03/28/1997 (2)
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HEARING
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APPEALS
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Hearing Officer
Friday, March 28, 1997
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Charles W. and Bre'nda N. Walter' .
Appellants
vs;'
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" 'Olen K. and Pamela A. Marks, Jr., and the City of Clearwater
.. Appellees '
Appellants were appealing 'the Development Code Adjustment Board's decision.
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The DCAB,approvedthe Marks' variance application.
A court reporter attende:d this meeting.
The Final Order (18 pages) & transcript (144 pages) is on paper (until microfilmed) in the .'
Hearing' Office'r minutes notebook:
J"he He'ai'ing Officer reversed the Board's decisio~.
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03/28/97
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, STATE OF FLQRIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CHARLES W~ and'BRENDA N. WALTER,
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Case No. 97-0035
Appellants,
VB.
OLEN K. and PAMELA A. MARKS, JR.,
and the CITY OF CLEARWATER,
Appellees.
FINAL ORDER
~'!administrative hearing was conducted in this proceeding on
March 28, 1997, in Clearwater, Florida, before Daniel Manry,
Administrative Law Judge, Division of Administrative Hearings.
'APPEARANCES
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For Appellants:
Patrick Maguire, Esquire
Law Offices of Patrick Maguire
308 North Belcher Road
Clearwater, Florida 34625
For Appellees,
Olen K.' Marks,
Jr. and Pamela
A. Marks:
E.D. Armstrong, III, Esquire
Johnson, Blakely, Pope, Bokor,
Ruppel and Burns, P.A.
911' Chestnut Street
Post Office Box 1368
Clearwater, Florida 34616-5643
For Appellee,
City of
Clearwater:
Leslie K. Dougall-Sides,
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 decision of Appellee,
City of Clearwater (the llCity"), through its Development Code
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Adjustment Board (the "BoardU), to grant a variance that would
allow a,7.5-foot side setback for a single family residence
proposed by Appellees, Olen K., Jr. and Pamela A. Marks (the
"Marksll), is supported by competent and substantial evidence and
does not depart from the essential requirements of law.
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PRELIMINARY STATEMENT
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On'December 12, 1996, the Board approved the Marks'
application for a variance. Appellants filed a Notice of Appeal
on December 20, 1996. The City requested the Division of
Administrative Hearings (I1DOAHI1) to hear the appeal.
At'the hearing, the record of the Board meeting conducted on,
December 12, 1996, was admitted pursuant to Code of Ordinances
Section 3G.065{S) (C).l The parties presented the testimony of four
witnesses and submitted 13 exhibits for admission in evidence. The
identity of the witnesses and exhibits and the rulings regarding
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each are set forth in the transcript of the hearing filed on July
8, 1997.
The City filed its propo'sed final order (II PFOU) on May 1,
1997. The Marks did not file a PFO. Appellants filed their PFO on
August 4, 1997.
The City objected to Appellants' PFO as untimely. The City's
objection is sustained.
FINDINGS OF FACT
1. The Marks seek to build a single family residence and
detached, four-car garage. The propose~ residence is a two-story
structure.
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2. Both floors of the residence are to be constructed over a
'1 recreational area on the ground floor that includes a swimming
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pool. The residence and recreational area will encompass
approximately 5,000 to 6,000 square feet of floor space.
3.' The proposed construction site'is a lot that is
approximately one acre. It is located in a residential area of the
City known as Harbor Oaks subdivision.
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4. Harbor Oaks is an area of low-density residential land
use. The homes in Harbor' Oaks are generally estate homes that are
'non-conforming structures under the City's land development code.
Most of the homes in the immediate vicinity of the construction
site were built in the late 1920s and early 1930s, including a home
that once occupied the Marks I property and was subsequently razed
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by the previous owners.
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5. The construction site is one of approximately 12 lots
within the block occupied by Appellants and the Marks. Each of the
12 lots on the block are far more similar than they are different.
They share similar topography, size, shape, and physical
surroundings.
6. A bluff runs across the back of the 12 lots and terraces
down toward Clearwater Harbor. The bluff is a unique topographic
feature of the City. Protection of the bluff is one of the goals,
of the Cityls comprehensive plan.
7. Each lot fronts Druid Road to the east and abuts
Clearwater Harbor to the west. The Intercoastal Waterway runs
through the Harbor.
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,8. Like the other 12 lots on this block, the Marks' lot is
long and narrow. It is approximately 94.43-feet wide at its
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eastern boundary on Druid Road. At its western boundary on
Clearwater Harbor, the lot is an equivalent width.
9. ~The northern.boundary of the construction site is
approximately 440-feet long. Its southern boundary is
approximately 430.52-feet long. The southern boundary of the
construction site is the northern boundary of Appellants' lot.
10. The northern boundary of Appellants' lot is approximately
430.52-feet long. The southern boundary is approximately 418-feet
long.
11. Appellants' ,lot is approximately 94.90-feet wide at its
eastern boundary on Druid Road. It is approximately 91.62-feet
wide at its western boundary on Clearwater Harbor.
12. All 12 of the lots on the block are zoned RS 2. RS 2
zoning requires lS-foot side setbacks. The Marks seek a variance
that would allow a side setback of 7.S-feet.2
1. The Board Meetinq
13. The Marks' presented their application and supporting
evidence at the Board's regular meeting conducted on December 12,
1996. The Marks' architect represented them before the Board.
Appellants were represented by their attorney.
14. The Board considered evidence consisting of the unsworn
presentation of its staff report, the sworn testimony of the
representatives for the Marks and the Appellants, a document that
is hearsay and purports to evidence the acquiescence to the
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related issues. A motion to grant the variance was made, seconded,
variance by the Marks' neighbor to the north, and the unsworn
,') statement of Mr. Marks. The Board discussed the evidence and
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and approved by a 4-1 vote; subject to two standard conditions that
are not relevant or material to this proceeding.
15. Appellants appealed the decision of the Board in
accordance with the requirements of Code Sections 36.065(2) and
(3). The matter was referred to DOAR for assignment of an
Administrative Law Judge to hear the appeal.
2. Scope Of Review
16. Unlike an administrative hearing conducted pursuant to
Section 120.57(1), Florida Statutes (1995),3 this is not a de novo
hearing. It is an appellate hearing.
17. Where an administrative tribunal such as DOAR acts in an
c:> appellate capacity, the lower administrative tribunal, the Board in
this case, is the finder of fact. DOAH does not reweigh the
evidence or formulate final agency action. The appellate review is
limited to a determination of whether the Board's findings are
supported by competent and substantial evidence.4
18. The City has created a peculiar procedure for appellate
review of the Board's decision. The City requires the
Administrative Law Judge to determine whether the Board's decision
is supported by competent and substantial evidence before the Board
at the time of its meeting and by additional evidence before the
Administrative Law Judge, even if the additional evidence was not
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before the Board when the Board made its decision. In relevant
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part, Code Section 36.065 (6) (a) provides: t~
Although additional evidence may be brought
before the . . . [judge], the hearing shall not
be deemed a hearing de novo, and the record
before the board shall be incorporated into the
record before the . . . [judge], supplemented
Qy such additional evidence as may be brought
before the . . . [judge]. (emphasis supplied)
'Code Section 36.065(6) (d) limits the Administrative Law
1.9.
Judge to a decision that either affirms or reverses the decision of
the Board. The Administrative Law Judge can impose any reasonable
conditions that the Board could have imposed. However, no other
" ' exception to the requirement to affirm or reverse the Board IS
decision is authorized in the Code.
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20. Code Section 36.065(6) (b) requires the decision of the
Administrative Law Judge to be guided by the City's comprehensive
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plan and established case law. In addition, Code Section
36.065(6) (a) requires the decision of the Administrative Law Judge
to be based on evidence relevant to the guidelines pre~cribed in
the Code for variances. In relevant part, Code Section
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36.065(6) (a) provides:
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The . . . [judge] shall review the record and
testimony presented at the hearing .before the
board and the . . . [judge] relative to the
guidelines for consideration of . . . variances
al.? contained in . . . chapter 45
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21. The guidelines for consideration of variances are
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prescribed in Code Section 45.24. Code Section 45.24 provides:
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. The motion to approve the Marks' applicatio!l for a
variance included a proposed finding that the application and
evidence clearly support a conclusion that all of the guidelines
for variances prescribed in Code Section 45.24 were met. In
relevant part, ,the motion stated:
I move to grant the variance . . . because the
applicant has substantially met all of the
.standards for approval as listed in Section
45.24 . . ;. I feel there are special
..circumstances. I feel that strict application
of the provisions of the Code would deprive the
applicant of the reasonable use of the land or
buildings. I feel that waterfront property and
the type of . . . expensive home being built
that what's proposed is a reasonable use of
. this unique property. I donlt feel that
the variance . . . is based exclusively upon
the applicant's desire for economic or material
gain. And, finally, I don't believe that., if
we grant this variance, it would have a
negative impact; certainly not on the
neighborhood, and I donlt believe on Mr.
Walter's property because of the fact that his
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view would not be impaired. . . . Therefore, I
think we should grant it subject to the two
conditions as recommended by staff.
Tape of Board Meeting on December 12, 1996 (IITaped Record") .
The motion was seconded and approved by 4' to 1 vote.
3. Material Gain And Public Welfare
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23. It is uncontroverted that the variance is not based
exclusively upon ~ desire for economic or other material gain by
the Marks within the meaning of Code Section 45.24(3). The
granting of the variance will not be detrimental to the public
,welfare within the meaning of Code Section 45.24 (4) .'
4. Comprehensive Plan
24. As a threshold matter, the Board made no express finding
that the contested variance is in harmony with the general purpose
and intent of the land development code and comprehensive plan
within the meaning of Code Section 45.24(4). Even if such a
finding were deemed to arise by necessary implication, it is not
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supported by competent and substantial evidence before the Board
and the Administrative Law Judge.
25. One of the purposes of' the land development code and
comprehensive plan is to eliminate non-conforming uses. Neither
the code nor the plan seeks to perpetuate non-conforming uses.
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, , 26.Q Numerous variances have 'historically been granted in
Harbor Oaks. The Board granted the variance, in part, based on
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evidence of similar variances previously given for homes in Harbor
Oaks, including Appellants' home.
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27.
A decision to grant a variance based on variances
"~ previously given perpetuates non-conforming uses. 5 It does not
eliminate them.
28. A decision to grant a variance because previous variances
were granted is not in harmony with the comprehensive plan's goal
of eliminating non-conforming uses. Such a decision is not guided
by the comprehensive plan within the meaning of Code Section
36.065 (6) (b) .
29. The proposed residence will be constructed on the bluff
that runs the 'length of the block. The bluff is a unique
topographic feature of the City. Protection of the bluff is a goal
and objective of the City'S comprehensive plan.
30. The Board made no express finding that construction of
the proposed residence and recreation area on the bluff will
(::) ',harmonize with the goal of the comprehensive plan to protect the
bluff. Even if such a finding were deemed to arise by necessary
implication, it is not supported by competent and substantial
evidence before the Board and the Administrative Law Judge.
31. The primary reason for building the house on the bluff is
the protection of three oak trees in front of the house. The oak
trees are specimen oak trees.
The resoective circumference of each
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tree is 42, 42, and 60 inches.
32.
The evidence before the Board showed:
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There are several reasons for the way we have
situated the house on the piece of property.
There are the three ,large oak trees. One's 42
inches, and the other one1s 42, and then there
is a 60. They sit approximately ~70 feet back
from Druid Road, and then there'S another 54
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inch oak. . . [on adjacent.property] which ie
to the north . . . and its tree limbs go over
. .'. almost the total front of this piece .of
property. . . . All these houses I'm talking
about . . . were developed in the late 20s,
early 30e. There was a house that was on this
piece of property that was tore down, and it
actually was built . . . in front of the oak
trees. .. . . We don't have enough width in the
lot to put the traditional garage that would
face the street in combination with the tree
situation. Sa, what we're doing, we're putting
the garage sideways. It'll be a free standing
building. It is roughly 80 feet back from
Druid Road. And, then the main front of the
house . ~ . is actually going to be built on
,top of that,bluff, and it is about 190 feet
back from the street. . . .
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33. In rebuttal to testimony by Appellants' attorney at the
Board meeting, the Marks' architect testified as follows:
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The trees . . . in the middle of the property
obviously that is something that attracted us
to the property because ,of the beauty of the
trees, but we know the difficulty of building
around them.' . .. [W] e . . . decided to build
the' house on the back'side of the trees because
we didn't want to have a view. . We're
going to have to come right up to the back
. . .'. And, those are obviously very large
trunk trees. So, the idea was to put the house
to the back side so that our view was not
blocked by the trees. But, we want to keep the
trees because obviously it enhances the
property. I mean that is the beauty of the
property; the trees. So, it's either the front
or the back, and we determined to be on the
back. . . .
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Taped Record.
34. The Board granted the variance, in part, to preserve the
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oak trees. That goal is evidenced by the statement of one of the
Board members on the record before the Board voted:
Before I forget, I wanted to do something
unusual . . . and commend [the architect] upon
the imagination of his plans. I think those
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trees are just fantastic, and 11m not a tree
man., 'But, that' 8 a beautiful layout in taking
those trees in . . . .
Taped Record.
35. No evidence shows that the preservation of oak trees is
either an express or implied goal of the City's comprehensive plan
or, if it is, that it takes priority over the express goal of
protecting the bluff. There is no evidence that the decision to
approve a variance for construction on the bluff in order to spare
oak trees is in harmony with the comprehensive plan within the
meaning of Code Section 45.24(4). Such a decision is not guided by
the City'S comprehensive plan within the meaning of Code Section
36.065 (6) (b) .
5. Reasonable Use
36. The Board's finding that strict application of the 15-
foot setback requirement will deprive the applicant of the
reasonable use of the land or buildings, within the meaning of Code
Section 45.24(2), is not supported by competent and substantial
evidence before the Board and the Administrative Law Judge.
Rather, evidence before the Board and the Administrative Law Judge
clearly shows that the Marks can build a house of 5,000 to 6,000
square feet on the property without the contested variance.
37. The Marks can construct a residence with the same
footprint, but without the contested variance, by moving the
residence to the front of their lot and removing the oak trees. If
the Marks do not wish to destroy the trees, they can change the
configuration or size of the proposed residence at its current
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location.' Alternatively, the Marks can build the proposed
residence in,front of the oak trees.
38. At the Board meeting, the attorney for Appellants asked
the architect for the Marks the following question:
Can a 5 to 6,000 square foot home be built on
the applicant's property without the granting
of the side setback variances?
The architect answered:
Yes, the house can be built. But, it canlt
take full utilization of this piece of
property. And, there is a big difference.
Taped Record.
, 39\ Code Section 45.24(2) does not require the evidence to
clearly"show that failure to grant a variance would deprive the
, applicants' of the ful'l utilization of their property. It. requires
the evidence to clearly show that failure to grant a variance would
deprive the applicants of the reasonable use of their property.
'40. There can be a "big difference" between full utilization
and reasonable use. Moving the residence toward Druid Road so that
the foundation, recreation area, and pool are not constructed on
the bluff does not deprive the applicants of the reasonable use of
their p!operty. The applicants can build the identical house with
no variance by eliminating the oak trees. If the applicants choose
to preserve the trees, they can do so by changing the size or
confi~uration of the residence in its current site or by moving the
site in front of the trees. Use of the property that includes such
an arr~y of choices does not deprive the applicants of the
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reasonable use of their property within the meaning of Code .Section
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45.24(2). ,
6. Iniury To Appellants' Property
41. The Board's finding that the granting of'a variance will
not be materially injurious to Appellants' property, within the
meaning of Code Section 45.24(4), is not supported by competent and
substantial evidence before the Board and the Administrative Law
, ,
Judge. The Appellants' representative testified before the Board
that the granting of the variance will have:
. . .' an adverse effect on the Walter's home.
It's down closer to the Bay, and the way it's
situated on the lot, it will cut off a degree
or angle of view to the north. . . .
Especially where this house is proposed to be
constructed, that setback encroaches in the
,light, view, and air issues.
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Taped Record.
42. The Board limited the scope of its inquiry to a
determination of the effect of the variance on the view from,
Appellants' home. The Board did not' inquire into, other adverse
impacts on Appellants' property.
43. Other adverse impacts include those caused by the
towering effect of the proposed construction. The proposed
construction would tower approximately 40 feet over the Appellants'
back yard. A 40-foot tower encompassing 5,000 to 6,000 square feet
of floor space would encroach into the Appellants' reasonable use
of their property including their view, their light, their air, and
their privacy. Moving the proposed construction toward Druid Road
would reduce the encroachment caused by the current configuration
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7. Special circumstances
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without 'depriving the Marks of the reasonable use of their
property.
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44. The Board's finding that there are special circumstances
related to the particular surroundings, shape, or topographical
conditions of the Marks' property that do not generally 'apply to
the land or buildings in the zoning district, within the meaning of
Code Section 45.24(1), is not supported by competent and
substantial evidence. Rather, the record before the Board and the
Administrative Law Judge is, replete with evidence of the
similarities between the construction site and other properties, in
the neighborhood.
'"
."
45. The only special circumstance related to the proposed
construction site are the oak trees'. The City's land development
code makes no provision for the protection of the oak trees.
~ H.
:: .
CONCLUSIONS OF LAW
46. The Division of Administrative Hearings has jurisdiction
over the subject matter and parties. The parties were duly noticed
'..;.,
for the administrative hearing.
('",
, "
47. When an applicant applies to the Board for a variance,
Code Section 45.24 places the burden of proof on the applicant. In
..-c.
relevant part, Code Section 45.24 'provides:
'.,'
A variance shall not be granted unless the
application and evidence . . . clearly support
all of. the . [guidelines for variances]
, .
, ~ ~ '.
When the decision of the Board is appealed, Code section 36.065
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places the burden of proof on the appellant. The appellant may be
either the applicant or an adjacent property owner, depending on
the particular decision appealed.
48.' Appellants have the burden of proof in this proceeding.
Code Section 36.065(6) (c). Appellants must show that the decision
of the Board can not be sustained by the evidence before the Board
and before the Administrative Law Judge, ,or that the decision of
the Board departs from the essential requirements of law. Id.
49. The City's Code does not prescribe the standard of proof
applicable,to an appeal of a Board decision. In the absence of
such a statutorily prescribed standard, Appellants must show by a
preponderance of evidence that the decision of the Board can not be
sustained by competent and substantial evidence or that the
decision departs from the essential requirements of law. Florida
\~ Department of Transportation vs. J.W.C. Company. Inc., 396 So. 2d
778 (Fla. 1st DCA 19B1); Balino va. Department of Health and
Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977) .
Appellants satisfied their burden of proof.
50. The City argues in its PFO that Code Section 36.065(6) (c)
imposes upon the Appellants the burden of showing that the
contested variance does not meet the criteria prescribed in Code
Section 45.24. See,~, City's PFO at 9, paragraphs 22-24. Code
Section 36.065 (6) (c), does not require Appellants to make an
affirmative showing in order to prove the negative of an issue.
~
15
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51. Code Section 36.065(6) (c) requires only that Appellants
show there is no competent and substantial evidence to support the ~
Board's decision or that the Board's decision departs from the
essential elements of law. Appellants do not need to prove, by any
standard of proof, that the proposed project does not satisfy one
or all of the guidelines prescribed in Code Section 45.24.
52. The City also addresses in its PFO the proper weight to
be given to various types of evidence before the Board and before
the Administrative Law Judge. It is not the 'function of the
Administrative 'Law Judge to reweigh the evidence before the Board.
O'Neil VB. Pallet et aI, 257 So. 2d 59, 62 (Fla. 1st DCA 1972).
This is not a de novo hearing. Code Section 36.065(6) (a).
ORDER
:"
Based upon the foregoing Findings of Fact and Conclusions of
Law, it is
.c'"-"
I "\
'l i...~.. ,~., ~
ORDERED that decision of the Board is reversed.
DONE AND ENTERED this 18th day of August, 1997, in
Tallahassee, Leon County, Florida.
t~ - - -~
DAN~k~~~~ ~
Administrative Law JUd9~
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
'(904) 488-9675 SUNCOM 278-9675
Fax Filing (904) 921-6847
Filed with the Clerk of the
Division of Administrative Hearings
this 18th day of August, 1997.
