02/18/1994 (2)
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APPEALS
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PUULlC BEARING BEFORE A HEARING OFFICER
February 18t 1994 ~ 9:00 a.m.
SUN WATCH> INC.
Hearing Officer:
J. Lawrence Johnston
Also Present:
Miles A. Lance, Assistant City Attorney
Camille Motley. Central Records Specialist
.Issue: '
For a variance of 5 ft to allow a structure 95 ft in height ,,'!!lere 90 ft is allowed
at 670 Island way> Sec 05-29-15, M&B 31.011> zoned RM 28 (Multiple Family
Residential). V 93-55
A ppeara~ces:
Mark D. Breakstone, Attorney for Appellant
R. Carlton Ward, Attorney for Appellant
Jeff Middlebrook, Architect
Ernie Shrieves, Air West Air Conditioning
180 I Sl. Rd. 590, Safety Harbor, FL
Dian~ Gunther
. Unit 1010, 690 Islam! Way, Clearwater, FL
r2>
Exhibits Submitted:
1.
Drawing
The Hearing Officer received the following exhibits into evidence.
1. Notice of Appeal dated November 10, 1993, signed by R. Carlton Ward,
as representative.
2. Notice of Public Hearing of August 26. October 14, and October 28,
1993.
3. Excerpts of the minutes of the Development Code Adjustment Board of
October 28, 1993.
4. Variance Application.
5. Variance Request.
6. Varianl.:~ Transmittal sh~et.
7. Letter of objection from Beverly Glassman, owner of Unit 60 1 at 690
Island Way.
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8.
Building Cross Section.
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Mr. Lance rebutted that the code provides for seven foot six inch (7'6") high ceilings but the
eight foot (8') request for ceiling clearance may be more desirable in appearance; however, the city feels
that the variance should still be denied.
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, J Hearing Officer Johnston opened the ~eeting at 9: 13 am. He stated that due to confusion in the
public notice received by the State, this hearing was continued to this date.
Opening statement was made by Mr. Breakstone for the appellant relative to the substance of the
varian~~ r~4u~sl~d. H~ stat~ that the huilding's dimensions and height would he harmonious with the
~n\'ironm~nl. H~ roinl~ lIut the strUl.:turc type was necessary due to the narrowness of the lot. He
stal~ in lITtler to allow for the additional requirements of air conditioning and heating the extra five feet
was ne~essary.
Mr. Lance made the opening statement for the City. He indicated that no hardship was shown
and that the developer had over-designed the building. If the room height was limited to code rather than
8 ft., there would be no need to request the variance. He felt that the developer's concern was not
hardship but rather the return invesunent on the building.
Mr. Ward stated the issue is that the code requires a seven foot six inch (7'6") minimum ceiling
height. By requesting a ceiling height of eight feet (8') which is the preferred heights in most units, there
was not sufficient clearance for the air conditioning ductwork.
i~
Jeff Middlebrook was called to testify relative to the problems encountered in building according
to cude. He is the architect of Scott Partnership Architect Firm. He subn.itted a drawing which showed
lh~ pT\lpUS~ huilding. He stated that the ductwork will take one foot (I') from the eight foot three inches
(ILl") l~aving s~v~n rum six inches (7'3") which is below the minimum height required to meet code.
Th.:ir J.::.irl.l j~ simply tu ~ulll and heat th~ units.
Mr. Breakstun~ questioned Mr. Middlebrook relative to the appearance of surrounding buildings.
Mr. Middlebrook stated they were taller than the proposed Sun Watch structure. Sun Watch must
maintain a large open space which constrains the width dimensions of the building.
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Mr. Lance asked what date the building was designed. Mr. Middlebrook responded August of
1993 and met the 1991 code. Mr. Lance stated he felt the architect didn't know the building height code
requirements until after the building had been designed and that the completed plans had been submitted
to the developer. Mr. Lance made reference to paragraph 2. of the notice of appeal which stated the
additional height would allow the installation of all air conditioning duct work and fire sprinkler systems
in a manner that would accommodate the preferred finished room height of approximately eight feet. The
original plans had called for eight foot eleven inch (8'11") ceilings. He stated a variance would not be
required if the code was met as opposed to wanting the preferred ceiling height. Mr. Middlebrook agreed
a variance would not be needed if the building was built to meet the code. Mr. Middlebrook stated the
building design called for a post tension system due to narrow site (use of steel tendons running from
column to column for floor support). Mr. Lance felt the problem was a design problem not a code
problem. Mr. Middlebrook stated alternatives had been explored consulting with structural engineers in
order to solve the problem. Mr. Middlebrook stated they were under density allowance and wanted to
ha\'~ a~ many units as possihle. Mr. Middlebrook stated he agreed with the developer for ninety-six units
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as submitted. Mr. Lance proposed that the plan was developed without benefit of mecting code
requirements and the building could still meet structural parameters by reducing the building by one floor.
