Findings Of Fact On or about April 5, 1988, Petitioner filed an application for a variance to replace an existing four foot fence extending to the seawall on his property at 643 Harbor Island, Lot 12 Island Estates, Clearwater, Florida. The subject property is zoned RS-6. Petitioner had already replaced his previous fencing prior to the filing of this application with wooden fencing which extends on the north and south side of his property through the setback to the seawall. The Development Code Adjustment Board considered Petitioner's application at its meeting on May 12, 1988, and based upon the Petitioner's explanation that the variance was sought simply to replace an existing fence that had termite damage, the Board approved his application on a 3 to 2 vote. The variance approval was conditioned upon the Petitioner obtaining a building permit within one month of the approval. Petitioner failed to obtain the required building permit, and no excuse was offered for this failure. Therefore, he had to reapply for the variance. On or about July 21, 1988, Petitioner filed his variance reapplication. The Development Code Adjustment Board considered this reapplication on August 25, 1988, at which time Petitioner again stated that he was simply replacing an existing fence. Due to a tie vote, consideration of the reapplication was continued to the Board's meeting of September 8, 1988. At the meeting on September 8, he explained for the first time that while the fencing on the south side of his property was simply the replacement of a previous fence which had extended to the seawall, the fencing on the north side was not. The previous fence on the north side of his property had stopped prior to the fifteen foot setback. With this clarification, the Board approved his variance reapplication for the south side of his property, but denied the variance for the north side. Petitioner has timely appealed the denial of his variance reapplication as it relates to the north side of his property. Petitioner testified at hearing that prior to the construction of his current wooden fence, he had a wood fence all the way to the seawall on the south side of his property. Since he had to replace that fencing due to termite damage, he took the opportunity to also replace and extend the wooden fencing on the northern side of his property through the setback. This action was not based on any hardship, but simply because he and his family felt it would look better if he had the same fencing on both sides of his property. It is clear and undisputed that Petitioner constructed a new fence on the north side of his property through the setback without obtaining a variance or permit. He did this simply for aesthetic reasons, and not due to any hardship. He failed to disclose this in his applications, or when the Board met on May 12 and August 25, 1988 to consider this matter.
Findings Of Fact John Taylor, III, Petitioner, owns property located at 1200 South Missouri Avenue in the City of Clearwater which is zoned CC (commercial center). The subject property consists of a mall and movie theater. On or about April 17, 1986, Michael Johnson, on behalf of Petitioner, applied for a variance to allow two message signs on the subject property and also to allow total message signage of 256 square feet. Without a variance, the subject property can have only one message sign which cannot exceed 192 square feet. The property presently has one message sign and total message signage of 176 square feet located on its marquee. At a meeting of the Development Code Adjustment Board on May 8, 1986, Petitioner's variance application was denied. The parties stipulated that Fusco Corporation is the manager of the mall located on Petitioner's property and further that Fusco is the owner of all improvements on the property. Further, Cineplex-Odeon has leased the theater located on the subject property and has renovated and expanded it from two to five movie theaters. Finally, Michael Johnson was employed by Cineplex-Odeon to install the changeable message sign which is the subject of this variance. The second message sign which is sought by this variance would be located 350 feet from Missouri Avenue, which runs north and south in front of the subject property. Specifically, it will be located in the front wall of the theaters next to the ticket counter, and will be 16 feet long by 4.4 feet high. The sign would actually be a display case, 6 inches deep, with five individual poster display cases, which would be used to display coming attraction posters. Each display case would have a hinged glass door, through which the poster could be seen. Coming attraction posters are 2 feet long by 3.3 feet high. The 6 inch depth of the display case extends equally into, and protrudes out of, the front wall of the theater. Petitioner has not established that a hardship would exist if this variance is not approved. Coming attraction posters can be, and in fact are, displayed in the theater lobby. During the renovation of the theater, the front wall could have been removed and a window installed to allow viewing of the lobby posters from outside the theater. Finally, the existing sign on the property could be used to advertise coming attractions, as well as movies which are currently playing. The display case for which this variance is sought on behalf of Petitioner is a "changeable message sign," as that term is used in Section 134.011(a), Land Development Code, since it would be a graphic communication or device which would be primarily used to convey information or advertise and would also be prominently visible from outside the theater.
