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Date of Issue: March 17, 2005

Beachfront duplexes OK'd via court order

With a gulp and little other comment, Bradenton Beach city commissioners at a meeting last week approved two Gulffront duplexes in the 1400 block of Gulf Drive which the city had been fighting in court for almost five years.

Appellate court judges last summer ruled that the two duplexes owned by Island Inc. and Beach Development Inc. should be allowed to be built. The appeal by the city on the ruling was unsuccessful.

"You are mandated by the courts to approve this," City Attorney Ralf Brookes said.

"I know we have to do this, but I do so under duress," said City Commissioner Lisa Maria Phillips. "This is a black day for the city and for the citizens."

Former City Commissioner Anna O'Brien had warned that if the city "relies on your experts, you get what you deserve. Everybody has to take responsibility. You have to know what you're doing."

Co-developers for Island Inc. and Beach Development Inc. first appeared before the city in early 2000, seeking approval to build the duplexes on the Gulf across the street from the Bermuda Bay Club.

The city's planning and zoning board approved the projects. City commissioners denied the request in April 2000. The developers filed a lawsuit against the city, citing that the denial was not made with "substantial, competent evidence."

The crux of the issue was a land-use map adopted by the city commission in 1989 that called for that part of the beach to be preserved due to unusual soil composition. Developers brought forward expert witnesses who said the beach there was no different than the beaches up and down the Island and that the "conservation" designation was in error.

City commissioners disagreed, citing previous erosion trends in that section of shoreline that had at one point left only a few yards of sand between Gulf Drive and the Gulf water prior to a 1992-93 beach renourishment project.

Developers took the matter to court and, in April 2003, Judge Charles Williams of the 12th Judicial Circuit Court ruled in favor of the city.

The matter was appealed by the developers and, in a June 23, 2004, opinion, Court of Appeals Judge James W. Whatley said in the majority ruling that the lower court was in error.

"The trial court erred in finding that, based on the evidence that was before the city commission at the public hearing on the appellants' petition, the city's denial of the appellants' petition was fairly debatable," Whatley wrote.

"The appellants presented expert testimony, including from the city's own land planner, showing that the designation of the appellants' property as preservation was erroneous because the property did not meet the definition of preservation. They also presented evidence, and the trial court found that Manatee County had taxed the property as R-3, i.e., residential property, and the mayor's son had been issued a license to operate a sailboat rental business on the property, which activity is not allowed on preservation property."

Brookes said the project could be appealed before the Florida Department of Community Affairs within 30 days, and then go to the Florida Division of Administrative Hearings, but "it is basically out of our hands after today."

City commissioners voted unanimously to approve the small-scale plan amendment needed for the four units to be built. Still to come are building permits and a state waiver for construction seaward of the coastal construction control line.