05/11/1993 - 3:00 PM (2)
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HEARING
.. OFFICER
APPEALS
. I' Date
Avi Dva--k-n;n (Sur+ We~t) Tnt!.)
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PUBLIC HEARING BEFORE A HEARING OFFICE
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May 11, 1993 ~ 3:00 p.m.
Avi Ovaknin (Surf West, Inc.) / City of Clearwater
Hearing Officer:
K. N. Ayers
Also Present:
Sandy Glatthorn, Senior Planner
Susan Stephenson, Deputy City Clerk
Issue:
L.O.M., Inc. (Surf West, Inc.) for variances of (1) 5 ft to permit a
building setback of lOft from N Gulfview Blvd where 15 ft is required;
(2) 11.4 ft to permit a building setback of 3.6 ft from Papaya St where 15
ft is required; (3) 9.1 ft to permit a building setback of 6.4 ft from rear
(north) property line where 15.5 ft is required; and (4) 6.5 ft to permit a
building setback of 6 ft from side (east) property line where 12.5 ft is
required at 24 Papaya St, Clwr Beach Park on Clwr Beach Island, Lots
29 thru 32, zoned CE 28 (Resort Commercial). V 93~08 Case 93-001475
Appearances:
Harry Cline, Attorney representing Appellant
Miles Lance, Assistant City Attorney
Exhibits Submitted: 1.
Composite of Development Code Adjustment Board minutes.
(submitted by appellant)
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2. Aerial photo showing location of similar variance requests.
(submitted by appellant)
3. Table of variances and the decisions rendered. (submitted by City)
Mr. Cline made opening remarks and stated the Board approved variance #1 but denied
all the others. The variances are to allow new construction.
Mr. Lance made his opening remarks and questioned whether a retail outlet can be placed
on the property. He pointed out that the Development Code Adjustment Board cannot grant
variances when the hardship is for financial gain.
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David Himes, design engineer with Spring Engineering, prepared the plan to develop the
parcel with a retail establishment. He stated the lot is substandard and irregular in shape. When
the plan was first submitted it required eight variances but there were six actual issues. He
indicated the Board felt the site was oversaturated so the project was redesigned and the need
for several variances was eliminated, including one for parking. He submitted seven
photographs of the property and described them. The proposal provides 4732 square feet of
retail area with parking underneath the structure. Visibility is the key to the success of the
project and properties on two sides of the subject parcel are built to the property line. If the size
H~llring amc~r 5/11193 - L.a.M., Inc.
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of the structure is reduced, the parking will also be reduced since it is situated under the
building. They have been making every effort to buffer the project. The zoning allows 48%
I~ lot coverage and without variances they can only build a 1600 square foot building. Staff
recommended approval of most of the setback variances and there would be no impact on the
view corridors.
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Under cross examination, Mr. Himes stated variances were granted for the width and
depth of the parcel. He did figure what size building would fit on the parcel without variances
and his client requested that a larger building be designed. The building was designed based on
information from the owner as to what is feasible. Two variances were granted by the
Development Code Adjustment Board on 12110/92 and they recommended a 10% reduction in
the size of the building. A variance for 3% over the permitted building coverage was granted.
They feel a 1600 square foot building is not reasonable use of the property and poor visibility
is a practical hardship.
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Abraham Ovaknin, owner of the property for two years, stated there is a short term
rental apartment on the property. He feels the size of the building allowed with the granting of
the variances is the minimum and visibility is a key issue. He presently operates five other
stores on Clearwater Beach. He feels the proposal will enhance the neighborhood. If the denial
of the variances is not reversed he will use the property as is. In response to a question, he
stated he did not investigate the zoning of the property prior to purchase. The average size of
his other businesses is 2500 square feet and he has several operations in Miami which are larger.
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Under redirect by Mr Cline, Mr. Ovaknin stated he did not know he would only be able
to build a 1600 square foot building without variances and he noted the existing buildings are
all built to the property line.
