Findings Of Fact On March 11, 1994, FDOT issued Notice of Violation Number CM03114D to Timothy Paletti, d/b/a Suwanee Belle Marina and Restaurant. Mr. Paletti received the notice on March 18, 1994 and timely requested formal hearing. The sign cited in the notice is a mobile sign located on U.S. Highway 19, two hundred feet north of the Gilchrist County Line, in Dixie County. FDOT has not issued a state outdoor advertising sign permit corresponding to the cited mobile sign to Timothy Paletti d/b/a Suwannee Belle Marina and Restaurant. This particular sign has never been permitted to anyone. The cited mobile sign is two-sided so that it can be read by traffic approaching from both directions. It sits on a narrow pie-shaped parcel of land on the west side of U.S. Highway 19, on the north side of River Street as River Street enters U.S. Highway 19 from the west. U.S. Highway 19 and River Street form a "T" at that point. Respondent, in association with Marilou Clark, d/b/a Suwannee River Investment Enterprises, Inc., holds FDOT permits which correspond to outdoor advertising signs located on U.S. Highway 19 (northbound) approximately 100 feet north of Marina Drive. U.S. Highway 19 in Dixie County is part of the federal-aid primary system. The cited mobile sign informs the public travelling U.S. Highway 19 about the services offered at, and the location of, Suwannee Belle Marina and Restaurant. The cited mobile sign is located on property which the county has zoned "environmentally sensitive." Several properties owned by other parties are located between the cited mobile sign and Suwannee Belle Marina and Restaurant. The intervening properties all about River Street, which runs perpendicular to U.S. Highway 19 and which parallels a canal. The parcel of land upon which Suwannee Belle Marina and Restaurant are located is at the point at which the small canal and River Street reach either a larger canal or the Suwannee River, one block west of U.S. Highway 19. The intervening properties are used by their owners for their own private business or personal uses which have no relation to Suwannee Belle Marina and Restaurant. The cited mobile sign is not an official FDOT traffic directional sign. It has displayed such information as, "Boat Rentals," "Live Bait," and "Suwannee Belle Marina and Restaurant (with an arrow symbol)." Since at least 1975, FDOT has required state outdoor advertising sign permits for permanently erected signs which were maintained at or near the site upon which Respondent's cited mobile sign is currently located. Those signs were used to advertise the same marina. Richard Corbin d/b/a Yellow Jacket Marina, Inc., held FDOT permits which corresponded to the permanent signs previously maintained at or near the site of Respondent's cited mobile sign until those permits lapsed for non-payment of the annual sign permit renewal fees. In 1989, Respondent Paletti transacted to purchase the marina from Mr. Corbin. Respondent would not have acquired the marina and restaurant if he had not believed he could simultaneously use the roadside parcel containing the signs. He used all the signs to advertise Suwannee Belle Marina and Restaurant from 1989 onward. Respondent Paletti and Mr. Corbin have been involved in a series of lawsuits ever since 1989. Respondent successfully operated the marina and restaurant from 1989 through sometime in 1991 or 1992. The restaurant was first leased and then closed due to the amount of Respondent's time, energy, and money involved in these lawsuits. In 1993, the restaurant was only used for limited parties. The use of the primary parcel in 1994 is not clear on the record. Without becoming embroiled in minutiae, it is sufficient to find here that Mr. Corbin did not pay his annual FDOT sign permit renewal fees and would not agree to transfer his permits to Respondent, so Respondent paid the fees for awhile. FDOT refused to transfer the old sign permits to him. Respondent stopped paying the sign permit fees. After lapse of the original permits, the previously permitted permanent signs were removed by FDOT. The never-permitted mobile sign was not removed by FDOT. The previously permitted permanent signs were not in place and currently permitted as of FDOT's March 11, 1994 notice of violation for Respondent's mobile sign. Respondent had not timely requested formal hearing with regard to any of the agency actions culminating in the removal of the permanent signs, and as of March 11, 1994, his request time had long passed. James R. Clendenon owns the pie-shaped parcel upon which Respondent's cited mobile sign is located. It is normally a vacant lot except for the mobile sign. He leases it to Respondent. Respondent maintained that although the cited mobile sign is located on a parcel which is physically separate from the primary location of the restaurant and marina business, the two parcels function as one business site and neither parcel can function without the other. This position is grounded upon the need to direct potential customers down the one block of River Street to the primary site of the restaurant and