Another snag for Davis four-unit development by Diana Bogan
Legal counsel for the City of Holmes Beach has agreed with legal counsel opposing the development of a four-unit condominium at 5622 Gulf Drive - that a site plan review for the project is premature.
John Shubin, a Miami land-use attorney hired by Ruthanne McLean and Barbara Coloney to oppose Frank Davis' proposed development at 5622 Gulf Drive, filed an argument that the proposed site does not meet the frontage requirements in the city code for the A-1 zoning district.
According to information gathered by Shubin from the Manatee County Property Appraiser's Office, Davis' property frontage measures 68 feet and the minimum frontage required by city code is 80 feet.
Therefore, Shubin attests that before a site-plan review can be made, Davis must apply for a variance.
David Persson of Hankin, Persson, Davis, McClenathen & Darnell, who has been selected as the city's special counsel to address issues associated with the Davis site-plan applications for both 5622 and 5626 Gulf Drive, reviewed Shubin's argument and agreed.
The second site-plan application for 5626 Gulf Drive is for the addition of the house presently at 5622 Gulf Drive, which Davis plans to move to the front of his Harrington House Bed and Breakfast Inn.
Persson stated in his letter to the city that the property at 5622 is located within an A-1 zoning district and meets the city's code requirements except for the lot frontage.
Persson advised that most zoning codes contain a provision that addresses how to treat lots of record made nonconforming by a zoning change.
"Most codes provide that such nonconforming lots remain buildable for their intended purpose so long as they meet minimum standards," said Persson.
This provision is called a savings clause and, according to Persson, the present version of the city codes does not include this clause.
Persson stated in his opinion that the requested use of a nonconforming lot requires a variance because of the lack of a savings clause in the code. And he believes it would be premature for the city to consider the site plan for 5622 Gulf Drive until Davis obtains a variance.
"Our families are pleased that their legal position has been validated by the opinion of the city's special legal counsel," said Shubin. "[Persson] is a very well respected municipal and land-use lawyer and I can't think of a legitimate reason for the city not to adopt his opinion and send this application back to the board of adjustment."
Persson recommended the city modify its code to include a savings clause for legal nonconforming lots of record, as well as updating code requirements to clearly depict its vision of the community.
"While the update will require the expenditure of public funds," Persson said, "It is significantly less expensive than litigating outdated or contradictory zoning provisions."
Davis' condo project received two variances in February, one for height increase and the other for side setback reductions.
Shubin has challenged the legality of the public notice for those variance hearings.
The site plan was scheduled to be heard by the city commission at a special meeting Oct. 7, and the attorney for Davis, Mark Barnebey, had not withdrawn the matter by presstime.
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