02/03/1993 (2)
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...HEARING.
".. OFFICER
APPEALS
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PUBLIC HEARING BEFORE A HEARING OFFICER
February 3, 1993 ~ I :00 p.m.
Claude & Myra Stinson - Appellants
Hearing Ofticer:K. N. Ayers
Also Present: Miles A. LanceJ Assistant City Attorney
Sandra Glatthorn, Senior Planner
Camille Motley, Central Records Specialist
Issue: Claude Eugene and Myra Sue Stinson for a variance of 7.17 feet to permit construction
of a storage shed 2.83 ft from a rear 'property tine at 1387 Lemon StJ BrookhiII Unit 8J
Blk V, Lot 5J zoned RS 8 (single family residential). V92-46. DOAH Case Number 92-
6255.
(:J
Appearances: James W. Bauman, Esquire For Appellant
Claude Stinson, Appellant
Vincent Tambarrino .
Irving Graham
Jack Lowe
Exhibits Submitted: I. Letter of Appeal dated October 6J 1992, signed by James W. Bauman, Esq.,
as representative.
2. Notice of Public Hearing of Development Code Adjustment Board for
September 24, 1992.
3. Excerpt of the minutes of the Development Code Adjustment Board of
September 24J 1992.
4. Variance Transmittal No. 92-46.
5. Application.
6. Supporting Papers.
7. Planning and Development staff's recommendation.
8. Site Plan.
9. Letter of objection dated September 20, 1992, from Ernest C. and Frances B.
'Bush, owners of property at 1388 Seabreeze Street, ClearwaterJ FL.
to. Letter of objection dated September 22, 1992J from James D. Lavelle, Sr. and
Patricia A. Lavelle, owners of property at 1390 Seabreeze Street, Clearwater,
FL.
. Additional
Exhibits Submitted I.
Letter of support dated January 27, 1993, from Vince TamborrinoJ owner of
property at 1379 Lemon Street, Clearwater, FL:
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MINH002A.93
02/03/93
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6.
L~tt~r of support dated January 27, 1993, from Erwin and Sue Graham, own~rs
of prop~rty at 1389 Lemon Street, Clearwater, FL.
Letter of support dated J.muary 26, 1993, from William and Frances Kunze,
owners of property 1396 Lemon Street, Clearwater, FL.
Letter of support dated January 28, 1993, from Rohert F. Gaboury, owner of
property 1395 Lemon Slreet, Clearwater, FL.
Letter of support dated January 28,1993, from Jack and Claudette A. Lowe,
owners of property 1435 Hillcrest, Clearwater, FL.
Letter if opposition dated February I, 1993, from James D. Lavelle, Sr. and
Patricia A. Lavelle, owners of property at 1390 Seabreeze Street, Clearwater,
FL.
Exhibits were accepted by the hearing officer.
Hearing ofticer K. N. Ayers, called the hearing to order at 1:00 p.m..
Opening statements were made by both attorneys.
The record of proceedings bet(:m~ the Development Code Adjustment Board was admitted into
evidence and four witnesses, including the appellant, were called and sworn to give testimony in support
of the variance.
<:)
Mr. Claud~ Stinson gave testimony stating the site plan properly reflected the current layout of
the property. He had thought the easement was 3 feet. He stated it would be a hardship if he had no
proper place to store records, books., etc. He did not know if the contractor who started the structure
was licensed and assumed the contractor had taken all necessary steps to satisfy any requirements for the
structure. He felt the structure would be an improvement and would not impair surroundings properties
in any way.
Mr. Vincent Tambarrino stated the structure would be a big improvement to the property.
Mr. Irving Graham stated the structure would improve the property by 100%. He stuted that he
had never spoken to the appellant because he felt they must know what they were doing and it would not
make any difference to him whether or not there was a shed.
Mr. Jack Lowe testified that the proposed structure would look like it was part of the original
home. He also stated that the debris which had been cleared out by the appellant had been a hazard.
Sandra Glatthorn gave sworn testimony regarding her review. She cited the eight (8) standards
which applied to the case that were not met. She stated the lot appeared to be overcrowded.
Ms. Glatthorn stated that a sewer line was located in the easement. The review procedure does not
involve talking to neighbors of the applic.mts.
Mr. Ernest C. Bush gave sworn testimony in opposition of the variance saying the huilding is
unsightly and presents a danger in high winds.
The hearing adjourned at 2:40.
MJNH002A.93
2
02/03/93
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State of Florida
Division of Administrative Hearings
The DeSoto Building, 1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675 · SunCom: 278-9675
Sharyn L. Smltli'
Dlrrclor
Ann Colc
Clerk
, February 23, 1993
,.
Michael Wright, City Manager
City of Clearwater
Post Office Box 4748
Clearwater, Florida 34618 47488
Re: DOAR Case No. 92-6255 - Claude & Myra Stinson v. City of
Clearwater
Dear Mr. Wright:
Enclosed is a, copy of the Final Order in the above-
referenced case.
