The Issue The issues are (1) whether a driveway connection on Respondent's property in Auburndale, Florida, is subject to closure because it poses safety concerns, and (2) whether a second driveway connection on Respondent's property should be modified because it fails to meet current access management standards.
Findings Of Fact A. Background The Department 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. State Road 544 is a part of the state highway system. Since 1998, Respondent has owned a small, irregularly shaped parcel of property located at 502 Havendale Boulevard (State Road 544), Auburndale. The 0.46-acre parcel lies on the southeast corner of the intersection of State Road 544 and 42nd Street Northwest. Commercial establishments are located on the other three corners. In December 1998, Respondent leased the property to a tenant who operates Townsend Motors, a used car lot. The business has operated continuously at that location since that time. Aerial photographs reflect the lot has a capacity of around 30 or so vehicles. Most vehicles are displayed where the triangle-shaped lot comes to a point at the intersection and along the side of the lot facing State Road 544. Other vehicles are parked throughout the middle or rear of the lot. They are rearranged from time to time to enhance sales. To replace cars that are sold, the tenant typically buys a few cars at a time, which are delivered by a tow truck. Auto carriers and large trucks with trailers are not used to deliver vehicles. On the "rare" occasion in the past when a "big transport" made deliveries, the truck used the parking lot in a nearby Publix store to the east. State Road 544 is classified as a class 7 road. See Fla. Admin. Code R. 14-97.003(1), Table 2. That classification is assigned to roads where adjacent land is developed to the maximum feasible intensity and roadway widening is limited. See Fla. Admin. Code R. 14-97.003(2). The regulation provides that a driveway connection on a class 7 road must be at least 125 feet from an intersection and at least the same distance from other connections. This amount of spacing reduces driver confusion and the potential for rear-end collisions. Respondent's parcel has two driveway connections, less than 125 feet apart, facing State Road 544. The first connection is approximately 60 feet east of the intersection and is known as the western connection. The second connection lies further east and is known as the eastern connection. A third driveway connection is located on the western side of the parcel facing 42nd Street Northwest. Driveway connections on state roads must be permitted or grandfathered. See § 335.1825, Fla. Stat.; Fla Admin. Code 14-96.011(3)(a). Neither connection on State Road 544 is permitted. 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). Because the driveway connections were in place before 1988, they qualify for that status. To retain that status, however, a driveway must be consistently used by the owner. If use is discontinued for a period of one year or more, the use is considered abandoned. See Fla. Admin. Code R. 14-96.005(2)(c). If a driveway loses its grandfathered status through abandonment, the owner must apply for an access permit; otherwise, the driveway is subject to closure. A connection that retains its grandfathered status may still be modified if safety or operational issues exist. See Fla. Admin. Code R. 14- 96.011(4)(b)(the Department may modify a grandfathered connection "if such modification is determined to be necessary because the connection would jeopardize the safety of the public or have a negative impact on the operational characteristics of the state highway"). The parties agree the eastern driveway is grandfathered and has been consistently used by the tenant since 1998. There is a dispute over the status of the western driveway. The Department must allow owners of private properties adjoining a state road to have "reasonable access" to and from their property. See § 335.18(2)(a), Fla. Stat. As a general rule, limiting the number of driveway connections promotes better traffic movement and an increased level of safety and mobility for the system as a whole. To determine the number of connections necessary to establish reasonable access, the Department considers the projected connection and roadway traffic volumes, the type and intensity of the land use, the access management classification of the state road, and the standards for that classification. See Fla. Admin. Code R. 14-96.002(25). The Intersection Project The genesis of this dispute is a safety project (Project) at the intersection of State Road 544 and 42nd Street Northwest adjacent to Respondent's property. The Project was initiated after the Department received pedestrian complaints concerning safe travel across the intersection to access retail and food stores and a lack of crosswalks that comply with the Americans with Disabilities Act (ADA). The Project is only 0.038 miles in length and is limited to improvements at the intersection and the installation of sidewalks adjacent to Respondent's parcel and the three other corner commercial properties. There will be minimal impact to current vehicular patterns, and no increase in capacity is expected. Part of the design effort for the Project included an evaluation of existing driveway connections for potential modifications that will improve traffic safety or traffic operations on the roadway. This evaluation was limited to driveways on