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05/11/1993 - 3:00 PM PUBLIC HEARING BEFORE A HEARING OFFICE May 11, 1993 - 3:00 p.m. Avi Ovaknin (Surf West, Inc.) / City of Clearwater Hearing Officer: K. N. Ayers Also Present: Sandy Glatthorn, Senior Planner Susan Stephenson, Deputy City Clerk Issue: L.O.M., Inc. (Surf West, Inc.) for variances of (1) 5 ft to permit a building setback of 10 ft from N Gulfview Blvd where 15 ft is required; (2) 11.4 ft to permit a building setback of 3.6 ft from Papaya St where 15 ft is required; (3) 9.1 ft to permit a building setback of 6.4 ft from rear (north) property line where 15.5 ft is required; and (4) 6.5 ft to permit a building setback of 6 ft from side (east) property line where 12.5 ft is required at 24 Papaya St, Clwr Beach Park on Clwr Beach Island, Lots 29 thru 32, zoned CE 28 (Resort Commercial). V 93-08 Case 93-001475 Appearances: Harry Cline, Attorney representing Appellant Miles Lance, Assistant City Attorney Exhibits Submitted: 1. Composite of Development Code Adjustment Board minutes. (submitted by appellant) 2. Aerial photo showing location of similar variance requests. (submitted by appellant) 3. Table of variances and the decisions rendered. (submitted by City) Mr. Cline made opening remarks and stated the Board approved variance #1 but denied all the others. The variances are to allow new construction. Mr. Lance made his opening remarks and questioned whether a retail outlet can be placed on the property. He pointed out that the Development Code Adjustment Board cannot grant variances when the hardship is for financial gain. David Himes, design engineer with Spring Engineering, prepared the plan to develop the parcel with a retail establishment. He stated the lot is substandard and irregular in shape. When the plan was first submitted it required eight variances but there were six actual issues. He indicated the Board felt the site was oversaturated so they redesigned the project and removed a need for several variances, including one for parking. He submitted seven photographs of the property and described them. The proposal provides 4732 square feet of retail area with parking underneath the structure. Visibility is the key to the success of the project and properties on two sides of the subject parcel are built to the property line. If the size of the structure is reduced, the parking will also be reduced since it is situated under the building. They have been making every effort to buffer the project. The zoning allows 48% lot coverage and without variances they can only build a 1600 square foot building. Staff recommended approval of most of the setback variances and there would be no impact on the view corridors. Under cross examination, Mr. Himes stated variances were granted for the width and depth of the parcel. He did figure what size building would fit on the parcel without variances and his client requested that a larger building be designed. The building was designed based on information from the owner as to what is feasible. Two variances were granted by the Development Code Adjustment Board on 12/10/92 and they recommended a 10% reduction in the size of the building. A variance for 3% over the permitted building coverage was granted. They feel a 1600 square foot building is not reasonable use of the property and poor visibility is a practical hardship. Abraham Ovaknin, owner of the property for two years, stated there is a short term rental apartment on the property. He feels the size of the building allowed with the granting of the variances is the minimum and visibility is a key issue. He presently operates five other stores on Clearwater Beach. He feels the proposal will enhance the neighborhood. If the denial of the variances is not reversed he will use the property as is. In response to a question, he stated he did not investigate the zoning of the property prior to purchase. The average size of his other businesses is 2500 square feet and he has several operations in Miami which are larger. Under redirect by Mr Cline, Mr. Ovaknin stated he did not know he would only be able to build a 1600 square foot building without variances and he noted the existing buildings are all built to the property line. Richard Bekesh, President of Spring Engineering, stated they evaluate the site with an architect program and develop floor plans to meet the needs of the owner. Building within the setbacks would block the building visually. By developing the property they will be eliminating the hazardous backout parking which now exists. He stated they had staff support for all variances except the street setback to the west and they also had the support of surrounding property owners. The reason for the variances is not primarily financial. Two variances were granted in December and they went back in January with the building scaled down by 10%. A variance was granted in January for building coverage but without the setback variances it was not useful. There was discussion at the January hearing as to whether the request was substantially different to allow the Board to hear it so soon after hearing in December. Staff felt the changes were substantial enough to allow it to come back to the Board but the Board Chairman was not in agreement. The case was heard with the result that one of the variance requested was granted and the other denied. Eliyahu Levy, a business partner of Mr. Ovaknin, stated he has 12 stores and employs approximately 400 people and feels 4800 square feet is the minimum size building for this location. He stated that in his opinion one of the Board members should have declared a conflict of interest as she leases property to a competitor of theirs. He pointed out that one of the other Board members excused himself because he leased property to Mr. Ovaknin. Mr. Lance stated that it is Mr. Levy's opinion that the interest of the Board member should have been disclosed. Mr. Lance cross examined Mr. Levy and asked whether he had discussions with an attorney prior to the purchase of the property. Mr. Levy responded that he spoke with his attorney, who is from Miami, regarding the purchase and purchased the property in good faith not knowing that variances would be needed to construct the building as he desired. On redirect from Mr. Cline, Mr. Levy stated his attorney was informed they could build with 45% building coverage. Mr. Cline submitted as exhibits several sets of Development Code Adjustment Board minutes along with an aerial photograph of Clearwater Beach. Mr. Miles objected to the exhibits on the basis that there was no relevancy as each request must stand on its own. The Hearing Officer allowed the exhibits and stated he would determine their relevancy when he reviews the case. Sandy Glatthorn stated eight variances were requested with two being granted and six being denied. At the second hearing five variances were requested and only one was granted. The Development Code Adjustment Board felt that the standards for approval were not met in some cases. Under cross examination by Mr. Cline, Ms. Glatthorn stated that standards for approval of a variance are listed in the Code but "hardship" and "reasonable" are not defined. In response to a question, she stated a site visit is made, the Code and the application are reviewed, and maps are prepared prior to Staff making any recommendation. Staff determines if the use is in conformance with the Comprehensive Land Use Plan and Zoning but the Comprehensive Land Use Plan has no bearing on dimensional requirements. In closing Mr. Cline stated all the criteria for grant variances has been met and it is not reasonable to construct a 1600 square foot building. He submitted information on a case regarding a substandard lot that was in compliance with the Comprehensive Land Use Plan and the burden of proof shifted to the government agency. In closing Mr. Lance stated a rezoning case is different and the burden of proof is different. The owners took a risk when they purchased the property to develop it as retail. The Development Code Adjustment Board acted as its authority allowed and granted three variances. The Appellants have the right to present evidence and show that the Board was wrong in the decision it made. The Hearing Officer requested that proposed orders be submitted within ten (10) days. Hearing adjourned at 4:47 p.m.