Findings Of Fact Mary G. Realty owns Lots 57-63 and the north 10.25 feet of Lot 64, Clearwater Beach Park, which occupy the southwest corner of Mandalay Avenue and Baymont Street on Clearwater Beach. For many years this property was operated as a gasoline service station until the death of the owner-operator and its purchase by Mary G. Realty in December, 1983. The property is zoned CG and has been so zoned for many years without change to the present. The gasoline station building is still located on the property and the proposed development will include use of that structure, which is approximately 40 feet by 60 feet. Applicant proposes to construct and operate a two-story office/retail store building with three large apartments on the second floor. The proposed addition would add 16 feet to the south side of the existing building extending 80 feet eastward from the west line of this building, with the eastern 40 feet of this extension 25 feet wide. It is also proposed to add an additional 70.7 feet to the north side of the existing building. As proposed, the first floor would occupy 6,680 square feet and the second floor would contain 5,878 square feet. Variances approved by the zoning board include a 3.5 foot setback on the rear property line to allow the property additions to follow the line of the existing structure; a 6-foot setback on the south property line; a 15-foot setback on 25 feet of the proposed addition from Mandalay Avenue; no buffer zone between parking and street right-of-way on both Mandalay Avenue and Baymont Street; and a variance of 32 parking spaces. Applicant's proposal approved by the board is to provide 25 parking spaces, a variance of 32 in the parking space requirement for the structure proposed. Petitioner's property abuts the property owned by Mary G. Realty and the structure on that property, which was built before the present zoning laws became effective, is nonconforming with the zoning regulations. In its application for the variances here under review Mary G. Realty requested a zero setback from the north property line, which was withdrawn; a 3.5-foot setback at the rear of the property in lieu of the 10-foot requirement for commercial general, and the board approved 3.5 feet; a one-foot setback on south property line in lieu of the 10 feet required, and the board approved a 6- foot setback; a 15-foot front setback in lieu of 20 feet required by the code, and the board approved 15 feet; a variance of 48 parking spaces, which was reduced by applicant's withdrawal of zero setback for north property line, resulting in a smaller size structure requiring less parking spaces and the addition of parking spaces from this same reduction, and the board approved a variance of 32 parking spaces; and a zero buffering requirement abutting Mandalay Avenue and Baymont Street, which the board granted. This property is unique only in that it is located in an area in which a large percentage of the buildings are nonconforming. The property is a trapezoidal shaped parcel having the following dimensions: south property line 100.47 feet, west property line 167.52 feet, north property line 100.77 feet, and east property line 178.55 feet. One of the principal factors at issue here is the requested variance in parking spaces required. Applicant purchased the property due to the pending expiration of its existing business lease and intends to move its business to the new location and provide additional office and shop space with apartments on the second floor, thus having a combined commercial and residential structure. There are no shopping facilities on Mandalay Avenue north of State Road 60; the area is mostly built up with motels, hotels, apartments, and restaurants; and the shopping customers are generally the same people who walk along Mandalay. Accordingly, there is less need for parking to accommodate a shop in this area than would be required in another part of Clearwater, although the magnitude of this difference has not as yet been determined. Witnesses testified to the need for additional shopping facilities north of State Road 60; to the fact that few people in automobiles shop on North Clearwater Beach; and, while functioning as a service station, no parking spaces were provided on this property. This property was purchased by Mary G. Realty for $295,000 and evidence was presented that less building space than proposed would not make the purchase economically feasible. However, insufficient evidence was presented to support this conclusion. This factor is given little weight because the purchaser knew, or should have known, of the zoning restrictions before the property was purchased. Most of the property in the vicinity was developed long before the current zoning regulations were adopted and the structures thereon are generally nonconforming both with respect to setbacks and parking, even though they offer rooms to transients who arrive in automobiles. These nonconforming structures result in some of the buildings in the vicinity being built right to the property line.
The Issue Whether or not the Petitioners, Guy T. Selander and Henry W. Harris, should be granted an "after the fact" construction permit in accordance with Section 253.124(7)(a), F.S., for the retaining wall which has been constructed on or near their property located on Beauclerc Point, Duval County, Florida.
