STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VALENTINOS KOUMOULIDIS, )

)

Appellant, )

)

vs. ) CASE NO. 95-1359

)

CITY OF CLEARWATER, )

)

Appellee. )

)

FINAL ORDER

On May 12, 1995, a final hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Appellant: John G. Fatolitis, Esquire

1 North Pinellas Avenue

Tarpon Springs, Florida 34689

Robert E. Gregg

1008 Woodruff Avenue

Clearwater, Florida 34616

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 to grant the appeal of Valentinos Koumoulidis from the Planning and Zoning Board's denial of his application for variances from the requirement of a minimum lot width of 150 feet at the setback line and from the requirement of a minimum of 20 percent clear space.

PRELIMINARY STATEMENT

The Appellant first applied for the subject variances, together with others, on or about December 22, 1994. (Previous applications also were made for other purposes, as reflected in the Findings of Fact; some were granted, some were denied.) The application was presented to the Planning and Zoning Board (the Board) for decision at its meeting on January 26, 1995, but the matter was continued to the Board's February 23, 1995, meeting to give the applicant time to provide a detailed site plan drawn to scale.

At the February 23, 1995, meeting of the Board, testimony and evidence was received, and the Board voted to approve some of the variances for which the Appellant had applied (those needed for parking alterations) but voted unanimously to deny the subject variances.

An appeal from the Board's decision was filed on March 9, 1995. The appeal was referred to the Division of Administrative Hearings (DOAH) for assignment of a hearing officer on March 20, 1995. On April 10, 1995, a Notice of Hearing was issued scheduling final hearing for May 12, 1995.

At the final hearing, the record of the proceeding below was received, as required by Section 36.065(5)(c) of the Code, as City Exhibit 1. Additional evidence also was received, as permitted by Section 36.065(5)(d) and (6)(a) of the Code. Letters in support of the application were received as City Exhibit 2, and a series of photographs of the Appellant's property and the vicinity were received as Appellant Exhibits A-1 through A-10. Testimony of Robert Gregg, John Richter, and Noel Woods also was received. 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. When the Appellant, Valentinos Koumoulidis, bought the subject property, the building was being used as a six-unit motel--three units on each of two floors. There were approximately 1600 square feet of space on each of the two floors. The property fronts at 606 Bayway Boulevard; the back of the property is waterfront.

   
   

2. In 1991, the Appellant applied for and was granted a parking variance and variances to enable him to convert the first floor to retail use and convert the second floor to a residence.

   
   

3. Apparently construction was delayed, and in October, 1992, the Appellant reapplied for the variances to enable him to convert the first floor to retail use and convert the second floor to a residence, while withdrawing the application for a parking variance. (He had decided to convert from straight- in/back-out parking to an off-street parking lot.)

   
   

4. In 1994, the Appellant again applied for variances, this time to allow him to add approximately 300 square feet of commercial space to the back of the first floor and approximately 900 square feet of residential space to the back of the second floor. The Board denied those variance requests in October, 1994.

   
   

5. Rather than appeal, the Appellant decide not to pursue the addition of commercial space to the back of the first floor and, on December 22, 1994, instead applied for variances to allow him just to add approximately 900 square feet of residential space to the back of the second floor. (Of the 900 square feet, approximately 550 would be enclosed, and approximately 350 would be open deck.)

   
   

6. The evidence (primarily through the testimony of Noel Woods, one of the Appellant's neighbors) was that the residential property in the immediate vicinity is comparable, in terms of square footage of living space per dwelling unit, to the Appellant's current second floor--i.e., approximately 1600 to 1700 square feet.

7. There was some evidence that residential properties across the intracoastal waterway from the Appellant's property are valued as high as a million dollars. But the evidence (again, the testimony of Noel Woods) also was that condominium units in the immediate vicinity are valued at approximately

   $175,000. There was no evidence that the use the Appellant is making of his property (retail on the first floor and residential on the second floor) is not a reasonable use.

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 40.406(2) of the City of Clearwater Land Development Code (the Code) requires that building lots be a minimum of 150 feet wide at the setback line.

   
   

9. In addition, for waterfront development, Section 41.131(2) of the Code requires that structures have a setback per side ("clear space") of 20 percent of the lot width, or ten feet, whichever is less. (For reasons not explained and not clear to the hearing officer, the parties cited to Section 41.131(6) of the Code for this requirement.) The purpose of the requirement is to preserve views of the water from the street.

   
   

10. 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. 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.

    2. The strict application of the provisions of the code would deprive the applicant of the reasonable use of the land and buildings.

    3. The variance is not based exclusively upon a desire for economic or other material gain by the applicant or owner.

    4. 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.

       
       

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

    
    

    1. Purpose and exception.

       (a) 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 recourse 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 appointment 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 administrative process relating to variances and conditional uses. . . . .