16
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ENDNOTES
1/ Unless otherwise stated, all references to Sections in the Code
of Ordinances are to llCode Section. II
\e
2/ The Marks actually seek three variances. Variance 1 is a
variance for the lot width. RS 2 zoning requires a minimum lot
width of 100 feet. Variance 2 is for the side setbacks. Variance
3 is for a wall height of six feet. Appellants do not contest
Variance lor 3 or a variance for the side setback requirement on
the Marks' northern boundary. The only variance contested by
Appellants is the variance for a side setback of 7.5 feet on the
Marks" southern boundary with Appellants' property.
3/ All references to, chapter and section are to Florida Statutes
(1995) unless otherwise stated.
4/ O'Neil vs. Pallet et aI, 257 So. 2d 59, 61 (Fla. 1st DCA 3.972) .
5/ The unsworn presentation of the staff report and
recommendations to the Board based its recommendation to grant the
variance, in part, upon a finding in the'report that the variance
was consis'tent wi th the general development character of Harbor
Oaks. Harbor Oaks is generally characterized by development'
comprised of non-conforming uses. As the staff member who
presented the report stated:
In looking at the general developed character of .
Harbor Oaks, this doesn't seem to be inconsistent.
You could observe numerous non-conformities with
regard to the setback requirements.
Taped Record.
'!
COPIES FURNISHED:
Cynthia Goudeau, City Clerk
City of Clearwater
Post Office Box 4748
Clearwater,'Florida 34618-4748
Patrick Maguire, Esquire
Law Offices of Patrick Maguire
308 North Belcher Road
,'Clearwater, Florida 34625
1.7
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91J.' Chestnut street.
'Post Office Box J.368
. ,,'Clearwater, Florlda, 34616-5643
("
Les'lie K."Dougall-Sides
.' Assistarit, City Attorriey'
cityofCl~arwater
Post'Off1ce Box 4748
Clearwater, Florida' 34618-4748
',1 '
NOTICEOF'RIGHT TO JUDICIAL REVIEW
A'part;.y who'is, adversely affected ,by this Fin21;l,Order is entitled
..' 'to','>judicial 'review e' by 'common law certiorari review ,in" circuit "
'> 'court'~ See Code Section 36.065 (6) (g) .
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LAW OFFICE OF PATRICK MAGUIRE,
16 BY: PATRICK MAGUIRE, ESQUIRE
Attorneys for the Appellant
17
JOHNSON, BLAKELY, POPE, BOKOR,
18 RUPPEL & BURNS, P.A.
BY: E. D. ARMSTRONG III, ESQUIRE
19 Attorneys for the Appellee, Marks
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CASE NO. 97-0035
2
'3
.... ---- ---~------------- ~---
CHARLES W. & BRENDA N. WALTER,
4
Appellant,
5
ORtGINA~
vs.
6
7
OLEN K..& PAMELA A. MARKS, JR.,
and the CITY OF CLEARWATER,
8
Appellees.
-----------------~--------..----
9
* * * * *
MARCH 28, 1997
* * * * *
Transcript in the above matter taken at
Clearwater Main Library, Adler Room, 100 North Osceola
Avenue, Clearwater, Florida, commencing at 10:00 a.m.
A P PEA RAN C E S:
DANIEL MANRY, ADMINISTRATIVE LAW JUDGE
,.r.
20 ASSISTANT CITY ATTORNEY
BY: LESLIE K. DOUGALL-SIDES, ESQUIRE
21 Attorneys' for the Appellee, City of Clearwater
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D & D REPORTING SERVICE
915 CHESTNUT STREET
CLEARWATER, FL
(813) 468-2002
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THE COURT:
This is the formal hearing in
2
2 Charles W. and Brenda Ann Walker versus Olen K. And
3 Pamela A. Marks and the City of Clearwater division of
4 Administrative Hearings case number 97-0035.
5' The issues for determination in the proceeding
6' are 'whether the decisions of the Development Code
.7 ~~justment were grantin~ the appli~ation for variance
8 of the Marks.
9
My name is Daniel Manry.
I'm the
I:,
10 administrative law judge assigned to conduct this
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'proceeding.
State your appearance beginning with
12 petitioner.
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MR. MAGUIRE:
Patrick Maguire,
14 M-A-G-U-I-R-E, representing Mr. and Mrs.
, .
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15 Walter.
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,MR. ARMSTRONG:
Ed Armstrong representing
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17 Mr. and Mrs. Marks.
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MS. DOUGALL-SIDES:
Leslie K.
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19 Dougall-Sides, D-O-U-G-A-L-L-S-I-D-E-S,
20 representing the City of Clearwater.
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21
THE COURT: Are the 'Marks and the City of
'"
22 Clearwater aligned?
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MR. ARMSTRONG:
Yes, your Honor.
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24
THE COURT:
In this proceeding?
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25
MR. ARMSTRONG:
Yes, sir.
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THE COURT: Are you calling identical
2 witnesses and sutmitting identical exhibits?
3
MR. ARMSTRONG:
No, your Honor.
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MS. DOUGALL-SIDES: No, your Honor.
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5
THE COURT: Are you going,to have
6 direct ~-
7
MR. ARMSTRONG:
Yes.
8
THE COURT: -- of the same witnesses?
9
MR. ARMSTRONG:
No, maybe to a very
10 limited extent.
11
THE COURT: Okay. Mr. Armstrong, will
~.
12 you get to your case in chief? Are you going
J
13
to p~oceed first?
14
MR. ARMSTRONG: Actually,
15
Ms. ,Doug.ll-Sides is going to proceed fir~t
16 and I was going to follow her, if that's
17 acceptable.
,I'
18
THE COURT: And the same thing on cross
19 of petitioner as well; is that correct?
MS. DOUGALL-SIDES: Yes, same thing.
20
, ,
21
TH~ COURT: Are you going to proceed
22 first off on your cross-examination of
I,
23 petit~oner's witnesses and then Mr. Armstrong
24 will have further cross to the extent it's not
o
25
cumulative of your cross? And then on direct
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of your witnesses, Mr. Armstrong, you'll
proceed first. Mr. Armstrong will have
further direct of your witnesses to the extent
it's not cumulative?
MR. ARMSTRONG: Yes, sir.
MS. DOUGALL-SIDES: Yes, sir.
THE COURT: will there be a transcript?
MS. DOUGALL-SIDES: Yes, your Honor, the
City will be ordering the transcript. '
THE COURT: Are any of the exhibits in
this proceeding uncontested?
MR. MAGUIRE: We have not exchanged
exhibits, your Honor. I think we've
approached this from a head-on collision
course at this point. So we have some things
we'll probably have to work out this morning.
THE COURT: Is either side calling
experts?
MS. DOUGALL-SIDES: Yes, your Honor.
MR. MAGUIRE: No.
MR. ARMSTRONG: Yes.
THE COURT: Have you had a chance to
review the qualifications of the expert?
MR. ARMSTRONG: No, I have not. See, we
don't have any stipulations to that either.
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MR. MAGUIRE:
Your Honor, I think one of
2 the things we have a problem with is whether
3 or not this is really a De Novo type of
4 hearing or whether or not we're looking 'at the
5 record that was before the' Development Code
6 Adjustment Board to support their actions.
7 ,1 think there is information that might
8 be helpful to the administrative law judge as
~
25
MR. MAGUIRE:
The'City codes.
And all
'9'
far as going forward.
But the real issue as
10 far as we're concerned is 'whether or not the
11 action of the Board was supported by
12
competent, substantial evidence.
And we're
o
13
looking more to the record in these
14 proceedings than to the De Novo proceeding.
15
THE COURT:
Did you have any supporting'
16 authority for the Division of Administrative
17 Hearings having reviewed authority as opposed
18 to authority to conduct another hearing? '
19
MR. MAGUIRE:
There's nothing clearly
. \
20 that I've seen in the City regs, but an appeal
21 is the way it's titled to the division of
22 administrative hearings.
23
THE COURT:
You say it/s still an appeal
24
in the City?
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zoning matters that go before a board or a
2 commission are a quasi-judicial proceeding.
3 And the test is whether or not there is
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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4
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competent, substantial evidence and whether or
not that action should be supported.
I think what we end up in these
proceedings sometimes is something of a hybrid
where we're looking'at what they did.
Was
their action supported? And sometimes I've
,
seen additional information, come in or be
presented in the informal nature of these
proceedings.
But really where we are today is
did the administrative body have before it
~ompetent, substantial evidence upon which to
make their findings and issue the variance.
The last time I appeared before, well,
Mr. Johnston in an administrative proceeding,
and that's exactly the tenor that the hearing
took and that is what his findings 'were based
up~n is whether or not the action of that,
board was supported by competent, substantial
evidence.
That's the test he applied.
MS. DOUGALL-SIDES:
Now, if I could
address that, Judge.
The section of the code
36.065 which deals with the standard of review
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is titled appeals to hearing officer.
2 Subsection 6-A of that section makes clear
3 that it is, I agree with Mr. Maguire, sort of
4, hybrid proceedings. And it says the hearing
5 officer shall review the record and testimony
6 presented at the hearing before the Board and
7 the hearing officer relative to the guidelines
8
for consideration of variances as contained in
9 the City code.
10
And then it goes on to say, although
11 additional evidence may be brought before the
12
13
hearing officer, the hearing shall not be
deemed a hearing De Novo, and the record
14 before the Board shall be incorporated into
15 the record before the hearing officer
16 supplemented by such additional evidence that
17 may be brought before the hearing officer.
18
So the City would argue there is an
19 opportunity to bring forth additional
20
evidence.
My one witness would be a witness
7
21 who did appear at the DCAB hearing below and I
22 believe Mr. Armstrong's witness was also
23, present.
24
25
MR. ARMSTRONG:
Likewise.
And he
testified at that hearing as well.
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MS. DOUGALL-SIDES:
So it is sort of a
2
hybrid proceeding that I think you're to
3 examine the record below, but in addition,
4 anything that comes forth today.
5
THE COURT: And do I have recommended
6 order ,authority or final order authority?
7
MS. DOUGALL-SIDES:
You have final order
8 authority as I understand in these
9
proceedings. And the parties have, in
10 proceedings I'm familiar with with the City,
11
th~t I have represented the City in here,
12 we've submitted proposed final order to the
13
administrative law judge.
And the final order
14 has been issued.
15
So this is an appellate
THE COURT:
16 proceeding in which I can evidence additional
17 evidence?
18
MR. MAGUIRE:
It would appear to be the
19 case.
20
MR. ARMSTRONG:
We don't disagree with
21 that.
22
THE COURT: As previous ordered,
23 Mr. Johnston happened to state in the
24 authority for his appellate review.
25
MR. MAGUIRE:
We had submitted proposed
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orders, findings of fact.
The memorandum of
9
/
2
law contained much of the citation of
3
authority that I'll be providing you today.
And he did basically go through and state that
, '
4
5
his finding was based upon the fact that there
6
was no competent, substantial evidence to
7
support a particular finding for the issuance
8
of the variance, and, theref9re, the variance
"
, '
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9
was vacated and denied.
10
THE COURT:
Is this a variance under, you
,.1'1
know, there's a lot of different meanings to
12
the term variance.
If when you use the term
:)
13
variance under Chapter 120 as it's currentl~
14
structured, there's provision for a variance
15
but there are also variances in local zoning
16
matters.
This isn't a new Chapter 120
17
variance.
18
MR. MAGUIRE:
No, no, you're right.
The
19
evidentiary hearing was held before the Board,
20
and that's what's under review.
This is not a
21
first time grant to deny the variance initial
22
,
application.
This is review of the
23
disposition of the application by the Board.
24
MR. ARMSTRONG:
The application was for a
,;" "~
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25
variance to the code dealing with setback
~
1
issues and things of that nature.
_ c, 'I r ~,.
2
THE COURT:
I don't want to belabor this
'I,
3
much longer, but it mayor may not affect
4
evidentiary rulings in the course of the
5
hearing.
But in any 120571 proceeding, we
'6
conduct the issue it's always a De Novo
7
hearing, and it's always to determine whether
8
to review proposed agency action and to
9
formulate final agency action. And I'm not
i
sure if I'm allowed to admit additional
(: .
10
11
evidence.
12
MR. MAGUIRE:
Again, I think this is
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13
just a hybrid that the code designates the
14
division of the administrative hearings as the
"
15
supplier of the judge, and there's not really
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a provision that we're under in Chapter 120
. :~. I,
17
from you.
We're not under the administrative
t' ~,
18
procedure act.
Technically, we're under the
, .
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19
Clearwater code.
And I really think the code
,20
is trying to say if there's any additional
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information, that we'll address the
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retribution of the cause, the trier of fact,
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and it probably should come in.
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THE COURT:
Well, the reason I'm spending
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so much time on this is that for the purposes
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of ruling of evidentiary matters.
It seems to
2
me that that creates the possibility for
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tension between a review of whether or not
4 there was competent and substantial evidence
5 'for the local agency to propose the action it
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proposed, or whether or not this, quote,
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additional evidence to supplement the record
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provides the competent and substantial
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evidence necessary to support and propose
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agency action.
11
Our position on ~hat
MR. MAGUIRE:
12
particular point and that very specific issue
o
13
is that while there might be things that come
14 forward to assist the hearing officer
15 understanding the case or the position of the
16 parties, that the review that is recurring
17 here today is to determine whether or not the
18 action of the particular Board was supported
19
by competent, substantial evidence and that no
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additional evidence should come forth to now
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validate that action. \ In other words, it's
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action that they took at the time and that's
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what our notice of appeal is a change to their
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action at the time.
,10
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THE, COURT:
So your position is the
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definition of, quote, additional evidence, end
quote, is limited to additional evidence which
explains or supplements previous evidence but
does not create new evidence?
MR. MAGUIRE:
Correct.
THE COURT:
Mr. Armstrong, what is your
posftion on that issue?
MR. ARMSTRONG:
Let me defer for a
moment to Ms. Dougall-Sides.
MS. DOUGALL-SIDES:
The' subsection C of
the section I previously referred to states
the purpose shall be upon the appellant that'
the decision of the Board cannot be sustained
by the evidence, before the Board and before
the hearing officer.
Now, we've argued, and
in past cases, that that's sort of
substantial, competent evidence standard
although it doesn't set that forth
specifically.
But it says the evidence before
the Board and before the hearing officer or
that the decision of the Board departs from
the essential requirements of law.
So the code does allow the opportunity
for either party to bring forward additional
evidence.
Of course, it would be up to your
12
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Honor to include any irrelevant evidence or
2
cumulative evidence or so forth.
But our
3
position would be that we have the right to
4
put on --
5
New evidence.
THE COURT:
'6
MS. DOUGALL-SIDES:
New evidence which"
7
frankly, is similar to what I hear Mr. Maguire
,8
characterizing as supplementing what went on
:, '.}
at the hearing.
I don't think we have
9
10
anything new to present today that would have
11
not been touched upon at the hearing below.
12
Well, I guess if I'm not
THE COURT:
'~
13
going to hear new evidence, I presume that
14
we're going to take in the record of the
15
previous proceeding.
There's no dispute about
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the admissibility of that?
"
'17
MR. MAGUIRE: No.
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MR. ARMSTRONG: No.
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That's a fairly administerial
19
THE COURT:
" '
function.
And then the only evidence I'm
20
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going to hear today is not -- well, possibly
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not.
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was not heard at the original proceeding but.
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which is not new, but which merely explains
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for or supplements the previous record.
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that correct, Ms. Dougall-Sides?
2
MS. DOUGALL-SIDES:
Actually, the code
3
goes through a -- I don't know if you have a
4
copy of the section I'm referring to.
But
5
there is a subsection which addresses conduct
6
of the hearing, and there's orders of
7
presentation at the hearing, which includes
receipt of the records below as the first
8
9
item.
Then it goes on to provide for
10
appellant'~ case, respondent's case,
11
summations, and so forth, and gives the
12
hearing officer the authority to determine the
13
ability and relevance of all materials,
14
exhibits, and testimony, and to exclude
lS
irrelevant, immaterial, or repetitious
16 matter.
17 So that order of presentation seems to
18 assume the ability to put on witnesses and
19 offer exhibits by both sides.
'20
THE COURT: Okay.
MR. MAGUIRE: And I would say that that
21
22
appears to me to be a nature of oral argument
23
presentation, that argumentative presentation
24
as addressing the records below, but, again,
2S
with the ability of parties to supplement and,
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if nothing else, educate the hearing officer
2to the particulars of the case to help that
3 hearing officer make a decision and possibly
4 have a better understanding of the evidence
5 and the record that was presented below.
6
THE COURT: Okay.
Are there any other
7
preliminary matters, any witness scheduling
8
problems or anything like that that we need to
9
cover befor~ we begin?
10
Does petitioner wish to make opening
, ~ L
11
statements -- appellant, excuse me.
12
MR. MAGUIRE:
Yes, your Honor.
May it
<J'
13
please the court, I would like to proceed
14
along the lines of argument.
That's the
15 problem I have with the case and the position
16 to present, which has some demonstrative
17, exhibits, and it is in the nature of an
18
opening statement and an oral argument so that
'19
I can either go forward with the case.
I
20
don't need to necessari~y make an opening
" >
21
statement, because that's going to be pretty
22
much the presentation of the case.
23
'THE COURT:
Does appellant,
:,1
, .
24'
Ms. Dougall-Sides, do you wish to make opening
"0
25.
statements at this time?
16
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1
MS. DOUGALL-SIDES:
Yes, your Honor,
2
briefly.
" ,
3
THE COURT:
Go ahead.
.1
4
MS. DOUGALL-SIDES:
It's important to
5
note that'the appellant contests here only a
6
portion of the variances that were granted by
7
the code adjustment board.
The only variances
8 at issue today are the north and south side
:".'
9, setback variances from the property line.
, ,
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10 Under code section 36.065, which you've
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11 just been discussing, there is a limited
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12
review contemplated.
The burden of proof is'
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on the appel~ants or petitioners here.
And
I,',
14, the question is whether the evidence below and
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15 presented today supported the decision of the
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16 Board.
:....
17 This really is a classic case in that it
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18 involves an unusually configured lot of
19
property.
The lot that you'll be hearing
~'...
20 testimony today on, the particular lots in
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21 ,question are waterfront lots and they are
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22 unusually shaped in that they're sort of long
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and thin compared to the standard lot.
These
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physical characteristics resulted in this case
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in a proposed placement of structures on the
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17
~roperty which w~uld be closer to the lot
lines than is technically allowed, and thus
resulting in the variance application by the
property.
Other ,property owners in this same block
of'lots, including the appellants here, had
obtained similar variances in the past, and in
some cases exceeding the amount of variance
which was granted in this case in terms of
number of feet. The other zoning district, in
the Harbor Oaks area, which is the
neighborhood we're concerned with here, RS-6
as opposed to the RS-2 zoning district
involved here has a required side setback of
only seven feet versus say a larger setback
here.
The City staff did start this particular
variance application. Mr. Richter, who the
City will have testify, prepared and issued a
staff report to the Board which was supportive
of the variance granted here, resulted in
ultimately 7.5 foot setbacks from the property
line.
This was not a case in which the Board
authorized the property owner to build right
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on the lot line or directly adjacent to the
2 neighbor's structures.
3
There are existing structures
THE COURT:
4 on both sides?
,5
MS. DOUGALL-SIDES:
Yes, your Honor.
~
'MR. ARMSTRONG: No structures.'
7
MS. DOUGALL-SIDES:
Well, I believe
8
'there are structures. Are you referring to
9 the neighboring lots of this lot?
10
MR. ARMSTRONG: Or their subject lot?
11
THE COURT: You said --
12
MS. DOUGALL-SIDES:
I believe there are
13
structures on the lots to each side of this '
14 lot.
15"
THE COURT:
Okay.
16
MR. ARMSTRONG:
The subject property is
17 vacant.
18
MS. DOUGALL-SIDES:
Senior planner
Yes.
19 John Richter 'will testify that in his opinion,
20 the application variance met the variance
21 criteria contained in the code.
22 Also in the record are two letters from
23 neighboring property owners approving of the
24
variances.
I think it's important to note --
25
,to consider the appellant's objections, the
18
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appellants were represented by counsel,
Mr. Maguire, through him at the hearing and
considered carefully the objections. There
were no other objectors other than these
appellants.
The City would argue that the evidence
will demonstrate that competent, substantial
evidence of record, including the evidence to
be put on today, supported the Development
Code Adjustment Board's decision to approve
the side setback variances.
THE COURT: Thank you. Mr. Armstrong.
MR. ARMSTRONG: Yes, just briefly., My
clients, Marks, bought the property
approximately a year ago. And their intent
was and remains to build a single family home
for thei.r own personal use' on the subject
property. They applied for and received a
variance from Development Code Adjustment
Board.
