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02/17/1994 - 9:28 AM (2) . . u~,_,.--;...........r-.."l._. '. ~"', , ,'. . J ,",~ . ~ . ,.,c,,", ~1', .".'...I..)'I......~f!";:....,,'.,I.;......,"".....~"<':..~.\.'.... ..... . '. ,_,"". ",'fc".' r. . , , . . . . ' .. HEARING OFFICER APPEALS , ' 'Date . .... .. ~httr/t S ~ i3-en~ ()J~/-I-e-r a~6~ , . . ",,<."_" :'.: ,: ,... "''':',.'' ,....'....:' ',:.:" :,'..,........... ,. .1..1\'.'.'., : ;:,',',' " .,.., .' ", . .:-'.: :':.,' ,,'.'.,.~. ,.', '.,'.."'. .i' ,.: . ,:' ". ..' .......':" ~~,. , '-~ '.' .'. 15"" " , .~..... ','. .. '.:' ',"', ,'., \ .. . " - . '. I I' .. .' . ..' " ., ." , . .,. . . , , '" ". . . I ,'" . I ' " " . . . , , " ~. ",' '. " , .',: ' ~......-. , . i " ,.", . ,,' ""::, ,", . . . ,.1 ' .,' , .,;{ ,~ " PUBLIC BEARING BEFORE A BEARING OFFICER February 17, 1994 - 9:28 a.m. Charles W. and Brenda N. Walter vs. City of Clear~ater Case No. 93-7068 Hearing Officer: J. Lawrence Johnston Also Present: Issue: r""}' .ftJ:rJ Appearances: Patrick T. Macguire, Esquire Miles A. Lance, Esquire, Assistant City Attorney Attorney representing absentee alienes Nigel & Roseanne Mansell, 802 West Druid Road, Clearwater Dottie Reehling, Staff Assistant II Petitioners contest the decision of the Development Code Adjustment Board to grant the City of Clearwater variances of (1) 59 ft to allow a dock length of 91.5 ft where 32.5 ft is per.mitted; (2) 17.25 ft to allow a dock width of 40 ft where 22.75 ft is permitted; and (3) 7.5 ft to allow a setback of 12.5 ft from extended property lines where 20 ft is required at 201 Magnolia Drive, submerged land west of Magnolia Dr, zoned AL/C (Aquatic Land/Coastal). V 93-66 Patrick T. Maguire, Esquire, Representing Appellants Miles A. Lance, Esquire, Representing Appellee Donald o. McFarland, Esquire 108 S. Hercules Ave, Clearwater, FL 34625 David C. Martens 425 Lotus Path, Clearwater FL 34616 Jean Stewart, representing The Clearwater Historic Preservation Board, 1350 South Greenwood Avenue, Clearwater, FL 34617 Mr. Johnston stated that he understood that according to the Clearwater Land Development Code Sec. 36.065 at this time he is to receive in evidence the tapes, minutes and exhibits from the proceeding before the variance board. 1. Affidavit of Charles A. Harris Jr. 2. Copy of Deposition of Cristofer Focsan, Project Engineer 3. Official court reporter's transcript of the 11/17/93 Clearwater D.C.A.B. hearing These were received without objection. Appellants Exhibits: ~ MINH002A.94 1 V 93-66 ~ , ~, :' .,'::: :, ~~, ,l";, . ~ 1'" \' "', " . . ~ . ,', , d, " ,. , ~; ..... : ':1' '.. . , P, , " ";. ~ ; I , ., ,', . o L' ,.',' . . .~ '- : l' .;..\. j ~ ~ : ",". .. ~, " ',t,,/ l.', '.. . I;.,', . , " ;. .., ~ ...' ' ~., ;. '1'1.' :- ~ ': :J,.., " . .t.' .1,", :\':": "II:'.; " ' , . w ,'. " /. ' ~ '. , '., ;. . ~, " , r ::. ~ , . '.... "," .:'," . : ' " ~ , Appellee Exhibits: 1. Copy of document objecting to the variance by Jasper W. Campbell received City Clerk's office on 02/09/94 2. Letter from the Clearwater Historical Society in support of the rebuilt dook signed by Mary June Burwell and dated 02/14/94 Mr. Johnston offered to take opening statements. Mr. Maguire waived an opening statement, deolaring that their position was basioally that the failure of any oompetent substantial evidence being presented below warrants their appeal to the granting of a variance. Thus any opening statement he would make would really be their argument. Mr. Lance stated that this is a oase where the City of Clearwater Development Code Adjustment Board granted the City of Clearwater a varianoe to build a dock to its previous configuration, a dock that had been in existence since 1915 or so. The dock was destroyed by high seas and wind. It was determined that it should be rebuilt by the City of Clearwater. In order to do that and bring it to current code, they had to apply for three variances: (1) 59 ft to allow a dock length of 91.5 ft where 32.5 ft is per.mitted; (2) 17.25 ft to allow a dock width of 40 ft where 22.75 ft is permitted; and (3) 7.5 ft to allow a setback of 12.5 ft from extended property lines where 20 ft is required. The crucial thing in this case is whether their was competent substantial evidence before the Development Code Adjustment. Board to justify granting those variances which was done. The unique condition is that it was a previously existing dook being at the very end of Magnolia Street which is a public right-of-way. There was also the impact of the stor.m which took away this pier of historical significance. There is one significant thing that shows tremendous deliberation and dedication on the part of the Development Code Adjustment Board. They did grant this variance, but with very extensive conditions. This shows that there was not only competent and substantial evidence before the Board but a great deal of analysis and logic applied to it. The conditions were: (1) Signs were required by the Board to be posted by the City to limit the hours of operation (2) Proper illumination (3) There be an electronic safety system monitored by the Police Department. These accommodations were intended to meet the objections of some of the people who did not want to see the dock rebuilt. The City of Clearwater's position is that there was competent subBt~ntial evidence to justify the decision of the Board and therefore the variance granted should not be overturned. Mr. Johnston declared that he had reoeived under Sec 36.065(5) (B1) of. the Code all the attachments to the 12/09/93 transmittal letter to the Assistant Director of Administrative Hearings which will oover the tapes, minutes and exhibits. MINH002A.94 2 V 93-66 'i', ". I . ".\ ",' , . .' ':, "';.';.1:,:,'.;, \'./',:;,':' ':'...'":,~..,.'.'..'I,:r,, '..,<. ,,::/i,.i'I~.D::.'.: .....:.~:. \.' /.. """~;",;:;:::.':.':' .:., , ~ '" ,t".. ,:.,'t \~ ',',:, " .. . I , " . I . ',' '" I 'j' t. ' ~..: . .' '. ~ 'I '.. . + :.,,;,:;::'::\,,~:.