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Date of Issue: May 14, 2008

No decision, plenty of talk, at Fiske hearing

Marina or not?
The Fiske property at the south end of Bay Boulevard in Anna Maria has a number of boats moored on Bimini Bay, including some charter fishing boats. Islander Photo: Rick Catlin

Shortly after Anna Maria’s code enforcement board began its May 5 meeting to hear allegations of code violations against Evelyn and Jack Fiske of the 800 block of South Bay Boulevard, their attorney suggested they had not had sufficient time to prepare a defense because he had just learned about the hearing.

Attorney Chuck Webb said his clients had not received proper notice of the meeting, he said, and the notice procedure was defective.

Webb told board chairman Bill Iseman, also an attorney, he would welcome a continuance to another date in order to prepare his case.

But after a lengthy amount of testimony from code enforcement officer Gerry Rathvon - and lawyers, including Webb, city attorney Jim Dye representing Rathvon and attorney Susan Hartmann Swartz representing the board - arguing points of law, city codes and notice procedures, the board agreed that Rathvon’s efforts to notify the Fiskes of the hearing were satisfactory.

Board members later might well have wished they had approved Webb’s request.

After agreeing the notice was proper, the board heard a lengthy session of testimony, including a vigorous cross-examination of Rathvon by Webb on the city’s notice procedures and the alleged violations.

Eventually, the board decided it was too late to reach a decision on whether or not the Fiskes were in violation of any city ordinances. The board had little choice but to continue the hearing, thereby giving Webb the preparation time originally sought.

“This case is complex,” said Webb at the start of the procedure, a claim with which few people at the hearing would disagree.

The city has claimed the Fiskes are not in compliance with city codes because they are operating a marina in a residential area and have expanded the marina over the years.

Webb countered that the city and Dye had written a letter to his clients in 2006, saying that the use of the property, while a non-conformity, was “grandfathered.” The property has operated as a marina since 1938, perhaps as early as 1911, he added.

 Rathvon said she investigated the use of the property only after a number of nearby residents complained about activities there. Her investigation led her to believe the Fiskes were in violation of city ordinances. When her efforts to obtain compliance failed, she brought her case to the board.

The city claims the Fiskes are running and expanding their business - a marina - at their residence. At the same time, the city codes indicate a non-conforming property is supposed to move toward coming into compliance. Rathvon alleged to the board the Fiskes are not moving toward compliance.

The background to the allegations is complex.

Webb and the Fiskes filed a lawsuit three weeks ago against the city asking the Manatee County Circuit Court to declare that their property can be used for marine purposes because, among other justifications, it’s a “grandfathered” use. The legal action was filed before the city sent any notice to the Fiskes to appear before the city’s code enforcement board, Webb said.

Dye countered that the circuit court has indicated it will not interfere with the workings of the city’s code board, while Webb countered that only two of the four charges in the Fiske action are affected by the court’s decision against interfering.

Webb further claimed the notice of the code board hearing was done incorrectly and that the city has no way to prove the Fiskes ever received the notice.

Rathvon had to agree, noting she has never received a receipt from the post office that her certified letters to the Fiskes were delivered into the Fiskes’ hands.

 Webb said he only learned of the code board hearing when he read about it in the newspaper. And just because their attorney knows about a hearing, it doesn’t constitute proper notice to the Fiskes, he claimed.

“We’re talking about due process,” Webb said.

After the lengthy discussion at the May 5 hearing, the board voted for continuance to 6 p.m. June 11.