Buchholz v. Clearwater Development Code Adjustment Board

27 Fla. Supp. 2d 198
CourtState of Florida Division of Administrative Hearings
DecidedFebruary 17, 1987
DocketCase No. 86-3696
StatusPublished

This text of 27 Fla. Supp. 2d 198 (Buchholz v. Clearwater Development Code Adjustment Board) is published on Counsel Stack Legal Research, covering State of Florida Division of Administrative Hearings primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buchholz v. Clearwater Development Code Adjustment Board, 27 Fla. Supp. 2d 198 (Fla. Super. Ct. 1987).

Opinion

OPINION OF THE COURT

J. LAWRENCE JOHNSTON, Hearing Officer.

[199]*199 FINAL ORDER

In this case, Appellant, Walt Buchholz, appeals under Section 137.013, Clearwater Land Development Code (Code), from the decision of appellee Clearwater Development Code Adjustment Board (DCAB) to grant the application of appellee Key Sand Associates, Ltd. (Key Sand or applicant) for a 55 foot variance from the applicable 90 foot height restriction under the Code to enable Key Sand to build a 145 foot high condominium building on Sand Key. An appeal hearing was held in the case in Pinellas Park on January 23, 1987. The parties asked for and received until February 2, 1987, in which to file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. On July 24, 1986, Key Sand Associates, Ltd., by and through its agent, Eduardo Avila, made an application for a variance to the height limitation under the Code to allow a 145 foot building for 26 residential units, as described in plans submitted as part of the application.

2. A public hearing was set before the Development Code Adjustment Board (DCAB) for August 28, 1986. There was no evidence that notice was not published in the newspaper as provided by the Code or was not mailed to the owners of the adjacent properties within 200 feet of the subject parcel as shown by the latest ad valorem tax records.

3. On August 28, 1986, a public hearing was held before the DCAB at the time and place set forth in the notice. At the time of the hearing, minutes were kept and a tape recording was made.

4. The tape recording and minutes of the hearing reveal that the DCAB hard the testimony of: a planning official, Eduardo Avila, representing the applicant; Y. H. Lee, architect, representing the applicant; Mr. Carl G. Myers, President of the Sand Key Property Owners Association, an opponent; Sam Dervish, representing the adjacent property owner, Dervish Bros. Gallery Restaurant, an opponent; and, Ed Armstrong, an attorney representing the interests of the developer of the adjacent property of Crescent Beach Club I, an opponent. Two letters in opposition were read into the record.

5. At the conclusion of the public hearing before the DCAB, the DCAB found that the requirements for the variance under Section [200]*200137.012 of the Code had been met and granted the variance, as requested, by a vote of 4-1.1

6. On September 10, 1986, the appellant, Walt Bucholz, filed a notice of appeal with the City Clerk under the procedure provided in Section 137.013 of the Code. The notice of appeal alleged that Buchholz is “a resident and owner of unit 16A, 1340 Gulf Blvd., Clearwater, Florida,” adjacent to the subject parcel. It further stated that the bases of the appeal were: (1) that the present owners of the adjacent property were not notified although the developer was; (2) that the applicant had misrepresented the facts at the hearing related to a representation about a blank wall on the condominium building in which Buchholz owned property; and (3) the naviety of the DCAB related to a display of model buildings by the applicant at the hearing.

7. A hearing on the appeal was set for January 23, 1987, and appropriate notice given. The appeal hearing was continued from December 29, 1986, to January 23, 1987, on Appellant’s motion to enable Buchholz to be present at the hearing on the ground: “Appellant’s presence at a hearing in this case is necessary for Appellant’s testimony is essential to support his position.”

8. The conduct of the appeal hearing was in accordance with Section 137.013(e) of the Code.

9. At the appeal hearing on January 23, 1987, the hearing officer accepted the record on appeal which had been transmitted by the City Clerk to the Department of Administrative Hearings on September 19, 1986, consisting of seven items, as required by Section 137.013(e)(2)a. of the Code.

10. The appellant did not present any witnesses nor introduce any evidence in support of the issues raised in his notice of appeal during the presentation of his case.2 However, the appeal hearing reflected a concession by Key Sand that Buchholz owns a condominium unit in the Crescent Beach Club, less than 200 feet from the subject property, and did not receive notice because the City Clerk sent the notice to the owner according to the latest ad valorem tax roll, the developer of the Crescent Beach Club.

[201]*20111. Appellant’s counsel argued that failure to provide notice to owners of adjacent property who became owners of the property after the publication of the last ad valorem tax roll was a procedural impropriety.

12. Appellant’s counsel argued that the applicant had not presented sufficient evidence to support any of the required standards for approval of a variance at the August 28, 1986, hearing as required by Section 137.012 of the Code.

13. Key Sand argued that Appellant was not a party in interest as required under the Code, in that, (1) there was no showing that appellant was an adversely affected person with a definite interest exceeding the general interest shared by the rest of the community and (2) being a person who owns property within 200 feet of the subject property does not by itself prove an adverse interest to his property in granting the variance.

14. Appellant did not present even any argument during his case related to the second and third items of appeal set forth in the notice of appeal in this matter.

15. Appellant did not prove that the DCAB was deceived by the passing reference to a “blank wall” during the DCAB hearing or that the DCAB naively was deceived by the models displayed at the hearing. To the contrary, the record on appeal reflects that the DCAB was not deceived by the reference to a “blank wall” and that the DCAB critically weighed the display models along with all the other evidence.

CONCLUSIONS OF LAW

1. Section 137.012 of the Clearwater Land Development Code (Code) provides for the procedure and standards under which the Development Code Adjustment Board (DCAB) considers applications for variances to alleviate hardships in carrying out the strict letter of the Code.

2. Under Section 137.012(c)(2) of the Code, the DCAB is required to hold a public hearing to “consider the application and render a decision at the conclusion of the public hearing.”

3. In this case, Key Sand applied for a height variance to allow it to build a 145 foot high condominium on property on which the strict letter of the Code would not permit a building higher than 90 feet. The DCAB held a public hearing on August 28, 1986. At the conclusion of the hearing, the DCAB granted Key Sand’s variance application.

[202]*202A. Appellant’s Standing.

4. Appellant, Walt Buchholz, did not appear or object to Key Sand’s variance application before the conclusion of the August 28, 1986, public hearing. His written appeal alleges that he is “a resident and owner of unit 16A Crescent Beach Club, 1340 Gulf Blvd., Clearwater, Florida” and alleges that he and other owners of units in the Crescent Beach Club, other than the developer, did not receive notice of the August 28, 1986, public hearing.

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Bluebook (online)
27 Fla. Supp. 2d 198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buchholz-v-clearwater-development-code-adjustment-board-fladivadminhrg-1987.