State Road 544, as the Department has no jurisdiction over driveways on 42nd Street Northwest, a local road. During the planning process, the Department noted that the western driveway is less than 125 feet from the intersection, violates spacing requirements, and raises safety concerns. Accordingly, the Department proposes to remove it, "saw it over," and install type F curb and gutter along the roadway. To comply with access management standards for class 7 roads, the Department also proposes to narrow the width of the eastern driveway from around 60 feet to 36 feet and "widen the wings somewhat" to allow larger vehicles to swing into and out of the car lot. (Wings are the sides of the driveway that slope down from the top of the curb to the street level.) No changes to the driveway facing 42nd Street Northwest are proposed, and no other driveways on State Road 544 near the intersection will be modified. The Department determined that no other practical alternatives to this action exist. Based on its evaluation of the property, the Department concluded that one direct connection on State Road 544 and an indirect connection on 42nd Street Northwest, a local road, provide reasonable access to the property. The Department intends to install new pedestrian signal poles and increase access to a nearby bus stop. The Project includes connected sidewalks for the four commercial properties on the corners of the intersection and enhanced special emphasis crosswalks that are designed to comply with the ADA and connect to the existing Publix sidewalk to the east. The high-visibility crosswalks, pedestrian signalization improvements, and removal of the western driveway will improve traffic movement through the intersection and enhance motorist, bicycle, and pedestrian safety. A Department Safety Office Benefit Cost Analysis revealed there were a total of 60 rear-end or angle crashes at the intersection during the five-year period 2010 through 2014 and that some could have been prevented with better signage and signals. The study projects 11 crashes will be avoided over the upcoming five-year period once the Project is completed. Besides reducing angle and rear-end crashes at the intersection, the proposed modifications will improve safety and operational conditions for pedestrians and motorists who will have greater connectivity to adjacent commercial properties. Respondent's Objections Respondent raises a number of objections to the Department's proposed action. She contends the western driveway is not abandoned, and even though it fails to meet current spacing requirements, it should not be closed; the proposed modification to the eastern driveway is not warranted by safety or operational concerns; the Department violated a number of statutory provisions during the process leading up to the issuance of the Notice; the proposed action will deny her and the tenant reasonable access to the property; and the changes will reduce the value of the property. The Western Connection To comply with insurance requirements, in 1998 the tenant erected bollards (short vertical posts embedded in the driveway) around most of the parcel to restrict access to the premises. Among other locations, bollards were placed along the entire back side of the western connection, blocking off vehicle access through that driveway. Bollards were also placed on roughly half of the back side of the eastern connection, leaving less than 30 feet open to allow vehicles to enter and exit the premises. Even though the bollards remained in place for almost 20 years, Respondent considers them nothing more than temporary fixtures, as they could be removed at any time by sawing them off at ground level or pulling them out of the concrete. The bollards remained in place until shortly after the Notice was received by Respondent in early January 2017. They were then removed by the tenant from the western driveway (and other areas). The tenant denies the Notice triggered their removal and maintains they were removed to provide "extra room for the FedEx and stuff like that to get in." He added that his current insurance company no longer requires bollards for security purposes. The Department contends the western driveway connection was abandoned because bollards blocked vehicle access through the driveway from December 1998 until January 2017. The tenant's testimony confirms this assertion. The tenant admits he has "not frequently [been] using the westernmost driveway," but maintains the connection was never abandoned, as Fedex trucks and the mail carrier regularly parked on the driveway apron, which lies between the roadway and the bollards. Emergency responders also use the apron when responding to accidents at the intersection, and disabled vehicles traveling eastbound on State Road 544 are pushed onto the apron. The bottom line is that even though the apron may have been used, the driveway itself was not, and the connection was basically used as a "pull-off." In fact, the tenant acknowledged that until January 2017, except for customers who used the parking lots of adjacent businesses located south of the parcel, all other customers used the eastern connection to access the property. The evidence supports a finding that, even if the car lot has remained in business continuously, and Respondent did not intend to abandon the driveway, for the reasons stated above, it was effectively abandoned for more than one year. Because the western driveway is only 60 feet from the intersection