Findings Of Fact Petitioner, Walter J. Zawada, is the owner of Lot 43 in College Hill Estates located at 731 Oberlin Drive, Clearwater, Florida. A residential home is situated on the lot. The property is currently zoned RS-75 (Single-Family Residence District) and was created primarily for single-family residential development. A large oak tree sits in the front yard of Zawada's property. In order to avoid cutting down the tree, the house was constructed approximately seven feet closer to the rear property line. Consequently, the back yard is smaller in size than other property owners in the neighborhood. Petitioner has constructed a 15' x 30' swimming pool in his back yard. He has also placed a concrete deck around the pool. A six foot-wooden privacy fence has been erected on the rear and side property lines. Because of the small back yard, a distance of only eight feet, nine inches lies between the edge of the pool and the north side property line. The concrete deck is only two feet from the line. Petitioner wishes to construct an aluminum enclosure on the north side of the pool. An enclosure is required to shield the pool from oak tree leaves that have clogged the pool filter. Existing zoning regulations dictate that the minimum setback from the side property line for swimming pool enclosures be no less than six feet. Under the plans submitted by Petitioner, the enclosure would be erected two feet from the side property line, thereby requiring a four-foot variance from existing regulations. Petitioner contends the variance is necessary because, if none were granted, the enclosure would have to be constructed on top of the concrete decking. This in turn would leave only two feet, seven inches of space between the edge or lip of the pool and the inside of the enclosure. Petitioner estimates that at least three feet of space is necessary in order to safely permit construction of the enclosure. He also points out that the home is unique to other property owners because a large oak tree in the front yard resulted in a smaller back yard in which to place a swimming pool. The City opposes the application on the ground Petitioner created a self-imposed hardship. It reasons that he constructed the pool and deck too close to the property line and gave no consideration to the space that would be required should an enclosure be constructed at a future date. Therefore, it contends Petitioner does not qualify for a variance.
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.
Findings Of Fact Petitioner owns Lot 67 Countryside, Tract 60, which fronts on Atwood Court, with a small side (approximately 45 feet) facing Landmark Drive. Landmark Drive is a main thoroughfare with heavy traffic expected to increase as the area continues to grow. Landmark Drive is a non-addressed street on which a property owner would be permitted to erect a four-foot high fence on the property line. If Petitioner moved the fence 25 feet back from the property line the zoning regulations would permit the erection of a six-foot high fence. Moving the fence this far would place the fence some 50 feet from the right-of-way of Landmark Drive and would take up so much of Petitioner's property that his future plans to install a swimming pool would be thwarted. In the one and one-half mile stretch of Landmark Drive in the vicinity of Petitioner's property only two fences have been erected which required variances and those encroach only one or two feet into the setback line. At the same time Petitioner's request for variance was denied the board granted a variance to another owner in the same subdivision who had put up a fence without getting a variance. There, the board found it would constitute a hardship to require that landowner to remove or relocate his fence since a swimming pool was also involved. Other applications for variances to erect fences on property fronting on Landmark Drive have been denied in the past.
