The Issue Whether the construction activity was begun within the 45 day period within which the issuance of the permit by the city could have been challenged and was not in compliance with local codes and ordinances.
Findings Of Fact The Department of Community Affairs is the state land planning agency empowered to enforce the provisions of Chapter 380, Florida Statutes, and the rules promulgated thereunder. (Section 380.031-.032, F.S.). Billy Marlar owns and operates the Rainbow Motel, located at 123 Water Street, Apalachicola, Florida. (R. 9) Petitioner Marlar is the record title holder of wharf lots 13 and 14 in the City of Apalachicola according to the map or plat commonly used. Lots 13 and 14 are held in the name of Rainbow Motel and Marina. Lots 13 and 14 are located within the Riverfront District, as identified in the Land Development Code of the City of Apalachicola. (R. 57) Old plats reflect that the dimensions of wharf lots 13 and 14 are 206.54 feet wide and approximately 70 feet deep, or 14,250.75 square feet. Over the years, sand has accreted to the eastern boundary of these wharf lots and for the past 35 years there have been improved structures on the eastern boundary of the property. Although the Franklin County tax rolls reflect wharf lots 13 and 14 as being approximately 200 feet wide by 180 feet deep, the Rainbow Hotel is built on pilings over water or land which is tidal. Inspection of the property reveals that the water line of the Apalachicola Bay lies approximately at the western edge of the main portion of the hotel. On May 13, 1988, Billy Marlar applied for a permit to construct a concrete parking lot on wharf lots 13 and 14 in the City of Apalachicola. (Rainbow Exhibit 2) On May 16, 1988, the Apalachicola Planning and Zoning Commission considered Mr. Marlar's application at a special meeting, and granted the permit application. (Rainbow Exhibit 9). On May 25, 1988, Permit No. 1172 was forwarded to the Department of Community Affairs for consideration as a development order. (Rainbow Exhibit 2). Prior to the permit being forwarded to DCA, construction of the parking lot commenced. A portion of the parking lot was poured on May 23, 1988, and the remainder of the parking lot was completed within 2 - 3 weeks of that date. (R. 50-51, 53). The Land Development Code provides that lot coverage within the Riverfront District shall contain a minimum of 50 percent pervious surface. The term "pervious surface" means that water will percolate through that surface that covers the earth. (R. 59). The concrete parking lot constructed by Billy Marlar on wharf lots 13 and 14 is not a pervious surface. (R. 70). The dimensions of the portion of the parking lot on lots 13 and 14 are 78 feet along the northern boundary, 205 feet along the eastern boundary, 78 feet along the southern boundary and 205 along western boundary. There is a planter in the southwestern corner which has approximately 704 square feet. The proposed finding submitted by the Department states that the parking lot contains 12,589.87 square feet, which will be the area used. (DCA Exhibit 1 and R. 71). The dimensions of the pervious surface of the property are based upon the area of the non-tidal portion of the two lots. The dimensions of the non- tidal area of the two lots are determined from resolution of the conflicts in the testimony and evidence presented and an examination of the property. The western boundary is 215 feet; northern boundary is 112 feet; eastern boundary is 215 feet; and southern boundary is 122.5 feet. The total non-tidal area of the two lots based upon these dimensions is 25,208 square feet. (Rainbow Exhibit 3). Although the records of the Franklin County Property Appraiser's Officer indicated the dimensions of wharf lots 13 and 14 were 200 feet wide by 180 feet deep, a substantial portion of the eastern boundary of that area is submerged. (Rainbow Exhibit 3 and 5, R. 32). Conflicting evidence was presented as to the dimensions of the non-tidal property from the street frontage to the mean high water line. The drawings show a meander line along the mean high water line; however, observation revealed water under the majority of the hotel, particularly on the northeast corner. Based upon those observations, the eastern boundary on non-tidal land is computed as a straight line parallel to the western edge of the longest portion of the hotel and five (5) feet to the east of longest portion of the hotel running from southern boundary to the northern boundary. See pencil additions to Rainbow Exhibit 3 made by fact finder after observation of the property pursuant to motion. A portion of the Rainbow Motel and the Pot Restaurant extend over the water. (R. 32 and Rainbow Exhibit 3). A portion of the hotel approximately 21.9 feet by 17.3 feet and 5 feet by 136.32 feet is located on the pervious surface of lots 13 and 14. Approximately 33% of the restaurant, the dimensions of which are 47 by 46 feet, is located on the pervious surface of lot 13. The buildings cover a total of 1,781 square feet. The total impervious surface on lots 14 and 13 is 14,371 square feet. The total non-tidal area of the two lots is 25,209 square feet. The impervious surface must be reduced by 1767 square feet. (R. 76).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered requiring Billy Marlar and Rainbow Hotel to bring the project into compliance within 30 days by removal of 1767 square feet of impervious surface from the non-tidal portions of lots 13 and 14. DONE and ENTERED in Tallahassee, Leon County, Florida, this 18th day of August, 1989. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1989. ANNEX A Consideration of Proposed Findings of Fact The proposed findings of the Department of Community Affairs were read and considered as follows: Paragraphs 1-10 Adopted. Paragraph 11 The proposed dimensions are rejected as being contrary to the best evidence of the dimensions of the non-tidal area of the two lots. Paragraphs 12 & 13 Adopted. The proposed findings of Marlar and Rainbow Hotel were read and considered as follows: Paragraphs 1 & 2 Adopted. Paragraph 3 The existence of non-tidal land to a depth of 180 feet is rejected as contrary to the best evidence. Paragraph 4 & 5 Substantially adopted. Paragraphs 6 & 7 Rejected as a finding, although included as portions of the conclusions of law or statement of case. Paragraph 8 Some land has accreted; however, that the accretion is all pervious surface is rejected as contrary to best evidence. Paragraph 9 The stormwater management plan is irrelevant to how much of the pervious area of the two lots is covered with impervious structures. Paragraph 10 The city map is rejected as the best evidence of the area of the non-tidal area of the two lots. COPIES FURNISHED: L. Kathryn Funchess, Esquire David L. Jordan, Esquire C. Laurence Keesey, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Thomas G. Pelham, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Deborah Hardin-Wagner, Esquire Governor's Legal Office The Capitol, Room 209 Tallahassee, Florida 32399-0001 J. Ben Watkins, Esquire 41 Commerce Street Apalachicola, Florida 32 320 J. Patrick Floyd, Esquire 408 Long Avenue Post Office Drawer 950 Port St. Joe, Florida 32456 Honorable Jimmy Nichols Mayor, City of Apalachicola Post Office Box 10 Apalachicola, Florida 32320 Apalachicola Planning and Zoning Commission Post Office Box 10 Apalachicola, Florida 32320
Findings Of Fact On August 1, 1979, Petitioner issued a Notice to Show Cause to Respondent, which notice alleged, inter alia, that Respondent had violated Chapter 498, Florida Statutes, in failing to complete, as promised, certain access roads in Miami Green Acres and therefore material change had been effected without prior notification to and approval by the Petitioner. After the conduct of a formal hearing pursuant to Section 120.57(1), Florida Statutes, a Hearing Officer of the Division of Administrative Hearings issued a Recommended Order, which found, inter alia, that Respondent's Public Offering Statement promised that graded access roads within Miami Green Acres Unit II would be completed at the time deeds were required to be delivered to purchasers; that the Respondent did not adhere to its representations; and that the lack of graded access roads in Miami Green Acres Unit II constituted a material change, alteration, or modification of Respondent's offering for which no notice to the Petitioner had been given and no approval from the Petitioner had been obtained. By Final Order entered June 4, 1980, Petitioner adopted that Recommended Order and concluded that Respondent was guilty of the statutory violations alleged relating to the noncompletion of promised roads. Among its other mandates, that Final Order required that: the Respondent shall submit to the Petitioner within thirty (30) days of the date of this Order a new estimate from a duly licensed engineer of the cost of constructing all roads promised in the Florida Public Offering Statement; the Respondent shall enter into an improvement trust account based upon the estimated cost of completion of the pro- mised road work within sixty (60) days of the date of this Order . . . Miami Green Acres Unit II is a subdivision registered with the Petitioner pursuant to Chapter 498, Florida Statutes. As part of that registration, Respondent's Public Offering Statement promised lot purchasers completion of graded access roads by the time a deed is delivered to the purchasers. Warranty deeds have been delivered to purchasers and have been recorded for a substantial number of lots in Miami Green Acres Unit II, which does not have completed roads as promised in said Public Offering Statement. Subsequent to the June 4, 1980 Final Order, Respondent submitted to Petitioner an engineer's estimate of the cost to complete improvements in Miami Green Acres Unit II. That cost estimate did not include any cost of obtaining any required construction permits necessary for completion of the developer promised roads. That information has still not been provided. Subsequent to the June 4, 1980 Final Order, Petitioner and Respondent entered into negotiations for the establishment of the required improvement trust account based upon the partial cost of completion contained within the engineer's estimate. Respondent failed to accept any of Petitioner's proposals for funding that trust account, including proposals for full funding and proposals for installment payments. No improvement trust account has been established or funded for the road improvements in Miami Green Acres Unit II. In order to construct the promised roads, certain permits from the Army Corps of Engineers are required. Respondent filed an application for the necessary permits. The Corps deemed Respondent's application to be incomplete and requested additional information. Respondent declined