05/12/1995 - 1:00 PM (2)
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, HEARING
OFFICER
, APPEALS
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PUBLIC HEARING BEFORE A HEARING OFFICER
May 12, 1995 . 1 :00 p.m.
Valentinos Koumoulidis
Hearing Officer:
J. Lawrence Johnston
Also Present:
Miles A. Lance, Esquire, Assistant City Attorney
John Richter, Senior Planner
Patricia O. Sullivan, Board Reporter
Issue:
Petitioner contests the decision of the Development Code Adjustment
Board to deny a variance of 1) 83 feet to permit a lot width of 67
feet at the setback line and 2) 20 percent to permit 0 percent of clear
space where 20- percent is required at 606 Bayway Boulevard,
Bayside Sub No.5, Blk A, Lot 7, zoned CR 28 (Resort Commercial). V
95-09
Appearances:
John G. Fatolitis, Esquire, Attorney for Appellant
Robert E. Gregg, Esquire, Attorney for Appellant
Valentinos Koumoulidis, Appellant
o
Appellant Exhibits: A.
Composite of photographs of subject property and adjacent
property
City Exhibits:
1.
Record of proceeding as required by Section 36.065(5)(c) of
the Code
Two letters in support of the application
2.
Hearing Officer Johnston opened the meeting at 1 :02 p.m. and explained the rules
governing the procedures. He requested the record reflect that this hearing was properly
noticed and all parties have had the opportunity to be properly noticed regarding this
hearing.
The issue was whether to grant the appeal of Valentinos Koumoulidis from the
Development Code Adjustment Boardts COCAS) denial of his application for variances from
the requirement of a minimum lot width of 150 feet at the setback line and from the
requirement of a minimum of 20% clear space.
Mr. Gregg indicated the appellant was denied variances on several occasions. The
prOilerty originally was constructed as a six-unit motel with head-in parking. After ending
operation of the small motel, the appellant remodeled the upper level into a single family
residence for his family. The first floor was planned as a single commercial unit. Mr.
Gregg said the building stood vacant almost three years while building permits were
obtained. He reported the appellant previously had been granted variances for front yard
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Mr. Lance reported DCAB denied variances in February 1995 for: 1) 83 feet to
permit a lot width of 67 feet at the setback line and 2) 20% to permit 0% of clear space
where 20% is required. DCAB granted variances for 1) 28.75% to permit 21.25% of
front yard open space where 50% is required and 2) 3.5 feet to permit 1.5 feet of
perimeter landscape buffer where 5 feet is required to legalize existing parking. DCAB felt
the second floor expansion is not necessary for reasonable use of the property.
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open space, lot width, and a landscape buffer and noted none of these requirements
existed when the building was constructed.
Mr. Gregg said a clear space variance was needed because planned changes to the
parking lot required parking in the clear space. The building is six feet from the side
property lines. He suggested the clear space requirement could be met by counting the
property on -both sides. He said eight feet of the building would have to be bulldozed to
meet the clear space requirement and noted the lot's size is substandard for a single family
residence. He referred to photographs of nearby properties and pointed out no structure
has met the clear space and width requirements. He noted only two properties have rear
green space. Mr. Gregg said the City has not provided Mr. Koumoulidis the opportunity to
remodel his building within the limits of the law. He explained the applicant wishes to
extend the rear of the existing building's second floor by 900 square feet.
Mr. Lance agreed variance applications for the property were submitted beginning in
1991 and said the City is not at fault for the slow process. He said staff had questioned
the accuracy of Mr. Koumoulidis' plans, etc. He said the applicanes duty is to submit
correct applications. To provide the applicant a reasonable use of his property, Mr. Lance
reported variances for front yard open space, lot width, clear space requirements and side
yard landscape buffer were granted in 1992. Mr. Gregg said those variances resulted in
no construction or changes to the building.
Mr. Gregg said unless the building is extended, variances are not required. He felt
the green space requirement was only for parking. In 1992, he said the variances
permitted the parking lot to be reconfigured from head-in parking and the downstairs to be
made more functional by addressing ADA requirements. He said the City did not approve
an additional parking space even though the landscape buffering requirement would have
been reduced only 10 inches. He said the building lost two parking spaces when the lot
was reconfigured. Mr. Gregg said the applicant then turned in a set of plans redesigning
building features but the City turned them down because of changes made to original
permit drawings. He said the parking lot was not built according to the original plans.