Findings Of Fact Petitioner owns property located at 1315 N. Betty Lanes Lots 8 and 9, Block E, Pine Ridge Subdivision in Clearwater, Florida. This property is zoned "CO" (general commercial) The consumption of alcoholic beverages on, premises is not permitted on premises zoned "CO," and therefore requires conditional use approval. Petitioner applied for conditional use approval on or about February 20, 1986 and on March 18, 1986 the Planning and Zoning Board disapproved Petitioner's application for conditional use. Paula Harvey, Planning Directors recommended approval because her review of the application indicated the location was suitable for a restaurant and lounges and the police department indicated no reason for disapproval. She did condition her recommendation on Petitioner demonstrating that all parking requirements of the Land Development Code would be met. A 6,000 square foot; two-story building is located on the subject property, but Petitioner only intends to use 2500 square feet for a restaurant and lounge. Petitioner currently operates a bar serving beer and wine directly across Overlea Lane on Beverly Lanes about forty feet away from the subject property. He testified he intends to close his present bar if he obtains this conditional use approval and opens his restaurant and lounge on the subject property. At his present locations Petitioner serves beer and wine; but not food. On the subject property, he would not sell alcoholic beverages without food, except to 7 persons waiting to be seated in the restaurant. Other than Paula Harvey's testimony that the subject property does not have sufficient parking spaces for the utilization of the entire 6,000 square foot building as a restaurant and lounges there is no competent, substantial evidence in the record as to the number of parking spaces on the property. It cannot be determined if there would be sufficient parking if Petitioner used only 2,500 square feet for the restaurant and lounges and the remainder of the building for some other commercial purpose. The neighborhood surrounding the subject property includes a church, residential, shopping and commercial areas. In addition to Petitioner's present barb there is also one other bar in the neighborhood. Public testimony evidences neighborhood concern about noise, litter, traffic and fighting associated with Petitioner's present bar and Petitioner offered no testimony as to how he intended to control noise, litters traffic and fighting which can reasonably be expected to occur if he opens a 2500 square foot restaurant and lounge with seating for more than 150 people compared to his current 1,600 square foot beer and wine bar.
The Issue The issue in this case is whether the construction activities of Respondent Auschra were exempt from applicable permitting requirements on the basis of the application and whether the construction activities exceeded the scope of the exemption. Further, the Petitioner seeks an Order directing the Department of Environmental Protection to initiate an enforcement action against the Auschra project. The Department asserts that the Hearing Officer is without jurisdiction to require the Department to initiate an enforcement action.
Findings Of Fact Petitioner Linda L. Braswell owns and resides at 5190 Latham Terrace Port Charlotte, Florida. The property is located at Lot 88 of the Gulf Cove subdivision in Charlotte County, Block 1864, Section 54. Respondent Kurt Auschra owns Lot 90, located adjacent to Lot 88. Mr. Auschra did not appear and was not represented at the hearing. An application dated January 5, 1995, was filed on behalf of Mr. Auschra, seeking approval of seawall construction at his property. The application appears to be signed by Eugene Exejet of the Charlotte County Seawall Company. Respondent Department of Environmental Protection is responsible for the permitting and regulation of projects such as the Auschra project. The relevant properties back up to the Latham Waterway, a man-made residential canal. The Petitioner asserts that the Auschra property was landlocked and did not have access to the water prior to construction of the seawall. A property is "waterfront" if the mean high waterline touches the property. Evidence of the apparent mean high water line, including subdivision plats and location of vegetation, establishes that the Auschra lot was a "waterfront" lot prior to construction of the seawall. Existing residential canal systems are classified as artificially created waterways by applicable administrative rules. The Auschra application was reviewed by Peggy Hellenbach, an employee of the Department. After the application was filed, and prior to the Department determination that the project was exempt, the Petitioner communicated her concerns to two members of the Department staff, including Ms. Hellenbach. At the time of her review, the application contained sufficient information for Ms. Hellenbach to determine the location and the type of project being proposed. Ms. Hellenbach reviewed the application and determined that the project was exempt from permitting requirements. In determining that the project was exempt from permitting, Ms. Hellenbach considered whether the proposed project would violate existing water quality standards, impede navigation or adversely affect flood control. Ms. Hellenbach determined that based on the location of the seawall and the applicant's intended use of turbidity screens during construction, water quality standards would not be violated. Turbidity screens were used during construction of the seawall. Because the construction site is at the "dead-end" of the waterway, Ms. Hellenbach determined that the project would not impede navigation either during or after construction. Because the location of the seawall does not impact water flow, Ms. Hellenbach determined that the project would not adversely affect flood