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Date of Issue: December 21, 2006

Interpretation of code order causes decision delay

Just about everyone has seen the segment of America's Funniest Animals on television where the cat chases it tale around in circles until it's too exhausted to keep running.

At times during the Dec. 11 Anna Maria code enforcement board hearing for Frank Almeda of 415 Pine Ave., it might have seemed like the meeting was like the cat chasing its tail, going around in circles but never getting anywhere.

In November, the board had given Almeda an order to bring his home into compliance with city code by converting it from a fourplex back to a duplex, which was an allowable use of the structure when Almeda built his house in the mid-1970s. The deadline for compliance was Dec. 5.

The board ordered code enforcement officer Gerry Rathvon to inspect the property for compliance and report back at its Dec. 11 meeting.

Sounds simple, right?

In Anna Maria, however, not many issues are ever "simple."

City attorney Jim Dye told the board that in the city's view, the structure has not been brought into compliance. Almeda was supposed to go to the building department and get a permit and because he had not done so, the city still considers his structure to be out of compliance.

Rathvon said she didn't inspect the property for compliance because Almeda had not gotten any permit.

Almeda's attorney, Chuck Webb, responded that the board's Nov. 14 order made no mention of permits, just to bring the property into compliance by eliminating the fourplex and making it a duplex. The board left the issue of whether or not a duplex was allowable up to the city commission.

 Almeda has changed the structure back to a duplex, but Rathvon has not inspected the property, Webb said, as the board had requested.

That's because Almeda never got a permit, responded Dye. If he had changed the property from a fourplex to a duplex without a permit, he did so without authorization.

Then the board can't make a decision on whether or not Almeda did or did not comply with the order because the city has not inspected the property, countered Webb.

"The first step was that you ordered an inspection and [Rathvon] didn't do it, so the board has no evidence" on compliance or non-compliance, Webb told the board.

The burden of proof on Almeda's compliance or non-compliance is on the city, Webb maintained.

Rathvon said she wasn't qualified to determine if the structure was a duplex or not. That should be done by building official Kevin Donohue. However, she added, he would only have inspected the property if Almeda had applied for a permit.

Since Almeda never applied for a permit, the city never inspected and it considers Almeda to not be in compliance with the board's order, observed Dye again.

But the board's order was for Rathvon to inspect the property, countered Webb again. "There's been no official determination."

Furthermore, any question of permits or work performed without permits at 415 Pine Ave. is a separate issue that the board would have to address in a different hearing, not this one, Webb contended.

He also noted that there is no "mechanism" in the city codes for the city commission to determine if a non-conforming structure such as a duplex on Pine Avenue can be allowed because of prior usage before codes and zones were changed. Without such a provision in the code, the issue of usage for an existing structure because of previous zoning is an administrative matter that can be handled by the mayor.

Exasperated board member Jeff Murray said that it appeared the board was back to the beginning.

With the discussion still going in circles after nearly two hours, board chairman Bill Iseman suggested a meeting with Almeda, Webb, Donohue and Mayor Fran Barford to determine if the structure is now a duplex or not, and whether or not a duplex is a legal structure on Pine Avenue.

Webb agreed, and the board continued the hearing until Jan. 9, by which time the parties involved are to have met and Rathvon will bring a decision to the board.