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Date of Issue: November 10, 2005

City defeats English in code battle

The first time Anna Maria took 78-year-old Dorothy English of 776 N. Shore Drive to the code enforcement board for a fence-height violation, it took more than two-and-a-half hours of deliberations and discussions for the board to reach a 2-2 tie vote.

That was in July 2005.

The second time around- Nov. 1 with a full complement of five members - CEB Chairman Bill Iseman asked attorneys for both English and the city to keep their remarks brief and make about a five-minute review of the case for the benefit of CEB member Shirley O'Day, who was absent in July.

So at the second hearing it only took three hours of discussion and debate, mostly from attorney Chris van Hise representing English, for the board to reach a 3-2 decision that English had violated the city's fence-height ordinance.

None of the four board members present at the July 7 hearing changed their opinion at the Nov. 1 hearing, but O'Day sided with the city's allegations and voted that there was a violation.

The city claimed that a fence English put up around his house earlier this year was higher than the six-foot limit allowed by the city code.

Van Hise did his best for his client, arguing unsuccessfully that Building Official Kevin Donohue should have known that English was building a pool barrier, not a fence, when he issued the permit. Donohue did admit that the fence permit might have been issued in error because of a retaining wall on the property, but there were two separate contractors and applications, one for the pool and one for the fence. The applications were submitted several months apart and he could not remember the specifics of each of the more than 200 permits he processes every year. Once he learned the fence was surrounding a pool, he issued a stop-work order April 1, 2005.

Van Hise also argued that the city used the wrong definition of "grade" of the land when it measured the height of the fence. The city should have used the Florida Building Code definition, but Donohue countered that under Florida statute, erection of a fence is not a building issue and the FBC definition of "grade" did not apply.

Van Hise added that Code Enforcement Officer Gerry Rathvon should not have measured the height of the fence from the alleyway behind the property as the alleyway is city property.

In addition, Van Hise also suggested that the matter should have been before the city's planning and zoning board, but City Attorney Jim Dye replied that the CEB was the legally constituted body to hear the case.

Van Hise's legal arguments failed to persuade O'Day or either Iseman or board member Gordon Atkinson, who both cast the same vote for a violation as they had in July. Board members Jeff Murray and Dr. Carl Pearman voted against finding that any violation had occurred, both at the July 7 hearing and on Nov. 1.

The board gave English until March 31, 2006, to fix the violation and come into compliance with the code.

Mark English, Dorothy's son, labeled the proceedings a "Kangaroo Court."

He said he has spent more than $11,000 in legal fees on the case, not to mention what it will cost to tear down the existing fence and build one to the required height. He did not yet know if he would appeal the case in circuit court.

English also noted that the city has spent an inordinately large amount of taxpayer money in prosecuting the case, having had to pay Dye twice for the same case, and attorney Susan Hartman-Swartz, who represented the board at the November hearing, in addition to overtime for city staff on both occasions.