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Richard Bekesh, President of Spring Engineering, stated they evaluate the site with an
architect program and develop floor plans to meet the needs of the owner. Building within the
setbacks would block the building visually. By developing the property they will be eliminating
the hazardous backout parking which now exists. He stated they had staff support for all
variances except the street setback to the west and they also had the support of surrounding
property owners. The reason for the variances is not primarily financial. Two variances were
granted in December and they went back in January with the building scaled down by 10%. A
variance was granted in January for building coverage but without the setback variances it was
not useful. There was discussion at the January hearing as to whether the request was
substantially different to allow the Board to hear it so soon after the hearing in December. Staff
felt the changes were substantial enough to allow it to come back to the Board but one of the
Board members disagreed. The case was heard with the result that one of the variances
requested was granted and the others denied.
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Eliyahu Levy, a business partner of Mr. Ovaknin, stated he has 12 stores, employs
approximately 400 people and feels 4800 square feet is the minimum size building for this
location. He stated that in his opinion one of the Board members should have declared a conflict
of interest as she leases properly to a competitor of theirs. He pointed out that one of the other
Board members excused himself because he leased property to Mr. Ovaknin.
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Mr. Lance stated that it is only Mr. Levy's opinion that the interest of the Board member
should have been disclosed.
Mr. Lance cross examined Mr. Levy and asked whether he had discussions with an
attorney prior to the purchase of the property. Mr. Levy responded that he spoke with his
attorney, who is from Miami, regarding the purchase and purchased the property in good faith
not knowing that variances would be needed to construct the building as he desired. On redirect
from Mr. Cline, Mr. Levy stated his attorney was informed they could build with 45 % building
coverage.
Mr. Cline submitted as exhibits several sets of Development Code Adjustment Board
minutes along with an aerial photograph of Clearwater Beach. Mr. Miles objected to the
exhibits on the basis that there was no relevancy as each request must stand on its own. The
Hearing Officer allowed the exhibits and stated he would determine their relevancy when he
reviews the case.
Sandy Glatthorn stated eight variances were requested with two being granted and six
being denied. At the second hearing five variances were requested and only one was granted.
The Development Code Adjustment Board felt that the standards for approval were not met in
some cases.
Under cross examination by Mr. Cline, Ms. Glatthorn stated that standards for approval
of a variance are listed in the Code but uhardshipll and Ureasonablell are not defined. In
response to a question, she stated a site visit is made, the Code and the application are reviewed,
and maps are prepared prior to Staff making any recommendation. Staff determines if the use
is in conformance with the Comprehensive Land Use Plan and Zoning but the Comprehensive
Land Use Plan has no bearing on dimensional requi1:ements.
In closing Mr. Cline stated all the criteria for granting variances has been met and it is
not reasonable to construct a 1600 square foot building. He submitted information on a case
regarding a substandard lot that was in compliance with the Comprehensive Land Use Plan and
the burden of proof shifted to the government agency.
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In closing Mr. Lance stated a rezoning case is different and the burden of proof is
different. The owners took a risk when they purchased the property to develop it as retail. The
Development Code Adjustment Board acted as its authority allowed and granted three variances.
The Appellants have the right to present evidence and show that the Board was wrong in the
decision it made.
The Hearing Officer requested that proposed orders be submitted within ten (10) days.
Hearing adjourned at 4:47 p.m.
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RECEIVED
JUN 0 1 1993
elJY CLeRK DE",
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AVI OVAKNIN (SURF WEST, INC. ) , )
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Petitioner, )
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VB. ) CASE No. 93-1475
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CITY OF CLEARWATER, )
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Respondent. )
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FINAL ORDER
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Pursuant td notice, the Division of Administrative Hearings
by its duly designated Hearing Officer, K. N. Ayers, held a
formal hearing in the above-styled case on May 11, 1993, at
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Clearwater, Florida.