~\'.:}:":'.:tj :,:::':;:; .:; ;.:';,; ~~'::::: i,:: :;~'~:;'t:;'\," ;~' ,,' ., '..,,' ...\." ' ., '. ' ,.", \ :,:' :'..: I."...,::.:::. :"::.'1.',"':\ I... ,'.: .:.~.:'~ ,-.; " . 'I L. . : ",~,'l....._.~':"..:...._--..~._.,. ,...._~ ~ ,', I, '1'" I '. . '. ' I '. , 1'1 I ..~ ". I'm";. ~ ,. Mr. Maguire stated that his disagreement with Mr. Lance stema from the fact that in order to have a unique condition warranting the granting of a variance, it must be a unique condition to that parcel or property. The fact that there was a prior, non-conforming structure on that site is not the type of condition which warrants the granting of a variance. Granting the variance is in derogation of the code which was adopted by the City of Clearwater. This property ia zoned in the City of Clearwater Aquatic Lands/Conservation. The waterfront of the City of Clearwater is predominately of that zone. All docks to be constructed within the Aquatic Lands classification in Clearwater are governed by the provisions of Section 41.151 Code of the City of Clearwater which provides for maximum length within setbacks. This particular dock was built in 1915, long before a land use code for development was adopted. Another factor to consider whether or not a granting of a variance should occur is whether or not the hardship that is to be overcome is of the applicant's own making. Mr. Lance objected at this point to the petitioner's counsel making an opening statement at this time. Mr. Maguire responded that their position in this case is that there is no competent substantial evidence within the record. They have introduced the record into evidence and their position is set forth in their memorandum and they are going to argue those points from the records in evidence that support their position. Mr. Johnston observed that there seemed to be no more evidence to be submitted by the appellants so he could charge Mr. Lance to see if the City has any further evidence and then they could subsequently argue the evidence. Mr. Lance replied in the affirmative and called Mr. Donald O. McFarland as a witness who was subsequently sworn in. Mr. McFarland stated that he is an attorney, but is at this hearing on his own account for his own purposes and interests. He asked that two letters be entered into evidence. Mr. Maguire suggested that Mr. Lance question the witness and introduce any new evidence as part of the examination. Mr. Johnston concurred. Mr. Lance asked that City Exhibits 3 and 4 be introduced as evidence. Mr. Maguire then objected on the grounds that this is a competent substantial evidence test and any additional evidence other than that which has been stipulated to is irrelevant to these proceedings. Mr. Lance responded that under the Land Development Code and provisions for Hearing Officers, it is the function of a hearing officer to take new evidence at a hearing to deter.mine whether or not competent substantial evidence existed before the Development Code Adjustment Board. Traditionally such documents are allowed to be MINH002A.94 3 V 93-66 ~:':,::::.;:..:,~.;_: :', :.';' <,: I""':'.'" ," . :"~ :"'!::.'.:;','<~:.'~::,':'~::';:,',:'.:~:/':,':/:~':-:,~':.;;,::,'::;,:;",:':',':..','~. <". " ',.,' ,: ",', ~,::- ,."', ".,:',' ;\ ,: '.,' """,."" ,:' :','<;::,':,':::'.,'::,,,':~:/',::':.'/,'~/'.:):,~('/~':,r':\::':':,:':;,>:~::;:,;,:/'~, ',,:'. .. "" "'",."1,",,. \ '~~I' "7,. "'~.: .', .."..'. "''''''''''.)'''., "', .,/;{-,:: :.::',;"','<':,::":.:,<,:'j':":':,.':.';:,.">,,, >: .', ."':, "~ :'. ,;'> ',~...... ,.,'~, ,''-"" ':: "",,,'~,:,,.':,:.::;:.;',::,:::,,>:,>:')::;'::.':>;';';'":':>':'::.:: . . !~.. ~ '"_\........-.._+...----..-.-.-+:-~....~ . , . \ .I~ . ' ~. ,'.0 I j ~ '. I introduced by a party during the evidentiary portion of the proceeding. Mr. Johnston concurred that this indeed was the case. Mr. Lance handed Mr. McFarland Exhibi t #4 and asked him to explain what it was. He replied that after the stor.m last spring which caused the devastation along the waterfront, part of which was the Magnolia Street Dock destruction, he was concerned that the restructure of that dock might be prohibited or delayed. In this interest, he wrote a letter to each of the City Commissioners stating his concern. Exhibit #3 is a response to one of the Commissioners which was forwarded to him from the then City Manager, Michael Wright. This identified the City's interest in the proceeding of the reconstruction. Both of these items were submitted by him at the original Board of Adjustment hearing. What he pointed out was a long standing continuous habit that he saw of allowing the ambience, the traditions and the structures that existed in the City of Clearwater for public benefit and public access to fall into disrepair and ultimate destruction. It was important to him that this not be allowed to occur with the Magnolia Street dock, as he considered this to be a necessity for the city as a whole, which in itself makes it unique. At this time Mr. Lance offered Exhibit #4 in evidence as a letter {";.kit. written by Mr. McFarland personally to Mayor Garvey and the City . ,r~~ Commissioners, and Exhibit #3 as a response to that letter. Mr. McFarland then stated that in his opinion due to silting, the length of the dock is necessary. Mr. Maguire objected on the ground that Mr. McFarland is not an expert on silting or bay bottoms or anything else, and is not competent to give an opinion. Mr. Lance responded that based on his experience he should be allowed to testify from personal knowledge. Mr. Johnston sustained objection to opinions but would per.mit testimony from personal knowledge. Mr. McFarland continued, stating that from observation it appears essential that the dock be the length requested in order that the outside end of it to be in water of any appreciable depth. Adjacent property owners seemed to have had some kind of excavations in order to have any reasonable use of their property. The size of the dock, the length of the dock is not of particular concern in that location. It is something that has been there for 60-70 odd years and to reconstruct is not giving anyone a particular advantage over another. w Mr. Maguire asked Mr. McFarland if silting and build-up of silt in the area of the Magnolia Street dock count as a waterfront along that area. Mr. McFarland replied in the affirmative. MINH002A.94 4 V 93-66 {}i;~_'/":'" .,',.'