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Date of Issue: March 17, 2005

Commissioners table habitable floors ordinance

Faced with mounting opposition to a proposed ordinance to limit the number of habitable floors of new construction in the residential-office-retail zone, Anna Maria city commissioners Dec. 16 voted to table further discussion of the ordinance until they receive and review the first draft of the city's new comprehensive plan expected in February or March 2005.

Commissioners had wanted to limit the number of stories of useable living or office space to just two, as the majority believe the comprehensive plan dictates, but the city code apparently has some "ambiguity," said Commissioner Dale Woodland.

The ordinance was introduced by Woodland after commissioners rejected a site plan by Nikki and Robert Hunt of 303 Pine Ave. that called for a ground floor of retail space, a second floor of 50 percent residential and 50 percent retail, and a third floor for residential. The Hunts subsequently filed legal action against that decision.

The proposed ordinance would keep the 37-foot height restriction, but allow just two floors of habitable space in the ROR zone, along with the R-2, C-1 and PSP zoning districts.

City Attorney Jim Dye pointed out that any ordinance needs a public purpose and Commissioner Duke Miller said he was struggling with the ordinance.

"Why do we need to control what goes on inside the building?" he asked. "I can't understand why someone can build a two-story [home] over parking in a residential zone, but not in a commercial area."

In addition, said Miller, he failed to see the "health, safety and public welfare" aspects of the ordinance.

Commission Chairperson John Quam noted that the first draft of the revised comprehensive plan is nearly completed for presentation, and suggested the commission wait for any recommendation on habitable floors before taking action on the ordinance.

Woodland agreed that he didn't want to pass an ordinance that is inconsistent with the comprehensive plan.

Dye interjected that while he tries to stay out of policy decisions, he was contacted that day by another attorney about the issue. He also noted that the current comprehensive plan only addresses the ROR zoning district, while the proposed ordinance would include three other zones.

A number of residents spoke in opposition to the proposed ordinance and John Mattick of 9901 Gulf Drive suggested that the ordinance could harm property values and might trigger a Bert Harris Property Rights Act claim.

The commission then voted 5-0 to table the motion until further notice, but suggested it would revisit the issue when the draft comprehensive plan is received.

Dye later said that he didn't believe the ordinance would violate the Bert Harris Act, but such decisions are always up to the courts and there is no clear definition in the law of what constitutes "inordinate burden."

The Bert Harris Property Rights Act was passed by the Florida Legislature in 1995. The act allows property owners to petition a governmental body or file a court action if they believe a governmental action lowers their future property values.