Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. Monroe County is a political subdivision of the State of Florida, and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County issued the development order that is the subject of this appeal. Respondents, David and Florence Clark, are the owners of real property known as Lot 90, Holly Lane, Section F, Sugarloaf Shores, Florida (Lot 90). Sugarloaf Shores is a legally platted subdivision. The Clarks were, at the time of the formal hearing, constructing a single family dwelling on that property. The building permit for the construction of the dwelling is not at issue in this proceeding. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern as designated under Sections 380.05 and 380.0552, Florida Statutes. There is an extensive man-made canal system throughout Sugarloaf Shores subdivision that is several miles in length, is between six and ten feet in depth, and is approximately sixty feet in width. The subject permit is for construction where Lot 90 fronts this canal system and involves construction beyond the mean high water mark onto submerged lands. On January 17, 1992, Monroe County issued the subject building permit, Permit Number 9210003952, to David and Florence Clark as owners and Edward Warren Werling as contractor. The subject permit authorizes the construction of a vertical bulkhead designed to limit erosion together with a docking facility with davits and access to the canal system. Most of the neighboring lots in the vicinity of the project have vertical bulkheads with docking facilities. The bulkhead is desirable to prevent erosion of the canal bank at Lot 90 and pollution of the canal waters. The requested development would give the Clarks safe access to the canal and provide private boating facilities. Pursuant to the provisions of Sections 380.05 and 380.0552, Florida Statutes, Monroe County has adopted a comprehensive plan which complies with the Principles of Guiding Development found at Section 380.0552(7), Florida Statutes. Section 380.0552(7), requires Monroe County's land development regulations to comply with certain Principles For Guiding Development, including the following: (b) To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife and their habitat. * * * (e) To limit the adverse impacts of development on the quality of water throughout the Florida Keys. ... Monroe County's comprehensive plan, which has been approved by the Petitioner and by the Administration Commission, is implemented through its adopted land development regulations, codified in Chapter 9.5, Monroe County Code. Section 9.5-345(m)(2), Monroe County Code, provides as follows: (2) All structures on any submerged lands and mangroves shall be designed, located and constructed such that: * * * No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities; No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists; Section 9.5-4(W-1), Monroe County Code, provides as follows: (W-1) "Water at least four (4) feet below mean sea level at mean low tide" means locations that will not have a significant adverse impact on off- shore resources of particular importance. For the purposes of this definition, "off-shore resources of particular importance" shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, provides, in pertinent part, as follows: The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, to improve the quality of nearshore waters in Monroe County. * * * POLICIES 1. To prohibit land use that directly or indirectly degrade nearshore water quality. * * * To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands. To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. Benthic communities exist in Sugarloaf Sound, such as rock-hard bottom, sea grasses, algae, and hard coral. Turtles, manatees, sharks, stingrays, eagle rays, snapper, pink shrimp, mullet, and other marine animals populate the Sound. Sea grass beds play an important role in water quality maintenance in the Keys through filtration, nutrient uptake, stabilization of the bottom, and as a habitat for commercially important species. The canal system for Sugarloaf Shores subdivision does not have access to deep water without crossing shallow sea grass beds with depths of less than four feet at mean low water. The operation of motor driven boats may result in damage to sea grass beds and shallow water marine communities through prop dredging. Although there is evidence of prop dredging in parts of Sugarloaf Sound in these shallow areas, it was not shown that the damage was done by boats traveling from the Sugarloaf Shores canal system and deep water. Whether a boat that may be docked at some future time if the permit is granted will cause damage to some portion of Sugarloaf Sound is speculation. Since 1986, Monroe County has adopted an interpretation of Section 9.5-345(m)(2), Monroe County Code, and of Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, that would permit the construction of the subject project. That interpretation permits the development of marginal seawalls, vertical bulkheads and docks in subdivisions that were under development in 1986 if there is at least four feet of water at the terminal point of the dock at mean low tide. The dock that is the subject of this proceeding would, if permitted, terminate in water of at least six feet in depth at mean low tide. Monroe County's interpretation of the so-called "four foot rule" is that the rule was intended to restrict the development of boating access facilities in new, undeveloped subdivisions and to regulate proposed expansion of existing marinas and the development of new marinas. Monroe County's interpretation of its rules is that a vertical bulkhead and dock built on an individual family home-site, where a dwelling was already built or under construction, would have minimal effect on the nearshore water environment of critical state concern. Monroe County considers the subject application by the Clarks to meet all of its permitting criteria. The subject project has received an exemption from permitting from the Florida Department of Environmental Regulation and from the Florida Department of Natural Resources. The Army Corps of Engineers has agreed to issue a permit for the project with no special conditions. There is no definition of "docking facility" contained within the Monroe County Land Development Regulations or the Monroe County Comprehensive Plan. It was not established that a bulkhead is a docking facility or that the construction of a bulkhead on Lot 90 should be prohibited under any of the theories advanced by Petitioner. Respondents presented evidence that several similar projects were permitted at approximately the same time as the Clarks's permit without Petitioner filing an appeal. This evidence was insufficient to establish that Petitioner should be estopped to appeal the subject permit, that Petitioner engaged in selective enforcement of its regulatory power, or that Petitioner otherwise brought the subject appeal for an inappropriate purpose.
