PASCO COUNTY, FLORIDA

INTEROFFICE MEMORANDUM

 

                                                                                                                                                                       

 

TO:        Honorable Chairman and                               DATE:    5/17/02         FILE:  Appeal No. DRCA02-01

Members of the Board of

County Commissioners

 

 

THRU:    Samuel P. Steffey II                                        SUBJECT:     Appeal of Variance No. 1669

 Growth Management Administrator                                       Applicant:  Gulf Harbors Woodlands

Association

    BCC Meeting:  5/29/02

 

FROM:   Debra M. Zampetti                                          REFERENCES:    Comm. Dist. 3

Zoning/Code Compliance                                                           TAZ #40

Administrator

 

                                                                                                                                                                       

 

 

It is recommended that the data herein presented be given formal consideration by the Board of County Commissioners.

 

DESCRIPTION AND CONDITIONS:

 

The applicant, the Gulf Harbors Woodlands Association, is appealing the Development Review Committee's decision of March 21, 2002, approving a variance (Petition No. 1669) in the names of Jack W. and Janice L. Hickey.  The variance was for a reduction in the required minimum rear setback from 15 feet to 11.4 feet from the mean high water line for a screened-pool enclosure on waterfront property in an R-4 High Density Residential District.

 

The subject property is located on the south side of Perry Place, approximately 150 feet east of Marine Parkway within Gulf Harbors Woodlands Subdivision (Parcel ID No. 07-26-16-0380-00000-1050), and contains .22 acre, m.o.l.

 

The surrounding zoning districts and land uses are as follows:

 

 

 

 

Zoning District

 

Land Use

 

North:

 

R-4 High Density Residential

 

Perry Place; Single-Family Dwelling

 

East:

 

R-4 High Density Residential

 

Single-Family Dwelling

 

South:

 

R-4 High Density Residential

 

Canal; Single-Family Dwellings

 

West:

 

R-4 High Density Residential

 

Single-Family Dwelling

 

FINDINGS OF FACT:

 

1.                  At the time the applicants applied for the variance, the subject waterfront site was undeveloped.  The property consists of .22 acre, m.o.l.; and is located in an R-4 High Density Residential Zoning District.

 

2.                  The variance application and testimony provided pointed out that Mrs. Hickey has disabilities that prevent her from navigating around the pool safely, thereby necessitating the need for additional space between the pool's edge and the outer deck area.  In addition, Mrs. Hickey has a severe reaction to insect bites and must have a screened, pool enclosure or she cannot use the pool.

 

3.                  Access to the property is from Perry Place, which has 50 feet of right-of-way.

 

4.                  The subject property is located in Flood Zone "A13," and development within this area is subject to the requirements of Article 700, Flood Damage Prevention, of the Land Development Code.

 

5.                  The surrounding area is characterized by residential development on waterfront lots.

 

6.                  The subject area has been designated RES-9 (Residential - 9 du/ga) under the Comprehensive Plan.  This request is consistent with that classification.

 

7.                  The Development Review Committee has approved similar screened-pool-enclosure, setback variances in the vicinity.  Some are as follows:

 

a.                  Petition No. 1213, on November 24, 1993, for a reduction to nine feet for a parcel located approximately 970 feet southeast of the subject request.

 

b.                  Petition No. 1329, on April 25, 1996, for a reduction to 9.8 feet for a parcel located approximately 2,400 feet northeast of the subject request.

 

c.                   Petition No. 1581, on August 24, 2000, for a reduction to seven feet for a parcel located approximately 1,300 feet east of the subject request.

 

8.                  Staff received two letters of no objection to the requested variance from the property owners located directly adjacent to the east and west of the subject request.

 

9.                  Staff reviewed the proposed request in accordance with Article 300, Subsection 316.1.A.1, of the Land Development Code.

 

10.              Staff concluded that the granting of the variance would be in harmony with the general intent and purpose of the Pasco County Land Development Code and that such variance would not be injurious to the area involved or otherwise detrimental to the public welfare, due to the letters of no objection received from the property owners located directly adjacent to the east and west of the subject request.