marina because the signs affixed to the restaurant and marina are not readily visible from U.S. Highway 19. River Street sometimes floods. In 1990, it flooded four times and was under water three weeks at a time. Due to flooding in the whole area, Respondent had to pick up guests on the sign site parcel and ferry them down the canal that runs parallel to River Street to the restaurant. During this period, Respondent moved his manager's trailer to the sign site parcel and also sold pontoon boats from that location. FDOT inspectors have visited the site ten times over the last two years and seen nothing on the sign site except the signs. FDOT contended that the "environmentally sensitive" nature of the sign site precludes its use for any commercial purpose, but FDOT's exhibit admitted to support this premise actually provides for special exceptions under the land use plan and zoning statutes for water-dependent commercial uses such as marinas and limited campgrounds. By itself, the sign site could not be used for either purpose. Respondent conceded that the marina and restaurant site can still be used if the sign on the non-contiguous parcel is removed, but he maintained that then his primary site would not be "functional." Based upon his vivid testimony that to remove the sign constitutes "a dagger in the heart of my business," it is found that by "nonfunctional" he means, "financially disastrous." His testimony did not explore any uses other than a restaurant and marina for which the primary location could be used.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Department of Transportation enter a final order requiring Respondent to remove the mobile sign which is the subject of its Notice of Violation Number CM031194D within 10 days of the entry of the final order, and instructing agency staff to remove the sign on the eleventh day if Respondent has not previously done so. RECOMMENDED this 1st day of May, 1995, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 1st day of May, 1995. APPENDIX TO RECOMMENDED ORDER 94-3420T The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-7, 9-11 Accepted except that cumulative material was not utilized. 8 Covered only as proven in FOF 7, 14, and 18. Respondent's PFOF: Respondent's proposed order is divided into some sections not normally recognized in such orders or pursuant to Sections 120.57(1) and 120.59(2) F.S. or Chapter 60Q-2 F.A.C. Respondent has also created two segments, labelled "Proposed Findings of Fact A. Review of Evidence" on pg. 4, and "B. Proposed Findings of Fact" on pg. 8. Review of the Evidence The introductory paragraph is rejected as mere argumentation. Accepted except that unnecessary, subordinate, and/or cumulative material has not been utilized, and legal argumentation has been excluded. Contrary to Section 120.59(2) F.S., the posthearing order, and Rules 60Q-2.024 and 60Q-2.031 F.A.C., this proposal does not number sentences or paragraphs and runs over three pages long. It is rejected for that reason and because it intermixes legal argumentation and factual proposals. The substance not covered in some manner in the recommended order is immaterial or irrelevant, or subordinate, unnecessary and/or cumulative to the facts as found. Proposed Findings of Fact None of these proposals contains any citation to the record, and all are rejected for that reason. PFOF 1, 5, 7, and 9 are rejected because, as stated, they are conclusions of law or legal argumentation. All of PFOF 2-4, 6, and 8 have been covered in substance. COPIES FURNISHED: Helene A. Mayton Assistant General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399 Norm La Coe, Esquire Postal Box 140 226 Gainesville, Florida 32614-0226 Ben G. Watts, Secretary Attn Diedre Grubbs, M.S. 58 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact On or about May 8, 1981, the Department issued permit number AE316-10 to Henderson Signs. This permit authorized the erection of a sign to be located approximately 1.9 miles west of SR 267 in Gadsden County, Florida. This location is in an unzoned area, and the permit was granted because of its proximity to a nearby commercial activity known as Imperial Nurseries. Subsequently, the Respondent, Tri-State Systems, Inc., purchased the subject permit from Henderson Signs, and thereafter the sign in question was erected by the Respondent. The area where this sign was placed is rural in nature and generally suitable for agricultural activities. However, the business being conducted by Imperial Nurseries in 1981 was the growing of ornamental evergreens primarily for wholesale distribution in Northern markets. These ornamental evergreens were grown in containers on top of the ground, and shipped by refrigerated trucks. A view of the area in 1981 would show evergreen plants in containers sitting on top of dry sod. Imperial Nurseries produces three to four million evergreens, does two to three million dollars in business, and employs approximately 130 employees. Although the only structure now situated within 660 feet of the interstate is a weather shed, in 1981 there was a loading dock