I think it's important to note that at
that hearing there were two professionals in
attendance, two experienced in their field,
Mr. Richter, Mr. Paliko was the architect for
my client, was the other expert. They both
19
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~
1
testified that in their professional opinion
2
the applicant met the standard of approval.
3
The board of adjustment discussed the
4
standard of approval.
They discussed the
5
argument raised by Mr. Maguire at that
6
hearing, and they voted four to one to approve
, '
"
7
the variance application.
We believe that
8
particularly since the only evidence, the only
9
p'rofessional expert evidence in the record
10
supports the granting of the variance, that
11
this variance should be supported on appeal
, I
12 present before you.
,,~)
" 13
Thank you.
THE COURT:
Appellant, call
14 your first witness.
15
MR. MAGUIRE:
We're not going to be
I ~ ~ I
calling our witnesses at this point.
16
We're
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going to present the argument, with the
17
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Court's permission, establishing our position
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19
and going through the record and basically our
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case.
And Mr. Walter would like to address
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certain things, but I think we'll pretty much
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cover everything in our presentation of our
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23
approach to the record.
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And, of course, at this time we would
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move that the record be entered into evidence
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which would include the machine and the audio
tape that's already been provided to the
administrator~ division of administrative
hearings.
THE COURT:
Any objection to the
admissibility of Appellant's One?
MS. DOUGALL-SIDES:
No, your Honor.
Just
to clarify, our office had forwarded a letter
dated December 31, 1996 enclosing certain
items for the administrative records.
Items
one through seven are listed in that letter.
THE COURT:
For the record, that is
notice' of appeal dated December 20, 1996 from
Mr. Maguire, public hearing notice December
1996, exhibit from December 12, , 96 involving
Board minutes, variance applications,
documents and map, three variance
transmfttals~ variance staff report drawing,
,the signatures ,and support.
Those are the
items you're referring to?
MS. DOUGALL-SIDES:
Yes, that's correct.
In addition to those items, the city
clerk department had received two, letters from
apparently property owners in the
neighborhood.
Our office had forwarded those
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22
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letters to DOAH for inclusion in the' record.
2 I also have provided a copy to Mr. Maguire and
3 Mr. Armstrong. Those would be letters first
4 dated March 20, 1997 from Ronald J. Pollack,
5 P-O-L-L-A-C-K, and the second dated March 19,
6 1997 from George E. Cousin, C-O-U-S-I-N, and
7
Rita M. Cousin.
These letters were apparently
8 received by ,the city clerk's office in
9 response to a public hearing notice which was
10 is~ued by the clerk. We would ask' that those
1~ be included in the report.
12
THE COURT:
I don't have those letters.
~)
13
MS. DOUGALL-SIDES:
I can provide you
14
with a copy.
They were forwarded to the clerk
~5 of the division.
16
THE COURT:
Okay. Are these going to be
17 Appellee'S city Exhibit 8 and 9,
18 Ms. Dougall-Sides?
19
MS. DOUGALL-SIDES: Well, I don't know
20 that I'd characterize them as City's
21
exhibits.
We would request that they were'
22 ,within the
23
THE COURT: Well, are you submitting them
24 for admission in evidence?
~'-.J
25
MS. DOUGALL-SIDES:
I can, yes.
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THE COURT: Well, I'm not asking you to.
2
I'm asking if you are.
I mean, you just gave
3
me copies of them.
You're not submitting them
4 for admission?
5
MS. DOUGALL-SIDES: Well, I will submit
6'
them, unless they are placed in the record by
7
your Honor at this time.
,
I will submit.
8
THE COURT: Well, I can't submit them.
9
MS. DOUGALL-SIDES: All right.
Then I
10 will submit them.
11
THE COURT:
City's Eight and Nine.
12 City's Eight will be the March 20 letter from
13
Mr. Pollack.
City's Nine will be the March 19
14 letter from Cousins. Any objection, Mr.
15 Maguire?
16
MR. MAGUIRE:
I believe that those
17 particular documents, I'm not going to object
18 to them, because I think that is the type of
19
information .that contemplates.
Likewise, we
20 have a letter addressed to another property
21 owner who did have an opportunity to mail to
22 the clerk last week, but we will be submitting
23 also.
24
So this is the type of information that
25
we expect to introduce. As a matter of fact,
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I have a letter I'd like to introduce now at
2
this time.
3
THE COURT:
There being no objections to
4
the City's Eight and Nine, Ci~y's Eight and
5
Nine as identified on the record, they're
6
admitted in evidence without objection.
7
Before I get to that, are you submitting
8
City's One through Seven for admission in
9
evidence at this time, Ms. Dougall-Sides?
10
MS. DOUGALL-SIDES:
Well, I will if those
11
are to be City's.
I think the procedure
12
contemplates the ALJ receiving of records at
13
the beginning of the hearing, so that's ,why I
was not characterizing them City'S exhibits,
14
15
per se but as part of the report.
If we wish
16
to characterize them as City's exhibits,
17
that's fine.
There is a procedure for receipt
18
of the record.
19
Well, that has been moved
THE COURT:
20
in.
We were at that point with Mr. Maguire,
21 and you wanted to point out to me that you had
22 already sent items' one through seven to me.
23 And was the purpose of that to point out tha~
24
Appellant 1 has already
that I have copies
25
of Appellant's One?
24
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MR. MAGUIRE: Possibly I confused the
issue by making the motion. I think she's
correct. The report that you have before you
has already been submitted to DOAH, and that
is the record that we are appealing today.
That's really what we are proceeding on at
this point, other than new matters that we
might supplement at this time.
So I would not say that I really actually
was moving to introduce that particular
record, because it is already part of
proceeding.
THE COURT: All right.
MR. MAGUIRE: So let me 'withdraw my
motion to introduce it, and let me just
address my case to the record at this time.
THE COURT: Well, let me make it -- I
want to make something clear to you. Because
you sent 'something to DOAH doesn't mean it's
in evidence.
MS. DOUGALL-SIDES: I understand that,
sir. I have sort of a dual function in this.
I represent the'party, the Board here, but I
also am in another department. City clerk
keeps the administrative records for the
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City's purposes.
So when I forwarded the two
2 letters that the clerk had received to the
3 division, I was attempting to notify the
4
division of additional documents which have
5 been submitted, I assumed, for the record to
6 supplement items one through seven of record
7
evidence.
I was not submitting them as a
8 party as exhibits.
'9
THE COURT: All right. Now, in addition
10 to the items introduced, your letter of
11 December 31 in the back of the file that I
12
have, there's also an audiotape.
And I don't
13
see it referred to in your cover letter:
14
That is correct.
It
MS. DOUGALL-SIDES:
15 is referred to in the first paragraph directed
'16
to Judge York.
Enclosed are two copies of the
17 'following file ,papers together with one
18'
verbatim cassette recording.
Perhaps that
19 recording should be item eight.
20
THE COURT:
So pursuant to the agreement
'21 'of parties, the verbatim cassette recording of
22 the proceeding, items one through seven, and
23 items formerly identified as City'S Eight and
24 Nine are admitted in evidence in this
25 '
proceeding.
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MR. MAGUIRE:
Corr'ect.
27
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2
THE COURT:
Mr. Maguire.
3
MR. MAGUIRE:
Thank you, your Honor.
4
Your Honor~ I'd like to go over some
5
aerial photographs that I think will help
6
orient you to the problem and the nature of
"
7
the problem.
Ms. Dougall-Sides has correctly
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8 stated that there were three zoning variances
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asked for.
The lot was or is 440 feet long,
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the Marks lot, and a width of ninety-four
11
point almost nine feet.
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The first variance they asked for was a
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classic variance request for a lot width
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variance of just slightly over five feet.
Obviously denying them the ability -- denying
14
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that variance would have prevented them from
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building a home on this lot.
We did not
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object to that particular variance request.
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It's a classic variance request.
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There was a request for a height of a
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wall to be increased by 3.6 feet.
And we had
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no objection to that either.
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Mr. Walter owns the home and the property
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immediately south of the Marks property.
they did ask for, though, and what we did
.
what
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object to was a side setback variance of seven
28
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and a half feet.
The code requires a 15 foot
3
setback.
And while staff recommendation
4 pursuant to the application was to allow a
5 seven and a half foot side setback v~riance,
6 there was one very, very telling piece of
7 'evidence that came forth at the hearing.
8
This lot and this property, again, it's
9
440 feet by 94.9 feet.
Mr. Paliko, if this
10
were a typical civil procedure, I'd be here on
,11
a motion for summary judgment, because the
12
nature of a request for a variance is that the
13
denial of the variance would result in client
,14
or the individual not being able to make a
15
reasonable use of the property.
16
I think the organic law of Florida
17
provides that prerequisites to the front can
18'
be a hardship.
Zoning variance is at pres~nt
19
of an exceptional and unique hardship to the
20
individual landowner, unique to that parcel,
21
and not shared by other property owners in the
22
area.
23
Further, a variance which permits a use
24
not authorized hy existing zone restrictions
J
25
for a neighborhood is not justified unless
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29
1
reasonable use can be made of the land without
2
the variance.
And I've got a memorandum of
3
law that I will provide the Court at the end
4
that's Burnand (phon) versus Town Counsel of
5
Palm Beach.
6
Further, hardship may not be found unless
7
there is a showing -- that under present
8
showing no reasonable use can be made of the
9 property.
10
As you'll see, Harbor Oaks in Clearwater
11
is'a historic preservation district.
It's,a
12
unit of larger homes that were built in the
13
teens, the 20s, and the '308.
The lots are
14
various widths and dimensions.
But the point
15 is, there's nothing unusual about this
16 property that would warrant the side setback
17 variance.
18 You will see on the record and listen to
19 the audiotape, a question' was asked of the
20
applicant's architect.
And he had stated in
21 his presentation that the Marks desired to
22 build a 5 to 6,000 square foot home on the
23
property.
On cross-examination I only asked
24
one question.
And I asked Mr. Paliko, their
25
architect, can a 5 to 6,000 square foot home
~
1
be built on this property without the granting
,
. >~, ,', '
2
of the side setback variance.
He said yes.
3 He also put a caveat in, but that wouldn't
4 allow them the optimal use of the property.
5 No one's entitled to the optimal use of their
6
property.
They are entitled to their
7
reasonable use.
8
It's our position that at the hearing,
9
based on the evidence, one, that there were no
,;
10
special circumstances related to this property
"
1J.
and more side setback variances.
That the
12
strict application of a 15-foot side setback
-),
'.
13
would not have deprived the applicant of the
14
reasonable use of their land or their
15
property.
And, also, that the granting of the
J.6
variance is not in harmony with the general
17 purpose and intent of a land development code
18 ,of the City of Clearwater.
19 What I would like to show you are aerial
20,
photographs that I have.
And these are more
21
for demonstrative purposes.
22
If you notice on the first page, this is
23
a street side view of the three lots that are
24
contiguous in Harbor Oaks.
l>1r. Wal ter, my
....)
25
client, on the south, the Marks' property in
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2
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7
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9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
the center, and the Heye property on the north
side. If you'll notice the orientation of the
Walter's and Heye's property, there is a line
that can be drawn almost south to north along
the front of these properties, what would be
the,west side here.
If you flip over to the next side, you'll
see the Heye, Marks, and Walter properties.
Notice on the Walter property the steps
leading down towards the water from the house
to the terrace, another set of stairs leading
down the lower terrace.
The City's comprehensive land use plan
identifies one strategically unique
topographic feature of the City of Clearwater,
and it's called the bluff. You'll see from
the memorandum that the comprehensive land use
plan identifies the bluff as running from the
southern most boundary of the site to the
northern most. It is a u~ique feature which
is to be preserved.
There was a historic preservation survey
done' of Harbor Oaks, and I would attach a copy
of the front page. And on the next page, from
page 52 of that book, there is a key at the
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bottom that shows the construction of homes
2
between 1910 and 1940 in the Harbor Oaks
3
historic district.
You also see that we've
4
added a key which shows where the proposed
5
construction of the Marks house is.
And from
6
the record, from the application, all' this is
7
developed basically from what's in the
8
record.
This is not something that's not
9
verified from the applicant's drawings, their
building plans, their s'er~ice, and so on. '
10
1'1
If you'll' note that where the Marks house
12
would be in relationship to the Walter home
13
and the Heye's home, it would be west.
We
14
believe the records would show that the house
15
would be built approximately 80 feet, 70 to 80
16
feet west of the wall towards the Heye
17
residence and in what amounts to the face of
18
the bluff.
19
The Walter house, and the Heye's house
,20
are built on the top of the bluff.
The bluff
21
slopes down at this point.
And where the
22
Marks proposed to build their home is in the
23
face of the bluff.
24
The City'S comprehensive land use plan
25,
'section 22.2.9 LDC provides as follows:
'\
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33
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Protect through amendments to the land
2 development code Clearwater Bayfront area from
3 undesirable land uses and further instruction,
4 encroachment, and destruction of the bluff bay
,5 front shoreline.
6
Section 22.4,.5 in the land development
? code defines the bluff, the bluff geographic
8 area located-, on the bay front from the
9 southern most city limits to the northern most
:,
10
city limits is a uniqu~ topographic feature
11 which should be preserved. We believe that
,12 just simply on the basis in the Clearwater
'"''')'
, '
''''
13
land development code has four criteria set
14 forth in section 45.24 that there shall be,
15 once there are special circumstances related
16 to the particular physical surrounding, shape,
17 or topographical condition applicable to the
18 land and such cir.cumstances are peculiar to
19 such land or building and do not apply
20 generally to the land or building in the
21 applicable zone district.
22 Throughout this area there are narrow
23 waterfront lots, there's a bluff that runs
24
through it.
There's nothing unique about this
::J
property.
It just happens to be a little
25
~
~
3
I
,
4
1
2
5
6
7
8
9
longer than it is narrow.
But that
circumstance has to be such that it would
prevent someone from building a home on the
property.
And that's simply not the case.
I think probably one of the most concise
statements was set forth in the city Coral
Gables versus Zirey (phon), 383 section 1127.
Hardships warranting a granting of a variance
are classically considered to be something in
10, the nature of an irregular shape or other
11
12
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14
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peculiar physical characteristic of a
particular parcel which would justify
requirement of a variance.
If a 5 to 6,000 square foot home could be
built on the lot, that is certainly a
reasonable use by anyone's standard.
Our
particular problem is that where this house is
proposed to be constructed being west of the
wall and in the face of the bluff, will create
a towering effect on his lower property.
And
if'he'sgoing to build west, and he has the
abso~ute right.to build as far west as the
zoning code will allow him, he can build to
the west if he is going to build on the way so
as to have as little encroachment as possible
34
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on the property.
2
I think there is a fairly graphic
3
depiction of the property, I'll go north to
4
south.
This is Mr. Walter's home, which you
5
see in the area.
This is the Heye residence.
6
This is the proposed structure.
And this is
7 where the setbacks had been expanded to allow
8 that.
9 The' other properties all through this
10
area are setback on the top of the bluff.
11
This particular proposed construction is in
12
the face of and west of everyone.
In North
13
,Carolina it would be called a cliff hanger,
14
but we don't really have too many cliffs.
15
We've got a bluff.
So what's happening is by
16
allowing him to come out, if he's going 'to
17
come out here, he can do that, but he should
18
not be allowed to encroach into the setbacks
19
because the impact of this particular
20
structure is inconsistent with the code's
21
provision to preserve the bluff and to
.22
preserve the character of this neighborhood.
23
This is almost 80 feet beyond what would be
24
the normal building.
He's chosen to put a
25
one-story garage in this area and build a
35
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If you look at the aerials, a number of
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house here.
3
homes, including Mr. Walter's, they will have
4
one-story structures down in this area, but
5
there's no primary residence that's west of
6
this line.
He can easily flip those.
He can
7
put his house here, he can put his gar~ge down
.. '
8
below.
But what he's doing is creating a
"
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9
severe impact on the character of the bluff
10
and the character of the neighborhood.
11
Mr. Pollack's letter was introduced
12
earlier. I have a letter from Mr. Pollack,
a
,13
and I think Mr. Pollack has changed his tune
14
to some degree since he was earlier testified
15
because he didn't really understand what the
16
problem was.
No one has a problem with side
"
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setbacks except if you go out beyond this
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point.
You shouldn't be allowed to do
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anything more than the code allows.
But once
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you go beyond that, then you're going to be
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confined onto what the code does allow.
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22
Mr. Pollack provided us a letter stating
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that he doesn't have a problem -- his
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letter's already in the record.
He doesn't
~.,
25
have a problem with the side setbacks, but he
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does have a problem with that house going as
2 far west as it does.
3
And that would be submitted as our first
4 exhibit, and, technically, it should have gone
5 directly to the clerk's office first, but
6
, '
there was a timing problem.
",1
Then Appellant's One is a
7
THE COURT:
8
copy of the letter dated March 27, 1997 from
9 Ronald Pollack. Any objection,
10
Ms. Dougall-Sides?
11
MS. DOUGALL-SIDES: No objection, your
12 Honor.
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THE COURT: Any objection,
':
14 Mr. Armstrong?
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MR. ARMSTRONG: No objection.
15
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16 THE COURT: Appellant's One is identified
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17 on the record, is admitted in evidence without
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objection.
Go ahead, Mr. Maguire.
"
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19
MR. MAGUIRE:
The second criteria of the
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20 land development code subsection two of
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21 section 45.24 on the land development code
-,
22 says the strict application from the
23 provisions of the code would deprive the
24 applicant of the reasonable use of the
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property.
There is no way that requiring
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24
25
IS-foot setbacks would deprive this applicant
of the reasonable use of their property. If
they can build a 5 to 6,000 square foot home
~n this property, they have not been deprived
the reasonable use of their property. It's
that simple.
It seems like some of these other
issues -- I'm trying to help you understand
why the neighborhood and some of the neighbors
are upset and the impact that it's going to
have on Mr. Walter's home. But if their own
architect says that a 5 to 6,000 square foot
property home would be built on this property,
there's'no deprivation of reasonable use. And
that's code criteria two, code criteria
We don't
three. It's really not applicable.
think that's an issue.
But item four, the granting of the
variance will be, and the Board has to find
that the granting of the variance will be in
harmony with the general purpose and intent of
the land development code and comprehensive
plan. It will not be legally injurious to
surrounding properties or otherwise to the
detriment of the public welfare allowing this
38
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39
1
house to go west of the bluff.
2 And if you 'look at the historic graph in
3 the booklet, you'll see that the homes in this
4 area have been built basically along the top
5 of the bluff. Allowing one cliff hanger west
6 of that building line is not in harmony with
7
the neighborhood.
It's not in harmony with
8 those provisions of the code to protect the
9
bluff.
And they are not in harmony and they
10 will be materially injurious to my client.
11
It's bad enough -- and here's another
12
interesting fact.
The floor, the land
13
elevation at the front of their house is 25
14
feet.
The rear elevation is 15 feet so that
15 while it may only be a two-story home in the
16 front, it's three in the back. And that's
17 going to be hanging over my client's
18 property.
19 He can build that height under the code,
20 but if he's going do to it, we don't ~ant it
21
six, seven and a half feet from us.
It should
22
be back lS feet.
There's no reason that he
\
23 should be allowed to encroach any further than
24 what the code allows.
2S
And case law is clear.
If you don't like
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the code setbacks, go to your commissioners
and get it changed. A variance is not a way
of amending the code. A variance is a way of
preventing an undue hardship.
There's no undue hardship here.
The home
6 can be built with 1S-foot setbacks anywhere
7 from the street to the bay side subject to the
8 front and rear setbacks.
, 9'
10
,11
,12
13
14
15
There are some old trees here.
This is a
picture also from the historic registry
booklet.
This is the home that was torn down
on this lot.
And this was torn down in 1984
and' sat in approximately the area where the
proposed garage is. If you look, these big
oaks that were here before, can't even see
16 ' them, doesn't take forever to go through.
17
18
19
20
21
22
23
24
25
; ~ " ~ ~ ' .. , .
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They do grow.
They're not a permanent
fixture.
Even the preservatIon booklet states
that they're not a permanent fixture.
That house was torn down.
It's obviously
an attractive home.
Whoever had this lot
chose to tear it down and sell it as vacant
land. The Marks bought this property subject
to the code. They didn't make it conditioned
on getting variances or getting approved prior
40
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to that.
They took their chance when they
1
2 brought this property and knowing what the law
3 was.