 

11.              Staff made a recommendation of approval with conditions.

 

12.              On March 21, 2002, the Development Review Committee approved Variance Petition No. 1669 with conditions, in the names of Jack W. and Janice L. Hickey, for a reduction in the required minimum rear setback from 15 feet to 11.4 feet from the mean high water line for a screened-pool enclosure on waterfront property.  The conditions of approval are as follows:

 

a.                  The owners/applicants acknowledge that any provisions of Pasco County ordinances not specifically waived shall be in full force and effect.

 

b.                  The owners/applicants shall submit a preliminary/site plan for review and approval in accordance with all requirements of Article 300, Section 306, Development Review Procedures, of the Land Development Code prior to development of the property.

 

c.                   Calculation of allowable density and intensity shall be in compliance with the land use category limitations set forth in the Pasco County Comprehensive Plan.

 

d.                  The owners/applicants are hereby notified that the effective date of this approval shall be the date of the final County action; however, no activity shall commence on site until such time as the acknowledgment portion of this document is completed (including notarization) and received by the Zoning/Code Compliance Division.

 

OWNERS'/APPLICANTS' ACKNOWLEDGMENT:

 

The owners/applicants acknowledge that they have read, understood, and accepted the above-listed conditions of approval.

 

                                                                                                                                                                       

(Date)

 

I hereby certify on this              day of                                         ,             , A.D., before me personally appeared the owners/applicants, to me known to be the persons described in and who executed the foregoing document and severally acknowledged the execution thereof to be their free act and deed for the uses and purposes therein expressed.

 

Witness my hand and seal at                                                    ,                          County, Florida, the day and year aforesaid.

 

 

My commission expires:

                                         

Notary Public, State of                         at Large

 

13.              Subsequently, the applicant, the Gulf Harbors Woodlands Association, filed a timely Notice of Appeal to the Board of County Commissioners pursuant to Section 317 of the Pasco County Land Development Code contending that the Development Review Committee's decision was made in error.  The applicant's reasons given are as follows:

 

a.                  The proposed pool deck is at an elevation of 10.2 feet while the other pools adjacent to the property are at or near grade level of the lots.  The elevation of the lot in question is 7.2 feet at the street and 4.3 feet at the seawall 11.4 feet from the corner of the pool structure.  These facts on the height of the setback variance were not presented or considered during the hearing in relation to other variances granted in the area to the best of our knowledge and belief.

 

b.                  The adjoining property owners signed "no objection" letters unaware of the height of the pool deck which obstructs their view of the water.  They now object to the granting of the variance.  Only the wives of signed the letter and the husbands did not consent according to their statements.

 

c.                   The Gulf Harbors Woodlands Association, the two adjacent property owners, and Mr. Hickey agreed at a joint meeting on April 10, 2002, to the setback variance if the pool deck elevation is limited to an elevation of 6.9 feet or less.

 

In a nutshell, this Board must adhere to the following standards of review upon appeal of final orders granting or denying Variances:

 

1.                  No new testimony or evidence may be heard or presented.

 

2.                  Review is limited to the transcript and record from the Development Review Committee.

 

3.                  The Board may not reweigh or re-evaluate evidence previously presented before the Develop­ment Review Committee.

 

4.                  The Board must only determine whether the Order of the Development Review Committee is supported by substantial, competent evidence, and follows the essential requirements of law.

 

5.                  If the Order is supported by substantial, competent evidence, the Board must uphold the Development Review Committee.

 

6.                  If the order is not supported by substantial, competent evidence, the Board must remand the case back to the Development Review Committee for further disposition consistent with this hearing.

 

7.                  The Board does have jurisdiction to hear and render its interpretation of the Comprehensive Plan during the hearing on appeal of a Variance.