located within 660 feet of the interstate from which the loading and shipping took place, there was a portable toilet, low bed trucks, semi-trailers, and tractors working near this loading dock, and men working in the area. Prior to the Department's issuance of the subject permit, one of the its inspectors whose duty is to observe a proposed sign site and determine if it is as represented in the application and if it meets the requirements of the statutes and rules, field inspected the proposed site of the subject sign. Based on this inspection he recommended the issuance of the permit upon his determination that this area was unzoned commercial, that the sign site was within 800 feet of a commercial activity known as Imperial Nurseries, and that this commercial activity was within 660 feet of the right of way of I- 10, and visible from the main-traveled way of I-10. There is sufficient credible evidence in the record of this proceeding to support a finding of fact that the subject area was as the field inspector found it to be. The field inspector's recommendation to approve the site as a permittable location was joined in by his supervisor after the supervisor had also conducted a field inspection of the area. Both of them based their approvals on their observations in 1981 of commercial activities being conducted within 660 feet from I- 10. The site where the Respondent erected its sign was within 800 feet of the place where the loading dock was situated in 1981. The assertion of Henderson Signs on its sign permit application that the proposed location was within 800 feet of a business was not false or misleading. The Department's inspector and his supervisor concurred in this characterization of the area. Neither has the Respondent violated any of the provisions of chapter 479, Florida Statutes. All of the facts were set forth on the permit application submitted by Henderson Signs, and these facts were verified by the Department after the area was inspected to determine their accuracy. The policy of the Department leaves the determination of what is and what is not an unzoned commercial area to the field inspector, with the approval of his supervisors. In this case, the determination was made that the activities of Imperial Nurseries were commercial in nature, and the permit was granted on the basis of this determination, not on the representation of Henderson Signs or the Respondent. In the summer of 1984, the subject site was inspected by the Department's Right-of-Way Administrator, who determined that the business being conducted by Imperial Nurseries in 1984 was agricultural, and not commercial in nature. Although Imperial Nurseries now has an agricultural exemption on its property, there is no evidence that it had this in 1981, and the facts support a finding that Imperial Nurseries is a commercial activity and was such in 1981. There is no statutory definition of "agricultural" 1/ and the Department has not defined the term by rule. Webster's New Twentieth Century Dictionary, Unabridged, Second Edition, defines "agricultural" as the cultivation of the ground, the art of preparing the soil, the tillage or the culture of the earth. These are not the activities of Imperial Nurseries now, and were not in 1981.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department's violation notice seeking removal of the Respondent's sign on the north side of I-10, approximately 1.9 miles west of S.R. 267 in Gadsden County, Florida, be dismissed; and that permit number AE 316-10 remain in effect as a permit for a nonconforming sign. THIS RECOMMENDED ORDER entered this 1st day of August, 1985, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS 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 1st day of August, 1985.
Findings Of Fact Prior to March of 1981, Maxmedia held permits 8463-6 and 8462-6 issued by the Department for signs on property leased from Lust Industries located approximately at the intersection of U.S. 17/92 and Virginia Avenue in the city of Orlando, Florida. On March 23, 1981, Maxmedia advised the Department that the sign for which it held the above permits had been dismantled, and permits numbered 8463-6 and 8462-6 were returned to the Department for cancellation. On March 18, 1981, the Department received the application of Lust Industries for a sign at the location where the Maxmedia sign had been permitted, to be erected on property owned by Lust Industries. This application contained several irregularities, and the Department accepted it as an application only for the south face of the proposed sign. On May 27, 1981, the Department received the application of Lust Industries for the north face of this sign. The requested permits were issued by the Department on May 27, 1981. On February 24, 1981, Maxmedia executed a lease to property located approximately 30-50 feet south of the Lust Industries property. The term of this lease was to run from April 1, 1981 to April 1, 1984. On March 21, 1981, the Department received an application from Maxmedia for permits to erect signs at the location 30-50 feet south of the