Conclusions The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes. The subject appeal was timely taken by Petitioner pursuant to Section 380.07(2), Florida Statutes, from a development order of Monroe County granting the Clark's request for a building permit to construct a vertical bulkhead and dock on their residential lot on Sugarloaf Shores subdivision. Pursuant to the provisions of Section 120.57(1), Florida Statutes, the propriety of Monroe County's action was reviewed de novo. Transgulf Pipeline Co. v. Board of County Commissioners of Gadsden County, 438 So.2d 876 (Fla. 1st DCA 1983). The ultimate burden of persuasion rested on the Clarks to establish their entitlement to the permit authorizing their proposed development. Young v. Department of Community Affairs, 567 So.2d 2 (Fla. 1st DCA 1990), and Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Dispositive of whether the subject construction is consistent with the Monroe County land development regulations is the interpretation to be accorded Section 9.5-345(m)(2), Monroe County Code. Generally, an administrative construction of a statute by an agency responsible for its administration is entitled to great deference and should not be overturned unless clearly erroneous. Department of Environmental Regulation v. Goldring, 477 So.2d 532 (Fla. 1985); All Seasons Resorts, Inc. v. Division of Land Sales, Condominiums, and Mobile Homes, 455 So.2d 544 (Fla. 1st DCA 1984); and Sans Souci v. Division of Land Sales and Condominiums, 421 So.2d 623 (Fla. 1st DCA 1982). The same deference has been accorded to rules which have been in effect over an extended period and to the meaning assigned to them by officials charged with their administration. Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So.2d 716 (Fla. 1983), and State Department of Commerce, Division of Labor v. Matthews Corp., 358 So.2d 256 (Fla. 1st DCA 1978). Moreover, the agency's interpretation does not have to be the only one or the most desirable one; it is enough if it is permissible. Pan American World Airways, Inc. v. Florida Public Service Commission, supra, and Florida Power Corp. v. Department of Environmental Regulation, 431 So.2d 684 (Fla. 1st DCA 1983). Here, no less deference should be accorded Monroe County's interpretation of its land development regulations where, as here, such interpretation is reasonable, evidences due consideration for private rights of ownership, and is not contrary to its comprehensive plan. See e.g. Thomson v. Village of Tequesta Board of Adjustment, 546 So.2d 457 (Fla. 4th DCA 1989). It is concluded that Monroe County's interpretation of Section 9.5- 345(m)(2), Monroe County Code, is a permissible interpretation and that the subject development is consistent with the Monroe County comprehensive plan and land development regulations. The Clarks have satisfied their burden of proof by demonstrating that the proposed construction is consistent with the Monroe County comprehensive plan and land development regulations and that they are entitled to the subject permit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order affirming Monroe County's decision to issue building permit number 9210003952, and dismissing the appeal filed by the Department of Community Affairs. DONE AND ORDERED this 30th day of December, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 30th day of December, 1992.
The Issue This proceeding concerns a Consent Order entered into by the Department of Environmental regulation (DER), and James and Patricia Gratzer (Gratzers) regarding an allegedly unpermitted fill in Winter Springs, Florida. The ultimate issue for determination is whether DER abused its discretion in resolving the alleged violations by entering into the subject Consent Order.
Findings Of Fact In the fall of 1990, the Gratzers purchased a 4.35 acre lot located at 216 Stoner Road in Winter Springs, Florida. At the time of purchase, the Gratzers planned to divide the lot and build a residence on the two acre parcel. In preparation for construction of their new home, the Gratzers approached the Winter Springs City Council to subdivide the property and to approve of use of the fill road as ingress and egress for both lots. In February of 1991, the Gratzers and their builder obtained the proper building permits from the County and septic tank permits from the Department of Health and Rehabilitative Services. Construction began on the residence on April 9, 1992 when the Gratzers' builder brought in several trucks of dirt to the end of the existing fill road to begin the house pad. At the time the Gratzers began construction on the subject lot, they had no idea or reason to believe that they were about to build in jurisdictional wetlands of the State of Florida. On approximately April 14, 1992, the Gratzers were first made aware that they may have problems with potential wetlands on the property when an officer of the Game and Fresh Water Fish Commission visiting the site instructed the builders to halt construction, pending a review by DER. As a result of the site visit, the Gratzers investigated further with DER employees the potential wetlands on their property. They also sought the advice of an attorney and his environmental consultant regarding possible ways to solve DER's concerns. On approximately April 26, 1991, an employee of DER visited the site and made an initial determination that the property was a jurisdictional wetland subject to permitting by DER. Under present rules the Gratzer property, with exception of the filled access road, would all be in DER jurisdictional wetlands if only the natural vegetation were considered. Upon being informed of DER's initial determination, the Gratzers hired an engineer from Boyer-Singleton & Associates to make an engineering determination as to the extent of jurisdictional wetlands based upon a ten-year backstop. A ten-year backstop is a method provided by statute to determine the ultimate landward extent of DER's vegetational jurisdictional line. It is a hydrological calculation to determine water elevation levels in a certain area, subject to the ten-year recurrent storm event. By rule and statute, DER's jurisdiction over wetlands effectively stops at the upper end or limit of the ten-year flood elevation line. Claude Cassagnol, of Boyer-Singleton and Associates, an expert in hydrology, reviewed available materials, visited the site and made an initial determination of the ten-year backstop on the Gratzers' property, and ultimately mapped out his conclusions on a plat. Mr. Cassagnol's hydrological study, and his review of Federal Emergency Management Agency (FEMA) materials, led him to conclude that the ten-year backstop would leave the Gratzer's house pad out of any DER jurisdictional wetlands. As a result of his study, Cassagnol forwarded several letters to George Baragona of DER requesting that Mr. Baragona, an expert hydrologist, review his determination and ratify his conclusions. The Gratzers, on advice of counsel, allowed their building contractor to complete compaction of the house pad and begin preparations to pour the house floor. The septic tank contractor for the Gratzers completed installation of the tank and drain field prior to July 1st. After the Gratzers had recommenced construction, on approximately July 10, 1992, DER, issued a Notice of Violation (NOV) which ultimately formed the basis for the Consent Order in this case. The Gratzers immediately ceased further construction on the property and sought further negotiations with DER. Shortly after the NOV was issued, George Baragona reviewed the information, studies and plats submitted by Mr. Cassagnol regarding the ten-year backstop. Baragona made a determination of the ten-year backstop at a point more landward than Cassagnol's. It appears from the plat submitted at hearing, that Baragona's ten- year backstop line runs along the base of the fill roadway; his testimony, however, indicated that his backstop line dipped in and out near the roadway, and he simply chose the baseline of the fill road as his "worst case scenario". Baragona, because of the house pad, was required to extrapolate a line through the house pad, resulting in approximately half of the house pad area being in jurisdictional wetlands. The result of further negotiations between the parties was the Consent Order which is the subject matter of this proceeding. As settlement, the Gratzers agreed to Baragona's "worst case