The Issue This matter concerns the request by the Petitioner James A. Connell to be granted variances within the meaning of Section 131.016(b), City of Clearwater Building and Zoning Regulations. In particular the Petitioner has asked that he be given a variance from the side yard setback requirements for narrow parcels established by Section 131.200(b)(3)a.2., City of Clearwater Building and Zoning Regulations, and a variance to the requirements of Section 131.200(b)(3)e., dealing with clear space. The zoning classification in question is RM-8, as set forth in Section 131.048, City of Clearwater Building and Zoning Regulations.
Findings Of Fact On November 17, 1980, the Petitioner, James Connell, filed an application requesting a variance from the side setback requirements of Section 131.200(b)(3)a.2., City of Clearwater Building and Zoning Regulations, asking for a reduction from 30 feet to 10 feet and further requesting that the clear space requirement of having only one side yard setback to be used for parking, with the other side yard setback for clear space from street to water, with the further possibility that that space be used for driveways of parking below street grade, as stated in Section 131.200(h)(3)c., be modified to grant the Petitioner a variance. The extent of this latter variance would be for clear space offered in the center portion of the project which gives 24 feet in width essentially unobstructed clear space, with an additional 20 feet space street to water on each side of the 24 feet unobstructed space, which north/south 20 foot expansions are constituted of driveways for the eight (8) proposed dwelling units to be constructed by the Petitioner. The real property under consideration is owned by the Petitioner and zoned RM-8 within the meaning of Section 131.048, City of Clearwater Building and Zoning Regulations. The address is 1012-1016 North Osceola Avenue, Clearwater, Florida. This case was presented before the State of Florida, Division of Administrative Hearings, on March 25, 1981, following a public hearing of January 15, 1981, in which the Board of Adjustment and Appeal on Zoning, City of Clearwater, Florida, had made an adverse ruling to the position of the Petitioner. The tape of the proceeding on January 15, 1981, may be found as Petitioner's Exhibit No. 3, admitted into evidence. The site plan of the project in question has been reviewed by the Resource Development Committee of the City of Clearwater with a recommendation for approval of the project, conditioned upon the attainment of variance exceptions. A copy of the application for variance may be found in the City of Clearwater's Composite Exhibit No. 4, admitted into evidence. Through that application form, and in the course of the hearing, the Petitioner expressed concern about the survival of two 36 inch in diameter mature oak trees located on the property in question and also mentioned that the drop in elevation of the eastern side of the property front on Osceola Avenue North to the waterward western extreme of the property at Clearwater Harbour becomes dramatic approximately two thirds from the eastern extent of the property line making utilization of the latter third to the west difficult. In combination, this topographical reality and the location of the two oak trees, according to the Petitioner, would make it difficult to construct a project oriented to the center of the property, in an effort to comply with the "clear space" requirements. The Respondent, City's Exhibit No. 1, admitted into evidence, is a site plan which depicts the Petitioner's proposals and it shows that lot to be approximately 160 feet in width and from 355 to 360 feet in length, the width relating to a roughly north/south orientation and the length a roughly east/west orientation. The drawing depicts the proposed ten foot side setback, the 24 foot clear space with additional 20 feet north/south associated with the driveways. The proposal would leave in tact the aforementioned oak tree or trees located in the approximate center of the 24 foot vista space. (In that connection, although the Petitioner has attempted by his plan to save some of the trees, the plan as drawn for unit four of the eight unit townhouse complex depicts the removal of a 40 inch oak tree.) The lot drops from a 26 foot to a 17 foot elevation from the street to Clearwater Harbour. The effect of that drop would be to limit the percentage of an automobile that could be seen if located in a driveway toward the waterward side of the site. The Petitioner's Exhibit No. 1 and the City's Composite Exhibit No. 2 are photographs of the building site. Through the hearing process no one has objected to the grant of the variances in question and one person who resides In the neighborhood spoke in favor of the project.
