Holmes Beach city attorney responds to citizen inquiries

Holmes Beach City attorney Patricia Petruff has responded to a lengthy email inquiry, mostly concerning building regulations, from Judy Holmes Titsworth with a lengthy memorandum of her own.

    In her memo dated Sept. 25 and at that evening’s commission meeting, Petruff recommended several building changes to city commissioners, including stormwater retention and as-built survey requirements be adopted by ordinance.

    Petruff examined the gamut of building issues and concluded, “The biggest take-away from this is that every instance must be researched individually with specificity. There’s a lot of moving parts.”

    In a Sept. 4 email disseminated to commissioners, Mayor Rich Bohnenberger, Joe Duennes and others, Titsworth, who is running for a commissioner’s seat in the Nov. 6 election, summarized her concerns and posed questions about half-built duplexes, encroachments in setbacks, abuse of short-term rental parking, buffering and flood plain rules, and a lack of stormwater engineering and survey requirements.

    Titsworth asked, with the LDC as written, can another building be added to an already existing one-half duplex without adhering to lot size and minimum-spacing requirements?

    Petruff said, the code allows structures to be attached with a party wall, or covered by a permanent main roof or built on a common foundation, which are engineering issues.

    Titsworth also asked, in order to be legal should the duplexes that are half-built be reclassified as single-family homes and what process should be invoked?

    Petruff said if the classification of the structure was determined by the property appraiser without city input, it would not be a city issue. She added, “Maybe it would be more prudent to reclassify.”

    Bohnenberger said the already-built homes have been classified as single-family homes.

    Titsworth asked about setback encroachments, “Being that these properties are not in compliance with the LDC, what happens now? Can a certificate of occupancy be revoked? Do the properties have to be brought into compliance if a variance is not issued?”

    Petruff replied that research needs be done to determine if it is an interpretation issue, and whether the commission wishes to clarify or revise the code. She said revocation of a certificate of occupancy is a “drastic remedy,” and a court would require a property value that justifies a repair before it orders such a remedy. Variances and other methods may be used to correct problems, she added.

    Titsworth asked whether the city could prohibit rentals on properties where the building department may have unwittingly issued permits and certificates of occupancy.

    Petruff replied, “No. It’s a problem with the structure, not the use. I would not recommend withholding a business tax receipt.”

    Titsworth also asked whether the city planner could determine how many non-compliant properties have been permitted in recent years.

    Petruff answered, “If the city planner was given direction by the mayor or city commission, the planner could review all building permits for residential structures which have been issued in the last three to five years to determine what, if any, non-compliances may be present with respect to setbacks.”

     Titsworth also asked about a residential property collecting stormwater from a neighboring new development while the city lacked residential stormwater retention requirements.

    Petruff replied the land-development code currently exempts single-family and duplex construction from stormwater management requirements, and recommended the LDC be changed to require an engineer’s certification for residential stormwater retention plans at the time certificates of occupancy are granted.

Commission discussion

    Commissioner Pat Morton, during the Sept. 25 commission meeting, asked about the situation when “a contractor submits a set of plans that indicate one thing,” and what’s built is something else.

    Bohnenberger said the building department addresses such situations by requiring the structure be elevated or red-tagged and corrected.

    Petruff answered, “I agree with you Commissioner Morton. In a perfect world, that would be noticed and caught in the process of inspections.”

    “Have there been circumstances where a porch has become air-conditioned space, has this happened?” she continued. “It probably has. Is it a violation? It could be or not.”

    In such instances, Petruff said, a change order or the building permit should probably have been revisited.

    She continued, “Is it fixable? It might be — as long as it is structurally sound and as long as it doesn’t go over the 30 percent rule that we currently have, as long as it meets setbacks, all of those things.

    “It could be as a simple as requiring an after-the-fact permit. Or it just could be a blatant violation where we would go down a different path,” she added.

    Commission Chair David Zaccagnino said, “I’m a firm believer of where we go from here,” adding he’d rather see more stringent building practices going forward. “It’s kind of like chasing our tail.”

    Commissioner Jean Peelen agreed with a caveat, “I don’t want to dwell in the past either.

    “However I don’t want to sweep it under the rug. But it is good information for the commission to have. How frequent is it or isn’t it? Has it been a big issue or problem or not? I think we need to know that,” she said.

    Bohnenberger anticipated the cost of such a study to be “astronomical.”

        The commission first began looking at building codes and enforcement in December last year after residents packed city hall chambers to make known their complaints.