to provide that information, and Respondent's application was deactivated by the Corps. No reasonable effort was made by Respondent to obtain permits for the promised roads, and Respondent's inability to obtain those permits was caused solely by Respondent's lack of diligence in pursuing the permits. In July, 1981, a cease and desist order was issued by the Army Corps of Engineers. Pursuant thereto, no road construction can be done in Miami Green Acres Unit II until the cease and desist order has been lifted and a permit for the work has been obtained. Respondent has made no request to the Corps to have the cease and desist order lifted. Respondent has not applied for permits. The parties have stipulated in their Prehearing Stipulation that no material change approval request has been submitted to the Petitioner by the Respondent for the incomplete improvements in Miami Green Acres Unit II.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing counts (1) and (2) of the Notice to Show Cause due to settlement of those issues; finding Respondent guilty of the allegations contained in counts (3), (4) and (5) of the Notice to Show Cause; requiring Respondent to submit to Petitioner a material change approval request for delay of completion of improvements within 30 days; and suspending Respondent's registration of Miami Green Acres Unit II until such time as (a) a full and complete improvement cost estimate, including the cost of obtaining any construction permits, is filed with the Petitioner, (b) the required improvement trust account is established and funded by the Respondent in accordance with Petitioner's directives, and (c) all improvements promised by Respondent in its Florida Public Offering Statement for Miami Green Acres Unit II are completed. DONE and RECOMMENDED this 17th day of December, 1982, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1982. COPIES FURNISHED: Daniel J. Bosanko, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Charles S. Domina, Esquire 250 Bird Road, Suite 104 Coral Gables, Florida 33146 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issues presented by this case concern the entitlement of the Intervenors, Mr. and Mrs. Mayer, to be granted zoning variances, in keeping with the provisions of Section 131.016(e), City of Clearwater Building and Zoning Regulations, to vary from the conditions set forth in Section 131.044, City of Clearwater Building and Zoning Regulations, dealing with the area and dimension regulations for RS-50, Single-Family Residents. In particular, the Intervenors would request that the front setback line be reduced from 25 feet to roughly feet and that a variance concerning the area covered by the dwelling be increased from 25 percent to 33.7 percent. 1/
Findings Of Fact On November 12, 1980, the Intervenors requested that they be granted the variances set out in the Issues Statement of this order. The terms and details of that variance application may be found as part of the City's Composite Exhibit No. 1, admitted into evidence. A public hearing was conducted on this request and that hearing was held on January 15, 1981. The taped transcript of that hearing may be found as the City's Exhibit No. 2, admitted into evidence. Following that hearing, a decision was made by the Board of Adjustment and Appeal for the City of Clearwater, Florida, to grant the variance requests. The Petitioners in this cause were opposed to that grant of variance and requested a hearing. The matter was forwarded from the City of Clearwater to the Division of Administrative Hearings and on March 25, 1981, a hearing de novo was conducted to consider this dispute. At the time of the hearing, the Petitioner, Barbara Beakes, was presented as a witness and identified the claim of the Petitioners as being one of opposition to the project in question which requested variances, for reason that it obscured her view of the water; caused a decrease in the value of her property and in addition to her attorney, expressed opposition to the area of coverage to be involved with the proposed building project of the Intervenors and to the front setback line at issue. The Intervenors, Ray and Christine Mayer, who reside at 940 El Dorado Avenue, Clearwater Beach, Florida, through their project, would desire to construct a garage which would be approximately 15.4 feet from the front property line as opposed to the 25 foot front setback line required of the City of Clearwater. The construction in question would not advance the building line in the direction of the street. Moreover, the distance from the street to the front of the building had originally been 13.1 feet when present front setback lines were not in effect. The Intervenors have also requested what they deemed to be a variance from the requirement of maximum lot coverage by their residence, varying it from 25 percent to the 33.7 percent proposed by their construction. As stated in a preceding footnote, it was determined at the hearing that the new requirement for maximum lot coverage is 42 percent and it having been agreed by the parties that the area coverage in question is only 33.7 percent, the necessity for variance on that issue no longer exists. Intervenors' Exhibits Nos. 1, 2, 3, 5, 6, 7 and 8, are photographs depicting the nature of the structure in question in various stages of construction and modification. Notwithstanding the Petitioner Beakes' complaint that her view was obstructed by the construction, there was no specific proof related to the clear space requirement of Section 131.200, City of Clearwater Building and Zoning Requirements, and in fact her view is already obstructed by a fence which now exists on the Mayers' property and the constriction proposed by the Mayers would not materially change that circumstance. The proof on the issue of decreased property value offered by Petitioner Beakes does not seem to be a specific criterion addressed by the variance ordinance.