Findings Of Fact The Applicants acquired in 1960 for approximately $40,000 a 38 acre parcel of real property located adjacent to Governors Creek just outside the corporate limits of the City of Green Cove Springs in Clay County, Florida. The applicants created an unrecorded subdivision by subdividing the parcel into lots approximately one-half acre in size in accordance with a map dated July 19, 1961 which shows 50 numbered lots, access roads to these lots, and three parcels designated as not being included in the subdivision. The map of the subdivision was never recorded in the office of the Clerk of the Court of Clay County, but the tract has been referred to variously as the Bradley-Triplett Subdivision and Governor's Creek Subdivision. The Applicants began to develop the tract in 1961 for the purpose of selling the lots therein as single family home sites. Their activities included clearing and grading all the roads shown on the map and installing storm drainage structures. Shortly after the initial work was done, the Applicants approached the County Supervisor of Roads, James Knowles, and the County undertook maintenance of the roads. At the time development began, Clay County had no subdivision regulations, and there was no requirement to record the plat of the subdivision. A map of the subdivision was given to the County at the time it began to maintain the roads in 1961. Sales of lots in the subdivision began in 1961, and several lots were sold in the subdivision over the next few years. However, sales efforts were discontinued in 1965 because of the poor market. At the request of the Applicants, the County ceased to maintain a portion of the roads in 1975 in an effort to prevent dumping of garbage in the area. Initially, the subdivision was zoned agricultural. In June 1976, Mr. Bradley appeared before the Clay County Zoning Commission and requested the zoning of 30 acres of the tract be changed from BB to RB which permitted one single family dwelling per one-half acre. This request was granted. In June 1976, Mr. Bradley wrote Mr. John Bowles, Public Works Director of Clay County, requesting permission to install water lines within the graded road rights-of-way as shown on a map submitted by the Applicants which depicted all the lots which are the subject of the instant Petition for vested rights. This permission was granted by Bowles, and the Applicants paid $8,000 for the installation of water lines and fire hydrants in the subdivision. Water service is provided by the City of Green Cover Springs. In August 1976, the Applicants presented to the County a Warranty Deed for the roads shown in the Map. The County accepted the roads and agreed to continue to maintain the roads if certain improvements were made. Subsequently, the Applicants worked on making the improvements requested by the County, and the County continued to maintain the roads. The subdivision has appeared on maps used by various County departments for many years. In June 1978, Mr. Bradley appeared before the Clay County Planning, Zoning and Building Commission and requested that the remainder of the subdivision be re-zoned from agricultural to RB. This request was granted. In September 1978, the Public Works Department of Clay County requested the Applicants perform additional work on the road network in the subdivision to include creating a 20 foot drainage easement, construction of a drainage ditch, installation of street signs, and other improvements regarding grading and drainage. The drainage easement was granted to the County, and the drainage ditch was apparently constructed together with some of the other requested improvements; however, not all of the requested improvements were completed to the County's satisfaction. In March 1980, Mr. Bradley wrote Mr. Bowles a letter granting the County access to the roads within the subdivision for the purpose of maintaining them. In 1983, the County adopted new standards for the acceptance of roads not located within platted subdivisions. At this time, the Applicants became concerned about the status of the roads, and appeared before the County Commission. In November 1983, they contacted Mr. Bowles regarding their concerns. The status of County-requested improvements was a subject of continuing correspondence between the County and the Applicants. As a result thereof, the Applicants again undertook to satisfy the County regarding the list of requested improvements to the roads, and expended additional money on these improvements. The Applicants have spent over the years $20,000 on the roads, $15,000 on the water system and fire hydrants, and $4,000 on the drainage system within the subdivision. In 1984, the County Commission determined