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Date of Issue: October 26, 2006

City orders Olesen wall torn down

In an apparent clash of legal opinions, the Anna Maria City Commission wants a recently constructed wall at 504 S. Bay Blvd. torn down because it encroaches into a city-owned beach access.

Efforts the past four months to reach a compromise solution on the wall built by the Olesen family as part of a renovation project at their property have apparently failed. Commissioners at their Oct. 19 meeting voted 4-1 to have city attorney Jim Dye send a letter to the Olesens indicating that if the wall isn't torn down, the city will take "all necessary measures" to have it removed.

Since the dispute arose last April after building official Kevin Donohue halted the renovation project because of the right-of-way ownership issue, the Olesens have consistently maintained they own a 5-foot right of way in the access, while the city and Dye's position has been that nothing was ever recorded to show the city had vacated the 5 feet to the family.

Dye has said previously that the only avenues open to the Olesens for a remedy to complete their renovations were either to apply for a vacation, a variance or sue the city in circuit court.

The commission, however, has long held the view that it wanted to help the Olesens and would look favorably on a variance application. But a variance application would admit that the Olesens don't own the property, an admission that the family apparently isn't going to make.

Attorney Craig Colburn, representing the Olesens, argued at the meeting that the Olesens were willing to tear down the wall if the commission would instruct Donohue to approve a new site plan for the project. But approving that site plan would be an admission by the city that the Olesens own the disputed 5 feet.

Colburn produced a number of documents and correspondence to show ownership, but Dye was unimpressed. "There is nothing new," he noted. Colburn presented the same material to the commission June 20 when Dye offered his opinion to the commission that there are only three possible solutions.

There is still nothing in the official survey of the property or on file with the Manatee County Circuit Court to indicate the city ever vacated the right of way to the Olesens, he observed.

And, Dye added, it appears the Olesens have no intention of accepting the commission's suggestion to apply for a variance.

Colburn, however, disagreed that the issue was "cut and dry." The city in correspondence from the 1950s and 1980s has "always indicated the Olesens own the property," he claimed.

He suggested the commission wanted the Olesens to demolish the house, a suggestion quickly rejected by Commissioner Dale Woodland.

The commission has bent over backwards to help the Olesens, Woodland said, but it can't override its own codes and ordinances. There are procedures and processes in place for the Olesens to follow. Likewise, the commission can't play favorites. To order Donohue to approve the site plan is like the commission "picking and choosing which ordinances we abide by," he said.

Woodland asked Colburn under what authority can the commission direct Donohue.

"You are elected to make decisions," said Colburn. The commission, he claimed, has the power to say Donohue's previous ruling is too harsh. The commission needs to make a "value judgment." It appears the city is trying to force the Olesens to tear down their house, he indicated several times.

But selective enforcement is not the way a city operates, countered Woodland, and from the very first day Colburn and the Olesens appeared before the commission, it has been sympathetic to a variance.

"If you're back to who is right and who is wrong," he told Colburn, "we are going nowhere."

Not so, said Colburn. "This is a land-use issue and you have the authority to look at the code and interpret."

"But we've already supported a variance," said Commission chairman John Quam, although the Olesens have shown no interest in this procedure.

"So, the city's position is the house must come down?" questioned Colburn.

Not so, said Quam. "My motion did not talk about demolishing the house."

Commissioner Duke Miller agreed with Quam and Woodland and admonished Colburn to stop putting words in commissioners' mouths.

"From the beginning the commission has directed our attorney to find a remedy under our ordinances," said Woodland. Dye offered three solutions months ago and the Olesens apparently have not agreed to any of those.

The commission is only accepting the advice of its attorney to direct the Olesens to remove the wall, Woodland said. "You are trying to twist this to make it appear we are trying to get your client to demolish the house. That's wrong and your argument is weak," he concluded.

"But demolishing the house is the logical course of events," responded Colburn.

Stop, said Miller. "We thought several months ago we had a solution. Why not take a variance? We've gone out of our way to accommodate you. We are on your side."

Commissioner Linda Cramer, however, agreed the Olesens own the property and voted against the motion. She said that from the description of ownership presented, "It indicates they don't need a variance."

Quam's motion will still leave room for the Olesens to apply for a variance.

Colburn did not indicate if or how the Olesens might seek a solution.