4
THE COURT:
Is this diagram on this
5 document you gave me, which is not numbered as
6
an exhibit?
It's entitled Harbor Oaks on the
7
,front page and the second page is a diagram
8 and it's page 53.
'9
MR. MAGUIRE:
I think we would move to
10 have it introduced to supplement the record.
11 It basically is reflected on the conditions of
12
the property.
It reflects the location of the
"
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house as would be gleaned from the record
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14 before the administrative law judge, and so we
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15 would move that into evidence as our exhibit
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16 number two, I believe.
,'.:'
17
THE COURT:
Yes, it is Appellant's Two.
';
, :
18 Ms. Dougall-Sides, any objections?
....
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;
19
MS. DOUGALL-SIDES:
No objection, your
'.
"
,
20 Honor.
21
THE COURT: Mr. Armstrong?
r'.'
22
MR. ARMSTRONG: No, sir.
. "
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THE COURT: Appellant's Two is identified
23
. ~ '
24 on the record as admitted in evidence without
~
25
objection.
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41
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7
MR. MAGUIRE:
Of the historic district,
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1
MR. MAGUIRE: We would also move
2
THE COURT: Page 52, that would be a
.."
3
composite exhibit?
!:
"
4
'MR. MAGUIRE: Yes.
5
THE COURT: Is that the entire diagram
6
Harbor Oaks?
':';'
8
believe, sir, yes.
9
MS. DOUGALL-SIDES:
Your Honor, I would
10
object to characterizing the area as a
11
historic district.
I don't believe it's been
12
established as a national registered historic
,',~)
13
district, more a prehistoric preservation
14
zoning district.
15
THE COURT: Mr., Magu ire, any re spans e?
16
MR. MAGUIRE: We only introduce it for
17
the purposes --
18
THE COURT:
No, no.
The objection's not
19
to the admissibility of the document.
The
20
objection's to the characterization of it.
21
MR. MAGUIRE:
I would l~t the cover page
22
of the document speak for itself as to what it
23
is.
It's a Florida Preservation Service, The
24
Historic And Architectural Survey and Present
t::';J~
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25
Plan of Harbor Oaks Clearwater, Florida.
It
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is what it says on the title page.
2
MS. DOUGALL-SIDES:
That's fine.
3
THE COURT: And you had another document.
4
MR. MAGUIRE: The aerial photographs of
5 the bluff. We move that as --
6
That's these?
.
THE COURT:
7
Yes, as a composite exhibit
MR. MAGUIRE:
8 as streets of business and bay frontages of
9
the areas.
10
Ms. Dougall-Sides?
THE COURT:
11
MS. DOUGALL-SIDES: No objection, your
12 Honor.
13
THE COURT: Mr. Armstrong?
14
No objection.
MR. ARMSTRONG:
15
THE COURT: Appellant's Three is
16 identified on the record as admitted in
17 evidence without objection.
18 Am I going to get copies of these code
19 provisions that you've been citing to me?
20
MR. MAGUIRE:
, ,
We have a memorandum of
21 Florida that will provide you as to citations
22 on the code provisions, as well as the oases
,23 we're arguing today.
24
THE COURT:
It has oitations to the code
25
provisions arid citations to the cases?
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MR. MAGUIRE: It has the language from
the code provisions in the memorandum.
MS. DOUGALL-SIDES: I will be providing
you with certain certified copies and certain
code sections. I don't know whether the ones
that Mr. Maguire is referring to --
MR. MAGUIRE: I believe I do not have
certified copies of the comprehensive land use
plan.
THE tOURT: I want anybody who's citing
to me local code provisions in cases to
provide me copies.
MR. MAGUIRE: You want cases?
'THE COURT: I want copies of cases.
MR. MAGUIRE: Can we do that after the
hearing?
THE COURT: You can do it in your PFO's.'
The next exhibit would be the picture of the
land line before of the same document with the
house that was demolished.
MR. MAGUIRE: That is the picture from
Clearwater pictorial History, Page 94.
THE COURT: Ms. Dougall-Sides?
MS. DOUGALL-SIDES: No objection, your
Honor.
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45
~
1
THE COURT:
Mr. Armstrong?
2
MR. ARMSTRONG:
No objection.
3
THE COURT:
Appellant's Four is
4 identified on the record as admitted in
5 evidence without objection.
6
MR. MAGUIRE: Appellant's Five is a
7 letter from Charles Harris addressed to
"} ,
8
Mr. Johnston.
We thought he would be here
9
today.
It's another letter from a neighboring
10. property owner, and it speaks directly to the
'I.
11 ,issue of the character of the neighborhood and
12 the westerly construction of the property.
,:)
13
THE COURT:
Ms. Dougall-Sides?
14
,
MS. DOUGALL-SIDES: No objection, your
15 Honor.
16
THE COURT:, Mr. Armstrong?
18
MR. ARMSTRONG: No objection.
THE COURT: Appellant's Five is
17
19
identified on the record as admitted in
20 eviden~e without objection.
21 Anything further, Mr. Maguire?
22
MR. MAGUIRE: Only to summarize that the
23 four code provisions or four subsections of
24 section 45.24 clearly requires some sort of
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special circumstance and that the
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circumstances requested' will be in harmony
with the neighborhood and the code. This
application does not meet those requirements.
Subsections one, two, and four: If a
home of 5 to 6,000 square feet can be built on
this property without the side setback
variances, there is no basis whatsoever for
the granting of the side setback variances.
The trees are there, but the trees only have
an impact on whether the building is built
west or east on the lot. It has nothing to do
with the side setbacks.
Many one-story structures are built down
below the bluff. But there is nothing in the
historic development of Harbor Oaks where a
primary residence has been built to the west
of the bluff terrace. And that's where the
problem is.
And I would like Mr. Walter -- he got
his notice of the last hearing two days
before. He had been in Hong Kong. He came
back, found this notice, called me, would you
go and make an objection. Mr. Walter has
never had an opportunity to address his
particular concerns regarding this
"~"'~.'."II""I"""~"""'."-"~'''I:-~' ,."
46
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1
application.
He did not have an opportunity
2 to speak at the public hearing. And at the
3 public hearing, that's exactly what it is,
4 it's an opportunity to speak.
I'
5
I would like Mr. Walter to have an
6 opportunity to address you today regarding his
7 concerns and problems regarding this
8
particular applicat'ion.
::
9
MR. ARMSTRONG:
Do we have the
10 opportunity to cross-examin= him?
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.11
MR. MAGUIRE: Yes.
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12
THE COURT: Do you want this under oath,
:)
13
I mean, if you want me to consider this?
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MR. MAGUIRE:
They are to be
at the
15 hearings they are to be under oath.
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THE COURT:
Mr. Walter, remain where you
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are.
Do you swear or affirm that the evidence
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MR. WALTER:
Yes, I do, your Honor.
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21
THE COURT: Sta~e your full name.
22
MR. WALTER: Charles Walter.
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THE COURT: Spell each name.
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MR. WALTER: C-H-A-R-L-E-S, W-A-L-T-E-R.
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THE COURT:
Go ahead, Mr. Walter.
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MR. WALTER:
Your Honor, thank you for
2
this, opportunity and good morning.
I'd like
3
to speak a little bit about our history with
4
this site.
5
We purchased the house as you can pretty
6 much see it on that, and the land as you see
7
it on that survey up there.
We were attracted
8 to it because of the historic nature of the
9
dwelling that was built in 1925.
It was
10 originally built and occupied by the developer
11 of this Harbor Oaks area and is considered one
12 of the classic residences in the area.
,13'
One of the attractive features of the
14 property to us, and a major point in
15 purchasing it, was the privacy that the lot
16 and the house offered to us after moving from
~7 another canal type of community where the
18 houses are terribly close together.
19 , We had obtained information on the
20
setbacks at that time.
We knew what they
21
If I may approach the chart, our house
were.
22 faces Magnolia Drive,' whereas the Heye' sand
23 the Marks properties are on West Hill Road.
24
That runs throughout this area.
The main
25
house is at this point down here.
We have a
48
2
garden building, that's a greenhouse that is
~
1
pool house that's being redeveloped and the
,
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3' one story much below the vista of this house.
4
If we're out on the deck here, this is 25 feet
5
above sea level and the seawall is about three
6
feet.
7
The principal problem -- may I approach
8
with this chart to show you some of the fine
9
detail?
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THE COURT:
Yes, sir.
Actually, if it's
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more convenient for you, I can stand.
12
MR. WALTER: Okay. It may be better,
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let's see, this way.
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MR. ARMSTRONG:
We ask that you: leave it
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on the board so we would see.
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MR. WALTER:
This property, the
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separation between the two properties, the
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18 property lines by this survey is along here.
19 There's a wall approximately six feet, and it
20
varies in height at some point along here.
As
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you see, as we come out of our house at an
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elevation of 29 feet, come down these stairs
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into a lawn we're at19 feet, 17 feet, more
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steps and we're down eight and a half feet
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right in here.
The Marks residence, the front
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door, according to documents that we've
2
received from Mr. Marks, is at 25 feet and the
3
lower level of it is at J.3 feet.
4
A particular concern to us also, as
5
Mr. Maguire has stated, is the towering affect
6
of this over the yard. This is a recreational
7
area for us, and it has been for all
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properties.
9
If you notice on the chart back here,
10
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generally all houses are built up at this
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point and are many swimming pools along in
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this area.
Some pool houses Mr. Paliko, I
,12
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think, is aware of that.
And now the problem
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14 that we see here is if you see the tree --
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and this is our original survey, this engineer
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has used the Marks drawing to superimpose the
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Marks house and the Heye house on our survey.
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If you notice, in here, we have large oak
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trees along in here, ls-inch, lS-inch,
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19-inch.
I think a 27-inch oak tree here that
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are in the way of this, that are endangered by
22
this setback area that's shown shaded.
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Mr. Paliko in the lower h~aring stated
that the Walter property would not be impacted,
23
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because of lots of trees on our property
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.25
here. Well, let's identify those trees.
There's a Magnolia here and there are two
large palm trees here, which we have been
asked by the city forester at one time to
consider taking down because of the pests, as
far as other things. There is bamboo along in
here, and it is intended to come out. And
that's the only relief we have from this tower
structure that sits there.
Now, the landscape architect that works
for us has told us that these specimen trees
are 99in9 to be damaged severely by this
setback area in here. That one is lost. Of
course, this one is probably lost, that one
and these two will probably have an affect on
these trees.
Now, this house as I understand it is a
two-story Spanish style home. The variance
would allow seven feet from this wall,
however, the variance, the land code of the
City o~ Florida states that the eaves of the
house can project further over.
MR. ARMSTRONG: Excuse me, as they are
coming up specimen trees, they're not here. I
think that should be stricken from the record.
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MR. WALTER: Fine, whatever. So that the
eaves of the house can be built only several
feet from the property line. If anyone wants
to state that the trees can be saved, you have
to shave off part of the sides of the tree.
The canopy of these trees is very large. It
has to be taken off.
Now, if these trees are gone and this
bamboo dies,' I haven't got anything here that
shades our property from the towering effect
of this thing.
Now, let's speak about the economic
effect on us. This is the front of our house
here. Now, if I go to sell the house, and I'm
looking at 'this thing back here, it's value
lost to me. If Mr. Marks had agreed that this
variance -- that this variance wasn't
necessary, it appears that these trees could
be saved and offer this buffer to our
property.
This is a pool that is intended to go in
down here. And at this point when we stand
here in our yard at this B-foot elevation
ab~ve sea level, remember this is 25 feet at
the front of the house, the City code allows
S3
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1
25 feet for a two~story house.
Therefore, the
2
top of
3
the house would be at SO feet above sea
4
level.
And I'm standing here in my yard at
5
eight feet looking up at this structure that
6
goes up 42 feet above it.
And that's the
7
problem we have that privacy is totally lost
8
to the pool area, to the yard.
And with the
9
trees out here, it just opens it up and
10
eliminates the reason that we real~y bought
11
this thing, the privacy that the lot offers to
12
us.
And I think it is severe economic damage
':~
13
to us.
';
J.4
Now, I might mention that the surveyors
15 have said that this shaded area also, offered
16 by Mr. Paliko in earlier, drawing amounts that
17 340 square feet out of 44,000 square feet,
18 4,300 square feet, this variance amounts to
19
seven tenths of one percent of the land.
And
20
it would seem to me that seven tenths of one
21
percent of the land could be added on at some
22
other location to that house.
And that's the
23
problem that we have with it.
24
We want to be good neighbors.
I hate to
o
25
do this, but I think that the value of my
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house is terribly affected and the use of the
yard that we plan for recreational kinds of
things is just shot.
THE COURT: Do I understand you correctly
that if this variance is not granted.
MR. WALTER: Yeah.
THE COURT: That in order to restore that
340 approximate~y square feet, the current
height limitations would prevent that 340
square feet --
MR. WALTER: Yes, yes.
THE COURT:, Through here, but can be
expanded in any 'direction such as this at 340
feet. But if it's~dded this way, it
exacerbates your problem?
MR. WALTER: Well, it covers, of course,
and I think comes back this way --
MR. MARKS: That's not true.
MR. ARMSTRONG: When ~his narrative is
over, we'd like to cross-examine the witness.
THE COURT: Is this the wall area where
for which the variance was requested?
MR. WALTER: I don't know what was said.
I believe it's up at the street.
, MR. PALIKO: That's correct.
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55
Q
1
MR. WALTER:
This is also, I believe, a
2 wall over here; isn't it?
3
MS. DOUGALL-SIDES:
Objection to the
4
witness asking other witnesses questions.
5
THE COURT:
Sustained.
6
So you don't really -- you don't have
" "
7 . any objection to the house being there?
8
MR. WALTER:
Well, I don't like the house
9
there, as do most of the other neighbors,
10
because, remember, we have presently a hundred'
.. '
,
11
and almost 180-degree view up and down the
12
waterway.
Now it's reduced to something over
3
~3
90 degrees or approximately 90 degrees.
14
'Sure, I would object to this, but I don't
15
know that I can.
My personal feeling is I'd
16
rather see it back here.
But if it's going to
, .
. ,
17 be here, I'd like the relief of having this
18
back so we have a buffer between the
,19
landscaping in there, and it opens up my view
20
a little bit more.
21
This is a terrible location here for us
22
and for anybody else up and down the bluff.
23
And the city code, I believe, says that the
24
home can be no higher than 25 feet back in
\;jj\~
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. '
25
here.
If you were to check the height at this
56
~
. -/ ~
1
side, it's going to be probably 35 to 38 feet..
THE COURT: Mr. Maguire, do you have
2
3 anything further of this witness?
4
MR. MAGUIRE: No.
5
THE COURT: Mr. Walter, do you have
6 anything else?
7
MR. WALTER: No.
8
MR. MAGUIRE: I know you would love to
"
9
cross-examine.
You want to stand up here?
10
THE COURT: Ms. Dougall-Sides, is
11 Mr. Armstrong going to cross first?
12
MR. ARMSTRONG:
I'm up.
:3
13
MS. DOUGALL-SIDES:
That's fine.
14
THE COURT:
Go ahead, Mr. Armstrong.
"
15
MR. ARMSTRONG: Your Honor, you may want
16 to be up there with the board when I ask.
17
THE COURT:
Okay.
Give me just a
18 second~
19
MR. ARMSTRONG: Mr. Walter, can you
20 t>lease pullout 'your main structure there.
21
MR. WALTER:
This is the main structure.
,22
MR. ARMSTRONG:
Can you please point to
,
I
I
I
j
I
I
I
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,
23
,the side property line between your property
24
and the Marks property.
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..
2.5
MR. WALTER:
It is this line that runs
.:)
I
,
3'
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, .
1
along here from that point into that.
2
MR. ARMSTRONG:
What is the distance
3
between your home and the Marks side property
4 line?
5
MR. WALTER: At the narrowest it's about
6 three and a half feet in here, and about five
7 feet at the garage, and maybe about five feet
,8 from this courtyard over the property line.
9
Mr. Walter, isn't it true
MR. ARMSTRONG:
10 if your home were confirming with the side
11
setback requirement, wouldn't that help in
12 solving what you contend is a vista problem in
13
viewing out your property?
14
,
Objection to relevancy.
MR. MAGUIRE:
15
think objection on the basis of relevancy
16 unless there's something unlawful about the
17' nature of the setbacks that my client is in
18 any way of violation to the code.
19
MR. ARMSTRONG:
I think it's le~ally
20
nonconforming.
He's basing his contention.
21 think it's a very relevant question.
22
THE COURT: Well, overruled.
He can
23 answer the question.
24
MR. WALTER: Would you state the question
25
again? I'm sorry.
57
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1
MR. ARMSTRONG:
The question would be,
2 your home were conforming with the side
3 setback requirements, wouldn't that help
4 materially in solving what you contend is a
5 vista'problem in viewing out your property?
6
MR. WALTER: That is if I had a rear
';
7
setback.
8
MR. ARMSTRONG:
side setback?
','
9
MR. WALTER: 'No.
This is the front of
,", .
10
'the house.
, "
11,
MR. ARMSTRONG: Okay.
Then the rear
'"
12 setback.
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13
MR. WALTER:
So the rear setback would
':.~: ~
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14
be, I believe, 15 feet.
And I'd be out at
:'\"
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15
this point, and it wouldn't matter.
I mean,
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16
it wouldn't be any help.
I'Ve still got this
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17 cutoff here.
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18
MR. ARMSTRONG: Okay.
Do you have any
!'
~ ~.
l' sort of back~round in horticulture?
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20
MR. WALTER: No.
21
MR. ARMSTRONG:
Or botany?,
"
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22
MR. WALTER: No.
:','
"
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23
MR. ARMSTRONG:
Do you have any sort of
.. '
24 expertise to talk about the likelihood,of
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25
those trees living or dying?
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4
MR. ARMSTRONG:
But you have no
S9
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1
MR. WALTER:
Just from having a personal
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experience with it is all, cutting roots
, ~ I .
"
3 within a canopy and seeing trees die.
, ,
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5
expertise?
"
6
MR. WALTER: ,No, I'm not a graduate
'7
botanist or anything.
~,~ . '
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8
MR. ARMSTRONG:
That's all.
9
THE COURT: Ms. Dougall-Sides.
10
MS. DOUGALL-SIDES:
Yes.
11
MR~ WALTER: Do you want me up here?
12
MS. DOUGALL-SIDES:
No.
I wasn't going
~:)
13
to refer to that diagram.
14
Mr. Walter, referring to, I believe,
15 what's been' introduced as your exhibit three,
16 the aerial photographs, isn't it correct that
17 your lot shows some structures built to the
18 west of 'what we're calling the bluff line?
19
MR. WALTER: Yes.
20
MS. DOUGALL-SIDES: And are these
21 servants quarters?
22
MR. WALTER:
No.
23
MS. DOUGALL-SIDES:
Both houses --
24
MR. WALTER:
This is what we call the
{ ~:JJ'~',lt.
...,
25
pool house.
This was one of the first sites
~
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
of Clearwater that got, in former days, is
what we call a health building built by the
former owner. It's being converted. I'm
indicating the most west building.
MS. DOUGALL-SIDES: Thanks.
" MR. WALTER: And it's being converted to
the pool house for the pool that is here.
MS. DOUGALL-SIDES: And what is this
other structure to the south?
MR. WALTER: That's the greenhouse
building. And the greenhouse is presently
down the glass part.
MS. DOUGALL-SIDES: Now, did you yourself
apply to the Development Code Adjustment Board
in August 1995 for some variances?
MR. WALTER: Yes.
MS. DOUGALL-SIDES: And were those a
well, just referring to what's labeled a
'variance staff report, those would be
, variances of 3'.5 feet to prevent a 6.0 foot
wall and adjacent to where 2.5 foot is allowed
to permit a 6.0 foot wall within a waterfront
setback, 3.0 feet to permit a wall setback of
zero feet from a street right of way where 3.0
feet is required and 3.0 feet to provide zero
60
2
MR. WALTER:
Yes.
, ,t')
,-,
1
feet of landscaped buffer?
3
MS. DOUGALL-SIDES: Where 3.0 feet is
4 required, is that your recollection?
5
MR. WALTER: ,Yes.
6
MS. DOUGALL-SIDES: And you appeared
'7 before the' DCAB Board on this?
!,'P
8
MR. WALTER:
Yes, uh-huh.
9
MS. DOUGALL-SIDES: And did they grant
10 sanctity?
11
MR. WALTER: Yes.