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED THAT: The Board enter an order finding that the 275 acre site itself proposed for Unit 3 is consistent and in conformity with existing land use plans and zoning ordinances; The Board find the railroad spur to be consistent with Polk County's zoning ordinance. The Board find that the proposed 46 mile associated transmission line is consistent and in conformity with existing land use and zoning ordinances with the exception of that portion of the line which traverses the Green Swamp area; and The Board hold the transmission line within the Green Swamp area not to be in conformance or compliance with the Green Swamp regulations, and that the applicant must apply for a variance from such regulations to Polk County officials before any further consideration of this certification by the Board. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 12th day of September, 1978. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue At issue in this proceeding is whether a certain development order (permit) issued by Monroe County to George and Judy Sands, as owners, and PG Construction, Inc., as contractor, for the construction of a single family dwelling unit is consistent with the Monroe County comprehensive plan and land development regulations.
Findings Of Fact The parties Respondents, George and Judy Sands (Sands), are the owners of Lot 15, Tropical Coral Reef Estates, Plantation Key, Monroe County, Florida; a property located within that part of Monroe County designated as an area of critical state concern, and upon which they have received a development order (permit) from Monroe County to construct a single family dwelling unit. Respondent, PG Construction, Inc., is the contractor that applied for the permit on behalf of the Sands. Respondent, Monroe County (Monroe County), is a local government within the Florida Keys Area of Critical State Concern designated by Section 380.0552, Florida Statutes, and is responsible for the implementation of, and the issuance of development orders that are consistent with, the Monroe County comprehensive plan and land development regulations, as approved and adopted in Chapters 9J-14 and 28-20, Florida Administrative Code. Petitioner, Department of Community Affairs (Department), is the state land planning agency charged with the responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes, and all rules promulgated there-under. Sections 380.031(18) and 380.032(1), Florida Statutes. Here, the Department has filed a timely appeal to the issuance of the subject permit, and contends that construction of the dwelling unit is inconsistent with the Monroe County comprehensive plan and land development regulations since it would exceed allowable density limitations. Background The subject property is approximately .45 acres, and was purchased by the Sands in January 1990. At the time of purchase, the property supported a concrete block residence, two bedrooms and one bath, of approximately 900 square feet and a wood-frame residence, two bedrooms and one bath, of approximately 625 square feet. Both buildings were constructed in 1948 and were, pertinent to this case, used by the Sands' predecessor in title as a principal residence prior to and as of the effective date of the Monroe County land development regulations (September 15, 1986). Following their acquisition of the property, the Sands undertook to upgrade both structures with the intention of offering use of the residences to employees of their business, which was located across the street from the property. 2/ Ultimately, however, the Sands decided to replace, rather than remodel, the wood-frame residence, and employed David de Haas-Grosseck (de Haas), a consultant and designer of residential properties, who was of the opinion that such replacement was permissible under the provisions of Section 9.5-268, Monroe County land development regulations (MCLDR), discussed infra, to attend the necessary details. 3/ On February 5, 1991, de Haas, on behalf of the Sands, filed an application with Monroe County for a building permit to construct a modular single family residence upon the property. Thereafter, the County advised de Haas that since the wood-frame structure was to be removed a demolition permit would also be required. Accordingly, on February 11, 1991, de Haas applied for a demolition permit to remove such structure. The demolition permit (permit number 9130002904) was issued by the County on February 11, 1991, and rendered to the Department on February 13, 1991. The building permit (permit number 9130002861) was issued by the County on February 25, 1991, and rendered to the Department on February 27, 1991. Under existing law, such permits were not effective until expiration of the time within which the Department was authorized to appeal their issuance, to-wit: 45 days after they were rendered to the Department. The