Findings Of Fact This cause came on to be heard upon the Petitioners' request for an "after the fact" construction permit for a retaining wall which had been built on or near their property. The specific property spoken of is two lots located on Beauclerc Point, Duval County, Florida. These lots are shown as numbers 21 and 22 found on Petitioners' Exhibit No. 15, admitted into evidence. This is a replat based upon a survey of November 28, 1923. The exhibit shows the retaining wall superimposed on the survey. A more specific showing of the placement of the retaining wall on lots 21 and 22 may be found in Petitioners' Exhibit No. 16, admitted into evidence. Petitioner, Guy T. Selander is the owner of lot number 21, which lot contains his residence. Henry W. Harris is the owner of lot No. 22 and there are no permanent buildings located on that lot. Dr. Selander built a home on lot No. 21 in the years 1974 through 1975. Prior to building the home he was of the opinion that he needed to protect the front of the lot which faces the St. Johns River. Dr. Harris was also interested in protecting his lot. Between them it was determined that they would build a retaining wall to protect their lots. The two lots are located on a bluff which drops approximately 20 to 25 feet down to the level of the river. The St. Johns River is a navigable river. Prior to commencing the construction of the retaining wall, the Petitioners, upon the suggestion of a friend of Dr. Selanders, applied to the City of Jacksonville, Duval County, Florida for a building permit. The application for permit was made on January 19, 1973. The Petitioners were granted a permit on January 19, 1973, entitled "miscellaneous permit", No. 495. A copy of the permit is a part of Petitioners' Exhibit No. 1, admitted into evidence. The Petitioners at that time did not seek further approval of the construction of their retaining wall, by the state authorities or the United States Corp of Engineers. In constructing the retaining wall the Petitioners contemplated the use of fill, some of which was to be placed in the river proper. Some fill was placed in the river at this point in time which constituted an obstruction or alteration of the natural flow of the St. Johns River. The apex of the retaining wall and the southwest section of the retaining wall, was constructed waterward of the existing bulkhead line found on the neighboring property located to the north and south of the subject two lots. The apex of the retaining wall, as can be seen in Petitioners' Exhibit No. 15, lies at the approximate center of the two lots. At the time the permit was requested of the City of Jacksonville and the retaining wall was constructed, which construction was between January, 1973 and September, 1973, Section 253.124(1)(2), F.S., required that the permit application be approved by the Board of Trustees of the Internal Improvement Trust Fund, prior to any construction. As indicated, this approval was not received prior to commencing construction and in September, 1973, officials of the State of Florida and the U.S. Corp of Engineers came to the property and discovered that the wall was being constructed. At this point in the construction, the bottom of the river where the retaining wall was being placed had been smoothed out and sand bags filled and laminated, such that the wall was in place. Then "riprap", broken concrete, was being placed landward of the retaining wall. The officials of the two governmental bodies told the Petitioner Selander that he would need approval of the Board of Trustees of the Internal Improvement Trust Fund and of the U.S. Corp of Engineers to construct that wall. Prior to undertaking the project of constructing the retaining wall, the land along the toe of the bluff had been dry land, but as established before, some fill had been placed in the river, with the majority of that fill being placed at the southern most point of the two lots. This location is further described as being the point where the retaining wall makes an approximate right angle and comes back to the southern boundary line of lot No. 22. The retaining wall and the Selander residence may be seen in Petitioners' Photographic Exhibits No. 9 and 11, admitted into evidence. The condition of the shoreline on lots No. 21 and No. 22 prior to the construction of the retaining wall and placement of the fill may be seen in Petitioners' Photographic Exhibit No. 8, admitted into evidence. This photograph was taken somewhere in the time period of 1970 through 1971, and shows water of the St. Johns River at a place on the lot fronts that was later filled in. The photograph, Petitioners Exhibit No. 8, also shows that the retaining wall had been constructed waterward of the mean high waterline. Subsequent to the conversation with the state and federal officials, the Petitioners filed a request for an "after the fact" permit. This permit request was filed on November 1, 1973 and is found as Petitioners' Exhibit No. 1, admitted into evidence. The Petitioners stopped working on the project and did not recommence until after receiving the recommended approval of the City of Jacksonville, which is found in Petitioners' Exhibit No. 2, admitted into evidence, an August 16, 1974, letter from the Director of Public Works of the City of Jacksonville. This permit letter is conditioned upon the approval of the Trustees of the Internal Improvement Trust Fund and of the