. ..;'i. ":;;i3((\:?\,\.:\::.. \' ...... ......:.;...~, ....... '.. . ~;;.,; ,... .,' 'r' .',:;,'.,:.'" ..i: :",::t,,;;:::';:~:, " . . . '" ' ...' ,," . .. ., '. . . ~. "~... ~ .'... ...".~ '. .'." '. . " I~ David Martens was called and sworn in as a witness. He stated that he came to Clearwater in 1925 and enjoyed Magnolia Street dock for many years. In the ensuing months since the storm, he has gone around his neighborhood and talked with people regarding their feelings as to the rebuilding of the dock. The majority do. He asked to submit petitions as were submitted previously with some.additions. 57 homes from the 59 he went to signed the petition to rebuild the dock. This is strictly from the Harbor Oaks community and is not representative of the entire City of Clearwater which enjoys the use of the dock. The petitions are entered into evidence as Exhibit #5 and accepted. Mr. Martens commented that ,he is a member of two groups, the Clearwater Advisory Board which has seven members voting unanimously in favor of rebuilding the dock. The other is the Harbor Oaks Association. Their board of directors voted last year after the dock was destroyed unanimously to have the dock rebuilt. Jean Stewart was called and sworn in. She stated that she was born in Clearwater and is representing the Clearwater Historic Preservation Board with a letter written to the Clearwater Development Code Adjustment Board members. This is the second letter the preservation board has written requesting the necessary variance for the reconstruction of the Magnolia Drive Dock. Harbor Oaks, in an j'~ historic and architectural survey and preservation plan, had a study ';\''/; done in 1986 for the City of Clearwater to identify buildings and sites which would contribute to the historic Harbor Oaks Historical District. The dock was included within the boundaries which later became the district. This letter was offered into evidence as City'S Exhibit #6 and accepted. That concludes the evidence and the City rests. w In presentation of his argument, Mr. Maguire stated that a variance is defined as a grant to relieve from the requirements contained in the Development Code based upon demonstrated hardship. Sec. 35.11 His argument is that the City has not demonstrated hardship under the law of the State of Florida or under their own Development Code. It is not a fact that the City is not prohibited from building a dock. They can build a dock 32.5 ft long, 22.75 ft wide at this property. The length of dock is determined by the waterfront. The most affected lot ownership on the waterfront have gone on the record to being opposed to the reconstruction of the pier. The records of the Clearwater Police Department reflect almost 200 incidences in the recent past of trespassing, loitering, litter, noise that was occurring as a result of the dock's location. The police do not have the resources to police this area. Complaints have almost vanished since the destruction of the dock. The City Code Section 45.24 establishes eight standards necessary to be met for approval of a variance: MINH002A.94 5 V 93-66 I' r} (1) The variance requested arises from a condition which is unique to the property in question and is neither ordinarily or unifor.mly applicable to the zoning district, and is not created by an action of the property owner. The appellant's position is that the owner is the City of Clearwater and it is their code that establishes the restrictions. (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. The appellant's position is that language is the classic language for the granting of a variance in Florida. A variance is almost compelled by the unique configuration of the property. There is nothing unique or topographically unusual about this particular property that compels this dock in this configuration. The dock can be built. The City just cannot build the dock that they would like to. A variance should only be granted where no other reasonable use can be made of the property without the granting of a variance. (3) The variance is the minimum necessary to overcome the unnecessary hardship referred to in paragraph two. Their position is that if you don't have a hardship you cannot have minimum standards necessary to overcome it. A case of the town of Ponce Inlet vs. Rancourt specifies that unless there is evidence of the minimum variances necessary to overcome the hardship there cannot be a grant I::' of the variance. (4) Has no applicability in this case. (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. Appellant's position is that the prior dock did $200,000 worth of damage when the "No-Namell sto~ came through to Mr. Walter's private property. This type and size of structure is inappropriate for the west coast of Florida. (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. Their position is that this dock has proven to increase the congestion in the public streets, increase the danger to the public safety and will impair the property values of those people immediately adjacent to it. (7) The variance desired will not adversely affect the public health, safety, order, convenience or general welfare of the community. Mr. Maguire stated that this would depend on the definition of "community.1I o (8) The granting of the variance desired will not violate the general spirit and intent of this development code. MINH002A.94 6 V 93-66 .' , ",' ",",.', ",,_:.__._~..._'...._......"..... ~'1".""