01/03/1992 (2)
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HEARING
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APPEALS
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PUBLIC HEARING BEFORE A HEARING OFFICER
January 3, 1992. 10:10 a.m.
Jack and Sophia Vasilaros vs. City of Clearwater
and Don Curtis Pierson - V 91.54
Hearing Officer:
Veronica E. Donnelly
Also Present:
Miles A. Lance, Esquire, Assistant City Attorney
Scott Shuford, City of Clearwater Planning Manager
Gwen J. Legters, Staff Assistant II
Issue:
Petitioners contest the decision at the Development Code Adjustment
Board to grant variances to Don Curtis Pierson as follows: 1) 1 5 feet to
permit construction of a triplex 10 feet from a street right-at-way and
2) 2 ft to permit construction of a triplex 6 ft from a side property line
at 7 Heilwood St, Revised Map of Clearwater Beach, Blk 6, Lot 3 and
part of Lot 2, zoned RM-20 per RM-12 (multiple family residential),
V 91-54. DOAA Case No. 91-006190.
Appearances:
John T. Blakely, Esquire, Representing Petitioners
George W. Greer, Esquire, Representing Respondent
Jack and Sophia Vasilaros, Petitioners
Don C. Pierson, Respondent
(::)
Exhibits Submitted: Six additional photographs, a survey at the Pierson property, a copy of
a Staff report to the Development Code Adjustment Soard COCAS)
recommending denial of variances, orders of Hearing Officers on prior
proceedings regarding the same issues in 1983, 1984, and 1990, and
copies of Sections 131.058 and 131.059 of the City's Code.
A question was raised with regard to the order of proceedings. Hearing Officer Donnelly
determined new evidence and rebuttal by Mr. Pierson will be allowed.
During opening remarks, a history of the PiersonNasilaros dispute was discussed. Mr. and
Mrs. Vasilaros own a residence immediately adjacent to the Pierson property.
Don C. Pierson, responding to questions from Mr. Blakely, stated he has enjoyed the benefits
of the existing duplex. He wishes to convert his building to a triplex in order to reside in one
unit, and lease the other two, using the earnings to supplement his retirement income. It was
indicated the existing duplex has 2,400 square feet of living space and the Code requires each
triplex unit have not less than 550 square feet; therefore, Mr. Pierson could construct a triplex
without variances if each unit were smaller in size than what he proposes. Mr. Pierson did
not agree that interior walls might be reconfigured to convert his building to a triplex.
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MINH001 A.92
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01/03/92
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Upon cross-examination by Mr. Greer, Mr. Pierson stated his situation is unique due to being
unfairly impacted by the Coastal Construction Control Line (CCCL) restricting his use of 85
percent of his property. He feels building closer to the street right-of-way would help control
beach traffic currently driving and parking on his property.
Scott Shuford, in response to questions, indicated the CCCL affects properties differently,
having a greater impact on properties located farther north. He indicated Mr. Pierson's
property is substantially affected.
Jack Vasilaros testified any enlargement of the Pierson duplex would obstruct his view of the
water, afternoon sunlight, ventilation of breezes and substantially diminish the value of his
property.
The Hearing Officer afforded the opportunity to submit closing statements in writing;
however, both attorneys preferred to give oral closings.
Mr. Blakely concluded this request meets none of the standards for approval and there is no
substantial competent evidence to support granting the requested variances.
Mr. Greer indicated Mr. Pierson is not able to use land impacted by the CCCL. He stated this
request is not primarily based on financial return, that Mr. Pierson only wishes to make
, reasonable use of his property. He indicated the proposed addition will not further obstruct
light or air nor affect public health or safety. Mr. Greer feels the requested variances uphold
the spirit and intent of the Code and should be granted.
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The Hearing Officer requested a copy of the verbatim tape and indicated the proposed
recommended orders from the attorneys are due to be postmarked within 10 days from the
date of this hearing. She stated the applicant will be notified in writing of her decision within
30 days from the date of this hearing.
The hearjng was adjourned at 12:00 noon.
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MINHOOl A.92
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01/03/92
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JACK VASILAROS and SOPHIA
VASILAROS I
vs.
CASE No.
91-6190
DON PIERSON and CITY OF
CLEARWATER,
Respondents.
ORDER
Pursuant to notice, the Division of Administrative
Hearings" by its duly designated Hearing Officer, Veronica E.
Donnelly, held a public hearing in the above styled case on
January 3, 1992, in Clearwater, Florida.
