06/18/1986
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
KATHERINE CAFFENTZIS HOWE, )
)
Petitioner, )
)
vs. ) CASE NO. 86-1830
)
CITY OF CLEARWATER, )
)
Respondent. )
)
FINAL ORDER
Pursuant ,to notice an appeal hearing was held before P.
Michael Ruff, duly designated Hearing Officer, in accordance with
Section 137.013 of the City of Clearwater's Land Development Code
on June 18, 1986, in Clearwater, Florida. The issue for
determination in this appeal from the Development Code Adjustment
Board concerns whether the Petitioner is entitled to a variance
to allow a fence six feet in height within the structural setback
area at 544 plumosa Avenue, Nursery Park, Lot 4.
APPEARANCES
For Petitioner:
Greg Howe
544 Plumosa Avenue
Clearwater, FL 33516-6235
M. A. Galbraith, Jr.
City Attorney
Post Office Box 4748
Clearwater, FL 33518-4748
For Respondent:
FINDINGS OF FACT
The petitioner and her husband own the property at 544
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Plumosa Avenue in Clearwater.
The Petitioner owns a large female
Siberian Husky dog which they have, until recent times, kept on a
lead line in the back yard of their residence at the above
address. In recent months, after consulting a veterinarian, it
was learned that the dog suffers from a spinal defect which is
aggravated by the dog being tied to a leash or lead, which exerts
a sidewise pull on the dog's spinal column. Accordingly, the
veterinarian recommended that the dog be kept untied, but in a
fenced back yard.
The Petitioner's home faces, and is addressed, on
plumosa Avenue with the back yard being bounded on one side by
Turner Drive. They have a number of fruit trees and also
propagate a number of rare and endangered plant species in their
'back yard in conjunction with their activities with a
conservation organization dedicated to conserving and propagating
rare plants of all types. The Howes have experienced
difficulties with children and other persons entering their back
yard to pick fruit, endangering the various plants they grow and
disturbing their privacy. Ms. Howe wishes to follow the
veterinarian's instruction for the health of their dog and keep
her in a fenced back yard both for reasons of her own health and
safety and to keep male dogs from having contact with her.
The Petitioner's corner lot and residence is located
adjacent to an office complex with its parking lot and a
retention pond which creates objectionable noise and undesirable
views from their back yard. The office complex experiences a
great deal of human traffic at all hours of the day and night
with attendant noise, car lights, etc. The Petitioner thus
sought a permit and variance to permit the construction of a six
foot high wooden fence in the structural setback area
approximately twenty feet from the pavement of the street. This
is in an area in which the Land Development Code permits a fence
of only four feet in height. The four foot height would not
safely confine the Petitioner's dog at those times when her back
injury is not debilitating. If the Petitioner constructs. a six
foot fence without a variance they will be required under the
zoning code to place the fence five feet further away from the
street right-of-way and thus would lose 1,040 square feet of
their back yard. The fence would then enclose only about half of
the Petitioner's back yard or 1,976 square feet. This would not
be sufficient room for the dog, and the garden and fruit trees,
a~l of which the Petitioner desires to protect behind a fence.
Even though the dog's medical problem might prevent her
from escaping a four foot fence, healthy male dogs in the
neighborhood would be able to jump over a four foot fence, which
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condition the Howes desire to avoid. Finally, the Petitioner
~ wants the fence of this height and configuration for privacy.
The Petitioner's lot is a corner lot with no structures or
screens on three sides. There are streets on two sides and the
office complex with its parking lot and retention pond on the
third side. A six foot fence would be necessary to give some
degree of privacy to Petitioner's back yard.
Some months prior to the initial hearing in this
matter, the petitioner elected to build a fence after consulting
with her veterinarian about the aggravation of the dog's back
injury due to being confined on the end of a rope and after
experiencing the above-mentioned trespass problems. . The
Petitioner went to the City of Clearwater Building Department to
obtain a building permit and the question arose as to whether the
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house was properly addressed on Plumosa Avenue or rather whether
it should have been addressed on Turner street, along which the
subject fence is located. If it were addressed on Turner street,
~he fence could only be thirty inches high under the appropriate
ordinance. Because of this question, the Petitioner was referred
to the Planning and Engineering Department. ultimately, it was
determined that the Petitioner's home is properly addressed, but
she would need a variance to build a fence on the Turner street
side of her property, the proposed site being approximately
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twenty feet from the City's street right-of-way and within the
, ustructural setback zone" in which only a four foot fence is
normally permitted.