U.S. Army Corp of Engineers. From that point there were various requests made by the agencies of the state, which were complied with by the Petitioners. Additional work was done on the retaining wall based on receipt of a copy of a letter from Robert W. Hall, Administrator of the Dredge and Fill section of the State of Florida, Department of Pollution Control. This letter is Petitioners' Exhibit No. 6, admitted into evidence and is dated October 31, 1974. The letter indicates the recommended approval of the Department of Pollution Control of the project conditioned upon the installation of "riprap" material waterward of the retaining wall, and pending the Trustees' approval. The principal questions being addressed by the agencies were: Whether or not it would be more detrimental to the marine biological resources to remove the construction and fill. If the answer to the first question was yes, then what was the nature of the erosion of the bluff line, was it slow and imperceptible or was it avulsion or artificially induced. During the course of the investigation of the application for permit, review of the project was made by the Department of Natural Resources. In addition, a field inspector with the Board of Trustees of the Internal Improvement Trust Fund, Jeremy Tyler, went to the project and examined the retaining wall and surrounding area on November 18, 1974. His inspection revealed that the water on the property located south of the Petitioners' property touched the bluff of the bank at high tide. The water on the property south of the Petitioners' property was lapping against the bulkhead at the base of the bluff. The witness noted that the point of the bluff in that general area was located on the Harris and Selander property. According to this witness's observation, the mean high waterline on November 18, 1974 would have been an approximate diagonal line going from the adjacent north bulkhead line to the adjacent south bulkhead line. On November 3, 1975, Jerome Kelly, a subdistrict biologist for the State of Florida, made an inspection of the property. He felt that the only adverse effect on the biological resources that would occur with the removal of the retaining wall would be removal of a stand of typha, also known as cattails, which was waterward of the north end of the retaining wall. A memorandum of his observations is found as Respondent's Exhibit No. 5, admitted into evidence. The Petitioners employed Dr. Joe A. Edmisten, an ecological consultant. The results of the examination of the property, which was made by Dr. Edmisten may be found as Petitioners' Composite Exhibit No. 17, admitted into evidence. Dr. Edmisten and his assistant took soil samples and cores in the general area and examined various aquatic and wetland plants in the area of the project. It was concluded by Dr. Edmisten that soil had washed from the bluff line before and this erosion was prohibiting the health of certain of these plants. Additionally, Dr. Edmisten felt that the retaining wall was assisting in the development of these plants and the development of periphyton and sessile animals. He felt that the removal of the retaining wall would cause the destruction of the aquatic plants, terrestial plants and animals, and aquatic animals and the substrate. The report does not speak to the issue of the long term effects of removing the retaining wall landward of its present placement and landward of the mean high waterline; however, his testimony at the hearing seemed to suggest that a properly constructed retaining wall in such a location would not be inappropriate. This is in keeping with the testimony of Jerome Kelly who didn't feel that removing the wall and placing it in a location landward of the mean high waterline would damage the ecological system. Additionally, it can be seen that if the wall was moved landward of its present location there would be a greater volume of water for marine life to exist in. The second consideration that was addressed in the discussion of the "after the fact" permit was the question of whether the erosion of the property found in the lots of the Petitioners had transpired through imperceptible erosion or by specific avulsion or artificially induced erosion. Testimony was offered by Petitioner Harris, which appears as a deposition in lieu of in hearing testimony. Affidavits were also submitted to the Respondent by persons living in the vicinity of the Petitioners' property. These affidavits may be found as part of the Edmisten report which is Petitioners' Exhibit No. 17, admitted into evidence. The Petitioners tried to demonstrate that the loss of land was caused by avulsion due to hurricane Dora which occurred in 1964 and through various northeastern storms. It is clear that the property line has receded since the replat of 1923 shown in Petitioner's Exhibit No. 15, admitted into evidence. It is unclear however, whether this erosion was caused by avulsion, imperceptible erosion or artificially induced erosion. Therefore, the Petitioners have failed to demonstrate their entitlement to reclaim land beyond the mean high waterline. Based upon an examination of the facts it has been demonstrated that it would not be more damaging to the environment or the marine resources protected by Chapter 253, F.S., to cause the removal of the fill which has been placed waterward of the mean high waterline, as opposed to granting an "after the fact" permit.