control. By letter to Mr. Auschra dated February 6, 1995, the Department stated as follows: Based solely upon the documents submitted to the Department, the project has been determined to qualify as an activity which is exempt from the need for a wetland resource permit pursuant to Florida Administrative Code (F.A.C.) Rule 62-312.050 (1) 62-312.050(1)(g). The letter also provided: The determination that your project qualifies as an exempt activity pursuant to Rule 62-312.050 (1) 62-312.050(1)(g), F.A.C., may be revoked if the installation is substantially modified, or if the basis for the exemption is determined to be materially incorrect, or if the installation results in water quality violations. Any changes made in the construc- tion plans or location of the project may necessitate a permit or certification from the Department. Therefore, you are advised to contact the Department before beginning the project and before beginning any work in waters or wetlands which is not specifically described in your submittal. Ms. Hellenbach did not visit the site prior to making her determination. There is no evidence that Ms. Hellenbach was required to visit the site prior to making her determination. Construction of the project was initiated prior to the issuance of the Department's February 6 letter of exemption. Given Ms. Hellenbach's subsequent review of the project after construction and her continuing assertion that the project meets applicable exemption criteria, it is unlikely that a site visit prior to construction would have impacted installation of the seawall. The greater weight of the evidence establishes that, based on the information set forth in the application, the project was exempt from permitting requirements. There is no evidence that the project violated existing water quality standards, impeded navigation or adversely affected flood control. Department policy requires that new seawalls be built in a "continuum" with existing seawalls to prevent water quality problems caused by altered water circulation. The Auschra seawall appears to be in a continuum with the existing Latham Waterway seawalls. There is evidence that vegetation, including mangroves, located both on the Auschra property and on adjoining property, was removed during the construction of the seawall. Removal of vegetation is typical during installation of a seawall. Based on the existing vegetation at the site, the removed vegetation most likely consisted of a thin line of red mangroves at the waterline with a large stand of Brazilian Pepper behind the mangroves and along the banks of the waterway. There is no evidence that a permit was required for removal of the vegetation on the Auschra property. Applicable administrative rules do not authorize removal of mangroves from adjacent properties unless the property is owned or controlled by the person performing the removal of the vegetation or unless the land is adjacent State-owned land lying waterward of the parcel of property on which the exempt activity is occurring. There is no evidence that a permit was issued for removal of the vegetation on the adjoining property. There is evidence that as constructed, the seawall encroaches onto the property of adjoining owners and that during construction, property of adjoining owners may have been excavated. There is no evidence that the seawall encroaches onto the property of the Petitioner. The evidence fails to establish that the amount of material excavated during construction of the seawall was excessive in relation to the size of the structure. Ms. Hellenbach conducted a site visit after the construction of the seawall. Based on her review of the seawall construction and her knowledge of the application, Ms. Hellenbach determined that the project continues to be exempt from permitting requirements.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a Final Order dismissing this case. DONE and RECOMMENDED this 24th day of April, 1996 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 April, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1072 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected, subordinate. Rejected, unnecessary. 5-6. Rejected, subordinate. 7-8. Rejected. Recitation of testimony is not Finding of Fact. 9. Rejected, unnecessary. The greater weight of the credible evidence establishes that the location of the seawall and quantity of dredged material do not render the project non-exempt. 10-12. Rejected. Recitation of testimony is not Finding of Fact. 13-14. Rejected, cumulative. Rejected as to statement that "the property did not have sufficient area on the canal to build a seawall." Not supported by greater weight of the evidence. Rejected. Recitation of testimony is not Finding of Fact. Rejected, unnecessary. 18-22. Rejected, subordinate. 23-24. Rejected, unnecessary. 26-27. Rejected, fails to comply with Rule 60Q-2.031(3) requiring citation to transcript. 30. Rejected. The evidence that a "new waterway" was dredged is insufficient to be persuasive. Respondent DEP The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 12. Rejected, unnecessary. 17. Rejected. There was evidence presented as to ownership of adjoining property. 24. Rejected, subordinate. 26. Rejected, unnecessary. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Robert E. Turffs, Esquire 227 South Nokomis Avenue South Post Office Box 1767 Venice, Florida 34284-1787 Kurt Auschra Hinter der Linah 50 21614 Buxtehude Germany Christine Stretesky, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee. Florida 32399-2400
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 deny the application of the Appellant, Sun Watch, Inc., for a five foot building height variance for its property located at 670 Island Way, Clearwater, Florida. (The variance is required as a result of the Appellant's desire to build a 95 foot high condominium on the property.)