Sands, having been expressly so advised by de Haas, were acutely aware of the limitations on their building permit. Consequently, the Sands requested a waiver of the Department's appeal period. By letter of March 21, 1991, the Department denied such request and stated: Dear Mr. Sands: Monroe County issued you permit number 913-2861 on February 25, 1991. The DCA received the permit on February 27, 1991. Therefore, the Department's 45-day appeal period expires on April 13, 1991. Subsequent to the issuance of the permit by the County, you requested a waiver of the DCA's appeal period. At this time, the Department declines to issue you the waiver. Changes or additional information may be needed to meet County Code requirements. Our concerns include that the proposed development exceeds the allowable density in a SS zoning district. DCA staff will continue to review your plans and the permit, which may warrant action by the Department . . . . Notwithstanding the Sands' express knowledge that their building permit was not effective, as well as express advice from the Department that it had concerns regarding the propriety of such development, the Sands, following the expiration of the Department's appeal period on their demolition permit, demolished the wood-frame structure on or about April 4, 1991. Thereafter, by petition filed with the Florida Land and Water Adjudicatory Commission on April 12, 1991, the Department timely challenged the propriety of Monroe County's decision to issue the building permit. 4/ The Sands, notwithstanding express knowledge that their building permit was not effective pending the Department's appeal, proceeded to construct the modular unit on the property. Such unit is approximately 650 square feet in size, excluding the two enclosed screen porches which measure 10' X 20' each, and complies with current building code requirements. The Sands' decision to construct such unit pending appeal was voluntary, and they proceeded with such construction at their own risk considering the nature of this proceeding. Consistency of the building permit with the Monroe County comprehensive plan and land development regulations The Sands property is located within what the Monroe County land development regulations (MCLDR) define as a sparsely settled residential land use district. The purpose of such district is stated in Section 9.5-209, MCLDR, to be as follows: . . . to establish areas of low density residential development where the predominate character is native or open space lands. Consistent with the purpose of such land use district, the Monroe County land development regulations permit, as of right, only the following uses: Detached residential dwellings; Beekeeping; Home occupations -- Special use permit requiring a public hearing; Accessory uses. Section 9.5-238(a), MCLDR. Moreover, consistent with the purpose of the district, the density or intensity of development is limited by Section 9.5-261, MCLDR. Pertinent to this case, 9.5-261, MCLDR, addresses the issue of land use intensity or density, and provides: No structure or land in Monroe County shall hereafter be developed, used or occupied at an intensity or density greater than the standards set out in this division. . . . And, Section 9.5-262, MCLDR, establishes the maximum residential density in a sparsely settled residential land use district at .5 dwelling units per acre. Accordingly, a minimum of two acres is required under the Monroe County land development regulations to permit, as of right, one detached residential dwelling. Notwithstanding the provisions of Section 9.5-262, MCLDR, the Monroe County land development regulations provide an exception to the density limitations otherwise imposed by such section for certain dwelling units existent on the effective date of the regulations. Pertinent to this case, Section 9.5-268, MCLDR, provides: Notwithstanding the provisions of section 9.5-262 . . . the owners of land upon which a dwelling unit . . . used as a principal residence prior to the effective date of the plan was lawful on the effective date of this chapter shall be entitled to a density allocation of one (1) dwelling unit for each such unit in existence on the effective date of this chapter. Here, the Department and Monroe County disagree as to the proper interpretation of the foregoing provision. The Department interprets such provision to apply only to the owner of such residence on the effective date of the plan. Under such interpretation, the density benefits offered by Section 9.5-268, MCLDR, would be lost where, as here, such owner sold the property. In contrast, Monroe County interprets such provision to essentially establish an allowable density on the effective date of the plan, and to accord subsequent owners the benefit of such increased density allocation. 5/ Such interpretation, while not the only possible interpretation, is not inconsistent with the comprehensive plan or clearly erroneous, and therefore permissible. 6/ Accordingly, the subject permit is consistent with the Monroe County comprehensive plan and land development regulations. 7/
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 9130002861, and dismissing the appeal filed by the Department of Community Affairs. RECOMMENDED in Tallahassee, Leon County, Florida, this 12th day of June 1992. WILLIAM J. KENDRICK 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 12th day of June 1992.