Findings Of Fact Respondent is the condominium association of a portion of a residential condominium complex comprised of 450 units and encompassing approximately 800 acres of land. On April 26, 1982, Respondent's Board of Directors approved the construction of a new parking area containing three parking spaces on a portion of the common-elements lawn and thereafter designated that new parking area as "limited common elements" reserved for use by the owners of the two condominium units for whose benefit it was approved. The parking area was constructed on May 12 and 13, 1982. Two-thirds of the cost of construction was paid by the owners of the two units benefited. One-third of the cost of construction, $450, was paid by Respondent out of funds collected for common expenses through assessments of all unit owners. Prior to construction, the Board's authorization of the construction was not ratified by the affirmative vote of a majority of the unit owners. After Petitioner issued its Notice to Show Cause on May 9, 1983, (a year after the construction of the parking areas) Respondent, for the first time, sought the approval of its unit owners by sending them a newsletter and "Referendum" form on June 3, 1983. The newsletter/referendum, however, did not request the unit owners to approve or ratify the construction of the parking area, the redesignation of common elements into limited common elements, or the expenditure of common funds for the benefit of an individual unit. Rather, it requested a vote on whether the parking area should be removed at the expense of all unit owners. Further, the form provided that disapproval of the expense involved in returning the parking area to common-elements property could be conveyed by simply not bothering to vote. Approximately 75 percent of the unit owners did not vote on the "referendum." The failure to vote (and the votes against the removal and additional expense) may well have been in response to Respondent's explanation of the issue, such as advising the unit owners that a requirement that the Board remove the parking area might mean that concrete slabs under "dumpsters" would be prohibited and that ". . . dog owners will possibly be required to carry a 'pooper scooper' when they walk their pet on common area." Respondent's Declaration of Condominium provides that: There shall be no material alterations, door or color changes, enclosing of balconies, or substantial additions to the common elements, except the same are authorized by the Board of Directors, and ratified by the affirmative vote of a majority of the unit owners or as otherwise authorized herein. No unit owner shall block, hamper, or otherwise interfere with the common elements of the property to the operation thereof. Additionally, the approved parking areas for the development are those shown on diagrams attached to and incorporated in the Declaration of Condominium and are part of the recorded plat. Where the Declaration specifically grants authority over parking areas to the Board of Directors, it grants the Board discretion to assign parking spaces; nowhere does the Declaration authorize the Board to create parking spaces, pay for same with common funds, or convert common elements into personal parking spaces. Up to the time of the formal hearing in this cause, Respondent's authorization of the construction of the new parking area and of the use of common funds and of common elements for that construction have never been approved or ratified by the affirmative vote of a majority of the unit owners, and the Board had made no attempt to obtain that approval. Constructing a parking area where there had been community lawn space is a material alteration to the common elements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Finding Respondent guilty of the allegations contained in the Notice to Show Cause; Imposing a civil penalty of $2,500 against Respondent to be paid by a date certain; Ordering Respondent to cease and desist from materially altering or substantially adding to the common elements of the condominium in any manner other than as provided in its Declaration of Condominium; Affording Respondent a reasonable time in which to obtain approval of the subject construction from the unit owners, subject to Petitioner's approval as to compliance with Respondent's Declaration of Condominium and the Condominium Act; and Requiring the immediate removal of the subject parking area and the restoration of that space to its preconstruction appearance and usage if Respondent fails to obtain approval of the construction within a reasonable time from either the unit owners or from Petitioner. DONE AND RECOMMENDED this 6th day of January 1984 in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 6th day of January 1984. COPIES FURNISHED: David M. Maloney, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Jeffrey M. Feuer, Esquire 20466 South Dixie Highway Miami, Florida 33189 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 =================================================================
Findings Of Fact Appellant currently operates a retail boat sales business in a building he recently (December 1987) constructed at 1011 North Fort Harrison Avenue. In this variance request, he proposes to construct an addition to this building containing space for nine shops on the ground floor and space to exhibit boats for sale on the second floor. The addition will be approximately the same height as the existing building, and no height variances are required. The property on which the proposed addition will be located is zoned CN (neighborhood commercial). Contiguous property approximately 150 feet x 125 feet, owned by Appellant west of that property zoned CN, is zoned RM-8 (multi- family residential with a maximum of 8 residential units per acre). Appellant has removed some thirteen low income and dilapidated residential buildings from the property he acquired. In addition to reducing habitats in a high crime area, Appellant thereby acquired parking spaces for his business. Appellant presently is required to stow most of his boats in racks inside his existing building which makes it difficult, and dangerous, for a customer to take a close look at a boat in which the customer is interested. Boats can be removed from the rack for safe viewing by the customer, but this is a time consuming process requiring several boats to be moved. It is to improve the efficiency of selling boats that motivates Appellant to construct the proposed addition. Rental of the first floor as separate stores is necessary to provide the cash flow needed to pay the investment debt to be incurred. Usage permitted for CN zoned property includes sixteen dwelling units per net acre, minimum open space of thirty (30) percent of the lot area and maximum floor area ratio of three-tenths (0.3). The variances here requested involve open space, an increase of 9 percent to 39 percent and floor area ratio increase from 0.3 to 0.6 approximately. If the PM-8 zoned property was zoned CN, Appellant would not need the variances here requested.
