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12/01/1993 (2) . ".' ~~_. _ . ._..i. _ .__ i I'. ," , /' . . .: . . , . ~ , , , .. . .' , , . '. .' . . . . . , . " . '. . . ' . ' . , , , , , . , . ' .. "J.. . , ,~.I'...M'..',... ...., .<,". . ..... .... q ...... .... ...'.... . .....,... .~. ~. ,'" ,< ~'I' . ,> " . '.' ..' '. HEARING . OFFICER . ................ ....,.. 'APPEALS , . < ... "'Date~mbtlr ~ ['/93 . , . ".' . 'f'f3en~~. Swti'+l, d/f3/~ . .' ..... ..... 73 (]I!. J)eveioptM-nC ~a LJ I I ' , ' , :':~,\,::.'_."'. ,...,', . .'" ","':.': :,::.:.:,':-<::.:,'.'.":,<..<~:,.>,","',:.:'..'<,:.,"I\:,......,:.':.::.~':,..:"~'>.. .i'\ ,'. , " ':"':'.: :,.:.:...',...." \ . ',.' '.,..'.' "'..,,.... , ,> " ":'::':":.:.': ,...' ,',."...,,',...':.,..,',.". '...,......' .,...'._~. :4 \ '.' ,,' .' ,"..', , , . . . ", . . . " ,', ..) '1 ' .. " :: _~ I' , . " "...' '. " . "" "<:',','. . .,' .', ,t1,;."',,:.,j:'I~. ,......... ,:':.~;' .~. ..:',.,'.., ,,", ".'.... < ..1 <.' :'". . ,I' ." .' .. '",CI ";' ~\,..,'~~' I <'" IJ........:.~:,..;..~ ..~.. .,.I~<I\~ '.',. . 1. .' ' '+' .I' . " fJ ".'1~ PUBLIC HEARING BEFORE A HEARING OFFICER December 1, 1993 - 9:00 a.m. Eugene R. Smith, d/b/a BCR Development Hearing Officer: K. N. Ayers Also Present: Miles A. Lance, Assistant City Attorney Lou Hilton, Planner II Camille Motley, Central Records Specialist Issue: Variance of 13.24 ft. to allow a structure 12.00 ft. from side property line where 25.24 ft. is required at 301 - 307 Island Way, Island Estates of Clearwater, Unit 2, Lot 10 and part of Lot 11, zoned RM 20 (Multjple~Family Residential) V-93:45. Appearances: Gregory Fox, Esquire Dave Ramsey, Professional Engineer 434 Skinner Boulevard, Dunedin, FL 34698 Fred Staples, President Dearborn Towers Tenants Association 223 Island Way, Clearwater, FL 34630 Fred Backham, Director Island Estates Civic Association 321 Palm Island South, Clearwater, FL 34630 ,() Exhibits Submitted: 1. Letter, dated November 30, 1993, from Dearborn Towers Tenants Association regarding variance request from E. R. Smith, III 2. Site Plan of Pelican Port and part of the Dearborn Towers property adjacent to the south. 3. Certified Site Plan for Pelican Port (pSP 93-06). 4. Permit Application signed by David F. Ramsey dated 10/20/93, for proposed townhouse. 5. Calculations showing amount left for building space with a 20% setback. Exhibits were accepted by the hearing officer. Hearing Officer K. N. Ayers called the hearing to order at 9:00 a.m. o MINH012A.93 1 i I . ~'~: , \. , t. .t' .' f) .: ~ , " ::.',1 .::.... . ~ .:.: ~I : .,' 'm) (~,. , , .: ~ ':.'!, ,.' , . ~ .';/ '." " , ", .':: ';' ~ c. .. , . ~ I . .., . ~ ," , ' r> ,~ : ,'.., ~. ~ Ii '. , ;' . ~ I. ',0 :: "I v : .~ ,. ..... .,...... ,,' .... ".- " ' "'.' .'. I~ ..' ...:..... '. . <. \ :,' 'j~ ' " , Mr. Fox stated initially the Petitioner had asked for two (2) variances. The first variances was for 25.12 feet to allow construction on a lot of only 124.88 feet wide. This variance had been granted for the nonconforming lot. The other variance which affected the sides of the property was denied. Mr. Fox proceeded to give the various measurements for the open area. He felt he has met the standards and called for a variance on side of the property having the largest open space. Denial of the variance has placed substantial hardship on the Petitioner. Mr. Lance explained the position of lhe Development Code Adjustment Board (DCAB) regarding the granted variance (V.7.93) which had been granted on July 22, 1993 for 25.12 feet to allow a minimum lot width of 124.88 feet where 150 feet is required. He stated the second variance of 13.24 feet to construct a building 12 feet from the side property line where 25.25 feet is required was continued until September 9, 1993 and then denied. The DCAB Board felt there were no conditions unique to the property; there was no necessary hardship shown other than financial hardship was placed on the Petitioner and any hardship was caused by the