location owned by Lust Industries where Maxmedia had permits until it surrendered them. These permits were denied by the Department because of the permit application already received from Lust Industries for a sign 30 to 50 feet to the north. On March 23, 1981, Maxmedia applied to the city of Orlando for a building permit to erect the sign at its leased location south of the Lust Industries property, and this permit was issued to Maxmedia by the city. In January or February, 1981, Lust Industries had applied to the city of Orlando for a permit to build a sign on property near the sign of Maxmedia which was dismantled in March of 1981, but the requested city permit was denied because of the proximity of this location to the Maxmedia sign. After, the Maxmedia sign had been taken down, Lust Industries again applied for a city of Orlando building permit, but this was after the city permit had already been issued to Maxmedia; thus, the city again denied a permit to Lust Industries due to the existence of the outstanding permit held by Maxmedia. In May or June of 1981, after having received a building permit from the city of Orlando, and after having leased the property, Maxmedia proceeded to erect the sign 30-50 feet south of the Lust Industries property. It is this sign that is the subject of the Department's violation notice issued on June 30, 1982. It is the existence of this sign of Maxmedia, permitted by the city of Orlando, and erected on land currently leased, that prevents Lust Industries from obtaining the city of Orlando building permit it needs in order to be able to erect a sign 30 to 50 feet to the north. Thus, the Department seeks to revoke the state permits it issued to Lust Industries which violate the harmony of regulations provisions of the statutes and rules.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue its Final Order revoking the permits held by Lust Industries, dismissing the Notice of Violation against Maxmedia, Inc., and granting the application of Maxmedia, Inc., for permits as requested in its application received on March 24, 1981. THIS RECOMMENDED ORDER entered on this 18th day of April, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS 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 18th day of April, 1984. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Building, M. S. 58 Tallahassee, Florida 32301-8064 William F. Poole IV, Esquire 644 West Colonial Drive Orlando, Florida 32802 Gerald S. Livingston, Esquire P. O. Box 2151 Orlando, Florida 32802 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether or not the business Respondent was associated with exceeded the scope of his contractor's license concerning the type of work undertaken, as described in the Amended Administrative Complaint, thereby violating Sections 489.129(1)(j), 489.115(1) and 489.117(2), F.S.? Whether or not Respondent failed to properly supervise the job site activities on that job, thereby violating Sections 489.129(1)(m), (j); 489.119, and 489.105(4), F.S.? Whether or not Respondent committed gross negligence, incompetence, or misconduct in connection with said job in violation of Section 489.129 (1)(m), by failure to supervise the contracting activities of the contracting business he was responsible for, so that Jorge Otero, President of Deluxe Construction Co., could obtain a building permit, exceed the scope of Respondent's license, and perform work that exhibited numerous defects? BACKGROUND AND PROCEDURE At the commencement of formal hearing, the parties stipulated ore tenus that Paragraph 6 of the Amended Administrative Complaint would be further amended to read: The business Respondent was associated with exceeded the scope of his license concerning type of work, violating Section 489.129(1)(j); 489.115(1)(b); 489.117(2). Thereafter, they entered into certain stipulated facts which are reflected among additional facts as found in this recommended order. Petitioner presented the oral testimony of Lolv Jaramillo, Herbert Gopman, Jorge Otero, and Frank Abbott, and had admitted four exhibits. Respondent presented neither oral testimony nor offered any exhibit. No transcript was provided. Respondent late-filed its post-hearing proposals, but each party's proposed findings of fact have been considered and are ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2), F.S.