Findings Of Fact On May 20, 1986, Petitioners submitted a request for two variances concerning property located at 761 Bruce Avenue, Mandalay Subdivision, Block 24, Lot 7 in the City of Clearwater. The property is zoned RS-8 (single family residential). The variances requested were for the construction of a garage 4.8 feet from the rear set-back line, rather than the required set-back of ten feet, and 4.2 feet from the side set-back line, rather than the required set-back of five feet. On June 12, 1986, the Development Code Adjustment Board granted the variance of the side set-back requirements, but denied the requested rear set- back line variance. The Petitioners own the property in question and also own the property directly behind the subject property which backs up to the rear property line. There is presently a one story frame house on the property, as well as a small cottage to the rear of the property. The cottage is 12.7 feet wide by 16.5 feet deep. Petitioners want to construct a garage next to the cottage on an existing concrete slab. The dimensions of the garage shown in their application are 12 feet wide by 16.5 feet deep. At one time a garage was attached to the cottage but now only the concrete slab remains. If the rear set-back line variance is granted, the Petitioners will be able to construct the garage with rear and front walls attached to, and flush with, the cottage. If the rear set-back variance is not granted, the garage will have to be moved forward on the property and will only partially connect to the cottage. The Petitioners will not be prevented from building the garage if the variance is denied, but will simply have to move it forward rather than attaching it fully to the cottage. It is the Petitioners' intent to use the garage primarily for storage. Yvonne Ulfers denied any intention of expanding the existing cottage, or using this variance to add another room on the cottage. If the rear set-back line variance is denied, Yvonne Ulfers testified that she would construct the garage anyway, but would move it forward on the property and would also make it deeper than the 16.5 feet proposed in her application. She stated repeatedly that she would deepen the garage by extending it all the way down the side line of her property toward the frame house in the front. The Petitioners offered no evidence concerning conditions unique to this property, or hardship that would result if the variance is not granted. There is also no evidence that this variance is the minimum necessary to construct the garage on the subject property. To the contrary, there is no dispute that the garage can be built without the rear set-back line variance.
Findings Of Fact Appellants are the owner of the residence located at 1387 Lemon Street, Clearwater, Florida, having purchased the property in October 1991. The residence is a 3-bedroom 2-bath house containing approximately 1600 square feet. On the back of the property and adjacent to the house is a patio and screen porch. The proposed storage shed would be located some 10 feet from the screened room and rest on concrete blocks. The proposed storage shed is 10 feet by 14 feet and would extend into the 7 feet utility easement in the rear of the property and come within 2.83 feet of the real property line. The Clearwater Building Code requires a 10 foot setback from the real property line. Accordingly, Appellants have asked for a 7.17 foot variance. Appellants intend to store books and records in this shed, if approved, as they contend there is insufficient room in the house for these records. Appellants engaged the services of a person observed erecting a gazebo a few blocks away to construct the storage shed. The contractor employed by Appellants apparently was not licensed and when Appellant asked the contractor if he needed a permit for the storage shed the contractor advised that he didn't pull permits. Appellants engaged the contractor to construct the storage shed without making any inquiries to the city building department to ascertain if a permit was required. After the structure was nearly completed a stop work order was posted on Appellants residence because no permit had been issued for the work. When Appellants applied for a permit it was learned that the proposed building would encroach into the setback and that a variance would be required before the permit could be issued. When the variance was applied for the Planning and Zoning Board denied the variance for the stated reason that the application did not meet the requirements of Section 137.012 of the Land Development Code of the City of Clearwater. These proceedings involve Appellants' appeal from that denial. Appellants' lot is neither square nor rectangular having a slight curve generated by Lemon Street in front and the rear property line runs at an oblique angle with the side property lines which run north and south. However, this rear property line is only a few degrees from being perpendicular to the side property lines. The plat plan accompanying the variance request shows none of the lots in the vicinity of Appellants lot to be truly rectangular and are little different in shape than is Appellants' lot. Appellants' backyard is quite small with the southeast corner of Appellants' house approximately 15 feet from the rear property line. A spa located in the southwest corner of this lot appears from Exhibit 2 to be approximately 10 feet from the rear property line. Appellants propose to have the storage shed painted to look like the house and to be firmly secured against heavy weather. Appellants contend that it would constitute a hardship if they are not granted the requested variance. Appellants also contend that their property is unique; but unless the location of the house near the rear property line constitutes a unique situation, no other evidence was presented that their lot is substantially different from all of the other lots in the vicinity. When Appellants moved into this house they found that the previous owners had used the southeast portion of this lot for storing old lumber and other junk which Appellants cleaned up to make room for the proposed storage shed. They contend the proposed shed is a vast improvement over the clutter formerly existing in this location.
