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Date of Issue: September 10, 2008

Complaint too late, says BOA

A meeting of the Bradenton Beach Board of Adjustment concluded Aug. 27 with the board’s determination that the appeal it was set to review was filed too late.

Cynthia Dagher and Mark Mixon of 2205 Gulf Drive sought a BOA hearing on a complaint regarding decisions by building officials that led to the issuance of a certificate of occupancy for the Sunset Beach Motel at 2201 Gulf Drive.

At the meeting, Dagher and Mixon worked through a timeline of their appeal with the BOA. The board, after nearly an hour-long discussion, determined it could not hear the substance of the appeal.

“We’re working through legal windows,” said BOA chairman John Burns.

City regulations require that an administrative appeal be filed within 30 days of the city decision.

The city issued the certificate of occupancy on Oct. 25, 2007, and the complete application for the appeal was filed on July 8, according to the city.

“We have exceeded the 30 days based on the exhibits in evidence,” Burns said. “And we have no authority to hear this.… We can’t legally hear this.”

The decision, which will be reviewed by the city commission, frustrated Dagher and Mixon, who claimed that correspondence with the city last fall indicated timing was not critical, and who spent about $1,000 noticing the BOA hearing.

“Why are we here for the third time?” Mixon asked, referring to the fact that the BOA meeting had been continued from July 16 to Aug. 6 to Aug. 26. “The application should never have been accepted with an application fee.… We have been misled since day one.”

“I would think the city would say something if there was a specific timeline of 30 days,” said Dagher, adding, “There are so many things going on in this project and none of them have ever come forth.”

City staff said they couldn’t tell an applicant that an appeal is untimely, only that an application is complete or incomplete.

“We just can’t make that decision,” said code enforcement officer Gail Garneau.

“It’s the responsibility of the board to look at the application,” said city attorney Ricinda Perry. “No one in the city can modify this application.”

A letter from building official Steve Gilbert to Dagher and Mixon dated Oct. 26, 2007, the day after the issuance of the CO, contained several statements regarding the 30-day appeal deadline and the complainants’ window of opportunity.

A similar situation arose earlier this year when the BOA determined that a complaint from resident Ken Lohn was filed too late.

Lohn has taken the issue to court.

Dagher and Mixon may eventually turn to court as well. “It seems the only way we are going to move forward is to have legal counsel and sue the city,” Mixon said at one point during the meeting.

He later thanked the board for its time, saying he understood the rules and pledging to follow the process through.

Burns, in turn, said he understood Mixon’s and Dagher’s frustrations, adding, “Redress is more appropriately done with your city representative.”

Burns also said the applicants could “go to your city council member and talk about how the process can be rectified.… If it’s not clear to you, it might not be clear to other people.”

The substance of the complaint filed by Dagher and Mixon, which the BOA did not discuss, contained the following allegations:

• Construction work at 2201 was a major development that exceeded the 50-percent rule watched by FEMA.

The complaint alleged, “How could a 7,514-square-foot motel be remodeled with a new roof, granite countertops, stainless-steel appliances and fixtures, new plumbing, electrical, windows, drywall, porch additions, A/C units, etc., be done for $445,188? This equates to under $60 a square foot.”

• Air conditioning units generate too much noise and were improperly placed.

“The location of these units has created an ongoing hardship with the quality of life we had enjoyed before … this project,” stated Mixon and Dagher in their appeal. “We ask the board to hear our plea and restore peace back in our lives.”

•  A “condominium-ized” motel constitutes a change of use. 

“Units are being sold as condos but used as a motel daily,” the complainants said. “What is this? If it is a motel, it is not permitable to have a kitchen in it if it is under 450 square feet.”

• Stormwater runoff from 2201 Gulf Drive now flows to neighboring property.

“Their property is higher than ours,” the complainants stated. “The reason for the runoff is due to them not doing the erosion control across the entire property.”

• Trees planted on 2201 Gulf Drive impair visibility from the neighboring driveway.

“The planting of trees over 8 feet tall close to the street right of way has created a hazardous situation leaving our driveway,” the complainants stated.

Gilbert, in other documents, responded to the allegations:

• The project was a minor development, according to the determination of former building official Ed McAdam, and thus a planning board review was not required.

Additionally, Gilbert said, affidavits on an independent appraisal and the schedule of costs associated with the 2201 project put the work within the 50-percent rule.

“You may submit any contradictory evidence as to compliance with the 50-percent rule that you have now for consideration or with the administrative appeal application,” he wrote.

• “Landscaping and buffering … have now been installed and inspected and appear to have mitigated much of the noise,” Gilbert stated.

•  Regarding the “condominium-ized” motel use, Gilbert wrote, “The land-development code regulates use of land, but not the type of ownership of real property, which is regulated by Florida statutes.… ‘Condominium’ is merely a form of ownership under Florida statutes. ‘Condominium’ ownership does not control, limit or govern actual ‘use’ of the units for either transient or permanent occupancy.’

“The only way condominium conversions of hotels are regulated by local government LDC is when the use of the hotel changes from transient occupancy to permanent occupancy.”

• Regarding stormwater runoff, Gilbert said additional review during a storm event might be required.

• Regarding the driveway exit on Gulf Drive, Gilbert said there is no problem for “a vehicle pulling out front first onto Gulf Drive.” He added that motorists “attempting to back out a vehicle onto Gulf Drive” might have a problem, but state statutes generally prohibit backing out onto state roads.

Calls to Raps Development LLC, the owner of 2201 Gulf Drive according to the Manatee County property appraiser’s office, were not returned as of The Islander’s deadline.