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.
Findings Of Fact Don 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 20 years. The property is zoned RM-20 and is high density residential developed. Pierson's lot, approximately 95 feet by 87 feet (approximately 8,250 square feet), is empty and is the only vacant lot on the Gulf of Mexico in this area. Until some three years ago this area had been zoned RM-28, which provided for higher density development than does RM-20. The area from Kendall Street north six blocks to Somerset Street bounded on the east by Mandalay Avenue and on the west by the Gulf of Mexico is the only section of Clearwater fronting on the Gulf which is zoned RM-20. This area was built up over the years before zoning controls were in existence, through less restrictive zoning, and down to the present, so there are few buildings in this part of Clearwater Beach that meet current zoning requirements. Petitioner owns the property abutting Pierson's property to the east. The building on that lot was constructed many years ago, before setback lines were established, and balconies on this building extend to the property line; leaving zero setback. The Coastal Construction Control Line, seaward of which construction is prohibited, runs through Pierson's property so as to delete the seaward 5/8ths of Petitioner's property on which a building can be erected. The tidal plane in this area is 13 feet (although evidence was presented at the board hearing that this was being increased to 16 feet). The height of Pierson's property above sea level is five feet, accordingly the ground floor of a dwelling constructed on this lot must be eight feet above ground (or 11 feet if the 16-foot tidal plane is adopted). Maximum building height for a triplex, which is here proposed, is two and a half stories, or 25 feet above sea level. With the ground floor eight feet above ground, a two- story building cannot be erected without a height variance. Pierson proposes to construct a two-story triplex with a lower unit in which he will live comprising approximately 2,200 square feet and the upper story containing two 1,100 square- foot apartments to be occupied as rental units. To accomplish this, he has requested a height variance of six feet to 31 feet, if such a variance is required for a platted lot. Zoning density is consistent with the construction of the triplex proposed. However, zoning regulations require a lot with a minimum width of 100 feet and lot area of 10,000 square feet for the construction of a triplex. Pierson's lot meets neither of these requirements. Several witnesses testified in opposition to the requested variances at the Board hearing.
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.
The Issue The issue is whether the small scale development amendment adopted by Respondent by Ordinance No. 231 on March 1, 2001, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this land use dispute, Petitioner, James Harvel Smith, has challenged a small scale development amendment adopted by Respondent, City of Laurel Hill (City). The City is located in northern Okaloosa County, Florida, just south of the Florida-Alabama State Line. By the amendment, the City proposes to amend its Future Land Use Map (FLUM) by changing the land use classification on a small parcel of land from Residential to Commercial. Despite opposition from residents who live near the affected area, the City adopted Ordinance No. 231 (Ordinance) on March 1, 2001, which changed the land use on a 2.58-acre parcel of property from Residential to Commercial. The amendment is a small scale development amendment subject to the requirements of Section 163.3187, Florida Statutes (2000). As such, it was not reviewed for consistency by the Department of Community Affairs (DCA). It is undisputed that the City followed all pertinent statutory requirements in noticing the matter and conducting a public meeting before the adoption of the Ordinance. In his Petition, Petitioner contends that the amendment violates (or is inconsistent with) various provisions within the City's Comprehensive Plan (Plan) and Land Development Code (Code). More specifically, he contends that the Ordinance violates Section 7.A.2.3 of the Plan, which provides that new development shall be located in conformity with the land use categories shown on the FLUM. He also asserts that the Ordinance is inconsistent with Page 4-14 of the Code, which restricts commercial development to intersections of two-lane arterial roads. He further contends that the change in land use is inconsistent with Sections 13 and 17 of Ordinance No. 222, which contain the regulations applicable to single-family residential and commercial land use districts. Finally, by amendment to his Petition filed on April 14, 2001, Petitioner contends that until the City identifies in its future land use element the land use categories in which public schools are an allowable use, as required by Section 163.3177(6)(a), Florida Statutes (2000), it is statutorily barred from adopting any plan amendments, including the one in issue. The City's current FLUM depicts a large residential area which makes up the greater part of the central section of the City. State Road 85 (a two-lane arterial