scenario" ten-year backstop, placing approximately half of the house pad was in DER jurisdictional wetlands. As part of the settlement, the Gratzers agreed to, and have paid, a fine of $1,400.00 to DER and have granted a conservation easement over a large portion of the remainder of their property, resulting in an 11.6 to 1 ratio of conservation easement to impacted wetlands, slightly above DER's guideline 10 to 1 ratio. In investigating the alleged violations at the subject property, DER reviewed the cumulative impacts of the project and determined that they were not great, in light of the surrounding area and its already high level of development. In making this determination, DER reviewed property lists, maps and other facts to determine the level of current development. In reviewing the alleged violations, DER also considered whether or not this project would have been able to get a permit had the Gratzers sought a permit prior to any construction. It was DER's determination that the project would have been permittable under the criteria in Chapter 403, in conjunction with the mitigation offered at the site. Finally, in its review and study of the alleged violations, DER determined there was no evidence that this project would have any adverse impact on water quality. DER made a determination that this was a "low to medium" violation, and that the impacts were properly addressed through the Consent Order which imposed the $1,400.00 fine and secured the conservation easement. Fill Road Issue A small road or driveway existed on the site at the time the Gratzers purchased the property, extending from Stoner Road from the south, to the center of their property. Although Baragona indicated the DER modelled backstop line did not always extend to the driveway, he said it sometimes appeared to "bump up" to the eastern edge of the driveway. Baragona could not say with absolute certainty where the 10 year backstop would be on the east side of the site if the driveway were not present. The type of wetland vegetation on the Gratzer property would be considered jurisdictional wetland vegetation under rules adopted pursuant to the 1984 Warren F. Henderson Wetlands Act (Section 403.91, et seq.), but would not be considered jurisdictional wetland vegetation under rules applicable prior to October 1, 1984. If the driveway on the Gratzer property was installed prior to October 1, 1984, it is legal, but if it was installed after that date it is illegal because there is no evidence it ever was properly permitted. DER does not allow illegally filled areas to cut off the extent of its wetland jurisdiction. Therefore, if the driveway on the Gratzer property were placed in DER jurisdictional wetlands without a permit, the road itself could not act as a 10 year backstop cutting off DER wetland jurisdiction to the west. There was conflicting evidence as to when the driveway was placed on the property. James Hartman, who sold the property to the Gratzers, testified he built the driveway in 1978 and 1979. William Kuyper, an expert in aerial photography interpretation, testified that based on his review of aerial photos, the road had been placed on site sometime between January 6, 1986, and March, 1989. The weight of the evidence indicates the driveway was probably placed on site before October 1, 1984, and therefore did not require a DER permit. First, the former landowner's testimony that he built the road in 1978 and 1979, must be considered more reliable than an interpretation of aerial photos taken from 12,000 feet in the air, in spite of the expertise of the photographic interpreter. A possible explanation for why the driveway "appeared" in the 1989 aerial photo but not in the 1986 aerial photo is that the road may have been disturbed, or new fill put on the road sometime between 1986 and 1989, causing the road to be more visible in 1989. Even if the 10 year backstop were to be determined without the driveway present, it would not be significantly different. While DER's 10 year backstop line "bumps up" against the road in places, it does not "bump up" in other places along the driveway, but in order to be conservative the line was placed along with driveway in all areas. The modelled location of the line north of the housepad where there is no driveway is consistent with where the line is modelled south of the housepad where the driveway is located. The Society and its Concerns The Society's corporate status was not controverted. CFWS members have been patrolling the Lake Jessup/Gee Creek area and other wetland areas and have found what they believe are violations of the law and rules intended to protect wetland resources. Although neither Michael Mingea nor his expert witness have been on the Gratzer property, they have been in the immediate area and are concerned about the cumulative impact of small dredging projects, like the Gratzers, which projects are routinely reported to DER by the Society. Beginning in May 1991, the Society corresponded regularly with Secretary Browner at DER and Secretary Williams at the Department of Health and Rehabilitative Services (HRS) and their respective staffs, regarding what the Society perceived were violations occurring through lax enforcement. The Society believed, though review of HRS and DER files, that the Gratzers' project included a septic tank placed in jurisdictional wetlands. This was not established; rather, the septic tank was erroneously placed inside a setback line, but outside the jurisdictional line, and a variance was readily obtained from HRS. DER does not have direct jurisdiction over septic tank permits and HRS' authority is derived from the statutes, not from DER. The Society's position regarding the Gratzer project is based in substantial part on its assertion that the fill road was illegally placed and that DER's jurisdiction extended through the entire property. The Society, however, did not rebut the sound evidence by George Baragona of the 10-year backstop. Nor did it present competent evidence of any alleged water quality violations. Only one other actual violation of permit requirements was established, and DER has required the developer to move the project from jurisdictional wetlands.
Recommendation Based on the foregoing, it is hereby, recommended that the Consent Order that is the subject of this proceeding be adopted as Final Agency Action. RECOMMENDED this 24th day of July, 1992, in Tallahassee, Leon County, Florida. MARY CLARK 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 24th day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0104 The following constitute specific rulings on the findings of fact proposed by Petitioners: 1.-3. Adopted in preliminary statement and paragraph 19. 4. Adopted in substance in paragraph 5. 5.-6. Rejected as unnecessary. 7.-8. Adopted in substance in paragraph 14. 9.-12. Rejected as unnecessary. 13. Adopted in part in paragraph 20, otherwise rejected as unnecessary. 14.-16. Rejected as unnecessary. 17.-18. Rejected as contrary to the evidence. 19. Rejected as contrary to the greater weight of evidence. 20.-22. Rejected as unnecessary. 23.-25. Rejected as contrary to the evidence. 26. Rejected as unnecessary. 27.-30. Rejected as contrary to the evidence. 31.-32. Rejected as summary of testimony or argument, rather than findings of fact. 33.-34. Rejected as contrary to the weight of evidence. 35.-36. Rejected as unnecessary. 37. Rejected as contrary to the evidence. [Section VI, pp 19-22 includes unnumbered paragraphs summarizing testimony, rather than findings of fact]. COPIES FURNISHED: Michael W. Mingea, President Central Florida Wetlands Society P.O. Box 2826 Orlando, FL 32802 Rex D. Ware, Esquire P.O. Box 1794 Tallahassee, FL 32302 Douglas H. MacLaughlin, Esquire DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399
The Issue This matter concerns the request by the Petitioner James A. Connell to be granted variances within the meaning of Section 131.016(b), City of Clearwater Building and Zoning Regulations. In particular the Petitioner has asked that he be given a variance from the side yard setback requirements for narrow parcels established by Section 131.200(b)(3)a.2., City of Clearwater Building and Zoning Regulations, and a variance to the requirements of Section 131.200(b)(3)e., dealing with clear space. The zoning classification in question is RM-8, as set forth in Section 131.048, City of Clearwater Building and Zoning Regulations.
