The city of Holmes Beach looked to gain the offensive in a case filed by builder/developer Shawn Kaleta.
The writ of mandamus, declaratory judgment and injunctive relief were filed by a Kaleta-managed company, 306 Clark LLC, after the city denied a request for a revised permit for a fourth bathroom in both units of a duplex under construction at 306 Clark Drive.
In a Sept. 30 response, attorney Jim Dye of the Bradenton firm, Dye, Deitrich, Petruff & St. Paul, representing the city and building official Jim McGuinness, told the 12th Judicial Circuit Court the building official was “entirely justified in denying” the fourth bathroom.
“The building official exercised his discretion in finding that a full bath adjoining a dining room was nothing more than a ruse for creating a fourth bedroom on each side of petitioner’s duplex,” Dye wrote.
The city anticipates the dining room will become a bedroom after a certificate of occupancy is issued.
The city’s attorney continued, “It is not the simple fact of adding a bathroom. Instead, it is how the proposed bathroom adjoins the dining area. The petitioner is asking to construct a master bath adjoining a dining area.”
The city maintains that Kaleta’s permit request violates the city’s moratorium ordinance, approved Feb. 10, limiting bedrooms — or rooms that can be made into bedrooms — to no more than four, according to Dye.
Judge Gilbert A. Smith Jr. had ordered the city and McGuinness’ response to show why he shouldn’t order the building official to issue the 306 Clark permit.
Dye contended McGuinness’ decision was an act of discretion, needed to call out Kaleta for the deception and ordinance violation — not a ministerial act as alleged by his LLC.
“It must be noted,” Dye continued in his response, “that the bathrooms were already under construction without permits when they were discovered by the city inspector.”
In a sworn affidavit made part of Dye’s response, McGuinness recounted the city’s history with Kaleta, counting three stop-work orders at the site, two since he was hired in March, and 10 stop work orders across the city in 2015.
The discovery of the unpermitted bathrooms during a plumbing inspection led McGuinness to write an email to Kaleta, requesting plan revisions, according to McGuinness’ affidavit.
The newly submitted plans showed two full baths, one per unit, each with a closet, twin sinks, a commode and shower adjoining what McGuinness claims is misidentified on the plans as a dining area.
McGuinness stated, “The proposed bath was explained to me as a bath for the use of day guests. In my experience the proposed baths are far beyond the scope of a guest bath.
“The dining area also has the required egress windows for bedrooms.”
McGuinness concluded, “In my view there is only one reason to have a full master bath adjoin a segregated room, such as the one labeled ‘dining area,’ and that is to make it available as a sleeping area or additional master bedroom prohibited by city ordinance 15-01.”
According to Kaleta’s complaint, city ordinances — including the moratorium ordinance that limits bedrooms or rooms that can be made into sleeping rooms to four — do not restrict the number of bathrooms, and a bathroom would need another permit for conversion to a sleeping room.
In an Oct. 2 text message from Kaleta, he told The Islander:
“I’m building for someone. I’m not the owner. I am listed as manager on the LLC to facilitate signing documents during the building process to make the process easier.”
According to Kaleta, the bathroom plan was requested by the owner — who plans to live on one side of the duplex — for use by guests coming to the house who might use the pool or beach, overnight guests sleeping on a couch and for convenience on the first floor of living space. The other bathrooms are on the second level of living space with the bedrooms.
“The dining room has no door and no closet and the window is the same as the windows in the living room,” he said.
He also claims the plumbing was on the amended plan submitted prior to the inspection.