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01/23/1987 (2) . ... ~~ .. ~ot" ..." ....Iot.'_ . i.~'" ~.:' '.~~~?~'f';"C~ f;:::"~ j.i .~.~,~..~~..; ~..~Y'~:(;~" ~\'/:.' ~;'[~~.~~~;;~~ I 1 .:.~ 1,: ~'~'~:~'c:"'>:lI ;.:--.~> ...>~: .~:~. ~.,-. i ,::' .~~. ,'.,;,: ..~)'I ~ .:,,,'. ~ " ~c :';";-::.:.!;./"\~'~f; ";,~, ~~c~'f;;~;~;;' .~:. l :'~~~'-ig;~:~~'-l.","~:~1~ ~,~~j/ IOok";) ,ffl i~~AJ.t,,,..~lt!. ""'~~,~~",,,"", '.',Oi ,\,,'> ",~' ,.:!), ,,:.;.-;: c".!;., ,...'t.." ,": {":' \' .": ',,' ,,;,',( ''''~ >,':" '" ".., ,.1:',.''', .r. .,....", ~"',' ,i', ,';" ;,\"",,0 "~~t''<.''''I~;.r'l:~~:.;r,,;~.,. ,i , .,-" ;..^ "C"'-'{;~' ("':':Y-";".\':~;in,;,:!~'r:';~;iE!''[7~P;S'::;:':\~~)F:-m0~:}~;~1:;1~:'~~~{g;:'\??~,:r'-." ? ~.,~;:~:. .,.;i:',,>"':'):,' 'W:t:1i;.y~:;~t;~~,~~~ ,,', . . .''IW _ ......1 . ..' ,S"i;:{H'~~'g; .' 77 The Hearing Offioer advised that any proposed findings of faot, oonolusions of law, and proposed orders should be submitted within ten days'. The meeting adjourned at 1:15 p.m. , J ~ ur.. ;.{.,.' " '1.Mf-lJ/r)U DEPU,Y CI~Y,CLE' , .' -, ., 3. 1/23/87 provided by the Code or was not mailed to the owners of the adjacent properties within 200 feat of the subject parcel as shown by the latest ad valorem tax records. 3,' On August 28, 1986, a public hearing was held before the DCAB at the time and place set forth in the notice. At the time of the hearing, minutes were kept and a tape recording was made. 4. The tape recording and minutes of the hearing reveal that the DCAB heard the testimony of: a planning official; Eduardo Avila, representing the appplicant; Y. H. Lee, architect, representing the applicant; Mr. Carl G. Myers, President of the ~ Sand Key Property Owners Association, an opponent; Sam Dervish, representing the adjacent property owner, Dervish Bros. Gallery Restaurant, an opponent; and, Ed Armstrong, an attorney representing the interests of the developer of the adjacent property of crescent Beach Club I, an opponent. Two letters in opposition were read into the record. 5. At the conclusion of the public hearing before the DCAB, the DCAB found that the requirements for the variance under Section 137.012 of the Code had been met and granted the variance, as requested, by a vote of 4_1.1 6. On September 10, 1986, the appellant, Walt Buchholz, filed a notice of appeal with the City Clerk under the procedure provided in section 137.013 of the Code. The notice of appeal alleged that Buchholz is "a resident and owner of unit 16A, 1340 Gulf Blvd., Clearwater, Florida," adjacent to the subject parcel. It further stated that the bases of the appeal were: (1) that the present owners of the adjacent property were not notified although the developer was; (2) that the applicant had misrepresented the facts at the hearing related to a representation about a blank wall on the condominium building in which Buchholz owned property; and (3) the naivety of the DCAB !/Key Sand stipulated that the variance it was granted is contingent upon the plans for a 26 residential unit building it submitted as part of its application. Key Sand stipulated that it does not, and cannot, rely on the variance for a building with more than 26 residential units. ,. 2 " \ ~ ~ G ~. e.~--j ~." L~ , 'J standards for approval of a variance at the August 28, 1986, hearing as required by Section 137.012 of the Code. 13. Key Sand argued that Appellant was not a party in interest as required under the Code, in that, (1) there was no showing that appellant was an adversely affected person with a definite interest exceeding the general interest shared by the rest of the community and (2) being a person who owns property within 200 foot of the subject property does not by itself prove an adverse interest to his property in granting the variance. 14. Appellant did not present even any argument during his case related to the second and third items of appeal set forth in the notice of appeal filed in this matter. 15. Appellant did not prove that the DCAB was deceived by the passing reference to a "blank wall" during the DCAB hearing or that the DCAB naively was deceived by the models displayed at the hearing. To the contrary, the record on appeal reflects that the DCAB was not deceived by the reference to a "blank wall" and that the DCAB critically weighed the display models along with all the other evidence. CONCLUSIONS OF LAW 1. Section 137.012 of the Clearwater Land Development Code (Code) provides for the procedure and standards under which the Development Code Adjustment Board (DCAB) considers applications for variances to alleviate hardships in carrying out the strict letter of the Code. 2. Under Section 137.012(C)(2) of the Code, the DCAB is required to hold a public hearing to IIconsider the application and render a decision at the conclusion of the public hearing.ll 3. In this case, Key Sand applied for a height variance to allow it to build a 145 foot high condominium on property on which the strict letter of the Code would not permit a building higher than 90 feet. The DCAB held a public hearing on August 28, 1986. At the conclusion of the hearing# the DCAB granted Key Sand's variance application. 