that it would not accept responsibility for maintenance of the roads, but that it would not re-convey title to the roads to the Applicants. The County has not altered its position since that determination. There are 50 numbered lots in the subdivision, and three unnumbered outparcels, some of which have been subsequently subdivided by sales. The unnumbered outparcel located in the northeast corner of the subdivision will be designated in this order as the unnumbered northeast parcel. The remaining unnumbered lots will be designated in this order as Lots A through G, which are located as follows: Lot A, located to the west of Lot 33; Lot B, located to the north of Lot A; Lot C, located to the north of Lot B; Lot C, located to the north of Lot B; Lot D, located to the north of Lot C; Lot E, located to the north of Lot D; Lot F, located to the north of Lot E, and Lot G, located to the north of Lot F. The County concedes there are 19 lots of record in the subdivision: Lots numbered lots 1, 8, 9, 10, 11, 12, 13, 33, 34, 35, 36, 37, 40, 41, 42 and 43 plus the lots designated above as Lots A, D and F. The Hearing Officer includes Lot E as one of the recorded lots because it was subdivided from Lots D and F, which the County recognizes as lots of record, after the parcel from which the three lots were created was sold as one lot. Lots 1, 8, 9, 10, 11, 12, 13, 33, 34, 35, 36, 37, 40, 41, 42, 43, and unnumbered Lots A, D, E, and F meet the Plan's criteria for development, and are not at issue in these proceedings. The Plan requires that over 70 percent of the total number of lots in a subdivision created between 1959 and 1970 be sold for the remaining lots to statutorily vest. The Applicants' subdivision does not meet the criteria in the Plan for statutory vesting because the requisite percentage of lots have not been sold. The lots at issue in the Applicant's request for equitable vesting are the remaining numbered lots ( 2, 3, 4, 5, 6, 7, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 38, 39, 44, 45, 46, 47, 48, 49, and 50), the unnumbered northeasterly parcel, and the lots designated in this order as Lots B, C, and G. On January 23, 1992, the Board of County Commissioners of Clay County formally adopted the 2001 Comprehensive Plan pursuant to and in compliance with Chapter 163, Part II, Florida Statutes. On November 23, 1993, the zoning of the subdivision was administratively changed to AR-2 which permits the building of single family residences at a density of one per five acres. None of the lots at issue are five acres in size and qualify for further development. A total of 12 homes have been built in the subdivision, each having an average size of 1,800 square feet and occupying lots approximately 1/2 acre in size. The existing layout of the roads does not permit consolidation of the unsold existing lots into five acre lots. Even if they could be consolidated, the increased costs of a five acre lot would dictate the construction of a house larger than 1,800 square feet. In sum, enforcement of the current plan's provisions will prevent any further development of a valuable piece of property conveniently located adjacent to the City of Green Cove Springs in a subdivision which has been recognized and considered in the County's development plans and maps for thirty years.
The Issue Whether the Notice of Intent to Modify Driveway Connection, in which Respondent, Florida Department of Transportation (“FDOT”) seeks to close a driveway on Petitioner’s property to eliminate potential traffic issues and reduce the number of access points to the roadway, is consistent with sections 334.044(14), 335.181, and 335.182, Florida Statutes, and Florida Administrative Code Rules 14-96.011 and 14-96.015.
Findings Of Fact The Witnesses Mr. Maassen testified that John and Kathryn Maassen were his parents and are deceased.6 Although an argument could be made that Mr. Maassen was not the proper party to this case, no one raised this as an objection, and both parties actively participated in the hearing. Nicolas Leon is employed by FDOT as a roadway engineer supervisor III. He holds a bachelor’s and master’s degree in civil engineering, and is a licensed professional engineer. Mr. Leon’s duties and responsibilities include being the engineer of record and/or project manager on multiple transportation projects. He oversees a team of roadway and traffic designers, project managers, and engineers. Leanna Schaill is employed by FDOT as a traffic services access management manager for District One. She has a degree in mechanical engineering, and manages a team of four FDOT employees who review all the access management applications for driveway connection permits throughout District One. Joel B. Hobbs is employed by FDOT as an operation program engineer. He works at the FDOT maintenance office which is west of the property at issue. FDOT’s Process FDOT conducted an analysis of SR 70 in DeSoto County, Florida by evaluating the roadway, side streets, median openings, access connections, intersections, and intersections signalizations. A roadway project was formulated to bring the facility into compliance with state statutes and rules. 