road) and an old Louisville & Nashville railroad track run through the middle of the City, including the residential district. The subject property is an odd-shaped parcel fronting on Clary Road (owned by the Department of Transportation) in the residential district approximately "1,000 feet as the crow flies" east of State Road 85. The property is now vacant, but single-family residences are located on three sides of the property. The closest commercial property on the FLUM is several blocks away. Section 7.A.2.3 of the Plan requires that "[n]ew development will be located in conformance with the land use categories shown on the Future Land Use Map, while Section 7.A.3.3. provides that "[e]xpansion or replacement of land uses which are inconsistent or incompatible with the Future Land Use Map shall be prohibited." Page 14-4 of the Plan, which was adopted by Ordinance No. 202 in December 1990, reflects that "[f]uture Commerical development will occur only at intersections of two-lane Arterial Roads in order to protect neighborhoods from Commercial intrusion." Although State Road 85 is an arterial road, the subject property is not located at an intersection of that roadway. Indeed, at the present time, access to the property from State Road 85 can only be obtained by entering the residential district at least two or three blocks north or south of the subject parcel, and then meandering for several blocks through a residential neighborhood. Therefore, the amendment is inconsistent with the requirements that commercial development occur only at intersections of a two- lane arterial road, and that development be in conformity with the land use categories shown on the FLUM. The amendment is also inconsistent with Sections 13 and 17 of the Code, which set forth the regulations applicable to single-family and commercial land use districts, respectively. More specifically, Section 13 provides that the "express purpose" of the Single Family Residential District is "to exclude from this district all building[s] or other structures and uses having commercial characteristics, whether operated for profit or otherwise." Section 17 provides that the Commercial District "is intended to be situated along selected segments of City thoroughfares and in the vicinity of intersections." The amendment is contrary to both provisions since it inserts a commercial enclave into an existing residential district. Finally, Petitioner's Composite Exhibit No. G includes a letter dated March 12, 2001, from the DCA to the City regarding the City's transmittal of Ordinance No. 231 to the DCA. The letter stated in pertinent part as follows: The Department has received the City of Laurel Hill's small scale amendments adopted by Ordinance No. 231 on March 1, 2001. The adopted amendment package received by the Department is incomplete because the City has not been demonstrated to meet the requirements of Paragraph 163.3177(6)(a), Florida Statutes (F.S.), with regards to the public school siting criteria. The Department's records indicate that these [school siting] requirements have not been incorporated into your plan and therefore this amendment appears to be invalid. There is no evidence of record that the City has complied with the requirements of Section 163.3177(6)(a), Florida Statutes (2000), since the date of the letter. Under the terms of the statute, the City is barred from adopting any plan amendments, including Ordinance No. 231, until the requirement is satisfied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the small scale development amendment adopted by the City of Laurel Hill by Ordinance No. 231 on March 1, 2001, is not in compliance. DONE AND ENTERED this 24th day of August, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 2001. COPIES FURNISHED: Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399-0001 Charles Canaday, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 323999-0001 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Suite 325 Tallahassee, Florida 32399-2100 James Harvel Smith Post Office Box 206 Laurel Hill, Florida 32567 T. Martin Knopes, Esquire Post Office Box 727 Crestview, Florida 32536
Findings Of Fact The Respondent, at all times material to the Administrative Complaint in this proceeding, was a land surveyor licensed by the State of Florida, having been issued license number 1305. The Respondent is also a licensed professional engineer and a licensed architect. The Petitioner is an agency of the State of Florida charged under Chapter 472, Florida Statutes, and appurtenant rules with the licensure and regulation of licensure status of land surveyors in Florida and the regulation and enforcement of their practice methods and standards. The Board of Land Surveyors published "Minimum Standards for Land Surveyors (Rule 21HH-6) effective September 1, 1951. The Respondent was unaware of the promulgation of those minimum standards. The Respondent had not attended meetings of the "Manasota" Chapter of the Florida Society of Professional Land Surveyors at which those standards were discussed and a checklist for the standards was distributed. On August 24, 1982, the Respondent prepared a land survey of a part of Lot 306, Overbrook Gardens, in Sarasota County. The survey was submitted to the