Findings Of Fact On November 17, 1980, the Petitioner, James Connell, filed an application requesting a variance from the side setback requirements of Section 131.200(b)(3)a.2., City of Clearwater Building and Zoning Regulations, asking for a reduction from 30 feet to 10 feet and further requesting that the clear space requirement of having only one side yard setback to be used for parking, with the other side yard setback for clear space from street to water, with the further possibility that that space be used for driveways of parking below street grade, as stated in Section 131.200(h)(3)c., be modified to grant the Petitioner a variance. The extent of this latter variance would be for clear space offered in the center portion of the project which gives 24 feet in width essentially unobstructed clear space, with an additional 20 feet space street to water on each side of the 24 feet unobstructed space, which north/south 20 foot expansions are constituted of driveways for the eight (8) proposed dwelling units to be constructed by the Petitioner. The real property under consideration is owned by the Petitioner and zoned RM-8 within the meaning of Section 131.048, City of Clearwater Building and Zoning Regulations. The address is 1012-1016 North Osceola Avenue, Clearwater, Florida. This case was presented before the State of Florida, Division of Administrative Hearings, on March 25, 1981, following a public hearing of January 15, 1981, in which the Board of Adjustment and Appeal on Zoning, City of Clearwater, Florida, had made an adverse ruling to the position of the Petitioner. The tape of the proceeding on January 15, 1981, may be found as Petitioner's Exhibit No. 3, admitted into evidence. The site plan of the project in question has been reviewed by the Resource Development Committee of the City of Clearwater with a recommendation for approval of the project, conditioned upon the attainment of variance exceptions. A copy of the application for variance may be found in the City of Clearwater's Composite Exhibit No. 4, admitted into evidence. Through that application form, and in the course of the hearing, the Petitioner expressed concern about the survival of two 36 inch in diameter mature oak trees located on the property in question and also mentioned that the drop in elevation of the eastern side of the property front on Osceola Avenue North to the waterward western extreme of the property at Clearwater Harbour becomes dramatic approximately two thirds from the eastern extent of the property line making utilization of the latter third to the west difficult. In combination, this topographical reality and the location of the two oak trees, according to the Petitioner, would make it difficult to construct a project oriented to the center of the property, in an effort to comply with the "clear space" requirements. The Respondent, City's Exhibit No. 1, admitted into evidence, is a site plan which depicts the Petitioner's proposals and it shows that lot to be approximately 160 feet in width and from 355 to 360 feet in length, the width relating to a roughly north/south orientation and the length a roughly east/west orientation. The drawing depicts the proposed ten foot side setback, the 24 foot clear space with additional 20 feet north/south associated with the driveways. The proposal would leave in tact the aforementioned oak tree or trees located in the approximate center of the 24 foot vista space. (In that connection, although the Petitioner has attempted by his plan to save some of the trees, the plan as drawn for unit four of the eight unit townhouse complex depicts the removal of a 40 inch oak tree.) The lot drops from a 26 foot to a 17 foot elevation from the street to Clearwater Harbour. The effect of that drop would be to limit the percentage of an automobile that could be seen if located in a driveway toward the waterward side of the site. The Petitioner's Exhibit No. 1 and the City's Composite Exhibit No. 2 are photographs of the building site. Through the hearing process no one has objected to the grant of the variances in question and one person who resides In the neighborhood spoke in favor of the project.
The Issue Whether Respondent Pierson should be granted variances to permit construction of a triplex on a lot 95 feet wide and 87 feet deep. To do so the three variances required are (1) of 5 feet in width, (2) of 13 feet in depth, and (3) 753 square feet in area (10,000 square feet required).
Findings Of Fact Don Curtis Pierson owns the north one-half of Lot 2 and all of Lot 3, Block 6, Revised Map of Clearwater Beach, and has owned this property for some 28 years. The property is zoned RM-20 and is high density residential developed. Pierson's lot is approximately 95 feet by 87 feet (approximately 82,500 square feet). The property is currently occupied by a duplex which was constructed according to Code, except for variances of zero setback from the coastal construction control zone and a 6 foot height variance to permit the construction of a building 31 feet in height. Appellant is the owner of a multifamily building adjacent to Pierson's property which was constructed before various code provisions became effective and was constructed to the lot lines without any setbacks. When Pierson applied for variances in 1983 to construct a triplex on his property, the Board of Adjustment Appeal granted setback variances of 10 feet in rear and front setback lines to permit the construction of a triplex on this property. Vasilaros appealed that grant, and on July 12, 1983 the undersigned heard that appeal. On August 31, 1983, an order was entered denying the setbacks, but approving the construction of a triplex on the lot less than 10,000 square feet in area. That approval was predicated upon then Section 131.020 of the Land Development Code which waived the area requirement for a lot of record. This Section was removed in the 1985 rewrite of the Land Development Code. Specific code provisions respecting the size of the lot on which a three family structure may be erected are in Section 135.044 which requires a minimum lot area of 10,000 square feet, and minimum lot width and depth of 100 feet each. The applicant's only hardship upon which the requested variance can be granted is the uniqueness of the property becoming nonconforming solely by reason of zoning changes.
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.
The Issue Whether Appellant should be granted variances in setback lines to allow construction of a retail store on a lot at the northeast corner of the intersection of Papaya Street and Gulfview Boulevard on Clearwater Beach, Florida.