\ " 'I, " ,,', ," ," . " "\,' .' I " ~ Sec. 35.08 of the land development sets the minimum requirements of the LDC. The provisions of this development code shall be held to be minimum requirements adopted for the promotion of the public health, safety, and general welfare. Sec. 35.07 Para. (2) No land or water area shall be used, occupied or altered, nor shall any building, structure or premises be continued, located, used, improved, erected, altered, added to, installed or constructed for any purpose, or in any manner other than as provided for under the terms of this development code. In a variance under the definition section must be based upon a demonstrated hardship. The appellants contend that there is no demonstrated hardship in this case as a hardship is known in the State of Florida. Sec. 40.004(3) (a) No use shall be located, changed, introduced or expanded, no new or additional building or structure shall be constructed, erected or located, and no existing building or structure expanded, added to or altered in any way except in compliance with these zoning regulations. I'l"il:l:\ (',,,(4 Sec. 41.151(3) establishes the dimensions for a dock. The City can build a dock, just not the one they want. The City of Coral Gables vs. Gary states that hardships warranting the granting of a variance were classically considered to be something in the nature of irregular shape or other peculiar physical characteristics of a particular parcel which would justify or even require the granting of a variance. Mr. Maguire noted that the variance application of the City of Clearwater is set forth by Mr. Focsan. The section stating the reason for variances states: liThe City of Clearwater has owned and maintained a public pier pavilion at the western terminus of Magnolia Drive on Clearwater Harbor since the 1920's. The pier has been the site of numerous weddings, July 4th celebrations and other events which have given the pier a historical and personal significance to many of Clearwater's residents. The pier was completely destroyed in the "No Name II storm at the beginning of 1993 and the City has received numerous requests to restore the pier to its original configuration. The purpose of this variance request is to reconstruct the pier to its original dimensions of length and width within the extended right-of- way of Magnolia Drive." When asked in his deposition if there were any other reasons for the granting of this variance, Mr. Focsan stated that there were none. The granting of this variance would be in opposition to everything that the land development code of Clearwater stands for. The City has set these standards and imposed these restrictions on their own property. They have the power to amend its code as another recourse. They have not demonstrated hardship. u Mr. Lance stated that he would cut through to the heart of the matter by pointing out that there is not a more unique piece of property in the City of Clearwater than the previous and proposed dock MINH002A.94 7 V 93-66 .:< :-'. ,,' . , . ,', :-,",'<.,... <',: '."".. . ':,,".: '. .: ,:.,' ..".. \,',...;.... ".' ~..;.,~ ,'. '..::')..... ':,:: ': ',' ..~ "'>' , .' ,', '. ." ," i" ;~. '. ~I' 'l7'" '~,~I.' ' ,",' ,:. " ..o ,., . !':'., ,..\",... .". , ""J: ... ~. :'.J~. > ','-' .,::,.... .....'-:w,.... :',:"''':. ...",:: :,.' . ,:.,,: >' ~ ... "'". _~,. 'LI+J;'.....4.__.....~--2...-~~.....\....................~........:,:, '" '/~~:I' ~ " .... : "' " '. ,':...: ~ at the foot of a public right-of-way. The next point to be addressed is whether there is a hardship here. There used to be along, wider dock there. That dock established what a reasonable use is. The variance is needed to reestablish that reasonable use for that dock. A short, narrow dock is not suitable for the previous reasonable use and would not meet the requirements of the dock to replace what was there before. The Development Code Adjustment Board made a determination and said that it was a unique piece of property, it was necessary because of a hardship caused by wind, weather and other conditions to replace the dock that was there so that the City of Clearwater for its citizens could have a reasonable use of the property. Uniqueness and hardship have been established. The focus of this case has to be under the land development code whether or not the Development Code Adjustment Board should be upheld in this determination. This is what the ordinance requires. The ordinance gives that board the right to make a determination. The land development code says that the determination must be sustained by the hearing officer if evidence before the board and at this hearing would indicate that there was competent substantial evidence before them. Mr. Lance contended that there was a lot of evidence, witnesses on both sides, and the staff report that recommended it. Historical background indicated to them that under the code the conditions were ~;) fulfilled in the granting of a variance. The appellants have provided no opposing evidence to say that there was no competent substantial evidence before the board. In fact, some of the people opposing the extension of this dock have been given extensions for their own docks. Mr. Nigel Mansell, who is represented here today, was given a variance to add an additional 32 ft to his dock. ~ In answer to the question as to whether the Board have reasonable deliberations here in determining whether there is a uniqueness and a hardship and whether or not there should be conditions attached to the granting of the variance, Mr. Lance stated that the Board was concerned with the opposing factions and consequently imposed conditions on the granting of the variances. These were: (1) What is known as the standard deviation clause; (2) 8i9Oage shall be erected by the City to alert the public of the pier'S closing at night with enforcement to be handled by the Police Department; (3) Feeling that security is of paramount importance, proper illumination compatible with the area and architecturally compatible with emphasis on security shall be installed; (4) An electronic safety system, i.e., electronically controlled gate or comparable device shall be installed; this device should be electronically monitored by the Police Department for the safety of the public. Mr. Lance submits that when the Board goes into that kind of detail, it is proof that there was great deliberation on their part and there was evidence before this board which would justify the granting of the variance. The only issue to be addressed is whether MINH002A.94 B V 93-66 .,. I. .. '........