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APPEARANCES
For Petitioners: John T. Blakely, Esquire
Post Office Box 1368
Clearwater, Florida 34617
For Respondent
pierson:
George W. Greer, Esquire
600 Cleveland street
suite 685
Clearwater, Florida 34616
For Respondent
City of
Clearwater:
Miles Lance, Esquire
Post Office Box 4748
Clearwater, Florida 34618
STATEMENT OF THE ISSUES
Whether Respondent pierson should be granted the
following variances:
1) A variance of 18 feet to allow construction of a
triplex 7 feet from a/street right-ai-way.
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Code Adjustment Board
(the Board)
was timely filed by
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2) A variance of 2 feet to allow construction of a ~
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triplex 6 feet from a side property line.
PRELIMINARY STATEMENT
A notice of appeal from a decision of the Development
Petitioners, Jack and Sophia vasilaros (Vasilaros) on August 27,
1991.
Essentially, the appeal seeks a reversal of the Board's
decision to grant an application by Respondent, Don C. pierson
(Pierson), for variances which would allow expansion of an
existing duplex into a triplex on property adjacent to the
Vasilaros home. Petitioners contend that the application should
have been denied because it fails to satisfy many of the
requirements of section 131.012 (d), Clearwater Land Development
code, that must be met before a variance can be granted.
The
appeal
was
referred
to
the
Division
of
Administrative Hearings by Respondent,
City of Clearwater
(Clearwater), on September 26, 1991.
A tape recording of the
public hearing before the Board, together with the record below,
accompanied the referral, as required by Section 286.0105,
Florida Statutes.
The following witnesses testified at the appeal
hearing: Petitioner Jack Vasilaros, Respondent pierson, and
Scott
Shuford,
Respondent
Clearwater's
planning
manager.
Petitioner submitted twelve exhibits and Respondent Pierson filed
four exhibits.
All of the exhibits were accepted and admitted
into evidence.
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A tape recording of the appeal proceedings was given to
the Hearing Officer on the day of final hearing. Proposed orders
were timely sent by all parties.
One of these proposed orders
was inadvertently mailed to the Division's former location. The
postal system did not forward it to the new address.
The same
document was remailed when it was returned to the sender, and was
filed on January 22, 1992. The Hearing Officer accepted the late
filing and deferred ruling until this proposed order arrived at
the Division.
The parties' proposed findings of fact, to the extent
they are incorporated herein, are adopted; otherwise they are
rejected
as unsupported by evidence,
unnecessary to the
resolution of the issues, or a mere recitation of testimony
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presented at hearing.
FINDINGS OF FACT
1. Respondent pierson is the owner of a parcel of land
located at 7 Heilwood Street, Clearwater Beach, Florida.
This
parcel consists of the North 1/2 of Lot 2 and all of Lot 3 in
Block 6, Revised Map of Clearwater Beach, according to the plat
thereof as recorded in Plat Book 11, page 5, of the Public
Records of Pinellas County, Florida.
The westwardly portion of
the parcel is beach front property on a coastal barrier island.
2. When the SUbdivision known as Clearwater Beach
Subdivision was platted, fifteen lots were placed in Block 6.
The three beach front lots were smaller in area than the other
twelve lots which were uniform in size and shape. However, when
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southern half to Lot 1, fourteen similar parcels were created in
Lot 2 was divided and the northern half went to Lot 3 and the ""-"1
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Block 6.
3. pierson purchased the parcel
in question as
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unimproved property in Clearwater Beach Subdivision in 1962.
This was nine years prior to the creation of Coastal Construction
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control Lines by the Florida Legislature.
4. The establishmen~ of the Coastal Construction
Control Line for Clearwater Beach in 1977, caused building
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setbacks previously established by the city of Clearwater for
this unimproved'parcel to become even further restricted. The
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coastal construction Control Line deleted the seaward 5/8ths of
the pierson property on which a building could have been erected
previously on Clearwater Beach.
Few parcels on this island were
impacted as severely as Respondent pierson's by the creation of
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the Coastal Construction Control Line because most of these
parcels already contained permanent improvements.
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5. This parcel
remained vacant until Respondent
pierson erected a duplex in 1986.
This improvement was
constructed according to the Land Development Code in effect at
the time with the following exceptions: A variance of zero
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setback from the coastal Construction Control Line and a 6 foot
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height variance to permit construction of a building 31 feet in
height were granted by the Board. At the time the variances were
granted, Respondent had the option to build either a duplex or a
triplex at the site.
