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Date of Issue: April 01, 2009

BOA stands with building department

Two Bradenton Beach residents, after more than a year of wrestling with technicalities, made their case March 25 against a city building official’s decision to issue a certificate of occupancy for a neighboring property on Gulf Drive.

But Cynthia Dagher and Mark Mixon did not get satisfaction. They said they still must live with excessive noise from air-conditioning units just feet from their property.

“Two years and $1,000 on our behalf — a lot more on the city’s — and this is where we are,” Mixon said last week. “All along we’ve been willing to compromise, but there’s been no compromise.”

“We can’t carry on a conversation in our living room when those air conditioners go off,” he continued. “It sounds like an airport.… They are less than two feet from our property line.”

On each complaint made by Dagher and Mixon regarding the city’s issuance of a CO to the ResortQuest property at 2201 Gulf Drive, the Bradenton Beach Board of Adjustment last week voted to recommend the city commission support the city building department’s decision or found that the complaint was flawed in some manner.

Mixon later said that if the commission votes as the BOA recommended, litigation likely would follow.

“And that’s what we’ve been trying to avoid all along is litigation,” he said.

The appeal

Dagher and Mixon appeared before the BOA last week in a hearing on their third-party administrative appeal of a CO for the Sunset Beach Motel/The Beach Club at 2201 Gulf Drive.

Their appearance before the board was not their first, but previous BOA meetings on their complaint focused on whether it was filed timely and complete.

In a 2-1 vote on Feb. 11, more than 15 months after Dagher and Mixon first filed a complaint, the BOA deemed it timely and cleared the way for the March 25 meeting.

The couple’s appeal initially was broad, but then narrowed down to three basic complaints — alleged inadequate buffering between the properties, alleged improper placement of the air-conditioning units and alleged excessive noise from the air-conditioning units.

“The location of these units has created an ongoing hardship with the quality of life we had enjoyed before … this project,” stated Mixon and Dagher in their appeal. “We ask the board to hear our plea and restore peace back in our lives.”

Mixon said the noise has negatively impacted the quality of life at his home, as well as negatively impacted property value.

During the construction work at 2201 Gulf Drive, Dagher and Mixon had raised concerns about the air-conditioner noise, among other issues, with the city and the developer.

Prior to the issuance of a CO, the noise from the units was measured as exceeding permissible limits in the city and, according to Mixon, there were efforts made to minimize the noise.

However, Mixon said those efforts didn’t sufficiently diminish the noise and, once the CO was issued, there were no further steps taken to correct the situation.

“In the earliest conversations with the owner, they said, ‘We want to make you happy’ and promised us the stars and the moon,” he said. “But once the CO was issued, we never heard from them again.”

The BOA review

During the meeting March 25, BOA chair John Burns and members Karen Cunningham and Dan DeBaun worked with city attorney Ricinda Perry on making findings of fact and then formalizing a series of recommendations to the commission.

In regards to the placement of the air conditioners, the most significant fact for the board was that the city’s land-development code does not specify that air-conditioning units cannot be placed within building setbacks.

Further, the BOA found that the air-conditioning units were identified on the building plans, approved by the building official and required to be elevated for flood-proofing and in order to comply with the state building code.

The board agreed to recommend to the commission that the building official’s decision regarding the elevation and placement of the air conditioners be affirmed.

In regards to the noise generated by the air conditioners, the board agreed that such matters are addressed administratively by the city through code enforcement.

On that complaint, the BOA also recommended affirming the building official’s decision.

In regards to buffering, the BOA determined that the land-development code does not require landscape buffering between two R-3 properties.

At one point during the meeting, Dagher asked, “Can I speak?”

Burns said the public hearing had been closed at the prior meeting, but the board did hear briefly from both Dagher and Mixon.

Dagher said that the BOA process to review the appeal had been costly for the couple and the city, in the thousands of dollars, and that her concern could have been addressed by simply relocating some of the air conditioners.

“We tried to find the quickest resolution,” she said. “We have estimates that those four air conditioners could be moved to the roof … for $3,285 and the whole thing would be resolved.”

“This,” Dagher said, “is just so sad.”

Mixon questioned the accuracy of the information provided to the BOA. “One of the air-conditioning units is on the ground,” he said. “And required a variance. Do you actually know what we’re talking about?”

The board next voted on several motions, sending its recommendations to the commission.

The next step

The appeal now will go before the city commission for consideration.

Also, Mixon and Dagher received direction from the city that they could file a nuisance complaint regarding the noise from the air conditioners.

But the couple expressed frustration in the days after the BOA hearing.

“An average person can’t spend every minute fighting city hall,” Mixon said.

What’s more, Dagher said, is that neither she nor Mixon wanted to have to fight city hall.