<.'.T .....:<':._'..' ......... ", .'; ",\ "'., "', ".'~~'.:";,'~<,\~:.':"~,,,"'."h., . """f'~'''.i. ':.-.:. .'.,'~'::::', ;'::<"'>;.','" ::":",;:,\ :'.< ....., " .,.,... ,., '., .'-':', ':"; ,<,:. )'\... '.::~.'~ "<:.:;.:,: '.;-,:,' . . . n'. "::,.. :,.. ::.:<."," .'. ':, >:,' : . '::.>> t . .". :' . \ j :',~ ': ~ > ,"\" c . ';, .f: ~ '}' ;<, (..~, I ~'. J ,.tt, , . I III ~.. or not there was competent substantial evidence before that board, and this has been proven. The determination of the Development Code Adjustment Board should not be overturned. Mr. Maguire availed himself of the right of final rebuttal. He stated that what was unique in this situation is the structure no longer exists. The uniqueness must apply to the property. The only property in consideration is the Magnolia Street right-of-way which ends at the bay front. A dock can be built there within the dimensions of the code. it is just not permitted by the code to reconstruct the dock that was previously destroyed and no longer exists and reconstruction of which would violate the code. The granting of conditions are appropriate but the fundamental finding which is lacking in this case is a classic hardship warranting the granting of the variance. Mr. Johnston concluded the hearing by stating that under the code his decision would be rendered 45 days from today. Written proposed findings of c fact and conclusions of law, post-hearing must be submitted within 10 days from today. The hearing was adjourned at 10:30 a.m. ., (:) .-ih. 'IY,; ". MINH002A.94 9 V 93-66 . , ,.'.",. , . ~ . ~., . ,. 1 ,\ , ,:', I"' .. . ....~~__~~._..',.__, .',.~, ",'.' i. ~/ ,\' , " .' Appellants, ) ) ) ) ) ) ) ) ) ) RECEIVED APR 08 1994 CITY CLERK DEPT. rJ STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS CHARLES W. AND BRENDA N. WALTER, VB. CASE NO. 93-7068 CITY OF CLEARWATER, Appellee. FINAL ORDER On February 17, 1994, a final hearing was held in this case in Clearwater, Florida, ,before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings. APPEARANCES ,~ "-) For Appellants: Patrick T. McGuire, Esquire 308 North Belcher Road Clearwater, Florida 34625 . , For Appellee: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 STATEMENT OF THE ISSUE The issue in this case is whether the evidence sustains the decision of the City of Clearwater Development Code Adjustment Board (the Board) to grant the application of the Appellant, the City of Clearwater for dock length, width and setback variances to allow the reconstruction of the public pier facility located at the west end of Magnolia Drive in Clearwater, Florida. (The 'iU pier, was destroyed by the "No Name Storm of the Century" on March 12-13, 1993.) . ,. ."-'''_",I_~_~.~""",-.........,,d l" ' , . .h."....__:.,;l\j..~'. '.'~:..:/:':.':_:....... ........ . .... ""'.,;,;'.:,.i" ....... ":.\.:'i~"., ....:~I'C; .... ",'\~;' ..,<:";..'>:":.;...'>:'.,:: .; ":',.'~ ' ':" "., '. . .... ",. ',.':':. '. ." ',",'..:''', ;':,'.:.' ~..:' ,:, ,. .;, .,:",:: '",,'n'.. ..':, 'waJ .....'.:' ,:,',.' :':. ", ::'<<;'.......,..".':,: '~'.,':,< ;",'., . .' \. '...., ~ _"__I":.-..I_'_~~~U__" ,:'~~,~. \ ". . .' " ..~. ,',,' "". '. ,. . >' , ' ~ \. " PRELIMINARY STATEMENT /wli'o'" '. I On or about September 1, 1993, the Appellant, the City of Clearwater, applied to the City of Clearwater Development Code Adjustment Board (the Board) for dock length, width and setback variances to allow the reconstruction of the public pier facility located at the west end of Magnolia Drive in Clearwater, Florida. After staff review and recommendation to grant the variance application, it was considered by the Board at a public hearing on October 14, 1993. However, when opposition was expressed by neighboring property owners, the matter was continued in order to ascertain whether the application had the full support of the City Commission. A second public hearing on the matter was scheduled for October 28, 1993, but the City Commission was not scheduled to address the matter until its meeting on November 8, 1993, so the matter was continued and scheduled for November 17, 1993. At its November 17, 1993, meeting, the Board voted 3-2 to grant the variances, with the following conditions: (1) no deviation from the proposed materials and building plans; (2) the erection of signs as to closing times to be enforced by the police; (3) proper lighting; (4) the installation of an electronic safety system, including a gate, to be monitored by the police. A timely appeal was filed on December 1, 1993. Under Section 36.065 of the City of Clearwater Land Development Code (the Code), the appeal was forwarded to the Division of Administrative Hearings on December 13, 1993, along with a copy of the record of the proceedings below. On January 6, 1994, a Notice of Hearing was issued scheduling final hearing for February 17, 1994. ~ 2 .,.'.. I " " ,'. , ,.'t," >'" '.'.. '.. <.,.,' "..'.:\' ~,"" :t '. >\:: ':.' I, .';' ":'<"::">''.r:::.'~'\' '.:'::, .."..'.;}L:..,'::...I~..:-::.~.>.::.\,:.~.f>~:'-:,::',;~..:'~'. '_\"'" .'" ....."..'",.{.'..'\..,'.,,,. .."........"'."1.....'., ,.,... ..' . '. .:' " >....... :.:: ":" ;:.:.".:..,..., ..".:~"':".,.".:, ;.;.:/::...~...':.....:-.~.~>,:',.::'....:<;',,....'...;:'..:.::,:i:':,-;:..i::,'.,.'.,:';':..J:';:'''' . . . , ) .'. : . \ '. , " .: ,"1 ' . ~I .. " '. . Lir:. . " . ,,' '.,,' '..',.., ,.,' " ,,;' ,'.' ," j'. . ,,'" ',I: <I , J .