Anna Maria setback hearing takes on prosecutorial airs

Lay people can easily get hung up on words and intent in discussions of judicial matters.

That appeared to be the case at the Anna Maria City Commission Dec. 12 meeting when property owner Joe Acebal applied for a 9-foot variance to the front-yard setback requirement for a newly constructed home at 414 Pine Ave.

Attorney Scott Rudacille, representing Acebal, asked for the variance from the required 29 feet to 20 feet, saying the contractor and designer had erred, the city building official had inadvertently issued a building permit for the plans, and the house was built and inspected before the error was discovered.

The setback requirement for a single-family home in the retail-office-residential zone was changed to 29 feet in 2006, Rudacille said.

However, the city’s setback requirement for a house in the residential zone is only 20 feet, he said.

Prior to making changes in 2006, the code allowed a non-confroming lot in the ROR to adopt the residential setback.

Rudacille claimed the discussion in 2006 didn’t include the non-conforming lots and the unintended consequence of the omission resulted in the present situation.

Building official Bob Welch admitted he made an error when issuing the permit. He said that city planner Alan Garrett was on vacation when he reviewed the application.

“In my 15 years as a building official, this is the first time I’ve ever made such an error,” Welch said. Welch said normally more eyes review a plan than were able to do so in this case.

But Commission Chair Chuck Webb, an attorney, seemed determined to force Rudacille to accept the blame for the applicant, not the building department.

“Our code clearly says 29 feet for a setback” in the ROR, Webb said. Additionally, he said it’s up to the applicant to ensure the contractor follows city code, not the building official.

Rudacille argued that the code is not clear.

“The owner is responsible,” Webb said. He repeated questions to Rudacille focusing on the owner’s responsibility and the contractor being the agent for the owner.

Webb also repeated questions to Rudacille, asking if he was seeking equitable estoppel in the variance. Rudacille repeatedly replied the applicant was not yet at that point, but Webb persisted.

Webb then turned his inquiry to city attorney Jim Dye, who said equitable estoppel is a court action, not something for the commission to consider.

“We’re only seeking to rectify a problem,” Rudacille said.

He added that the code does “not clearly state” that the 29-foot setback was in effect. He said there are three setback requirements in the retail-office-residential zone, one of which previously was a 20-foot setback on a non-conforming platted lot of record.

Rudacille noted three houses built in line with 414 Pine Ave. also have a 20-foot setback. Two of the houses were built before the rules changed in 2006, and one house was built after 2006, without anyone noticing it did not meet the setback.

Rudacille said if the commission enforced the code to the letter, Acebal would have to tear down the house or remove the front 9 feet of the home. Either action would be excessive and expensive and might result in an action against the city, he suggested.

But Webb insisted the house could be modified, even asking Welch about the construction method. Welch replied the home had bored, poured concrete pilings.

Webb said he thought the city was “creating a catch-me-if-can situation with contractors.”

And Mayor SueLynn said she felt any action to require the owner to tear down the home was “unconscionable.”

SueLynn asked the commissioners to check their packets on the subject and address the criteria for the variance, as required by the city code.

Webb then began a rundown on the nine-point check list that qualifies a variance, referring to his notes frequently on a laptop computer.

He also wanted Rudacille to come back to the commission with case law supporting his claim, but Commissioner Dale Woodland interjected.

“I have a different approach. The homes already there are clearly at the 20-foot setback. A 29-foot setback would be out of place. It’s a no-brainer. I don’t know whose fault it is and I don’t care. We could win this war, but it’s ridiculous,” he said.

The commissioner said that when he arrived for the hearing, he thought the matter would take just a few minutes. He said he would have voted to approve the variance had it come before the commission before the house was built.

Woodland then made a motion to approve the variance request, which passed 4-1. There was no comment from the public and Webb voted alone against the variance.

Commissioner Nancy Yetter said she wasn’t “in favor” of the variance, but she voted “yes.”

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