Mr. Gregg said no other features deem the proposed second floor addition non-
complying and noted the allowable Floor Area Ratio has not been exceeded. He felt
parking is the controlling factor. The application submitted in October 1994 included a 300
square foot addition on the ground floor to accommodate handicapped bathrooms and a
storage facility plus the second floor expansion. He noted the staff report recommended
approval. He felt DCAB predetermined not to pass anything. Mr. Gregg said deletion of the
added space on the first floor were made at staffs request.
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Senior Planner John Richter reviewed the property's history of variance requests.
He reported a larger parking request had been denied and withdrawn. In October 1992,
DCAB approved modification of the building's interior and a parking lot to replace back-out
parking. On October 13, 1994, DCAB denied variance requests for 300 square feet on the
first floor plus 900 square feet on the second floor. On February 3, 1995, DCAB denied
variances for the upstairs addition because the request did not meet the standards for
approval, the denial would not deprive the applicant of a reasonable use of the land or
buildings, and no special circumstances exist. Mr. Richter said DCAB had not approved
any expansion to the existing building. Mr. Richter estimated the second floor area at
1,600 square feet. It was noted that figure includes unenclosed balconies.
The Hearing Officer questioned staffs recommendation regarding this application.
Mr. Richter said staff had recommended denial. In October 1994, however, staff had
recommended approval of the additional space on the first and second floor and parking.
He said that request also would have required lot width and clear space variances. Mr.
Richter agreed the October 1994, and February 1995, variance requests were almost
identical. Mr. Fs:!olitis noted how staff's positive analysis of the October 1994 request
differed considerably from staff's analysis of the February 1995 request and questioned
why the analysis had changed so drastically. Mr. Richter said staff wrote a report before
the October 1993 DCAB hearing where the board indicated they had granted variances for
a reasonable use of the property two years previously and felt these four variances were
more than what is required for a reasonable use. Staff agreed with DCAB's assessment
and changed their position accordingly.
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I.~.J Mr. Fatolitis questioned why staWs consideration of identical special circumstances
had changed. Mr. Richter said the pivotal condition relates to reasonable use of the
property. Mr. Fatolitis noted the special circumstances had not disappeared. Mr. Richter
felt staff's October 1994 recommendation was flawed. He indicated staff had been
unaware the space was used as a living quarters because the interior was substantially
gutted when they viewed it in preparation for their report. Mr. Fatolitis expressed concern
the City did not consider the family's need for additional space. Mr. Lance said DCAB and
staff determined a reasonable use of the property was 1,600 square feet of living space on
the second floor. Mr. Richter said DCAB has the right and responsibility to deny
unreasonable variance requests.
Mr. Richter read the clear space requirement included in Section 41.13", paragraph
6 and indicated it was to allow parking spaces within the 20% corridor. When the
application was revised to include building construction within the clear space, the space
was viewed differently. The Hearing Officer noted those variances are tied to the intended
use and do not carry forward to other kinds of uses. He noted earlier variances do not
address this request.
Mr. Gregg questioned where the original variances allowing parking was written.
The Hearing Office noted variances are tied to plans presented with the application. Mr.
Richter reported the parking lot's size was increased from six to seven spaces.
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In answer to a question regarding the property being grandfathered, Mr. Richter said
the code recognizes some City lots do not meet current requirements. The City allows
those properties to be developed and redeveloped as long as all other code requirements
are met. (n this case, Mr. Richter said the development did not comport with all other
dimensional requirements, specifically clear space. Property needing a clear space
variance also requires a lot width variance. The clear space requirement affects second
floor development. Mr. Richter said the current structure is located in the clear space and
a variance would be required for expansion. Proposed construction does not affect the
rear setback.
Mr. Richter said the purpose of the clear space is to provide a view from the public
street to the water. The proposed addition would affect the clear space because
additional building space would be located on property. Mr. Fatolitis questioned how a
second floor addition could affect the view of someone at ground level. Mr. Richter said
clear space is three.dimensional and an aesthetic, open space and view consideration. Mr.
Gregg noted the variance approved for parking interrupts the clear space.
Mr. Gregg said few island properties can comply with clear space requirements. He
. presented photographs of the subject and neighboring properties and reported the owner
also owns property to the East. He pointed out code requires 20 feet, but only 6 feet of
crear space now exists. He expressed concern the owner can only develop 40% of his
property and said the proposed construction would not block the water view any more
than currently. He did not feel the requested expansion is unreasonable.
