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Date of Issue: June 09, 2005

Another fine Anna Maria mess

In a city that seems to reel from one inconsistent land use code to another - and occasionally one legal opinion to another - Anna Maria city commissioners agreed to hire a professional planner to help rewrite the land development regulations in conjunction with the comprehensive plan now undergoing revision.

The decision came at a special meeting June 2 as commissioners tried to clarify the controversy surrounding a Feb. 18 opinion by City Attorney Jim Dye that single-family homes that do not meet the required 7,500 square feet of lot space could be built on each of the five lots comprising the former Island Marine property on Pine Avenue.

That opinion appeared at odds with prior legal advice Dye had given the planning and zoning board on Feb. 23, 2004, when it heard a variance application by Island Marine owner Jeff Van Hoose to build a single-family home on each of the lots. The board said Van Hoose would have to combine the five lots into four to meet the 7,500 square feet code requirement for a single-family home and recommended denial of the application. Van Hoose, however, never went to the city commission for a final decision.

Dye told commissioners June 2 that at that time, Van Hoose did not raise the issue of "grandfathering" platted lots in the ROR that are now non-conforming since new regulations were enacted with the 1989 comprehensive plan.

But earlier this year, attorney Scott Rudacille, representing a potential buyer of the Island Marine property, brought up "grandfathering" at a meeting with Building Official Kevin Donohue and Dye.

Donohue asked Dye for an opinion, based upon Rudacille's claim of an exception in the city code that essentially states that if a lot is "grandfathered," a single-family home can be built, even if the lot is undersized and is in the ROR district.

Dye's Feb. 18 opinion agreed, even though the density in the ROR is zero to five units per acre.

Following Dye's opinion, Rudacille's client, Jacob Martin, purchased the property for $1.9 million. The five lots are being sold for $595,000 each. One lot has been sold to Island contractor John Agnelli, while three others are under contract.

Dye told commissioners the city's comprehensive plan does not say that lots less than 7,500 square feet have to be combined before a house can be constructed.

And the city code states that if a lot is grandfathered, "You can go ahead and build," Dye said.

There are two sections in the code which say "you have to combine," he added, "but it does not say so in the ROR, only that if you have a non-conforming lot in the ROR, you can build on it."

Under a legal interpretation, the people who drafted the code did not require lots to be combined in the ROR for single-family home construction, he added. Section 114-135-2 of the city code "protects" grandfathered lots.

"Do you stand by your letter of Feb. 18?" asked Commission Chairperson John Quam.

"Yes," replied Dye. "I have not found anything in the code that says they can't build [residences] on a 5,000-square-foot lot in the ROR."

So, noted Dye, one section of the code requires vacant non-conforming lots to get a variance, while another section states those lots don't need a variance.

As Stan Laurel would say, "Another fine mess you've gotten me into, Ollie."

In other words, if the owner of a lot in the ROR district wants to build an ROR structure, they only need 5,000 square feet of lot. If they want to build just a single-family home, they may or may not need a variance, depending upon the legal opinion of the day.

Commissioner Duke Miller was upset.

"We've heard over and over that the comprehensive plan takes precedence over the code. Why can people build if they don't meet the requirement?"

Because the Pine Avenue lots are in a mixed-use area and the codes for mixed use don't cover a single use in an ROR district, Dye noted. The comprehensive plan does not absolutely prohibit single-family homes in the ROR.

Miller also questioned Dye about his prior legal opinion to Van Hoose in February 2004, noting that it appears the city attorney has given two different opinions on the same subject.

Dye agreed the opinions appear to differ.

In February 2004, he had said the Island Marine lots were undersized, but Van Hoose never "came back" and asked about the grandfather clause. "It didn't come up the first time," Dye said.

Miller responded that first the lots were too small and now they aren't too small.

Dye did tell commissioners that they could change the requirements for lot size in the ROR with a new ordinance, because his opinion that led to the property being purchased was not an "article of reliance."

If someone has purchased a Pine Avenue lot, but hasn't done anything, such as apply for a building permit, hire a contractor or develop plans, the commission can legally "change the rules," he said.

"In this case, my opinion was not an ‘article of faith.'"

But the commission was reluctant to venture down that legal road. Commissioner Linda Cramer said she could just see the resulting lawsuits.

She and Commissioner Dale Woodland agreed with Dye that the Pine Avenue lots in question are buildable, platted lots and suggested the city hire a professional planner. The commission concurred and decided that many of the city's land development regulations did not correspond to the comprehensive plan.

Quam asked Mayor SueLynn to get a cost estimate on hiring a part-time planner to work with the planning and zoning board while it reviews the future land-use element of the revised comprehensive plan and determine what codes are inconsistent with the plan.

Planning and zoning board member Doug Copeland, who was also on the city's ad hoc committee that presented the revised comp plan to P&Z, disagreed with Dye's Feb. 18 opinion, but agreed that P&Z could use the services of a professional planner during its comp plan review.

From the discussions, it's obvious there is a problem between the comprehensive plan and the land-use regulations, he observed dryly.

SueLynn said she would present estimates for a professional planner to assist P&Z at the city's June 23 meeting.

"The sooner the better," said Miller. "We sit through all these special meetings and we are not getting anywhere."

The P&Z board is set to begin discussion of the future land-use map of the comp plan at a June 27 workshop. Following that workshop, the board will schedule the first of a series of public meetings on the revised comprehensive plan.