Findings Of Fact The Petitioners, Dale K. Niemann and Janet R. Niemann, own property on Devon Drive, in Clearwater, Florida, which is approximately two houses down the street from the Respondent, John Blakely. On or about May 25, 1990, Mr. Blakely requested two variances from the Development Code Adjustment Board of the City of Clearwater. It was his intention to seek the variances in order to extend his present dock approximately twenty-five feet (to a length of eighty-nine feet) and to allow the dock to be positioned 8 feet from an extended side property line. The Petitioners oppose the requests and argue that the extension is not necessary to make reasonable use of Respondent's dock. Further, they claim that, if allowed, the dock extension, together with the boat lift the Respondent proposes, will interfere with their view of the water. The proposed dock extension will not obstruct navigational activities. The natural shoaling process has resulted in the accretion of sand and silt along the Respondent's property. As a result, during low tides it is difficult to utilize the existing dock and would be impossible to use it for the proposed boat lift. Also, there is a grass flat landward of the proposed boat lift site upon which the Respondent's construction will not infringe. The construction of the lift at the terminus of the existing dock might disrupt that grass bed. The Respondent will not financially gain from the granting of the requested variances. The approval of the variances will not impair an adequate supply of light or ventilation to the adjacent properties, nor substantially diminish or impair the value of the surrounding property. The approval of the variances will not adversely affect the public health, safety, order, convenience or general welfare of the community. The approval of the variances will not violate the general spirit and intent of the Development Code. While the approval of the variances may alter the Petitioners' view from the side window of their residence, such alteration should not materially detract or injure their property or the property or improvements of others in the neighborhood. Other structures which Respondent could construct without the approval of variances could be more detrimental to the neighborhood.
The Issue The issue in this case is whether the decision of Appellee, City of Clearwater (the "City"), through its Development Code Adjustment Board (the "Board"), to grant a variance that would allow a 7.5-foot side setback for a single family residence proposed by Appellees, Olen K., Jr. and Pamela A. Marks (the "Marks"), is supported by competent and substantial evidence and does not depart from the essential requirements of law.
Findings Of Fact The Marks seek to build a single family residence and detached, four-car garage. The proposed residence is a two-story structure. Both floors of the residence are to be constructed over a recreational area on the ground floor that includes a swimming pool. The residence and recreational area will encompass approximately 5,000 to 6,000 square feet of floor space. The proposed construction site is a lot that is approximately one acre. It is located in a residential area of the City known as Harbor Oaks subdivision. Harbor Oaks is an area of low-density residential land use. The homes in Harbor Oaks are generally estate homes that are non-conforming structures under the City's land development code. Most of the homes in the immediate vicinity of the construction site were built in the late 1920s and early 1930s, including a home that once occupied the Marks' property and was subsequently razed by the previous owners. The construction site is one of approximately 12 lots within the block occupied by Appellants and the Marks. Each of the 12 lots on the block are far more similar than they are different. They share similar topography, size, shape, and physical surroundings. A bluff runs across the back of the 12 lots and terraces down toward Clearwater Harbor. The bluff is a unique topographic feature of the City. Protection of the bluff is one of the goals of the City's comprehensive plan. Each lot fronts Druid Road to the east and abuts Clearwater Harbor to the west. The Intercoastal Waterway runs through the Harbor. Like the other 12 lots on this block, the Marks' lot is long and narrow. It is approximately 94.43-feet wide at its eastern boundary on Druid Road. At its western boundary on Clearwater Harbor, the lot is an equivalent width. The northern boundary of the construction site is approximately 440-feet long. Its southern boundary is approximately 430.52-feet long. The southern boundary of the construction site is the northern boundary of Appellants' lot. The northern boundary of Appellants' lot is approximately 430.52-feet long. The southern boundary is approximately 418-feet long. Appellants' lot is approximately 94.90-feet wide at its eastern boundary on Druid Road. It is approximately 91.62-feet wide at its western boundary on Clearwater Harbor. All 12 of the lots on the block are zoned RS 2. RS 2 zoning requires 15-foot side setbacks. The Marks seek a variance that would allow a side