4 " ~ . ~ ~ (;D ~ ~1 @ ~ ~ ,...", -- . , . , A. Appellant's standing. 4. Appellant, Walt Buchholz, did not appear or object to Key Sand's variance application before the conclusion of the August 28, 1986, public hearing. His written appeal alleges that he is "a resident and owner of unit 16A Crescent Beach Club, 1340 Gulf Blvd., Clearwater, Florida" and alleges that he and other owners of units in the Crescent Beach Club, other than the developer, did not receive notice of the August 28, 1986, public hearing. But Buchholzl written appeal was not verified, and Appellant presented no testimony or evidence at the appeal hearing on January 23, 1987 (although the appeal hearing was continued from December 29, 1986, to January 23,'1987, on Appellant's motion to enable Buchholz to be present and give testimony at the hearing.) 5. A substantial body of law has developed on the issue who has standing to go to court on a zoning dispute. See,~, Skaggs-Albertson's'v. ABC Liquors, Inc., 363 SO.2d 1082 (Fla. 1978); United states steel Corp. v. Save Sand Key, Inc., 303 '" So.2d 9 (Fla. 1974); Renard v. Dade County, 261 SO.2d 832 (Fla. 1972). But that case law does not limit a municipality in determining whom it chooses to hear in administrative zoning cases. city of st. Petersburg v. st. petersburg Yacht Club, 352 So.2d 119, 120 (Fla. 2d DCA 1977). Cf. also Dore, Access To Florida Administrative Proceedings, 13 Fla. st. Univ. L. Rev. 965 (1986) (in which Professor Dore explains her position that access to state administrative proceedings under Chapter 120, Florida Statutes, should be controlled by the statute, not by case law on standing to go to court on controversies arising out of the administrative process.) That question is controlled by the local zoning or land development ordinances, not the case law on standing in court. 6. Section 137.013 of the Code, providing for "administrative relief" from decisions of the DCAB in variance application cases, is entitled: "Appeals to the hearing officer.1I (Emphasis added.) Section 137.013(b) provides simply: "Any 5 . , . . 1~ ':'~ ,; ::,~i\;P..T'm':1'!!:,~~r:}tt~~?~:;~::};k .;.,':S;~~f!;:, t~)?' < ;'.~ i"< ::,f~:q '~:0 ::';" .t ':~~~":;;;,;.:; ;,~'~, ,;/ :''<1 ',:,: .;~.:,,:(:~~,;rj'~1~i::~il~:~'~i~c~~1{~~~1 I'M"~' ,,4.'..... .....r-: JR'\..- ~;JN,:I!.8~~:.~.~rtioi': ,.~.,.;.;...,,'~v.~j~:'" W.::.:,:.......~ :''';; ~."..;...;w:..r''''~\.;... .....j"0Il.'; ~~~-~. t., :;.:.#"../ i.... '~:. f"~,..;J.... t'f.~,.;. ~ ~,.~~.l,,:.J./.:~I}~~ ';'Jtl';';-;,,;}~fir!. intended, it should have been expressly provided. Third;' under Section 137.013(e)(2), the hearing officer first receives the tapes, minutes and exhibits from the [lower administrative tribunal), the appellant presents his case before the appellee regardless whether the appellant was the applicant below, and each side is allowed only one hour for presentation of his case. These procedures would suggest an appellate-type proceeding, not a de ~ proceeding. And finally it is concluded that if the City of Clearwater had intended to permit a hearing officer to substitute his judgment in zoning matters for the judgment of the DCAB, the local administrative body constituted just for that purpose, it would have said so expressly in Section 137.013 of the Code. A significant difference is seen between the express provision for de ~ review of DCAB decisions by the local, elected Clearwater City Commission, as done in previous editions of the Code, and the inference of de ~ review by a hearing officer which Appellant argues should be drawn from the version of the Code now in effect. 14. Despite the conclusion drawn in the preceding paragraph, it is conceded that the Code is less than clear what type of appeal hearing should be conducted under section 137.013. While not de ~, it does provide for the swearing of witnesses, the hearing of sworn testimony and evidence by direct and cross examination, the determination of admissibility of evidence and the finding of facts by the hearing officer. These provisions do not at first blush seem consistent with an appeal-type proceeding. The Lowas court asked itself a similar question but did not have to answer it in light of its holding. It is concluded that new testimony and evidence presented to the hearing officer ,under Section 137.013 is admissible only to the extent of its relevance to the issues raised on appeal. For example, two issues raised in this appeal--appellant's standing and the sufficiency of the notice of the DCAB hearing--require evidence to be presented to the hearing officer (although none was presented in this case.) Evidence also would be admissible 10 . . Ci A V ~ V _, , r \' Copies furnished: R. caritonward, Esq. 1253 Park street Clearwater, Fl 33516 .c, J ., " , , , Kenneth Easley, Esq. 12800 Indian Rocks Road Lar~,o,' Fl 33540 ,Miles Lance, Esq. Assistant City Attorney City of Clearwater ,Po O.Box 4748 Clearwater, Fl 33518-4748 ,Cynthia Goudeau City Clerk , Ci ty of Clearwater~' ~ . P. ,0. ,Box 4748 Clearwater,Fl 33518-4748 ,I " , I 'J '.' (j '. j' : .' ~ '< I " , . . . . .. .'. '... . ~'. . ~, . 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