Recommendation It is recommended that the "after the fact" construction permit sought by the Petitioners under authority of Section 253.124(7)(a) F.S., be denied. DONE AND ORDERED this 24th day of June, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Almer W. Beale, II, Esquire South 1014, Barnett Bank Building Jacksonville, Florida 32202 Vance W. Kidder, Esquire Department of Environmental Regulation 2562 Executive Center Circle, East Tallahassee, Florida 32301
The Issue The issue in this case is whether Falconer is authorized to keep finger piers, a wooden deck and an enclosed walkway, which were constructed without permits within the landward extent of Elligraw Bayou, a Class 3 waterbody located in Sarasota County, upon the payment of a $3600 penalty. Specifically, the issue is whether the piers, deck and covered walkway, as built, would have been permitted by the Department if properly applied for, and whether Falconer has provided reasonable assurances that these structures, and the alteration of mangroves in connection therewith, will not violate state water quality standards, and will not be contrary to the public interest as provided in Section 403.918(2), Florida Statutes. POSITION OF PARTIES This controversy between the parties arises out of the entry of a Consent Order between the Department and Falconer, to which the County objects. It is the County's position that the Department abused its discretion by attempting to authorize unpermitted activities without requiring compliance with permitting criteria and standards. Specifically, the County contends that Falconer has failed to provide, and the Department has not required, reasonable assurances based on plans, test results or other information that the structures in or over Elligraw Bayou, as well as Falconer's alteration of mangroves, will not violate state water quality standards, and will not be contrary to the public interest. The Department and Falconer contend this is strictly an enforcement case which settles claims of violations the Department had against Falconer, and that this is not a case involving a permit application. The Department urges that it exercised prosecutorial discretion in the procedure that it followed in settling this enforcement matter.
Findings Of Fact The following findings of fact are based upon the stipulation of the parties: The Department is the administrative agency of the State of Florida charged with the responsibility to protect Florida's air and water resources, and to administer and enforce Chapter 403, Florida Statutes, and the regulations promulgated thereunder contained in Chapter 17, Florida Administrative Code. Falconer is the record owner of real property at the northwest corner of the intersection of Southpointe Drive and U.S. Highway 41 in Sarasota County, being in Section 21, Township 37 South, Range 18 East. Sarasota County is a chartered political subdivision of the State of Florida with all powers provided by law. Sarasota County has standing to bring this action. In May of 1963, Sarasota County acquired from Falconer's predecessor in title a perpetual nonexclusive easement over certain lands upon the property described in Finding of Fact 2. In July of 1973, Falconer acquired title to the property described in Finding of Fact 2, subject to the easement described in Finding of Fact 4. Falconer's property is located within the landward extent of Elligraw Bayou, which is a Class 3 state water as defined in the Florida Administrative Code, but the water does not bear the designation of Outstanding Florida Water as defined in the Florida Administrative Code. Unless exempt, a permit from the Department is required to dredge or fill within the landward extent of Elligraw Bayou, pursuant to applicable law and rules. Falconer received Permit No. DF58-32115-3E, dated March 3, 1981, to construct a commercial floating dock covering approximately 1,856 square feet on Elligraw Bayou. He did not build the floating dock to the size and configuration approved in the permit described in Finding of Fact 7. Falconer caused or allowed the installation of twelve stationary finger piers and one wooden deck within the landward extent of Elligraw Bayou between June 1981 and November 1982. However, he did not have a permit from the Department to construct these twelve finger piers and the wooden deck within the landward extent of state waters and Elligraw Bayou. Falconer caused or allowed the construction of an enclosed walkway over a drainage easement within the landward extent of Elligraw Bayou, and parts of the poured cement base foundation of the walkway are also within the landward extent of Elligraw Bayou. The cement was poured around the base of two mangroves, and a total of four mangroves were altered during construction. He did not have a permit from the Department for any dredging and/or filling within the landward extent of Elligraw