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APPEARANCES
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For Appellant:
Harry s. Cline, Esquire
4000 Cleveland street
Clearwater, Florida 34615
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For Respondent:
Miles A. Lance, Esquire
Post Office Box 4748
Clearwater, Florida 34618-4748
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STATEMENT OF THE ISSOES
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Whether Appellant should be granted variances in setback
lines to allow construction of a retail store on a lot at the
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northeast corner of the intersection of Papaya Street and
Gulfview Boulevard on Clearwater Beach, Florida.
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PRELIMINARY STATEMENT
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By application for variances considered at the January 28,
1993, meeting of the city of Clearwater Development Code
~ Adjustment Board, Avi Ovaknin (Surf West, Inc.), Appellant,
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requested 5 variances to permit the construction of a retail
establishment on the parcel of land located on the northeast
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corner of the intersection of Papaya street and GUlfview
Boulevard. Those variances are: (1) a variance of 3% to permit
48% building coverage where 45% maximum is allowed; (2) a
variance of 5 feet to permit a building setback of 10 feet from
North Gulfview Boulevard where 15 feet is required; (3) a
variance of 11.4 feet to permit a building setback of 3.6 feet
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from Papaya street where 15 feet is required; (4) a variance of
9.1 feet to permit a building setback of 6.4 feet from the rear
(north) property line where 15.5 feet is required; and (5) A
variance of 6.5 fe~t to permit a building setback of 6.0 feet
from the side (east) property line where 12.5 feet is required.
The Development Code Adjustment Board granted variance (1) above
and denied the four variances in setback and this appeal
followed.
At a previous hearing on December 10, 1992, the Board
granted variances on this property to allow construction of a
building on the nonstandard lot but denied the setbacks, parking
and coverage variances requested.
At the commencement of this hearing the evidence submitted
to the Board was admitted into evidence. Thereafter Appellant
called 4 witnesses, Respondent called one witness, and 3 exhibits
were admitted into evidence. Seven photographs of the area were
presented to the Hearing Officer at the close of the hea~ing, but
these photographs were never offered or admitted into evidence.
Proposed findings have been submitted by the parties and
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.~ considered in the preparation of this Final Order. Having fully
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considered all evidence presented, I make the following:
FINDINGS OF FACT
1. Appellant purchased the property at 24 Papaya street in
Clearwater Beach (lots 29-32, inclusive, Clearwater Beach Park)
approximately' two years ago. The only inquiry made of zoning
officials regarding use of the property, other than zoning, was
what part of the lot could be covered with a building.
2. This lot-is nearly square but is nonstandard in both
width and depth~o construct a building without a variance.
These variances were granted at the initial variance request
heard in December 1992.
3. Appellant proposes to construct a retail store
(:; containing some 4700 square feet of floor space. To erect a
building of this size on the lot a variance of 3% to allow 48%
coverage,of the lot was required. This variance was granted by
the Board; however, without the variances in setback on the four
sides of the parcel, this 3% variance in lot coverage is useless
to the Appellant.
4. This lot currently has four old buildings with a
combined total of 2723 square feet. The largest is nearly square
and contains approximately 1120 square feet. There are rental
apartments in some, if not all, of these buildings. It is
proposed to remove these buildings, if the permit to construct
the p~oposed store is granted. The existing buildings are
nonconforming and three are between 2 to 4 feet of the lot lines
~ on the north, east and south sides of the property.
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5. The property is zoned CR-2B (Resort Commercial) and the ~
proposed use is authorized in this zoning classification.
6. The plans are and the applicant proposes to provide the
required parking spaces for this establishment under the proposed
structure.
7. Appellant presented evidence that adjacent properties
were built to the lot line with no setback. Most of these
buildings were erected before setbacks were required in this area
and are grand fathered in so long as the structures remain.
8. In 1986 the Development Code Adjustment Board granted
setback variances on all four sides of the property across
Gulfview Bou~evar4 from Appellant's property. That parcel was
also nonstandard and even smaller than the parcel of land here
involved. Because of the size of the property the Board found a
hardship existed and without the requested variances the property
had little value. One significant difference in these two
parcels is that one had been o~ned by one family since 1932 while
the instant parcel was required circa 1990.
