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Date of Issue: March 30, 2005

Holmes Beach looks at 'pay now, payback later' for Key Royale Bridge

Faced with continued funding delays for a new Key Royale Bridge by the Florida Department of Transportation, Holmes Beach Mayor Carol Whitmore and the city commission are looking at a state program that would allow the city to pay for a new bridge now, then get reimbursed in a future DOT budget.

The latest DOT estimate had put funding for a new bridge into the 2007-08 budget and that was "unacceptable" to Whitmore. The DOT had previously scheduled a new bridge for 2004-05.

"I wanted a solution now," she told commissioners at their May 25 meeting, and a possible remedy is a DOT program that allows the city to build the bridge with its own funds now, then get reimbursed from the DOT.

"This is a program that the state has never not paid out. It's guaranteed," claimed Whitmore. "Without this, we are in the 2007-08 budget."

The city could get a bond issued for the estimated $1.25 million construction cost through the Florida League of Cities to finance the project now, she told commissioners.

Go for it, said Commissioner Roger Lutz.

"I've been advocating this type financing for several years," he said. With interest rates this low, the FLC bond issue seems like a good deal. "I'd say do it as soon as you can."

Commissioners agreed and Whitmore said she would start the "wheels rolling" and report back at the June 8 commission workshop.

In other business, Whitmore said the bids for the seawall repairs along Marina Drive across from the Tidemark property would be opened on June 15.

She also suggested that instead of a board of adjustment, commissioners consider using a "special master" to decide variances.

There's too much conflict with a local board of adjustment, she said, while a special master is a trained, independent attorney who hears cases and makes decisions based upon city codes.

Commissioners agreed to discuss the issue further at their June 8 workshop.

The commission also unanimously approved an ordinance for the city to use the Florida Department of Environmental Protection's erosion control line to determine the required building setback along the coast, rather than the mean high water line. The new ordinance will require a 50-foot setback from the ECL. The current ordinance requires a 100-foot setback from the MHWL.

Because of beach renourishment, the mean high water line has moved farther away from the coast, building official Bill Saunders noted. That new MHWL could allow developers an advantage to build closer to the water than the city wants, he said. The ECL is a fixed line, while the MHWL is constantly changing, said Saunders.

Savings clause ordinance
Commissioners approved the first reading of the "savings clause" ordinance by a 2-1 vote, with Lutz abstaining, citing a conflict of interest.

Lutz said his firm recently hired an attorney who was in the process of completing some work for Holmes Beach resident Frank Davis, who has property that might be affected by the ordinance. Lutz added that his firm has not and will not accept any payment from Davis for that work, and the attorney in question, former Anna Maria City Commissioner Chuck Webb, has resigned from the case. The appropriate conflict of interest papers were filed by Lutz.

The ordinance essentially allows owners of lots that now lack the required frontage to build in their particular zone what they were allowed to build in 1989 before the current comprehensive plan was enacted. No savings clause was put into that plan or accompanying code, and commissioners believe this was simply an error.

The city has issued building permits for those non-conforming lots since 1989.

Planner Bill Brisson had said in a prior meeting that his research found this savings clause ordinance would affect only 12 lots where 22 additional units could be built.

Lot owners still have to meet setback and density requirements, but Brisson conceded that on a few lots under the ordinance, a duplex, triplex or fourplex could be built where currently only a single-family home can be constructed. The ordinance, however, does eliminate any possibility of a variance.

Resident Joan Perry objected to the ordinance. "It looks like my fellow citizens are asleep at the switch. There's no need for a savings clause," she claimed. The ordinance is increasing density in a high-impact hurricane evacuation zone and that's against the comprehensive plan, Perry said.

Commissioner Pat Morton voted against the measure because he believes it would increase density. Commissioner Don Maloney was absent from the meeting.

The second reading of the ordinance is scheduled for the June 8 meeting.

Other issues on the June 8 workshop agenda will be the Sunrise subdivision boat slips, a draft ordinance regulating and defining motels, and a proposed new contract with Waste Management Inc., the city's contracted trash-hauling service, that would call for automated truck pickup using new containers from WMI. The company would charge a higher price for the service.

Objection
Attorney John Shubin sent the city a letter May 24 objecting to the proposed "savings clause" ordinance.

Shubin, who represents property owners Barbara Colony and Ruth McLean at 5620 Gulf Drive, said that any attempt by the city "to apply this ordinance to the pending legal disputes" between his clients and Frank Davis of 5622 Gulf Drive would "constitute an unconstitutional attempt to deprive the judiciary of its jurisdiction" to hear the case.

In addition, claimed Shubin, Davis' decision to get a variance to develop 5622 Gulf Drive "waived any rights he may have had to take advantage of the subject ordinance, if it is enacted."

The proposed "savings clause," said Shubin, is not being enacted in connection with any amendment or modification of the city's land development code to support the city's claim that it is "grandfathering" certain nonconforming properties by the proposed amendment.

In short, alleged Shubin, the city is permitting a "de facto" variance without affording due process to neighboring property owners.

Peter Mackey, the attorney representing Davis in the litigation brought by Shubin, said he had no comment on the Shubin letter.

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