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Date of Issue: March 17, 2005

Anna Maria confusion: Site plan pulled before commission denial

Anna Maria city commissioners at their June 25 meting were all set to disregard their own attorney's advice and deny a site plan application by Robert and Nikki Hunt of 303 Pine Ave., but the applicants withdrew the plan moments before a vote and asked for a continuation to July 22.

The Hunts' site plan for a three-story structure in the residential-office-retail zone had been approved by the planning and zoning board, but commissioners believed the Hunt application did not meet the city's comprehensive plan requirements, which appears to limit the residential portion of an ROR building to just the floor above the office-retail space, which must be on the ground floor.

Not so according to the city code, said the P&Z board and Building Official Kevin Donohue in recommending approval of the site plan.

They had agreed that the city code does not specifically limit ROR structures to only two floors, just that the residence has to be above the office-retail. The Hunts had proposed ground-floor office-retail with the second floor divided equally between an office-retail unit and the residence. The third floor would be entirely residential, thus meeting the code requirement that no single use (residential, office or retail) occupy more than 50 percent of the structure.

Commissioners, however, disagreed.

Chairperson John Quam said the comprehensive plan limits construction to ground floor retail-office and the second floor to residential.

The city code, however, only states that the residence will be above the retail-office space and does not deny an applicant a third floor, as long as the 50 percent rule and the height requirement are met, replied Donohue.

City Attorney Jim Dye said the comprehensive plan takes precedence over the city codes because the codes were adopted from the comp plan. But people are reading the comp plan to say second floor "only," he added, although the word "only" just isn't there.

In other words, said Dye, in his opinion the applicants could build according to the site plan and the current city codes, as long as they meet other requirements.

Commissioner Dale Woodland countered that he "respectfully disagreed" with Dye's interpretation.

"To me, it's clear that the intent is for ground-floor retail-office and the second floor for residential," and in his interpretation, the code says the same thing.

Dye responded that the commission should be careful with restrictions. "If they are there, then I'm with you totally, but I don't see anything in the comp plan that eliminates a third floor."

Commissioners Linda Cramer and Carol Ann Magill agreed with Woodland. "For anybody who has lived in Anna Maria, you can tell the intent of the comp plan," said Magill.

Maybe, replied Donohue, but he was given the task under the site-plan-review procedures of providing an interpretation of the codes to the Hunts and that's what he did, just like the site plan for the Waterfront Restaurant (see separate story).

Designer Emily Anne Smith pointed out that the Hunts could build just a single-family residence on the property that would be larger than the proposed site plan structure.

The Hunts have been trying to get this project started since they bought the property in November 2003, she noted. Just after they purchased the land, they got hit with a city building moratorium that lasted until April 1, one week after the new site plan review procedures went into effect. Her clients then took direction from Donohue and proceeded on the basis of that advice.

But, from the discussion, said Smith, it's clear the commission is going to deny the site plan. "So, my clients want to withdraw the application and be put forward to the next meeting so we can regroup. This was totally unexpected."

Commissioners agreed to continue the public hearing until July 22.

Commissioners and Mayor SueLynn also agreed that the site-plan-review procedures need to be adjusted. She's already met with Donohue and, for future applicants, he will not give a code interpretation, only direction. He'll also note to applicants that the site-plan application is a three-step process from the building department to the P&Z to the commission, with commissioners having final authority.

"The site plan review process is new and it has put the building official in a difficult situation," said the mayor. The Hunts' application was the first under the new procedures and has raised code-interpretation issues, as has the second application under the new procedures, which was submitted by the Waterfront Restaurant.

Donohue has now been instructed "not to interpret any more," said SueLynn. It's like opening up "Pandora's Box" with a code interpretation to an applicant that can later be overturned by the P&Z board or commission. The applicants later claim that they only followed what Donohue told them to do.

It's up to the applicants to find out what the city requirements are and meet them, the mayor concluded.

Dye agreed. He does not respond to inquiries from attorneys representing private clients who want information on city building codes. "People are asking me, but they have to understand the hearing process. They have to review the code" for compliance, not the city. Applicants must be aware they can be turned down in any of three phases.

Resident Chris Collins suggested that the commission amend the city code for the ROR district to specifically state that only two floors of occupancy are allowed. Commissioners agreed to put the issue on a future workshop for discussion.