6 Mr. Maassen’s Exhibit N was a copy of Warranty Deed regarding “Lots 12, 13, and 14 of Block B, Fountain Park Subdivision, Arcadia Florida,” executed between Elon N. and Alesia J. Duncan to John S. and Kathryn Maassen dated April 21, 1961. FDOT is charged to use a forward-looking process to bring all state roadways into compliance with FDOT’s design standards. These design standards, set forth in FDOT’s statutes and rules, are to protect and ensure the public health, safety, and welfare for all users of the state roadway, including vehicles, pedestrians, and bicycles. FDOT is required to follow the Access Management Act found in chapter 335.18, and 14-96 and 14-97 to evaluate the roadway. Property owners who have property directly adjacent to a state roadway share a property boundary with the state roadway. Those property owners are entitled to reasonable and adequate access to their property. However, the property owner is not entitled to unregulated access to that property. See § 335.181(2), Fla. Stat. FDOT was statutorily directed to adopt rules that provide an administrative procedure for closing unpermitted connections. See § 335.182(2), Fla. Stat. As found in rules 14-96 and 14-97, an unregulated access, such as a driveway, is one that has not been permitted by FDOT, and may create safety and operational concerns because it may not be constructed or designed in compliance with FDOT’s standards. Driveway connections on state roads must be permitted or grandfathered. See § 335.1825, Fla. Stat.; Fla. Admin. Code R. 14- 96.011(3)(a). A driveway is grandfathered if it was in existence prior to July 1, 1988, when access permits were first required. See Fla. Admin. Code R. 14-96.011(3)(a). To retain the grandfather status, a driveway must be consistently used by the owner or business proprietor. If the property use is changed, that property loses the grandfathered status. When a property use changes, the owner has the ability to apply to FDOT for an access permit for the access connection. FDOT reviews those applications and may grant or deny the application. Driveway confusion and driver confusion occur when a driver “is presented with too many choices to make in a short period of time due to the inefficiency or difficult driveway location.” Such driveway confusion could cause a driver to make a wrong choice as to when, where, and how to move their vehicle within a driveway area, attempt to enter a driveway, or exit the driveway into the flow of traffic. FDOT’s Proposed Project and Property FDOT proposed a “roadway improvement project reconstruction on SR 70 in DeSoto County,” Florida. The project is approximately 1.8 miles in length beginning just east of Peace River, and heading east into Arcadia, Florida. The project includes both the eastbound and westbound lanes of SR 70, a divided roadway, sometimes called “one-way pairs.” FDOT proposed to: reconstruct the pavement through repaving the roadway; install a new closed-drainage system for storm water; install a new sanitary sewer line; create new signage; improve pavement markings; install signalization; and provide lighting improvements. Additionally, at the intersection of SR 70 and Baldwin Avenue (“Baldwin”), FDOT proposed to install a west-bound right turn lane onto North Baldwin. For the majority of the project, FDOT proposed to install eight-foot- wide ADA7 compliant sidewalks with ramps at the intersections. However, in the area where the 100-foot driveway would be closed, a six-foot-wide sidewalk with intersection ramps would be created along the curve in SR 70, based on the limited right-of-way. Ms. Schaill testified that using the “same criteria and regulation, statutes, and Administrative Code,” her team analyzed 120 driveway access connections along the proposed project corridor. Of those 120 driveway access connections, 14 were identified for modification due to safety and operational concerns. 