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Date of Issue: October 08, 2008

Judge orders city to review property dispute

A judge has ordered Bradenton Beach officials to take another look at concerns raised by resident Ken Lohn about neighboring property at Fifth Street South and Bay Drive South.

After reviewing the order, city commissioners on Oct. 2 voted to remand Lohn’s administrative appeal on a certificate of occupancy for 109 Fifth St. S. to the board of adjustment for a hearing on the merits.

The situation involving Lohn’s property at 500 Bay Drive S. and neighboring 502 Bay Drive S. and 109 Fifth St. S. goes back years and involves the broader issue of whether and how municipalities can protect waterfront views.

The most recent concern involves Lohn’s administrative appeal of the city building officials’ issuance of certificates of occupancy for 109 Fifth St. and 502 Bay Drive S.

Lohn, a former chair of the BOA, raised numerous concerns about the neighboring properties — known as Hibiscus I and Hibiscus II, now owned by Synovus Banks but developed by Steve Noriega. His complaint claimed that the center line in the driveway serving Hibiscus I and Hibiscus II is “much less than 40 feet” from the center line of his driveway, that landscaping timbers were improperly placed into the driveway area, but primarily that construction took place on the wrong site, too close to the waterfront and without proper public input.

On Feb. 26, the BOA voted 4-0 to recommend that the city commission dismiss Lohn’s appeal because it was untimely filed — by three years in the case of 502 Bay Drive S. and by more than a week for 109 Fifth St. S. The certificate of occupancy for the Bay Drive property was issued Dec. 30, 2004, and the CO for the Fifth Street property on Dec. 20, 2007. Appeals of COs, under the city’s land-development code, should be filed within 30 days.

The BOA determined that since the appeal was filed too late, the board was without jurisdiction to hear the matter.

Lohn’s attorney, Robert Turffs, has maintained that a Jan. 4 letter he wrote notifying the city of Lohn’s intention to appeal met the 30-day requirement, even if a formal application of appeal wasn’t yet filed.

Thus, Turffs claimed the BOA erred in dismissing Lohn’s appeal.

When the city commission declined in April to ask the BOA to review the appeal on its merits, Lohn and Turffs went forward with a complaint at the Manatee County Judicial Center in Bradenton.

In late September, Circuit Judge Paul Logan issued an order granting part of Lohn’s petition seeking a city review of his complaint.

Logan said Lohn’s appeal of the certificate of occupancy for 502 Bay Drive S. was filed too late, but that his appeal for 109 Fifth St. S. was timely.

The judge additionally said that the letter to the city from Lohn’s attorney on Jan. 4 “gave the city timely notice of the petitioner’s appeal.”

The judge added that an appeal that is deficient in form and substance is not the same as an untimely appeal.

During last week’s commission meeting, city attorney Ralf Brookes reviewed the judge’s order, then said the city could either remand the case to the BOA or appeal Logan’s order to the district court of appeals.

Brookes said the commission might want to send the case to the BOA “rather than pursue additional litigation.”

Commissioner John Chappie said it had been the commission’s intent to follow the circuit court order.

Chappie pointed out that the BOA will review Lohn’s questions pertaining to the Fifth Street property but “the one that fronts the bay, that’s a done deal.”

A BOA hearing on the appeal had not been scheduled at Islander press time.