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Date of Issue: April 22, 2009

BOA holds court-ordered hearing

4-22-09/bb-boa-lohn.jpg
Attorney Robert Turffs and his client, Ken Lohn, attend a Bradenton Beach Board of Adjustment hearing April 15. The hearing focused on Lohnís complaints regarding a certificate of occupancy for 109 Fifth St. S. Islander Photos: Lisa Neff

Ken Lohn won his right to a hearing before the Bradenton Beach Board of Adjustment.

But the Bradenton Beach property owner and resident lost the hearing April 15.

Leaving city hall after the BOA voted to recommend the city commission reject his arguments and support the building official’s decision to issue a certificate of occupancy for a duplex at 109 Fifth St. South, Lohn said, “It’s going to get awfully expensive.”

“We’ll never quit,” he added.

The meeting, which lasted about 160 minutes, was called to hold a court-ordered hearing on Lohn’s administrative appeal first filed in January 2008.

Lohn’s appeal included complaints about two properties that abut his Bay Drive South residence — 502 Bay Drive S. and 109 Fifth St. S.

Initially the BOA and the city commission decided that Lohn failed to file a timely and complete administrative appeal on a certificate of occupancy for either site.

But in September 2008, a circuit court judge decided that Lohn’s appeal was sufficient to hold a hearing on the 109 Fifth St. S. property — and that’s the hearing that took place April 15 at city hall.

Lohn’s issues with 109 Fifth St. S., also known as Hibiscus II and now owned by Synovus Bank, include allegations that improper construction created stormwater management problems, that the building violates the city’s general design standards and that a driveway used to access multiple properties, including one owned by Lohn, is illegal.

In the hearing, Lohn and his attorney, Robert Turffs of Sarasota, focused on the driveway and the placement of Hibiscus II, making multiple points in their argument that the driveway violates the city’s land-development code.

Turffs argued that the driveway, placed on a 12-foot easement, is less than 12 feet wide, an alleged violation of the LDC, and that the driveway is within five feet of Lohn’s property line, another alleged violation of the LDC.

“Despite what the easement says, the driveway was not built to comply with Bradenton Beach codes,” Turffs said.

Turrfs also argued that the distance from the centerline of Lohn’s driveway to the centerline of the Hibiscus driveway is much less than 40 feet, another alleged violation of the LDC.

Turffs further argued that timbers placed to direct stormwater and used for landscaping, as well as decorative trim on Hibiscus II, extend into the driveway, reducing access.

The driveway cannot be used by West Manatee Fire Rescue District’s ladder truck, according to Turffs and testimony from one of his witnesses, surveyor Leo Mills Jr.

Mills also testified that there appears to be discrepancies in surveys in the area. His firm accepted different survey monuments than another firm involved with the development of Hibiscus II, part of a larger project begun by GSR Development, owned by Steven Noriega and Robert Byrne that is now in bankruptcy.

“We had some monuments there that we had a hard time agreeing with,” Mills said. “There were discrepancies out there.”

Lohn also testified during the hearing. Asked whether the situation has impacted the value of his home, he answered yes.

BOA Chair John Burns asked whether an appraiser was involved in that assessment.

Lohn said no and revised his answer. “I believe it has been degraded,” he said, referring to his home on Bay Drive South.

“There’s a variety of problems with this property,” he added. “It’s a disaster for the city of Bradenton Beach.”

Building official Steve Gilbert represented city staff at the hearing.

One of his points involved Lohn’s argument that the driveway is not 12 feet wide and thus violates the LDC. Reading from the code, Gilbert said a 12-foot-wide driveway is required for multifamily properties and a 10-foot-wide driveway is required for single-family and duplex properties. The improved access in question, Gilbert said, serves duplex properties.

“A driveway at this site is to be 10 feet, not 12 feet,” he said.

Further, Gilbert said that the improved access is on an easement provided for a “Corrective Grant of Easement for Ingress/Egress and Utility.” The document, signed by Byrne and Noriega, granted Ken and Yung Lohn an easement for ingress and egress and utility purposes to a landlocked lot they owned and committed GSR to building a driveway over the easement in compliance with the city’s LDC.

Gilbert said that the improved access is on an easement in a private agreement between two parties. “It’s a legal agreement,” he said, adding that an easement and a driveway are two different entities, and Lohn’s complaint involves an “easement.”

In regards to easements, the LDC states, “This article is not intended to interfere with, abrogate or annul any easement, covenant or other agreements between parties.”

Gilbert also addressed the concern about fire trucks using the driveway or easement. He said the West Manatee Fire Rescue District does not treat private driveways the same as streets or alleys.

“As a matter of fact,” Gilbert said, “West Manatee Fire Rescue does not use our platted alleys for fire trucks.”

The alleys, Gilbert said, are 10 feet wide.

During deliberations, BOA members Dan DeBaun, Karen Cunningham and Burns reviewed the information presented and made a list of findings of fact and conclusions.

The board concluded that the required width for vehicular access is 10 feet and therefore the improved easement is sufficient, even with the timbers and landscaping.

“The easement is larger than it needs to be,” Burns said.

The board then unanimously voted to recommend that the city commission uphold the building official’s decision to issue a certificate of occupancy for 109 Fifth St. S.

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