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Date of Issue: February 18, 2009

BOA opens door to case

The Bradenton Beach Board of Adjustment delved into memos and e-mails, call records and meeting minutes in an effort to determine whether it could hold a hearing on a building complaint against the Sunset Beach Motel and The Beach Club at 2201 Gulf Drive.

The appeal for a hearing had to be deemed timely, according to city regulations.

Eventually the BOA voted 2-1 on Feb. 11 to recommend proceeding with a hearing sought by Cynthia Dagher and Mark Mixon, who have been seeking such a hearing for more than a year.

The board, however, didn’t proceed with the hearing that night, instead continuing the matter until March 25 to seek clarification on its direction from the city commission. The board also observed the lateness of the hour — approaching 11 p.m.

Dagher and Mixon, who own property adjacent to 2201 Gulf Drive, first filed a third-party administrative appeal in November 2007 that questioned development at the neighboring Beach Motel and Beach Club. But their complaints to the city about the project began before then.

Before the BOA could hold a hearing, on the substance of their appeal, however, the board had to determine that Mixon and Dagher filed their paperwork timely and with enough substance.

The city’s land-development code states, “Appeals shall be filed in writing to the building official within 30 days after rendition of the order or decision to be appealed and accompanied by the proper fee to be set by resolution of the city commission.

“The written request for appeal shall contain: A. A statement of the decision to be reviewed, and the date of the decision. B. A statement of the interest of the person seeking review. C. The specific error alleged as the grounds of the appeal.”

Determining the timeliness of the appeal, especially in light of a court ruling in a similar but unrelated city case, has proven time-consuming.

The BOA first looked at the Mixon-Dagher case in August 2008, and decided the filing of the appeal was untimely. But the commission asked the board to reconsider its decision in light of a circuit court ruling on another appeal it had deemed untimely. Last week’s session was the continuation of a meeting that began last November.

The review Feb. 11 involved an examination of more than a dozen documents.

Dagher and Mixon filed an appeal stamped in the city planning and development department on Nov. 16, 2007. “We feel that decision made by the past and previous building officials are in question,” the appeal states, and refers to concerns with whether the motel-club exceeded setback requirements and whether its air conditioning units exceeded allowed noise levels and were properly placed during renovations.

City code enforcement officer Gail Garneau responded to the appeal on Nov. 20, 2007, notifying Dagher and Mixon that their paperwork was incomplete because it did not fully state the decision being challenged and lacked the $100 fee.

Exhibit 3 was a Nov. 26, 2007, e-mail from Garneau informing Dagher and Mixon of a BOA hearing Dec. 12, 2007, and the continued need for a completed appeal.

Garneau repeated the requirements in a certified letter and e-mail dated Nov. 29, 2007.

A Dec. 6, 2007, memo to the BOA from building official Steve Gilbert stated that Mixon and Dagher “have not met the public notice requirements” for the scheduled hearing and that the appeal was incomplete.

A Dec. 10, 2007, from Garneau restated the problems with the appeal and states, “If you do not submit this additional information within 20 days, the city will assume you no longer wish to pursue the administrative appeal.”

On Dec. 11, 2007, Dagher and Mixon sent Garneau an e-mail indicating the city did not give them enough notice to correct problems with the appeal to meet the BOA deadlines. They also inquired about resubmitting the appeal.

The next day Garneau e-mailed, notifying Mixon and Dagher of an additional 20 days to re-file their appeal and an opportunity to set another BOA hearing.

Later on Dec. 12, Mixon e-mailed Garneau to say that he would re-file the appeal “sometime after Christmas.”

Exhibit, No. 11 is a Jan. 2, 2008, e-mail from Garneau to attorney Ralf Brookes, informing him that Mixon “just came in to get an appeals application” and “when he finishes it, he will bring it in.” Garneau notes that her Dec. 10 notice to Mixon and Dagher gave them 20 days to refile, with a Dec. 30, 2007, deadline.