Findings Of Fact On or about August 23, 1993, the Appellant, Sun Watch, Inc. (Sun Watch or the Appellant), applied to the City of Clearwater Development Code Adjustment Board (the Board) for a five-foot building height variance to allow it to build a 95-foot tall building where zoning regulations limit buildings to 90 feet in height. The building, as presented in the application, would have nine stories over a one-story parking garage and would accommodate 96 condominium units, each 3000 square feet. The application and supporting evidence presented to the Board was to the effect that the building cannot be constructed as planned without the five-foot height variance because: (1) eight feet of clearance from floor to ceiling is required in order to successfully market the planned luxury condominuim units; (2) the building's post-tension slab construction, designed for greater structural strength to withstand more severe wind storms, requires eight-inch thick slabs per floor; and (3) the heating and air conditioning system recommended for the building requires one foot per floor for the duct work, furring, drywall and finishing. The City of Clearwater Development Code (the Code) requires only a minimum of seven feet, six inches, clearance between the floor and ceiling of the Sun Watch residential units. In addition, only seven feet, even, of clearance is required in common areas, such as corridors within the units. If the heating and air conditioning duct work is placed in the corridors, or if the ceilings in the other parts of the residential units are lowered to the seven foot, six inch, minimum, no variance would be required, according to the application and supporting evidence presented to the Board. But the Appellant proved: (1) that the desirable large rooms planned for the perimeter of the residential units were too large to be effectively heated and cooled from the common areas alone; (2) that, notwithstanding the Code allowances, seven foot ceilings are too low for optimal heating and cooling because the air coming from the ceiling registers would blow down too directly onto the unit dwellers; and (3) that people would not buy luxury condominium units with smaller rooms or with lower ceilings. Notwithstanding the logic of the Appellant's arguments, as far as they go, it is clear that the primary purpose of the large size of the condominium units planned for the Sun Watch building, both in square footage and in ceiling height, is to secure greater profits from the sale of luxury condominiums, instead of smaller, less than luxury units. The primary purpose of the ninth story of residential units is to achieve the maximum density for which the property is zoned, with the commensurate higher profits, instead of a lower zoned density. In fact, the design which necessitated the building height variance application in this case was drawn at the request of the developer, whose instructions to his architect were to design a building to utilize the maximum allowable density on the property. In addition, the evidence at the final hearing established that, in response to the developer's instructions, the developer's architect drew the design which necessitated the building height variance application in this case without knowledge of the 90-foot building height restriction. Only after the design was drawn did the architect realize that the design would necessitate a variance from the building height restriction. The evidence at the final hearing was that there were inaccuracies in the building design on which the variance application was based. Instead of a foot per floor for the duct work, furring, drywall and finishing, actually 13 to 14 inches would be required. In addition, instead of the eight feet, nine inches, in the design for the parking garage and slab under the first floor, actually nine feet, eight inches, will be required. Based on those facts, instead of the five foot variance in the application, actually a variance of between nine feet, eight inches, and ten feet, five inches, would be required to build the proposed nine story, 96 unit, condominium with one story parking garage. (This actual variance requirement takes into account Section 42.23(5) of the Code, which allows parapet walls to extend up to 30 inches above a building height limitation; the Sun Watch building has a four foot parapet wall, but its variance application did not seem take advantage of the extra 30 inches allowable under the Code.) No application for the variance actually required for the proposed Sun Watch building ever has been presented to the Board for approval. There was some evidence that the additional height of the proposed Sun Watch condominium would interfere with the view of some of the neighbors in the building immediately to the north, that the reduced light reaching the building immediately to the north will adversely affect the heating and cooling of the building, causing increased electric bills, and that the proposed Sun Watch condominium would impair the value of the units in the building immediately to the north. The application and evidence did not clearly prove the contrary.
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 appeal is whether the decision of the City of Clearwater Development Code Adjustment Board denying Petitioner's application for variances for certain signage on his property is supported by the evidence in the record, or whether it departs from the essential requirements of law. See Section 137.014(f)(3), City of Clearwater Land Development Code.