(:)
Noel D. Woods, President Emeritus of the Bayway Shores Condominium
Association, said Bayway Boulevard is upscale and unique with neighbors who exhibit
pride of ownership. They felt the proposed changes will enhance the applicant's property
value and the neighborhood. Mr. Woods said his board supports the request. He
expressed concern the home was not large enough to entertain the applicant's family
members and said family should come first.
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Mr. Gregg said the requested 900 square foot addition is not totally enclosed and
includes 350 square feet of open deck area.
Hearing Officer Johnston requested the parties file proposed final orders within ten
days. He said he would issue a formal order within 30 days.
Proceedings were concluded at 2:53 p.m. by Hearing Officer Johnston.
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CCITY OF CLEARWATER
Interdepartmental Correspondence Sheet
TO:
Scott Shuford I Central Permitting'
Pam Akin I City Attorney
FROM:
Pat Sullivan I City Clerk Department
SUBJECT:
Final Order - Administrative Hearing per Valentinos Koumoulidis
Hearing date - May 12, 1995
Order received June 16, 1995
. DATE:
October 11, 1995
===========================~==============
Please note attached copy of Final Order refers to the Planning & Zoning Board's denial of
Mr. KoumolJlidisr application and to Planning & Zoning Board meetings on January 26,
1995 and February 23,1995.
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FYI, according to my records, the Development Code Adjustment Board held these .
meetings and rea'ched the relevant decision.
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
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,.,. P., v:~
JUN 2 I;;;D
c "Y 8 7995
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VALENTINOS KOUMOULIDIS, )
)
Appellant, )
)
ve. )
)
CITY OF CLEARWATER, )
)
Appellee. )
)
CASE NO. 95-1359
, CORRECTED
FINAL ORDER
On May 12, ~995, a final hearing was held in this case in
Clearwater, Florida, before J. Lawrence Johnston,.Hearing
. Officer, Division of Administrative Hearings.
APPEARANCES
'0
For Appellant:
John G. Fatolitis, Esquire
1 North pinellas Avenue
Tarpon Springs, Florida 34689
Robert E. Gregg
~008 Woodruff Avenue
Clearwater, Florida 34616
For Appellee:
Miles A. Lance, Esquire
Assistant City Attorney
City of Clearwater
Post Office Box 4748
Clearwater, Florida 346~8-4748
STATEMENT OF THE ISSUE
The issue in this case is whether to grant the appeal of
Valentinos Koumoulidis from the Development Code Adjustment
Board's denial of his application for variances from the
requirement of a minimum lot width of 150 feet at the setback
~ line and from the requirement of a minimum of 20% clear space.
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PRELIMINARY STATEMENT
The Appellant first applied for the subject variances,
together with others, on or about December 22, 1994. (Previous
applications also were made for other purposes, as reflected in
the Findings of Facti some were granted, some were denied.) The
application was presented to the Development Code Adjustment
Board (the Board) for decision at its meeting on January 26,
1995, but the matter was continued to the Board's February 23,
1995, meeting to give the applicant time to provide a detailed
site plan drawn to scale.
At the February 23, 1995, meeting of the Board, testimony
and evidence was received, and the Board voted to approve some of
the variances for which the Appellant had applied (those needed
for parking alterations) but voted unanimously to deny the
subject variances.
An appeal from the Board's decision was filed on March 9,
1995. The appeal was referred to the Division of Administrative
Hearings (DOAH) for assignment of a hearing officer on March 20,
1995. On April 10, 1995, a Notice of Hearing was issued
scheduling final hearing for May 12, 1995.
At the final hearing, the record of the proceeding below was
received, as required by Section 36.065(5) (c} of the Code, as
City Exhibit 1. Additional evidence also was received, as
permitted by Section 36.065(5) (d) and (6) (a) of the Code.
Letters in support of the application were received as City
Exhibit 2, and a series of photographs of the Appellant's
property and the vicinity were received as Appellant Exhibits A-1
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~ through A-10. Testimony of Robert Gregg, John Richter, and Noel
Woods also was received. 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. When the Appellant, Valentinos Koumoulidis, bought the
subject property, the building was being used as a six-unit
motel--three unit? on each of two floors. There were
approximately 1600 square feet of space on each of the two
floors. The property fronts at 606 Bayway Boulevard; the back of
the property is waterfront.