       * * *

       1. Conduct of the hearing. Conduct of the hearing before the hearing officer shall be as follows:

          * * *

          1. The hearing officer shall have the authority to determine the applicability and relevance of all materials, exhibits and testimony and to exclude irrelevant, immaterial or repetitious matter.

          2. The hearing officer is authorized to administer oaths to witnesses.

          3. A reasonable amount of cross examination of witnesses shall be permitted at the discretion of the hearing officer.

          * * *

       2. Decision. The decision of the hearing officer shall be based upon the following criteria 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.

       
       

12. 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.

    
    

13. It is concluded that the Appellant has not met his burden of proving that the evidence does not sustain the Board's decision that the application and evidence do not clearly support the conclusion that the standards for approval set out in Section 45.24 of the Code have been met.

    
    

14. The application and evidence presented do not clearly support the conclusion that there are special circumstances related to the particular physical surroundings, shape or topographical conditions applicable to the Appellant's land or building, but not to the land or buildings in the zoning district, generally.

    
    

15. The application and evidence presented also do not clearly support the conclusion that strict application of the provisions of the Code would deprive the Appellant of the reasonable use of his land and building. The application and evidence presented do not clearly support the conclusion that the use of the first floor of Appellant's building for a retail business and the second floor for a 1,600 square foot residence does not allow the Appellant a reasonable use. Even if it did, the application and evidence do not clearly support the conclusion either that the former use of the property as a motel would not allow the Appellant a reasonable use, or that the former use no longer is available to the Appellant for any reason other than his choice and preference in the use he wanted to make of his property.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of Law, the appeal of Valentinos Koumoulidis is denied.

DONE AND ORDERED this 13th day of June, 1995, 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 13th day of June, 1995.

COPIES FURNISHED:

John G. Fatolitis, Esquire

1 North Pinellas Avenue

Tarpon Springs, Florida 34689

Robert E. Gregg

1008 Woodruff Avenue

Clearwater, Florida 34616

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

NOTICE OF RIGHT TO APPEAL

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 Rule 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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VALENTINOS KOUMOULIDIS, )

)

Appellant, )

)

vs. ) CASE NO. 95-1359

)

CITY OF CLEARWATER, )

)

Appellee. )

)

CORRECTED FINAL ORDER

On May 12, 1995, a final hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Appellant: John G. Fatolitis, Esquire

1 North Pinellas Avenue

Tarpon Springs, Florida 34689

Robert E. Gregg

1008 Woodruff Avenue

Clearwater, Florida 34616

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 to grant the appeal of Valentinos Koumoulidis from the Development Code Adjustment Board's denial of his application for variances from the requirement of a minimum lot width of 150 feet at the setback line and from the requirement of a minimum of 20 percent clear space.

PRELIMINARY STATEMENT

The Appellant first applied for the subject variances, together with others, on or about December 22, 1994. (Previous applications also were made for other purposes, as reflected in the Findings of Fact; some were granted, some were denied.) The application was presented to the Development Code Adjustment Board (the Board) for decision at its meeting on January 26, 1995, but the matter was continued to the Board's February 23, 1995, meeting to give the applicant time to provide a detailed site plan drawn to scale.

At the February 23, 1995, meeting of the Board, testimony and evidence was received, and the Board voted to approve some of the variances for which the Appellant had applied (those needed for parking alterations) but voted unanimously to deny the subject variances.

An appeal from the Board's decision was filed on March 9, 1995. The appeal was referred to the Division of Administrative Hearings (DOAH) for assignment of a hearing officer on March 20, 1995. On April 10, 1995, a Notice of Hearing was issued scheduling final hearing for May 12, 1995.

At the final hearing, the record of the proceeding below was received, as required by Section 36.065(5)(c) of the Code, as City Exhibit 1. Additional evidence also was received, as permitted by Section 36.065(5)(d) and (6)(a) of the Code. Letters in support of the application were received as City Exhibit 2, and a series of photographs of the Appellant's property and the vicinity were received as Appellant Exhibits A-1 through A-10. Testimony of Robert Gregg, John Richter, and Noel Woods also was received. 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. When the Appellant, Valentinos Koumoulidis, bought the subject property, the building was being used as a six-unit motel--three units on each of two floors. There were approximately 1600 square feet of space on each of the two floors. The property fronts at 606 Bayway Boulevard; the back of the property is waterfront.

   
   

2. In 1991, the Appellant applied for and was granted a parking variance and variances to enable him to convert the first floor to retail use and convert the second floor to a residence.

   
   

3. Apparently construction was delayed, and in October, 1992, the Appellant reapplied for the variances to enable him to convert the first floor to retail use and convert the second floor to a residence, while withdrawing the application for a parking variance. (He had decided to convert from straight- in/back-out parking to an off-street parking lot.)

   
   

4. In 1994, the Appellant again applied for variances, this time to allow him to add approximately 300 square feet of commercial space to the back of the first floor and approximately 900 square feet of residential space to the back of the second floor. The Board denied those variance requests in October, 1994.