The Petitioner was informed by the Planning and
Engineering Department that it would take approximately two to
three months to get a hearing on'the request for a variance. The
Petitioner reflected on this delay and, in the interest of their
dog's health, she and her husband felt it necessary to proceed to
erect the fence at the location desired and then to apply for the
variance and the building permit ttafter-the-fact.u The
Petitioner proceeded to construct the fence six feet high, made
of lumber. The fence was landscaped in an appropriate manner and
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in such ~ way as to harmonize with the fence on the adjoining
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parcel of property which the Howes' fence will align with. The
fence and the landscaping in front of it on the adjoining lot is
very similar to that erected by the Petitioner. The two aligned
fences are the same distance from the street right-of-way. The
fence is set back four feet inside of the Petitioner's property
line. During and after the erection of the fence, the Petitioner
pursued her application and this appeal concerning her variance
application and the application for a building permit for the
fence.
Although eight of the Petitioner's neighbors supported
her request for a variance and three of them testified in support
of ~he erection of the fence at the hearing before the Board, the
Board voted three to two to deny the application for variance
from which this appeal resulted. The neighbors, two of whom
testified in the instant hearing, support the erection of the
Petitioner's fence. They feel that it is an improvement to the
neighborhood and to the Petitioner's own property and they
praised the Petitioner's concern for the appearance of their
property and their renovation of it since they have owned it.
The neighbors have no objection to the fence and feel that, as it
is presently constructed and landscaped, it is a positive asset
to the Petitioner's property and their neighborhood. They
understand the fence was built without a permit" but also
corroborated Petitioner's position in stating that the fence was
built for a justifiable reason, the Petitioner's concern for her
dog's health. The neighbors testifying have also observed the
dog being teased and irritated by children and other pets when
she is on a chain without a fence around the yard. When the dog
is in an agitated state, she jerks on the end of the chain with a
great deal of force which can further injure the dog's spine.
When Mr. Howe consulted with the Planning Department
concerning the ~ocation of the fence and the question of the
variance, he did not understand that he could build a six foot
fence if he moved it five feet farther away from the street
right-of-way. The present location of the fence and its
landscaping, however, forms a continuous line with that of the
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section 137.012(d) of that Code. Briefly summarized, those
standards which must be met are: a condition which is ,unique to
the property in question and not created by the applicant; that
the strict application of the Code provisions would result in an
unnecessary hardship upon the applicant due to the physical
surroundings of the property; that the variance requested is the
minimum necessary to overcome that hardship; and that the
granting of the variance will not be detrimental or injurious to
other property, the appearance of the community or public health,
safety or welfare and will not violate the general spirit and
intent of the Land Development Code.
The Petitioner has sufficiently demon~trated that the
conditions prevailing at the property at issue are sufficiently
unique and that the Code's structural setback limitations with
regard to fences are an unnecessary hardship in this instance.
Ms. Howe has established that her property is a corner lot
exposed to public view on three sides, especially with regard to
the office complex to which it is adjacent. The adjacent parking
lot for the office complex results in the Petitioner's back yard
having substantially less privacy than other residences in the
neighborhood, which condition Petitioner did not cause. The
traffic caused by people who work at the office complex going to
and from their offices day and night together with people who
have business there exposes the Petitioner's back yard to
substantial public scrutiny. This condition is sufficiently
unique compared to other residential properties in the
neighborhood that, when balanced against the limited scope of the
variance sought, that is, only a two foot addition to the
permitted four foot fence, it supports the conclusion that the
uniqueness criteria has been met.
In addition to the lack of privacy presently suffered
by the Petitioner, the peculiar problem experienced by Ms. Howe's
dog with its spinal disease or condition, coupled with the dog's
ability and neighborhood dogs' abilities to jump a four foot
fence constitutes a sufficient hardship so as to justify the
erection of a six foot, pleasingly landscaped fence such as this
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