L,l .~
12
MS. DOUGALL-SIDES: ,Is that correct?
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13
MR. WALTER: Yes, with some restrictions.
", .
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14
MS. DOUGALL-SIDES:
The restrictions were
;',1.
15' regarding some of the landscaped buffer?
,"
16
MR. WALTER:
Yes. And I believe that one
. .....
.
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17 of the Board members had at least requested
.' ~";
18 that we repair a chain link fence along the
.~ '\
19 way.
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20
MS. DOUGALL-SIDES: Okay.
The City would
21 offer the variance staff report regarding
""
22 Mr. Walter.
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23
MR. MAGUIRE:
No objection.
24
MS. DOUGALL-SIDES: Variances
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25
MR. MAGUIRE:
Except to relevance.
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,MS. DOUGALL-SIDES': And an excerpt from
the minutes of the board meeting relating to
3 the application.
4
5,
,.
,',
6
(, ,
7
8
I, ;
MR. MAGUIRE:
Objection as to relevance.
THE COURT:
Is this separate exhibits?
MS. DOUGALL-SIDES:
Yes, those will be
two separate exhibits.
THE COURT:
,
So is this going to be City's
; ,.
9 ,One?
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10
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MS. DOUGALL-SIDES:
I believe we're at
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11 City'S One at this point, one and two.
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13
14
THE COURT:
City'S One is the variance
staff report, City'S Two is the excerpts.
MS. DOUGALL-SIDES:
I have nothing
15 further, your Honor.
" '
16
','I"
THE COURT: Why are these relevant,
17 Ms. Dougall-Sides?
,,'
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18
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MS. DOUGALL-SIDES: Well, the City would
19 argue that the appellant himself obtained
. .,'
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20 somewhat similar variances from the very same
, "
21 Board in the recent past, setback variances.
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22 And I, think it has some rel~vance to his
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23 objection to his neighbor's setback variance
. ....
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24 and he's gone in and obtained his.
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THE COURT:
Well, is your argument that
62
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63
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1
he's legally estopped?
','
2
MS. DOUGALL-SIDES:
No.
He received
:....,
','
3 notice as a naming property owner and has the
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4 right to appear and make his views known
5 regarding the application.
6
THE COURT: What probative value does the
',.'
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7 fact that appellant received variances --
8
MR. ARMSTRONG:
I think it's probative to
,:"1
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9 show the actual difficulty of building on long
10 narrow lots. He sought four variances so as
11 to develop his property in a fashion he
12 thought, was appropriate I think are simply
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13
confirmed as you' can tell.
I think it's
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14 probative.
,"
"
15
THE COURT: Were the variances for him to
construct his home?
MR. ARMSTRONG: No, .
s~r.
THE COURT: The home was preexisting?
MR. ARMSTRONG: Yes, sir. Apparently
.'
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16
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17
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19
20 these were wall variances, they were not
'.'1:
21
structured variances.
I think it shows the
\:..
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22 harness of a legal application of a long
23 narrow lot such as Mr. Marks and Mr. Walter
",
24 both own.
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25
THE COURT:
City's One and One -- well,
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2
MR. MAGUIRE:
Well, I think from the
64
... .,"
'~
1
before I rule, any reply, Mr. Maguire?
3
record it's clear that we made no objection to
4
some wall variances and height variances.
And
5
the objection is to side setback variances to
6
the primary residence.
And we're talking
7
about some wall variances that were in, I
8
believe from the record, that are from the
9
evidence submitt~d, it was because of storm
,J.O
damage caused to my client's property.
So I
, .
"
11
don't see how that has any bearing upon the
12
impact of the primary residence construction
~
13
which is the'issue in this case as to side
14
setbacks.
That's my response.
15
MR. ARMSTRONG:
Can I respond to his
16
response, your Honor?
17
THE COURT:
If you're finished,
18
Mr. Maguire?
19
MR. MAGUIRE: Yes.
20
MR. ARMSTRONG: The issue isn't the
21
rebuilding of was. And the fact that the No
22
Name Storm may have destroyed it really
23
doesn't matter.
The issue is where it gets
24
rebuiltl and the fact that Mr. Walter sought
J
25
four variances, again, recognizing the longl
65
.'1
.~. I: i
1
narrow configuration of the lot is a special
2 circumstance of the nature that is considered
3 by the adjustment board deciding whether or
4 not to grant variances.
5
MR. MAGUIRE:
I think, if I may?
6
THE COURT: Yes.
7
MR. MAGUIRE: I think the problem with
8 \oJhat t,hey have just established is that the
9, long, narrow shape of the lot, is not unique to
10
Mr. Marks.
It's common throughout this
11 neighborhood. And the Development Code
12 Adjustments -- the development code says
:)
13
there must be special circumstances that are
14.
unique to their property.
So if they're
15 arguing that long, narrow shape problems exist
16 on my client's property and they exist on
17 their property, then they're common to
18 everyone. And in a sense, they basically just
19 admitted that there's nothing unique about
20 their property.
21 If you look at greater Harbor Oaks
22 neighborhood, you will find there are four to
23 eight located on the street, west side, that
24
~re long and narrow.
The balance of Harbor
. " ',~, '\
o
25
Oaks, which is a much larger area, has more
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7
MS. DOUGALL-SIDES: No.
I don't believe
66
'i
()
1
typically configured lots rectangle to
2
square.
It's parts of a much larger
3
neighborhood with much more typical lots, and
.'; I
4 these lots are uniquely situated.
5
THE COURT: Anything'
6
further, Ms. Dougall-Sides?
"
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8 Mr. Maguire objected to those two exhibits.
,',
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9
MR. MAGUIRE:
Yes, I did.
10
MS. DOUGALL-SIDES:
He said no objection
.+,",;'
, .
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11 except to relevancy, which is the same.
, ;
12
MR. MAGUIRE:
I object on the basis of
, '
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13
relevance.
" .
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14
MS. DOUGALL-SIDES:
I didn't hear that.
,
'. .
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15,
THE COURT:
City's One and Two are
16 identified in the record, are admitted in with
. .'
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17 no objection.
, "
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18 Anything further, Ms. Dougall-Sides?
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19
MS. DOUGALL-SIDES:
No, your Honor, not
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20 on cross-examination.
21
THE COURT:
Redirect.
Mr. Walter, is
"
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22 your name Walter or Walters?
23
MR. WALTER: Walter.
I ~ :
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24
THE COURT: Without the 8?
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25
MR. WALTER:
Yes.
. ~'::
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THE COURT:
It's Walter on Appellant's
Three.
MR. MAGUIRE:
They're married.
I forgot
to get the apostrophe on there.
It's Mr. and
Mrs. Walter, that's the problem, there's two
of them.
THE, COURT:
All right.
MR. MAGUIRE:
Mr. Walter, the side
setback or the variances that were the subject
matter of the application which was just
:J.1, introduced, your variance requests, why were
12
13
14
15
16
17
18
19
those requests made?
MR. WALTER:
They were made because the "
wall at the lower end of our property
affected
can I approach and point out?
MR. MAGUIRE:
Yes, sir.
MR. WALTER:
On our aerial exhibit I
think is what he's going to refer to.
THE COURT:
While we're on redirect, I
20, neglected to give the attorneys this general
21 instruction that I normally permit direct,
22
23
24
25
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cross, and redirect, does not permit recross.
And my thought on that is, if you don't
object to a question on redirect being beyond
the scope of cross-examination, then you've
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1
waived any discretionary right you may have to
2
recross-examination.
If you do object and I
3
overrule it, so it's a moot point.
So it's
4
very unusual that I permit recross.
And I
5
wanted you to be aware of that.
6
Thank you, your Honor.
MR. ARMSTRONG:
'7
Go ahead, Mr. Walter.'
THE COURT:
J',
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8
This is the second page of
MR. WALTER:
9
the aerial view.
This was the City dock of
~o
this location.
And then in the No Name Storm
11. of March 12, J.993 the dock was destroyed and
12
ended up into our property with damage all
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13
through.
And you can see that the debris
14
here, this existing wall in here was damaged.
15 And, of course, you can see it's still
J.6
standing, but it wasn't. It was somewhat
17
structurally impaired. And a wall up along
18
here was destroyed.
We had filed these
19 variances to have this wall in here repaired,
20 reconstructed, or whatever.
~ . ;
All right.
Thank you.
21
MR. MAGUIRE:
. I ~ .
,"
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22
MR. WALTER: Uh-huh.
, "
23
MR. MAGUIRE: That's all.
24
THE COURT:
Okay.
Mr. Walter, you're
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25
excused from your oath.
You're excused as a
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witness. As a party you may remain in here.
69
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,,2
Mr. Maguire, did you have another witness?
MR. MAGUIRE: No.
THE COURT: Any other evidence?
MR. MAGUIRE: No. Thank you, your Honor.
THE COURT: Ms. Dougall-Sides.
3
4
5
6
7
MS. DOUGALL-SIDES:
The
Yes, your Honor.
8 City would call Mr. John Richter.
9
THE COURT: Mr.' Richter.
MR. RICHTER: Yes.
THE COURT: Do you swear or affirm the
12 evidence you Will provide is the truth and
1'3
nothing but the truth?
14
MR. RICHTER: Yes.
15
THE COURT:
State your first and last
16 name and spell each name, please.
17
MR. RICHTER:
John Richter,
18
R-I-C-H-T-E-R.
'19
THE COURT: And is that John, J-O-N, or
20 J-O-H-N?
21
MR. RICHTER: J-O-H-N.
22
THE COURT: Ms. Dougall-Sides.
23
MS~ DOUGALL-SIDES:
Thank you, your
24 Honor. '
25
Mr. Richter, you're currently employed
()
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MR. RICHTER: Yes.
MS. DOUGALL-SIDES: Can you describe your
educational background, please?
MR. RICHTER: I hold a Bachelor of
Landscape Architecture from Kansas State
University.
MS. DOUGALL-SIDES:
Now, in your various
jobs with the City of Clearwater, when, if
ever, have you been the chief of planning or
head planner?
MR. RICHTER: I was chief planner from, I
think, J.979 to '85.
MS.' DOUGALL-SIDES: And in that capacity
what were your functions?
MR. RICHTER: I was responsible for
reviewing and making recommendations on
applications to rezone in special exceptions,
land use plan amendments, variances, site plan
review.
MS. DOUGALL-SIDES: Have you worked on
special projects for the City of Clearwater?
MR. RICHTER: What do you mean by special
projects?
MS. DOUGALL-SIDES: Have you drafted
portions of the land development code?
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MR. RICHTER: Well, yes. And from 1981
2 to 1985 I drafted the land development code
3 for the City.
4
MS. DOUGALL-SIDES:
Is that the code
5 currently in effect pretty much?
6
MR. RICHTER: . It's been changed
7
substantially from J.98s.
Some parts remain,
8
some parts don't.
9
During your tenure
MS. DOUGALL-SIDES:
10
with the City, approximately how many variance
11 applications have Y9U reviewed?
12
Many, many, many, thousand.
MR. RICHTER:
13
Hundreds, thousands?
MS. DOUGALL-SIDES:
14
MR. RICHTER: Maybe. A hundred at any
15 rate.
16
MS. DOUGALL-SIDES: Have you drafted any
17 portions of the comprehensive plan?
18
MR. RICHTER:
Long ago, yes, I have
19 drafted housing element in 1977.
20
MS. DOUGALL-SIDES: And have you
21 testified previously in this sort of
22 administrative hearing?
23
MR. RICHTER:
Yes.
24
MS. DOUGALL-SIDES:
How many times,
25
approximately, have you testified?
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72
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1
MR. RICHTER:
Perhaps' 50 or more.
2
MS. DOUGALL-SIDES:
Would that mainly
3, have ,been in connection with variances?
4
MR. RICHTER: Yes.
5
'MS. DOUGALL-SIDES: Appeals of
6. variances?
7
MR. RICHTER:
Yes.
8,
MS. DOUGALL-SIDES: And have you ever
, .
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9
testified in court procee~ings regarding land
'j
J.O use issues?
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11
Yes.
MR. RICHTER:
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12
MS. DOUGALL-SIDES: Showing yo~ what
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13
would be marked, as government exhibit four, is
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14 that a correct copy of your, resume reflecting
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15 your credentials?
" .
Excuse me, Ms. Dougall-Sides,
16
THE COURT:
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I would have it as three.
One was the
17
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18 variance staff report, and two is the
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19 excerpt. I just want to make sure I didn't
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20 miss one 'that you think is in.
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21
MS. DOUGALL-SIDES:
That would be three.
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THE COURT: Okay.
MS. DOUGALL-SIDES:
22
Go ahead.
The City would offer
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2. that as City's Exhibit Three.
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'THE COURT:
Mr. Maguire.
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73
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1
MR. MAGUIRE:
I have no objection~
2
THE COURT:
City's Exhibit Three is
3
identified in the record as admitted into
4 evidence without objection., Go ahead,
5 Ms. Dougall-Sides.
6
MS. ,DOUGALL-SIDES:
Thank you.
The City
7 would offer Mr. Richter at this time as an
8 expert witness in municipal planning and
9 zoning.
10
THE COURT: Mr. Maguire.
11
MR. MAGUIRE: I would like to reserve the
12 right to question or to object to certain
13
areas of the questioning.
But certainly his
,14 resume would indicate that he is qualified,
IS and I have no objection to his
16 qualifications. I may have to object to the
J.7
scope of questioning.
I think you've offered
18 him as an expert in what were the two?
19
Municipal planning
MS. DOUGALL-SIDES:
20 and zoning.
21
I have no objection to
MR. MAGUIRE:
,22 that.
23
The witness is accepted for
THE COURT:
24 the purposes tendered with that objection.
25
Mr. Richter, are you
MS. DOUGALL-SIDES:
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1
familiar with the variance application which
2 is'before the administrative law judge?
3
MR. RICHTER:
Yes, I am.
4
MS. DOUGALL-SIDES: And what zoning
5 district is the property located in?
'6 MR. RICHTER: RS-2, which is a single
7 family residential zone.
8
MS. DOUGALL-SIDES:
Could you describe
9 that zone generally?
10
MR. RICHTER:
It's an estate type of
11
zoning.
The RS-2 zoning requires a minimum
12 lot size of 20,000 square feet, requires a.
13
setback which would be consistent with
14
generous lot size requirement.
, I
There would be
15 a 35-foot setback from any public street right
16 of way, 15 feet from side property lines, 25
17
feet from rear property lines.
It's intended
18 that the district field the density of no more
19 than about two block units per acre.
20
MS. DOUGALL-SIDES: Would you
21 characterize that as a low density area,
22 then? '
23
MR. RICHTER: Very low density, yes.
24
MS. DOUGALL-SIDES:
Now, are you familiar
25
with what we've been calling the Harbor Oaks
76
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1
area or neighborhood?
2
MR. RICHTER:
Sure.
3
MS. DOUGALL-SIDES: Are there any other
4 zoning districts contained within that
5 neighborhood?
6
MR. RICHTER:
Yes, there are.
7
MS. DOUGALL-SIDES: Can you list those?
8
MR. RICHTER: To the east on the opposite
9
side of Druid Road there is zoned RS-6.
RS-6
10 is a somewhat more intensive zoning
11
classification.
It requires or allows for a
12
small lot size and smaller setbacks.
The ,lot
'0
13
size in the RS-6 zone is 7,000 square feet
14 minimum.
15
MS. DOUGALL-SIDES: Are you aware that
16 the City is currently considering some changes
17 to the land development code?
18
MR. RICHTER: Yes, I am.
1,9
MS. DOUGALL-SIDES: And what, ,if any,
20 changes in the density for this subject
21 property are being considered?
22
MR. MAGUIRE:
Objection.
I don't think
'23 what they may do in the future has any
24 relevance to what the Board did based on the
()
25
zoning ordinance at the time.
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MS. DOUGALL-SIDES:
I would simply seek
2 to show that there were no changes
3 contemplated to the code.
4
MR. MAGUIRE: You state showed that there
5 were no changes contemplated to the code?
6
MS. DOUGALL-SIDES:
To the zoning for
7 this property.
8
MR. MAGUIRE:
I don't see the relevance.
9 I mean, the code is in force at a certain time
10 and the code speaks for itself.
11.
MS. DOUGALL-SIDES: Well, that's fine.
12 Let me withdraw that question. I'll move on.
13
Mr. Richter, are you familiar with the
14 block that this property is located on?
15
MR. RICHTER: To. the extent that it's
16
visible.
It's not one of the more visible
.17 blocks within the'City due to the wall along
18 the street's right of way.
19
MS. DOUGALL-SIDES: Are you familiar with
20 any setback variances to the sides of the lots
'21 on that block that may be granted in the
22 past? Have you reviewed your records with
23 regards to the area and side setback
24
variance?
.25
Yes, I have.
MR. RICHTER:
77
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MS. DOUGALL-SIDES: And did you or did
you not find any that had been granted?
MR. RICHTER: I have. I have gleaned
from our computer records that there are other
variances in Harbor Oaks and on the same side
of Druid Road in close proximity.
MS. DOUGALL-SIDES: Would you
characterize the current variance as similar
to or different from?
MR. MAGUIRE:" I'm going to obj ect to
that. And I don't believe the witness can
characterize that. If facts are drawn out
from which similarity can be drawn, that's one
thing. But'I don't think he can classify. We
don't know who the property owners were when
it occurred, what kind of contract additions
may have existed. The whole question of
similarities is the ultimate finding of fact.
It's a very complicated set of unique facts
that we have in this particular application.
And just to simply say have him classify, I
think that's prelimina~y. I think they need
to go through and establish what are the facts
and let the administrative law judge make the
conclusion whether or not they are similar.
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THE COURT:
Ms. Dougall-Sides, any
2 . reply?
3'
4
MS. DOUGALL-SIDES:
Well, I was ,going to
ask Mr. Richter if he prepared a list of such
5 variances and have him review that.
6
7
THE COURT: Well, but there's an
objection to the pending question.
Are you
8 withdrawing that question?
9
MS. DOUGALL-SIDES:
I'll withdraw that
10 question.
11
Mr. Richter, did you prepare a list from
J.2 your departmental records of variances in the
13
J.4
15
,
surrounding area to this property?
MR. RICHTER: Yes, I did.
MS. DOUGALL-SIDES: And did you bring
16 that with you today?
17
18
MR. RICHTER:
Yes.
MS. DOUGALL-SIDES:
Referring .to that
19 list
20
21
MR. MAGUIRE:
I'm going to object to
that.
Well, I'll withdraw the objection at
22 this point.
23
MS. RICHTER:
Referring to that list, you
24 were saying?
25
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MS. DOUGALL-SIDES:
Referring to that
79
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list, what is the first item that you've
2 listed?
3 MR. RICHTER: The first item that I'Ve
4 listed is property at 421 Jasmine Way.
5 MS. DOUGALL-SIDES: How does that relate
6 geographically to the subject property?
7 MR. RICHTER: 421 Jasmin~ Way would be
8 located to the east of this property. It
9 would be within the RS-6 zone.
MS. DOUGALL-SIDES: And what, if any,
variances were indicated as granted on that
'pz:operty?
MR. MAGUIRE: I'm going to object.
There still hasn't been a proper predicate
laid. If there is an application in minutes
in granting variance request, that would be
the best evidence of that particular
application, facts surrounding it and the
granting of the variance also. It's already
been established by his testimony that the lot
in question is an RS-2 zoning.
MR. RICHTER: RS-6.
MR. MAGUIRE: Well, the
MR. RICHTER: Oh, the lot is in question.
MR. MAGUIRE: The lot in question is
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RS-2.
He's being asked a question about an
2
RS-6 question based on'that.
I don't think
3 it's a relevant inquiry for the proper
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4
evidence on which to base that.
5
THE COU~T: Why are variances in RS-6
6 zones relevant to an application fo~ a
<'"
7 variance in RS-2?
8
MS. DOUGALL-SIDES:
Well, your Honor, I
9
don't think we've even gotten to that.
I was
.:<":
10 asking the witness to list variances that he
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found in the area.
Mr. Maguire has brought up
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Harbor Oaks, and that seems to be what we are
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15 If there's an objection to Mr. Richter
t' .
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J.7 evidence as something he's developed from his
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18 records. And I'm sure there will be an
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19 objection to that. We don't need to have him
20 perhaps go through it.
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THE COURT:
You're submitting the list at
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22 this time?
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23
MS. DOUGALL-SIDES:
Yes, I would.