7 The term “ADA” was understood to refer to the Americans with Disabilities Act of 1990, a civil rights law that prohibits discrimination based on disability. Five of the 14 driveway access connections were identified for closure due to safety and operational concerns. The property containing the approximate 100-foot driveway with direct access to SR 70 at issue here is a 0.43-acre parcel located at the northeast corner of Baldwin and SR 70, Arcadia, Florida. The 100-foot driveway has been in use since the 1960s. The property was a gasoline station for many years. However, in the 1990s, the property use changed from a gasoline station to a sign shop, known as DeSoto Sign (“Shop”). Petitioner’s Objection and Position Mr. Maassen objected to FDOT’s proposed closure of the Shop’s 100-foot driveway with direct access to SR 70. The Notice used the term “modification,” yet it also contained the sentence: “[T]he existing driveway will be closed, as per the attached plans.”8 Mr. Maassen’s position was that the terms: “modification” and “closure” are not the same. The Notice provided that the closure would “reduce the number of access points to the roadway and eliminate potential traffic issues.” The Notice also provided that the potential modifications would “improve safety or traffic operations on” SR 70. Mr. Maassen offered 10 “FLORIDA TRAFFIC CRASH REPORT[s]” dated May 2016 to December 2020 to support his contention that automobile crashes at or near the Shop were not the issue. He alluded that Exhibit “I,” a crash report from May 2017, provided the only instance where a bus was parked parallel to SR 70 on the 100-foot driveway. The report mentioned the parked bus as a contributing factor to a two-car accident. However, it is noted that the crash report is over four years old. 8 As indicated above, only one drawing or plan was attached to the Notice. Mr. Maassen acknowledged that a long-bed blue tractor-trailer has parked (and still parks) parallel and next to the Shop, along Baldwin. He also acknowledged at times the tractor-trailer traveling westbound on SR 70 may have maneuvered into that parking location by blocking traffic on SR 70. It is Mr. Maassen’s belief that FDOT is using that tractor-trailer as its basis for the proposed closure of the 100-foot driveway. Mr. Maassen testified that the tractor-trailer driver should be educated and/or ticketed by law enforcement to stop the parking maneuver. Mr. Maassen further testified that if the driver could not be educated as to how to drive or park appropriately, his license should be revoked. Mr. Hobbs, the only witness to actually see the tractor-trailer parking maneuver, conceded that “within the last year,” the tractor-trailer is “no longer pulling out directly onto 70. He is pulling up adjacent to the through lane and starting his maneuvers to back up into the parking position.” The tractor-trailer is now traveling south on Baldwin, pulling onto the Shop property via the Baldwin connection, and maneuvering into the parallel parking position next to the Shop. Mr. Maassen had no idea whether the 100-foot driveway, with the direct access to SR 70, was permitted at the time it was constructed or since that time. He made the point that someone would not “go out and cut a hole in a driveway for a roadway without somebody knowing about it.” Mr. Maassen acknowledged the speed limit on SR 70 in front of the Shop was 45 miles per hour. Further, Mr. Maassen pointed to section 335.184(3), and argued that when the roadway was repaved, or work done on the Shop property, “[T]here’s been no reason to make a change.” However, he did not provide any testimony as to when any re-pavement or work was done on SR 70 or on the Shop property. His position is the 100-foot driveway gives the property reasonable access for Shop customers. Mr. Maassen asserted FDOT's proposed action leaves him without "reasonable access" to the Shop property. He testified: I cannot take a delivery vehicle off a side street, make a U-turn, turn it around on that driveway and bring it back out on the side street. A vehicle of any size or nature, any of the businesses that the sign shop actually works with that has a vehicle with a trailer will be limited. There’s a canopy in the middle of that driveway which prevents you from making any type of a U- turn out there with any type of a dual vehicle. We need to have a complete access through the property from one side to the other, not just being able to pull onto one side. This is not a retail outlet. This is an operational facility where they’re doing work on vehicles out front that must be able to be brought across the driveway, not just pull on it and back out. His contention is that this action (maneuvering around the Shop property) “is reasonable access for customers.” However, maneuvering on the Shop property is considered internal circulation, and not what FDOT is charged with regulating. FDOT’s Position FDOT is the state agency responsible for regulating access between state roads and private property abutting those roads. See §§ 335.18 through 335.188, Fla Stat. SR 70 is a part of the Florida state highway system. The Shop’s direct connection, meaning the access, or driveway, connecting the parcel onto SR 70, runs parallel to SR 70 and is approximately 100 feet long, with a curb somewhere in the middle. The approximate length of the curb was not provided, nor was its existence challenged. This direct connection begins approximately 10 feet from the intersection of SR 70 and Baldwin. The Shop’s second connection (“second driveway”) lies on Baldwin and is approximately 75 feet long. This is an indirect connection as it connects the Shop property to Baldwin, the side street which directly connects to SR 70. The second driveway is not subject to any changes in the Notice. SR 70 is classified as a class 5 road. See Fla. Admin. Code R. 14- 97.003(1), Table 2. The class 5 designation is assigned to roadways that “are controlled access facilities where adjacent land has been extensively developed and where the probability of major land use change is not high.” See Fla. Admin. Code R. 14-97.003(2)(b)4. The rule provides that for a driveway connection on a class 5 road, which has a posted speed limit of 45 miles per hour, there must be at least 245 feet between the access connections on driveways, side streets, or adjacent properties. Ms. Schaill confirmed that at the intersection of SR 70 and Baldwin, the speed limit is 45 miles per hour. Further, she testified that the distance between the Shop’s 100-foot driveway abutting SR 70 and the Baldwin intersection is approximately 10 feet. Thus, the Shop’s 100-foot driveway is an unregulated access, in that it does not meet the spacing requirement identified in rule 14-97.003(2)(b)4. Ms. Schaill testified that this unregulated access is FDOT’s reason for closing the driveway. As provided in paragraph 9 above, “driveway connections on state roads must be permitted or grandfathered.” See § 335.1825, Fla. Stat.; Fla. Admin. Code R. 14-96.011(3)(a). There is no question that the gasoline station’s direct connection was in place prior to 1988. However, the use of the property changed to the Shop in the mid-1990s without an access permit application being submitted to or granted by FDOT. Ms. Schaill testified the Notice was FDOT’s second letter communicating the intent to modify the Shop’s property access. Further, FDOT staff met with Mr. Maassen or his brother at the Shop property to discuss the proposed project. Numerous telephone conversations occurred between Mr. Maassen and FDOT staff regarding the proposed project. Ms. Schaill credibly testified to the statutes and rules that FDOT must follow when projects are proposed. To paraphrase the language of section 335.181(1), she provided that the: Access Management Act is to protect all users of the state highway system, insofar as to ensure that public health, safety, and welfare of all users, which includes vehicular traffic, pedestrian traffic, and bicycle traffic on a state roadway, while also allowing for the safe and efficient mobility of people on a state roadway. Further, Ms. Schaill specified section 335.181(2) provided that “every property owner adjacent to the state roadway, shares a property boundary with the state roadway [and] is entitled to reasonable and adequate access to their parcel.” However, the property owner is not “entitled to unregulated access to that parcel.” An unregulated access to a property is one that has not been permitted by FDOT. Ms. Schaill testified that such unregulated access to a property “may create safety and operational concerns or is not constructed or designed in accordance with the Department’s standards for driveway connections.” According to Ms. Schaill, a “property owner is entitled to and has a right to the minimum number of connections required to provide safe and efficient ingress and egress to their parcel, which can be satisfied by either direct or indirect driveway connections.” In this instance, the indirect connection could be made for ingress to the Shop from Baldwin by either turning left or right onto the Shop property, and for egress by turning left out of the Shop property onto Baldwin, which connects directly to SR 70. Ms. Schaill confirmed that section 335.181(2)(a) requires FDOT to provide a property owner “adjacent to the state roadway reasonable and adequate access to the state roadway either by indirect or direct means. The access is - - - permissible access would have to be regulated by the Department, and we could not approve an unregulated access.” Ms. Schaill's testimony was clear, concise, and credible as to the statutes and rules employed by FDOT in making the determination regarding the closure of the 100-foot driveway.