and violates spacing standards, it is subject to closure based on safety concerns. Without closure, additional traffic will enter and exit the car lot, there will be less driver reaction time for vehicles to stop, and it will increase the potential for more pedestrian injuries and vehicle crashes. The Eastern Connection The eastern driveway is 58 feet wide when measured at the back of the property line. Until January 2017, less than 30 feet were usable because bollards blocked the remainder of the connection. The maximum width for a class 7 driveway connection is determined by the number of vehicle trips per day that enter a property and whether the connection is in a rural or urban location. Under current design standards for urban locations, a 24-foot driveway connection is typically allowed. See Dep't Ex. 15. Assuming a large volume of traffic entering or exiting the driveway, a maximum of 36 feet may be permitted. Id. Although there is no evidence that a large volume of traffic enters or exits the premises, after speaking with the owner's representative, Mr. Combee, the Department agreed to increase the width from 24 feet to 36 feet and widen the sides (wings) to make the driveway more accessible by customers and vehicles making deliveries. By comparison, the nearby Publix store has a 24-foot connection to State Road 544, although it also has several indirect connections on the local streets. The modified connection is of sufficient length and size for vehicles to enter and exit the premises. Other Objections Notice Respondent contends the Department did not comply with section 335.199(1), Florida Statutes, before issuing the Notice. That subsection provides as follows: Whenever the Department of Transportation proposes any project on the State Highway System which will divide a state highway, erect median barriers modifying currently available vehicle turning movements, or have the effect of closing or modifying an existing access to an abutting property owner, the department shall notify all affected property owners, municipalities, and counties at least 180 days before the design of the project is finalized. The department's notice shall provide a written explanation regarding the need for the project and indicate that all affected parties will be given an opportunity to provide comments to the department regarding potential impacts of the change. Subsection (3) of the statute also requires at least one public hearing in the jurisdiction where the project is located. The Department has always construed this provision as applying only to large projects that involve an expenditure of "upward of a million dollars" and take out or block medians, remove turn lanes, or reconfigure intersections in conjunction with a modification or closure of a driveway connection. Because the Project entails the expenditure of $119,936.00, and only new curbs, sidewalks, striping, and pedestrian signals are contemplated, the Department considers it a "very limited scope" project and one that does not implicate the statute. For small projects such as this, the Department provides preliminary notification to the property owner and tenant, if any; a written notice setting forth the proposed agency action and the reason for the changes; an opportunity for the owner to meet with Department representatives to express concerns; notice to the affected local governments; and ultimately an administrative hearing, if one is requested. This process complies with section 335.1825(3), which only requires "reasonable notice" to the owner before closing an unpermitted connection. Before the Notice was issued, oral notice regarding the Project was given to the tenant by a Department representative. During the meeting, the tenant told the representative that he "didn't mind" if the western driveway was removed. Also, a Department representative spoke by telephone with Mr. Combee before the Notice was issued, but Mr. Combee says he was under the impression the Department was only seeking to close the connection on 42nd Street Northwest. An on-site meeting with Mr. Combee and his counsel was conducted in February 2017. Based on concerns expressed by Mr. Combee, the Department agreed to increase the width of the eastern driveway from 24 to 36 feet and widen the wings to provide greater accessibility into and out of the lot. Besides meeting with the tenant and Mr. Combee, the Department informed the City of Auburndale and Polk County about the intersection project and asked them whether any comments had been received from the public regarding the intersection. Assuming arguendo that section 335.199 applies to every project involving the closure or modification of a driveway connection, regardless of its size, there was no showing that Respondent was prejudiced by the Department's failure to comply with all requirements of the statute. Lack of an Engineering Study Respondent contends the Department violated Florida Administrative Code Rule 14-96.011(4)(b) by failing to conduct a formal engineering study to substantiate the safety and operational concerns for closing and modifying the connections. In lieu of a signed and sealed engineering study, the Department performed a Safety Cost Benefit Analysis documenting the five-year crash history at the intersection. The study also includes an engineer's estimate of the type and cost of specific improvements planned to improve the safety of motorists and pedestrians at the intersection. See Resp. Ex. 5. Nothing