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6.
Respondent seeks to expand this structure and to
convert it
into a triplex.
In order to complete the planned
; expansion, a variance of 18 feet was requested from the Board to
allow construction 7 feet from the Heilwood street right-of-way.
currently, the Code requires a 25 feet setback from a street
right-of-way.
In addition, a variance of two feet from the
eastward property boundary was requested to allow construction up
to 6 feet from this side property line.
Code provisions require
an 8, feet setback.
The existing structure is 6 feet from this
side property line.
The proposed addition to the current
structure would continue with that eastern setback of 6 feet to
the north, with an additional 25 feet of structure extending
towards Heilwood street.
The expansion of the building to the
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west would terminate at the Coastal Construction control Line.
7. The property is zoned RM-20 with a land use plan
designation as high density residential d~veloped.
8. The parcel is 95.12 feet in length and 87 feet in
width, an area of 8,242.38 square feet.
Ordinarily, a parcel
with these dimensions is of sufficient size to build the
structure proposed by Respondent Pierson without violating the
street right-of-way setback and the side property line setback
mandated by the Code.
In this case, setback variances are
required to complete the triplex because of the Coastal
Construction Control Line's location on the parcel.
9. In his application for variance, together' with
evidence presented, Respondent pierson contends that the variance
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request arises from a condition unique to the property. The
"uniquetl condition being that he did not build what he now wants
to build on the property before the land use restrictions
currently in place limited development of the parcel to such an
extent.
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10. All other lot owners in the locale chose to develop
their lots earlier than Respondent did, under less restrictive
conditions. As a result, Respondent pierson's duplex is setback
further from Heilwood street than the other buildings.
,11. Deciding when and what to build as a real property
improvement is part of real estate ownership.
12. Now that Respondent pierson wants to change his
previous development decision to reflect his current intended
property use, he wants the same setback benefits as those
acquired by other property owners on Heilwood street who
developed their parcels during past time periods with less
restrictive setbacks.
13. The Coastal construction Control Line and the
building setbacks have been placed on the property because of
legitimate state and local concerns.
14. A driveway was placed by Respondent Pierson in
front of the duplex as it faces the water at the end of a dead-
end street. The location of this driveway and the existing
setback of the duplex from the road beyond all of the other
property setbacks on this street, make this portion of
Respondent's property a convenient area for traveling cars to
turn around or to park while using the beach.
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. 15. Respondent pierson contends that the variances he
has requested will discourage the use of his land as a turnaround
area, because it would be clear to those attempting to use his
driveway that they were trespassing. His primary interest is to
maintain his private interests in the property which should go
beyond those currently enjoyed by the public. It is a desire for
these rights that control his request for the variances as
opposed to a desire to secure a greater financial return.
16. The variances granted by the Board will not be
materially detrimental or injurious to the Vasilaros property.
The variances, however, could impair the present value of the
Petitioner's property because the expansion of the pierson duplex
into a triplex would block a large amount of the Gulf view the
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Vasilaros building was designed to acquire.
17. Petitioners' lot is in the same subdivision as the
parcel owned by Respondent Pierson.
Even before the Vasilaros
lot was improved, the landowners knew or should have known that
another parcel separated this lot from the beach.
Respondent
pierson is under no statutory or contractual obligation to
restrict his land use to allow Petitioners a view.
18. The
variances
granted
would
result
in
a
nonconforming building.
All of the other structures in the
immediate vicinity are nonconforming because these structures
were built before current zoning regulations were adopted.
RespoI:ldent Pierson seeks to blend with the neighborhood on the
street and to have the same nonconforming advantages.
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19. Respondent pierson could convert the current (*f
structure into a triplex. The apartments would be much smaller
than the ones contemplated in the proposed plan. He seeks to
create the third apartment for his own retirement home.
20. On August 22, 1991, the Board granted a variance of
15 feet to permit construction of a triplex 10 feet from a street
right-of-way and a second variance of 2 feet to allow
construction up to 6 feet from the side property line to the
south because the Board found that the applicant has
substantially met all the standards for approval, as listed in
section 137.012 (d) of the Land Development Code. More
specifically, the Board found: a) The variances arise from a
condition which is unique to the property and not caused by the
applicant; b) The Coastal Construction Control Line restricts the
use of two-thirds of the property, allowing only 19 percent use,
c) The particular physical surroundings, shape, or topographical
conditions involved and the strict application of the provisions
of this Development Code would result in unnecessary hardship
upon the applicant; and d) The variances granted are the minimum
necessary to overcome the hardship created by the minimal use of
the property subject to the requisite building permit being
obtained within six months from the date of this public hearing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has
jurisdiction over the parties and the subj ect matter of these
proceedings.