 

As you know, under the new Land Development Code, the final decision-making authority for Variances lies with the Development Review Committee.  Consequently, this Board functions similarly to the Circuit Court in reviewing appeals of such actions.  Review, therefore, is limited to a narrow determination of jurisdiction below and whether the action taken was in accordance with essential requirements of law and supported by competent, substantial evidence.  City of Lakeland v. Florida Southern College, 405 So. 2d 745 (Fla. 2nd DCA 1981); Fort Lauderdale Board of Adjustment v. Nash, 413 So. 2d 855 (Fla. 4th DCA 1981); and Board of County Commissioners of Hillsborough County v. Casa Development, Ltd., 332 So. 2d 651 (Fla. 2d DCA 1976).  In other words, this Board's review is restricted solely to the evidence presented and the record created at the proceedings before the Development Review Committee.  This Board may not hear new testimony nor reweigh or re-evaluate the evidence previously presented to the other boards.  You may only determine whether their decision, in this case approval of a Variance, was supported in the record by substantial, competent evidence.  The Supreme Court of Florida has defined the phrase "substantial, competent evidence" as ". . . such relevant evidence as a reasonable mind would accept as adequate to support a conclusion".  DeGroot v. Sheffield, 95 So. 2d 912 (Fla. 1957).  In accordance, Becker v. Merrill, 20 So. 2d 912 (Fla. 1944), and Laney v. Board of Public Instruction, 15 So. 2d 748 (Fla. 1943).  Lay testimony, opinions, or objections by local residents do not constitute substantial, competent evidence upon which a zoning board can rely to deny or approve an application.  Bailey v. City of St. Augustine Beach, 538 So. 2d 50 (Fla. 5th DCA 1989), and BML Investments, Inc., v. City of Casselberry, 476 So. 2d 713 (Fla. 5th DCA 1985).

 

In the case before you, the application in question was for a Variance.  In Gomez v. City of St. Petersburg, 550 So. 2d 7 (Fla. 2nd DCA 1989), the Court stated that:

 

As a general rule the applicant has the burden to come before the Board of Adjustment and establish the requirements for a variance.  Board of County Commissioners v. The First Free Will Baptist Church, 374 So. 2d 1055 (Fla. 3d DCA 1979).  The burden upon a petitioner for a variance is more extensive than the burden upon the party seeking a permissible use by special exception.  Irvine v. Duval County Planning Commission, 466 So. 2d 357 (Fla. 1st DCA 1985), quashed, 495 So. ed 167 (Fla.), dissent adopted 504 So. 2d 1265 (Fla. 1st DCA 1986).

 

Finally, Chapter One, Plan Administration and Format, of the Comprehensive Plan provides that all land development regulations developed pursuant to Section 163.3202, Florida Statutes, shall be consistent with the Plan and all development orders shall be issued pursuant to the requirements of those land development regulations.  Moreover, that Chapter also allows an aggrieved or adversely affected party to request an official interpretation by this Board of confusing or debatable policies, goals, objectives, or recommendations of the Plan.  Conse­quently, it is the opinion of the County Attorney's office that this Board also has proper jurisdiction to hear and render its interpretation of the Comprehensive Plan during the hearing on appeal of a Variance.

 

ALTERNATIVES AND ANALYSIS:

 

The Board of County Commissioners has the authority to uphold or reverse the decision of the Development Review Committee.

 

1.                  The Board of County Commissioners may find that the Development Review Committee's decision was indeed supported by substantial competent evidence; therefore, the  Board of County Commissioners upholds the Development Review Committee's decision of approval of Variance Petition No. 1669.

 

2.                  The Board of County Commissioners may find that the Development Review Committee's decision was not supported by substantial, competent evidence, and therefore, may deny Variance Petition No. 1669.

 

3.                  The Board of County Commissioners may remand Variance Petition No. 1669 back to the Development Review Committee for further disposition consistent with this hearing.

 

4.                  The Board of County Commissioners may take other appropriate action.

 

ATTACHMENTS:

 

1.                  Application

2.                  Variance Petition No. 1669

3.                  Verbatim Minutes

4.                  Copies of Visuals

 

 

DMZ/EPR/zn/drca0201

 

 

APPROVED AGENDA ITEM FOR

 

DATE                                             

 

BY