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Date of Issue: March 30, 2010

Stoltzfus conspires, offers to pay for lawsuit against city

Anna Maria City Commissioner Harry Stoltzfus, in e-mails obtained through a public records request, stated that he wants to secretly contribute funds to a lawsuit against the city and to see Pine Avenue Restoration buildings bulldozed.

Michael Barfield of Sarasota filed the records request that required the city to collect e-mails to and from Stoltzfus and planning and zoning board member Jim Conoly.

The records produced raise issues with Florida open-government laws, as well as define Stoltzfus’ opposition to development in the ROR district on Pine Avenue.

The first round of production on Barfield’s request revealed little in the way of problems that could arise from communications between officials, even those on different boards, discussing city business. 

But round two of disclosures, following some urging from the city administration, amounting to 200 plus submitted e-mails, contains at least one conversation, alarming even for a savvy expert such as Barfield. 

Mayor Fran Barford said she is “shocked at the extent of this,” referring to Stoltzfus’ volume of e-mail communications and their content.

Much of it is “very derogatory toward the staff, the city and PAR,” she said. 

“Having become more familiar with the e-mails, it is unbelievable to me that his plan from the beginning was to target PAR. It was a calculated plan,” Barford said.

“He totally violated the Sunshine Law,” Barford said, and Barfield has proof.”

The e-mails make it appear that Stoltzfus is supports a petition seeking resolution on the city’s method of configuring density in the retail-office-residential zone on Pine Avenue from the Florida Department of Community Affairs filed by attorney Jeremy Anderson with the Law Offices of Lobeck Hanson of Sarasota. 

Anderson writes in one of his e-mails: “If the second residential unit is denied, the entire proposed PAR project … would likely not be worth the effort as the loss of the second unit in each of the plans could means a loss of hundreds of thousands of dollars in revenue to PAR.”

Stoltzfus replies to Anderson that he wants “to see someone take a bulldozer to all these buildings the city has mistakenly approved.”

Barfield’s request has brought to light a series of e-mails between Stoltzfus, Nicky Hunt, who with her husband has plans for a Pine Avenue development that resulted in a lawsuit against the city that was settled in their favor, and Anderson. 

That e-mail contains a Feb. 26 back-and-forth conversation initiated by Hunt to Anderson, referencing an earlier communication from Anderson that was not provided, but contained the subject “petition.” It contains questions about a legal challenge to the approval of a PAR site plan. 

Hunt writes Anderson, “We can actually see at least three very good cases for a challenge … Can you make sure to include the number of lots in the ROR district as 92 as well as the previous number as being 5 units per acre in the previous comp plan.”

Anderson responds, in part: “The groundwork is already laid for a challenge … There are several persons that are interested in proceeding, but do not want to go it alone. A small group of persons working together is all that is needed.”

Anderson’s remarks are followed by a short message from Stoltzfus to Anderson. It says, in its entirety: “Nicky, (sic) I’m willing to throw some money away on this one, but don’t feel it would be wise to be named as one of the persons in the litigation. We’ll talk about this tonight. (signed) Harry.”

Anderson then e-mails Stoltzfus to say he thinks he was e-mailed by mistake. But, he adds, “If you do in fact wish to participate in an action, it is possible that you not be named and that your name not be disclosed.”

Stoltzfus responds, “Oops.”

Anderson follows that by saying, “No worries. I have a possible client that is interested in possibly pursuing this matter, but seeks to have others join in this action with some financial support.”

On March 1, Stoltzfus replied to Anderson: “I’d like to meet the person who intends to pursue this matter … I’m interesting (sic) in getting involved, but indirectly. Is there any chance we can prove the city has intentionally ignored its own comp plan? Or its LDR? Or both. I’d like to see someone take a bulldozer to all these (PAR) buildings the city has mistakenly approved. 

“Would the city be liable to PAR for damages because of the city’s mistaken approvals?”

It appears Stoltzfus was offering either to join the lawsuit Anderson is planning against the city, or to assist in funding the lawsuit. He and the attorney agreed Stoltzfus’ involvement could remain “private.” 