Mr. Ward Q4cstioned Mr. Middlebrook regarding clarification of structural requircments for the
ceiling according to the proposed building. Mr. Middlebrook stated he was asking for eight foot cleven
inche..lI (8'11 ") between floors.
Hearing Officer Johnston referred to diagram dated 10/28/93 which had hccn submitted. Hc
asked if it was no longer accurate. Mr. Middlebrook confirmed that to be correct. Mr. Middlebrook
stated with post-tension eight inches (8") would be nceded hctween floors,
Mr, Lanc~ stat~ that the dcsign which had bcen submitted to the Development Code Adjustment
Ullard wa., in pruc~ss of ~hang~. H~ stated that the design could not be changed and thcn request that
a H~aring Ofti~er to pass judgement on the new design,
He.lring Ofticer Juhnston agreed to let Mr. Lance argue that latcr.
Hearing Officer Johnston continued to question Mr. Middlebrook about how post-tension works.
Mr. Middlebrook stated the ductwork would be between nine to ten inches (9" to lO") plus three inches
(3") ~or steel framing and one-half inch (1/2") for gypsum board.
Mr. Lance asked how high hallways, kitchens and baths could be. Mr. Middlebrook stated seven
feet (7'). Mr. Middlebrook said the ductwork needed to go to the middle of the other rooms. He stated
meeting the code would require some re-design. Mr. Lance felt that the cost of re-designing the building
would impact the structural engineer and would be costly in terms of time and money. Mr. Lance asked
if Mr. Middlebrook had ever applied for a height variance in pjnellas County. Mr. Middlebrook stated
he had never used the post-tension system before. Mr. Middlebrook stated he had never worked on any
multi-story condos.
Hearing Officer Johnston sought clarification about the spaces needed between floors for
ductwork, Mr. Middlebrook stated nine to ten inches (9" to lO") was needed for ductwork but was asking
for thirteen inches (13"). Hearing Officer Johnston asked what the minimum height was for common
an.~as, Mr. Middlehronk stated he assumed that the new code still required seven feet (7').
Mr. Brcakstune called Ernest Shrieves of Air West Air Conditioning located at 1801 State Road
590. in Safety Harbor, FI. to give testimony. Mr. Breakstone asked him to present the needs of these
particular units. He stated that in order to cool rooms with large amounts of glass it is necessary to move
the air to the center of room. He stated he needs nine inches (9") diameter for ductwork. Twelve to
thirteen inches (12" to 13 ") would be the minimum for practical use.
Mr. Lance questioned Mr. Shrieves as to whether or not he was involved in the design of the
building. Mr. Shrieves stated he had been called in by developer after the plans were drawn. He stated
the drawings did not illustrate air conditioning needs at that time and he was asked what would be needed
for ductwork. Mr. Shrieves stated he told the developer eight feet (8') was not enough. He stated in
his opinion no unit is acceptable at seven foot six jnches (7'6") regardless of what the code says. He
stated he would build what the developer requested. He did not have anything to do with the application
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," 1111' \"i1ri..n~~. Mr. L<ln~c slatoo that u~vclup~r and architect make th~ choice regarding the number of
I ~iluri~" for the huilt.ling,
Mr. Ward questioned Mr. Shrieves regarding the proposed structure. Mr. Shrieves testified he
had personal experience with using seven foot six inch (7'6") ceiling height arid felt air distrihution was
not good in that limited ceiling height.
Mr. Lance objected to Mr. Shrieves' statement regarding his dislike of the City code. Mr. Lance
asked about the units Mr. Shrieves had laid out. Mr. Shrieves agreed if the building was re-designed he
might not need the same size ductwork.
Mr. Lance called Ms. Diane Gunther, Unit 1010, 690 Island Way, Clearwater, FL, to give
testimony. She was sworn in by Hearing Officer Johnston. Ms. Gunther stated the Development Code
Adjustment Boards's decision should be upheld because the proposed building would diminish the view
for neighbors. She felt the structure would not conform to the other buildings and that it would stick out
like a sore thumb.
