Findings Of Fact Petitioner is a private yacht club located on Lots 5-11 inclusive, Block D, Bayside No. 6, Unit A, 830 South Bayway Boulevard, Clearwater, Florida. Founded some five years ago, the club provides a wide array of boating and social functions for its membership. It sits on the north side of Bayway Boulevard and is approximately 50 feet east of Clearwater Pass Avenue. The property is rectangular shaped and has dimensions of approximately 420 feet by 120 feet. The widest portion of the property fronts Clearwater Harbor to the north and Bayway Boulevard on the south. The yacht club is situated within an area currently zoned by the City as CTF-28 (high density commercial-tourist). This District provides for a complete range of motel-hotel developments with a major emphasis on tourism. The primary permitted uses and structures within the CTF-28 District are combination hotel, motel, apartment and business buildings, apartment houses, townhouse developments and restaurants. A number of special exceptions to the permitted uses are authorized within a CTF-28 District. These include, inter alia, three types of marina facilities, namely, Type A (pleasure craft docking), Type B (launching ramp site, commercial) and Type C (private marina). The City has never classified Petitioner under any of these categories. Upon obtaining a Type C classification, a property owner may engage in 12 separate uses of the property as a matter of right, and a thirteenth upon obtaining specific Board approval. These include: (a) sales and service facilities, (b) boat slips (excluding covered boat slips or dry storage unless specific Board approval is obtained), (c) boat handling equipment, (d) boat and gear storage, (e) launching facilities, (f) fuel station, (g) lockers and sanitary facilities, (h) restaurant facilities (not advertised), (i) club house, (j) motel or boatel, (k) recreational facilities (not commercial), (l) park or picnic area, and (m) automobile parking. Petitioner now engages in all permitted activities except items (a), and (j). It does not wish to engage in the latter three uses even if the application is granted. All activities presently conducted are done so in a manner consistent with the requirements of the Zoning Ordinance. On the east side of Petitioner's property is a multi-story restaurant and lounge while to the west lies a 4-story condominium complex (Bayside 17). Directly across Bayway Boulevard and to the south are two high-rise condominium complexes, one of which is still under construction. Boat docking facilities are located on the waterfront throughout the area, including that of Petitioner and adjacent property owners. The area may be generally described as a combination of high density residential and commercial buildings and structures catering to the tourist or part-time resident. The proposed reclassification is compatible with the surrounding properties and the character of the land. Its uses fit within the general scheme of zoning for a CTF-28 District, and are consistent with the Land Use Plan. The chief concern of the adjacent property owners who testified is a fear that reclassification of the property will diminish the view of the water now enjoyed across the clear space on the west side of Petitioner's property. However, since no change in the use of the property will be made by virtue of reclassification, the existing view should not be impaired.
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.)
Findings Of Fact 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.) 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. 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. 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. 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. 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. 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.
Findings Of Fact Ramchandra Jakhotia and Rashmi Jakhotia, his wife, acquired the King Cole Motel at 401 East Shore Drive, Clearwater, Florida in 1983 and have owned the property since that time. At the time of acquisition and for some time prior thereto the property included a commercial marina with 22 slips. In 1985 the City of Clearwater revised its Development Code effective October 13, 1985 and, incident thereto, effective July 7, 1988, enacted Section 114.05, Live-Aboard Vessels as Ordinance 4597, Clearwater City Code. That enactment provided, in part, that: Prohibited; exceptions: It shall be unlawful for any person to moor any live-aboard vessel at any location within or upon the navigable waters in the City for any period of time in excess of seventy-two (72) hours, except as follows: At a marina facility for which conditional use approval has been obtained, or a marina facility in existence as of October 13, 1985 for which conditional use approval would otherwise be required;... In January 1986 a survey was taken of all marinas within the City of Clearwater to determine the number of live aboard vessels coming within the purview of the revised Development Code. At this survey eight live aboard vessels were occupying berths at the King Cole Motel marina and this was the number determined to be grandfathered for which no conditional use approval would be required. In 1988 King Cole Motel applied for conditional authorization to utilize 14 additional berths for live aboard vessels. This conditional use was approved subject to the applicant installing a pump-out facility and meeting the parking requirements. Although the parking requirements for a commercial marina, i.e., 0.5 parking space per slip, is the same as the parking requirement at marinas for live aboard vessels, the latter generally place a greater demand on parking spaces than does non-live aboard vessels. To change the approved use from commercial marina