On reviewing the records, Barfield said, “There seems to be a pattern emerging in the documents that suggests a shadow government sets the agenda and coordinates strategy, using conduits and other evasive devices, in order to create an intended outcome outside the normal due process our Sunshine Laws are designed to protect.”

PAR principal Mike Coleman said March 22, “These documents, along with others, we presume, confirm our worst suspicions about Commissioner Stoltzfus. Clearly, he sought to deceive the public by hiding his role in this contrived legal effort. Hidden beneath his so-called ‘safety concerns’ is a targeted agenda to ‘take a bulldozer to all these buildings.’”

It appears to me, Coleman said, “Stoltzfus is actively engaged in efforts to bring suit against the taxpayers he was elected to represent.”

Barford said, “It’s a sad day out here. I’m very saddened by this.”

Some of the emails are below, to view the complete list (1262 emails) go here Stoltzfus Emails:


From: Harry Stoltzfus [mailto:harry@harconcorp.com]

Sent: Tuesday, January 19, 2010 8:00 AM

To: 'watersidehomes1@aol.com'

Subject: RE: 503 Pine

Nicky,

Would you consider posting a comment on the blog re: the site plan review procedures for 216 Pine Avenue?

Just a reminder:  at the joint session of the Commission and P&Z last week, after Commissioner Stoltzfus did a point-by-point outline of the process required by the Administration for reviewing site plans, Micheal Coleman stood up and said “This has all been done.”

Apparently, not.

The irony is, during the weeks the Administration was preparing the language changes for Chapter 74 in the ldr, which contains the specifics of the site plan review process, they screwed up the site plan review process.  Perhaps someone should advise them this isn’t just about grammar and syntax. Those words have meaning!

Think if anyone took the time to examine the rest of PAR’s site plan applications, they’d find similar irregularities?

Thanks,

H


From: watersidehomes1@aol.com [mailto:watersidehomes1@aol.com

Sent: Monday, January 18, 2010 5:10 PM

To: harry@harconcorp.com

Subject: 503 Pine

John Quam left me a voicemail to say that the head of P & Z would have signed off on 503, not him.  I guess that would have been Doug Copeland.  He said he would have to check tomorrow whether it had been approved.

With regards 216 he said he thought it may be pulled from tomorrow's meeting because the correct protocol had not been followed.

N


From: Harry Stoltzfus [mailto:harry@harconcorp.com]

Sent: Monday, January 18, 2010 11:31 AM

To:watersidehomes1@aol.com

Subject: RE: 503 Pine

Gotcha. Let me know what he says. You can ask him about the latest on 216 as well.

Smiling.

H


From:watersidehomes1@aol.com [mailto:watersidehomes1@aol.com

Sent:Monday, January 18, 2010 11:24 AM

To:harry@harconcorp.com

Subject: 503 Pine

I will call John Quam as he will have had to sign off on 503.

N


From: Harry Stoltzfus

Sent: Monday, March 01, 2010 8:41 PM

To: Jeremy Anderson

Subject: RE: petition

You can add some other stuff to your legal challenge as well.

Take a few minutes and read the opinions I wrote today.  I think you’ll find them interesting.

I’d like to meet the person who intends to pursue this matter, as you note below.  I’m interesting in getting involved, but indirectly.

Is there any chance we can prove the City has intentionally ignored its own Comp Plan?  Or its LDR? Or both. I’d like to see someone take a bulldozer to all these buildings the City has mistakenly approved.

Would the City be liable to PAR for damages because of the City’s mistaken approvals?

Thanks,

Harry


From: Jeremy Anderson [mailto:janderson@lobeckhanson.com

Sent: Friday, February 26, 2010 4:06 PM

To: 'Harry Stoltzfus'

Subject: RE: petition

No worries.  I have a possible client that is interested in possibly pursuing this matter, but seeks to have others join in this action with some financial support.  As indicated in my email to Nicky, the groundwork and research is already in place. Thus, much of the work is already done.  A action could be filed as early as mid to late next week.