Mr. Breakstune asked Ms. Gunther how the building would affect her. She staled although she
I i\'cll IIn thc 10th Iloor. the dlJs~n~ss of the buildings and higher ceilings would limit her view to the
1Il:>lllc Ill' SOIllt!lllle else's unil. She alsu stated it would adversely affect her financial investment.
Mr. Lanc\.! ask~ Ms, Gunther when her building was constructed. She stated about 10 years ago.
I:)
Hearing Ofticcr Johnston stated his final orders should be submitted within forty-five days. The
parties may have an opportunity for post-hearing submissions of proposed basis of fact and conclusions
of law which should be submitted within ten (10) days of today. He asked for summations.
Mr. Lance stated this was a disturbing but simple case. He felt that the building had been
designed without benefit of consulting the building code. The air conditioning systems needed were based
on the present design of the building. Mr. Lance stated the building should be re-designed. He offered
alternatives of less clearance between floors or smaller size units. All code requirements must be met.
He felt the Development Code Adjustment Board was acting properly in denial of this variance. He
stated the only hardsHip alluded to was money lost if units were smaller. He asked the Hearing Officer
to uphold the Development Code Adjustment Board's decision.
Mr. Ward stated ninety-nine units were allowable for maximum density of the property. The
developer was asking for ninety-six. He felt the property value was a legitimate concern for the
neighbors and developers. He stated the surrounding units were as high or higher than the proposed
huilding. Mr. Ward stated the variance asked for was a minimum and not based on the applicant's desire
to rt:aliz~ a larg~r dullar return. H~ felt the smaller units would decrease the value of the property and
thal Ilf Ih~ n~jghhtlring prop~rti~s. Mr. Ward suggested the Development Code Adjustment Board
rea~h~ th~ir v~TLlict withuul knuwledge uf heights of the neighboring buildings and this building would
actually h~ shlln~r than surrounding properties.
Proceedings concluded at 10:34 a.m. by Hearing Officer Johnston.
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SUN WATCH, INC., )
)
Appellant, )
)
VB. ) CASE NO. 93-6819
)
CITY OF CLEARWATER, )
)
Appellee. )
)
FINAL ORDER
On February 18, 1994, a final hearing was held in this case
in Clearwater, Florida, before J. Lawrence Johnston, Hearing
Officer, Division of Administrative Hearings.
APPEARANCES
o
For Appellant:
R. Carlton Ward, Esquire
Mark D. Breakstone, Esquire
Richards, Gilkey, Fite,
Slaughter, Prater & Ward, P.A.
1253 Park Street
Clearwater, Florida 34616
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 deny the application of the Appellant, Sun
Watch, Inc., for a five foot building height variance for.its
property located at 670 Island Way, Clearwater, Florida. (The
~ variance is required as a result of the Appellant's desire to
build a 95 foot high condominium on the property.)
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PRELIMINARY STATEMENT
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On or about August 23, 1993, the Appellant, Sun Watch, Inc.
(Sun Watch or the Appellant), applied to the City of Clearwater
Development Code Adjustment Board (the Board) for a building
height variance. After staff review and recommendation to grant
the variance application, it was considered and denied by the
Board at a public hearing on October 28, 1993. A timely appeal
was filed on November 10, 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 November 19, 1993, along
with a copy of the record of the proceedings below. On
December 16, 1993, a Notice of Hearing was issued scheduling
final hearing for January 20, 1994. However, notice of the
hearing was not published, as required by Section 36.065(4){b) of
the Code, and on January 24, 1994, an Amended Notice of Hearing
was issued scheduling final hearing for February 18, 1994.
At the final hearing, the record of the proceeding below was
received, as required by Section 36.065(5)(c) of the Code.
Additional evidence also was received, as permitted by Section
36.065(S)(d) and (6)(a) of the Code. Summations were heard, as
permitted by Section 36.065(5)(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 August 23, 1993, the Appellant, Sun Watch,
Inc. (Sun Watch or the Appellant), applied to the City of
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~ Clearwater Development Code Adjustment Board (the Board) for a
five-foot building height variance to allow it to build a 95-foot
tall building where zoning regulations limit buildings to 90 feet
in height. The building, as presented in the application, would
have nine stories over a one-story parking garage and would
accommodate 96 condominium units, each 3000 square feet. The
application and supporting evidence presented to the Board was to
the effect that the building cannot be constructed as planned
without the five-foot height variance because: (1) eight feet of
clearance from floor to ceiling is requ~red in order to
successfully market the planned luxury condominuim units; (2) the
building's post-tension slab construction, designed for greater
one foot per floor for the duct work, furring, drywall and
finishing.