setback of 7.5-feet. 2/ The Board Meeting The Marks' presented their application and supporting evidence at the Board's regular meeting conducted on December 12, 1996. The Marks' architect represented them before the Board. Appellants were represented by their attorney. The Board considered evidence consisting of the unsworn presentation of its staff report, the sworn testimony of the representatives for the Marks and the Appellants, a document that is hearsay and purports to evidence the acquiescence to the variance by the Marks' neighbor to the north, and the unsworn statement of Mr. Marks. The Board discussed the evidence and related issues. A motion to grant the variance was made, seconded, and approved by a 4-1 vote; subject to two standard conditions that are not relevant or material to this proceeding. Appellants appealed the decision of the Board in accordance with the requirements of Code Sections 36.065(2) and (3). The matter was referred to DOAH for assignment of an Administrative Law Judge to hear the appeal. Scope Of Review Unlike an administrative hearing conducted pursuant to Section 120.57(1), Florida Statutes (1995), 3/ this is not a de novo hearing. It is an appellate hearing. Where an administrative tribunal such as DOAH acts in an appellate capacity, the lower administrative tribunal, the Board in this case, is the finder of fact. DOAH does not reweigh the evidence or formulate final agency action. The appellate review is limited to a determination of whether the Board's findings are supported by competent and substantial evidence. 4/ The City has created a peculiar procedure for appellate review of the Board's decision. The City requires the Administrative Law Judge to determine whether the Board's decision is supported by competent and substantial evidence before the Board at the time of its meeting and by additional evidence before the Administrative Law Judge, even if the additional evidence was not before the Board when the Board made its decision. In relevant part, Code Section 36.065(6)(a) provides: Although additional evidence may be brought before the . . . [judge], the hearing shall not be deemed a hearing de novo, and the record before the board shall be incorporated into the record before the . . . [judge], supplemented by such additional evidence as may be brought before the . . . [judge]. (emphasis supplied) Code Section 36.065(6)(d) limits the Administrative Law Judge to a decision that either affirms or reverses the decision of the Board. The Administrative Law Judge can impose any reasonable conditions that the Board could have imposed. However, no other exception to the requirement to affirm or reverse the Board's decision is authorized in the Code. Code Section 36.065(6)(b) requires the decision of the Administrative Law Judge to be guided by the City's comprehensive plan and established case law. In addition, Code Section 36.065(6)(a) requires the decision of the Administrative Law Judge to be based on evidence relevant to the guidelines prescribed in the Code for variances. In relevant part, Code Section 36.065(6)(a) provides: The . . . [judge] shall review the record and testimony presented at the hearing before the board and the . . . [judge] relative to the guidelines for consideration of . . . variances as contained in . . . chapter 45 . . . . The guidelines for consideration of variances are prescribed in Code Section 45.24. Code Section 45.24 provides: A variance shall not be granted unless the application and evidence presented clearly support all of the following conclusions: There are special circumstances related to the particular physical surroundings, shape or topographical conditions applicable to the land or buildings, and such circumstances are peculiar to such land or buildings and do not apply generally to the land or buildings in the applicable zoning district. The strict application of the provisions of the code would deprive the applicant of the reasonable use of the land or buildings. The variance is not based exclusively upon a desire for economic or other material gain by the applicant or owner. The granting of the variance will be in harmony with the general purpose and intent of the land development code and comprehensive plan and will not be materially injurious to surrounding properties or otherwise detrimental to the public welfare. The motion to approve the Marks' application for a variance included a proposed finding that the application and evidence clearly support a conclusion that all of the guidelines for variances prescribed in Code Section 45.24 were met. In relevant part, the motion stated: I move to grant the variance . . . because the applicant has substantially met all of the standards for approval as listed in Section 45.24 . . . . I feel there are special circumstances. I feel that strict application of the provisions of the Code would deprive the applicant of the reasonable use of the land or buildings. I feel that waterfront property and the type of . . . expensive home being built that what's proposed is a reasonable use of . . . this unique property. I don't feel that the variance . . . is based