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Date of Issue: April 09, 2008

Commission eyes appeal on waterfront dispute

To the observer at the corner, the properties at Fifth Street South and Bay Drive South in Bradenton Beach seem as if they are racing toward the water’s edge.

And one seems considerably closer to winning the race.

That is part of property owner Kenneth Lohn’s problem with the structure to the south of his home at 500 Bay Drive S. Lohn also has a problem with the property behind his home.

Represented by Sarasota attorney Robert Turffs, Lohn is hoping for some relief, either from city hall or the Manatee County Courthouse.

The situation involving Lohn’s property and 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 the issuance of a certificate of occupancy for 109 Fifth St. and Lohn’s appeal of the building official’s decision to issue the CO, as well as the issuance of a conditional CO for 502 Bay Drive S. in 2004.

On April 3, the Bradenton Beach City Commission upheld the city’s board of adjustment finding that Lohn’s appeal of the CO was filed too late for review.

The commission’s vote followed comments by Turffs, city attorney Ralf Brookes, BOA chairman John Burns and resident Jo Ann Meilner.

Lohn, a former chair of the BOA, raised numerous concerns about the neighboring properties - known as Hibiscus I and Hibiscus II and owned by Synovus Banks - although initially developed by Steve Noriega.

Lohn’s complaint to the BOA contained several basic claims: 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 space, but primarily that construction took place on the wrong site, too close to the waterfront and without proper public input.

On Feb. 26, the board of adjustment voted 4-0 to recommend that the city commission dismiss Lohn’s appeal.

A conclusion of law report signed by Burns and read into the record at last week’s city commission meeting made two determinations.

First, the report stated, the appeal of the building officials determinations to issue certificates of occupancy were 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.

Second, since the appeal was filed late, the board of adjustment is without jurisdiction to hear the matter and issue a recommendation.

Turffs responded with the claim that his Jan. 4 letter notifying the city of Lohn’s intention to appeal the CO met the 30-day requirement, even if a formal application of appeal wasn’t yet filed.

The attorney emphasized the timeline in the appeals process, as did city attorney Ralf Brookes. The timeline, based on the document trail, is:

  • Nov. 7, 2007: Turffs sent building official Steve Gilbert a letter asking to be notified of activity involving the Hibiscus properties.
  • Dec. 20, 2007: Gilbert issued a certificate of occupancy for 109 Fifth St. S.
  • Jan. 2: Gilbert sent Turffs a letter informing him that the CO was issued.
  • Jan. 4: Turffs sent Gilbert a letter stating “a notice of our appeal of the decision rendered.”
  • Jan. 11: The city sent Turffs an application for appeal and details of the fee required.
  • Jan. 22: The date the city says was the deadline to file an appeal.
  • Jan. 30: The city date-stamped “received” on Lohn’s appeal application.

Turffs claimed the BOA erred in dismissing Lohn’s appeal because the Jan. 4 letter was sufficient notice of appeal and that the 30-day countdown on the filing period should begin on Jan. 2, when he received notice that the CO was issued by Gilbert.

“I believe the filing was timely,” Turffs said.

The attorney asked the city commission to ask the BOA to review the appeal on its merits so the parties involved could further avoid the courthouse. Turffs recently asked a judge to quash the board of adjustment’s dismissal of the appeal.

“Why not hear it on the merits rather than play these games?” Turffs said, adding that heading to court would be a “needless expense for Mr. Lohn and the city.”

Meilner made a similar statement during the public comment portion of the discussion. “Treat people of the city with respect and hear the case,” she said.

Brookes read relevant aspects of the land-development code for the commission, stating that the appeals shall be filed in writing within 30 days “after rendition of the order or decision,” appeals shall be accompanied by a fee, and the written appeal shall contain a statement of the decision to be reviewed, the interest of the person seeking the review and the specific error alleged.

Turffs’ Jan. 4 letter did not meet those requirements, Brookes said.

Brookes said the commission had several options, including asking the BOA to hear the case or allowing a judge to review the request to quash the dismissal.

Such a judicial review would not be expensive, Brookes said.

The commissioners, like the attorneys, focused on the timeline, as well as the code requirements.

Vice Mayor John Chappie expressed concern that the commission would be opening the door to additional cases if it simply asked the BOA to review the appeal.

“Is that opening us up for other cases to come out of the woodwork?” he asked.

“I don’t want to put the city of Bradenton Beach in a vulnerable position,” he added.

Chappie suggested a judicial review would be best, noting that if the judge disagreed with the BOA’s dismissal of the appeal, the matter would be bounced back to the city.

Commissioner Janie Robertson also said a judge should consider the issue. “I can go there,” she said.

The commissioners, with John Shaughnessy absent, authorized Brookes to handle the court filings and asked him to seek an expedited hearing.

In other business last week, the commission:

  • Discussed the case of The Islander vs. the city. (See separate story.)
  • Approved the amended minutes of a Jan. 8 meeting regarding the city Evaluation and Appraisal Report, which will be sent to the Florida Department of Community Affairs for review. The EAR contains recommended changes in the city, but approval of the minutes and the subsequent submission to the DCA does not amend the city’s comprehensive plan.
  • City planner Tony Arrant said the city is telling the state, “We think, at this point, based on what we know, this is what the comprehensive plan is going to look like in the future.”
  • Approved an invoice from Lynn Townsend and Associates for $2,721 for engineering work associated with stormwater drainage.
  • Approved an invoice for M.T. Causley Inc. for building department services.
  • Approved an invoice from Dye, Deitrich, Petruff and St. Paul for $162 for legal services.
  • Continued discussion on a resolution regarding code enforcement penalties and a lien placed on property in the 900 block of Gulf Drive. The commission was expecting a briefing from Steve Gilbert, who, for personal reasons, did not attend the meting.

During the public comment portion of the meeting, two people recognized the city’s fourth annual Eco Expo in late March a success.

Also, former Mayor Connie Drescherraised concerns about dogs on the bike path. Drescher said she previously supported dogs on the path, but she’s now concerned about large, poorly behaved, unleashed pets.

City commissioners are petitioning the county to allow dogs on the path along Coquina Beach.

The commission’s next meeting will be at 1 p.m. Thursday, April 17, at city hall, 107 Gulf Drive N.