2. In 1991, the Appellant applied for and was granted a
(:)
parking variance and variances to enable him to convert the first
floor to retail use and convert the second floor to a residence.
3. Apparently construction was delayed, and in October,
1992, the Appellant reapplied for the variances to enable him to
convert the first floor to retail use and convert the second
floor to a residence, while withdrawing the application for a
parking variance.
(He had decided to convert from straight-
in/back-out parking to an off-street parking lot.)
4. In 1994, the Appellant again applied for variances, this
time to allow him to add approximately 300 square feet of
commercial space to the back of the first floor and approximately
900 square feet of residential space to the back of the second
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floor. The Board denied those variance requests in October,
'1994.
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5. Rather than appeal, the Appellant decide not to pursue
the addition of commercial space to the back of the first floor
and, on December 22, 1994, instead applied for variances to allow
him just to add approximately 900 square feet of residential
space to the back of the second floor. (Of the 900 square feet,
approximately 550 would be enclosed, and approximately 350 would
be open deck.)
6. The evidence (primarily through the testimony of Noel
Woods, one of the Appellant's neighbors) was that the residential
property in the immediate vicinity is comparable, in terms of
square footage of living space.,per dwelling unit, to the
Appellant's current second floor--i.e., approximately 1600 to
1700 square feet.
7. There was some evidence that residential properties
across the intracoastal waterway from the Appellant's property
are valued as high as a million dollars. But the evidence
(again, the testimony of Noel Woods) also was that condominium
units in the immediate vicinity are valued at approximately
$175,000. There was no evidence that the use the Appellant is
making of his property (retail on the first floor and residential
on the second floor) is not a reasonable use.
CONCLUSIONS OF LAW
8. Section 40.406(2) of the City of Clearwater Land
Development Code (the Code) requires that building lots be a
minimum of 150 feet wide at the setback line.
9. In addition, for waterfront development, Section
41.131(2) of the Code requires that structures have a setback per
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/~ side ("clear spaceU) of 20 percent of the lot width, or ten feet,
whichever is less.
(For reasons not explained and not clear to
the hearing officer, the parties cited to Section 41,131(6) of
the Code for this requirement.) The purpose of the requirement
is to preserve views of the water from the street.
10. 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) 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.
o
(2) The strict application of the
provisions of the code would deprive the
applicant of the reasonable use of the land
and 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.
11. Appeals from decisions of the Board are governed by
Section 36.065 of the Code, which provides in pertinent part:
(1) Puroose and exception.
(a) It is the purpose of this section to
provide an administrative process for
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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.
~
r .
,
*
*
*
(5) Conduct of the hearing. 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
testimonYcand 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 ~he 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.
~
6
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(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 impose such reasonable conditions as
the board may have imposed.
These provisions appear to provide for a curious hybrid
12.
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.
13. It is concluded that the Appellant has not met his
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.
14. The application and evidence presented do not clearly
support the conclusion that there are special circumstances
i..':\\-;~
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related to the particular physical surroundings, shape or
'topographical conditions applicable to the Appellant's land or
7
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building, but not to the land or buildings in the zoning
district, generally.
15. The application and evidence presented also do not
clearly support the conclusion that strict application of the
provisions of the Code would deprive the Appellant of the
reasonable use of his land and building. The application and
,..-.
I
evidence presented do not clearly support the conclusion that the
use of the first floor of Appellant's building for a retail
business and the second floor for a 1,600 square foot residence
does not allow the Appellant a reasonable use. Even if it did,
the application and evidence do not clearly support the
conclusion either that the former use of the property as a metel
,would not allow the A~pellant a reasonable use, or that the
former use no longer is available to the Appellant for any reason
other than his choice and preference in the use he wanted to make
of his property.
DISPOSITION
Based on the foregoing Findings of Fact and Conclusions of
Law, the appeal of Valentines Koumoulidis is denied.
DONE A.VD ORDERED this 23rd day of June, 1995, in
Tallahassee, Florida.
. LAWRENCE JOHNST
ring Officer {
ision of Admi~' trative Hearings
DeSoto Build:l.ng
1230 Apalachee Parkway
Tallahasseel Florida 32399-1550
(904) 488-9675
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Filed with the Clerk of the
Division of Administrative
Hearings this 23rd day of
June, 1.995.
