01/12/1995
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. HEARING'
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OFFICER
. APPEALS
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Chrisbpher ~. &ro/;nv Ko-e-fLer
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RECEIVED
FEe 0 6 1995
CITY CLERK DEPT.
CHRISTOPHER G. ROETZER AND
CAROLINE ROETZER,
Appellants,
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CASE NO. 94-46~3
VSw
CITY OF CLEARWATER,
Appelleew
FINAL ORDER
The final hearing in this case was held on January 12,
1995, in Clearwater, Florida, before Richard Hixson, Hearing
Officer, Division of Administrative Hearings.
represented as follows;
The parties were
o.
APPEARANCES
For Appellants:
Christopher and Caroline Roetzer
3001 Sunset Point Road
Clearwater, Florida 34619
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For Appellee:
Miles Lance
Post Office Box 4748
Clearwater, Florida 34618-4748
STATEMENT OF THE ISSUES
~ ,I
The issue in this case is whether the application of
Christopher and Caroline Roetzer (Appellants) for two variances
allowing fences of greater than. permitted height on their
property should be approved.
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PRELIMINARY STATEMENT
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The record of the proceedings before the Development Code
Adjustment Board was introduced into evidence.
Appellants
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testified on their own behalf and introduced one composite
exhibit consisting of nine photographs of the property in this
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.case .~..~. .Th'e' Appellants also called one witness, Craig Hill.
The
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City called five witnesses Robert King, Irving Carlson, Camplin
Straker, Carolyn King, and John 'Richter,' and introduced one
additional exhibit, a petition signed by thirty-four residents in
opposition to the granting of the variances.
FINDINGS OF FACT
1. Appellants, Christopher and Caroline Roetzer, are the
owners of property located at 3001 Sunset Point Road in
Clearwater, Florida.
2. On or about July 7, 1994, Appellants filed an
application with the Appellee, City of Clearwater, for variances
of:
(1) 3.5 feet to permit a fence height of 6
feet where 2.5 feet maximum height is
permitted in a structural setback area from a
street right-of-way (Sunset Point Road) where
the property is addressed from; and, (2) 2
feet to permit a fence height of 6 feet ,where
4 feet maximum is permitted in a structural
setback from a street right- of-way where the
property is not addressed from at 3001 Sunset
Point Road.
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3. The Appellants purchased the subject property in
November of 1993. At the time of purchase, the property was in
an incorporated part of Pinellas County and was zoned' for
commercial use.
4. The Appellants purchased the property for the purpose of
constructing a single-family residence.
The county issued a
permit for construction of the residence on December 8, 1993, and
construction began shortly thereafter.
completed in March of 1994.
The residence was
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5. The Appellants' residence is addressed from Sunset Point
Road: The back of Appellants' 'property adjoins Oak Forest Drive.
Oak Forest Drive is located in Forest Wood Estates, a residential
subdivision that was initially developed more than twenty years
ago. Appellantst property was not, prior to their purchase, and
is not now, a part of Forest Wood Estates. Appellants' residence
is a large two-story, three-car garage structure. The Appellants
have also constructed a fenced dog-pen immediately adjacent to
their residence.
The surrounding residences are generally
smaller, single story structures.
Unlike Appellants' residence,
the other residences adjoining Oak Forest Drive front on, and are
addressed from that street, and not Sunset Point Road.
(:)
6. The back of the residential property located at 3006 Oak
Forest Drive, which is immediately adjacent to the Appellants I
property, has a wooden fence in excess of 2.5 feet located along
Sunset Point Road.
7. In February of 1994 Appellants applied for annexation by
the City of Clearwater. The purpose of the application for
annexation was to enable the Appellants to access the City sewage
system. On March 17, 1994 the subject property was annexed by the
City.
The Appellants were not informed that the annexation had
been effected at that time.