2. The City of Clearwater Development Code (the Code)
requires only a minimum of seven feet, six inches, clearance
between the floor and ceiling of the Sun Watch residential units.
In addition, only seven feet, even, of clearance is required in
common areas, such as corridors within the units. If the heating
and air conditioning duct work is placed in the corridors, or if
the ceilings in the other parts of the residential units are
lowered to the seven foot, six inch, minimum, no variance would
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be required, according to the application and supporting evidence
presented to the Board. But the Appellant proved: (1) that the
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desirable large rooms planned for the perimeter of the
residential units were too large to be effectively heated and
cooled from the common areas alone; (2) that, notwithstanding the
Code allowances, seven foot ceilings are too low for optimal
heating and cooling because the air coming from the ceiling
registers would blow down too directly onto the unit dwellers;
and (3) that people would not buy luxury condominium units with
.smaller rooms or with lower ceilings.
3. Notwithstanding the logic of the Appellant's arguments,
as far as they go, it is clear that the primary purpose of the
large size of the condominium units planned for the Sun Watch
building, both in square footage and in ceiling height, is to
secure greater profits from the sale of luxury condominiums,
instead of'smaller, less than luxury units.
4. The primary purpose of the ninth story of residential
units is to achieve the maximum density for which the property is
zoned, with the commensurate higher profits, instead of a lower
zoned density. In fact, the design which necessitated the
building height variance application in this case was drawn at
the request of the developer, whose instructions to his architect
were to design a building to utilize the maximum allowable
density on the property.
5. In addition, the evidence at the final hearing
established that, in response to the developer's instructions,
the developer's architect drew the design which necessitated the
building height variance application in this case without
knowledqe of the 90-foot buildinq heiqht restriction. Only after
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~ the design was drawn did the architect realize that the design
would necessitate a variance from the building height
restriction.
6. The evidence at the final hearing was that there were
inaccuracies in the building design on which the variance
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application was based. Instead of a foot per floor for the duct
work, furring, drywall and finishing, actually 13 to 14 inches
would be required. In addition, instead of the eight feet, nine
inches, in the design for the parking garage and slab under the
first floor~ actually nine feet, eight inches, will be required.
Based on those facts, instead of the five foot variance in the
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application, actually a variance of between nine feet, eight
inches, and ten feet, five ,inches, would be required to build the
~ proposed nine story, 96 unit, condominium with one story parking
garage. (This actual variance requirement takes into account
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Section 42.23(5) of the Code, which allows parapet walls to
extend up to 30 inches above a building height limitation; the
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Sun Watch building has a four foot parapet wall, but its variance
application did not seem take advantage of the extra 30 inches
allowable under the Code.) No application for the variance
actually required for the proposed Sun Watch building ever has
been presented to the Board for approval.
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7. There was some evidence that the additional height of
the proposed Sun Watch condominium would interfere with the view
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of some of the neighbors in the building immediately to the
north, that the reduced light reaching the building immediately
to the north will adversely affect the heating and cooling of the
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building, causing increased electric bills, and that the proposed
Sun Watch condominium would impair the value of the units in the
building immediately to the north. The application and evidence
did not clearly prove the contrary. .
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CONCLUSIONS OF LAW
8~ The standards for approval of an application for a
.
variance are set out in Section 45.24 of the City of Clearwater
Land Development Code (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.
(5)
(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
injurious to other property or
improvements in the neighborhood in
which the property is located.
( ,
y
6
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(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
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. Appeals from decisions of the Board are governed by
Section 36.065 of the Code, which provides in pertinent part:
(1) Purpose. It is the purpose of this
section to provide an administrative process
for appealing decisions rendered on
variances and conditional uses by the
development code adjustment board and the
planning and zoning board respectively,
prior to any available recourse in a court
of law. In particular, it is intended that
such administrative relief be provided in
the most professional, objective and
equitable manner possible through the
appointment of a hearing officer to
adjudicate matters as provided in this
section. The function of the hearing
officer shall be to serve as the second step
of a two-step administrative process
relating to variances and conditional uses.
~
*
*
*
(5) Conduct of the hearinq. Conduct of
the hearing before the hearing officer shall
be as follows:
*
*
*
~
(d) The hearing officer shall have the
authority to determine the
applicability and relevance of all
materials, exhibits and testimony and
7
to exclude irrelevant, immaterial or
repetitious matter.