Findings Of Fact Appellant purchased the property at 24 Papaya Street in Clearwater Beach (lots 29-32, inclusive, Clearwater Beach Park) approximately two years ago. The only inquiry made of zoning officials regarding use of the property, other than zoning, was what part of the lot could be covered with a building. This lot is nearly square but is nonstandard in both width and depth to construct a building without a variance. These variances were granted at the initial variance request heard in December 1992. Appellant proposes to construct a retail store containing some 4700 square feet of floor space. To erect a building of this size on the lot a variance of 3 percent to allow 48 percent coverage of the lot was required. This variance was granted by the Board; however, without the variances in setback on the four sides of the parcel, this 3 percent variance in lot coverage is useless to the Appellant. This lot currently has four old buildings with a combined total of 2723 square feet. The largest is nearly square and contains approximately 1120 square feet. There are rental apartments in some, if not all, of these buildings. It is proposed to remove these buildings, if the permit to construct the proposed store is granted. The existing buildings are nonconforming and three are between 2 to 4 feet of the lot lines on the north, east and south sides of the property. The property is zoned CR-28 (Resort Commercial) and the proposed use is authorized in this zoning classification. The plans are and the applicant proposes to provide the required parking spaces for this establishment under the proposed structure. Appellant presented evidence that adjacent properties were built to the lot line with no setback. Most of these buildings were erected before setbacks were required in this area and are grandfathered in so long as the structures remain. In 1986 the Development Code Adjustment Board granted setback variances on all four sides of the property across Gulfview Boulevard from Appellant's property. That parcel was also nonstandard and even smaller than the parcel of land here involved. Because of the size of the property the Board found a hardship existed and without the requested variances the property had little value. One significant difference in these two parcels is that one had been owned by one family since 1932 while the instant parcel was required circa 1990. Further, evidence was presented that being one block east of Mandalay Avenue, the main traveled beach road, the proposed structure needs to be seen from Mandalay to attract pedestrian traffic. The building just west of Appellant's lot is built to the lot line and partially blocks the view of Appellant's property from Mandalay. The use of the property sought here is consistent with the Comprehensive Land Use Plan and no protest to the granting of the variances requested were received from adjacent property owners. Razing the existing structures and erecting the proposed store in which the applicant intends to sell upscale beach wear would improve the appearance of the neighborhood.
The Issue At issue in this proceeding is whether a development order (building permit) issued by Monroe County to John and Alice Scott, Owners, and Hugh E. Rhodus, General Contractor, for the construction of a vertical seawall/dock on Lots 31 and 32, White Marlin Beach subdivision, Matecumbe Key, Monroe County, Florida, is consistent with the Monroe County Comprehensive Plan and land development regulations.
Findings Of Fact The Property Respondents John and Alice Scott are the owners of two canal front lots known as Lots 31 and 32, White Marlin Beach subdivision, Matecumbe Key, Monroe County, Florida. Lots 31 and 32 were acquired in 1968 and 1970 and are undeveloped. The subject lots are in incorporated Monroe County, Florida, and are zoned Improved Subdivision (IS). The Scotts reside on a third lot facing the bay that is across the street from the subject lots. Respondents' lots are within the Florida Keys Area of Critical State Concern. The land where the White Marlin Beach subdivision is located was at one time all mangroves and other trees. The subdivision was created in 1955-56 by means of dredge and fill activities. During the late 1960s and early 1970s, the shorelines of Lots 31 and 32 were even with an existing bulkhead on an adjacent lot. Very small mangroves were beginning to revegetate the shorelines. By 1979-1980, some shoreline erosion had occurred on the lots, estimated at 5-6 feet. At some unknown time thereafter, additional shoreline erosion occurred, estimated at its greatest point to be approximately 10 feet from the original platted fill line. At the time the permit application was considered and at the time of the hearing, the revegetated mangroves had grown into a substantial fringe of high complexity, running the entire 117-foot length of the two lots and varying from 5 to 15 feet in width. Some of the trees are as tall as 12 feet. The area in which the mangroves have revegetated slopes gently toward the canal. It constitutes a shallow water habitat which, in addition to the mangrove vegetation, supports crabs, juvenile fish, algae, and seagrasses. The expert witnesses of both Petitioner and Respondent testified that the mature mangrove fringe on the two lots has stabilized the land area adjacent to the canal. Landward of the mangrove fringe, the lots are comprised of unconsolidated sand used to create the lots. The edges of the fill material form a gentle slope from as low as six inches up to 24 inches at one extreme. Upland erosion is occurring along the edge of the unconsolidated fill, washing down the slope of the fill into the mangroves. Erosion of the edges of upland fill is a common occurrence in the Florida Keys. 10 The unconsolidated fill material where the erosion is occurring constitutes the uplands portion of the lots and is caused by weather events (wind and rain), rather than by tidal or wave action. There is active boating traffic on the subject canal; many large commercial and pleasure boats use the canal. Marine fuel and supplies are sold at Angelo's. There is a commercial fishing "village" located at and around Angelo's. To reach open water, i.e., the Gulf bay, boats must pass lots 31 and 32 after leaving Angelo's. Most of the other lots on the same canal as lots 31 and 32 are primarily protected by seawalls. The Scotts, under the subject seawall permit, are seeking to tie in to the adjoining seawall for consistency in community character and appearance. The adjoining property owners and many of the neighboring property owners want the mangroves removed and a seawall built to protect lots 31 and 32. Permit Application and Issuance On March 11, 1992, the Scotts applied to Monroe County for a permit to construct a seawall on Lots 31 and 32, White Marlin Beach subdivision. The Scotts' seawall permit application was denied by Pat McNeese, the Monroe County Environmental Resources Director, based upon her conclusion that erosion was not occurring on the lots and thus a seawall was not allowed under the Monroe County land development regulations. The Scotts appealed Ms. McNeese's decision to the Monroe County Planning Commission. As part of their evidence, Respondents offered a certified land survey conducted on November 1, 1992, which shows that the approximate shoreline of the property is at its greatest point roughly 10 feet landward of the platted shoreline. After hearing, the Planning Commission upheld Ms. McNeese's decision to deny the permit. The Scotts then appealed the Planning Commission's decision to the Monroe County Board of County Commissioners. The Board overturned the Planning Commission. The Board found that the Scotts are entitled to a permit to develop a seawall for erosion control under the provisions of Section 9.5-345(m)(2)(b), Monroe County Code. On April 19, 1993, Monroe County issued building permit number 9230005939 which is the subject of this proceeding. The permit was rendered to the Department on April 21, 1994, and was appealed by the Department 45 days thereafter. Monroe County Comprehensive Plan and Land Development Regulations The Monroe County Comprehensive Plan contains various policies directed toward preservation or conservation of the Keys environment and maintenance of water quality. Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, states, in part, that: The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique, oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, improve the quality of nearshore waters in Monroe County. * * * POLICIES 1. To prohibit land uses that directly or indirectly degrade nearshore water quality. * * * To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands. To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitats of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated Aquatic Preserves under Ch. 253.39 et seq. the [sic] Florida Statutes. The Monroe County Comprehensive Plan, Volume II, Sec. 2-115 entitled "Enforcement" provides: A major component of any future land use element is the need to strictly enforce implementing regulations. If Monroe County is to achieve the promise of this Plan, it is essential that all persons involved in the land development process adhere to the requirement of this Plan and that the integrity of the development review process be protected. The Monroe County Comprehensive Plan, Future Land Use Element, Volume II, Natural Vegetation Management Policies provides: In recognizing the need to preserve as much natural vegetation as possible, the County will direct its land use and development regulations to minimize destruction of natural vegetation and modification of landscape. Guidelines and performance standards designed to protect natural vegetation from development will be developed and enforced. Clearing of native vegetation for development will be controlled. * * * 3. Regulations controlling development in areas characterized primarily by wetland vegetative species such as mangrove and associated vegetation will emphasize preservation of natural vegetation to the maximum degree possible. * * * 8. The existing County ordinances designed to protect and conserve natural vegetation will be strictly interpreted, rigidly enforced, and/or amended when necessary. * * * Of all the natural landforms and features which must be given due consideration in their protection, protection of the shoreline is of prime concern. . . . Chapter VII, Coastal Zone Protection Element, Marine Resources Management Policies section, Future Land Use Element, Monroe County Comprehensive Plan, Volume II, states that: Recognizing the crucial role that the marine environment plays in the local economy, the protection, conservation, and management of marine resources will be viewed as an issue requiring the County's utmost attention. In an effort to protect and conserve marine resources, emphasis will be placed on protecting the entire marine eco-system. 1.2. To this end, maintenance of water quality; protection of marine flora and fauna, including shoreline vegetation; and preservation of coral reefs will be regarded as being absolutely essential to maintaining the integrity of the marine system. Utilization of marine resources will be judged sound or unsound from the standpoint of whether or not a permitted use insures conservation and long-term maintenance of the resource. * * * Land and water activities which are incompa- tible with the preservation of marine resources because of their potential adverse effects will be prohibited, restricted, or carefully regulated depending upon the nature of the activity and the extent of potential impact. Development of bulkheads (the vertical component of a seawall) is characterized in the Monroe County Comprehensive Plan as "shoreline modification" and is addressed in Volume II as follows: Shoreline Modification Shoreline generally requires some degree of modification before it can be utilized for development of any sort. But such modification, unless carefully planned, can have adverse effects far beyond the area directly altered for development. For this reason, all shoreline modifications are subject to close scrutiny and regulation by local, State and Federal agencies. The following guidelines should be used at the local level to minimize the impact of shoreline modifications of different types. Bulkheads and Bulkhead Lines Bulkhead lines should be set at, or landward of, the mean high water line or the landward boundary of the shoreline protection zone, which- ever is applicable. Where possible, sloping rip-rap structures and coastal vegetation should be used rather than vertical seawalls. The Monroe County land development regulations provide in pertinent part: Sec. 9.5-288. Bulkheads, seawalls, riprap and fences. Bulkheads, seawalls, riprap and fences may be allowed as principal uses where it is demonstrated that their purpose is for erosion protection or upland protection (except for the Big Pine Area of Critical County Concern). Seawalls, in any configuration to include integral steps, ladders, platforms, quays, wharfs, and integral docks landward of seawalls, are permitted, with or without a principal building, in all land use districts for the purpose of erosion control. . . . Riprap placement is permitted without a principal structure for erosion control. * * * Sec. 9.5-335. Purpose of environmental perform- ance standards. It is the purpose of this division to provide for the conservation and protection of the environmental resources of the Florida Keys by ensuring that the functional integrity of natural areas is protected when land is developed. * * * Sec. 9.5-345. Environmental design criteria. (m) Mangroves and Submerged Lands: Except as provided in paragraph (3), only piers, docks, utility pilings and walkways shall be permitted on mangroves and submerged lands; All structures on any submerged lands and mangroves shall be designed, located and constructed such that: All structures shall be constructed on pilings or other supports; Bulkheads and seawalls shall be permitted only to stabilize disturbed shorelines or to replace deteriorated existing bulkheads and seawalls; * * * d. No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists; No fill shall be permitted in any natural water body; No fill shall be permitted in any manmade water body unless the applicant demonstrates that the activity will not have a significant adverse impact on natural marine communities. * * * Sec. 9.5-4. Definitions. (W-1) Water at least four (4) feet below mean sea level at mean low tide means locations that will not have a significant adverse impact on off- shore resources of particular importance. For the purpose of this definition, "off-shore resources of particular importance" shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet and all designated aquatic preserves under Florida Statutes section 258.39 et seq. The land development regulations must be implemented in a manner consistent with the Monroe County Comprehensive Plan. Seawall The shoreline is generally the area between mean high water and mean low water. For regulatory purposes, the "shoreline" is considered to be mean high water. While a seawall will protect shoreline property, there are negative impacts associated with development of seawalls which merit consideration. In this case, development of the permitted seawall would involve elimination of the existing mature mangrove fringe, which filters upland runoff, and filling in the shelf, including submerged lands, which provides habitat for juvenile fish, crabs and algae. Water quality in the White Marlin Beach canals will deteriorate as additional seawalls are constructed. Wave force is increased as waves bounce off one seawall and then another, which in turn brings up sediments which may contain pollutants. Increased wave force also draws sediments out from under existing bulkheads, causing or contributing to their deterioration and adding to the suspended sediments in the canal. Riprap and coastal vegetation absorb rather than intensify wave energy. While some amount of shoreline erosion occurred on Lots 31 and 32 during the 1970s and at some time thereafter, the shorelines on Lots 31 and 32 are now stabilized by the existing mangrove fringe. Since the shorelines of Lots 31 and 32 are not presently eroding, that portion of the permit which authorizes the removal of the shoreline vegetation and development of a vertical seawall is not consistent with the Monroe County land development regulations. Rip-Rap Even if shoreline erosion were occurring, a seawall or bulkhead to stabilize the shoreline would still not be authorized under the Monroe County Comprehensive Plan and land development regulations. The shoreline on Lots 31 and 32 is gently sloping, with only about 1-1/2 feet of silt over the bedrock within the mangrove fringe. Rip-rap would be feasible on Lots 31 and 32 if shoreline erosion were to be currently taking place. Upland