Findings Of Fact At all times material, Respondent was a licensed certified building contractor in the State of Florida, holding license number CB C002799 and was listed as the sole qualifying agent for Deluxe Construction Company. Deluxe could have had more than one qualifying agent but it did not. Jorge Otero was the sole owner, officer, and director of Deluxe Construction Company (Deluxe). He is not now, and never has been, a licensed contractor. Deluxe was formed in 1986, and Otero operated the company out of his home. In August 1986, Deluxe contracted with Lolv Jaramillo to remodel the Jaramillo residence in Miami for $23,800. Prior to the Jaramillo job, Deluxe had remodeled or added to several other residences. On those jobs, Respondent signed the building permit applications brought to him by Otero and made periodic inspections of the work, but Respondent never accepted any compensation from Deluxe for his services as qualifying agent of the company. Respondent was employed full-time otherwise. Before the Jaramillo job, Otero had had similar relationships with other contractors. Prior to beginning construction, Respondent met the Jaramillos at their residence at the request of Otero to discuss the possibility of the Jaramillos arranging a second mortgage through the brokerage firm which was Respondent's regular full-time employer. The Jaramillos were not told, and were not aware, that Respondent was affiliated with Deluxe. They relied on no representations of Respondent in eventually selecting Deluxe to do their construction job. The eventual contract between the Jaramillos and Deluxe was not conditioned on borrowing from Respondent's regular employer, and, in fact, the Jaramillos did not borrow from Respondent or his employer and obtained their financing elsewhere. The Jaramillos eventually instructed Otero to begin work, which he did. Otero first obtained the necessary building permit by going to the building department, filling in Respondent's contractor's license number on the application there, and signing his own name as qualifier. When Otero signed for the building permit, Respondent was out of town. Otero did not inform Respondent in advance of what he was going to do nor did Respondent discover Otero had done this until much later. On all previous contracts, Respondent had signed the permit applications and made the inspections in the manner described in finding of fact 5, supra. Respondent had done nothing to encourage Otero to think he could obtain a building permit as he did for the Jaramillo job. After Deluxe began construction at the Jaramillos' home, Otero was the sole supervisor on the job. After the Jaramillos paid Deluxe $14,000 of the contract price, they became dissatisfied with the pace and quality of the work done by Deluxe and they terminated the contract. According to Harry Gopman, structural engineer, the work done by Deluxe contained violations of local construction codes, but there is no evidence that Otero, Respondent, or anyone associated with Deluxe was convicted or found guilty of any crime. The work undertaken by Deluxe included plumbing work which Respondent was not licensed to perform. The work done by Deluxe and subcontractors under its supervision contained deviations from acceptable industry practice, including rendering a major load-carrying girder useless by penetrating it for the insertion of an air duct for the central air-conditioning system; cutting a concrete doorway lintel for insertion of another air duct, thus destroying the structural integrity of that lintel; and creating a structural hazard by placing a flat roof on the rear addition which severely "ponded" in rainstorms. From the evidence as a whole, it may be inferred that Respondent originally knew he was the sole qualifying agent for Otero/Deluxe. Otero did not affirmatively tell Respondent he had another qualifying agent for the job. However, since Otero kept telling Respondent that the Jarmillos were still having trouble getting financing, it was reasonable for Respondent to believe a building permit was not needed and construction would not begin until financing was found. It was after the commencement of construction, but prior to the termination of the contract by the Jaramillos, that Otero finally informed Respondent that he had begun work on the Jaramillo residence. It is not clear whether Respondent knew that the building permit bore his license number until after the termination of the contract. Respondent never visited the Jaramillo job site during construction. Respondent did not monitor the company finances, did not review subcontractual agreements, did not review invoices from subcontractors and materialmen, and did not call for inspections on the Jaramillo job. There is unrefuted expert testimony by Frank Abbott, architect and licensed general contractor, that a qualifying agent should do the things, but there is insufficient evidence to show that Respondent had a clear understanding that such was his position for the Jaramillo job.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing all charges against Respondent. DONE and RECOMMENDED this 31st day of August, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 31st day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0654 The following constitute rulings pursuant to S. 120.59(2), Florida Statutes, upon the parties' respective Proposed Findings of fact (FOF). Petitioner PFOF: 1-7, and 9-15. Accepted as modified to more exactly reflect the unrefuted testimony. 8. Accepted except for hearsay and subordinate and unnecessary material. Respondent's PFOF: 1-5, 7, 9. Accepted as modified to more exactly reflect the unrefuted testimony. 6. Rejected as stated. FOF 7 and 12 more correctly reflects the state of the record as a whole. 8. Rejected as stated because as stated it is a legal conclusion. A finding of fraud requires a finding of an affirmative intent which cannot be made upon the evidence presented. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 103 North Monroe Street Tallahassee, Florida 32399-0750 Lance Armstrong, Esquire 1035 Northwest 11th Avenue Miami, Florida 33136 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue Whether Building Permit No. 9210004560 issued by Monroe County, Florida, to Ken Bockhaut as owner and Shoremont Holiday Homes, Inc. as contractor for the construction of a dock as a structural accessory to a single family dwelling is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations.
Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. The appeal in the instant proceeding was timely. No appearance was made by Respondents Ken Bockhaut or Shoremont Holiday Homes, Inc., and there was no evidence submitted in support of the permit that is the subject of this appeal.
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 which sustains the appeal filed by the Department of Community Affairs and which rescinds building permit number 9210004560. DONE AND ENTERED this 26th day of January, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1993. COPIES FURNISHED: Lucky T. Osho, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Randy Ludacer, Esquire Monroe County Attorney Fleming Street Key West, Florida 33040 Ken Bockhaut H-17 Miriam Street Key West, Florida 33040 Shoremont Holiday Homes, Inc. Post Office Box 1298 Big Pine Key, Florida 33043 William R. Kynoch, Deputy Director Florida Land and Water Adjudicatory Commission Executive Office of the Governor Carlton Building Tallahassee, Florida 32301 Carolyn Dekle, Director South Florida Regional Planning Council Suite 140 3400 Hollywood Boulevard Hollywood, Florida 33021 Robert Herman Monroe County Growth Management Division Public Service Building, Wing III 5825 Jr. College Road Stock Island Key West, Florida 33040 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: By Warranty Deed dated July 2, 1982, petitioner was conveyed "Lot 151, Less the South 1/2 thereof" in Glenwood Subdivision. Lot 151 is presently zoned RS-50. The minimum lot area per dwelling unit in an RS-50 district is 5,000 square feet. Section 131.044, Code of Ordinances of the City of Clearwater. According to the subdivision plat, Glenwood Subdivision contains 154 platted lots, with an average lot size of 8,844 square feet. The smallest platted lot in the subdivision is 6,000 square feet. Lot 151 contains approximately 12,000 square feet. There is an existing single-family dwelling on the southern portion of Lot 151 which portion contains 7,700 square feet. Computations performed from a metes and bounds description of the northern part of Lot 151 which was conveyed to petitioner illustrates that petitioner's portion of Lot 151 contains 4,320 square feet. Section 20-2 of Ordinance No. 1449 provides, in part, that: ". . .Building permits shall not be issued for structures located on subdivided property created subsequent to the adoption of this Ordinance unless such plat of record is recorded in the Public Records of Pinellas County. The City Commission may permit lots of record to be cut in size to not less than the zone permits, without requiring a replat." No request was made to and no approval was given by the Clearwater City Commission to divide Lot 151, a platted lot. The restrictions for Glenwood Subdivision require that only one single- family dwelling house be erected on any single lot or plot. In August of 1982, petitioner applied to the Building Inspection Department of the City of Clearwater for a building permit to erect a single- family residence on his property. Apparently, a survey of the property did accompany the application, but no one in the Building Inspection Department verified the lot size. Petitioner was issued a building permit. Prior to October 27, 1982, petitioner had the land cleared, made soil boring tests, paid water meter fees, laid pilings and had the foundation and walls in place for the lower level of his new residence. The costs of this work, and other expenses related thereto, amounted to some $18,350.00. On or about October 27, 1982, the City issued a "red tag" on the project because it was discovered that petitioner's lot size was substandard. This was the first notification petitioner had of any problem with his lot size. He had never made inquiry concerning the zoning requirements for his lot. Petitioner continued construction on his residence. Two more "red tags" were issued on or about November 2 and November 25, 1982. On the latter date, petitioner was ordered to stop work on the project. Petitioner estimates that between August, 1982, and the date of his hearing (January 26, 1983), he expended approximately $40,710.00 on the purchase of his land and the partial construction of his residence. As noted in the Introduction, petitioner's application for a variance from the lot size requirements was denied by the City's Zoning Enforcement Officer, his appeal to the Board of Adjustment and Appeal on Zoning was denied and the instant proceeding resulted.