Bayou in connection with the construction of the enclosed walkway described in Finding of Fact 11. Falconer did not have a permit to alter mangroves. The Department did not require, and Falconer did not submit any plans, test results or other information regarding the impact of the twelve finger piers, wooden deck, the enclosed walkway or the altered mangroves upon the water quality of Elligraw Bayou. Additionally, the Department did not require, and Falconer did not submit a hydrographic study demonstrating the flow of water within Elligraw Bayou, predicting the effect of dredging and/or filling on the flow of water, or predicting areas of erosion or shoaling. On June 3, 1986, the Department and Falconer entered into a Consent Order regarding the unpermitted activities described in Findings of Fact 8 through 13, above. The County timely filed a Petition for Formal Hearing challenging the entry of the above-referenced Consent Order. Respondent Falconer has complied with the requirements of the Consent Order. The County did not file a petition challenging the original Department permit referred to in Finding of Fact 7. The following findings of fact are based upon the evidence presented at hearing, as well as the demeanor and credibility of witnesses: On February 5, 1986, Eva Bailey of the Department's enforcement section inspected Falconer's property, and she again inspected the site on November 12, 1986. Regarding the finger piers, Bailey observed that there had been no adverse impact on the littoral zone, and no water quality or other environmental damage as a result of their construction. She similarly found that alteration of mangroves during the construction process did not result in any observed environmental damage. Only the columns associated with the walkway encroach upon the Department's jurisdiction, and Bailey found no significant adverse impact on the littoral zone resulting from the walkway construction. In fact, she found that the walkway support columns are providing a habitat for water species. According to Bailey, there has been no shoaling or erosion as a result of Falconer's construction, there has been no adverse affect on fish or wildlife, navigation has not been impeded, and there has been no damage to the public health, safety or welfare. Bailey recommended that the Department enter into an agreement with Falconer after discussing the matter with James R. Brice, a supervisor with the Department at the time. He had inspected the area in April 1985, and concluded that it was permittable. Brice confirmed Bailey's testimony that Falconer's construction has not resulted in erosion, shoaling, damage to the public health, safety or welfare, damage to fish or wildlife, a degradation of water quality, or any impairment to navigation. At the time of his inspection in April 1985, Brice referred the matter to the enforcement section because the walkway footings had been built in state waters without a permit. Neither a violation warning notice, or a formal notice of violation, were ever issued by the Department to Falconer regarding this construction, according to Craig McArthur, Bailey's supervisor in early 1986 when she conducted her inspection and recommended the issuance of the Consent Order. Thus, enforcement proceedings were never formally initiated by the Department against Falconer. Rather, Brice visited the site in April 1985 in response to complaints, and requested the inspection which Bailey conducted in February 1986. Since both Bailey and Brice found conditions which lead the Department to conclude that the construction was permittable, an agreement with Falconer was pursued by the Department which then lead to the Consent Order. Under the terms of the Consent Order, Falconer would be authorized to retain the finger piers and walkway without any modifications, in return for payment of $3600. McArthur testified that the permittability of construction is an essential factor in, and precondition for, any Consent Order which does not require modifications. Falconer's property is located at the enclosed end of Elligraw Bayou. A restaurant, shopping area, and spaces for associated parking are located on the upland portion of the property. Falconer has leased the finger piers, as well as the area surrounding certain floating docks not at issue in this case, to a sailboat sales company for use as a marina. There are no fuel facilities for boats and live-aboard boats are not permitted on the leased premises. Due to the controversy and uncertainty concerning the continued use of the finger piers, the sailboat sales company will not renew its current lease, but Falconer testified he intends to lease the facility to another sailboat sales company. The cost to construct the finger piers was approximately $11,000, and construction costs associated with the enclosed walkway were approximately $75,000. The walkway connects the