applicant; the request for variance was not a minimum request necessary to make a use reasonable use for the property; granting the variance would detract from the appearance and substantially diminish and impair the value of the surrounding property. Mr. Lance stated that the application for a variance is really based on an economic desire. Mr. Fox called David F. Ramsey to give testimony referencing the site plans submitted. He stated the zoning would be maintained and not encroach on the open sides of the property. Hearing Officer Ayers asked for restatement and clarification of the setback requirements. The ordinance provides for both a specified number of feet as well as a percentage. 20% of the frontage must be open on one side and 20% on both sides based upon the code. Waterfront yard requirement is 20% of the width of the property. Mr. Lance asked Mr. Ramsey if he had testified he wanted 10 units to make the project economically feasible on September 9, 1993 before the DCAB. Mr. Ramsey stated he had said "more economically feasible". He agreed he had stated that he would accept 9 units if a variance was granted. Hearing Officer Ayers accepted exhibit 2 (a flat plat called Pelican Port), exhibit 3 (a certified site plan of Pelican Port) and exhibit 4 (a building permit application). Mr. Fox entered a document (exhibit 5) which contained calculations of 20% taken from the proposed footage to show the resulting amount left for building space. Mr. Lou Hilton was asked to give testimony. He responded to Mr. Fox he was familiar with the case but did not write a staff report on the project. He felt it appeared to be a reasonable request based on the initial width of property. It seemed to be the minimum variance needed. He indicated that nine (9) units would be the allowable maximum. Mr. Lance then questioned Mr. Hilton. Mr. Hilton stated he felt the width of the property was incidental to the request for the second variance. The width of the property lended itself to the second variance request. The width of the property was non-conforming when requested by the first variance. Mr. Lance stated a side setback restriction is the present issue. Mr. Hilton agreed that this wus a different issue and he had told the Petitioner to apply for the variances although staff recommendation is not necessarily followed by DCAB. MINH012A.93 2 (;,.' 'I,' I '\"~ ...........'... ,.' el', ..'~' ~!,::~,'.,:,..:,:"" H. . ....~I. ...... ~..~..,... , :: :':',:::, :':, :,:,/,',i',,\.,:':r: ':', ';':::"'; :':\':',; '/'::,,: ',: '; '~:;,,':':: , ",,,,,,;.'~'!....~'\;;',':"..':' ~S :i.;t;;:;:.~,~':,,~;':'[\:'.{:;i::? ',;;:t.; ::L<: .r. /. !;i/j':l (i :.;. ,. 'I '. . r'. :+ I ,.1' 1.._.._'.._...-+_.._:_.....~,' ..l. . ,. .' ., " ., . > ,~.... .. c < c' '. ...~ Mr. Fox asked Mr. HUton if a variance was needed to make the property sellable to which he agreed. Mr. Hilton stated the applicant appeared to meet all the other requirements, the open space which is 20% of the width of the property, an addition to front setbacks and rear setbacks and height and so on. Mr. Hilton stated the Petitioner had met all the other requirements with the exception of the side setback issue. Mr. Lance asked if it wasn't possible to develop this 126 foot lot without a variance. Mr. Hilton responded a variance would be needed because the lot was non-conforming. It does not meet the minimum width standard as asked for in the code. Mr. Ramsey was recalled and gave testimony that the size of the units were reduced in order to make the property fit within the requirement. Mr Fred Backham, representing Island Estates Civic Association, testified the Association was very much opposed to the granting of this variance. The association members wouJd loose the water view and this development would cause a cramped appearance of the area. The association felt it would hurt their property values. Mr. Fox questioned Mr. Backham about his testimony in regard to the loss of water view. Mr. Backham stated