~,
(e) The hearing officer is authorized to
administer oaths to witnesses.
(f) A reasonable amount of cross
examination of witnesses shall be
permitted at the discretion of the
hearing officer.
*
*
*
(6) Decision. The decision of the hearing
officer shall be based upon the following
criteria and rendered as follows:
(a) The hearing officer shall review'
the record and testimony presented at
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
hearing 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 officer's 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
~
8
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impose such reasonable conditions as
the board may have imposed.
10.
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
o
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.
11. It is concluded that the Appellant has not met its
burden of proving that the evidence does not sustain the Board's
decision that the application and evidence do not clearly support
the conclusion that the standards for approval set out in Section
45.24 of the Code have been met.
12. The application and evidence presented do not clearly
support the conclusion 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, or that the variance requested arises from a condition
which is not created by the Appellant's action.
o
13. The application and evidence presented do not clearly
support the conclusion that the particular physical surroundings,
shape or topographical conditions of the property involved and
the strict application of the provisions of the Code would result
in an unnecessary hardship upon the applicant.
, '
9
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14. Even assUming a hardship, the application and evidence
presented do not clearly support the conclusion that the variance
"'-',
requested would be the minimum necessary to overcome any
unnecessary hardship for the purpose of making reasonable use of
the land.
15. The application and evidence presented do not clearly
support the conclusion that, the request for a variance is not
based primarily upon the desire of the Appellant to secure a
greater financial return from the property.
16. 'The application and evidence presented do not clearly
support the conclusion that the variance will not impair an
adequate supply of light or ventilation to adjacent property, or
impair the value of surrounding property.
17. The application and evidence presented do not clearly
i
~"- .
,
support the conclusion that the variance will not violate the
general spirit and intent of the Code.
DISPOSITION
Based on the foregoing Findings of Fact and Conclusions of
Law, the decision of the City of Clearwater Land Development Code
Adjustment Board denying the application of the Appellant, Sun
Watch, Inc., for a five foot building height variance for its
property located at 670 Island Way, Clearwater, Florida, is
affirmed.
~
10
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DONE AND ORDERED this 25th day of March, 1994, in
Tallahassee, Florida.
Hearings
Filed with the Clerk of the
Division of Administrative
Hearings this 25th day of
March, 1994.
COPIES FURNISHED:
',~
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R. Carlton Ward, Esquire
Mark D. Breakstone, Esquire
Richards, Gilkey, Fite,
Slaughter, Prater & Ward, P.A.
1253 Park Street.
Clearwater, Florida 34616
Miles A. Lance, Esquire
Assistant City Attorney
City of Clearwater
Post Office Box 4748
Clearwater, Florida 34618-4748
Cynthia Goudeau
City Clerk
City of Clearwater
Post Office Box 4748
Clearwater, Florida 34618-4748
Final Order, Case No. 93-6819
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RECEIVED
DEe 1 4 1994
CITY CLERK DEPT.
LEONARD A. M.CCUE, )
)
Appellant, }
)
VB. ) CASE NO. 94-5597
)
CITY OF CLEARWATER, )
)
Appellee. )
)
FINAL ORDER OF DISMISSAL
At the final hearing In this case in Clearwater, Florida, on
December 6, 1994, the', Appellant voluntarily dismissed the appeal
based on the parties I understanding that the Appellant may submit
a scale drawing that encompasses all of the property for which a
..
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conditional use permit will be required on or before January 5,
1995, and that City staff will recommend that the Planning and
Zoning Board consider and rule on the merits of the application,
with the scale drawing.
Accordingly, this appeal is dismissed.
DONE AND ORDERED this 13th day of December, 1994, in
Tallahassee, Florida.
W -Ne
ring affic
ision of A inistrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
o
Filed with the Clerk of the
Division of Administrative
Hearings this 13th day of
December, 1994.
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COPIES FURNISHED:
~
Leonard A. McCue, Esquire
. 524 9th Street W
Bradenton, Florida 34205
Miles A. Lance, Esquire
Assistant City Attorney
City of Clearwater
Post Office Box 4748
Clearwater, Florida 34618-4748
Cynthia Goudeau
City Clerk
City of'. Clearwater
Post Office Box 4748
Clearwater, Florida 34618-4748
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Final Order of Dismissal, Case No. 94-5597
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