Exhibit 12 is an e-mail from Mixon to info@cityofbradentonbeach.com dated Jan. 7 that states, “I have leve [sic] a message for Gail Garneau to respond to an e-mail sent to her on Friday the 5th. Please make sure she receives this e-mail.”

Notations on a printed copy of the e-mail indicate that Jan. 5, 2007, was not a Friday, but rather a Saturday, when city hall is closed.

Exhibit 13 is a Jan. 7, 2008, e-mail from Garneau to Mixon stating that the 20-day extension to file an appeal had expired.

Exhibit 14 is Mixon’s reply e-mail: “Since there never was an appeal filed, as it was sent back to me because it wasn’t filled out or a fee attached, how could their [sic] be a deadline. Please let me know ASAP.”

The next exhibit, stamped in the city planning and development department on June 26, is a new appeal. Along with a letter signed by Mixon and Dagher, is a letter requesting a refund of the application fee “as we are not pursuing development approval, just interpretation from the board on another’s ruling.”

While the correspondence indicated delays and flaws with the initial appeal filed by Dagher and Mixon, Gilbert told the board Feb. 11 that under the court ruling in another case, the city had enough information from the Nov. 16, 2007, appeal to allow the Dagher and Mixon complaint to go to the BOA. The court ruling said an appeal that is deficient in form and substance is not the same as an untimely appeal.

Before that court ruling, the building department could only adhere to the LDC and its requirements regarding timely and complete applications, Gilbert emphasized.

BOA member Dan DeBaun said he felt that the early appeal from Dagher and Mixon was lacking, but that it contained sufficient information to understand the complaint.

BOA chair John Burns resisted, stating, “We still don’t know what’s being appealed.… Does the city know now?… The city doesn’t know what’s being appealed.”

“If you are appealing the decision of a building official, you are obligated to say what that decision is,” Burns added. “The city was not provided adequate information for which to make a determination.”

The issue went around the dais again and again.

BOA member Karen Cunningham said she was having trouble with defining a “substantial defect” that could bar the case from going forward, and defining “sufficient information” that could allow the case to go forward.

Two hours passed before the BOA concluded its questions for city staff, took a brief break and heard from Dagher and Mixon.

“I really don’t understand how we’ve gotten into a process so lengthy to hear concerns of a situation that’s been going on two years,” Mixon said.

Mixon said city officials understand the decision being challenged, and have understood his concerns since the fall of 2007.

“We are appealing the building official’s decision on the issuance of the CO,” Mixon said, referring to a certificate of occupancy. He also said he is objecting to the building official’s determination that the project was a minor development.

Mixon began to detail the complaints about the Sunset Beach Motel, but Burns interrupted and stressed that before the BOA could examine the nature of the appeal, it must first determine whether it can hear the case.

“You keep bringing up the time-frame issue,” Mixon responded. “I thought we moved passed from that.… We have been misled.… We keep getting shut down.… Do we have to go hire an attorney?”

Mixon continued, “Why can’t an average guy just speak his mind?”

Brookes then interrupted, suggesting Burns allow Mixon 30 minutes to state his case.

“Thank you, Mr. Brookes,” Burns replied.

Dagher spoke up, “I do not like this process.”

Burns said, “I want you to address the time-frame issues associated with your appeal that was filed on 11-16.”

Mixon said he detailed his complaints in a memo to the city in a timely and sufficient manner, and Dagher referred to an e-mail she sent to the city clarifying the building official’s decisions being appealed, isolating the placement of air conditioners as her primary concern.

“It’s like living next to an airstrip,” Dagher said. “They have got to come up with something a little more appropriate.”

In the fourth hour of the meeting, the BOA began discussing what it would vote on, and how.

Eventually the board voted 2-1, with Burns voting no, on a motion that Dagher and Mixon’s Nov. 16, 2007, appeal application contained enough direction, in light of the court ruling, for the BOA to hear the matter.

Such a hearing is scheduled for 7 p.m. March 25 at city hall, 107 Gulf Drive N.

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