Findings Of Fact Petitioner is the owner of certain property located at 1923-1943 U.S. Highway 19 North, Clearwater, Florida (Section 05-29-16, M&B 23.05). This property is zoned CC (Commercial Center), and is the site of a strip shopping mall. On or about March 23, 1989, Petitioner applied for three variances for the subject property, as follows: 243 square feet to permit a total of 411 square feet of property identification signage; 13.5 feet in height to permit a 33.5 foot high pole sign; permission for a roof mounted sign. The Development Code Adjustment Board denied Petitioner's application for variances on April 13, 1989, and Petitioner timely filed this appeal of the Board's decision. Under the provisions of the City of Clearwater Land Development Code applicable to the Petitioner's property, only 168 square feet of property identification signage and pole signs not to exceed 20 feet in height would be allowed without a variance, and roof signs of any kind are prohibited unless a variance has been granted. Several months prior to Petitioner's filing for these variances, a roof sign was erected on the building located on the subject property. This roof sign consists of individual letters spelling "Harbor Square", which is the name of this shopping mall. The letters are from 3 feet, to 4 feet 9 inches in height, and span a distance of 34 feet 9 inches in width. The roof sign replaced a property identification sign at the right of way which previously carried the name of the shopping center, but the space on the pole sign previously used to identify the mall was not eliminated. That space is now used to identify a uniform business in the mall. Petitioner is seeking these after the fact variances to authorize the roof sign which has already been erected, and to approve the height of an existing pole sign. An enforcement action initiated by the City is pending this variance determination. Tenants in the Harbor Square mall testified that the change in signage has made the mall more visible and accessible, and several of their customers have commented that their businesses are now easier to find. The tenants feel that this change in signage will benefit their businesses financially. The Development Code Adjustment Board has previously granted variances from the signage limitations imposed by the Code, but the evidence produced at hearing indicates that none of these variances were granted after the fact. The two variances which were approved for roof signs were based upon a finding of conditions unique to the property which created a hardship for the applicant. In both instances, the Board found that the applicant had not created his own hardship, but that it arose from the size or positioning of the property involved in each application. In this case, nothing unique about the property can be found. The applicant has caused his own problems by allowing a sign to be erected without first obtaining a permit or variance. The Petitioner urges that it was the responsibility of his sign contractor to obtain all necessary permits or variances, and that the contractor did not inform him that a variance was necessary before he erected the sign. However, neither the sign contractor nor the Petitioner himself was present to testify, and therefore, there can be no finding with regard to his credibility, or with regard to whatever arrangement he had with the contractor. In any event, as the property owner seeking a variance, Petitioner has failed to establish any basis for a finding of a hardship or circumstance unique to his property, other than the fact that he allowed this sign to be erected without obtaining the necessary approvals from the City.
Findings Of Fact Fred Thomas owns a home and lot on the beach in Clearwater at 730 Eldorado Avenue, Mandalay Subdivision, Block 2, Lot 8, now zoned RS-8 (single family residential). The Thomas house was built 30 years ago when front yard setbacks for the area were only 10 feet and there were no open space requirements. Now the front setback in the area is 25 feet, and Section 135.029(8) of the Clearwater Land Development Code now requires lots in RS-8 zones to have a minimum open space of 35 percent of the lot and 40 percent of the front yard. There are many properties in the area of the Thomas house that maintain pre- existing non- conformities to the current setback and open space requirements. The Thomas property, in addition to the pre-existing setback non-conformity, had only 26 percent open space overall and no open space at all (all concrete) in the front yard. In 1987, Thomas undertook renovations to his house. During construction, Thomas' concrete front yard deteriorated from additional cracking, and he decided to replace the concrete with brick pavers. He removed the concrete but then was required to get a building permit for this work. The building permit was not granted because the placement of brick pavers in the front yard violated the open space requirements. Thomas applied for a variance to replace the concrete with brick pavers and later modified the application to be allowed to have 29 percent lot coverage and 12 percent front yard coverage with open space. The modified application was denied by the DCAB after hearing on February 11, 1988, and Thomas took this appeal. Thomas also filed another variance application to be allowed to have 30 percent lot coverage and 16.8 percent front yard coverage with open space. This application was heard on March 10, 1988, and this time the DCAB granted the application. The only open space required under the granted variance not required under the denied variance application is a 10' by 10' square on the far left side of the front yard (facing the house). Thomas claims that this open space requirement prevents him from using a narrow concrete alley to the left of the house (and perhaps the concrete apron in the back of the house) for guest parking, leaving him with a two-car garage and the brick paved area directly in front of the garage that could accommodate two cars but would block the garage. Lack of guest parking would create a hardship of sorts on Thomas. There is no on-street parking in the area, and the Clearwater Police vigorously patrol and ticket violators in the area. The brick paved spaces in front of the garage could be inconvenient to the owners of the vehicles parked in the garage (probably the Thomases) and conceivably could block the cars in the garage temporarily under some circumstances. However, Thomas is incorrect in his presumption that guest parking in the alley and back of the house would be blocked by the 100 square feet of open space required under the granted variance but not under the denied variance application.