B. On May 19 I 1994, officials of Pinellas County I also
unaware that the Appellants I property had been annexed by the
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City, issued a permit for the construction of a 6 foot fence in
the back of the Appellants' property adjoining Oak Forest Drive.
On June 7, 1994, the fence was erected.
At the time the fence
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was constructed" Robert King, a resident of Forest Wood Estates,
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informed the fencing contractor that, the fence viplated the City
code." On' June 9, 1994, the City of Clearwater issued the
Appellants a notice of violation of permitting requirements.
9. Prior to the construction of the fence, children used
the back of Appellants property as a shorter route to return home
from school.
10. On July 7, 1994, Appellants filed an application for
variances to construct not only the 6 foot fence that had been
erected in the back of the property, but, also to construct a 6
foot fence in the front of the property along Sunset Point Road.
The Appellants applied for the variances for reasons of security,
privacy, and protection from liability.
Additionally, the
Appellants applied for the variances for the purpose of allowing
'their two golden retrievers access to roam the property safely.
11. The city planning staff recommended approval of the
Appellants' application for the two variances.
12. The matter was heard by the Development Code Adjustment
Board on July 28,1994, 'at which time the recommendation of the
City planning staff to approve the application for variances was
presented by Senior Planner John Richter. Appellants also
appeared and expressed their concerns for the security and
privacy of their residence and property.
Several residents of
Forest Woods Estates appeared at the hearing and stated that the
fence in the back of Appellants' property was unsightly and would
detract from property values.
The residents also stated that
although', a proposed expansion of Sunset Point Road would allow
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o traffic to move closer to the Appellants I residence that the
Appellants' front,lawn was the largest on the street.
13. The Development Code Adjustment Board unanimously
denied the application of the Appellants as to both variances .
14. The Appellants filed a timely appeal of the denial of
their application. The appeal was referred to the D1 vision of
Administrative Hearings on August 23, 1994. The appeal was heard
on January 12, 1995.
15. Since the construction of the 6 foot fence in the back
of Appellants' property there have been no incidences of children
using the Appellants' property as a route to return home from
school. Appellants' dogs have also had access to the back yard
without incident.' Appellants continue to experience a high level
of noise and litter from the traffic on Sunset Point Road in the
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front of their property.
16. Craig Hill, a resident of Forest Woods, who lives at
1882 Oak Forest Drive which is immediately behind the Appellants'
property testified that he recently purchased his home in this
subdivision, that the Appellants' fence provided security for
keeping his son away from Appellants' dogs, and that the fence
did not detract from his purchase of this property.
17. Robert and Caroline King, real estate brokers who have
resided in Forest Woods subdivision for 22 years, testified that
the fence is unsightly and would detract from the value of other
homes. in the neighborhood.
For these proceedings, Mr. and Mrs.
o
King were neither tendered, nor qualified, as experts in real
,estate appraisals. Other longtime residents, Irving Carlson and
5
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Camplin Straker, also testified that the fence and the double
gate for the fence were unsightly. The residents also expressed
concerns because the fence is located near the only entrance to
Forest Woods and generally detracts from the aesthetic appearance
of the entire subdivision.
18. John Richter, a Senior Planner with the City of
Clearwater with 17 years of planning experience with the City,
testified that there is no presumption to the recommendations of
the planning staff to the Board, and that one consideration of
the City code is the visual aesthetics of the surrounding
property.
CONCLUSIONS OF LAW
19.
The
Division
of
Administrative ,Hearings
has
jurisdiction in this case. Section 120.65, Florida Statutes and
Section 36.065, City of Clearwater Land Development 'Code (the
Code) .
20. Pursuant to Sections 36.065(6)(a) and (c) of the Code,
this proceeding is not a hearing de novo, and the burden is upon
the Appellants "...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 departs from the essential
requirements of law. tl
21. The standards for approval of an application for a
variance are set out in Section 45.24 of the Code which provides:
Section 45.24.' Standards for approval.