COPIES FURNISHED:
John G. Fatolitis, Esquire
1 North Pinellas Avenue
Tarpon Springs, Florida 34689
Robert E. Gregg
1008 Woodruff Avenue
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
NOTICE OF RIGHT TO APPEAL
A party who is adversely affected by this final order is
entitled to judicial review pursuant to Section 120.68, Florida
Statutes. Review proceedings are governed by the Florida Rule of
Appellate Procedure. Such proceedings are commenced by filing
one copy of a notice of appeal with the agency clerk of the
Division of Administrativ~ Hearings and a second copy,
accompanied by filing fees prescribed by law, with the District
Court of Appeal, First District, or with the District Court of
Appeal in the appellate, district where the party resides. The
notice of appeal must be filed within 30 days of rendition of the
order to be reviewed.
Final Order, Case No. 95-1359
o
RECEIVED
OCT 1 6 199!i
CIIl' aERK DEn,
9
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RECEIVED
JUN 1 6 1995
"TY CLERK D!pr.
'"
STATE OF FLORIDA
, DIVISION OF ADMINISTRATIVE HEARINGS
VALENTINOS KOUMOULIDIS, )
)
Appellant, )
)
va. ) CASE NO. 95-1359
)
CITY OF CLEARWATER, )
)
Appellee. )
)
FINAL ORDER
On May 12, ~995, a final hearing was held in this case in
Clearwater, Florida, before J. Lawrence Johnston, Hearing
Officer, Division of Administrative Hearings.
APPEARANCES
t:)
For Appellant:
John G. Fatolitis, Esquire
1 North pinellas Avenue
Tarpon Springs, Florida 34689
Robert E. Gregg
1008 Woodruff Avenue
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 to grant the appeal of
Valentinos Koumoulidis from the Planning and Zoning Board's
denial of his application for variances from the requirement of a
minimum lot width of ~50 feet at the setback line and from the
requirement of a minimum of 20% clear space.
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PRELIMIHARY STATEMENT
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The Appellant first applied for the subject variances,
with others, on or about December 22, 1994.
(Previous
applications also were made for other purposes, as reflected in
the Findings of Fact; some were granted, some were denied.) The
application was presented to the Planning and Zoning Board (the
Board) for decision at its meeting on January 26, 1995, but the
matter was continued to the Board's February 23, 1995, meeting to
give the applicant time to provide a detailed site plan drawn to
scale.
At the February 23, 1995, meeting of the Board, testimony
and evidence was received, and the Board voted to approve some of
the variances for which the Appellant had applied (those needed
for parking alterations) but voted unanimously to deny the
(-~"
.
~_.-'
subject variances.
An appeal from the Board's decision was filed on March 9,
1995. The appeal was referred to the Division of Administrative
Hearings (DOAH) for assignment of a hearing officer on March 20,
1995. On April 10, 1995, a Notice of Hearing was issued
scheduling final hearing for May 12, 1995~
At the final hearing, the record of the proceeding below was
received, as required by Section 36.065(5) (c) of the Code. as
City Exhibit 1. Additional evidence also was received, as
permitted by Section 36.065(5) (d) and (6) (a) of the Code.
Letters in, support of the application were received as City
Exhibit 2, and a series of photographs of the Appellant's
property and the vicinity were received as Appellant Exhibits A-l ~
2
FINDINGS OF FACT
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through A-10. Testimony of Robert Gregg, John Richter, and Noel
Woods also was received. 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.
1. When the Appellant, Valentinos Koumoulidis, bought the
subject property, the building was being used as a six-unit
'motel--three units on each of two floors. There were
approximately 1600 square feet of space on each of the two
floors. The property fronts at 606 Bayway Boulevard; the back of
the property is waterfront.
....'
2. In 1991, the Appellant applied for and was granted a
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parking variance and variances to enable him to convert the first
floor to retail use and convert the second floor to a residence.
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3. Apparently construction was delayed, and in October,
1992, the Appellant reapplied for the variances to enable him to
,:.,.;.
convert the first floor to retail use and convert the second
"'.,"
floor to a residence, while withdrawing the application for a
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parking variance.
(He had decided to convert from straight-
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in/back-out parking to an off-street parking lot.)
4. In 1994, the Appellant again applied for variances, this
time to allow him to add approximately 300 square feet of
commercial space to the back of the first floor and approximately
900 square feet of residential space to the back of the second
floor. The Board denied those variance requests in October,
........