~~.. ~ ',::: <'~, .':'; , :~;~"i' ,<,";"..;.>.,.>:'.:..'~.:', ,:~,::.' ::':..':::~::'.::<~ hl:..,'~:,~:,~:I::...._.?:...~':"/:: \, . . . , "',' . 1 " . . II ...., . ' . ~".I~ _,,__ ,.._........_.~., ...,. ',I . . , ' ') At the final hearing, the reoord of the proceeding below was received, as required by Seotion 36.065(5)(c) of the Code. Additional evidence aleo was received, as permitted by Section 36.065(5)(d) and (6)(a) of the Code. Summations were heard, as permitted by Section 36.065(S)(b) of the Code. In addition, the parties were permitted to file post-hearing proposed findings of fact and ,conclusions of law under Section 36.065(5)(h) of the Code. FINDINGS OF FACT 1. On or about September 1, 1993, the City of Clearwater applied to the City of Clearwater Development Code Adjustment Board {the Board} for dock length, width and setback variances to reconstruct the public pier facility located at the west end of .~ Magnolia Drive in Clearwater, Florida, where it terminates at the waterfront in an "aquatic lands/coastal zoning district. II The pier was 91.5 feet in length and 40 feet in width; it was set back 12.5 feet from the extension of the adjacent property lines. It was destroyed by the "No Name Storm of the Century" on March 12-13, 1993. Since the site has 65 feet of waterfront, reconstructing it to its previous dimensions requires variances of: (1) 59 feet in dock length (over the 32.5 feet allowed by the City of Clearwater Development Code); (2) 17.25 feet in dock width (over the 22.75 feet. allowed by the Code); and (3) 7.5 feet reduction in setback from the extended adjacent property lines (below the 20 feet required by the Code.) 2. Before its destruction, the public pier at the west end , ~ of Magnolia Drive in Clearwater had been in existence for many 3 ,_. ...___T>H ,.... .." _~.. .~ ....'" . '~'T " , ',:::_"" '.' ., ..... ,:" ." .. ,'c'.'" ',::,:.,\'';,,: ",/;':' { .:::~ ::/';:;;'<:'; ..' .'~":,,:'i':' :' :":: '.> ....ie. ';::X .:i~',::,../;:7'::: . , ",.' ,. . ,. ,.. , '., ...' ;'.~:;I., ...'. ,2J.'I' ' L: . , .l...J, " , ," . "." . . <I.'... "'. ~.. ", I, ';. ,:',., :",' !';"" ....1;:.. ~ ""' 'j'''-':'r,.';':-,,\'''n ""1~' :':'>.~"" ~I' ".':'j"::'!~~~"~\::;\:"',l~,>'.,'~"';:' . J.: . " '" ~ , ' i, ...._._ ._...."......... uH"' ....' ' " , / .. years. (The original version was built in approximately 1915.) The evidence is that the community at large desires to reconstruct. the pier to its former dimensions. The old pier has ..f9Iil>o. I historic and sentimental significance. It also serves as a recreational facility for residents without private access to a dock on the waterfront. 3. Especially in the last several years before its destruction, public use of the old pier brought with it problems of misuse, loitering, litter, noise, trespassing, and crime. The police did not have the resources to prevent these problems. Criminal activity in the area seems to have decreased since the destruction of the old pier. As a result, the property owners closest to the pier do not want the public pier reconstructed at all, and certainly do not want it reconstructed to its former dimensions. They oppose the variance application. 4. The conditions imposed by the Board (no deviation from the proposed materials and building plan, the erection of signs as to closing times to be enforced by the police, proper lighting, and the installation of an electronic safety system, including a gate, to be monitored by the police) will help alleviate many of the concerns of the neighboring property owners but are not guaranteed to eliminate them in their entirety. 5. The water is shallow in the vicinity of the site, and a dock of a ~ertain length is necessary for the dock to be used for boats of any appreciable size and draft. However, this condition is not unique to the particular site in question, but is uniformly applicable all along the City waterfront, and there was ~ 4 -'-"'~Ir,I,I",'"""",,,,,,,,,,,,,~,,,'I...tl<., ,', ,., ,., r ' ":.."~': ;:, .':<:' ,: :'.::" '.:; :.:',.:.." > '.i:' :'~:<' '., <<: i. ':>\,:".1:.::/....:... '.:.~f} "'::':: ': ':.' \.-1;':;<: ;:.-:'> :~}.:.::.::.:>;.:..:....:::.::.',:.~:. ) <::::: :;.:~.\.~."~:::: /: :,.:.:'.;.,':'..:.'<.:'> :'::;:.i.:...,',' :'."?'~:~:<'.':);':;'-::,:~; ::;':.::.'/' '.:: :;":':;i.-:::';.'::; :';. \::,;' ;.:: .::: '...._..\..'... "'1.'.'.....,.,-.. '"..., .'. ....",..... .......'" ,''''''''.0.',,' :',:.'. ;:';.':. ::: .::.:.'.~.;.:..,~.::.:,':;'.:'<<.:': ~,::.: <";:":;.: .:',,',<' :,',:,:.::.: "":::":;.;':':':"'':','~'~I''''\:''~ ':""';'.'"71 ,,'::.;. ~.i;:~:ii:.:','. 'f.; >:.,..... ~.\..: ,~:..:"S' .>J'~;' :.:. ":',::,.':'::.J-,", ,;:',.':',' ,; ';:, ':'.' . ',,: : ':', '/~', ',; .i ,.:' '::r:'.; \'; ~,;': ',:":;:~~:: I~: : " r,' "'"<~l,~,:,,,; : I':'\::('~:~"::'~ \':: ~',:.~ ,.:, .:,~'t;' -:,,":':li~.: ,:',:"" '.\ rn j'~,:' . .~:\ ~:; ,', .;:, ',:'" '. :"?~~~"{' ~~ :": /:~'::, ~"'''.I '\'!:.: ,:,:.<: ,:< ,:.:' <lJ,~:"':"'~ \.' ~'" '~,' - : .. . . ,~ ~. .....""'-...:...,.... _.... ..~"'..-. ...,,,, +.. '. I . ' . . I ' , ' ~ , ~...,'~j.,."Tt ~',=-~~ i..'..~.",., " f) ~ . . \, I no evidence as to the length of dock required for adequate water depth for use by boats. 6. There is no competent, substantial evidence in the record from which it could be found that the granting of the variances will not be materially detrimental or injurious to other property or improvements in the neighborhood in which the property is located. 