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Date of Issue: July 07, 2005

Court upholds Davis variance, construction proceeds

A circuit court judge has ruled that the Holmes Beach Board of Adjustment correctly granted Frank Davis a variance that allowed him to build a four-unit condominium at 5622 Gulf Drive.

Davis appeared before the board of adjustment in March 2004, requesting a variance of a little more than 11 feet on his lot width. The city's zoning code required the lot be 80 feet in width; his property was a little more than 68 feet wide. The board of adjustment found that there was a "hardship" attributed to the property and granted Davis the variance.

Neighbors Ruthanne McLean and Barbara Coloney filed suit against the board, claiming that there was no hardship involved with the request for a variance and that Davis failed to present substantial evidence to uphold his request.

Circuit Court Judge Marc Gilner ruled June 29 that the board did nothing wrong in granting the variance and upheld its decision.

"Mr. Davis argues that, without the lot width variance, it is impossible to construct the four-unit condominium, presently allowed in his A-1 district," Gilner wrote in his decision. "Davis states that his property is peculiar and nonconforming due to the 62.8-foot frontage instead of the requisite 80-foot frontage and, further, that his proposed four-unit condominium is a reasonable use for the property."

He added that the city's land development code defines "reasonableness in terms of practicality, hardship and maintaining the spirit of the ordinance," and that the condo would be a "reduction in the density and intensity of the property as compared to the present structure," which is operated as an annex to the Harrington House Bed & Breakfast that Davis also owns.

McLean and Coloney's attorney, John Shubin, argued "that the ‘practical difficulties' standard utilized by the board is incorrect."

Gilner ruled that "the board gave consideration to the fact that, under present circumstances, Davis is not able to alter the structure on his property at all without the grant of a variance. Due to the unique shape of his lot and the code changes that adversely affected his irregular parcel, board members discussed hardship criteria and whether the fact that Davis would essentially have to ‘keep the same building on there forever' qualifies as a legitimate hardship.

"The board ultimately found that Davis, unlike neighboring landowners, did have a unique hardship, his proposed use was consistant with the other properties within the A-1 zoning district, he was not being afforded any special privileges via the variance, and the property was being put to reasonable use as a multi-family dwelling with the construction of a four-unit condominium."

Gilner added,"The court finds that the board properly reviewed all of the necessary criteria and followed the essential requirements of the law when it granted Davis a variance."

He also ruled that "substantial, competent evidence" was provided to the board of adjustment in its decision to grant Davis a variance.

Prior to the ruling from Gilner, Davis removed the existing building from the lot and has "moved forward" with construction of the condos, according to his attorney, Peter Mackey. "The pilings are going in."

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