part of the present view is through the pool area of Dearborn Towers. If Dearborn Towers erects a building in the future, the entire view would be lost. <J Mr. Fred Staples, representing Dearborn Towers Tenants Association was calIed to give testimony. He express the association was against the granting of the variance. The recreation area is important to the members of the association and they want to use it in full. Mr. Fox questioned Mr. Staples regarding his testimony and Mr. Staples stated the property owner ought to have the right to continue to use the property as it was originally developed without infringement of a restriction from a side property. Hearing Officer Ayers stated he had heard all the evidence. He advised Mr. Fox he had the right to submit a proposed recommended order to him within 10 days. Mr. Fox made a closing statement during which he restated his clients case. M:r. Lance made a closing statement in which he restated the DCAB position for denial of side setback variance and reminded the Hearing Officer that the City Code or Ordinances prohibits variances to be granted for financial reasons of hardship. The hearing was adjourned by Hearing Officer Ayers at 10:00 a.m. Q I i MINH012A.93 3 ~.....~_....._. .............~>, \t_;:'u;)).:i'":';):'\io,,<::,:,;::,,,b: ...",',;.8.,.... ... ..,.. ,~,.'. ................,.'...,. ".' ,', ,'...:....,'....,..., .:(..':,' ':::',,: /"'...:.; ':. ". ,.:....__.....____.....~..._...l., ,4" \, ..' . " '.'.. 'l' '. . ~' ..~v l ~ '..,.5,':,,,::, "":".:~1+.!L ,.~.:,,: , " ~ t STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS RECEIVED DEe 2 2 1993 CITY CLERK DEPT. EUGENE R. SMITH, ) ) Petitioner, ) ) vs. ) CASE NO. 93-5692 ) CITY OF CLEARWATER, ) ) Respondent. ) ) FINAL ORDER Pursuant to notice, the Division of Administrative Hearings,' by its duly designated Hearing Officer I K. N. Ayers I held a formal hearing in the above styled case on December 1, 1993, at Clearwat~r, Florida. (::) APPEARANCES For Petitioner: Gregory Fox, Esquire 2379 Drew Street Clearwater, Florida 34625 For Respondent: Miles S. Lance, Esquire Assistant City Attorney Post Office 4748 Clearwater, Florida 34618-4748 STATEMENT OF THE ISSUE Whether Petitioner should be granted a variance of 13.24' feet to allow a structure 12 feet from side property line when 25.24 feet is required. PRELIMINARY STATEMENT Following denial of his application for a variance in the side setback requirement, Eugene R. Smith, Petitioner, requested o a formal hea;ring to appeal this denial and these proceedings followed. .....,:',. ',:.: _"'.""" ';, , , ,': :>, '":,:;}i\':,:,::::',\;:;;,,:;2,',:<::j,'~?':;:,,),,,;i'),:,'::''':)',''\;'', \},,;I:O:' , <0 .' '" ' " . ." ..,...' "......' " . <.\1. . "~. .. 1;"'1 ,. .. [."~_', ' ." . ." . .'." " ", . rO' .,,".' :'.., ;. .', ,f ~.~.'~,. ,,""'t' .-:",' ,;~":"":'If','~':"':'~ ';,L:.:: ;..:...:....: ....';~>:..:::.'.. I 1\ ..',' " ....._._..~._+-__"'-.._"~.~... '"." \ '.' \ '.!o' ,~.' " " . . At the ,hearing, Petitioner, called two witnesses, Respondent ~ called, two witnesses and five exhibits were admitted into evidence. Proposed findings were timely submitted by the parties. Those proposed findings are accepted except as noted in the Appendix hereto. After fully considering all evidence received, the following is submitted. FINDINGS OF FACT 1. The Petitioner has an option to purchase property located at 301-307 I s land Way Boulevard, Island Estate, Clearwater, Florida, on which he proposes to construct ten townhouses. 2. Initially Petitioner asked for two variances. The first variance was for 25.12 feet to allow construction on a lot only ,-.. 124.88 feet wide. This variance was granted for this , ",, .... nonconforming lot. 3 . The second variance, for 13.24 feet to allow construction of the ten townhouse complex 12 feet from the side property line, was denied by the Clearwater Code Adjustment Board. The Board concluded the variance requested did not meet the requirements of Section 45.24 of the Clearwater Land Development Code. 4. Petitioner presented evidence that if the lot had been 150 feet wide they would have had 90 feet to build on without requesting any variance. However, since the lot was nonconforming, in order to have 89 feet on which to. place the building, the requested variance would be necessary. ~, 2 .........