Sarasota County Building Department in connection with an application for a building permit pertaining to that real property, filed on August 26, 1982. The offenses charged are alleged violations of the minimum standards with respect to that survey. The Respondent's client had delivered to him a survey prepared by Lemonde Surveying, Inc., of Port Charlotte, Florida, which was prepared on February 28, 1980. That survey contained a metes and bounds land description. The client engaged the Respondent to survey the same parcel of land with that description and provide a survey drawing to be used in conjunction with an application for the subject building permit. The survey gas not certified by the Respondent in accordance with minimum standards. The Respondent admitted this and it was undisputed that the signature and seal of fixed on the survey complied with the legal requirements enforced before the adoption of the abovementoned minimum standards, of which the Respondent was unaware. The Respondent admitted to failure to refer to all sources of information upon which the survey was predicated. The Respondent used a legal description from a previous survey provided him by Darrell Newell, the contractor who was agent for the owner of the property. The survey the Respondent submitted to the building department only showed the name of the owner. The older survey submitted by the Respondent's client was his only source of information in this regard. The parties stipulated that the allegation regarding failure to show measured distances to the nearest intersection was incorrect and that indeed the Respondent had shown the distance to the nearest intersection. The Respondent failed to show the location of a telephone company underground terminal pedestal and an abandoned wire fence of unstated dimensions which is outside the surveyed property near the north and east boundaries. The fence does not encroach on the surveyed property at all. The telephone terminal pedestal is approximately one foot or less in height, located just inside the northerly boundary of the property, approximately midway between the two northerly corners. The telephone terminal was not visible at the time of the survey due to high grass, weeds, and undergrowth covering the property when the fieldwork was conducted by the Respondent's survey party chief. The triangular parcel of property involved was located with reference to an established, identifiable real property corner. All three corners were monumented prior to the survey by the Respondent, so that the location of boundaries near the abandoned, partial, non-encroaching fence could be established with reasonable certainty. On September 15, 1932, personnel of the county building department charged with the responsibility of issuing the building permit for the property requested advice with regard to the efficacy of Respondent's survey from Mr. Emerson, the County Surveyor, who testified for the Petitioner. Mr. Emerson spoke with the Respondent by phone and mailed him copies of the "minimum standards" and the "Surveyor's Checklist" of the Manasota Chapter of the Florida Society of Professional Land Surveyors, which relates to those minimum standards in the rule cited below. The Respondent then promptly and voluntarily prepared a new survey which fully complied with those minimum standards which he had at that point first become aware of, and the building permit was duly issued to the Respondent's client. The Respondent's client's interests were not shown to be prejudiced and the complaint to the Board of Land Surveyors did not emanate from the Respondent's client, but rather from Mr. Emerson of-the county building department, who did not bother to consult the Respondent or obtain his explanation prior to lodging the complaint with the Board. The survey originally submitted to the Sarasota Count Building Department would have been adequate support for the issuance of the building permit before adoption of the minimum standards. The survey was shown to be totally adequate in terms of its substance and reflection of technical surveying competence, as opposed to the particular format prescribed by the minimum standards. This is the first disciplinary action ever taken against the. Respondent as a land surveyor licensee, and the Respondent's practice of his profession has always been characterized by a high degree of technical competence and professional integrity.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Respondent, William J. Lindh, be accorded the penalty of a private, written reprimand for violation of Rule 21HH-6.03(1) and (6),,Florida Administrative Code, and Section 472.033(1)(g) , Florida Statutes (1951) , and that the Administrative Complaint, in all other respects, be dismissed. DONE ADD ENTERED this 31st day of October, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1983. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles J Cheves, Esquire Cheves & Rapkin 341 West Venice Avenue Venice, Florida 33595 Allen R. Smith, Jr., Executive Director Board of Land Surveyors Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF LAND SURVEYORS DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, CASE NO.: 83-512 vs. LICENSE NO: 1308 WILLIAM J. LINDH, Respondent. /
