09/08/1986 (2)
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traffic." The document also alleged that wall placement was
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critical to the health and mental well-being of the 'residents.
The document was signed by Martin A. Arcaro, Sally M. Arcaro
and Doris Ann del Vecchio. In the top right hand corner of the
document is written "Misty Springs II Condominium Assn., Inc."
On July 9, 1986 a document entitled Addendum to Appeal was
filed which states:
"The undersigned owners in Misty Springs II
agree ~o the appeal of the refusal of the 2'
fence variance."
Fifteen signatures are located below the statement.
(5) The appeal documents do not indicate that any of the
individuals were filing the appeal on behalf of Misty Springs
II. Further, the evidence presented at the hearing established
G that t~e appeal was in fact filed by the individuals and that
Misty Springs II did not appeal. Mr. Arcaro testified that he
filed the appeal because the time for taking the appeal was
c
running out and there was insufficient time for Misty Springs
II to act. He felt that somebody had to file an~appeal so he
prepared the appeal document, got the two other signatures, and
filed the document. There was an association meeting after the
appeal 'was ,filed. At the meeting, the association and the
governing board indicated their full support for the appeal,
but Misty Springs II never took any formal action to appeal the
action of the Development Code Adjustment Board or to appoint
any of the indivldual petitioners to represent Misty Springs II
on appeal.
(6) Petitioners a~e residents of Misty Springs II. state
Road 580 is located directly south of Misty Springs I and II.
The Department of Transportation decided to widen state Road
580 making it a six-lane roadway rather than a two-lane
roadway. As a result of this decision, Misty Springs I and II
lost a strip of land approximately 12 to 14 feet wide along the
property line bordering state Road 580.
(7) The construction activity has signif~cantly increased
the dirt, dust and noise in the area. To provide a barrier
between the condominiums and the roadway and to provide for
3
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privacy 'for the residents of Misty Springs I and II, Misty
Springs I and,II decided to erect a concrete wall along the
-southern property line and requested a two-foot variance in the
setback requirement.
(8) .There are two areas that are especially affected by
the change in the right-of-way line. . Building M, located in
Misty Springs II, is located closer to'State Road 580 than any
other building in Misty Springs I or Misty Springs II.
Building M is located on the southwest corner of the
condominium complex. To the south of Building M is Sable
Springs Circle, which at that point'runs parallel to State Road
580. There is only 17 feet between Sable springs Circle and
~ the road right-of-way. '..Ifthe wall were placed three feet from
',the road .right-of-way, there woulde be only 14 I of property
.,.which could. be .landscaped. "..The recreation, area is located very
;closeto the state right-of-way. The pool is approximately 91
. from. the right-of-way line. With a three foot setback, there
renly would be 6' between the pool and the wall.;,The
fshuffleboard court is 'also affected by the new right-of-way
.~line; , however:;'. it would "have to be removed whether' the wall
~were'located~one foot:fromthe right~of-way.line.or three feet
:;from"~ the right-of-way.. line.
".'~ , .:L~ 9.) . Due ita the, change in the right-of~way line and the
~construction activities, many trees which provided a natural
.:buffer..between,'.the, condominiums and the. road have. been'lost. . .
~Petitioners contend that the three-foot setback requirement
o would resill t: in-the :lo~s of "several more trees. - Ms. Warner
'estitnated:..that. Misty I Springs II would 10'$e approximately 15 or
-20 trees".' '.-Ms. ~Warner..testified that the "proposed ,',wall would
:,not'.:be:.located one foot from the right-of-way line in all
~places butrwould weave-in and out where necessary to save as
.:many.trees as..possible. ' However, the plans submitted with the
~application ihdicate'that the'wall would be built in a straight
line~ . ,Further;~:the' documents in evidence do not show
'specifically where ,a variance would be required in order to
save any-of the trees.. Finally, although there was a great
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deal of testimony at the appeal hearing concerning the need to
preserve the trees, the fact that trees would be lost without
the variance was not mentioned as a reason for requesting the
variance either before the Development Code Adjustment Board or
in the variance application.
CONCLUSIONS OF LAW
Section 137.013(d) of the City of Clearwater Land
Development Code states that "[a]ny party in interest
(including any representative of the City acting at the
direction of the City Manager) may appeal any dec~sion rendered
on an application for a variance .
II
The development code
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does not define the term "party in interest."
Section 137.012(g)(1) sets forth the procedure to be
followed in applying for a variance and reads as follows:
An application for variance shall be
prepared on forms available at the office
of the development code administrator and
shall be signed by the owner or tenant of
the property. Any application signed by a
tenant shall be supplemented by a written
statement of consent from the property
owner.
~
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Section 137.012(c)(1) provides that
[t]he development code administrator shall,
upon determination that the application
complies with all applicable submission
requirements, receive the application and
instruct the city clerk to schedule it for
public hearing by the development code
adjustment board....
From the above ~oted sections, it is clear that a variance
application that is not signed by the owner of the property
could not be accepted for presentation to the Development Code
~ Adjustment Board. since the petitioners in this case are not
the owners of the property in question, they could not have
applied for the variance which they now request be granted
through this ,.ppe'3.1. Therefore, it must be concluded that the
only "party in interest" that may appeal the denial of a
variance request is the tenant or owner who filed the
application.
The application for variance in this case'was filed by
Misty Springs I and Misty Springs II, as owners of the property
in q~estion. Misty Springs I and Misty Springs II are,
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