>iot.......l~H-ilh,.......I...lt....,...,il.lr.. "<,,:,.::;.,_':" ,'.; ':,'. :'.." :". ..' ..<" /,. ..:},....">',,.':.:~ :>.,'.. .:\....~:..:.:' ,.':.'.:', .::. .', '>.,'A' ,:'.' :'.:.. :', ,..'.. ...,'.\~ ,.," :.'.:'.:., < .',...'.::..: '; :.,~'<'.~~.~.,~,>.. ::. ~ ....'..' ~ <:,':,~::i." :::'..:::::..~;:, :..:.; '.<:.:::.\~<~:'~ . , .,.. .' .' '. ., ,; - .,,' ~~I. '1.'_.. I . ," .,'.. . '. \. .. '. . " . , ".. ,:' .' ".... -,.: :", .'. :' "'<." \ : ::', :" .. : " '" ,'. ,,;:,t '.' .': .' ,,:, r" " : ',: ...... ': :': '::'. . ,', ..." ',-' , ,::' :.... -:..... i( '.'. '..::.> >: ::.'....',, .. '", ",:,"', ~':'."':"~_......-.~_......"___.I."..... " I, - ,','...,,' ." '. .' .,' ,I j '. "}" 101 11' ., . 5. Petitioner also presented evidence that the construction of ten townhouses on this lot is necessary for the project to be on a solid economic basis. 6. Subsequent to the denial of this variance by the Development Code Adjustment Board, Petitioner submitted plans, which have been approved by the City of Clearwater, to erect nine townhouses on this property without any variance needed. However, these townhouses would be smaller than would be the ten townhouses initially proposed and would provide a lesser return on the capital invested. CONCLUSIONS OF LAW 7. The Division of Administrative Hearings has jurisdiction over the parties to, :~ proceedings. and the subject matter of, these 8. Section 45.25 of the City of Clearwater Development Code establishes the criteria for obtaining variances and provides: A variance shall not be granted 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 nor uniformly applicable to the zoning dis- trict, and is not created by an action 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 a situation which supports the grantfng of a variance. 0,," . , ~2) The particular physical surround- ~ngs I shape or topographical conditions of the property involved and the strict application of ~he provision of this development code would result in an unnecessary hardship upon the applicant. 3 ,.." ".'_' ,'. .,':. ", :....'.:.. '/. ';.' ;,::.',' ."',".>, .", ..:....'.'/' '<>.~' '.". ':' ". ..,:'.. .;'... :':, '.' " >", ":'" ' : ,;....:'".:,. \' i,i,.., .'..,,, '.', ','.' .... .:,": .,:.,..,'.:...<.. : '" ',', .,...'.:"-'..' ~ "'~' ': ; . : " .. . ..'t. o" '.~J"""; (], ':;.' '., -" '.: :',":' ,'. , " ," ,'\\,,": .\ , ':: " " .>,<:. ".: ...,'. .' :,'" -:. " ..... .'.' " ~',' h/"t"""!' ,", ":, ,:' .I',~." ,',,'.',,' --. ,", ..,.., .~. -:', .,: '. ,;,.: .' .... "" .'> <: ' " .:....',,:.:, .' ' , '.""' - _._..............._............-..... ,. .-'" . ('.' , '. . I . .' , , " Ij (3) The variance is the minimum necessary ,to overcome the unnecessary hardship referred to in subsection (2) of this section 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. (5) The granting of the variance will' not be materially detrimental or injurious to any other property or improvements in the neighborhood in which the pr~perty 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. 9. Because the lot in question was a nonconforming lot, Petitioner was given the first variance in width to allow a building to be erected on this lot. This is the condition referred to in conclusion 1 in paragraph 8 above. 10. As to the second variance, since the property in question is rectangular in shape and contains no unique topographical condition, strict application of the code will not result in an unnecessary hardship upon the applicant, ~ 4 ~M..r........JIipJ~....J:.h.h.!.I~ ;' . '1" .....~~i;.'.~"-...........~ ._.....". -.........". . r "-' ", ,'"',, "'::,':'~",;':;'/;"""~"""".,'.';""""" "..,.'.: ':-,', ".'