9. Further, evidence was presented that being one block
east of Mandalay Avenue, the main traveled beach road, the
proposed structure needs to be seen from Mandalay to attract
pedestrian traffic. The building just west of Appellant's lot is
built to the lot line and partially blocks the view of
Appellant's property from Mandalay.
~O. The use of the property sought here is consistent with
the Comprehensive Land Use Plan and no protest to the granting of
the variances requested were received from adjacent property
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owners.
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11. Razing the existing structures and erecting the
proposed store in which the applicant intends to sell upscale
beach wear would improve the appearance of the neighborhood.
CONCLUSIONS OF L~W
~2. The Division of Administrative Hearings has
jurisdiction over the parties to, and the subject matter of,
these proceedings.
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13. This appeal is controlled by Section 45.24 of the city
of Clearwater Lan~ Development Code which provides:
A varfance shall not be granted unless the
applicant and evidence pre~ented 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 nor
uniformly applicable to the zoning district,
and is not created by an action of the
property owner, predecessor in title or the
applicant. Any mistakes made in the
execution of a building permit or work
performed without the benefit of a permit
shall not be considered to be a situation
which supports the granting of a variance.
(2) The particular physical surroundings,
shape or topographical conditions of the
property involved and the strict application
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 subsection (2) of this section for ~he
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.
(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
form the appearance of the community,
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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
comrnun i ty . ,
(8) The granting of the variance desired
will not violate the general spirit and
intent of this development code.
14. The only thing unique to the property here involved is
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the parcel is a corner lot and substandard in size. Being a
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corner lot requires larger setbacks on two sides of the building.
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To compensate for substandard depth ~nd width of this property, a
variance was earlier granted by the Board. However, this
variance, like the variance in lot coverage, does nothing for the
applicant without some variances in setbacks.
15. The size of this parcel, just under 10,000 square feet,
is inadequate to erect a building covering 45% of the property as
allowed by the code if the prescribed setbacks are followed.
This creates a hardshipi thus indicating that some relief should
be granted.
16. Although Appellant testified that the variances
requested arc the. minimum necessary to overcome the hardship
noted above, this evidence was not convincing.
17. The variances requested are based primarily on the
desire of the applicant to secure a greater financial return from
the property. One of the joint owners, Mr. Eli Levy, testified
that the income from the present use of the property was not
sufficient to cover the interest on the money needed to purchase
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the property.
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18. The granting of the varianc:es needed to construct the
proposed store will not be detrimental or injurious to other
property or improvements to the neighborhood. In fact, the
,proposed construction will be a great improvement over the
existing buildings on the property and will upgrade the
neighborhood.
19. No evidence was submitted that the granting of the
variances will impair an adequate supply of light or air to
adjacent propertic's, detract from the appearance of the
community, increase congestion in the streets, or impair public
health or safety in any manner. To the contrary, evidence was
presented that the proposed development will improve,the
neighborhood.
20. Whether granting the variances requested will violate
the general spirit or intent of the development code is a close
question. The existing buildings on this property intrude into
the required setbacks on the north, east and south sides of the
property more than would the proposed structure if the requested
variances are granted. Further, all of the existing buildings in
the immediate area intrude into the code prescribed setbacks.
Accordingly, granting the requested variances would not violate
the general spirit and intent of the development code.
21. Appellant cites snyder v. Board of County Commissioners
of Brevard County, 595 SO.2d 65 (Fla. 5th DCA 1991), as authority
to grant variances requested. The court there held at p. 81:
The initial burden is upon the landowner to
demonstrate that his petition or application
for use of privately owned lands {rezoning,
special exceptions, conditional use permit,
7
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variance, site plan approval, etc.) complies
with the reasonable and procedural
requirements of the ordinance and that the
use sought is consistent with the applicable
zoning plan. Upon such a showing the
landowner is presumptively entitled to use
his property in the manner he seeks unless
the opposing g9vernmental agency asserts and
proves by clear and convincing evidence that
a specifically stated pUblic necessity
requires a specified more restrictive use.
