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Sunday, Nov, 23, 2014
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Davis site plan review continued to January

The public hearing and site plan review of Frank Davis' application to construct a multi-family dwelling at 5622 Gulf Drive and relocate the existing structure to 5626 Gulf Drive ended on a somewhat familiar note to be continued.

All parties involved agreed to continue the Nov. 5 public hearing and site plan review until Jan. 13 so that Davis can seek a lot-width variance or other administrative relief for his property at 5622 Gulf Drive.

The Nov. 5 hearing was a continuation of the Oct. 7 hearing.

Site plan background
Davis has proposed to move the existing structure at 5622 Gulf Drive to his property at 5626 Gulf Drive where the Harrington House Bed and Breakfast is located.

The structure to be moved has been used as an annex to the Harrington House for the past 10 years, with four bedrooms being rented. The proposed plans would move the structure to the southeast side of Harrington House and it would be renovated for use with only two units the maximum allowable for the density at that property.

Davis proposes to build a four-unit condominium at the 5622 Gulf Drive location after the existing structure is moved.

Davis' 5622 Gulf Drive plans went before the Holmes Beach Board of Adjustment in February when he was granted height and setback variances for the proposed four-unit condominium. The setback variance was to accommodate construction of bay windows.

Davis then received a letter of no objection from the city and submitted a site plan for approval. The approval process was set before the city commission Oct. 7.

However, prior to the Oct. 7 hearing, David Persson of Hankin, Persson, Davis, McClenathen & Darnell, was selected as the city's special counsel to address the Davis site-plan applications for 5622 and 5626 Gulf Drive. The city's counsel apparently had recused itself due to a conflict, although there is no statement from the firm or attorney Pat Petruff as to the nature of the conflict of interest.

Persson had been asked to render an opinion concerning whether city codes require a variance for nonconforming lots.

Persson determined that although the plans meet the permitted use within the A-1 district, the lot did not meet the frontage requirements. In the absence of a "savings clause," a provision that allows a nonconforming lot to remain buildable for its intended purpose so long as it meets certain minimum standards, the applicant would need to be granted a variance or other relief from the city.

Mark Barnebey and Peter Mackey, legal co-counsel for Davis, disagreed and argued that the use of the property at 5622 Gulf Drive is not changing. They said the property currently has four rental units and it will still have four units and Davis is entitled to have three or more units on the property now without requesting a lot-width variance.

The site plan review was continued to Nov. 5 to allow Davis' legal counsel time to submit information proving its argument to the city's special counsel that the use of the property at 5622 is a grandfathered use, and therefore would not be subject to a variance request.

Opposing counsel was granted an opportunity to offer a rebuttal. John Shubin, a Miami land-use attorney was hired by Ruthanne McLean and Barbara Coloney to oppose Davis' proposed development.

Barnebey/Mackey's legal arguments
In written arguments submitted to Persson, legal counsel for Davis argued there will be no change in use of the property at 5622 Gulf Drive because:

  • The existing code allows up to 10 dwelling units per acre.
  • Under the A-1 zoning, Davis has and continues to be entitled to four dwelling units on the site.
  • The setback requirements are met via the variance, which has already been granted by the board of adjustment in February.
  • There are four dwelling units on the site now and there will be four dwelling units on the site after the condominium is constructed.

Davis' team argued there is no code "use" differentiation between a hotel/motel room and a bedroom in a residence.

According to the Davis legal team, the transition from four hotel/motel units to four condominium units would not be a change in use because both are dwelling units under the city's land development code.

The Davis' team pointed to the definition of a dwelling unit in the land development code, which states it is "a room or rooms connected together, constituting a separate independent housekeeping establishment for a family, physically separated from any other rooms or dwelling units in the same building, containing sleeping and sanitary facilities, with or without cooking facilities."

Davis' legal team argued the definition does not exclude a hotel/motel and it only makes sense for it to be included within the definition.

Shubin's legal arguments
Shubin submitted a written argument that the city's land development code does indeed provide definitions that distinguish between a dwelling unit and a hotel or motel.

Shubin noted that Davis admitted the four units on the property in question were never multi-family dwellings but are utilized as hotel/motel rental units.

Shubin argued that there is no evidence any of the rooms ever consisted of a "separate independent housekeeping establishment" or that the rooms were "physically separated" from the other dwelling units. Instead Shubin claimed the property consisted of "three or more lodging units within a parcel of lot kept, maintained or advertised as a place where sleeping or housekeeping accommodations are supplied for pay to transient or permanent guests or tenants."

Shubin also questioned whether the dwelling units ever met the minimum floor area requirements for a multifamily dwelling or if the property contained two parking spaces per dwelling unit as required by the land development code.

Shubin submitted that historical evidence in the city's records show the existing structure was used exclusively as a single-family home from the time it was constructed until Davis took ownership. And Shubin noted that Persson had previously opined that the substandard width of the lot would require a variance for a new structure.

Persson's recommendation
Persson presented his recommendation to the city commission at the start of the Nov. 5 continuation of the Oct. 7 public hearing.

After reviewing substantive arguments submitted by Davis' legal counsel and Shubin, in addition to documentation from city files, Persson offered his recommendation.

Persson said it appeared that the structure at 5622 Gulf Drive was converted to four short-term rental units as an annex to the Harrington House in 1993. Persson noted that it appears this conversion was done lawfully.

The question then becomes whether a short-term hotel/motel rental unit is equivalent to a multi-family unit as permitted in the A-1 zoning district.

Hotels and motels are permitted within the district with a site plan review by the commission, he noted.

Persson then considered the definition of a multi-family dwelling as "a building containing three or more dwelling units and not to include hotel or motel."

Although it is Persson's belief that within the code hotel/motel, multi-family and other residential units are considered as equal to density, and although both hotel/motel and multifamily dwelling units are permitted under the A-1 district, the definitions of these units are not synonymous.

Persson also determined that the minimum size requirements under the code are different. The A-1 district standards require a minimum of 600 square feet plus 150 square feet per bedroom in a multi-family unit.

A hotel/motel unit must have a minimum of 200 square feet for one-room units plus 150 square feet for each additional room.

Persson's opinion is that motel/hotel units are different and the change in use requires a variance or other administrative relief.

Persson believes the city has two ways to address the issue. The city can require the applicant to obtain a variance for the non-conforming lot or make a policy determination within its code as to how it will treat non-conforming lots in the A-1 zoning district.

Legal counsel for Davis acquiesced to Persson's recommendation and agreed to continue the hearing until January in order to first seek administrative relief or a variance.

The commission unanimously agreed to accept the recommendation and the continuance.

Shubin did not object to the outcome, although he did request the hearing be renoticed to all affected property owners, to which the mayor disagreed with the cost.

Persson recommended the notice, noting the small cost in comparison to a relatively high cost of litigation, but the mayor insisted it was too expensive for the city to pay to re-notice the continued hearing.

Shubin then offered to pay half the cost of the notice for the January continued hearing for Davis' site plan reviews, and the commission agreed to accept the offer and re-notice the meeting.

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