without live aboards to live aboards is a change in the use and requires conditional use approval. Before conditional use approval can be granted the applicant must comply with all code requirements, such as required parking spaces, at the time of the change in use. At the time Appellant acquired the King Cole Motel the 22 commercial slips were grandfathered as an authorized use without any parking being provided. Accordingly, as a 22-slip commercial marina Appellant did not have to provide parking. When the eight slips used for live aboards were counted in 1986 they too were grandfathered in without the need for parking spaces. However, when Appellant applied in 1988 for authorization to use 14 other slips for live aboard vessels, the code required the applicant to provide seven parking spaces. To his credit Appellant obtained the use of seven parking spaces down the road from the marina but those spaces were not contiguous to Appellants' marina as required by the code. Therefore, Appellants' use of the additional slips for live aboards did not meet the parking requirement in his conditional use approval. In 1992 Appellant applied for a variance of the seven parking spaces required to allow the use of these additional slips by live aboard vessels. This hearing was held before the Development Code Adjustment Board on February 11, 1993 and it is from the denial of this variance that this appeal is taken. The Board denied the variance requested because the Appellant failed to demonstrate that the standards established by Section 45.24 Land Development Code were met. In these proceedings Appellant presented no additional evidence to support the variances requested than was submitted to the Board.
The Issue The issue on appeal is whether, pursuant to Clearwater Code of Ordinances Section 4-505, to sustain or reverse, with or without conditions, the decision of the Community Development Board on June 20, 2003, denying Cepcot Corporation's application to build a convenience store with two islands for pumping gas.
Findings Of Fact Petitioner The Cepcot Corporation (Cepcot) owns real property located at 657 Court Street in the downtown zoning district of the City of Clearwater (Property). On December 17, 2002, Cepcot filed a Flexible Development Application for a comprehensive infill redevelopment project (Application) on the Property. At the time of the proposal, the Property, which comprises 0.95 acres, was developed with a restaurant in a building that was the former Clearwater train station, a thrift store, and a park. The Application proposes the demolition of these improvements and their replacement with a 3200 square-foot convenience store and two gas pump islands. The Property fronts Chestnut Street to the south, East Avenue to the east, and Court Street to the north. The surrounding area is developed with office uses to the west and south, a privately owned utility plant to the north, and warehouse uses to the east. Upon the completion of the Memorial Causeway bridge, which is presently under construction, traffic to the beach will use Court Street and traffic from the beach will use Chestnut Street. In response to questions and suggestions from Respondent's staff, Cepcot revised the proposed site plan several times. The Application is presently complete. Respondent's Planning Department prepared a Staff Report, which finds that the proposed project does not meet certain requirements and recommends denial of the Application on several grounds. On June 17, 2003, Respondent's Community Development Board (CDB) considered the Application. CDB denied the Application and issued a development order explaining the reasons for denial as follows: The proposal is inconsistent with the adopted Community Development Code, the Comprehensive Plan, 1995 Clearwater Downtown Redevelopment Plan, and the Downtown Design Guidelines. The proposed automobile service station is not a permitted use within the downtown district. Approval of the proposed use may encourage other like uses and may be detrimental to downtown redevelopment. The proposal does not comply with the Flexible Development criteria as a comprehensive infill redevelopment project per Section 2-803. The proposal is not in compliance with the other standards in the Code including the general applicability criteria for Section 3-913. Most of the reasons cited for denial involve Respondent's Community Development Code (CDC), which is the land development regulations. The Property is in the Downtown District. CDC Section 2-901 states: "The intent and purpose of the Downtown District is to establish a mixed use downtown where citizens can work, live, and shop in a place which is the economic, governmental, entertainment and cultural focal point of a liveable city." CDC Section 2-902 sets forth the permitted uses within the Downtown District, and CDC Chart 2-100 lists permitted uses by zoning district. The proposed uses are not among the permitted uses for the Downtown District (or the Tourist District, to which portions of the record refer). CDC Section 2-903.C sets forth the following ten criteria to be applied in determining if the proposed use qualifies as a Comprehensive Infill Redevelopment Project (CIRP) that may qualify an otherwise non-permitted use: The development or redevelopment of the parcel proposed for development is otherwise impractical without deviations from the use, intensity and development standards; The development of the parcel proposed for development as a Comprehensive Infill Redevelopment Project will not reduce the fair market value of abutting properties; The uses within the comprehensive infill redevelopment project are otherwise permitted in the City of Clearwater; The uses or mix of uses within the comprehensive infill redevelopment project are compatible with adjacent land uses; Suitable