restaurant with the piers, floating docks and parking area, and was constructed, in part, over the County's drainage easement pursuant to County building permit 114-U in late 1984 and early 1985. Elligraw Bayou was deeply dredged by the County in 1979. Its banks are vertical without any natural sloping. It serves as the receiving body for a 660 acre drainage basin for water flowing from highway culverts and upland drainage ditches. The water in the Bayou is murky and one cannot see the bottom due to runoff from U.S. 41 and surrounding uplands which flows into Elligraw Bayou through an open drainage ditch. During a ten year storm event, 150 to 160 cubic feet per second of runoff would be expected to flow into the Bayou. According to Charles Goode, Sarasota County Engineer and Director of Transportation, the covered walkway which Falconer has constructed will inhibit the County's future maintenance dredging of Elligraw Bayou and the drainage ditch leading to the Bayou. The use of a drag-line for maintenance dredging of the Bayou will no longer be possible, as it was in 1979. Regular maintenance of drainage ditches is essential to maintain the natural flow of runoff and prevent upland flooding. The County will no longer be able to use track mounted equipment to maintain the ditch leading into Elligraw Bayou, but other, more labor intensive, methods are available. The County does not regularly maintain this ditch. Manatees have been sited in the general vicinity of Elligraw Bayou, although there is no evidence of any sitings in the Bayou itself. In approximately 1982, the Department required Falconer to place signs in the Bayou to warn boaters about manatees, and Falconer complied. The manatee is an endangered species and is attracted to fresh water, such as exists in the Bayou. Increased motor boat traffic is a danger to manatees, but there is no evidence of any increase in such traffic due to Falconer's construction. The Director of Natural Resources Management for Sarasota County, Jack Merriam, testified that he has not heard of any reports of navigation problems in Elligraw Bayou, or seen any evidence of accidents since Falconer completed the construction here at issue, despite the fact that there is only a thirty foot width available for navigation in the Bayou at one point. However, as an expert in the impact on navigation of coastal structures, Merriam testified that a thirty foot area would not be a safe area in which to navigate under certain conditions, and that the finger piers present significant-navigational problems. No study has been made of boating traffic in Elligraw Bayou, however, to determine if unsafe conditions actually exist in this Bayou. Falconer cooperated fully with the Department throughout these proceedings in seeking its authorization for the construction here at issue.
Recommendation Based upon the foregoing, it is recommended that the Department issue a Final Order approving the Consent Order which it has previously executed with Ronald W. Falconer. DONE AND ENTERED this 22nd of January 1987 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January 1987. APPENDIX (DOAH Case No. 86-2462) Rulings on Proposed Findings of Fact filed by Sarasota County: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Rejected as cumulative and unnecessary. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. 5 Adopted in Finding of Fact 7. Adopted in Finding of Fact 5. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Adopted in Findings of Fact 11, 24. 13-14 Adopted in Finding of Fact 11. Rejected since this is a conclusion of law. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. 15 Adopted in Finding of Fact 20. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 14. 21-22 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 14. Rejected as irrelevant and otherwise addressed in Finding of Fact 22. 25-34 Adopted in Findings of Fact 14, 21 but otherwise rejected as irrelevant and unnecessary. 35 Adopted in Finding of Fact 23. 36-37 Rejected as irrelevant and otherwise simply a summation of testimony. 35 Adopted in Finding of Fact 7, but otherwise rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 14. Rejected as irrelevant and unnecessary. 41-43 Adopted in Finding of Fact 25. 44-46 Adopted in Finding of Fact 26. 47 Adopted in Finding of Fact 25 but otherwise rejected as cumulative and not based on competent substantial evidence. 45-50 Adopted in Finding of Fact 25. 51-56 Adopted in Finding of Fact 27, but otherwise rejected as irrelevant and unnecessary. Rulings on Proposed Findings of Fact filed on behalf of the Department of Environmental Regulation: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 6. Adopted in Findings of Fact 7-9. Adopted in Findings of Fact 10-13. Adopted in Findings of Fact 14, 15. 5 Adopted in Findings of Fact 16-19. Adopted in Finding of Fact 20. Adopted in Finding of Fact 21. 