exclusively upon the applicant's desire for economic or material gain. And, finally, I don't believe that, if we grant this variance, it would have a negative impact; certainly not on the neighborhood, and I don't believe on Mr. Walter's property because of the fact that his view would not be impaired. . . . Therefore, I think we should grant it subject to the two conditions as recommended by staff. Tape of Board Meeting on December 12, 1996 ("Taped Record"). The motion was seconded and approved by 4 to 1 vote. Material Gain And Public Welfare 23. It is uncontroverted that the variance is not based exclusively upon a desire for economic or other material gain by the Marks within the meaning of Code Section 45.24(3). The granting of the variance will not be detrimental to the public welfare within the meaning of Code Section 45.24(4). Comprehensive Plan As a threshold matter, the Board made no express finding that the contested variance is in harmony with the general purpose and intent of the land development code and comprehensive plan within the meaning of Code Section 45.24(4). Even if such a finding were deemed to arise by necessary implication, it is not supported by competent and substantial evidence before the Board and the Administrative Law Judge. One of the purposes of the land development code and comprehensive plan is to eliminate non-conforming uses. Neither the code nor the plan seeks to perpetuate non-conforming uses. Numerous variances have historically been granted in Harbor Oaks. The Board granted the variance, in part, based on evidence of similar variances previously given for homes in Harbor Oaks, including Appellants' home. A decision to grant a variance based on variances previously given perpetuates non-conforming uses. 5/ It does not eliminate them. A decision to grant a variance because previous variances were granted is not in harmony with the comprehensive plan's goal of eliminating non-conforming uses. Such a decision is not guided by the comprehensive plan within the meaning of Code Section 36.065(6)(b). The proposed residence will be constructed on the bluff that runs the length of the block. The bluff is a unique topographic feature of the City. Protection of the bluff is a goal and objective of the City's comprehensive plan. The Board made no express finding that construction of the proposed residence and recreation area on the bluff will harmonize with the goal of the comprehensive plan to protect the bluff. Even if such a finding were deemed to arise by necessary implication, it is not supported by competent and substantial evidence before the Board and the Administrative Law Judge. The primary reason for building the house on the bluff is the protection of three oak trees in front of the house. The oak trees are specimen oak trees. The respective circumference of each tree is 42, 42, and 60 inches. The evidence before the Board showed: There are several reasons for the way we have situated the house on the piece of property. There are the three large oak trees. One's 42 inches, and the other one's 42, and then there is a 60. They sit approximately 170 feet back from Druid Road, and then there's another 54 inch oak . . . [on adjacent property] which is to the north . . . and its tree limbs go over . . . almost the total front of this piece of property. . . . All these houses I'm talking about . . . were developed in the late 20s, early 30s. There was a house that was on this piece of property that was tore down, and it actually was built . . . in front of the oak trees. . . . We don't have enough width in the lot to put the traditional garage that would face the street in combination with the tree situation. So, what we're doing, we're putting the garage sideways. It'll be a free standing building. It is roughly 80 feet back from Druid Road. And, then the main front of the house . . . is actually going to be built on top of that bluff, and it is about 190 feet back from the street. . . . In rebuttal to testimony by Appellants' attorney at the Board meeting, the Marks' architect testified as follows: The trees . . . in the middle of the property obviously that is something that attracted us to the property because of the beauty of the trees, but we know the difficulty of building around them. . . . [W]e . . . decided to build the house on the back side of the trees because we didn't want to have a view We're going to have to come right up to the back . . . . And, those are obviously very large trunk trees. So, the idea was to put the house to the back side so that our view was not blocked by the trees. But, we want to keep the trees because obviously it enhances the property. I mean that is the beauty of the property; the trees. So, it's either the front or the back, and we determined to be on the back. . . . Taped Record. The Board granted the variance, in part, to preserve the oak trees. That goal is evidenced by the statement of one of the Board members on the record before the Board voted: Before I forget, I wanted to do something unusual . . . and commend [the architect] upon the imagination of his plans. I think those trees are just fantastic, and