From: Harry Stoltzfus [mailto:harry@harconcorp.com

Sent: Friday, February 26, 2010 4:02 PM

To: 'Jeremy Anderson'

Subject: RE: petition

oops


From: Jeremy Anderson [mailto:janderson@lobeckhanson.com

Sent: Friday, February 26, 2010 3:53 PM

To: 'Harry Stoltzfus'

Subject: RE: petition

Harry,

I believe you emailed me by accident.  If you do in fact wish to participate in an action, it is possible that you not be named and that your name not be disclosed.

Jeremy


From: Harry Stoltzfus [mailto:harry@harconcorp.com

Sent: Friday, February 26, 2010 3:45 PM

To: 'Jeremy Anderson'

Subject: RE: petition

Nicky,

I’m willing to throw some money away on this one, but don’t feel it would be wise to be named as one of the persons in the litigation.  We’ll talk about this tonight.

Harry


From: Jeremy Anderson [mailto:janderson@lobeckhanson.com

Sent: Friday, February 26, 2010 10:29 AM

To: Watersidehomes1@aol.com

Subject: RE: petition

Nicky,

You should have that person call us today.  I cannot say too much at this point, but there is no need to have multiple actions seeking the same result. 

There would be two ways to challenge Tuesday's  decision.  The first being a Writ of Certiorari based upon a departure from the essential requirements of law.  At the meeting the P&Z did not apply the correct law.  If they did, the project should have been denied.  The issues would be parking related and failure have anything in the record supporting finding that the design is based upon commonly accepted traffic engineering methods as required by 90.3(m).  They changed back the apartment to a single family home and will now provide two parking spaces for each residential unit.  This course of action would likely be successful, but the commission could later easily amend the LDRs to get around these issues.  

The second and more effective challenge would be a direct consistency challenge on both the residential density issue and the failure to separate pedestrian and vehicular traffic as required by comp plan.  In this challenge there is no need to try to assert that LDR and Comp plan are inconsistent, but we can point directly to the comp plan language and say that the development is inconsistent with that language.  (although challenging consistency, it is not the same administrative method).

The groundwork is already laid for a challenge on the second method described above.  It would be the most cost effective method and if successful, the City cannot simply change its LDRs, but would need a comp plan amendment.   If the second residential unit is denied, the entire proposed PAR project as now being proposed would likely not be worth the effort as the loss of the second unit in each of the plans could means a loss of hundreds of thousands of dollars in revenue to PAR.

There are several persons that are interested in proceeding, but do not want to go it alone.  A small group of persons working together is all that is needed.

Jeremy


From: Watersidehomes1@aol.com [mailto:Watersidehomes1@aol.com

Sent: Friday, February 26, 2010 9:51 AM

To: janderson@lobeckhanson.com

Subject: Re: petition

Hi Jeremy

With regards your final paragraph are you saying that a legal challenge against the approval of the site plan at 216 Pine based on the density argument is likely to be successful?  Hopefully if you are saying that the Nally's will actually take legal action against the City.  Someone else has mentioned doing the same and I am just waiting to hear whether they intend to go ahead with it.

As the Nally's planners analysis is now on public record can we not use it in our petition?  After all we are all arguing the same thing at the moment.

As far as challenging the 216 site plan we can actually see at least 3 very good cases for a challenge; density, parking and the fact that they allowed them to say the residence was an apartment.  There may be one other which pertains to the setbacks between the two buildings.

As far as amendments on our petition go can you make sure to include the number of lots in the ROR district as 92 as well as the previous number as being 5 units per acre in the previous comp plan.

With thanks

Nicky

March 1, 2010

It’s happened again.  The City has approved another non-compliant site plan.  How many is that now? I’ve stopped counting.

216  Pine Avenue is non-compliant for two reasons. 

  1.  The location of the areas for maneuvering to enter the parking spaces is in the City right-of-way. 

From our Land Development Regulations (LDR):  “All off-street parking areas, including all areas for maneuvering, shall be located solely on the subject property, shall not use public rights-of-way, . . . and shall be designed to provide safe and convenient circulation.” “Maneuver”, when describing a vehicle, means “steer”.