11-12 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 22. Adopted in Findings of Fact 20, 25. Adopted in Finding of Fact 20. 16-17 Adopted in Finding of Fact 27, but otherwise rejected as unnecessary and cumulative. Adopted in Findings of Fact 20, 21, 25. Adopted in Finding of Fact 22. Adopted in Findings of Fact 20-22. Adopted in Findings of Fact 22, 29. Adopted in Finding of Fact 20. Adopted in Finding of Fact 25. Adopted in Findings of Fact 23, 27. Rulings on Proposed Findings of Fact filed on behalf of Ronald W. Falconer: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Findings of Fact 2, 6. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Findings of Fact 5, 9. Adopted in Finding of Fact 27, but otherwise rejected as irrelevant and unnecessary. Adopted in part in Findings of Fact 11, 24, but otherwise rejected as irrelevant and unnecessary. 12-13 Adopted in part in Finding of Fact 29, but otherwise rejected as Irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Adopted in part in Findings of Fact 14-16, but otherwise rejected in Finding of Fact 22. Adopted in Findings of Fact 14-16. Adopted in Findings of Fact 15, 20-22, 29. 15-20 Adopted in Findings of Fact 20, 21. Adopted in Findings of Fact 20, 21, 25. Adopted in Findings of Fact 20, 21. Adopted in Findings of Fact 20, 21, 25. Adopted in part in Finding of Fact 24, but otherwise rejected as irrelevant. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 24. 27-25 Rejected as irrelevant and unnecessary. 29-31 Adopted in part in Findings of Fact 23, 25, but otherwise rejected as irrelevant and unnecessary. Adopted in Finding of Fact 4. Adopted in Finding of Fact 26. Rejected as irrelevant and unnecessary. COPIES FURNISHED: Wallace L. Storey, Esquire David M. Levin, Esquire P. O. Box 5 Sarasota, FL 33575 David K. Thulman, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 William M. Hereford, Esquire 1299 South Tamiami Trail, #1233 Sarasota, FL 33579 Dale Twachtmann Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
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 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.
Findings Of Fact Antonios Markopoulos, Appellant, applied for seven variances on property located at 200 Coronado Drive, Clearwater, Florida, to allow the construction of a 7 to 9 story parking garage covering the property from lot line to lot line. The property in question is a 95 feet x 105 feet parking lot adjacent to a hotel, shops and restaurants owned by Appellant. The first waiver requested was of the minimum lot size of 150 feet on which to build. Since this property was unique in that regard and could never attain the 150 feet minimum dimension, the Board granted that variance. The other six requests for variances involved setbacks and open space requirements. Appellant proposes to build a parking garage with two elevators to lift cars to the various parking levels with the building extending to the lot lines in all four directions. The hotel, restaurants and stores located at this site and owned by Appellant are nonconforming uses. The hotel has 86 rooms and if built today would require a minimum of 86 parking spaces. The stores and restaurants would require additional parking spaces that are now not available. Appellant proposes to construct a garage with approximately 340 parking spaces which he contends are the minimum needed to provide adequate parking for patrons at the hotel, stores and restaurants. At the hearing before the Board, Appellant contended that the parking garage would also serve to relieve parking problems at other establishments in the vicinity. Appellant proposes to have parking customers drive up a ramp through a ticket machine which will dispense a ticket which can be validated at the hotel, restaurants or shops. The car will then be parked by attendants who will drive the car onto an elevator to lift the car to a floor with parking space. This clearly indicates that Appellant is proposing to construct a parking garage which will be open to the general public. Appellant presented testimony that if the setbacks required by the Code were followed on all sides, there would be insufficient square feet per floor to make the parking garage financially feasible. He also presented testimony of the City of Clearwater Traffic Engineer to the effect that construction of a parking garage at this location would not create a traffic problem. Although most, if not all, of the property surrounding Appellant's property are nonconforming with less setbacks than are required by the existing code, none of these properties have been covered lot line to lot line with a structure or structures. The primary emphasis of the evidence submitted by Appellant is that there is insufficient parking at Clearwater Beach, and erection of a parking garage will do much to alleviate this problem.
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.