7. There is no competent, substantial evidence in the record from which it could be found that the granting of the variance will not impair the value of surrounding property. CONCLUSIONS OF LAW 8. Section 41.151 of the City of Clearwater Land Development Code (the Code), applies to any and all docks :~ "proposed to be constructed, added to, or structurally altered." Under Section 41.151(5), a dock is an ."accessory use within the aquatic lands/coastal and aquatic lands/interior zoning districts. II 9. Dimension requirements for docks are set out in Section 41.151(3): (a) Maximum width: Equal to 35 percent of the width of the property measured at the waterfront or 50 feet, whichever is the lesser. (b) Maximum length: Equal to one-half of the width of the property measured at the waterfront or one-fourth of the width of the waterway, whichever is the lesser. (c) Positioning from extended property line: Equal to one-third qf the width of the property measured at the waterfront or 20 feet, whichever is the lesser. o Section 41~151(4) provides for the sharing of docks by contiguous property owners but specifies that the length and width of such 5 "illliM:;,::.:;,.;)::::.;::'::'(":::j'!{.;.~/;,~'.'i'.';~..,L!',':~'X~).::\~:' {\'~:!:,):;/:;,)V; ,':,:<,'/;:' , , ' .... < , ~. : ._~ ~....~ --=-__. oW 04.4. - .'.. .. "", . ~ '. .' " , . p '. ..', ., ., I I~. J . " d '. ".. ~. ." , . docks' are to be computed in accordance with Section 41.151(3){a)- ~, (b) . 10. It is concluded that the reconstruction of prior non- conforming structures must comply with the Code, or properly obtain a variance. There is no exception in the Code for the reconstruction of prior non-conforming structures. Nor is any distinction made between private and public docks. 11. The standards for approval of an application for a variance are set out in Section 45.24 of the Code, which 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 district, and is not created by an action of the property owner, predecessor in title, or the applicant. .... (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 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. The granting of the variance will not be materially detrimental or ~~ (5 ) 6 ...............~.f..II~~.>'Ioi......'Ji..l...J'."";.I~,.Uo;t~L.-..hl{' ,..,.,,' . .":;. ,~..,_.:.:. .>.,.... ;::,..,'': .... .".,'.': .....:.:::..;..:...:;';<' .,....< >..:'-",. '... ;':, ." '~..~:. .',:,.<<' '..:<~ .' .,'. ".. : '. ,'. ".,: .: .:'.'__.::: 1\..., ''",' ':'<'<:":'.:'::"'::.':~'-,::~':':':;.. '\, , ," .' '.. ... "~'. ........: 1. ' ., '" ," ", ,'. ~'" ......' "."t )',::.'. " .,',' '~', :,';"' ."..... '.. .'" '-:.";".',. .'.,'..':'.1'.,"":':::."":" .. , " .:' I . . ... __,~_ . ... __ _ . ~_.... ~. .,... ,:-' ~ .. " i . . I ~" , .' " injurious to other property or improvements in the neighborhood in which the property is located. 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 impair the value of surrounding prop~rty. The variance desired will not adversely affect the public health, safety, order, convenience, or general welfare of the community. The granting of the variance desired .will not violate the general spirit and intent of this development code. 12. Appeals from decisions of the Board are governed by , , . :1 .' ',' .' r <I'''. , ~ r: . ;' ~'. ,;~~.' _ I .....f.. ... (~ '^ (6 ) (7) (8 ) I' I. * * * (6) Decision. The decision of the hearing officer shall be based upon the following criteria and rendered as follows: o (a) The hearing officer shall review the record and testimony presented at 7 .: '-. .-..,. :'.." .: ."..: . ,.' .. \,,' :',,:, .'. '., '. '...' ..... '..' :;' '. ':. :.:~. .'. . ~.< . ,.. ',. ...... '. '.'..: ::.."...' . .',<'," ,: ....'l' 'I:' 1 ~ I." ., .' " .,' ."" :'. ~ , '\' " :,' .... ',,\r',' ". \ I .'~~ '. . . . ... . " . .. - "" - ~. .. , , .... :.' , . .",. '~ . . .. .. .,...... ;..' ~ '.,~.,.. .':,,'.' ,: ,.'., ..... ....'. :.' ..".- . , . . ,. . \ , ., t d . , ,.' '.. \ ,. "'~"" 1 ~. . " , ,'.. . I , ..'. _' " '.. ...._._ _._...:.:... ....__ 'L' "I' , j. . , I r the hearing before the board and the hearing officer relative to the guidelines for consideration of conditional uses or variances as contained in chapter 41, article II, or chapter 45, respectively. Although additional evidence may be brought before the hearing officer, the hearing shall not be deemed a hearing de novo, and the record before the board shall be incorporated into the record before the hearing officer, supplemented by such additional evidence as may be brought before the heari~g officer. (b) The hearing officer shall be guided by the city comprehensive plan, relevant portions of this Code and established case law. ~, , (c) The burden shall be upon the appellant to show that. 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 law. (d) The hearing officerts determination shall include appropriate findings of fact, conclusions of law and decision in the matter of the appeal. The hearing officer may affirm or reverse the decision of the board, and may impose such reasonable conditions as the board may have imposed. 13. These provisions appear to provide for a curious hybrid proceeding that is an appellate review on the one hand, in the sense that the issue is whether the evidence sustains the board's decision, and a de novo proceeding on the other hand, in the sense that additional evidence can be adduced at the appeal hearing. In other words, whether the Board's decision is sustainable under the pertinent law is tested not only against the evidence presented before it but also against the evidence ',;~ presented before the Hearing Officer. B ""04-.","","~..Mot>._'~..U.Jt..u..ti~II.,:~...........t"'.I'I~" U"~+ .,...t...,~.... <:';:',:.:'.:','; . , ,', ;,(:' >, ~:- ,f' . ,..;' '>;:, '...:,:: :",:' ", "; ': :: ;', ' ~< ,'., ,.' :;""', ',' ,:" ' " .:':, \ ".. ,,,\' .:. :::' ':,,""," .'" <<':.:"":' "',', ,'. '; ~:\".. :",'. ,"'.':.:>:< .:>< ~ .,;;:'_.......",. ,'.,' ,'., \,''''", ,"',~-, ' : ...~." ":'8::' ",. q_I';",:,.'/ :'<,',\:"/'>"..,,:--',";:>- " .' ,'. '. 'I." "}~'..\', ';,.,':,','\ " ., \'.' .~.j,...,... ,,'.;~'" ,I .:.,.\::.l~"""\"I'."~:I...: :\'" :"':~. . . , ~~"" ' , ' . ',' , !', . . r I' 'i . , ' ~ 1 ' '. . , 1 . '.. ~' \ ,.,. . . , r ~ ..... '\ ~ ' . , .' " " ,I :' . : '/ ' ..' "." '\ _ ":'~_4""';.''':--:'_''''''''''''''.''''' " .....1. , I I ".' '. ~, I '~. .,~. ,l , tJ 14. To prevail in this proceeding, the Appellants must show that the evidence does not sustain the Boardls decision that the application and evidence clearly support the conclusion that the standards for approval set out in Section 45.24 of the Code have been met. The Board's decision must be based on competent, substantial evidence. See ed. of County Commissioners v. Snyder, 18 Fla. L. Weekly S522 (Fla. Oct. 7, 1993). 