time.
On May 19, 1994, officials of Pinellas County, also unaware that the Appellants' property had been annexed by the City, issued a permit for the construction of a 6 foot fence in the back of the Appellants' property adjoining Oak Forest Drive. On June 7, 1994, the fence was erected. At the time the fence was constructed, Robert King, a resident of Forest Wood Estates, informed the fencing contractor that the fence violated the City code. On June 9, 1994, the City of Clearwater issued the Appellants a notice of violation of permitting requirements.
Prior to the construction of the fence, children used the back of Appellants property as a shorter route to return home from school.
On July 7, 1994, Appellants filed an application for variances to construct not only the 6 foot fence that had been erected in the back of the property, but also to construct a 6 foot fence in the front of the property along Sunset Point Road. The Appellants applied for the variances for reasons
of security, privacy, and protection from liability. Additionally, the Appellants applied for the variances for the purpose of allowing their two golden retrievers access to roam the property safely.
The city planning staff recommended approval of the Appellants' application for the two variances.
The matter was heard by the Development Code Adjustment Board on July 28,1994, at which time the recommendation of the City planning staff to approve the application for variances was presented by Senior Planner John Richter. Appellants also appeared and expressed their concerns for the security and privacy of their residence and property. Several residents of Forest Woods Estates appeared at the hearing and stated that the fence in the back of Appellants' property was unsightly and would detract from property values. The residents also stated that although a proposed expansion of Sunset Point Road would allow traffic to move closer to the Appellants' residence that the Appellants' front lawn was the largest on the street.
The Development Code Adjustment Board unanimously denied the application of the Appellants as to both variances .
The Appellants filed a timely appeal of the denial of their application. The appeal was referred to the Division of Administrative Hearings on August 23, 1994. The appeal was heard on January 12, 1995.
Since the construction of the 6 foot fence in the back of Appellants' property there have been no incidences of children using the Appellants' property as a route to return home from school. Appellants' dogs have also had access to the back yard without incident. Appellants continue to experience a high level of noise and litter from the traffic on Sunset Point Road in the front of their property.
Craig Hill, a resident of Forest Woods, who lives at 1882 Oak Forest Drive which is immediately behind the Appellants' property testified that he recently purchased his home in this subdivision, that the Appellants' fence provided security for keeping his son away from Appellants' dogs, and that the fence did not detract from his purchase of this property.
Robert and Caroline King, real estate brokers who have resided in Forest Woods subdivision for 22 years, testified that the fence is unsightly and would detract from the value of other homes in the neighborhood. For these proceedings, Mr. and Mrs. King were neither tendered, nor qualified, as experts in real estate appraisals. Other longtime residents, Irving Carlson and Camplin Straker, also testified that the fence and the double gate for the fence were unsightly. The residents also expressed concerns because the fence is located near the only entrance to Forest Woods and generally detracts from the aesthetic appearance of the entire subdivision.
John Richter, a Senior Planner with the City of Clearwater with 17 years of planning experience with the City, testified that there is no presumption to the recommendations of the planning staff to the Board, and that one consideration of the City code is the visual aesthetics of the surrounding property.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this case. Section 120.65, Florida Statutes and Section 36.065, City of Clearwater Land Development Code (the Code).
Pursuant to Sections 36.065(6)(a) and (c) of the Code, this proceeding is not a hearing de novo, and the burden is upon the Appellants "...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 departs from the essential requirements of law."
The standards for approval of an application for a variance are set out in Section 45.24 of the Code which provides:
Section 45.24. Standards for approval.
A variance shall not be granted unless the application and evidence presented clearly support all of the following conclusions:
There are special circumstances related to the particular physical surroundings, shape or topographical conditions applicable to the land or buildings, and such circumstances are peculiar to such land or buildings and do not apply generally to the land or buildings in the applicable zoning district.
The strict application of the provisions of the code would deprive the applicant of the reasonable use of the land or buildings.
The variance is not based exclusively upon a desire for economic or other material gain by the applicant or owner.
The granting of the variance will be in harmony with the general purpose and intent of the land development code and comprehensive plan
and will not be materially injurious to surrounding properties or otherwise detrimental to the public welfare.
As to the first standard, the Appellants have shown that there are special circumstances related to their residence and property. The evidence supports the conclusion that Appellants' property is unique to the area in size, shape, and design. Appellants' property was not part of the initial residential development in this area, and because Appellants' residence is addressed from Sunset Point Road, Appellants' needs for security, and privacy are substantially different from the security and privacy needs of the surrounding residences.
Appellants have also met the requirements of standard (3) above, in that there is insufficient substantial competent evidence to show that the variance sought is based exclusively on the desire for material or economic gain of the applicants.
The evidence presented as to standard (4) is inconclusive. As set forth in the planning staff recommendations, the variances sought in this case with appropriate landscaping, would be in keeping with the general purpose and intent of the code and the comprehensive plan; however, the Appellants did not clearly demonstrate that the granting of the variances would not be materially
detrimental to other residents and property owners in the surrounding neighborhood.
Finally, as to the second standard, the Appellants have not demonstrated that the strict application of the code would deprive them of the reasonable use of their property. The evidence clearly reflects that Appellants have not been denied the economic or beneficial use of their property. As demonstrated by the record before the board, and admitted by the Appellants at the hearing on January 12, 1995, Appellants' property may be reasonably used for residential purposes without the granting of the variances. Appellants have already constructed permissible fenced-in facilities for their dogs, and may construct 6 foot fences outside the structural setback area, or fences of permissible height to prevent intrusion on their property.
Under the provisions of Section 45.24 of the Code, Appellants have the burden of showing that the evidence clearly supports all of the standards for approval. The Appellants have not sustained this burden with respect to standards (2) and (3) of section 45.24.
ORDERED THAT the applications for variance filed by Appellants be DENIED, and the action taken by the Development Code Adjustment Board on July 28, 1994 is affirmed.
DONE and ORDERED this 3rd day of February, 1995, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1995.
Miles A. Lance Assistant City Attorney City of Clearwater
Christopher and Caroline Roetzer 3001 Sunset Point Road Clearwater, Florida 34619
