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Date of Issue: March 17, 2005

Holmes Beach commission agrees with Davis plan

Two things appear certain in the on-going effort by Holmes Beach resident Frank Davis to build a four-plex on his property at 5622 Marina Drive.

It's costing Holmes Beach a lot of money for legal advice on the effort and related lawsuits, and the issue appears far from over. Legal bills for everyone involved are likely to continue upward.

The Holmes Beach City Commission approved Davis' site-plan application in a stormy and lengthy special meeting Jan. 13, setting the stage for further legal action by adjacent landowners Ruth McLean and Barbara Coloney, who were represented at the meeting by Tampa attorney Campbell McLean. The landowners already have a lawsuit against the city regarding two variances approved for the project.

The approval, however, was contingent on Davis obtaining yet another variance from the board of adjustment, this one for the frontage of his property, which is 68.5 feet. Lots in the zoning district are required to have 80 feet for new construction.

Commissioners at the same meeting denied an appeal by attorney John Shubin of Building Official Bill Saunders' interpretation of the city code in a Nov. 25 letter to Shubin. Shubin also represents McLean-Coloney in the lawsuit against the city and is the brother-in-law of Campbell McLean.

McLean said Saunders used faulty numbers in determining the gross square footage of the property, a claim Saunders did not deny, but said it was a simple typographical error of just a few hundred feet when he took the numbers from the survey and put them in the Nov. 25 letter.

Either way, said Saunders, there's still enough square footage to build the project. The correct buildable lot area is 19,879.8 square feet.

McLean also disputed Saunders' statement that the property setback is at least 50 feet from the erosion control line along the shore. Saunders should have measured the setback 100 feet from the mean high water mark, which the city code requires.

Saunders said he uses the erosion control line because it's a fixed mark established by the Florida Department of Environmental Protection, while the MHWM meanders and has actually moved farther out since the recent beach renourishment project.

Commissioners agreed with Saunders and denied the appeal, but corrected the square footage amount.

The legal wranglings began in earnest when the commission discussed the Davis site plan.

Attorney Peter Mackey, who represents Davis, said the city has been "over-layered" with objections, lawsuits and motions by Shubin.

Mackey said the issue is simple. "Does the site plan comply with the city's codes and comprehensive plan?" he asked. Mackey claimed it does.

He noted, however, that whatever decision the commission makes "is likely to end up in court."

But why should the commission approve a site plan with frontage that's 12 feet under the code? asked City Commissioner Don Maloney.

The commission can make site-plan approval contingent on a variance, suggested special city legal counsel Mark Singer.

Davis has submitted his lot frontage variance request to the planning commission, Mackey said.

McLean, however, argued that the proposed project is simply "too big" to be compatible with the surrounding neighborhood, does not meet the city's comprehensive land use plan and is not allowed by zoning changes established by the city in 1989.

That's because the 1989 commission failed to include a "savings clause" that would allow owners of legal but non-conforming properties at that time to rebuild, observed City Commissioner Rich Bohnenberger.

That's why the variance is needed, said Mackey.

Maloney noted the city is working on an ordinance to adopt a savings clause, but he wondered if the savings clause was left out of the 1989 land development code "deliberately or by accident."

Singer said if the city adopts a savings clause, the need for a variance by Davis disappears.

But Davis has already gotten two (height and side setback) variances, observed McLean, and now he needs yet another variance.

If the project were "scaled back," suggested McLean, his clients might not object.

Mackey countered that Davis has offered to scale back the project and build just three units, but that offer has been rejected by the McLean-Shubin camp.

The meeting was conducted as a quasi-judicial hearing and both Mackey and McLean presented expert land use- planners to support their positions. At times, the attorneys appeared to be arguing a court case as each side called witnesses to support their own cause, and both lawyers even questioned each other on the veracity of their own claims.

City Commissioner Roger Lutz, himself an attorney, chastised both groups.

"It disturbs me that two groups of rich people are getting into a fight and Holmes Beach now has to pay a fortune in legal fees. We didn't ask for any of this," he said.

True, but the commission had to make a decision and unanimously agreed to approve the site plan, subject to approval of a variance for the lot width by the BOA.

The commission also gave Davis approval by a 4-1 vote to move a four-unit cottage from 5622 Gulf Drive to the Harrington House property he owns at 5626 Gulf Drive.

Commissioner Pat Morton cast the dissenting vote.