.,0
This letter will serve to notify the parties that the Final
Order has been transmitted this date.
,
Sincerely,
J(jJ~r
KNA:bdg
Enclosure
cc:
James W. Bauman, Esquire
Miles A. Lance, Esquire
City Clerk/Clearwater
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REGF;:XVGD
FEB 2 5 1933
CITY CLERK DEPf.
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CLAUDE and MYRA STINSON, )
)
)
Appellants, )
)
VB. ) CASE No. 92-6255
)
CITY OF CLEARWATER, )
)
Respondent. )
)
FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings,
o
by its duly designated Hearing Officer, K. N. Ayers, held a
formal hearing in the above-styled case on February 3, 1993 at
Clearwater, Florida.
APPEARANCES
For Appellant: James W. Bauman, Esquire
1008 Drew Street
Clearwater, Florida 34615
For Respondent: Miles A. Lance, Esquire
Assistant City Attorney
Post Office Box 4748
Clearwater, Florida 34618 4748
STATEMENT OF THE ISSUES
Whether Appellants should be granted a variance of 7.17 feet
to permit construction of a storage shed 2.83 feet from the rear
property lin~ at 1387 Lemon Street, Clearwater, Florida.
PRELIMINARY STATEMENT
..
This is an appeal from the denial of the requested variance
o
.
of 7.17 feet to permit construction of a storage shed 2.83 feet
from the rear property line of Appellants I property at 1387 Lemon
Street, Clearwater, Florida.
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Development Code Adjustment Board was admitted into evidence and
thereafter Appellant called four witnesses, including himself,
Respondent called one witness, one additional witness who desired
to testify'in opposition to the requested variance was allowed to
testify, and four exhibits were admitted into evidence. There is
little, if any, dispute regarding the operative facts here
involved. proposed findings submitted by the parties are
accepted except as noted in the Appendix attached hereto. Having
fully considered all evidence the following is submitted.
FINDINGS OF FACT
1. Appellants are the owner of the residence located at
, 1387 Lemon Street, Clearwater, Florida, having purchased the
~ property in October 1991.
2. The.residence is a 3-bedroom 2-bath house containing
approximately 1600 square feet.
3. 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
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blocks.
4. 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 corne within 2.83 feet of the real property line..
5. The Clearwater Building Code requires a 10 foot setback
from the real property line. Accordingly, Appellants have asked
for a 7.17 foot variance.
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(~ 6. 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.
7. 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.
8. 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.
9. After the structure was nearly completed a stop work
~ order was posted on Appellants residence because no permit had
been issued for the work.
10" 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.
11. When the variance was applied for the ~3.aning and De",. CUd( AdJ.
BOu.L.119_ 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.
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12. 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
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14. 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.'
15. 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.
16. Appellants also contend that their property is unique;
but unless the location of the house near the rear property line
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the side property lines.
13. 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.
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constitutes a unique situation, no other evidence was presented
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that their lot is substantially different from all of the other
lots in the vicinity.
17. 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.
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CONCLUSIONS OF LAW
lB. The Division of Administrative Hearings has jurisdiction
over the parties to, and the subject matter of, these
proceedings.
19. The granting of variances is controlled by Section
137.012 of the Land Development Code which provides in pertinent
part:
( a), Purpose. It is the purpose of the
variance procedure to provide the city with a
process for alleviating hardships in carrying
out the strict letter of this development
code, so that the spirit of this development
code, shall be observed, public safety and
welfare secured, and substantial justice
done.
*
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(d) Standards for approval. A variance
shall not be granted by the development code
adjustment board unless the application and
evidence presented clearly support the
following conclusions:
(1) The variance' requested arises from a
condition which is unique to the property in
question and is., neither ordinarily or
uniformly applicable to the zoning district
nor created by an action or actions of the
property owner, predecessor in title, or the
applicant. Any mistake made in the execution
of a building permit or work performed
without the ,benefit of a permit shall not be
considered to be situations which support the
, granting' of a, variance.
(2) The particular physical surroundings,
shape, or topographical conditions of the
property involved and the strict application
'::1 " of the provisions of this development code
would result in an unnecessary hardship upon
the applicant.
(3) The variance is the minimum necessary
to overcome the unnecessary hardship referred
to in the preceding recital ~2" for the
purpose of making reasonable use of the land.
(4) The' request for a variance is not
based primarily upon the desire of the
applicant to secure a greater financial
return from the property.
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(5) The granting of the variance will not
be materially detrimental or injurious to
other property or improvements' in the
neighborhood in which the property is
located.
(6) The granting of the variance will not
impair an adequate supply of light or
ventilation to adjacent property, detract
from the appearance. of the community,
substantially increase .the congestion in the
public streets, increase the danger of fire,
endanger the public safety in any way, or
substantially diminish or impair the value of
surrounding property.
(7) The variance desired will not
adversely affect the public health, safety,
order, convenience, or general welfare of the
community..
(8) The granting of the variance desired
will not violate the general spirit and
intent of this' development code.