   
   

5. Rather than appeal, the Appellant decide not to pursue the addition of commercial space to the back of the first floor and, on December 22, 1994, instead applied for variances to allow him just to add approximately 900 square feet of residential space to the back of the second floor. (Of the 900 square feet, approximately 550 would be enclosed, and approximately 350 would be open deck.)

   
   

6. The evidence (primarily through the testimony of Noel Woods, one of the Appellant's neighbors) was that the residential property in the immediate vicinity is comparable, in terms of square footage of living space per dwelling unit, to the Appellant's current second floor--i.e., approximately 1600 to 1700 square feet.

   
   

7. There was some evidence that residential properties across the intracoastal waterway from the Appellant's property are valued as high as a million dollars. But the evidence (again, the testimony of Noel Woods) also was that condominium units in the immediate vicinity are valued at approximately

   $175,000. There was no evidence that the use the Appellant is making of his property (retail on the first floor and residential on the second floor) is not a reasonable use.

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 40.406(2) of the City of Clearwater Land Development Code (the Code) requires that building lots be a minimum of 150 feet wide at the setback line.

   
   

9. In addition, for waterfront development, Section 41.131(2) of the Code requires that structures have a setback per side ("clear space") of 20 percent of the lot width, or ten feet, whichever is less. (For reasons not explained and not clear to the hearing officer, the parties cited to Section 41.131(6) of the Code for this requirement.) The purpose of the requirement is to preserve views of the water from the street.

10. 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. 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.

    2. The strict application of the provisions of the code would deprive the applicant of the reasonable use of the land and buildings.

    3. The variance is not based exclusively upon a desire for economic or other material gain by the applicant or owner.

    4. 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.

       
       

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

    
    

    1. Purpose and exception.

       (a) 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 recourse 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 appointment 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 administrative process relating to variances and conditional uses. . . . .

       * * *

       1. Conduct of the hearing. Conduct of the hearing before the hearing officer shall be as follows:

          * * *

          1. The hearing officer shall have the authority to determine the applicability and relevance of all materials, exhibits and testimony and to exclude irrelevant, immaterial or repetitious matter.

          2. The hearing officer is authorized to administer oaths to witnesses.

          3. A reasonable amount of cross examination of witnesses shall be permitted at the discretion of the hearing officer.

          * * *

       2. Decision. The decision of the hearing officer shall be based upon the following criteria 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.

       
       

12. 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.

    
    

13. It is concluded that the Appellant has not met his burden of proving that the evidence does not sustain the Board's decision that the application and evidence do not clearly support the conclusion that the standards for approval set out in Section 45.24 of the Code have been met.

    
    

14. The application and evidence presented do not clearly support the conclusion that there are special circumstances related to the particular physical surroundings, shape or topographical conditions applicable to the Appellant's land or building, but not to the land or buildings in the zoning district, generally.

    
    

15. The application and evidence presented also do not clearly support the conclusion that strict application of the provisions of the Code would deprive the Appellant of the reasonable use of his land and building. The application

and evidence presented do not clearly support the conclusion that the use of the first floor of Appellant's building for a retail business and the second floor for a 1,600 square foot residence does not allow the Appellant a reasonable use. Even if it did, the application and evidence do not clearly support the conclusion either that the former use of the property as a motel would not allow the Appellant a reasonable use, or that the former use no longer is available to the Appellant for any reason other than his choice and preference in the use he wanted to make of his property.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of Law, the appeal of Valentinos Koumoulidis is denied.

DONE AND ORDERED this 22nd day of June, 1995, 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 22nd day of June, 1995.

COPIES FURNISHED:

John G. Fatolitis, Esquire

1 North Pinellas Avenue

Tarpon Springs, Florida 34689

Robert E. Gregg

1008 Woodruff Avenue

Clearwater, Florida 34616

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

NOTICE OF RIGHT TO APPEAL

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 Rule 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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VALENTINOS KOUMOULIDIS, )

)

Appellant, )

)

vs. ) CASE NO. 95-1359

)

CITY OF CLEARWATER, )

)

Appellee. )

)

ORDER CORRECTING FINAL ORDER

It having been brought to the hearing officer's attention that the Final Order entered in this case on June 13, 1995, inadvertently erroneously refers to the Planning and Zoning Board as the agency from which the appeal was taken, the Final Order is being corrected to substitute the two references to the Planning and Zoning Board with the correct references to the Development Code Adjustment Board. A Corrected Final Order is being entered.

DONE AND ORDERED this 23rd day of June, 1995, 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 23rd day of June, 1995.

COPIES FURNISHED:

John G. Fatolitis, Esquire

1 North Pinellas Avenue

Tarpon Springs, Florida 34689

Robert E. Gregg

1008 Woodruff Avenue

Clearwater, Florida 34616

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

Docket for Case No: 95-001359

Orders for Case No: 95-001359