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Date of Issue: December 22, 2005

Legal threats force city to 'throttle back' proposed ordinance

Anna Maria City Commissioners took a line from Shakespeare at their Dec. 15 meeting, deciding that discretion was the better part of valor, particularly when faced with yet another threat of legal action over the city's proposed coastal overlay district ordinance.

Attorney Kevin Hennessey, representing Galati Marine, Lockwood Holdings LLC and Weld Inc., wasted little time in trying the case in mock court and putting the city on notice his clients would bring legal action if the ordinance passed. Those sentiments were also expressed by attorney Ricinda Perry last month when the commission first discussed the issue at a worksession.

Not to be outdone by his colleague, Hennessey railed that in addition to a Bert Harris Act violation - also mentioned by Perry - and inverse condemnation of his clients' property rights, the city would also receive an action for certioria in that the ordinance was "arbitrary" and "overly burdened" his clients.

In addition, the commission had no statistical data to support the ordinance, had not done an evaluation, had no recommendations from the Florida Department of Environmental Protection, and could not identify any other jurisdiction that had taken similar action.

The ordinance was supposed to be in response to safety and growth management issues, he said, but the commission had no goal and no expertise.

He also blasted commissioners for not knowing how much acreage in the city would be affected and that they had not sought public opinion from those most affected, such as his clients.

"You are steamrolling this ordinance during the holiday season," Hennessey claimed, suggesting the city go to Tallahassee and get some advice before passing an ordinance that would surely result in a major lawsuit.

Property owner John Cagnina chimed in that he was warning the commission that it was taking the city down the road to financial ruin if a major lawsuit as a result of this ordinance cost the city millions of dollars.

Essentially, the COD would regulate new construction within the district, which follows the DEP's coastal construction control line around the city's beach area.

Under the ordinance, construction would be allowed on platted, legal lots of record within the COD as it is now, but anyone acquiring several parcels and attempting a replat to build a subdivision of several homes could only build one single-family home per acre.

City Attorney Jim Dye said the ordinance does not take away anything that a property owner within the COD does not legally have now. He admitted, however, that the ordinance is not "bullet proof" from lawsuits.

Commissioner Christine Tollette reiterated a suggestion she had made in November, that the commission get a second opinion on the legality of the ordinance.

Commissioners discussed how to get a second opinion from a certified land use attorney in time for the Jan. 12 meeting, then pass the ordinance at the second reading on Jan. 26.

That scenario, however, was a little too fast for Commissioner Duke Miller, particularly in light of all the legal threats.

"Let's just pull back the throttle" and get a second opinion, then discuss that opinion and the ordinance at another worksession, he said. There's no need to rush. The current moratorium on construction with the COD has another 11 months before expiration.

While Miller may have decided that caution shouldn't be thrown to the wind, he did take issue with Hennessey about public input, noting the proposed ordinance has been highly publicized the past few months and his clients have always been welcome to provide input at commission meetings.

Commission Chairperson John Quam moved discussion to the Jan. 12 worksession when Tollette will provide an estimate of costs for a second legal opinion.

Lake LaVista

In other business, commissioners agreed to transfer $105,000 in the budget for extension of the Lake LaVista jetty to dredging the Lake LaVista channel after looking at aerial photographs that showed the channel was filling up with silt, particularly after Hurricane Wilma moved through the area.

Mayor SueLynn said Energy Resources Inc., the company that previously dredged the channel, was already in Holmes Beach dredging canals. The company could not guarantee it would be immediately available to dredge the Lake LaVista channel after it completed its Holmes Beach operations if it left the Island for another job.

Line of credit

Commissioners unanimously approved establishing a line of credit of up to $1.5 million for capital improvement projects in the city. The plan is through the Florida Association of Counties, and attorney Steve Miller representing the law firm that administers the program said current interest rates are around 3 percent.

The commission did add the provision that it must approve any draws before the mayor can sign for the money. The funds will be available through Wachovia Bank.

Commissioners were interested in a five-year payback plan, but Miller said the program allowed for extensions. Repayment of any of the money drawn must come from revenues that are not from ad valorem taxes.

Quam estimated that the annual payment on $1 million would be about $225,000 over a five-year period.

Variances and site plan

The commission approved a variance request for property at 104 Maple Ave. to have the height of any new construction measured from the improved portion of the road to meet the 37-foot height requirement.

Commissioners also approved a preliminary site plan and lot line realignment for owners Mike and Nancy Yetter and Joe and Shirley McGuire at 117-119 Park Ave. with the stipulation that the lots be replatted.

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