in rule 14-96.011(4) or (5) requires that a formal engineering study be conducted before closing an unpermitted connection or modifying a grandfathered connection. In fact, the rule cited by Respondent provides the "problem may be substantiated by an engineering study signed, sealed, and dated by a professional engineer registered in the State of Florida." (emphasis added). Therefore, both driveways are subject to removal or modification without any type of formal study being conducted. Here, the Department relied on a study of the crash history at the intersection, access management standards for connections on class 7 roadways, and safety concerns expressed by members of the public. These measures are adequate to support the Department's proposed action. Reasonable Access Respondent contends the Department's proposed action leaves her without "reasonable access" to the property. To support this contention, her engineering expert opined that both driveways on State Road 544 are necessary in order for large trucks making deliveries to enter and exit the lot. The engineer assumed incorrectly, however, that semi-trucks and trailers now access the property to make deliveries, and a 36-foot driveway will be too small to accommodate that type of vehicle. He also opined that large trucks cannot access the property through the 42nd Street Northwest connection because a building is located in the middle of the parcel and prevents them from being driven across the lot and exiting through the eastern connection. The expert agrees a 36-foot driveway provides reasonable access for automobiles and small trucks. The evidence shows that replacement vehicles are normally delivered by a tow truck hauling no more than one or two at a time and large semi-trucks and trailers do not make deliveries at the property. Assuming that the mail carrier or FedEx wish to continue parking where the apron now sits while they deliver the mail or a package, they can do so by pulling over the six-inch curb and parking on the grass. The evidence supports a finding that one direct access point on State Road 544 and one indirect access point on 42nd Street Northwest provide reasonable access to the property and result in safer and more efficient access to the state highway system. Economic Concerns Respondent contends the value of her property will be diminished as a result of the closure of the western connection. However, economic injury is not a statutory consideration for closing or modifying connections, and redress for that type of injury, if any, lies in another forum. Management of Project The Department routinely allows construction project administrators who are not professional engineers to manage the day-to-day work on intersection projects such as this. While the project plans were signed and sealed by a professional engineer, who is the project engineer of record, a construction project administrator, Mr. Freeman, will take the plans and "make it a reality in the field." Respondent contends Mr. Freeman is violating section 471.003(1) by performing certain investigative, evaluating, planning, and designing activities without an engineering license. Assuming arguendo this is true, jurisdiction over that issue lies with the Florida Board of Professional Engineers and not the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order approving the closure of Respondent's western driveway and modification of the eastern driveway, as part of the Department's State Road 544 Safety Project. DONE AND ENTERED this 9th day of June, 2017, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 2017. COPIES FURNISHED: Michael J. Dew, Secretary Department of Transportation Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Tom Thomas, General Counsel Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Richard E. Shine, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 (eServed) David W. Holloway, Esquire David W. Holloway, P.A. 13100 Park Boulevard, Suite B Seminole, Florida 33776-3539 (eServed)
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing Files and Relinquishing Jurisdiction by Jessica E. Varn an Administrative Law Judge of the Division of Administrative Hearings, and the Respondent’s withdrawal of intent to relocate Ocean Cadillac, Inc., copies of which are attached and incorporated by reference in this order. Accordingly, it is hereby ORDERED that this case is DISMISSED. DONE AND ORDERED this 19 day of June, 2014, in Tallahassee, Leon County, —— Cobo Filed in the official records of the Division of Julie r, Chie Motorist Services this | f | day of June, Bureau of Issuance Oversight Florida. 2014. Division of Motorist Services Department of Highway Safety and OD: le Motor Vehicles Vatn Vi Neil Kirkman Building, Room A338 Nalini Vinayak, Dealer License Administrator Tallahassee, Florida 32399 Filed June 19, 2014 7:37 AM Division of Administrative Hearings Copies furnished to: R. Craig Spickard, Esquire Kurkin Brandes, LLP 105 West 5th Avenue Tallahassee, Florida 32303 cspickard@kb-attorneys.com Nalini Vinayak Dealer License Section C. Gregory Feil Ocean Cadillac, Inc. 1000 Kane Concourse Miami, Florida 33154 Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the John Martin General Motors, LLC Mail Code 482-A82-A16-C66 100 GM Renaissance Center Detroit, Michigan 48265 Jessica E. Varn Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 NOTICE OF APPEAL RIGHTS filing date of this order as set out above, pursuant to Rules of Appellate Procedure.
