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Date of Issue: March 17, 2005

Waterfront restaurant plans still on hold

As Yogi Berra would say, "It's deja vu all over again."

Owners of the Waterfront Restaurant in Anna Maria had hoped to get a decision from the planning and zoning board June 21 to either approve or deny their preliminary site plan application.

A portion of the restaurant was damaged in a March 18 fire, and the preliminary site plan for the nonconforming property proposed to combine the three structures on the property into one unit. Only the front building was damaged in the fire, but the other two units are part of the restaurant and used for food storage and preparation, owners Jason and Leah Suzor said.

The preliminary site plan had been approved by Building Official Kevin Donohue, who interpreted the code to the applicants that they could use all the square footage of the footprint. The board, however, believed that under the code, if the applicants "voluntarily" tore down the two undamaged buildings, the property would lose its "grandfather" status as a nonconforming-but-usable restaurant and be required to meet current code requirements.

The newly adopted site-plan procedures in Anna Maria required the board to either approve, deny or approve with conditions, the site plan application at the June 21 meeting.

Instead, the board declined to make a decision and opted to hold a special meeting Wednesday, June 23, to discuss interpretation of the code for nonconforming structures with Donohue and City Attorney Jim Dye, and possibly reach a decision on the site plan.

That idea didn't work out well for the Suzors.

Dye advised the board June 23 that it would have to go through the entire public hearing process again in order to reach a decision on the Waterfront application. The special meeting June 23 could not be used for approval or denial. According to the site plan review procedures, that should have been done by the P&Z board at the June 21 meeting. The board set 7 p.m. Wednesday, July 7, for the "deja vu" public hearing.

Dye told the board that, in his opinion, the intent of the code is to allow nonconforming structures "until they are voluntarily removed." At that time, the property loses its "grandfathered" status and would have to conform to current setback and other code requirements.

The applicants could rebuild just the damaged front building on the restaurant property and retain the nonconformity for setbacks, he indicated.

"If the two buildings are nonconforming because of setback requirements, and are voluntarily removed, there is no protection. A voluntary knock-down is new construction and that has to meet current code," opined Dye.

Yes, but there's a problem in the code, countered Donohue. It's conflicting because, in another section, the code states that a nonconformity can be enlarged if the nonconformity is not increased. His decision was based on the fact the applicants did not intend to increase the nonconforming portion of the property - the front over-hang on the porch along South Bay Boulevard.

Attorney David Hall spoke on behalf of the Suzors, claiming all three structures - restaurant, kitchen and storage area - are an "integrated use" of the property and should be considered as one footprint.

All his clients want to do is put all three structures under one roof to create an aesthetically pleasing building that will fit into the ambiance of Anna Maria and look just like the restaurant did before the fire.

Very nice, suggested board member Charles Canniff, but while the buildings may be used to support the restaurant, under the current codes they are accessory buildings and not physically attached to the main seating area.

"We are trying to fit a square peg into a round hole," he said, "and I have yet to hear anything" that changes his previous opinion that combining all three structures into one building requires the Waterfront to meet all current code requirements.

But architect Gene Aubry cried foul. He had numerous meetings with Donohue and based his design on Donohue's interpretations. He followed all the rules laid down by Donohue. Now, the board is changing the rules, but can't give him guidance for what are the rules.

"We still don't know the rules," and it's costing his clients a lot of money. The garage can be left in place, if necessary, but just "tell me what the road map is" for the site plan. "We have done this according to the rules, but you have changed the rules and you don't know what the rules are."

That is something Aubry and his clients will have to figure out on their own. Dye advised board members that they could not indicate to Aubry what they might recommend or approve at a future meeting.

Donohue suggested that Aubry consider some site plan changes prior to the July 7 meeting. He also said that, in the future, he will only give a recommendation to site plan applicants, not an opinion. He'll also note that he is only the first step in a three-part process for site plan approval, and that his opinion on a code could be different from that of the P&Z, or even the city commission.

That's how he sees the site plan review process now, but that was not the original intention of the process adopted in April, he said.

Board members and Dye agreed on one thing in Anna Maria: there is often disagreement between the board and the building official over code interpretation. In fact, said Canniff, there are occasions when the city commission overrides a P&Z recommendation and approves or rejects a project. The commission has the final decision on the Waterfront site plan, the P&Z is only a recommending body, he said.

Aubry and the Suzors wanted the board to make a decision and send it to the city commission meeting June 24. However, Dye said that because the June 21 meeting was not continued to a "date and time certain," it would be best if the entire public hearing process were properly noticed again.

Hall suggested there might be little point to a July 7 meeting. "There's no question we are going to be turned down two weeks from now, and that's a shame. Then where do we go? You've put us in a very difficult position."

Because the fire has been deemed as an arson by fire investigators, the Suzor's insurance company has not yet paid any claims to rebuild the restaurant. The Suzors have indicated the remodeling plan presented would be paid for by themselves and other family members.

The site plan application by the Waterfront is only the second to come before the P&Z board since the new site plan review process was adopted.

Canniff said that originally, board members thought the review process would be a "piece of cake." The current confusion was not contemplated when the procedures were put in place, and it now appears there could be some refinements made to the process.

Deja vu, Yogi.