sites for development or redevelopment of the uses or mix of uses within the comprehensive infill redevelopment project are not otherwise available in the City of Clearwater; The development of the parcel proposed for development as an comprehensive infill redevelopment project will upgrade the immediate vicinity of the parcel proposed for development; The design of the proposed comprehensive infill redevelopment project creates a form and function which enhances the community character of the immediate vicinity of the parcel proposed for development and the City of Clearwater as a whole; Flexibility in regard to lot width, required setbacks, height and off-street parking are justified by the benefits to community character and the immediate vicinity of the parcel proposed for development and the City of Clearwater as a whole; Adequate off-street parking in the immediate vicinity according to the shared parking formula in Division 14 of Article 3 will be available to avoid on-street parking in the immediate vicinity of the parcel proposed for development; The design of all buildings complies with the Downtown District design guidelines in Division 5 of Article 3. CDC Section 3-913.A sets forth the General Applicability criteria. CDC Section 3-913.A.1 states: "The proposed development of the land will be in harmony with the scale, bulk, coverage, density, and character of adjacent properties in which it is located." CDC Section 3-913.A.5 states: The proposed development is consistent with the community character of the immediate vicinity of the parcel proposed for development."
Findings Of Fact Petitioner, Frenchy's Rockaway Grill, Inc., is the owner and operator of a restaurant and alcoholic beverage establishment located at 7 Rockaway Street, Clearwater, Florida. Petitioner purchased the property in 1991. Michael Preston is president of Petitioner. Petitioner's establishment is immediately adjacent to the Gulf of Mexico and Clearwater beach on the west, to the north is a public parking lot, to the east is a motel, and to the south is the Clearwater Beach Hotel, which is owned and operated by Hunter Hotel Co., as indicated above. On the beach side of Petitioner's establishment there is an existing 972 sq. ft. wooden deck. The existing deck was initially constructed on or about 1987 by prior owners without receiving appropriate variance approvals. Subsequent alterations to the deck occurred between 1987 and 1991, also without appropriate variance approvals. In 1991 Charles and Ypapanti Alexiou/Anthony Alexiou, former owners of the subject property, filed an application for variance approval with the Board seeking three variances relating to the construction of the deck at the 7 Rockaway establishment. Specifically, the variances sought were: "1) 55.5 ft. to permit deck seaward of the coastal construction control line; 2) 15 ft. to permit a deck zero feet from a street right-of-way; and, 3) seven parking spaces to permit a 1,338 sq. ft. deck at 7 Rockaway Street, Miller's Replat, Lot 2 & vacated beach Drive on W and Lot 3, zoned CR 28 (resort commercial) & OS/R (open space recreation)." At public meeting on August 8, 1991, the application was considered by the Board. At that time Mr. Cline, as counsel for Hunter appeared in opposition to the application stating that approval of the variance requests would adversely impact the Clearwater Beach Hotel, that the request was for economic gain, that any hardship was self-imposed, and that development and traffic in the area was already heavy. The Board, however, granted the variance requests as to variances number 1 and number 2., and as to the third request, the Board denied the proposed 1,338 sq. ft. deck, but approved a variance of five parking spaces to permit the existing deck of 972 sq. ft. On or about July 13, 1993, a variance application was filed with the Board by Howard G. and Jean B. Hamilton and Palm Pavilion of Clearwater, Inc., seeking approval of four variances required for an 800 sq. ft. expansion of an existing deck at a restaurant at 10 Bay Esplanade, Clearwater Beach, Florida. The Palm Pavilion applicants were also represented by Mr. Cline. Like Petitioner's establishment, Palm Pavilion is a beachfront restaurant, which is located directly across the public parking lot to the north of Petitioner's establishment. Unlike Petitioner's establishment, Palm Pavilion is bordered by parking to the south and the east, and is not immediately adjacent to other buildings. On August 26, 1993, the Board granted the Palm Pavilion variance application for expansion of an existing beachfront deck with certain conditions. On October 6, 1994, Petitioner submitted its application to the Board requesting five variances required for a 650 sq. ft. expansion of the existing wooden deck at 7 Rockaway Street. Specifically, the variances sought were: 1) 13.22 ft. to permit a lot depth of 86.78 ft. where 100 ft. is required; 2) 8.2 ft. to permit it a rear setback of 6.8 ft. where 15 ft. is required; 3) 14 percent to permit 11 percent of open space where 25 percent is required; 4) three parking spaces to permit zero parking spaces where three additional are required; and, 5) 52.14 ft. to permit a structure seaward of the coastal construction control line. The subject property at 7 Rockaway Street is properly zoned CR-28 (resort commercial). Any scrivener's error indicating that the property is zoned OSC (open space recreation) has been corrected. Petitioner's restaurant, Frenchy's Rockaway Grill, is a popular beachside establishment. It is one of very few freestanding restaurants fronting the Gulf of Mexico on Clearwater Beach. Some patrons particularly enjoy dining on the open air deck adjacent to the beach. During peak hours, there is often over an hour's waiting time for tables on the deck. Petitioner is