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
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing Files and Relinquishing Jurisdiction by f. Scott Boyd, an Administrative Law Judge of the Division of Administrative Hearings, and the Petitioner’s Notice of Dismissal, copies of which are attached and incorporated by reference in this order. Accordingly, it is hereby ORDERED that this case is DISMISSED. DONE AND ORDERED this 3\ day of January, 2014, in Tallahassee, Leon County, e Florida. Chbur Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338. Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this O )__ day of January, 2014. Re i Vinayak. Oeste: License 67 Filed February 7, 2014 3:56 PM Division of Administrative Hearings NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. Copies furnished: R. Craig Spickard, Esuire Kurkin Brandes, LLP 800 North Calhoun Street, Suite 1B Tallahassee, Florida 32303 cspickard@kb-attorneys.com jhelms@kb-attorneys.com Don Hoogenraad American Custom Golf Cars, Inc. 15740 El Prado Road Chino, California 91710 F. Scott Boyd Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
Findings Of Fact Appellants are the owner of the residence located at 1387 Lemon Street, Clearwater, Florida, having purchased the property in October 1991. The residence is a 3-bedroom 2-bath house containing approximately 1600 square feet. On the back of the property and adjacent to the house is a patio and screen porch. The proposed storage shed would be located some 10 feet from the screened room and rest on concrete blocks. The proposed storage shed is 10 feet by 14 feet and would extend into the 7 feet utility easement in the rear of the property and come within 2.83 feet of the real property line. The Clearwater Building Code requires a 10 foot setback from the real property line. Accordingly, Appellants have asked for a 7.17 foot variance. Appellants intend to store books and records in this shed, if approved, as they contend there is insufficient room in the house for these records. Appellants engaged the services of a person observed erecting a gazebo a few blocks away to construct the storage shed. The contractor employed by Appellants apparently was not licensed and when Appellant asked the contractor if he needed a permit for the storage shed the contractor advised that he didn't pull permits. Appellants engaged the contractor to construct the storage shed without making any inquiries to the city building department to ascertain if a permit was required. After the structure was nearly completed a stop work order was posted on Appellants residence because no permit had been issued for the work. When Appellants applied for a permit it was learned that the proposed building would encroach into the setback and that a variance would be required before the permit could be issued. When the variance was applied for the Planning and Zoning Board denied the variance for the stated reason that the application did not meet the requirements of Section 137.012 of the Land Development Code of the City of Clearwater. These proceedings involve Appellants' appeal from that denial. Appellants' lot is neither square nor rectangular having a slight curve generated by Lemon Street in front and the rear property line runs at an oblique angle with the side property lines which run north and south. However, this rear property line is only a few degrees from being perpendicular to the side property lines. The plat plan accompanying the variance request shows none of the lots in the vicinity of Appellants lot to be truly rectangular and are little different in shape than is Appellants' lot. Appellants' backyard is quite small with the southeast corner of Appellants' house approximately 15 feet from the rear property line. A spa located in the southwest corner of this lot appears from Exhibit 2 to be approximately 10 feet from the rear property line. Appellants propose to have the storage shed painted to look like the house and to be firmly secured against heavy weather. Appellants contend that it would constitute a hardship if they are not granted the requested variance. Appellants also contend that their property is unique; but unless the location of the house near the rear property line constitutes a unique situation, no other evidence was presented that their lot is substantially different from all of the other lots in the vicinity. When Appellants moved into this house they found that the previous owners had used the southeast portion of this lot for storing old lumber and other junk which Appellants cleaned up to make room for the proposed storage shed. They contend the proposed shed is a vast improvement over the clutter formerly existing in this location.
The Issue The issue 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.