I'm not a tree man. But, that's a beautiful layout in taking those trees in . . . . Taped Record. No evidence shows that the preservation of oak trees is either an express or implied goal of the City's comprehensive plan or, if it is, that it takes priority over the express goal of protecting the bluff. There is no evidence that the decision to approve a variance for construction on the bluff in order to spare oak trees is in harmony with the comprehensive plan within the meaning of Code Section 45.24(4). Such a decision is not guided by the City's comprehensive plan within the meaning of Code Section 36.065(6)(b). Reasonable Use The Board's finding that strict application of the 15- foot setback requirement will deprive the applicant of the reasonable use of the land or buildings, within the meaning of Code Section 45.24(2), is not supported by competent and substantial evidence before the Board and the Administrative Law Judge. Rather, evidence before the Board and the Administrative Law Judge clearly shows that the Marks can build a house of 5,000 to 6,000 square feet on the property without the contested variance. The Marks can construct a residence with the same footprint, but without the contested variance, by moving the residence to the front of their lot and removing the oak trees. If the Marks do not wish to destroy the trees, they can change the configuration or size of the proposed residence at its current location. Alternatively, the Marks can build the proposed residence in front of the oak trees. At the Board meeting, the attorney for Appellants asked the architect for the Marks the following question: Can a 5 to 6,000 square foot home be built on the applicant's property without the granting of the side setback variances? The architect answered: Yes, the house can be built. But, it can't take full utilization of this piece of property. And, there is a big difference. Taped Record. Code Section 45.24(2) does not require the evidence to clearly show that failure to grant a variance would deprive the applicants of the full utilization of their property. It requires the evidence to clearly show that failure to grant a variance would deprive the applicants of the reasonable use of their property. There can be a "big difference" between full utilization and reasonable use. Moving the residence toward Druid Road so that the foundation, recreation area, and pool are not constructed on the bluff does not deprive the applicants of the reasonable use of their property. The applicants can build the identical house with no variance by eliminating the oak trees. If the applicants choose to preserve the trees, they can do so by changing the size or configuration of the residence in its current site or by moving the site in front of the trees. Use of the property that includes such an array of choices does not deprive the applicants of the reasonable use of their property within the meaning of Code Section 45.24(2). Injury To Appellants' Property The Board's finding that the granting of a variance will not be materially injurious to Appellants' property, within the meaning of Code Section 45.24(4), is not supported by competent and substantial evidence before the Board and the Administrative Law Judge. The Appellants' representative testified before the Board that the granting of the variance will have: . . . an adverse effect on the Walter's home. It's down closer to the Bay, and the way it's situated on the lot, it will cut off a degree or angle of view to the north. . . . Especially where this house is proposed to be constructed, that setback encroaches in the light, view, and air issues. Taped Record. The Board limited the scope of its inquiry to a determination of the effect of the variance on the view from Appellants' home. The Board did not inquire into other adverse impacts on Appellants' property. Other adverse impacts include those caused by the towering effect of the proposed construction. The proposed construction would tower approximately 40 feet over the Appellants' back yard. A 40-foot tower encompassing 5,000 to 6,000 square feet of floor space would encroach into the Appellants' reasonable use of their property including their view, their light, their air, and their privacy. Moving the proposed construction toward Druid Road would reduce the encroachment caused by the current configuration without depriving the Marks of the reasonable use of their property. Special Circumstances The Board's finding that there are special circumstances related to the particular surroundings, shape, or topographical conditions of the Marks' property that do not generally apply to the land or buildings in the zoning district, within the meaning of Code Section 45.24(1), is not supported by competent and substantial evidence. Rather, the record before the Board and the Administrative Law Judge is replete with evidence of the similarities between the construction site and other properties in the neighborhood. The only special circumstance related to the proposed construction site are the oak trees. The City's land development code makes no provision for the protection of the oak trees.