currently unable to accommodate the demand for seating on the beachside deck. Petitioner would sustain an economic benefit if more patrons could be accommodated on an expanded deck. Because of the size constraints of the lot and the establishment's location directly on the beach, development and improvement of the facility is highly restricted. The back of some residential rooms of the Clearwater Beach Hotel are immediately adjacent to the south of Petitioner's establishment. There are small bathroom windows from these residential rooms that face Petitioner's establishment. Petitioner's proposed expansion of the open air deck would place the proposed deck in very close proximity to the back of these residential hotel rooms. The City's staff reviewed the Petitioner's application and recommended approval with the following conditions: 1) the applicant shall obtain the requisite occupational license within 12 months; 2) the applicant shall obtain the necessary building permit within 6 months; 3) there shall be no outdoor entertainment and no outdoor speakers; 4) the applicant shall obtain the requisite alcoholic beverage separation distance variance from the City Commission. Petitioner agreed to the conditions recommended by staff. The recommendations of staff are not binding on the Board. In addition to the application for the five variances filed with the Board, Petitioner also filed a conditional use request with the Planning and Zoning Board. The conditional use request was approved on September 13, 1994, and imposed certain other conditions including the construction of a six foot wall on the south side of the proposed deck to buffer the adjoining hotel. Petitioner agreed to the conditions imposed by the Planning and Zoning Board.
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.
Findings Of Fact 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. 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. 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.) 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. 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.) 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. 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.
Findings Of Fact 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. 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. 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. 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. 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. 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.
Findings Of Fact Petitioner, The Mills Development Group of Florida, Inc., owns a condominium project now under construction at 1660 Gulf Boulevard, Clearwater, Florida. The project is on the south end of Sand Key, a thin finger-like strip of land which runs in a north-south direction between the Gulf of Mexico and Clearwater Harbor. Gulf Boulevard is the principal road traversing the Key. The condominium project is situated on the west side of Gulf Boulevard and fronts the Gulf of Mexico. Petitioner proposes to construct a marina on the east side of Gulf Boulevard which fronts Clearwater Harbor. It will be used by the condominium residents and their guests. If the application is approved, Petitioner will construct a 683' x 6' boardwalk next to the seawall, which extends along the waterline on Clearwater Harbor. Extending outward from the boardwalk no more than 30 feet will be 20 catwalks providing slips for approximately 40 boats. Petitioner desires to build a boardwalk to have access to the deeper water which lies outward from the seawall and to avoid dredging activities. The boardwalk will also provide greater safety for the boaters. The proposed project lies within an area currently zoned by the City as District RM-28 (High Density Multi-Family Use District). This District was created to provide for high density apartment and condominium development use. Permitted uses and structures within the District include apartment houses, townhouse developments and accessory buildings, including recreational buildings and/or community meeting buildings. A number of special exceptions are authorized within a RM-28 District. These include, inter alia, a Type A Marina facility for pleasure craft docking. Accordingly, if the application is approved, the use will be consistent with the Land Use Plan and Zoning Ordinance. The City expressed concern that persons using the facilities may wish to park on the grassy strip which lies between Gulf Boulevard and the proposed marina which in turn will impede the traffic flow on the thoroughfare. However, adequate parking for guests and residents will be located at the condominium across the street. Further, no material change in the amount of traffic is expected to be generated by the facility. Moreover, City approval is required if Petitioner desires to provide improved parking facilities on the grassy strip in the future. Intervenor/Respondent, isle of Sand Key Condominium Association, is a condominium association located to the east of Petitioner and approximately 150 feet across the channel at the proposed marina's northern end. The Association does not object to the project itself but is concerned only with the proposed length of the boardwalk. The Association has its own marina facilities which run perpendicular with the waterway and Sand Key. If approved, the proposed boardwalk would lie directly across the waterway from the Association's facilities leaving insufficient space in the channel for expansion of its marina. The Association also contends the proposed marina, if constructed in its present design, will violate an Easement Agreement entered into in November, 1975, by the prior owner of Petitioner's property and the Association. However, this concern is beyond the scope of this proceeding.