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MR. ,MAGUIRE:
I'm going to object based
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upon improper predicate. Also, there's heen a
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notice that a summation of summary would be
2 present and is required by the evidence code
3 in the State of Florida, and that these are
4 simply not probative without further inquiry
5 or they must lay a predicate before they can
6
introduce these that they are probative.
And
7 that has not been done.
8
It's similar to the objection I,had when
9
I
they discussed the problem with the wall
10 variances. Yes, my client's applied for wall
11 variances, but that has really nothing to do
12
with the particular issue before this body.
13
And that is side setbacks for primary
14 residence on lots that are 440 by 95 feet
15
wide.
And I ju~t have a problem with the
16 predicate and probative values.
17
THE COURT:
The predicate objection's
18
overruled.
I want to deal with the summary's
19 objection.
20 Do you disagree -- do you agree that
21 this is a summary?
22
MS. DOUGALL-SIDES:
I think Mr. Richter
23
indicated that this two-page document is a
24 summary from the central performing
25
departmental records of certain variances that
82
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he discovered in the neighborhood of Harbor
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Oaks.
3
Did you provide Mr. Maguire
THE COURT:
4
with notice of your inte~t to introduce
5
summaries and provide him with an opportunity
6
to review the underlying data?
7
No, I haven't, your
MS. DOUGALL-SIDES:
8
I would note that under Chapter J.20
Honor.
9
we're not following the strict rules of
10
evidence in this proceeding.
And I think that
11
your Honor has been extremely lenient towards
12
Mr. Maguire in allowing him to present what's
13
,
essentially a summation as his sort of opening
14
statement and then allowing'his client to
15
present a narrative testimony with no direct
16
questioning by Mr. Maguire.
17
But I did not do so over
THE COURT:
,18
objection.
,19
MS. DOUGALL-SIDES:
All right.
20
We did that without
THE COURT:
21 ' objection.
,
22
MS. DOUGALL-SIDES:
We seem to be
23
following an informal procedure this morning.
24
I don't think there's any necessity that I
25
provide Mr. Maguire, even under rules of
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evidence, with any summaries.
2
THE COURT:
Were you required to provide
3' a notice of intent to do so with sufficient
4 time for the other party to obtain through
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5
discovery?
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MS. DOUGALL-SIDES:. Mr. Maguire has not
7
used any discovery procedure, has not
8
requested any discovery.
9
MR. ARMSTRONG:
Your Honor, I believe
10
the record ,below shows that at the hearing
1~
itself there was discussion about other
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variances granted in the neighborhood, the
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history of the neighborhood.
And that's
14
something that was brought out and discussed,
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15
and that is a part of the record today?
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16
MR. MAGUIRE:
I believe that Mr. Richter
17 may have in his staff report talked about
.,
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18' those type of things, but I don't know that
~ .;
~9 there was ever any sworn testimony on his pa~t
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20
with respect to that.
And, again, what we're
: ,
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looking at is the probative value as it
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relates to this particular property.
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No predicate
well, you already ruled
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on the predicate.
I just don't know what
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they're going to talk about.
And that's the
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purpose for giving the summary. If I knew
what files we were talking about, I could have
gone down and simply reviewed the City
records.
I have not had that opportunity,
therefore, it's very difficult for me to be in
a position to cross-examine the witness based
upon a summary of information that they have
in their files that I didn't know they were
goi~g to use.
MR. ARMSTRONG:
If I,may, your Honor?
THE COURT: ' Yes.
MR. ARMSTRONG:
At the hearing below,
our expert Alax Paliko, who is a former member
of the Board of Adjustment for at least J.O or
J.2 years, spoke about other variances in the
area. He was present at that hearing. He
did, in fact, could have cross-examined him
about those issues had he chosen to. He
elected not to.
But we're not introducing any new concept
in the mist of that.
That concept of what
historically has happened with respect to
variance applications in Harbor Oaks was
previously discussed on the record with
Mr. Maguire present.
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8
1
I think that if this were an
2
evidentiary -- I mean, if this were a typical
3
120571 hearing, the objection to the
4
admissibility of summaries is appropriate.
In
5
fact, an opposing party, Ms. Dougall-Sides has
6
to have notice of the intent to use summaries
, ,
\
7
before it can exercise its right to undertake
8 discovery to review the underlying data.
9 It's a fact that Mr. Maguire didn"t
10 understand any discovery is not particularly
11 important since he didn't receive notice of
12
intent to use the summaries.
However, if the
'~
13
matter was discussed, I mean, this is a hybrid
14
proceeding, the matter was discussed in the
15
lower proceeding, then I think this probably
~6
can come in as evidence that supplements or
17
explains the lower record or the record of the
18
Board proceeding.
19
THE COURT:
So I think that City's Four
20
is identified on the record as admitted into
2J.
evidence over objection.
May I have a copy of
22
that, please? That's a two-page exhibit.
23
Mr. Maguire, do you have a copy of this?
24
MR. MAGUIRE:
Not even as we speak I
J
25
don't.
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THE COURT: Ms. Dougall-Sides.
MS. DOUGALL-SIDES: Yes, your Honor.
Mr. Richter --
I would like a copy.
MR. MAGUIRE:
I
still don't have one.
THE COURT: All right. "
Ms. Dougall-Sides.
MS. DOUGALL-SIDES: Mr. Richter, what, if
any, role did you play in advising the Board'
below regarding the s~bject application?,
MR. RICHTER: I prepared a written staff
recommendation for the Board. And in
addition, I appeared at, the meeting and
presented the staff recommendation to the
Board.
MS. DOUGALL-SIDES: Did you visit the
site prior to the Board meeting?
MR. RICHTER: Yes, I did.
MS. DOUGALL-SIDES: Have you visited
since then?
MR. RICHTER: Yes, I have.
MS. DOUGALL-SIDES: Now, you said you
prepared a report for the Board?
MR. RICHTER: Yes.
MS. DOUGALL-SIDES: What were your
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conclusions generally in that report?
2
MR. RICHTER:
The conclusion was that
3
the
4
MR. MAGUIRE: Your Honor, I'm going to
5
object.
I believe that report's in evidence
6
as part of the record.
It's the best evidence
7
and speaks for itself.
There really needs to
8 be no testimony to that.
9
MS. DOUGALL-SIDES: Very well.
Withdraw
10
the question.
May I ask whether'the report
11 recommended approval?
12
THE COURT:
You can ask whatever you want
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13
to.
If Mr. Maguire finds it objectional, I'm
14
sure he'll object to it.
But I'm not going to
'I
15
rule on your question in advance.
"
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16
'MS. DOUGALL-SIDES: Mr. Richter, do you
.~ ..
17 have an opinion as to whether the subject
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18 application met the criteria contained in the
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19 code of ordinances for variance approval?
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20
MR. RICHTER:
Yes, I do.
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MS. DOUGALL-SIDES: And what is that
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23
MR. MAGUIRE:
I'm going to object if it's
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24 going to be reiteration of that which is going
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to be already in the record.
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MS. DOUGALL-SIDES: It's not a
reiteration of what's in the record. This is
an expert witness testimony and opinion which
supplements the record, which is allowable
under the code procedures.
THE COURT: Overruled.
MS. DOUGALL-SIDES: Thank you.
THE COURT: Generally speaking, if a
document is in evidence, then I consider
testimony that simply reiterates the content
of the document to be cumulative and the
objection's well-founded. But I do permit
parties to bring out certain points that they
want to emphasize and make it assimilative, so
go ahead.
MS. DOUGALL-SIDES: All right. What is
that opinion?
MR. RICHTER: The opinion is that the
variance sets forth standard for approval
contained in the code.
MS. DOUGALL-SIDES: Nothing further, your
Honor.
THE COURT: Mr. Armstrong~
MR. ARMSTRONG: Were you present at the
hearing, Mr. Richter?
89
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MR. RICHTER:
Yes, I was.
2
MR. ARMSTRONG:
You heard the discussion,
.3 then, by the Board?
'4
10
MR. RICHTER: Yes.
5
MR. ARMSTRONG: Do you recall whether the
6 Board considered standard approval?
7
Objection, your Honor.
We
MR. MAGUIRE:
8
have the record to state what they said.
They
9 said what they consider is part of the
'record.
He's asking for hearsay testimony of
1J. what the Board may have considered ask him to
12
13
speculate.
We have a record what they did and
did not do.
There's no need for Mr. Richter
14 to give his opinions of what may have been
15
16
said.
We have a record.
MR. ARMSTRONG:
I'm not going to ask
17 Mr. Richter his opinion of what was said.
18 What I'm going to ask is if in his opinion the
19 Board thoroughly discussed the standard of
20 approval and applied it to the factor argued
21 by the appellee.
22
MR. MAGUIRE: Why isn't that an opinion
23 on what I'm supposed to determine?
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25
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MR. ARMSTRONG:
It's the opinion of an
'opinion of the certificate whether the Board
90
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applied'the criteria that they are required to
2
under the code.
That's why it's relevant,
3 your Honor.
4
Overruled.
THE COURT:
5
MR. RICHTER: Yes, yes, they did.
They
6
routinely do that.
This application was no
7
different than any others.
They routinely
8 apply the four standards for approval.
9
No further questions.
MR. ARMSTRONG:
,1'0
THE COURT:
Cross.
11
MR. MAGUIRE: Yes, your Honor.
Thank
12 you.
J.3
Mr. Richter, you're a planning expert in
J.4
a single family residential zone.
Is the
~s ability to build a single family residential
16 home a reasonable use of property?
17
MR. RICHTER:
Certainly.
18
MR. MAGUIRE:
If there were a strict
,
19 application of'the side setback variances to
20 the Marks home ~nd the applicant, the home
21
owner could still build a 5 or 6,000 square
22 foot home without the side setback variances
23
in a residential zone.
Wouldn't that be a
24 reasonable use of this property?
25
MR. RICHTER: You know, it may be that
, 91
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there are different degrees of what's
reasonable and what's not reasonable. Some
things may be more reasonable than others.
MR. MAGUIRE: Okay. But the ability to
build a 5 to 6,000
THE COURT: Let me interrupt you, for a
second. If a question solicits a yes or no
and if you can answer that question yes or no,
give that answer first. And then if you want
to explain that answer, you can do, that. If
you cannot answer a question yes or no, then
state that fact and explain why.
MR. RICHTER: Yes, sir.
THE COURT: Ask your next question.
MR. MAGUIRE: You can see this diagram
that was discussed earlier; correct?
MR. 'RICHTER: Uh-huh.
MR. MAGUIRE: Is there anything
particularly different about the topographical
or size and shape of, say, Mr. Walter's lot
and Mr. Marks' lot?'
MR. RICHTER: No. They're probably far
more similar than they are different.
MR. MAGUIRE: Does the code apply equally
to Mr. Walter's property as it does to
2)
o
20
21
22
23
24
25
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Mr. Marks' property?
2
MR. RICHTER: Absolutely.
3
MR. MAGUIRE: And you're familiar with
4 that lot, too, I'm sure to some degree;
5 correct?
6
MR. RICHTER: To some degree.
?
MR. MAGUIRE: And that's pretty similar
,8
to this, correct, to these two?
,
9
MR. RICHTER: Yes.
10
MR. MAGUIRE: And isn't it true that
J.J. there are a number of residences that have
12 these long lots of less than 100 feet all ~he
'J
. ../
13
way through this area, there's several homes?
14
.'
I'm not certain, no.
MR. RICHTER:
15
MR. MAGUIRE: Well, at least we know
16 there are three that are pretty much similar
17 in width and length; is that correct?
J.8
MR. RICHTER: Yes.
J.9
MR; MAGUIRE: Similar to and they're all
20 surrounded by the same thing; is that right?
21
MR. RICHTER:
Yes.
22
MR. MAGUIRE:
So they share similar
23
physical surroundings.
There's nothing to
24, differentiate the Heye's, the Marks', and the
25
Walter's property as far as physical
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surroundings; ,is that correct?
2
MR. RICHTER: Generally they're very
,3
similar.
4
MR. MAGUIRE: All right. And the shape
5 and topographical conditions of these three
6 lots are all pretty much the same?
7
MR. RICHTER: Yes.
8
Okay.
What, then, special
MR. MAGUIRE:
:9
circumstances under code section 120 what
10 special circumstances differentiate Marks from
11
the physical surroundings, shape, or
J.2 topography of the Heye and the Walter
13
property?
14
MR. RICHTER: The special circumstance or
15 the primary special circumstance is the
16 narrowness of the lot.
17
MR. MAGUIRE: But they all have that
18
It's not unique just to Marks; is
narrowness.
J.9 it?
20
MR. RICHTER: No.
The narrowness of the
2~
lot is not
is not unique out of those
22 .three lots to Mr. Marks' property.
23
MR. MAGUIRE: Now, the city commission
24 knows that they have this zoned RS-2i right?
25
MR. RICHTER:
I trust they do.
. 'I
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1
MR. MAGUIRE:
Now, isn't it true that
2
when you grant a variance, a variance is
,3
supposed to be only that which is minimally
4
necessary to overcome the hardship?
Isn't
5
that an accurate statement?
6
MR. RICHTER:
I don't think so.
7
'MR. MAGUIRE:
Oh, you don't think Florida
8 ' ,law provides that?
9
Objection to the
MS. DOUGALL-SIDES:
10
question asking the witness to speculate on
Florida law.
12
MR. MAGUIRE:
Your Honor, if an expert
13
witness bases an opinion under erroneous
14
concepts of law, then his testimony is subject
15
to being stricken now.
16
Objection to basis of
MR. ARMSTRONG:
17
relevancy.
The relevance standard is the code
18
in the Clearwater land development code.
19
That's what governs this application.
20
MS. DOUGALL-SIDES:
If he wants to ask
21
him about land development codes.
MR. MAGUIRE:
Contract code, whatever it
mig~t be, incorporates the organic law of the
24
Organic law of the State of Florida is
state.
25
that a variance shall not be granted to any
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greater extent than is necessary to minimally
2 overcome hardship or for the special
3 circumstance.
4
THE COURT:
I don't think this witness is
5 competent to testify o~ render opinions
6
regardi~g Florida case law.
You can
7 accomplish the same thing with hypothetical
" ,
8
9
10
~ .:
questions with an expert.
Objection is
sustained.
MR. MAGUIRE: Mr. Richter, how wide is
11 the Marks lot?
12
'.~
13
MR. RICHTER:
95 feet.
MR. MAGUIRE:
And that is what percentage
14 of the required lot width?
, 15
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16
',>'"
MR. RICHTER:
95 percent.
MR. MAGUIRE:
So the granting of the lot
" ,
17 'width,variance and you said narrowness is the
. /.:.\
18 problem here, there was a five percent
::~
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19 variance grant for lot width; is that
20 correct?
21
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22
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MR. RICHTER:
Yes.
MR. MAGUIRE:
What would a five percent,
23 variance for side setbacks be?
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MR. RICHTER:
Five percent.
MR. MAGUIRE:
Fifteen feet is required;
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correct?
2,
MR. RICHTER:
97
Okay.
Ninety-five percent
3 of fifteen times two, well, there~s two side
4
setbacks, two setbacks are at issue of one
5 side setback, that's --
6
MR. MAGUIRE: What's five percent of ls?
7
MR. RICHTER: Two and a quarter.
a
MR. MAGUIRE: T,wo and a quart er wha t?
9
MR. RICHTER:
10
MR. MAGUIRE:
11 that?
12
MR. RICHTER:
13
I'm sorry.
J.4
MR. MAGUIRE:
15
MR. RICHTER:
16
Feet.
Do you want to recalculate
I'm thinking 50 percent.
Five percent of fifteen.'
Ten.
MR. MAGUIRE: Okay.
6-inches.
17
MR. RICHTER:
18
MR. MAGUIRE:
Let's try lineages.
Okay.
So the code
19 requires -- so we've got a five percent lot
20 width problem, but you granted a fifty percent
21 side setback variance. Now, there's an awful
22
lot to overcome.
The construction of nine
23 inches on either side of the side setback, why
24 did you do that?
2S
MR. RICHTER: You're asking my why did I
I"j
.....~ ...
1
do that.
I'm not sure I fully agree with your
2
hypothesis.
3
I wi~hdraw the question.
MR. MAGUIRE:
4
Of the variance summaries that you have
5
had placed into evidence through counsel, how
6 many of those were for construction of a new
7 primary residence?
) ,
MR. RICHTER:
I think one.
8
9
And which one was that?
MR. MAGUIRE:
10
MR. RICHTER:
I'm not sure.
I'd have to
11
review them to ascertain ,that.
12
You say you reviewed your
MR. MAGUIRE:
'~)
J.3
files, correct, regarding these variance
14
grants in Harbor Oaks and Druid Road; is that
15
correct?
;' ..
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16
I said I extracted those
MR. RICHTER:
17
variances out of our computer records.
;,
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THE COURT:
Do you know whether or not
18
19
any of those were for the construction of a
:i.
I,. .
20
brand-new primary residence?
; ~ ~..
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21
MR. RICHTER:
At least one was.
It may
22
be the Morton one, but at least one.
23
MR. MAGUIRE:
I'm going to show you that
,"
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24
which has been provided to the administrative
::.
\J
25
law judge.
Could you tell me which one that
l-t.
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99
1
is?
2
316 Lois Path.
MR. RICHTER:
That is the
3 only one?
4
MR. MAGUIRE: And how much of a variance
5 was granted there?
6
MR. RICHTER: Well, I don't have my list
'7 anymore.
8
MR. .MAGUIRE:
Excuse me.
9
The variance was four and a
MR. RICHTER:
10
half feet out of a required 25 feet.
That was
1J.
a front setback property.
12
So there was 25 feet
MR. MAGUIRE:
13
required and only 4.5 feet approved?
MR. RICHTER: Yes, sir.
MR. MAGUIRE: That is less than 20
percent of variance for the required setback;
is that correct?
14
IS'
16
17
18
MR. RICHTER:
Yes.
19
How many homes are allowed
MR. MAGUIRE:
20 to be built on the Marks property?
21
MR. RICHTER: One.
22
MR, MAGUIRE: Can a single family home be
23 built on this property without a side setback
24 variance?
25
MR. RICHTER:
Yes, it can.
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MR. MAGUIRE: No further questions.
2
THE COURT:
Redirect, Ms. Dougall-Sides.
3
MS. DOUGALL-SIDES:
Thank you, your
4 Honor.
5
Mr. Richter, you heard Mr. Maguire's
6 questioning regarding, if I have this
7 correctly, what special circumstances might
8
differentiate one lot from anothe~ lot.
Do
9 you recall' that question?
10
MR. RICHTER: Yes.
11 MS. DOUGALL-SIDES: Is' that a factor that
12 the DCAB Board looks at, which circumstances
13
diff~rentiate one lot from another lot?
14
Objection.
I1R. MAGUIRE:
She's calling
15 for the interpretation of the code by the DCAB
16 Board by the witness when the code provisions
17 are set forth in the code, and that's what
18 they have to interpret and that's what they
19 have to go on. And he's not qualified to
20
comment on anything other than the code.
I
2J.
mean, the code says what it says.
How am I
22 trying to say this?
23
MS. DOUGALL-SIDES:
Let me
24
MR. MAGUIRE: An expert may not
25
testify --
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101
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1
THE COURT:
Ms. Dougall-Sides is going to
2
rephrase it.
.3
MS. DOUGALL-SIDES:
In reviewing various
4
applications, do you as staff look at what
5
special circumstances differentiate one lot
6
from another lot or do you use some other
7
criteria?
8
MR. RICHTER:
Well, that would be one
9
component of our review.
10
MS. DOUGALL-SIDES:
Do you look at what
11 special circumstances may exist on a
12 particular lot or'do you look at what special
.~
J.3
circumstances differentiate one lot from
1,4
another lot or some other focus?
" ~
15
MR. RICHTER:
Gee, there's many
",
:~~':c'
16
ingredients that go into this recipe.
And
" '
'.
"
17 what might differentiate between one lot and a
18 neighboring lot would be one com~onent, but
'1.',1
.:, .. ~
19 it's certainly far more broad than that.
.,'
,.
20
MS. DOUGALL-SIDES:
Are you generally
. .~ "
~~. .
,',
21, familiar with the percentage variance ,which is
22
granted by the Board on different
','t.
23
applications?
:i:'
"
24
MR. RICHTER:
Yes, that's a consideration
o
25
addressed to the variance.
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1
MS. DOUGALL-SIDES:
From your personal
2 knowledge, does the Board normally give the
3
same percentage variance for each type of
4' variance requested or does the Board give
5 different percentage variances for the
6 different variances requested?