.' ,:;, ".' :.,',",'.,',:'." , " i, , '.. ,.. ',. .'. ' " "J.~'. . =J . ,U. I" D . " "\.... . . ,I. ',. ",.' ,.."., I,. ~ ' . ,. ,; '.~' '. '~I. 1, ,," .',.<..... . ".."'~ f'., , ,.,.J 11. By submitting plans and obtaining approval for the construction of nine townhouses on the property, the appl icant has himself demonstrated that the requested variance is not the minimum necessary to make a reasonable use of the property. 12. Here, the variance is requested for the primary purpose of enhancing the economic value of the property. 13. The neighbors on the side of the property for which the variance is requested oppose ~he granting of the variance, alleging that encroaching into the setback zone will reduce visual access to the water and reduce the value of their property. allegation. Insufficient evidence was presented to prove this () 14. Although the granting of this variance will reduce the space between buildings on this lot and the adjoining lot, this will not constitute a substantial impairment in light, or ventilation or detract from the community, nor will the granting of the variance affect the public health. 15. Granting the variance here requested would violate the general spirit and intent of the Development Code. o 16. Section 36.065(6)(c) of the Land Oevelopment Code provides that in this proceeding the burden shall be upon the appellant to show the decision of the Board cannot be sustained by the evidence before the Board and before the Hearing Officer, or that the decision of the Board departs from the essential requirements of the law. 17. Petitioner has failed to sustain this burden. 5 I . I ~: '." : " . ,II _.:..- ..._........... ~...I.' ~ . . ... . I " '. I " I . ., l' " I .,' . .' ORDER Based on the foregoing, it is, hereby, r'\ ORDERED: That the appeal of Eugene R. Smith for a variance of 13.24 feet to allow the construction of a structure 12 feet from the side property at 301-307 Island Way Boulevard, Island Estates, Clearwater, Florida, be dismissed. ORDERED this 20th day of December, 1993, in Tallahassee, Leon County, Florida. ~~}~~ 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 20th day of December, 1993. APPENDIX TO FINAL ORDER, DOAH CASE NO. 93-5692 Proposed findings submitted by Petitioner are accepted. Proposed findings submitted by Respondent are accepted except as noted below: 6. Accepted as the testimony of witness Ramsey, but the opinion regarding unnecessary hardship is rejected. Also rejected is Ramsey's conclusion that the primary purpose of the requested variance is to permit the property to be developed in accordance with the Development Code. 7. Opinion of Hilton that request for variance is reasonable and Applicant met criteria for the requested variance is rejected. ~ 6 ,,:,:'_'" " '" ','" '., ,', " . ',:', .;.,.:'. . ,_ ',.':~,,:':,,~ .',' .,:::,.'..... '::'. """,:.\'~~:i.',.. ", ' . '.'. .' "'~Il \ ~I ~: / &: . \ " " , ',.' " '~.' '~~, !.'~... . .,. ,...,.(. t..:.... '.. 'I.,.~',',:.';'.',.:: . '"' ......_._ ~,--'_............ ~..,.~ _ ", ~': ',," l j , <..., . .. ' I . ' " , ,J .:, ',1. '. .~.' " '-.'." '. . ,~..;: ,~"<~,,C' t........r,;1 "., . q.. . J '" f) COPIES FURNISHED: Gregory Fox, Esquire 2380 Drew Street, Suite 3 Clearwater, Florida 34618 Miles S. Lance, Esquire Assistant City Attorney Post Office Box 4748 Clearwater, Florida 34618-4748 City Clerkts Office City of Clearwater ' Post Office Box 4748 Clearwater, Florida 34618 ~8 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. ALTERNATIVELY, A PARTY ADVERSELY AFFECTED BY THIS FINAL ORDER MAY BRING A CIVIL ACTION FILED IN CIRCUIT COURT UNDER SECTION 230.23(4)(m)5., FLORIDA STATUTES (1990 SUPP.), OR BRING A CIVIL ACTION IN FEDERAL COURT. o 7 .-----"' ~.. . ". .....___,..t._...~_...~. _........ r ...-...-.....:-,.., .'.. . -' ..........,,~.. ~ . ~ ~, --- .._....~ - -~,.. ' '_' '" ',' '""".,',:';';:>",.l~: ,'._'> ..:;" ,: ':'...i:, :;'; " '" " ' ' '" ",:,.-=,1 '''' ,2t ,I, L I""", " '. ,~" ,.' . "'~' .',r '~3 '. I' ~.I," ,', ',','. ',"