 Trace a line with your finger showing where a vehicle would have to maneuver to enter or exit one of those parking spaces.  If your finger touches the right-of-way, that parking space is non-compliant.  Again, this does not apply to driveways. 

  1.  The buildings shown are mixed use.  By definition, a parcel can only accommodate single use structures.  So 216 Pine Avenue has to either be considered as two separate lots, which means the setbacks between the buildings are wrong, or if deemed a parcel, the buildings thereon can only be single use.

Again, from our LDR, Chapter 70:  “Parcel means a tract of land of at least sufficient size to meet minimum zoning requirements, improved or intended for improvement by a building, together with its accessory buildings and structures, including the open space required under this subpart.  The word “parcel” shall be taken to mean any number of continuous lots of record or portions thereof not separated by a street, alley, public way or water body upon which one or more principal buildings for a single use are erected or are to be erected.” (Emphasis mine.)

The buildings proposed for 216 Pine Avenue are mixed use:  residential over commercial.  Again, that’s non-compliant.

I was not at the continued hearing for 216 Pine before P&Z, but I’m told our City Attorney was queried directly, “Is this site plan legal?”  I’m told he stated it was.

I’m very interested in hearing the basis for his conclusion.

Harry Stoltzfus

City of Anna Maria Commissioner


February 27, 2010

In November, I suggested the City of Anna Maria had mistakenly approved site plans in the Residential/Office/Retail (ROR),  based on this language in our Comp Plan:   “. . . the City’s traffic circulation system shall emphasize safety and aesthetics . . . , separate pedestrian and vehicular traffic . . . , minimize direct access onto major roads”, and accommodate “bicycle and pedestrian traffic needs.”  I maintained requiring vehicles to drive across the sidewalk to park, and then back out, sometimes blindly, through pedestrian, bicycle and vehicular traffic to re-enter the roadway,  did not meet the above standards, and was inherently unsafe.

My assertions were labeled “monkey wrench” issues. Opponents said we’ve never had a fatality on Pine Avenue, so there is no safety issue. Some said “changing the rules in the middle of the game” was a taking of developer property rights.

My contention was then, and is now; the rules are already in place.  They’ve simply not been applied.

From our Land Development Regulations (LDR):  “All off-street parking areas, including all areas for maneuvering, shall be located solely on the subject property, shall not use public rights-of-way, . . . and shall be designed to provide safe and convenient circulation.” “Maneuver”, when describing a vehicle, means “steer”. 

Restated, every developed lot shall have a driveway; vehicles must enter the subject property to park.  

Those who cried “you can’t change the rules” have now proposed the biggest parking rule change in the history of Anna Maria.  They’ve asked the City to cede the City-owned right-of-way for parking and allow property owners to determine where to position the sidewalk.  Instead of lining Pine Avenue with trees, they wish to line it with cars.  It screams “Commercial District!” 

It’s a half-access solution. Vehicles will still back into bicycle and vehicle traffic.  Property owners will still need driveways to accommodate loading zones.  And our sidewalks will weave back and forth the length of Pine, sometimes in the city right-of-way, sometimes on private property, depending on whether or not the owner volunteers to move the sidewalk.

At issue:  what do we want the Anna Maria of our future to look like? Do we change the LDR and the Comp Plan to accommodate the wishes of a few, thereby allowing larger buildings and greater commercial intensity in our ROR?   Or do we clarify the existing language in the LDR, carrying out our Comp Plan’s goals which are:  “to protect the single family residential character of the City within the Residential/Office/Retail Land Use Category, . . . preserve the unique, historic cottage type housing . . .” and  “encourage property owners to build less than the maximum size buildings.”   

If you care about the outcome of this discussion, you should go to City Hall Thursday, March 4, at 6:00 for the Joint Session of P&Z and the Commission and voice your opinion.  Or email the City:  amclerk@cityofannamaria.com

Thanks for listening.

Harry Stoltzfus

Anna Maria City Commissioner

To read all 1262 emails go here: Stoltzfus Emails

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