?
MR. RICHTER: Different percentages.
8
MS. DOUGALL-SIDES: Nothing further.
9,
THE COURT: Mr. Armstrong.
10
MR. ARMSTRONG: : Yes. Mr. Richter, I'd
11 like to ask you some questions about
,12
reasonable use of property.
Okay?
13
Certainly.
MR. RICHTER:
14
Can you imagine for a
MR. ARMSTRONG:
15 moment we have a lot that is 250 feet wide and
16 2,OOO,feet long. And let's assume for the
17 sake of this example is zoned RS-2.
18
I'm going to object to the
MR. MAGUIRE:
19 hypothetical as based on anything remotely in
20 evidence.
21
MR. ARMSTRONG: May I respond, your, Honor?
22
THE COURT:
Yes.
23
MR. ARMSTRONG: Mr~ Maguire questioned
24
Mr. Richter about what is the reasonable use
25
of the land seeming to imply ,a long, narrow
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~
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1
house is necessarily a reasonable use.
This
2 is a follow-up question on precisely that
3 point.
4
THE COURT: The objection, though, is
5 that the question that you're using seems
6 facts not in evidence.
7
MR. ARMSTRONG:
This is a hypothetical
.C,'
8 question.
9
THE COURT:
I know. And hypothetical
10 questions are appropriate if they help relate
11
to facts in evidence.
But you're
and I'm
12 not ruling, I'm just trying to focus your
".,-)
13
reply to the thrust of the objection.
And
14 that is that the hypothetical essentially is
15 irrelevant because it addresses facts not in
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16 evidence.
17
MR. ARMSTRONG:
Okay.
Can we assume for
18 a moment we have a lot that is 420 feet in
19 length.
20
THE COURT: Okay.
21
MR. ARMSTRONG: And can we assume that it
22 is SO feet wide.
23
MR. MAGUIRE: Same objection.
24
MR. ARMSTRONG: Let's assume it's 95 ,feet
:J
25
wide.
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MR. RICHTER:
Okay.
2
If we apply the standards
MR. ARMSTRONG:
3 literally, the house conceivably of 10,000
4 square feet could be built; correct?
5
MR. RICHTER: Yes.
6
MR. ARMSTRONG: What would it look like,
7 generally?
8
It would --
MR. RICHTER:
9
I'm going to object.
MR. MAGUIRE:
J.O Doesn't even qualify' as an architect and
11 render word pictures for us today on that. I
12 think you're talking about where a house could
J.3
be located, what kind of dimensions it might
14 be able to add.
15
MR. ARMSTRONG: I'll rephrase it.
16
MR. MAGUIRE: All right.
17
In your opinion, would
MR. ARMSTRONG:
18 an extremely long and narrow house necessarily
19 be a reasonable use of the property or might,
20 in fact, that not constitute a reasonable use
21 of the property?
22
MR. RICHTER:
It may not be a reasonable
23 use of the property.
24
MR. ARMSTRONG:
In determining whether a
25
parcel of land has unique circumstances, is
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there any sort of quote that there can be only
2
one hardship in a particular neighborhood?
3
MR. RICHTER:
Would you repeat the
4 question, please?
5
MR. ARMSTRONG:
Just because a neighbor
6 has a hardship that does not mean that 'an
7 adjacent property might not also have a
8 hardship; is that a true statement?
9
MR. RICHTER: Yes.
10
MR. ARMSTRONG: No other questions.
11
THE COURT:
Thank you.
You're excused
12 from your oath. You're excused as a witness.
..~
_..I
13
You're free to remain in the hearing if you
14 wish to.
15 Call your next witness,
16 Ms. Dougall-Sides.
J.7 MS. DOUGALL-SIDES: I want to discuss the
18 remainder of the hearing. Let's go off 'the
19 record.
20 (At this time a'discussion was held off
21 the record.)
22
THE COURT:
Does appellant want to submit
23 a smaller copy of that diagram? You don't
24, have a copy with you?
o
25
MR. MAGUI,RE:
No, I don', t .
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1
This is submitted as a late
THE COURT:
2 file exhibit and it would be Appellant's Six.
3
Is' there any, objection, Ms. Dougall-Sides?
4
No, sir, as long as
MS. DOUGALL-SIDES:
5 the City could be provided.
6
MR. MAGUIRE: We dertalnly would.
7,
Ms. Dougall-Sides.
THE COURT:
8
MS. DOUGALL-SIDES: No,objection.
9
THE COURT: And Mr. Armstrong, do you
have any objection to Appellant Six?
10
11
,
MR. ARMSTRONG:
No, that's fine.
12
THE COURT: Appellant Six is identified
13
on the record as admitted in evidence without
14
objection.
Have that filed with me by next
15
Friday.
Will that give you enough time?
16
MR. MAGUIRE:
I think that's the fourth.
17
THE COURT: All right.
Let's recess.
18 We'll come back at 12:10.
19 (A short break, was taken.)
20
THE COURT:
Ms. Dougall-Sides,' you ,have
21 some exhibits you said you wanted to submit?
22
MS. DOUGALL-SIDES:
Yes, sir.
I have
23 just a few additional exhibits for the City.
24 And those would be certified copies of certain
25
code sections.
First one is section 325.11
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20
21
22
23
24
25
definitions which contain the dimensions and
setbacks.
THE COURT: This would be City'S Five.
You want this as a composite?
MS. DOUGALL-SIDES:
It could be or
whatever your preference.
THE COURT: Let's do the whole thing as
composite.
MS. DOUGALL-SIDES:
Should I read the
additional sections into the record, then?
THE COURT: Everyone have a copy?
MR. MAGUIRE: Yes, your Honor.
THE COURT: City's Five, Mr. Maguire, any
objection?
MR. MAGUIRE: No I your Honor.
THE COURT: City's Five is identified on
the record as admitted in evidence without
objection.
Ms. Dougall-Sides?
MS. DOUGALL-SIDES: Nothing f~rther for
the City, your Honor.
THE COURT: Mr. Armstrong?
MR. ARMSTRONG:
I would like to
Yes.
call Mr. Alax Paliko as a witness.
THE COURT: Do you swear or affirm the
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evidence yo~ will provide is the truth and
2 nothing but the truth?
3
MR. PALIKO: I do.
'4
THE COURT: State your first and last
5 name and spell each.
6
THE WITNESS:
My name is Alax, A-L-A-X,
,7
Paliko, P-A-L-I-K-O.
8
THE COURT: Mr. Armstrong.
9
MR. ARMSTRONG: Will you please state
10 your occupati~n and your address.
11
I'm an architect.
MR. PALIKO:
I
J.2 practice in the City of Clearwater at 800 Drew
13
Street and I also live at 706 Oak Avenue,
14 which is in Clearwater.
15
MR. ARMSTRONG: How long have you been in
16 practice as an architect in Clearwater?
17
MR. PALIKO:
24 years.
18
In addition to your
MR.. ARMSTRONG:
19 practice as an architect~ have yo~ served on
20 the City of Clearwater Development Code
21 Adjustment Board?
22
Yes, I have.
MR~ PALIKO:
23
MR. ARMSTRONG: How long did you serve on
24
'that Board?
,25
MR. PALIKO:
12 years.
108
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MR. ARMSTRONG:
Were you retained by Mr.
2 and Mrs. Marks to assist them in the
3 construction of their home?
. 4
5
MR. PALIKO:
Yes.
MR. ARMSTRONG:
Do you believe that part
6 of the reason they retained you was your
7 familiarity and background with homes in the
8
9
10
Harbor Oaks area?
MR. PALIKO:
I do.
11 some of the projects you've been involved with
MR. ARMSTRONG:
Can you describe briefly
12 in the Harbor Oaks area?
13
MR. PALIKO:
In this district RS-2 I've
14 worked on three projects just north of Heye's
lS
16
17
18
19
house.
I remodeled the one house that is down
20 two or two and a half lot of the 90 foot width
by the water to about 4,000 square feet.
It
was owned by a Nigel Manuel (phon).
The
Fuller's own 'it now.
The Fuller estate, which
is basically
I can't remember if it is a
21 that was done for Nigel Manuel that required
22 variances and then to the house north of that
23, owned by the Fuller's, that was owned by Rick
24
25
Heye.
We got variances of one foot from the
side property line to do an addition on that
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house and recently I'm working on anpther
2 house in the RS-2 district which is on '
3
Magnolia for a Dr. Dorken (phon), which we
'4 received, I think, six variances to allow us
5 to build on that property.
6
MR. ARMSTRONG:
For the record, I'd like
7 to submit Mr. paliko's resume.
8
MR. MAGUIRE: No objection.
9
THE COURT: This would be Appellee 'Marks
10
One. Mr. Maguire, do you have any objection
to stipulating Mr. Paliko as an expert in the
11
12 field of architecture?
13
MR. MAGUIRE:
No objection.
14
THE COURT: Appellee Marks One is
15 admitted in evidence without objection. And
16
the witness is accepted as an expert in
17
architecture without objection.
18
MR. ARMSTRONG: Mr. Paliko, can you
19 please describe to us some of the physical
20 characteristics of the Marks property that
21 impacted you from design standpoint in
22
discharging your duties as an architect?
23
MR. PALIKO:
Besides the narrow and the,
24 long length of the property is unique, it has
25
the bluff with a grouping of three oak trees.
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Two of them are 42 inches in diameter, one is
2 62 inches in diameter, which sit relatively at
3 the top of the bluff within about 25 feet of
,4 the top of the bluff.
5
Can you please identify
MR. ARMSTRONG:
6
those in the site plan?
7
MR. PALIKO:
They would be right in this
8 area right here.
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9
MR. ARMS'rRONG:
Did you happen to go up
lOon the, Marks property and 'take a picture of
1J.
those oak trees?
12
Yes, I did.
MR. PALIKO:
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MR. ARMSTRONG:
Is this the picture?
13
14
MR. PALIKO: That is correct.
15
MR. MAGUIRE: No objection.
16 MR. ARMSTRONG: I'd like to admit this as
17 Marks Exhibit Number Two.
18
THE COURT: Appellee Marks Two is
19 identified on the record, is admitted in
;
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20 evidence without objection.
I,r,
<1"1.
21
MR. ARMSTRONG:
Can you describe the
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22 width and the canopy of those oak trees,
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23 Mr. paliko?
"',,
MR. PALIKO,:
The canopy's about so feet
24
, .
o
25
in diameter roughly with the three trees that
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to Mr. Marks property.
In fact, I requested
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kind of cluster and almost become one tree on
2, the center of the site. Back to the analysis
3 of the property, though. I think I do need
4 add when I did visit the site, I was very
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conscientious to make sure that I reviewed
6 property to the south and the property to the
, ,-
7 north around the property of those two homes
,....
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9 that the surveyor of Mr. Marks survey and
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10. locate both of those homes on the property
11
before we proceeded with any of our design
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12 analysis of the site.
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MR. ARMSTRONG: And did you do anything
14 else?
15,
MR. PALIKO:
In regard to -- no, that's
16 basically,the beginning of the analysis.
17,
MR. ARMSTRONG:
Go back to the trees for
\.,.,
18 a moment?
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19
MR. PALIKO:
SUre.
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MR. ARMSTRONG:
The width of the trees is
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21 42 inches, 42 inches and 60 inches?
22
MR. PALIKO:
That's correct.
: J '/
23
MR. ARMSTRONG: Do the limbs of the trees
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24 extend over the side property line on each
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25
side of the Marks lot?
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MR. PALIKO:
I don't believe so.
I think
113
2' it comes just to the edge of house on the
3 north side.
4
MR. ARMSTRONG:
Can you describe
5 generally the proposed location of the house
6 with respect to their properties?
~
7
MR. PALIKO: Basically, how we designed
8 the initial'site plans to go for variance and
9 did the analysis when the Marks first
10 approached me to do the job, they asked me
11 to -- they said they thought that the garage
12 should be on the south side with the rear of
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it being toward the Walter's, and that
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15 would be able to wrap around the trees on the
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west side of it.
But with our history in that
17 neighborhood and knowing the root spread of
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18 the size of these oak trees and everything,
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"
20 trees and to be toward the west side of those
, '
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22 the top of the bluff.
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23 I suggested that when we were doing it,
24 because of the proximity of the Walter house
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to the property, that we flip the concept
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Put the garage on the north side so
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over.
2 that it ,would have less impact on the Walter's
3 house on the east end of the site, and because
4 the,Heye's house has more of a east west
5
orientation and doesn't really orientate on
6 the side of the house onto the Marks'
7 property.
8
Are you familiar in your
MR. ARMSTRONG:
9
duties as an architect with other developments
10
on this area of the bluff in Clearwater?
11
MR. PALIKO:
Yes.
12
Can you describe some
MR. ARMSTRONG:
13
nearby properties that have been developed?'
J.4
MR. PALIKO:
Most of the -- considering
15
that all these lots were built before current
16
zoning codes, except for Spotus Woods, which
17
I'll direct at the end of this, basically'has
18
been remodeled or renovations of the homes.
'19
Mr. Sussman's (phon') house to the south of
20. Magnolia opposite of the Walter house received
21 several variances to build a garage,
22
recreation type building that actually sits on
23
top of the bluff.
That would be directly
24
across from them.
25
Then as you go north, the Heye's
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basically and the Mather's house has basically
2 been the same footprints since really when
3 they were built there might have been some
4 modifications, b~t they're very similar.
5 Then 'you go to the next property north of
6
Heye's which is 90 feet in width.
Presently
7 on that piece of property is a 4,000 square
8 foot house which is within J.5,feet of the
9 water down below and four feet of the south
10 property line. And the Fuller's house
,j
11 presently owned by the Fuller's, and I believe
12 that is two lots, two 90-foot lots that house
.,-)
13
is from three feet of the house from three
14 feet on the north. We basically did three and
15 a half million worth of work on that site of
16 which a lot of it was new construction where
17 we actually tear down the building and built a
18 new portion of the house plus a three-story
19 unique type garage that has a lift on the
20
front which we had to get variances for.
That
21 would be from Druid Road.
22 And then the house to the north of that
, ,
, '
23
is al'so owned by the Fuller's. Now, t'hat is
24 another 90-foot lot that has the bluff
o
25
that house is almost up to the bluff.
In
116
,~
1
fact, a swimming pool on that piece of
, ri\ \
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2
property is built into the bluff with an old
3
elevator type building.
You proceed onto
4 Spotus Woods, which used to be a large
5
estate.
They moved the main entrance to that
6
estate.
And that also'had a bluff. And it's
7 built up of a bunch of very small lots, about
8
the same size lots which are in the RS-6 which
.9
is the Harbor Oaks section.
Spotus Woods is
~ .
10 actually classified in the Harbor Oaks
11 .neighborhood.
12
MR. ARMSTRONG:
Is it fair to say there,
,')
13
in fact, has been development along the
. '\
14 bluff?
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15
MR. PALIKO:
Oh, yeah.
Because the
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neighborhood was deteriorated in the '50s.
It
J.7 started coming back, in fact, Mr. Cousin and
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properties.
And Mr. Manuel,when he came into
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22 Mr. Heye to the north has revamped his piece
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of property.
So it's a resurgence of the
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whole bluff area, but it's all kept within the
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historical context of the Harbor Oaks
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neighborhood.
MR. ARMSTRONG: When you testified in
3 front of the Board of Adjustments, did you
4 talk about the setbacks, the actual existing
5
setbacks on properties to the north and to the
6 south of the Marks property?
7
8
MR. PALIKO:
That's correct.
MR. ARMSTRONG:
Did you have this diagram
9 with you to assist you in your testimony?
10
11
12
13
14'
15
16
MR. PALIKO: Yes.
MR. ARMSTRONG:
I'd like to admit this.
THE COURT: Appellee Marks Three.
MR. ARMSTRONG:
Yes, sir.
THE COURT: Mr. Maguire.
MR. MAGUIRE: No objection.
THE COURT: Appellee Marks Three is
17 identified on the record, is admitted in
J.8 evidence without objection.
19
MR. ARMSTRONG:
In your service as a
20 member of the Board of Adjustment, did you
2J. from time to time approve variances for the
22 land development code?
23
24
25
,~"",~-''''---'~~--''''''-''-'~.~"
MR. PALIKO:
Yes.
MR. ARMSTRONG: And did you do that
because you felt the applicant had met the
117
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standards of approval?
MR. PALIKO: That is correct.
MR. ARMSTRONG: Is it your opinion that
in this in'stance the Marks have met the
standards of approval?
MR. MAGUIRE: I'm going to object. The
testimony -- well, number one, he can be
asked architectural questions. He's not been
qualified as a member of the planning or DCAB
Board. He's not a member of it and he did not
testify or give any testimony that they had
met the requirement. He simply gave his
documents and drawings and architecture
opinions, but he'did not give an ultimate
opinion on whether the criteria of section
45.24 had been met. And I think he can
testify as to architectural matters and that's
it. If that's what he can testify to, that's
what he's been qualified for.
MR. ARMSTRONG: I would agree he's been
qualified as an architect. I think my
recollection of my review of the tape, my
impression was that Mr. Paliko, in fact, did
give an opinion as to whether the standards
have been met.
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Can.I ask Mr. Paliko the question whether
2 he gave an opinion?
3
Well, you're withdrawing the
THE COURT:
4 question that was objected to and you're going
5 to ask another question.
,6
Did you give an opinion
MR. ARMSTRONG:
7 as to whether the Marks had met the standards
8 of approval?
9
MR. PALIKO: Not directly verbatim for
J.O
items one through four.
I'm not an attorney.
11
I didn't address it in that manner.
I made a
J.2 presentation based on land planning and
13
architecture and directed why we were
14 i~questing the variances in a generalization
15 to those four items.
16
,MR. ARMSTRONG:
Okay.
Do you have an
17 opinion as an architect as to whether those
18 standards have been met?
19
MR. MAGUIRE:
I'm going to object.
I
20 don't think -- I don't believe he's been
21 qualified as a planner or to give an
22 opinion -- to give an opinion as to whether
'23 or not the criteria of the code has been met.
24 He has given an architectural presentation
25
before the Board. And I don't think he is
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qualified to give an opinion whether the
criteria was met.
Possibly Mr. Richter was because of his
position with the city staff, because he made
that recommendation to the Board. And that's
why we let that particular issue go. But I
don't believe for this hearing at this time
based on the qualifications and predicate,
Mr. Paliko is qualified to render that
opinion.
MR. ARMSTRONG: I think those are matters
that an architect -- and, you know,
Mr. Maguire did stipulate that Mr. paliko was
an expert, in the field of architecture. I
think those are standards that an architect
can give an opinion on as an architect.
MR. MAGUIRE: If I'm
MS. DOUGALL-SIDES: Those standards are
in 45.24.
MR. MAGUIRE: I don't want to interject.
Let me say something informally, if I might.
THE COURT: Before you do, though, oh, I
see. Okay. All right. Give me just a
minute, Mr. Maguire. All right, Mr. Maguire'.
MR. MAGUIRE: I think it's appropriate
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for him to testify why he feels the standards
2 were met, which is what's in his application.
3 'There's an application that is part of the
4 record, and Mr. paliko had a notarized
5 statement as to why he felt the standards were
6 met. And I think he's perfectly qualified to
7
think why he believes the standards are met,
8
but not give an ultimate opinion.
That's my
9 objection to the form of the question.
10
Sustained. Ask your next
THE COURT:
11 question.
12
MR. ARMSTRONG: Will you please delineate
13
the reasons you set forth in the application
14 as to why those were met previously?
15
MR. PALIKO:
Can I see a copy of the
16 application?
17
I think it's the best
MR. MAGUIRE:
18 evidence, because they are stated in the
19 application.
20
I'll withdraw. What is
MR. ARMSTRONG:
21 the setback of the Walter residence from the
22 Marks side property line?
23
It varies.
MR. PALIKO:
24
MR. ARMSTRONG: As closest point?
25
Our surveyor says about 3.3
MR. PALIKO:
121
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MR. ARMSTRONG: Is that technically the
rear of th~ Walter's home that abuts the side
property line of the Marks?
MR. PALIKO: That would be the northwest
corner of the one-story masonry building.
MR.'. ARMSTRONG: And that property
Magnolia, would that be the rear?
MR. PALIKO: That would be the rear
corner of the lot.
MR. ARMSTRONG: Are you familiar with the
rear setback requirement in the RS-2 zone?
MR. PALIKO: They're 25 feet.
MR. ARMSTRONG: So if Walter's home was
built today, they'd have a 2s-foor rear
setback requirement; is that true?
