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Date of Issue: March 17, 2005

Anna Maria faces lawsuit after rejecting first site plan under new procedures

Anna Maria's recently adopted site plan review procedures were supposed to simplify submission, review and approval of major and minor building projects in the city.

If that's the case, the city may have itself an expensive and not-so-simple process because the very first site plan review will now be tested in court.

"Without a doubt we're going to court," said attorney Matt Taylor after the city commission Aug. 2 denied a preliminary site plan application by Nikki and Robert Hunt for a three-story residential-office-retail building at 303 Pine Avenue.

The vote was 3-2 with Commissioners Linda Cramer, Carol Ann Magill and Dale Woodland voting for denial while Commission Chairperson John Quam and Commissioner Duke Miller favored the plan.

The denial came despite an opinion by City Attorney Jim Dye that the site plan was legal under the city's comprehensive plan and accompanying code, a unanimous recommendation for approval from the planning and zoning board, and recommendations for approval from city engineers Baskerville-Donovan Inc., planning consultant Joel Freedman, and Building Official Kevin Donohue.

"I can't believe they denied this," said Taylor. "We met everything the code and comp plan said we could build. We anticipate filing our lawsuit almost immediately, certainly within the next two weeks."

Taylor maintained throughout the two-and-a-half hour public hearing that the city's land development code does not state that an ROR residence could "only" be built on the second floor of the unit, just that it had to be above the ground floor, which can only contain commercial units. The comp plan says nothing about a third floor residence, and that the city's ROR code amended in 1996 also does not deny a third floor of residence for an ROR unit, he said.

It doesn't matter what the intent of the 1989 comprehensive plan was, noted Taylor. Restrictive language was not put in the plan, he said, and commissioners should base their decision solely on the evidence presented, not what the intent was in 1989.

But Magill, Woodland and Cramer weren't swayed by that argument, and it soon became obvious from the discussion they were going to vote to deny the application.

"I think it's clear regarding the intent" of the comprehensive plan, said Cramer, and "I don't have a problem with my interpretation."

"It's the job of the city commission to interpret the code, regardless of the opinion others have," said Woodland. "That's our job and responsibility."

Magill, Woodland and Cramer agreed that the intent of the comprehensive plan was to limit ROR buildings to just two floors, but Taylor again claimed that commissioners shouldn't make their decision on intent, just what the code and comprehensive plan state.

"The hangup is that people are reading the comprehensive plan and code as saying 'only,' but that's dangerous," Taylor said. "That's just not there."

Quam and Miller also agreed they knew that the intent was to limit ROR buildings to just two stories, but because there was no restricting language, they sided with the Hunts.

The Hunts had proposed two ground floor commercial units with half of the second floor devoted to their own residence and the other half for commercial space. The entire third floor would take up the remainder of their home, and the site plan fell within the city's 37-foot height restriction. Their original application was based on an interpretation from Donohue, who has since been instructed by the mayor and commission not to give opinions.

The Hunts appear to have had bad timing in the purchase of the property last November.

Within a month, Anna Maria adopted a building moratorium while new site plan review procedures were being developed by the P&Z board. When those measures were adopted by the commission in late March 2004, the moratorium was lifted and the Hunts were the first to apply under the new procedures.

Problems with the new procedures, including the second site plan application which was submitted for the Waterfront Restaurant (see separate story), have prompted P&Z Board vice-chairman Charles Canniff to suggest a meeting among the P&Z board, city commission, city attorney and building official to iron out problems before more problems develop.

That proposed meeting might be a moot point. The new site plan review procedures will now be tested in court rather than in commission chambers.

As resident Mike Holman of 311 Pine Avenue told commissioners, "If the laws can't be trusted and are subject to interpretation, then how can anybody plan?" He and his family have planned on investing hundreds of thousands of dollars in an ROR project on Pine Avenue, but he suggested nobody would "have any intention of investing" in the city without clear direction and guidelines.

Taylor is an attorney with the Mackey Law Group of Bradenton.