After such a showing the burden shifts to the
landowner to assert and prove that such
specified more restrictive land use
constitutes a taking of his property for
public use for which he is entitled to
compens~tion under the taking provisions of
the state or federal constitutions.
,
(}
22. Snyder" involved a rezoning and the reference to
variance above quoted is dicta. Variances are granted as a
privilege, not as a right. The applicant carries the burden of
proof with respect to showing that exceptional or undue hardship
will result if the variance is not granted, and that a
substantial detriment to the public good or the zoning plan will
not result. 83 Am Jur 2d zoning and Planing section 838.
Further, the provisions of the Land Development Code until
overturned by a court of competent jurisdiction, are binding on
this tribunal. These code provisions clearly place upon the
applicant the bur4en of establishing his entitlement to the
requested variances.
23. The fact that Appellant required the property without
determining the code provisions which limit the size of the
structure that may be erected thereon when prescribed setbacks
are taken into consideration, militates against granting the
requested variances.
~~
8
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24. Imposing all setbacks described by the code to this
property would allow the owner to construct a building containing
only 1600 square feet. A freestanding store of this size is
totally impractical and to require such construction would
constitute an unnecessary hardship. Accordingly, the evidence
presented to the Board and at this hearing does establish an
unnecessary hardship, but not one that requires granting all of
the variances requested.
25. It is tc be noted that the Planning and Zoning staff
for respondent recommended granting the variances requested on
the north, east and south sides of the property. Before the
Board considerable opposition was expressed req~irin9 the setback
variance requested ('n the south side of the property (Papaya
I:) street) .
26. Although Appellant's desire to build a viable store is
for the purpose of securing a greater financial return from the
property, in its present condition the property does not produce
enough revenue to pay the interest on the purchase price for the
property_ The hardship here involved is a financial hardship as
are most hardships for which the code allows a variance to be
.
granted.
27. From the foregoing it is concluded that the substandard
lot creates a hardship which is not corrected by granting a
variance for the width and depth of the parcel; that the proposed
construction will approve the appearance of the neighborhood; and
that the requested variances should be granted on the north, east
(:) and south sides of the property. Accordingly, ~t is ORDERED:
9
"
That Avi ovaknin (Surf West, Inc.) be granted: (1) a
variance of 11.4 feet to permit a building setback of 3.6 feet
from Papaya street where 15 feet is required; (2) a variance of
.9.1 feet to permit a building setback of 6.4 feet from the rear
(north) property line where 15.5 feet is required; (3) a variance
of 6.5 feet to permit. a building setback of 6.0 feet from the
side '(east) property line where 12.5 feet is required; and (4)
that the requested variance at GUlfview Boulevard be denied.
DONE AND OROr,RED this ~ day of May, 1993, in Tallahassee,
Leon County, Florida.
(~}
~QJL~~
H~arin~~~:fcer
Division of Administrative Hearings
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the
Division of Administrative Hearings
this 26th day of May, 1993.
"
n._'"
COPIES FURNISHED:
Harry S. Cline, Esquire
400 Cleveland street
Clearwater, Florida 34615
Miles A. Lance, Esquire
Assistant ci~y A~torney
Post Office Box 4748
Clearwater, Florida 34616-4748
Michael Wright, city Manager
city of Clearwater
Post Office Box 4748
Clearwater, Florida 34616 4748
Cynthia Goudeau
City Clerk
Post Office Box 4748
Clearwater, Florida 34616 4748
~
10
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.NOTICE OF RIGHT TO JUDICIAL REVIEW
.A party who is adversely affected by this final order is entitled
to judicial review pursuant to Section 36.065(g), city of
Clearwater ,Land Development Code. This appeal shall be by common
law certiorari to the circuit Court.
"'"
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