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Pursuant to Section 137.012(d) of the Land Development
Code, an applicant who seeks a variance from zoning restrictions
must demonstrate the pregence of a condition unique to the parcel
that results in an unnecessary hardship upon the applicant and
interferes with his reasonable use of the land.
In this case, the Board determined that the Coastal
Construction
control
Line
coupled
with
current
setback
requirements on pierson's parcel, create a unique condition which
prevents Respondent pierson from expanding the duplex into a
larger triplex.
Ordinarily, landowners within the city's RM-20
land use designation with parcels of similar size, can build a'
triplex as large as the one requested without having to seek
variances from the city's setback requirements. Thus, the Board
1:7:)
concluded "unique hardShip" occurred when Respondent Pierson was
prevented from using his land in the same manner.
The proper standard for review of the Board's decision
on the hardship issue is whether the Board was presented with
competent substantial evidence to support it findings. Nance v.
Town of Indialantic, 419 So.2d 1041 (Fla. 1982); Bernard v. Town
Council of Palm Beach, 569 So.2d 853 (Fla. 4th DCA ~990). Absent
an abuse of discretion or a clearly erroneous decision, the
decision should not be set aside.
Reviewing courts have consistently determined that the
Coastal Construction Control Line and municipal zoning ordinances
which restrict land use do not create a unique condition for a
landowner seeking a hardship variance.
Town of Indialantic v.
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Nance, 400 So.2d 37 (Fla. 5th DCA 1981) affirmed, 419 So.2d 1041 ~
(Fla. 1982); Town of Indialantic v. Nance, 485 So.2d 1318 (Fla.
5th DCA 1986); Pace v. Board of Ad;ustment, 492 So.2d 412 (Fla.
4th DCA 1986).
In order to find a hardship exists, it must be shown
that no reasonable use can be made of the property. Thompson v.
Planninq Commission of city of Jacksonville, 464 So.2d 1231 (Fla.
1st DCA 1985).
The facts in this case reveal that a duplex now
exists on Respondent Pierson's property and that he could have
built a triplex at the time he chose to create the onsite
structure. Even now, a redesign of the duplex could convert the
building into a triplex with smaller apartments than those
envisioned by Respondent. Such units can be permitted under the
existing Land Development Code. As a result, Respondent pierson
can use the land for the purpose for which it was zoned.
Hemisphere Equity Realty company v. Key Biscayne Property
Taxpayers Association, 369 So.2d 996 (Fla. 3d DCA 1979).
An examination of the evidence presented before the
Board and the Division of Administrative Hearings fails to
demonstrate any legally cognizable hardship to support the
granting of the variance. It cannot be reasonably inferred that
a landowner who chose to speculate on a vacant lot, is entitled
to a "hardship variance" from current zoning ordinances because
he guessed wrong as to when he should improve property on
Clearwater Beach, Florida.
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The question of whether the city should exempt this
particular area of development from current setback ordinances
for a specific period of time, which would allow Petitioner
Pierson to develop his parcel according to plan, is a different
matter.
Such questions involve policy decisions as opposed to
. legal determinations of hardship established by case law
precedent.
RECOMMENDATION
Accordingly, it is ORDERED that the variances granted
by the Board be set aside and the' application for the variances
submitted be denied.
DONE and ENTERED this
-1,
1/ ",-
. day of February, 1992, in
Tallahassee, Leon County, Florida.
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RONlCA E. DONNELLY
Hearing Officer
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904)488-9675
Filed with the Clerk of the
Division of Administrative Hearings
this /(/1- day of February, 1992.
Copies furnished:
(See next page)
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Copies furnished:
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JOHN TBLAKELY ESQ
PO BOX 1368
CLEARWATER/FL 34617
GEORGE W GREER ESQ
600 CLEVELAND ST - STE 685
CLEARWATER FL 34616
MILES LANCE ESQ,
PO BOX 4748
CLEARWATER FL 34618
CINDIE GOUDEAU/CITY CLERK
" CITY OF 'CLEARWATER,
PO BOX 4748
CLEARWATERFL 34618
MICHAEL WRIGHT/CITY MANAGER
CITY OF CLEARWATER
112 S OSCEOLA AVE
CLEARWATER FL 34618
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Case No. 91-6190
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