Conclusions For Petitioner: David Lambert Maassen, pro se 140 South Osceola Avenue Arcadia, Florida 34266 For Respondent: Richard E. Shine, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Transportation, enter a final order approving the closure of the Shop’s 100-foot driveway as part of the State Road 70 project. DONE AND ENTERED this 28th day of September, 2021, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2021. COPIES FURNISHED: Richard E. Shine, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399 Amber Greene, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 David Lambert Maassen 140 South Osceola Avenue Arcadia, Florida 34266 Kevin J. Thibault, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 57 Tallahassee, Florida 32399-0450 Sean Gellis, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing Files in this Proceeding, A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT=S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. 2/83/2616 15:17 B589222679 DCA LEGAL Feb 3 2010 14:37 PAGE 4/11 Final Order No. DCA09-GM-301 MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE THEREBY CERTIFY that the original of the foregoing has heen filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and corre copies have been furnished to the persons listed below in-the manner described, on this /[? ay of Augutt 2009. Paula Ford Agency Clerk Florida Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 U.S. MAIL: Elaine A. Humphreys, Esq. Kathleen McGiveron Assistant City Attorney 7 North Dixie Highway Lake Worth, Florida 33460 chumphreys@lakeworth.org Donald Bicknell, Esq. Lawrence W. Smith, Esq, Gary, Dytrych & Ryan, P.A. 701 U.S. Highway One, Suite 402 North Palm Beach, Florida 33408 Lesley Blackner, Esq. Blackner, Stone & Associates 123 Australian Avenue Palm Beach, Florida 33480 LBlackner@aol.com HAND DELIVERY: 2121 Collier Avenue Lake Worth, Florida 33461 Kkss21@bellsouth net Lynn Anderson 2204 Lake Osbome Drive #21 Lake Worth, Florida 33461 Lynnt 13 @att.net Tripp Cioci 2217 Collier Avenue Lake Worth, Florida 33460-5684 Feb 3 2010 14:38 DCA LEGAL PAGE 5/11 2/83/2616 15:17 B589222679 Final Order No. DCA09-GM-301 Richard Shine, Esq. L. Mary Thomas, Esq. Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399
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 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 On April 16, 1986, in conjunction with the preparation of plans for widening Southside Boulevard (State Road 115) in Jacksonville, Florida, the Department recorded a Map of Reservation pursuant to Section 337.241(1), Florida Statutes, which encompassed a portion of the Petitioner's property. It was stipulated by the parties that the Department complied with the necessary notice, filing, and approval requirements of Section 337.241(1), Florida Statutes. The property in question is located in Jacksonville, adjacent to the east side of Southside Boulevard at the intersection of Hogan Road. It is zoned commercial, but there is currently no development on the east side of Southside Boulevard in the immediate vicinity of Hogan Road. The west side of Southside Boulevard is developed commercially for its entire length. This property consists of a tract of land approximately 892 feet long by 15 feet deep which lies adjacent to a strip of land approximately 100 feet deep which is immediately adjacent to Southside Boulevard. The Department determined that there existed a need to widen Southside Boulevard from a two lane highway to a four lane, limited access facility accompanied by two one-way, parallel service roads. In designing the widening of this highway, the Department determined that the minimum right-of-way corridor width for the facility should be 250 feet. This minimum width was established by using official rules and criteria established by the Department, as well as the Rules of the American Association of State Highway Officials and those of the Florida Department of Highway Safety and Motor Vehicles. Presently, the Department has a 200 foot wide right-of-way corridor. Because of the requirement for at least 250 feet of width, the Department needed to take steps to assure that the extra 50 feet would be available by use of a Map of Reservation. The Department determined that land should be reserved on the east side of the right-of-way corridor for the needed 50 feet because the east side of Southside Boulevard in the area in question is undeveloped, while the west side is substantially developed. This was an economic decision based upon an alignment of the right-of-way corridor that would have the least economic impact on the acquisition of the additional right-of-way. The Department did not place all of the Petitioner's property under the Map of Reservation. Only the 50 feet required for the widening project is affected by the regulation. The owner of the subject property is an individual, E. W. Mayhew, and a corporation, Beta Development Company, Inc. The property was purchased in 1982 for development as office/warehouse space. The Petitioner E. W. Mayhew knew that the property was affected by a Limited Access Line across the property, which was established by the Department in the 1960's, well before the Petitioner's purchase of this property. Despite the presence of this Limited Access Line, the Petitioner did not realize until 1984 that the Line informed potential buyers that direct access to Southside Boulevard from the subject property would be eliminated eventually. Although it spent more than $43,000 to develop plans to promote its property, the Petitioner had not applied to the City of Jacksonville for any of the permits that are required in order to build its proposed office/warehouse project by the time the Map of Reservation was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter its Final Order dismissing the Petition in this case. THIS Recommended Order entered on this 24th day of November, 1986, 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 24th day of November, 1986. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-1587 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-4. Accepted. 5.-16. Rejected, as irrelevant because the elements of reasonableness and arbitrariness were not proved. 17. Rejected, as not a proposed finding of fact. Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-9. Accepted. COPIES FURNISHED: Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064 Theresa M. Rooney, Esquire 1550 Florida Bank Tower Jacksonville, Florida 32202 Paul J. Martin, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064
