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Date of Issue: March 17, 2005

Davis variance approved, but more legal battles loom for Holmes Beach

In what may have given Holmes Beach residents a sneak preview of future courtroom battles over the same issue, lawyers on both sides of the Frank Davis lot-width variance request sparred, dueled, jabbed and traded verbal accusations during a two-hour hearing before the board of adjustment Feb. 18.

The end result was that attorney Peter Mackey, representing Davis, won a 3-2 decision from the BOA to grant Davis a lot-width variance for his property at 5622 Gulf Drive, allowing Davis to proceed with plans to build a four-unit condominium. Included in the approval was a contingency that Davis not utilize a previously granted height variance to 41 feet, but restrict the building height to 36 feet, a contingency Davis himself volunteered.

But Davis isn't likely to break ground any time in the near future.

The variance approval becomes final only after all appeals are concluded, the motion to approve stated.

Should the courts determine the site plan was not properly approved, said acting City Attorney Mark Singer, the variance is voided.

Davis' site plan approval from the city commission last year was contingent upon him obtaining a variance from the BOA.

Attorney John Shubin, representing adjacent landowners Barbara Coloney and Ruthanne McLean, who have opposed the variance and site plan approval, immediately vowed to appeal to the city commission as his first legal move against the variance.

Shubin already has one lawsuit against the city, claiming the commission meeting approving the site plan was not properly noticed. In addition, Shubin filed a lawsuit Feb. 12 against the city alleging the site plan approval itself was improper (see separate story).

One thing seemed clear, according to board member Russ Olsen, who voted against the variance: "It's already cost the city more than $60,000 in legal fees in this issue and it's going to cost us a lot more in the future."

Mackey claimed that was Shubin's fault for all the legal roadblocks, and the city should look to the plaintiffs for legal fees. The McLean family has three land-use attorneys in it, including Shubin, who are opposing Davis and the city for free, he said.

He also alleged that the McLean-Coloney group has failed to negotiate a settlement with his client, despite offers to meet.

But Mackey agreed the Davis issue has been a complicated one for the city.

The "reason we are here," he said, is because the city did not adopt a "savings clause" - often called a "grandfather" clause - when it changed its land use codes in 1989 to require 80 feet of frontage for new construction in the A-1 zone. Davis has only 68.2 feet of frontage on the lot.

Prior to the code change, Davis owned a lot that was conforming as to lot width and he could have built his four-unit condominium without any problems, claimed Mackey.

Because there was no "savings clause" adopted, the Davis property became a legal, non-conforming lot after the code changed.

However, argued Mackey, the "hardship" is that Davis used to have a legal lot, but now he doesn't and the city has always intended that legal lots of record before the code change that became non-conforming could still be built on as before.

In other words, he said, Davis met all the requirements to build before the code changes, so he should "not be deprived of the use of the property because the code changed."

But Shubin countered that was not the intent of the city when it changed the code, and the city has to follow the law.

His family has lived in Holmes Beach for decades and loves the city and this Island.

It was Davis who failed to attend the requested meetings to negotiate a settlement, not his clients, Shubin claimed.

It's time for reason within the law. "Too much mud" has already been slung on McLean and Coloney over their opposition to the variance and site plan.

"Don't give in to emotional rhetoric," he urged the board. "This is all about money."

He said his clients would be happy to allow Davis to build what they already have, but Davis wants to build a "McMansion" of 8,800 square feet, while the McLean-Coloney structure is only 3,044 square feet.

Davis, he claimed, wants to build four large condominiums so he can sell them for a big profit.

"And what's the hardship?" he asked.

"To show hardship you need to show that without a variance, you can't economically use the property," said Shubin, and that's not the case at present.

The current four-bedroom structure has operated quite nicely as part of the Harrington House Bed and Breakfast Inn owned by Davis, but Davis can make more money selling condo units, Shubin said.

"He still has an economic use" without the variance, he argued.

Shubin also warned the city that the issue is far from over.

"If you don't follow the law, we feel we have a right to go to court to make you follow the law," he advised the board.