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5. Rather than appeal, the Appellant decide not to pursue
the addition of commercial space to the back of the first floor
and, on December 22, 1994, instead applied for variances to allow
him just to add approximately 900 square feet of residential
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space to the back of the second floor.
(Of the 900 square feet,
approximately 550 would be enclosed, and approximately 350 would
be open deck.)
.
6. The evidence (primarily through the testimony of Noel
Woods, one of the Appellant's neighbors) was that the residential
property in the immediate vicinity is comparable, in terms of
square footage of living space per dwelling unit, to the
Appellant's current second floor--i.e., approximately 1600 to
!\'.:
1700 square feet.
': .:'
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7. There was some evidence that residential properties
. .
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across the intracoastal waterway from the Appellant's property
are valued as high as a million dollars. But the evidence
.. '
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(again, the testimony of Noel Woods) also was that condominium
units in the immediate vicinity are valued at approximately
. "
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$175,000. There was no evidence that the use the Appellant is
making of his property .(retail on the first floor and residential
"'.:
on the second floor) is not a reasonable use.
" .
CONCLUSIONS OF LAW
'1 I ~
8. Section 40.406(2) of the City of Clearwater Land
Development Code (the Code) requires that building lots be a
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minimum of 150 feet wide at the setback line.
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9. In addition, for waterfront development, Section
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41.131(2) of the Code requires that structures have a setback per ~
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side ("clear space") of 20 percent of the lot width, or ten feet,
whichever is less. .(For reasons not explained and not clear to
the hearing officer, the parties cited to Section 41.131(6) of
the Code for this requirement.) The purpose of the requirement
is to preserve views of the water from the street.
10. 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:
o
(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
and buildings.
"'J.~
~
(3) The variance is not based exclusively
upon a desire for economic or other material
gain by the applicant or owner.
j4) 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.
11. Appeals from decisions of the Board are governed by
Section 36.065 of the Code, which provides in pertinent part:
(1) Purpose and exception.
(a) It is the purpose of this section to
provide an administrative process for
5
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.'
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 bearing
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 hearing. 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 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 shQIl 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.
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(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 impose such reasonable conditions as
the board may have imposed.
These provisions appear to provide for a curious hybrid
L
12.
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
t~ 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.
13. It is concluded that the Appellant has not met his
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.
14. The application and evidence presented do not clearly
support the conclusion that there are special circumstances
related to the particular physical surroundings, shape or
~ topographical conditions applicable to the Appellant's land or
7
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building, but not to the land or buildings in the zoning
---.
,
district, generally.
15. The application and evidence presented also do not
. clearly support the conclusion that strict application of the
provisions of the Code would deprive the Appellant of the
reasonable use of his land and building. The application and
evidence presented do not clearly support the conclusion that the
use of the first floor of Appellant's building for a retail
business and the second floor for a 1,600 square foot residence
does not allow the Appellant a reasonable use. Even if it did,
the application and evidence do not clearly support the
conclusion either that the former use of the property as a motel
would not allow the Appellant a reasonable use, or that the
former use no longer is available to the Appellant for any reason
other than his choice and preference in the use he wanted to make
'.
of his property.
DISPOSITION
Based on the foregoing Findings of Fact and Conclusions of
Law, the appeal of Valentinos Koumoulidis is denied.
DONE AND ORDERED this 13th day of June, 1995, in
Tallahassee, Florida.
J.
He
ni ision of Ad . istrative Hearings
e DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
(~ OJ
V
B
'0
Filed with the Clerk of the
Division of Administrative
Hearings this 13th day of
June, 1995.
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COPIES FURNISHED:
John G. Fatolitis, 'Esquire
1 North Pinellas Avenue
Tarpon Springs, Florida 34689
Robert E. Gregg
1008 Woodruff Avenue
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
o
NOTICE OF RIGHT TO APPEAL
A party who is adversely affected by this final order is
entitled to judicial review pursuant to Section 120.68, Florida
Statutes. Review proceedings are governed by the Florida Rule of
Appellate Procedure. Such proceedings are commenced by filing
one copy of a notice of appeal with the agency clerk of the
Division of Administrative Hearings and a second copy,
accompanied by filing fees prescribed by law, with the District
Court of Appeal, First District, or with the District Court of
Appeal in the appellate district where the party resides.. The
notice of appeal must be filed within 30 days of rendition of the
order to be reviewed.
Final Order, Case No. 95-1359
~&~
.
9
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