Erosion The Scotts are experiencing some erosion on the edges of the upland fill on Lots 31 and 32, caused by wind, rain, digging crabs, and the spreading roots of mangrove trees. Such erosion on the edges of upland fill is common in the Florida Keys. Construction of a vertical seawall, which is a shoreline stabilization technique, is not appropriate to address an upland erosion problem. Erosion of upland fill material is commonly addressed by use of a retaining wall landward of the shoreline. Development of a retaining wall on Lots 31 and 32 would not necessitate removal of the existing shoreline vegetation and placement of fill on submerged lands as authorized under the subject permit. Fill Behind Seawall The plans approved with the subject permit authorize the placement of fill behind the seawall. A portion of the proposed fill would be placed below mean high water on submerged lands. Section 9.5-345(m)(2)(4), Monroe County Code, prohibits the placement of fill in a manmade water body unless the applicant demonstrates that the activity will not have a significant adverse impact on natural marine communities. The mangrove community and submerged shelf that exist on lots 31 and 32 are natural marine communities. The permanent obliteration of the shoreline vegetation and elimination of the submerged lands that presently exist on Lots 31 and 32 would be a significant adverse impact on natural marine communities. Accordingly, the placement of fill on the submerged lands on Lots 31 and 32 is not authorized under the Monroe County land development regulations. Docks Section 9.5-345(m)(2)(d), Monroe County Code, requires that docking facilities be developed only where a water depth of at least minus four feet mean low water (-4 MLW) exists. The plans approved under the subject permit show a water depth of zero (0) feet MLW at the waterward extent of the proposed seawall/dock. The Scotts' intention is to align the seawall spanning Lots 31 and 32 with a seawall on an adjacent lot. Water depth in that approximate location, which differs from the approved site plan and is therefore not authorized by the permit, is 1.6 feet at low tide. There is not adequate water depth at the waterward side of the proposed seawall/dock, as shown either on the approved plan or as described in testimony, to accommodate a docking facility on Lots 31 and 32. Further, because the dock has a vertical seawall component, it is not designed to be constructed on pilings or other supports, as required by Section 9.5-345(m)(2)(a), Monroe County Code. Accessory Use The Monroe County land development regulations define an accessory use or structure as a use or structure that serves a principal use and is located on the same lot or lots under the same ownership and in the same land use district as the principal use or structure. The regulation specifically prohibits the establishment of an accessory use prior to the principal use to which it is accessory. Accessory uses are generally regulated based upon whether the accessory use is located on the same property as the principal use. Under the County definition of accessory use, when dealing with a single lot, the principal use must be established first. The reference to the plural "lots" accommodates larger projects which typically encompass more than one lot, such as hotels and multifamily projects. It would also encompass an individual's residence where the lots were aggregated for development. The intent of the regulation is not to restrict the accessory uses to any one of those individual lots, but to recognize that the accessory use can also extend and cover all of the lots where the principal use is located. The regulation was adopted to cure an ongoing problem in the Keys of speculative development where shoreline improvements were developed without the establishment of principal uses to increase the value of saleable lots. In this case, the principal use (the Scotts' residence) is not located on either of the two lots for which the permit was issued. To allow development of those properties prior to the establishment of principal uses on them would be inconsistent with the Monroe County land development regulation and the purpose for which it was adopted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order denying permission to develop the vertical seawall/dock authorized under Monroe County building permit number 9230005939 and denying all other relief requested by the Respondents. It is further recommended that such final order specify those items set forth in paragraphs 45 and 46, Conclusions of Law, as changes in design and circumstances necessary to enable the Scotts to obtain a permit to stabilize the upland fill on the lots and entitle them to a permit or permits for docking facilities. DONE AND ENTERED this 14th day of October 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 14th day of October 1994. APPENDIX The following are the specific rulings on all proposed findings of fact submitted by all parties. Findings proposed by the Petitioner: With the one exception mentioned immediately below, all proposed findings of fact submitted by the Petitioner have been accepted, with occasional editorial modifications in the interest of clarity and accuracy. The one exception is paragraph 25, which was rejected as unnecessary repetition or summary of findings already made. Findings proposed by the Respondents: Paragraph 1: Accepted in substance. Paragraph 2: Rejected as subordinate and unnecessary details in view of the de novo nature of this proceeding. Paragraphs 3, 4, 5, 6, 7, 8, 9, and 10: Accepted in substance. Paragraph 11: Rejected as contrary to the greater weight of the evidence. (There is conflicting evidence on this subject. The testimony of the Petitioner's witnesses is found to be more persuasive than the version put forth by the Respondents' witnesses.) Paragraph 12: Accepted in substance. Paragraphs 13 and 14: Rejected as subordinate and unnecessary details. Paragraphs 15 and 16: Both of these paragraphs are rejected as too overly broad and imprecise to be meaningful in the context of the issues in this proceeding. More precise and detailed findings have been made regarding the nature of past and current erosion on the subject property. Paragraph 17: Rejected as too narrow a statement to be accurate. As noted in the findings of fact, other factors are contributing to the upland erosion. Paragraph 18: Rejected as not supported by persuasive competent substantial evidence. Although there is some testimony along the general lines of what is proposed in this paragraph, that testimony appears to be more nearly hyperbole than hard science. Paragraph 19: Rejected as consisting primarily of argument, rather than proposed findings of fact. Further, the last sentence of this paragraph is a conclusion that is contrary to the greater weight of the evidence. Paragraph 20: Rejected as consisting primarily of argument and proposed conclusions of law, rather than proposed findings of fact. Paragraph 21: First two sentences rejected as subordinate and unnecessary details in view of the requirements of the Monroe County Comprehensive Plan and land development regulations. Last sentence rejected as constituting a conclusion that is contrary to the greater weight of the evidence. Paragraph 22: Rejected in part as not fully supported by persuasive competent substantial evidence and in part as irrelevant. (The water being too shallow, it does not particularly matter why it is too shallow.) Paragraph 23: Rejected as subordinate and unnecessary details in view of the requirements of the Monroe County Comprehensive Plan and land development regulations. Paragraph 24: Accepted in substance with some editorial language omitted. Paragraphs 25 and 26: Rejected as constituting conclusions that are contrary to the greater weight of the evidence. COPIES FURNISHED: Sherry A. Spiers Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Carol A. Scott, Esquire KUBICKI, DRAPER, GALLAGHER & MCGRANE, P.A. 1200 City National Bank Building 25 West Flagler Street Miami, Florida 33130 James T. Hendrick, Esquire 617 Whitehead Street Key West, Florida 33040 David K. Coburn, Secretary Florida Land & Water Adjudicatory Commission 311 Carlton Building Tallahassee, Florida 32301