A variance shall not be granted unless the
application and evidence presented clearly
support all of the following conclusions:
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(1) There are special circumstances related
to the particular physical surroundings,
shape or topographical conditions applicable
to the land or buildings, and such
circumstances are peculiar to such land or
buildings and do not apply generally to the
land or buildings in the applicable zoning
district.
(2) The strict application of the provisions
of the code would deprive the applicant of
the reasonable use of the land or buildings.
(3) The variance is not based exclusively
upon a desire for economic or other material
gain by the applicant or owner.
(4) The granting of the variance will be in
harmony with the general purpose and intent
of the land development code and
comprehensive plan and will not be materially
injurious to surrounding properties or
otherwise detrimental to the public welfare.
,22. As .to the first standard, the Appellants have shown
(')
that there are special circumstances related to their residence
and property.
The evidence supports the conclusion that
Appellants I property is unique to the area in size, shape, and
design.
Appellants I property was not part of the initial
residential development in this area, and because Appellants'
residence is addressed from Sunset Point Road, Appellants' needs
for security, and privacy are substantially different from the
security and privacy needs of the surrounding residences.
23. Appellants have also met the requirements of standard
(3) above, in that there is insufficient substantial competent
evidence,to show that the variance sought is based exclusively on
the desire for material or economic gain of the applicants.
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24. The
evidence
presented
as
to'
standard
( 4 ) is
inconclusive.
As 'set
forth
in
the
planning
staff
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recommendations,
the variances sought
in thi s
case with
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appropriate landscaping, would be in keeping with the general
purpose and intent of the code and the comprehensive plan;
however, the Appellants did not clearly demonstrate that the
granting of the variances would not be materially detrimental to
other residents
and property owners
in
the
surrounding
neighborhood.
25. Finally, as to the second standard, the Appellants have
not demonstrated that the strict application of the code would
deprive them of the reasonable use of their property. The
evidence clearly reflects that Appellants have not been denied
the economic or beneficial use of their property. As
demonstrated by the record before the board, and admitted by the
Appellants at the hearing on January 12, 1995, Appellants'
property may be reasonably used for residential purposes without
lo.
the granting of the variances.
Appellants have already
constructed permissible fenced-in facilities for their dogs, and
may construct 6 foot fences outside the structural setback area,
or fences of permissible height to prevent int:::usion on their
property.
26. Under the provisions of Section 45.24 of the Code,
Appellants have the burden of showing that the evidence clearly
supports all'of the standards for approval. The Appellants have
not sustained this burden with respect to standards (2) and (3)
of section 45.24.
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ORDER
Based upon the foregoing, it is:
ORDERED THAT the applications for variance filed by
Appellants be DENIED, and the action taken by the Development
Code Adjustment Board on July 28, 1994 is affirmed.
DONE and ORDERED this ......:?
day of February, 1995, in
Tallahassee, Leon County, Florida.
I '. .
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- RICHARD HIXsON
Hearing Officer
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
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Filed with the Clerk of the
Division of Administrative Hearings
this \3/1..1 day of February, ,1995.
COPIES FURNISHED:
Miles A. Lan~e
Assistant City Attorney
City of Clearwater
Post Office Box 4748
Clearwater, Florida 34618-4748
Christopher and Caroline Roetzer
3001 Sunset Point Road
Clearwater, Florida 34619
Clerk's Office
City of Clearwater
Post Office Box 34618-4748
Clearwater, Florida
DOAR Case No. 94-4693
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PUBLIC HEARING BEFORE A HEARING OFFICER
January 1 0, 1995
Hearing Officer:
Richard Hixson
Also Present:
Miles A. Lance, Assistant City Attorney
John Richter, Senior Planner
Susan Stephenson, Document & Records Supervisor
Issue:
Christopher G. & Caroline K. Roetzer for variances of (1) 3.5
ft to permit a fence height of 6 ft where 2.5 ft maximum
height is permitted in a structural setback area from a street
right-of-way (Sunset Point Road) where the property is
addressed from; and (2) 2 ft to permit a fence height of 6 ft
where 4 ft maximum height is permitted in a structural
setback from a street right-of-way where the property is not
addressed from at 3001 Sunset Point Road, Sec 4-29-16,
M&B 23.03, zoned RS 6 (single family residential). V94-43
DOAH Case No. 94-4693
Appearances:
Christopher & Carolyn Roetzer
The Hearing Officer accepted the record of proceedings of the Development
Code Adjustment Board and other information submitted by the City in their letter dated
August 23, 1994.