MR. PALIKO: That is correct, yes.
MR. ARMSTRONG: No further questions.
THE COURT: Further direct,
Ms. Dougall-Sides?
MS. DOUGALL-SIDES: No questions, you'r
Honor.
THE COURT:
MR. MAGUIRE:
Mr. Paliko,
Cross Mr. Maguire?
Thank you.
in your application for
a
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123
approval or application for the variance you
2 responded to various questions regarding the
3, standards of approval and set forth reasons
10
11
12
13
14
15
16
17
18
19
20
21
22
4
5
.6
7
8
9
for them as to standard.
One, you stated the
site is approximately 90 feet in width.
It's
actually 95 feet in width; is that correct?
MR. PALIKO:
That's correct.
MR. MAGUIRE:
In length, and there are
three specimen oak trees of 42, 42, and 60
inches in diameter.
Were you using the term
specimen oak as part of the code, land
development code of the City of Clearwater, or
was that just a generlc statement by you?
MR. PALIKO:
As a professional those are
specimen notes.
MR. MAGUIRE: As a professional what?
MR. PALIKO: Architect.
MR. MAGUIRE:
Okay.
Do you know any
provision in the Clearwater land development
co~e that would prevent the removal of those
trees?
MR. PALIKO:
There's no provision in the
23, code that says the owner cannot cut those
24
25
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down.
The environmental department would
review the site plan and would look at it and
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say if there is a possibility of relocating
2
the structure on the lot,to save these oak
3
They would try to influence the
trees.
4
designer to do that.
But there's nothing in
5
the code that says they're sacred.
6
MR. MAGUIRE:
Now, could you explain to
7
me how the presence, of these trees affects the
8
side setback variance?
I can understand how
9
they might affect where the house is built
10
east or west of,the trees.
11
MR. PALIKO:
Yes, they affect the
12
location of the house.
But when we're going
~)
13
for a variance, not only is the -- when
14
you're requesting the setbacks, they are also
. ;
,15
reviewing the location of the structure that
16
you put on the site.
17
So basically what we're saying is that
18
the trees influenced the location of the
19
house.
They did not influence the side
20
setbacks of the house.
21
MR. MAGUIRE:
Okay.
Under standard
22
number two the code requires that the strict
23
application of the provisions of the code
24
would deprive the applicant of the reasonable
o
use of the land or buildings.
But your reason
25
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was none of the other owners in the district
2 meets 15-foot side setback requirements.
3 How does the fact that Mr. Walter's house
4 doesn't meet setback requirements and
5 Mr. Manson's house and Mr. Heye's house in any
6,
way affect the ability of the Marks to build a
7 home within the required setbacks?
'8
MR. PALIKO: As I stated at the hearing,
9 all these homes were built before we had
10' zoning codes. All the individuals that -- I
J.1 didn't really state this, because all the
12 individuals that own these houses did not have
13
any impact of where the location of the house
14
was on the side.
They're all the
15 nonconforming structures which allows them
16 full utilization from side lot line to side
J.7 lot line. And what I was stating is for an
18 individual to come into basically a historical
19 neighborhood and not be able to have the same
20 rights as the land owners that exist right
21 there is an unfair'use of the zoning codes.
22
MR. MAGUIRE: All right.
But the strict
23 application of that would not prevent anybody
24 from building a 5 to 6,000 square foot home;
25
would it?
125
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1
MR. PALIKO:
If you wou~d interpret
2
MR. MAGUIRE: Would you answer the
, , .
3
question?
4
MR. PALIKO:
Yes.
And then what I'll
5 state is that if you interpret the code in the
6 strictest manner, and this is based on 12
7 y~ars of experience on the Board --
8
MR. ARMSTRONG:
That's not the question I
, '
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9
asked.
10
MR. PALIKO:
He told me I could follow-up
11 if I answered yes or no. And basically -- I
J.2 kind of lost my train of thought.
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13
THE COURT: Well, I'll give you a chance
14 to explain that answer if and when you recall
" I
15
what you were going to say.
Ask your next
J.6 question.
17
MR. ARMSTRONG:
Have her read that back.
\ .
18
(At this time the following question and
19
answer was read by the court reporter.),
20
THE COURT REPORTER:
IIQ.
But the strict
21 application of that would not prevent anybody
22 from building a 5 to 6,000 square foot home;
23 would it?
24
A.
Yes. And then what I'll state is
,~
25
that if you interpret the code in the .
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25
strictest manner, and this is based on 12
years of experience on the Board --"
THE COURT: Does that refresh your
memory?
MR. PALIKO: Yes.
THE COURT: Go ahead and complete your
'explanation.
MR. PALIKO: There would be no need for a
Development Code Adjustment Board.
MR. MAGUIRE: I want to ask you a
question. when you said yes, did you mean
what do you mean?
MR. PALIKO: I was addressing yes you
could build a house on that piece of property,
the question you asked me with 15 foot
setbacks.
Okay. No further
MR. MAGUIRE:
questions.
THE COURT: ,Redirect.
MR. ARMSTRONG: The last question you
answered was yes the house could be built.
Would that, in your opinion, be a reasonable
use of that land?
MR. PALIKO: I think that would be
reasonable use of the land based on what all
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1
the land owners have in that neighborhood.
In
2
other words, they can go property line to
3
property line and to impose that on Mr. Marks
4
is unfair hardship.
5
MR. ARMSTRONG:
Would you say, in fact,
6
preclude him of a reasonable use of the land?
7
MR. PALIKO:
Yes.
8
MR. MAGUIRE:
I'm going to object to that
9
question because that is the ultimate issue
10
before any board administrative law judge.
The reasonable use of the property is a '
11
12
legally defined term and subject to as long as
,~
1,3
a reasonable use can be made that's where
14
determination you have to make.
And I don't
15
think -- I think this witness can state
16
well, I'll withdraw the objection.
17
THE COURT: I think he already answered
18
the question. Ask your next question.
19
MR. ARMSTRONG:
I have no further
20
questions.
21
THE COURT:
And you have no redirect,
22
Ms. Dougall-Sides because you had no direct.
23
I want to ask you a question.
Assume for
24
purposes of this question that another state
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25
agency that you referred to when you're
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1
testifying about the trees disregards that
issue, and assume that i~ you cut those trees
2
3
down, can this house be built so that it's in
i
line to these other houses?
4
5
But the code allows us
MR. PALIKO:
Yes.
. F "
6
to build that house right ther~, or right
7
there, or right there, or right there.
The
8
setback from the water under code, is 25 feet.
9
The rear setback is right here, 25 feet.
10
But if you built it here as
THE COURT:
1J.
proposed without the variance for the side
12
setbacks, then you're either not going to
~
13
build that house as it's currently configured
14
and you're going to make some adjustments to
15
recover the square footage?
16
MR. PALIKO: That's correct.
17
THE COURT: Or if you wanted that exact
18
plan with the other alternative, if you wanted
that exact plan with~e variance to the ,side
19
20
setbacks, which Mr. Walter said he didn't
21
object to, then you move it back at' the
22
expense of the trees?
,23
MR. PALIKO: That's correct.
24
THE COURT: Is that correct?
, ''''':'')
'-'
25
MR. PALIKO:
That's correct.
129
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1
130
"
THE COURT:
That's essentially the
2 dilemma that's faced there.
,,~ .
3
Are there any questions as a result of
4 the questions I asked? Mr. Armstrong?
5
MR. ARMSTRONG:
NO, sir.
6
THE COURT: Ms. Dougall-Sides?
~~ .
7
MS. DOUGALL-SIDES: No, sir.
8
THE COURT: Mr. Maguire?
9
MR. MAGUIRE: Only one comment, sir.
At
10
the very beginning of the hearing we did
1~ indicate that we knew that they could build
12 down within 25 feet of the water, but our
')
;..1
13
primary objection is if their house is
14 extended out into an area west.
15
MS. DOUGALL-SIDES:
I'm going to object
16
to Mr. Maguire's statement.
I think he'll
17 have an opportunity for a closing argument and
18 submission of recommendations.
"
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19
THE COURT: Are you finished with this
",
20 witness?
,
, '
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21
MR. ARMSTRONG:
Yes, sir.
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22
THE COURT:
You're excused from direct.
23 You're excused from your oath. You're excused
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24 as a witness.
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25
MR. ARMSTRONG:
I'll call Ken Marks, Jr.
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MR. MARKS:
Good afternoon.
131
"
2
THE COURT:
Do you swear or affirm the
3 evidence you will provide is the truth and
4 nothing but the truth?
5
MR. MARKS:
Yes, sir.
6
THE COURT:
State your first name and
7
last name and spell each name.
< "
8
MR. MARKS:
Olen Ken Marks, Jr. and it's
" '
9 spelled O-L-E-N, K-E-N, M-A-R~K-S.
10
THE COURT:
Thank you.
Mr. Armstrong?
11
MR. ARMSTRONG: Are you the owner of the
12 subject property?
1
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13
MR. MARKS:
Yes.
14
MR. ARMSTRONG: Who's the owner of the
15 property north of your lot?
16
MR. MARKS:
That would be the Heye's.
17
MR. ARMSTRONG:
Prior to proceeding with
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18 your project to build your home, did you
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19 approach them with the plans for your,proposed
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21
MR. MARKS:
I did.
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MR. ARMSTRONG: Did you ask them a
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MR. MARKS: Yes.
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MR. ARMSTRONG:, What was that question
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you asked them?
2
If they felt it would be okay
MR~ MARKS:
3 to build a house and the garage the way it's
4 shown here on the site plan right now.
5
MR. ARMSTRONG: Did you show them the
6
plans?
7
MR. MARKS:
Yes.
8
MR. ARMSTRONG:
Did they sign the plans
9
,
acknowledging their consent and approval of
this proposed residence?
10
11
MR. MARKS:
They did, both Heyes.
12
MR. ARMSTRONG: No more questions.
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13
THE COURT:
Ms. Dougall-Sides, further
14 direct?
15
MS. DOUGALL-SIDES: No, sir.
16
Mr. Maguire,
THE COURT:
17 cross-examination.
18
MR. MAGUIRE:
Yes.
,
19 Mr. Marks, did you get them to sign those
20 plans and consent before you closed on the
21 purchase of this property?
22
MR. MARKS: No.
23
MR. MAGUIRE: It was after you purchased
24 the property?
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MR. MARKS:
Yes, sir.
132
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MR. MARKS:
The estate of the Rhodes,
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1
'MR. MAGUIRE: Who did you purchase this
2 property from?
4, R-H-O-D-E-S.
5
MR. MAGUIRE: And do you know if there's
6 any relationship between the Heyes and the'
7 Rhodes?
8
MR. MARKS:
Yes, there is.
9
MR. MAGUIRE: And what's that
10 relationship?
11
MR. MARKS:
Mrs; ,Rhodes, who is the
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estate of her
it's not her, I didn't buy
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it from her.
I bought it from the estate of
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her.
She is Mr. Heye's sister.
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MR. MAGUIRE':
So the Heye property and
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MR. MARKS: I would assume so.
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MR. MAGUIRE: So you did not get the
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21 before you closed, you did that after you
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MR. MARKS: That's correct.
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MR. MAGUIRE: You did not in any way make
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your contract with the estate of the Rhodes
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contingent upon any variances; is that
2 correct?
3
Well, there were some
MR. MARKS:
4
relative' to the docks.
5
MR. MAGUIRE: But not to the house?
6
MR. MARKS: That's correct.
7,
MR. MAGUIRE: No further questions.
8
THE COURT:
Redirect, Mr. Armstrong?
,9
MR. ARMSTRONG:
No questions.
10
THE COURT:
Thank you.
You're excused
11
from direct.
You're excused as a witness.
12
Thank you, your Honor.
MR. MARKS:
13
THE COURT:
Call your next witness.
14'
MR. ARMSTRONG:
I have none, sir.
15
THE COURT: All right. Any other
16 evidence from any of the parties?
17
The proposed final orders will be due in
18 my office ten days after the transcript is
19
filed in my office.
The proposed findings of
20 fact and the proposed final orders must comply
21 with the following three form requirements:
22 Each paragraph must be numbered, each
23 paragraph must cite to that portion and
,
24 portions of the record upon which it is
25
relying for its proposed finding, and each
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135
paragraph must consist of something other than
recited testimony.
MR. ARMSTRONG:
What was the last one?
THE COURT:
Something consist of
something other than recited testimony. We
have a transcript for that.
Okay.
So if you're going to make a
proposed finding, stat~ the proposed finding
and cite that portion or portions of the
record, but don't say witness A said XYZ,
because we have a transcript to tell us that
or architect Y thought or it was his opinion.
That's all recited testimony.
Couple of questions for you before we
adjourn. In section 45.24, the term zoning
,district, do the parties agree as to how that
should be defined for the purposes of this
'hearing?
MR. MAGUIRE: RS-2.
THE COURT: RS-2?
MS. DOUGALL-SIDES:
You're referring to
the appli~able ioning district?
THE COURT:
Yes.
MS. DOUGALL-SIDES:
Yes, your Honor, it
will be RS-2.
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THE COURT:
Okay.
So that's an
,2
undisputed fact.
That's all.
Anything, else?
3
MR. ARMSTRONG: Yes.
Do we have an
4, opportunity to make a quick summation?
5
THE COURT:
Sure, if you wish to.
You
6 can also put that in your proposed final
7 orders, and they're not mutually exclusive.
, 1.."
8,
If you want to do both, you can do both.
" ,
9
MS. DOUGALL-SIDES:
The City would
: : ~
10 propose to the final orders.
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11
THE COURT: Mr. Armstrong?
y::-'
"
12
MR. ARMSTRONG:
I would just suggest to
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'13
the hearing officer that under the case of
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14 O'Neil V Pallet (phon), which I can provide
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15 you a copy of, the role of the appellate body
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J.6 in this instance is not to re-weigh the
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17 evidence, but to determine whether there is
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18 substantial, competent evidence in the record
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19 to support the finding of the Development Code
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21 The code states that the burden of proof
22 is upon the appellant in essence to prove that
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23 there is not substantial, competent evidence.
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24 The fact of the matter is, there was
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significant, competent testimony.
The only
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137
expert testimony at that hearing and the body
today is all in favor of the appellee. It
supports the contention that the Board acted
in accordance with the applicable standard in
approving the variance. It would ask it be
sustained on all bases.
MR. MAGUIRE: I tend to agree that the
record is what we're looking at and whether
there was competent, substantial evidence.
And I tend to agree with that administrative
proceeding. A~d I believe there has been a
complete failure and incompetent, substaritial
evidence to meet the requirements.
I'm sure that the appellee will say that
Mr. Richter's opinion is competent,
substantial evidence upon which the Board can
base its opinion. But unless that opinion is
based on facts which support that opinion,
then that point won't stand. And it's clear
from the testimony of Mr. Paliko at the
hearing, it is confirmed today, and
Mr. Richter here today, that the ability to
build a 5 to 6,000 square foot home on this
property. That variance is clearly not rating
a hardship or denying him the reasonable use
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138
1
of their property. And that's the standard.
2
Can they make a reasonable use of the
3
property? ,Yes, they can.
There's nothing
4 special or unique about this property except
5 that somebody tore down a house and now they
6 want to basically reconform to the preexisting
7 nonconforming use, and that's not the law.
8 You tear it down, you run the risk of not
9 being able to get those variances.
10 Mr. Marks bought this property, didn't
11
make a contingent.
He knew -- whether he
12
knew it or not, you've only got lO-foot
13
setbacks.
And that's all he's entitled to
~4
under law.
That's the right that he has to
,15 build a house with up to 15 feet on the side.
16 If you seek a variance, that variance has
J.7 to be supported by the competent, substantial
18
evidence.
And there is simply nothing
19 submitted in the application that has in any
20 way demonstrated that there would be denial' of
21 a 'reasonable use of the property by the
22 gra~ting of these.,
23 And I think, also, Mr. Walter has
24 established why he has a problem with where
25
this happened. If they're going to build it
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to the west, that's their choice. We won't
2 stop them if they're going to build to the
3 west of the existing property's building
4
lines.
There's
And the trees can be cut.
5 nothing to say that house couldn't have been
6 moved back, and it may have alleviated a lot
7
of objections in this situation.
8
MR. ARMSTRONG:
One final comment.
The
9,
!
essence of the objection notes that Mr. Walter
~o seems to be-- 'there's not this significant
11
setback requirement from the waterfront to the
J.2
code.
It simply isn't there.
But that's'not
13
before this body today.
Before the body today
14 is can the finding of. the DCAB Board be
15
sustained. And, again, every shred of
16 evidence points to the fact that yes, there
17 was substantial, competent evidence to support
18 'that finding. And the appellant has brought
19 absolutely zero expert testimony to counter
20 the conclusion of that Board that very
21 carefully deliberated with those of approval.
22
THE COURT: The closing arguments
23 reminded me of the other questions I wanted to
24 ask the parties. A legal issue section 45.24
25
also contains the phrase clearly supports.
139
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140
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I believe it is.
MR. [~AGUIRE:
Because
3
you~re looking at trying to
you're varying
4
the code.
The code applies to everyone.
5
THE COURT:
I don't want to argue my
6
po in t .
7
Okay.
MR. MAGUIRE:
8
THE COURT:
Generally, the issue who,has
9
the burden of proof, which is a separate issue
10 '
of what the standard issue is.
And generally,
11
120571 proceedings were accustomed to two
'12
different standards of proof.
One is a
"
13
preponderance of the evidence, and the other
14
is clear and convincing.
This phrase states,
15 clearly supports the standard of proof that
16 applies to the Board pro~eeding would seem to
17 me as a preliminary observation for purposes
J.8 of reviewing whether or not there was
19 competent and substantial evidence to support
20 that standard of proof.
2J. So if the parties are in agreement on
22
what clearly support means, then cite the
23
authority that you're relying upon in the
24
proposed finding of facts. If you think that
25
has a unique meaning to this particular
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section. But I need to know what standards of
proof is in this case or the standard of proof
that the Board was using which is different
from the standard of review.
MR. ARMSTRONG: Well, when you ask me to
make a determination of whether or not there
was competent and substantial evidence to
support a finding that the applicant satisfied
its burden of proof to show by preponderance
of the evidence that I was entitled to a
variance or to show that the applicant showed'
by clear and convincing evidence that it is
entitled to the variance, that's the reason
this clearly supports languages important to
me.
I understand clearly support means
.clearly supports there's no other way to. I'm
not sure it's the same as clear and
convincing.
THE COURT:
I'm not either.
That's why I
wanted your input.
MR. ARMSTRONG: But I would contend,
though, and ask your Honor to just keep in
mind that the burden of proof remains on the
appellant pursuant to the land development
141
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code.
2
MR. MAGUIRE:
The burden of proof remains
3 on the appellant to show that the Board didn't
4 have competent and substantial evidence to
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5
find that the applicant satisfied its burden
6 of proof.
7
MR. ARMSTRONG:
I do not disagree with
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that statement.
9
THE COURT: ' Okay.
10
MS. DOUGALL-SIDES:
I think the City's
11 approach would be that if the commission meant
12 clear and convincing, which is a term of art,
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13
it would have set forth that term in the
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code.
It's, probably closer to a preponderance
15 of the evidence.
16
THE COURT: And preponderance by the same
17 argument, it would have said preponderance and
18 it said either.
19
MS. DOUGALL-SIDES:
It's supposed to be a
'20 unique standard.
21
THE COURT:
I want not only your
22 positions, but any direct or analyses
23 supporting authority for your positions.
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24 Anything else?
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MR. MAGUIRE: No.
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1 MR:, ARMSTRONG: No.
2 THE COURT: This hearing is adjourned.
3 (The ' hearing was adjourned at 1:05 p.m. )
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C E R T I F I CAT E
3 I, EDIE LYN SOUDER, a Notary Public and Certified
4 Shorthand Reporter, do hereb~ state that the ~oregoing
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is a true and accurate transcript of the testimony as
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taken stenographically by and before me at the time,
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place, and on the date hereinbefore set forth.
I do further state that I am neither a relative,
nor employee, nor attorney, nor counsel of any of the
'parties to this action, and that I am neither a
11 relative, nor,employee of such attorney or counsel,
, ,
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and that I am not financially interested in this
action.
OFF1CAL NOT AR'V SEAL
ED1E L YN SOUDER
NOTARY pUBUC STATE OF fLORID A
COMM\SSION NO. CC578446
Ml S oN "IDtP. AUG. 19
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