20. Appellants fail to satisfy ,condition ,(d)(l) above quoted
as there is nothing'unique to the property.here involved. The
c:J hardship on Appellants, if there be one, results from the
'construction of the storage shed without the benefit Qf a permit.
21. Nor is the physical surroundi~gs, shape or topography of
the property such as to create a hardship on Appellants if this
variance is not granted.
22. With respect to (d)(3) no credible evidence was
presented to show that the variance requested is the minimum
necessary to overcome the "hardship" in subparagraph (d)(2),
which hardship was not shown.
23. Without the storage shed for which this variance is
requested, Appellant testified he will have to obtain additional
storage space outside his residence for which he will incur
additional expenses. Accordingly, requesting the variance is to
secure a greater financial return by eliminating the expense of
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outside storage off of the property.
6
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24. Subsection (d){5) thru (d)(7) above would not be
materially affected by the granting of the variance requested.
25. Appellant contends that the granting of this variance
would be in accord with the intent of the Development Code as
expressed in subsection (a) above quoted to provide the City with
a process for alleviating hardship in carrying out the strict
letter of this development code. However, in interpreting
statutes or codes it is a cardinal rule of statutory construction
,
that the entire code under consideration must be considered in
determining the intent of the drafters of the code. From a
review of the whole code in para materia the Hearing Officer will
determine the intent. State v. Gale Distributors, Inc., 349
So.2d 150 (Fla. 1977). Where legislative intent as evidenced by
c:; the code is plain and unambiguous, there is no necessity for any
construction or interpretation of the code and courts need only
to give effect to the plain meaning of its terms. State v. Egan,
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287 So.2d 1 (Fla. 1973). Another cardinal rule of statutory
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interpretation is that no provision should be considered to be
entirely redundant. Colautti v. Franklin, 439 US 379, 392
.
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(1979).
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26. Section 137.012(d) above quoted clearly states that a
variance shall not be qranted unless the evidence presented
supports the findings that granting the variance will not violate
any of those provisions cited in subparagraphs (1) thru (8).
From the above findings it is clear that Appellants have
failed to meet the Code requirements necessary for the granting
of the variance requested. Accordingly, it is ORDERED:
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That the request by Claude and Myra Stinson for a variance
of 7.17 feet in the back setback line to construct a storage shed
2.83 feet from the rear property line at 1387 Lemon Street,
Clearwater, Florida be denied.
DONE and ORDERED this 23rd day of February, 1993, in
Tallahassee, Leon County, F~orida.
l(.l1RS~
Hearing affic r
Division of Administrative Hearings
The DeSoto Building
'1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-'9675
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. . . . . '''( '.
Filed with the 'Clerk 'of the Division
of-Administrative Hearings this 23rd
day of February, 1993.
APPENDIX
Proposed findings submitted by Appellants are accepted
'except as noted below. Those proposed findings neither rejected
nor included in Hearing Officer's findings were deemed necessary
to the conclusions reached. Although Appellants' findings are
not broken down into numbered paragraphs as is customary and
required, there are 7 paragraphs under Statement of Facts and
each sentence will be treated as a separate fact.
Paragraph 2 - First sentence rejected. See HO #12 and #13.
Third sentence same as first. Sixth sentence - no evidence was
presented that this steel shed constitutes an attractive
nuisance. Even if it did such evidence would be irrelevant.
Paragraph 3 - Third sentence rejected as uncorroborated
hearsay.' Fifth sentence rejected as uncorroborated hearsay.
Paragraph 5 - References to hardship due to configuration of
Appellant's lot is rejected.
Paragraph 6 - Accepted as Appellants' testimony not as fact.
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Proposed findings submitted by Respondent are accepted
except as noted below. Those proposed findings not included in
Hearing Officer's findings or noted below were deemed unnecessary
to the conclusions reached.
8
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Findings 3 - Those portions respecting detrimental to other
property in neighborhood, detract from the appearance of the'
community, and endanger public safety are rejected as unsupported
by credible evidence.
COPIES FURNISHED:
James W. Bauman, Esquire
1008 Drew Street
Clearwater, Florida 34615
Miles A. Lance, Esquire
Assistant City Attorney
City of Clearwater
Post Office Box 4748
Clearwater, Florida 34618
o
City Clerk
City of Clearwater
Post Office Box 4748
Clearwater, Florida 34618
Michael Wright, City Manager
City of Clearwater
Post Office Box 4748
Clearwater, Florida 34Q18
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this Final Order is entitled
to judicial review pursuant to Section 120.68, Florida Statutes.
review proceedings are governed by the Florida Rules' of Appellate
Procedure. Such proceedings are commenced by filing one copy of
a Notice of Appeal with the Agency Clerk of the Division of
Administrative Hearings and a second copy, accompanied by filing
fees prescribed by law, with the District Court of Appeal, First
District,' or with the District Court of Appeal in the Appellate
District where the party resides. The notice of appeal must be
filed within 30 days of rendition of the order to be reviewed.
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