Findings Of Fact James R. Gray owns Lots 10, 11, 12 and 13, Clearwater Beach Park, as recorded in Plat Book 10, p. 42, of the official Records of Pinellas County. These lots are located on Clearwater Beach in an area zoned CTF-28. For the past several years beach chairs, umbrellas and cabanas have been rented for use in the vicinity of these lots and a portable 4' x 8' building standing on these lots has been used to store the chairs, umbrellas and cabanas when not rented. Gray proposes to replace the 4' x 8' building with an 8' x 10' portable aluminum shed from which to operate the business of renting beach equipment and expand it to include the sale of suntan lotion, soft drinks, and related items. The business will be operated by Roy Pearl, a co-applicant with Gray in these proceedings. Gray and Pearl applied for a building permit to erect the portable shed and their application was rejected by the City of Clearwater Building Department on the basis that the proposed use of the property was not in conformity with the Building and Zoning Regulations and did not fit the special exceptions provided by Section 131.099 of the Zoning Regulations. The latter determination was made by the Clearwater Planning Department. Gray then submitted on a City of Clearwater form an Application-- Request for Special Exception to the Clearwater Board of Adjustment and Appeal on Zoning, which, as noted above, approved the application. The area in question comprises a private beach; and businesses in the vicinity consist of motels, hotels, apartments and restaurants. An 8-unit motel occupies part of the site involved. The location of the proposed portable aluminum shed is on Lots 12 and 13, approximately 150 feet seaward of the seawall which separates the beach from the business establishment seaward of Gulf View Boulevard. Approximately 150 feet south of this proposed location is a similar storage shed operated in conjunction with a sailboat rental business. Some of the hotels and motels on Clearwater Beach rent umbrellas, chairs and cabanas, some of which are stored when not in use in storage sheds located more than 100 feet from the main building. On the public beach the City of Clearwater operates a concession which provides the same services proposed by applicant. The chairs, umbrellas, and cabanas are utilized by guests of the motels and apartments located in the vicinity and by tourists who are using this area of the beach for sunbathing or swimming.
The Issue Whether Appellant was wrongfully denied a variance of 21.33 feet to construct a second floor deck at 673 Bay Esplanade, Five Palms Motel Condo, Clearwater, Florida.
Findings Of Fact John Shaw, a resident of Massachusetts, purchased the condominium for which the variance is here requested in December, 1988 without first visiting the property or inquiring about zoning restrictions. The unit purchased is on the second floor of a two story building earlier converted from a hotel or motel into condominiums. The seller told Shaw he could construct a deck over the existing deck on the ground floor condominium below the unit purchased by Shaw. While the construction of this deck was in progress it was discovered no permit had been pulled for the project and the work was stopped. The subsequent application for a permit was denied because the proposed deck encroached some 21.33 feet into the setback area. The application for a variance was denied by the Clearwater Development Code Adjustment Board and this appeal followed. The two buildings comprising this complex were erected many years ago and are non-conforming, i.e., the buildings themselves violate the current Development Code. An existing deck extending into the setback area was constructed on the unit directly below the condominium purchased by Shaw and a similar deck extending to the seawall was constructed on an adjacent building. No permits are on file for those decks. Construction of the proposed deck would improve the livability of the condominium greatly by expanding the area usable for looking seaward. The condominium has been used without this deck for many years. This property is zoned CR-24 and the setback requirement is 25 feet from the water's edge.