Shubin also claimed there was a square footage issue involved, but Singer told the board the variance request was only for lot width, and they had to follow the variance criteria for just that issue.

Olsen and board member Peter Ereg voted against the variance while members David Moynihan, Hugh Holmes Jr. and Allan Guy approved the motion, agreeing Davis met all the criteria for a variance, including hardship because of the code change.

Thomas Jefferson once said that in Congress, there are lawyers talking to lawyers who are being advised by lawyers, and they are all paid to talk by the hour. And Congress meets for two years.

It could take a lot longer than two years before all the lawyers get done arguing this issue.

Another lawsuit
With one lawsuit already filed against Holmes Beach and Davis, attorney Shubin, representing Coloney and McLean, filed a second legal action Feb. 12 against Davis and the city, this time alleging that the city's approval of the Davis site plan is "inconsistent with the city's comprehensive plan."

Shubin also claimed that the comprehensive plan itself is "legally invalid," and property owners near Davis have been denied "due process of law."

In addition, Shubin wants the courts to rule on the proposed "savings clause" ordinance before it has been passed by the city commission, claiming it is an "unconstitutional dedication of the city's police power" and impacts "vested rights" of abutting property owners.

The lawsuit also states plaintiffs Coloney and McLean deserve "money damages" from Davis because of his "malicious filing and maintenance of litigation" against his clients and the continual "threats of legal action against the plaintiff's immediate family members."

This, alleged Shubin, is in "direct retaliation for the plaintiffs' legitimate and justified exercise of their constitutional rights to free speech and petition government for redress of grievances."

Not so fast, said attorney Mackey, who represents Davis. "It's obvious these people are grasping for straws."

He dismissed the notion that Davis has maliciously filed any litigation against the plaintiffs, noting that Davis only filed a standard counter-motion to the original complaint by the McLean-Coloney camp.

Mackey also said it's somewhat strange for a lawsuit to be filed against a city ordinance that's only been proposed, but not yet passed by the city commission.

"All this action will do is increase the legal fees paid by the city and Mr. Davis in fighting these allegations. The only people paying are the taxpayers of Holmes Beach and Mr. Davis," he added. Shubin, he claimed, is filing these motions without charge as he is a member of the McLean family.

"In my opinion, counsel has personalized this issue," Mackey concluded.

Ray of hope
Don't make your courtroom reservations just yet.

Mackey said that Davis and a senior member of the McLean family met last week without any attorneys present in an effort to resolve the impasse between the two sides.

"Mr. Davis made a proposal to Mr. McLean Sr., and they are going to try and work this out," he noted.

An agreement could be reached as early as today, Feb. 25, Mackey added.

Davis-McLean meeting canceled

A planned meeting today between Frank Davis and members of the McLean-Coloney family to discuss and possibly settle differences over the site plan for Davis' condos at 5622 Marina Drive in Holmes Beach has been canceled.

Attorney Peter Mackey, representing Davis, said a McLean family member informed Davis earlier this week that not all family members could be present at the meeting, which was to have been conducted without the presence of attorneys.

There are no plans to reschedule the meeting, Mackey said.

In other news, Mackey filed a lawsuit against the City of Holmes Beach Feb. 23 as a "safety valve," he said, in the event that an appeal by the McLean-Coloney group to the circuit court of the city's approval of the Davis site plan is upheld.

"It's strictly a safety-valve filing," said Mackey.

He said he had 30 days to appeal the city's decision to approve the Davis site plan subject to a variance for the property.

Even though Davis was subsequently granted a variance by the city, the filing gives Davis some legal protection if he has to argue in court that Davis should not have needed a variance to get the site plan approval, Mackey said.

The lawsuit also included a motion for an indefinite stay of the proceedings, he added.

The Coloney-McLean home, a duplex with two stories of living space, right, will be overshadowed, according to their attorney John Shubin, when Frank Davis builds his four-unit Mediterranean-style condo, replacing the four-bedroom home situated on the left which is rented now as an annex to his bed and breakfast.

Rendering submitted by Frank Davis for what he called his "dream home," a four-unit condominum of 8,800 square feet propo5622 Gulf Drive, Holmes Beach.