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Date of Issue: March 17, 2005

Watkins variances quashed by judge

A circuit court judge has ruled that a series of variances granted last year by the Bradenton Beach Board of Adjustment "be quashed."

Circuit Court Judge Paul Logan ruled that, in addition to nullifying the setback and impervious surface variances granted by the board to Greg Watkins' property at 400 Bay Drive S. "It would behoove the City of Bradenton Beach Board of Adjustment to hold a hearing de novo on the applicant's application for variances, or to deny the requested variances."

De novo hearings are administrative proceedings where new evidence and testimony are admitted, not the review of previous testimony. In essence, the judge said the whole process should start over again.

Since work on the property has been completed pursuant to the board of adjustment decision to grant the variances, and prior to the court's ruling that the approval was illegal, it is not clear what action should be taken by Watkins.

Building Official Bob Welch said it would be up to the city commission to decide whether or not Watkins would be ordered to demolish the structures that are located within the setback areas.

"Mr. Watkins was issued several permits to construct walkways, stairs and porches based upon these variances," Welch wrote to city commissioners and members of the board of adjustment on Dec. 15. "These permits are now called into question. This matter needs to be reviewed by an attorney.

"The judge has indicated that the board of adjustment could rehear the issue," Welch continued. "If evidence can be found that a hardship exists, the variance could be granted and the permits made legal. If the variances are not reheard and granted, the work performed under the permits may have to be removed. Either way, the city needs to act upon this matter in the near future."

No date for any city commission or board of adjustment action has been set as of presstime.

Logan's decision was rendered Aug. 26. The matter was not brought to the attention of former City Attorney Alan Prather, Building Official Bob Welch, or even Watkins until last week.

Watkins' variance requests first came before the board of adjustment Feb. 20, 2002. Action was tabled to Feb. 27 due to a lack of a quorum.

On Feb. 27, then-Chairman John Burns announced that his term of office had expired as of Feb. 23. Without the city commission's affirmative vote to continue his term, Burns said he was uncomfortable with voting on the Watkins variances and the board again tabled the matter.

Watkins' requests finally came before the board of adjustment April 25. At that meeting, Burns was replaced as chair by Ken Lohn. That meeting was continued until May 30, when a decision was finally reached granting Watkins' requests.

Watkins has three small cottages on his property at 400 Bay Drive S. which are non-conforming as to setbacks. He has elevated the structures on pilings and have undergone extensive remodeling.

Watkins, who is also a member of the board of adjustment but recused himself from voting on his requests, said he had received nine building permits allowing him to proceed with the work.

Board members agreed to rear- and front-yard setbacks for staircases, and agreed to allow him to have a variance for impervious surfaces on the property with some stipulations.

Members of the board present during the proceedings included Lohn, Burns, Anna O'Brien and Jan Vosburgh.

O'Brien later was elected to the city commission.

Neighbor David Stott was critical of the work done by Watkins, and filed suit against the project in May 2002. The last action on the matter -- prior to Logan's ruling -- was Dec. 10, 2002, when Stott's attorney Adele Kurtz said she would be unavailable during the previous holidays (Christmas and New Year's).

In his decision, Logan said the standard of review on the matter rested in whether the "administrative tribunal accorded procedural due process, observed the essential requirements of law, and based the administrative findings on competent substantial evidence."

Logan said the board of adjustment "failed to adhere to their ... land development codes [which state that a non-conforming structure may be enlarged only if it does not increase the extent of non-conformity].

"A review of the record shows there was testimony at the April 25, 2002, hearing wherein Burns specifically stated that, by granting the variances, the board has approved 'a project to increase non-conformities where the opportunity to decrease them was there before and there still is.' No other testimony or evidence was adduced before the board to the contrary. Such testimony or lack thereof, evidences a departure from the land development code, and consequently, a departure from the essential requirements of law."

Logan said the final administrative order by the board for Watkins' variances "is devoid of any competent substantial evidence." He also said the board "failed to make factual findings to support their decision that the applicant's property endured a legal hardship, whether the legal hardship was self-created, and whether the hardship warranted the granting of a variance."

Logan also raised issues of conflict of interest and impropriety.

"The court also reminds the board that the state standards of conduct apply to members of ... boards who are appointed by ... commissions to serve in an advisory capacity," he wrote. "Further, it is incumbent upon the board to avoid the appearance of impropriety. Impartial decision making is a basic component of minimum due process in an administrative proceeding.

"The record indicates that preceding the requests for variances, the chairman of the board of adjustment, Kenneth Lohn, sold the property at issue to the applicant, Greg Watkins, who is a fellow board member with the chairman," Logan continued. "There is no evidence on the record that the chairman abstained from voting or disclosed his interest or indirect interest in the property at issue. This may portray a conflict of interest as well as the appearance of impropriety."