Additional Exhibits Submitted:
1. Composite exhibit consisting of nine photographs submitted by appellants.
2. Petition signed by 34 residents in opposition submitted by the City.
, Mr. Roetzer stated he purchased the lot in November 1993 when it was in the
County. He obtained a building permit from the County and began construction in
January 1994. He petitioned for annexation into the City so that he could hook into the
sewer. A fence permit was obtained from the County in May 1994. Two days later he
was informed that the property had been annexed 60 days earlier. He stated the
property is unique in the way it is laid out. City staff recommended approval but the
Development Code Adjustment Board denied all variances.
In his opening statement, Miles Lance stated the Board had substantial
competent evidence to deny the request. At the hearing on July 28 neighbors objected
stating it would hurt their property values. He stated the request did not meet standard
four for approval and the Board denied all the variances.
MINH01A,95
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The Hearing Officer swore in eight people who would speak during the hearing.
Mr. Roetzer testified the property is unique and it slopes 6 feet. The fence height
is needed to protect the property. The house is two stories high. The City staff
recommended approval subject to a condition they were willing to meet. The Traffic
Engineer had no objection. The variances are solely for fence height and it is his feeling
that a 4-foot fence will not protect the property from trespassers and is necessary to
contain his two golden retrievers. Prior to the fence being built children were cutting
across the property. Adjacent neighbors had no objection and the fence is landscaped.
Under cross examination Mr. Roetzer stated he requested annexation to gain
s.ewer service. He stated they were living in the house less than a month when they
had the fence put in and got the dogs after that.
Caroiyn Rcetzer staten the fence would be approved in the County as they did
receive a permit to put it up. She followed proper procedure and obtained a permit from
the County. The City did not notify the County that the property had been annexed.
She feels the fence will not detract from the neighborhood and they plan to plant 120
hedge plants as well as hibiscus along the fence. There are plans to widen Sunset
Point Road to four lanes with a median and she feels the fence in the front is a safety
issue.
Upon cross examination she stated they did not know they had been annexed
i:') into the City when they applied for the fence permit.
Craig Hill of 1882 Oak Forest Drive West stated he is the abutting neighbor to the
south and he has no objections to the fence. It did not keep him from purchasing his
home.
Robert and Caroline King of 1846 Oak Forest Drive West stated their home is
eight lots south of the subject property and expressed objections to the fence at the
Development Code Adjustment Board meeting. He pointed out that if the fence was
moved back 25 feet the Roetzers could have a 6-foot fence. They are both real estate
agents and feel the fence detracts from property values.
Irving Carlson stated the fence is up against the sidewalk and there is a double
gate with no driveway.
Camplin Straker of 1883 Oak Forest. stated the fence looks like a stockade. He
feels allowing the fence to remain will open the door for additional requests for 6 foot
high fences.
John Richter. Senior Planner for the City of Clearwater. stated the maximum
height allowed for a fence is 6 feet with a 25 foot setback. The maximum height allowed
for fences on Sunset Point Road is 30 inches. He stated that fence height is driven by
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MINH01A.95
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aesthetics and he supported staff's recommendation for approval.
, ,
The Hearing Officer stated the parties could submit findings of fact and proposed '
orders with 14 days.
The hearing adjourned at 4:22 p.m.
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