15. It conceivably could be concluded on the record in this case that 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. The western terminus of Magnolia Drive differs from C) the other waterfront property in that it is in public ownership, not private, and is a public road. If a dock is constructed as an "accessory use" of the property, it necessarily would have to be for public, not private, use. As a public facility, it would be reasonable to size the dock larger than a dock intended for private use. 16. There was no competent, substantial evidence from which it could be found that "the variance is the minimum necessary to overcome the unnecessary hardship . . . for the purpose of making reasonable use of the land." Although it would be reasonable to size the dock larger than a dock intended for private use, there was no competent, substantial evidence from which it could be found how large a dock is necessary for public use. The only ~ basis in the record for rebuilding the dock to its prior, non- 9 "'_W_~"''''-'''' ~~'.__,.....'..r.~_W"4"~~ ~~~.~...""., . ."....._~...,.. ,~,,1_":: ' ,',' ,0;;,/:" :<",/," /: , ,'; ',I ,.,.' ",. ",'::" , 'is- ' " ',", , '.;;,,::" ", ',~"", .", :,' '~'.'..":":";'/'."::',: ":',>:":; .. . .'., . I." '. ..' . '. . .. :~=t, ,:=J :, '}'J .. f I "\' . . . , ." ': . '. ' .I ~ ),' : '.'.:'.: ,j ','L\' .',' ~ j:, '.... .:: ..':.t:~' :1.,' :: ~{>, r ~,'. '..' ,"l" '.., ,~:., .';..' , . I' ~ '" I '~, " t..}. '. .'~ .:..'; ;-.'.' '.... .a. ,}, :...... conforming dimensions was the historic and sentimental significance which some people attach to the old Magnolia Drive dock. It is concluded that those reasons are legally insufficient to establish necessity "for the purpose of making reasonable use of the land." ,......... '17. There was e~idence that the water is shallow in the vicinity of the site, and a dock of ~ certain length is necessary for the dock to be used for boats of any appreciable size and draft. However, this condition is not unique to the particular site in question, but is uniformly applicable all along the City waterfront, and there was no evidence as to the length of dock required for adequate water depth for use by boats. 18. There is no competent, substantial evidence in the record from which it could be found that the granting of the variances will not be materially detrimental or injurious to other property or improvements in the neighborhood in which the property is located. 19. There is no competent, substantial evidence in the record from which it could be found that the granting of the variances will not impair the value of surrounding property. 20. 'Given the Code's limitations on docks, whether private or public, as accessory uses in aquatic lands/coastal zoning districts, and given the Code's requirements for obtaining variances from those requirements, it is concluded on the evidence in the record in this case that the requested variances would violate.the general spirit and intent of the Code. y 10 __-....i"H+lI:l~...I"otI..'I""'.....""tI....~...i,t~u..Hf.,.,...~ ...,....- ... .,::<:._' """:'",:".::,':,:;':~,-':- ,'..;'" ',,"'':::;''':'::,,' , I" r' '.' , ,.' . .';'-=1 '1 "=t ..)" II' . ." '. . , 'I 'I'~' :t I",. _/'. ,., " , r,:.:,," , "~ ." _+ . "', ',' ': ,"','.: d, . ' ,'~ . ,,~. , . L " , . ... ......__ ~.... ._....... ..<..~_. ~ . . " I . I ~ , ' ,. I,' .:" ",< +'. u O~ < , . ;'. .,. . 'J' " c ..... . , ~ ..... . , f) ,<' DISPOSITION Based on the foregoing Findings of Fact and Conclusions of Law, the decision of the City of Clearwater Land Development Code Adjustment Board granting the application of the Appellant, the City of Clearwater, for dock length, width and setback variances to allow the reconstruction of the public pier facility located at the west end ~f Magnolia Drive in Clearwater, Florida, is reversed, and the variance .application is denied. DONE AND ORDERED this 6th day of April, 1994, in Tallahassee, Florida. NCE J He ring Offi e D'vision of inistrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 I:) Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1994. COPIES FURNISHED: Patrick T. McGuire, Esquire 308 North Belcher Road Clearwater, Florida 34625 Miles A. Lance, Esquire Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 o Cynthia Goudeau City Clerk City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 11 .._~--... ' _..1I.../"op..........',........... " .,. ~ '''-k-oa.''I.k;'-''-' I" .'.~,,_"" ...'.i..........'. '...,~...> ..... ..,........... .':......"."j......, .L.:...~,... ',d'-,::::'.:,,",,',,:',:,. . , , " , . ' '. .' ',.~I., " =a I... ' ,.., ,.. " .' d:, ',' '.. ,.,. " . ., . I , ~.., I" f ~ . ~. ,:1.,' ~'~ ," .,': :'.' ' ~'I'~ ,_ _. ~___ _. __~ 4,. " I . " ' '., ' ~' , ., :..:.,...:... ! ~.. l" , l' , '.' . C.. '.Jc. . 'c .' .' ; . ~ ~, . I ." ., . . ,~.......,....~"'...., "", , .. - '" jo' '1~,'...~-...I..~'.~ ... t.I,... ,~!' . . ), ., ..cl . . ".-., Charles A. Samarkos, Esquire Johnson, Blakely, Pope, Bokor Ruppel & Burns, P.A. 911 Chestnut Street .Clearwater, .Florida 34616 NOTICE OF RIGHT TO JUDICIAL REVIEW A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW OF THE FINAL ORDER BY COMMON LAW CERTIORARI REVIEW IN CIRCUIT COURT. SECTION 36.065(S)(g), CITY OF 'CLEARWATER LAND DEVELOPMENT CODE.. .' . Final Order, Case No. 93-7068 '; 'c " ,. ~.J 12 ..:.....;.::'....\...:.,'...:.>.'..,.~"-:" .":'.'.'.' .;':".' "".' .., ',',' '. . ....... ....: ':""..,.::.: ............(.......... :.' ..,....,: .,.:. :_. .'t; "~,' . '" .,',.. :,:,,' ,.:~. "'~' '.' n'..' :'...,..,.: 1,. . ""'. '..:..' .' ..'.\": <.,...' : ". .... ~ .'. ',...',,;',:' .'" 'J :.. .' ','.: '. .... '., " ,