Findings Of Fact Appellants are the owner of the residence located at 1387 Lemon Street, Clearwater, Florida, having purchased the property in October 1991. The residence is a 3-bedroom 2-bath house containing approximately 1600 square feet. On the back of the property and adjacent to the house is a patio and screen porch. The proposed storage shed would be located some 10 feet from the screened room and rest on concrete blocks. The proposed storage shed is 10 feet by 14 feet and would extend into the 7 feet utility easement in the rear of the property and come within 2.83 feet of the real property line. The Clearwater Building Code requires a 10 foot setback from the real property line. Accordingly, Appellants have asked for a 7.17 foot variance. Appellants intend to store books and records in this shed, if approved, as they contend there is insufficient room in the house for these records. Appellants engaged the services of a person observed erecting a gazebo a few blocks away to construct the storage shed. The contractor employed by Appellants apparently was not licensed and when Appellant asked the contractor if he needed a permit for the storage shed the contractor advised that he didn't pull permits. Appellants engaged the contractor to construct the storage shed without making any inquiries to the city building department to ascertain if a permit was required. After the structure was nearly completed a stop work order was posted on Appellants residence because no permit had been issued for the work. When Appellants applied for a permit it was learned that the proposed building would encroach into the setback and that a variance would be required before the permit could be issued. When the variance was applied for the Planning and Zoning Board denied the variance for the stated reason that the application did not meet the requirements of Section 137.012 of the Land Development Code of the City of Clearwater. These proceedings involve Appellants' appeal from that denial. Appellants' lot is neither square nor rectangular having a slight curve generated by Lemon Street in front and the rear property line runs at an oblique angle with the side property lines which run north and south. However, this rear property line is only a few degrees from being perpendicular to the side property lines. The plat plan accompanying the variance request shows none of the lots in the vicinity of Appellants lot to be truly rectangular and are little different in shape than is Appellants' lot. Appellants' backyard is quite small with the southeast corner of Appellants' house approximately 15 feet from the rear property line. A spa located in the southwest corner of this lot appears from Exhibit 2 to be approximately 10 feet from the rear property line. Appellants propose to have the storage shed painted to look like the house and to be firmly secured against heavy weather. Appellants contend that it would constitute a hardship if they are not granted the requested variance. Appellants also contend that their property is unique; but unless the location of the house near the rear property line constitutes a unique situation, no other evidence was presented that their lot is substantially different from all of the other lots in the vicinity. When Appellants moved into this house they found that the previous owners had used the southeast portion of this lot for storing old lumber and other junk which Appellants cleaned up to make room for the proposed storage shed. They contend the proposed shed is a vast improvement over the clutter formerly existing in this location.
Findings Of Fact Petitioner owns a beachfront home at 816 Eldorado Avenue, Clearwater Beach, Florida. The property is zoned RS-50, which is single family residential. To the rear of the property is the Gulf of Mexico. Petitioner's house is located on the setback line 25 feet from the front property line abutting Eldorado Avenue. All other homes in the vicinity have been granted variances to encroach into the front setback area. The houses to the north and south of Petitioner's home have encroached into the setback area to within ten feet of the front property line abutting Eldorado Avenue. Storms in the past have taken approximately 25 feet from the rear of Petitioner's property (as well as from the rear of adjacent property). In 1978 Petitioner added a Florida room to the south side of her house. By this application Petitioner seeks to construct a single car garage on the southeast part of her home extending eastward to within eight feet of the property line. Accordingly, a variance of 17 feet is requested. Respondent concurs that a variance of 15 feet should be granted to allow Petitioner to encroach into the setback area as much as has been authorized for others in the district. As proposed the rear of the garage would be three feet west of the front of Petitioner's house. Moving the garage further back would block the windows of Petitioner's Florida room. A garage with overall length of 20 feet with the rear of the garage three feet west of the front of the house would extend 17 feet into the setback area abutting Eldorado Avenue. This same garage with an overall length of 20 feet would have an inside dimension of 19 feet if both front and rear walls were six inches thick. A smaller depth garage would preclude the closing of the garage door for a large car and be impractical for other than a subcompact car. Petitioner's purpose for constructing the garage is to protect her car from the salt spray to which it is now subject parked in the open at this residence. Salt spray accelerates the rusting of metal on which it falls. No objection to the granting of the requested variance was submitted by any property owner in the vicinity. One of these property owners, who has owned property in the area for 30 years, testified that variances have routinely been granted property owners in this area because erosion of the beach has reduced the lot sizes and such variances have become essential.
Findings Of Fact On May 20, 1986, Petitioners submitted a request for two variances concerning property located at 761 Bruce Avenue, Mandalay Subdivision, Block 24, Lot 7 in the City of Clearwater. The property is zoned RS-8 (single family residential). The variances requested were for the construction of a garage 4.8 feet from the rear set-back line, rather than the required set-back of ten feet, and 4.2 feet from the side set-back line, rather than the required set-back of five feet. On June 12, 1986, the Development Code Adjustment Board granted the variance of the side set-back requirements, but denied the requested rear set- back line variance. The Petitioners own the property in question and also own the property directly behind the subject property which backs up to the rear property line. There is presently a one story frame house on the property, as well as a small cottage to the rear of the property. The cottage is 12.7 feet wide by 16.5 feet deep. Petitioners want to construct a garage next to the cottage on an existing concrete slab. The dimensions of the garage shown in their application are 12 feet wide by 16.5 feet deep. At one time a garage was attached to the cottage but now only the concrete slab remains. If the rear set-back line variance is granted, the Petitioners will be able to construct the garage with rear and front walls attached to, and flush with, the cottage. If the rear set-back variance is not granted, the garage will have to be moved forward on the property and will only partially connect to the cottage. The Petitioners will not be prevented from building the garage if the variance is denied, but will simply have to move it forward rather than attaching it fully to the cottage. It is the Petitioners' intent to use the garage primarily for storage. Yvonne Ulfers denied any intention of expanding the existing cottage, or using this variance to add another room on the cottage. If the rear set-back line variance is denied, Yvonne Ulfers testified that she would construct the garage anyway, but would move it forward on the property and would also make it deeper than the 16.5 feet proposed in her application. She stated repeatedly that she would deepen the garage by extending it all the way down the side line of her property toward the frame house in the front. The Petitioners offered no evidence concerning conditions unique to this property, or hardship that would result if the variance is not granted. There is also no evidence that this variance is the minimum necessary to construct the garage on the subject property. To the contrary, there is no dispute that the garage can be built without the rear set-back line variance.