Findings Of Fact Respondent, Circle K Corporation (Circle K), is the owner of a piece of property at mile marker 30.5, big Pine Key, Monroe County, Florida. As sited, the subject property is located within that part of Monroe County designated as an Area of Critical State Concern (ACSC). On June 26, 1986, Circle K applied to Monroe County for a building permit to construct a convenience store, with two service islands for the sale of gasoline, upon the subject property. As sited, the property occupies the southeast corner of the intersection of U.S. 1, also known as State Road 5, and Chapman Road. As proposed, the convenience store would face U.S. 1, and would accord its patrons direct access to U.S. 1 by way of a curb cut that was located 80 feet from the intersection of U.S. 1 and Chapman Road, and direct access to Chapman Road by way of a curb cut that was located 60 feet from the intersection of U.S. 1 and Chapman Road. Attached hereto as Appendix II is a copy of Circle K's site plan, which graphically depicts the proposed project and curb cuts. Pertinent to this case, that portion of Circle K's plan which sought approval to gain direct access to U.S. 1 by way of a curb cut that was located 80 feet from Chapman Road was denied by Monroe County's Planning Director. Circle K appealed that decision to the Monroe County Planning Commission which, on September 3, 1987, reversed the decision of the planning director and approved Circle K's proposal. In so doing, the planning commission articulated the following reasons for its action: The decision of the Planning Director is overturned and the appeal is granted pursuant to: (1. Section 9-1404 granting temporary parallel access on the basis that to deny this would create a safety hazard. AND (2. The FD0T permit is to be considered superior to local driveway permitting. The FDOT (Florida Department of Transortation) permit referenced in the Commission's decision was a connection permit issued by FDOT to Circle K on May 28, 1987. That permit authorized Circle K to connect its driveway to U.S. 1, provided the connection was constructed in accordance with existing FDOT regulations, and carried the following legend conspicuously stamped thereon: VALIDITY OF THIS PERMIT IS CONTINGENT UPON PERMITTEE OBTAINING NECESSARY PERMITS FROM ALL OTHER AGENCIES INVOLVED. On September 25, 1987, the Monroe County Building and Zoning Department, in accordance with the Commission's decision, issued Permit No. A18731 to Circle K. That permit approved Circle K's plan to construct a convenience store on the subject property, with direct access to U.S. 1 as initially proposed. Petitioner, Department of Community Affairs (Department), pursuant to Section 380.07, Florida Statutes, filed a timely appeal with the Florida Land and Water Adjudicatory Commission (Adjudicatory Commission) contesting the propriety of the aforesaid permit (development order) because it authorized development with direct access to U.S. 1 by way of a curb cut spaced less than 400 feet from an existing street on the same side of U.S. 1. Monroe County land development regulations Pertinent to this case, Monroe County Land Development Regulations (MCLDR) provide: ... ACCESS STANDARDS Sec. 9-1401. Major Road Access. No structure or land shall be developed, used or occupied unless direct access to U.S. 1 or County Road 905 is by way of a curb cut that is spaced at least 400 feet from any other curb cut that meets the access standards of the Florida Department of Transportation or an existing street on the same side of U.S. 1 or County Road 905. Sec. 9-1402. Parallel Access. Lots that cannot meet the major access standard in Section 9-1401 shall take access from platted side streets, parallel streets or frontage roads. Such access shall be acquired by installing a parallel street or frontage road, through combined parking lots or by combining lots by sharing drives, or the provision of easements of access. * * * Sec. 9-1404. Temporary Access. No applicant shall be denied development approval for the sole reason that the lot cannot meet the requirements of Sections 9-1401 or 9- 1402. To provide access the Director of Planning shall issue a temporary access permit provided that the landowner's site plan provides for the eventual connection to a parallel access on an adjoining property, and that the owners agree, with suitable legal documents to close the temporary access when connection to adjoining properties is feasible. The foregoing provisions of Monroe County's land development regulations have been found consistent with the Principles for Guiding Development for the Florida Keys Area of Critical State Concern, and constitute land development regulations for the Florida Keys Area of Critical State Concern in Monroe County.
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 reversing Monroe County's decision to issue permit number A18731, and deny Circle K's application for such permit. It is further recommended that such final order specify those items set forth in paragraph 7, Conclusions of Law, as the changes necessary that would make Circle K's proposal eligible to receive the requested permit. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of December, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1988.
