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Date of Issue: March 17, 2005

Kabris rezoning request denied

The Holmes Beach City Commission agreed at its Feb. 10 meeting that Patrick and Angela Kabris of 101 75th St. have a unique piece of property. A portion is zoned R-2 (medium-density residential), while a second parcel is zoned R-1 for private recreational purposes.

What the commission didn't agree to was a request by Kabris to amend the city's comprehensive plan and future land-use map that would have changed the zoning on the R-1 parcel to R-2.

Kabris needed the rezone to build two duplexes on the entire property and the request has gone back and forth between the planning commission and city commission the past five months.

The planning commission had recommended approval based upon a promise by Kabris to include deed restrictions limiting the entire property to just the two requested units even if adjacent property was later purchased, if the amendment and zoning were approved by the commission.

That offer, however, fell on deaf ears.

City Attorney Patricia Petruff told commissioners they should decide the issue without considering the deed restrictions, just whether or not the existing land use is consistent with the comprehensive plan.

Planning Commission Chairperson Sue Normand said the deed restriction offer was the "primary reason" the commission voted to recommend approval, after first recommending denial of the request last October.

The deed restrictions would "reduce intensity" on the property, Normand said.

Even Caleb Grimes, the attorney representing Kabris, agreed the deed restrictions are not a contingency for the commission to base a decision upon, but the Kabris' would "stand by their statement to put in the deed restrictions."

Commissioner Roger Lutz observed that under the present R-1 zoning, the property could be bought by a condominium or homeowners association and a clubhouse or cabana facility built there. Kabris currently has a pool and cabana building on the property.

The real issue, Lutz said, is the threat of what can be built on R-1 property. "We ought to look and change the definition of R-1, but not piece by piece, so I'm not in favor."

Other commissioners agreed and voted 5-0 to deny the requested amendment and accompanying zoning change.

Thompson appeal denied
Commissioners also voted to deny an appeal of a building official's denial of a permit for property at 106 74th St., opting instead to have the applicant file a variance request.

The appeal, however, did highlight some unusual circumstances.

Attorney Steve Thompson, representing the property owners, filed the appeal and presented a June 25, 2002, letter from City Attorney Jim Dye that essentially said the property was a buildable lot.

Thompson said Building Official Joe Duennes had requested at that time that his clients get an opinion from Dye before a building permit would be issued.

Based upon the representations in the Dye letter, said Thompson, his clients purchased the property and submitted a building permit application for a duplex.

It was quite a surprise when the permit was denied by Building Official Bill Saunders.

"The denial has damaged my client," claimed Thompson. "We had talked to city professionals first to determine what could be done."

He cited the legal principle of equitable estoppel in that the city attorney had represented the lot was buildable, his clients relied upon those representations and the "change in position" by Saunders was detrimental to his client.

Saunders based his decision on the fact that the lot frontage was insufficient, which Dye had addressed in his letter.

Lutz, however, wondered if the issue was not that Thompson's clients were "unable to build," just not able to build a duplex.

What about asking for a variance? inquired Commissioner Rich Bohnenberger.

Thompson, however, thought if a variance was denied, it would put his client in a "tough legal position" for an equitable estoppel lawsuit.

Besides, he added, "we went to everyone," including the city attorney.

"Well, I do feel bad for you," said Commissioner Don Maloney, but the city attorney's job is to address the city commission, not a member of the public.

Acting City Attorney Mark Singer said the issue is one of code interpretation and the city code clearly states that is a responsibility of the building official. The commission, he said, has to decide if Dye was acting as an authorized agent when he wrote the letter.

Lutz believed that "what's fair is fair."

The applicants went to the building official, who said that whatever the city attorney says is OK, and the city attorney said it was OK, he observed. A mistake had been made and the city should approve the appeal.

Commission Chairperson Sandy Haas-Martens agreed, but Maloney, Bohnenberger and Commissioner Pat Morton voted to have the applicant file a variance request with the board of adjustment.

Other business
The commission also voted to authorize city staff to obtain proposal requests from qualified professionals to update the city's land-development code.

Lutz said in his experience, such updates usually cost between $50,000 and $100,000 and take more than a year to complete.

Commissioners also voted to authorize the mayor to sign a contract with Hurst Awning Company for $21,092 to install awnings at city hall. Lutz voted against the measure.

The commission also approved a measure to have Banks Engineering Company submit guidelines to develop a master drainage plan for the city. Funds totaling $176,680 for the guidelines and master plan are in the 2003-04 city budget.

Commissioners also set a "shade" meeting for 6:30 p.m. Tuesday, Feb. 24 to discuss a settlement offer in a lawsuit filed by the Torres family against the city.

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