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Date of Issue: September 21, 2006

Not new in Anna Maria: attorney threatens legal action

Lawyers who show up at Anna Maria City Commission meetings - and indeed at just about any city committee or board meeting - frequently threaten the city with legal action if they or their clients don't get what they want.

Attorney David Montgomery appeared to be no exception at the Sept. 14 city commission meeting, although some commissioners and City Attorney Jim Dye might have thought he was preaching to the choir.

Montgomery, who said he represents Gabriel Buky, owner of the former Negele property at 107 Elm St., indicated he is also a part-owner of the property.

He berated the city commission for "negative" comments about the proposed construction made by marine engineer Michael Jenkins of Applied Technology and Management of West Palm Beach in a Sept. 5 letter on behalf of the city to the Florida Department of Environmental Protection.

Montgomery indicated the commission didn't need comments and opinions from Jenkins, it needs an opinion from City Attorney Jim Dye.

The city is under a court order that Dye signed in July 2005 that settled a lawsuit brought by former owner Susan Negele against the city. The order gives the owners of the property the right to build a structure within the approved footprint, although the DEP must still issue a permit.

The city has agreed to this footprint, said Montgomery, but Jenkins' comments were leading the city "down a dangerous path."

Jenkins comments about the construction affecting the dune system and nearby vegetation were "most troubling," claimed Montgomery, and they do not constitute an "opinion of law.

"This is about the law, not the dunes," he said.

Jenkins also claimed in his comments to the DEP that an Aug. 14, 2006, letter from the city to the property owners did not constitute local approval of the project.

That's a legal conclusion which is in direct odds with the city's own letter that day, Montgomery said.

His clients bought the property from Negele in good faith after the settlement and Jenkins' letter "puts the city in violation of the court order."

Montgomery indicated that if the city doesn't approve the plans, his client could go back to the court.

It's "bad faith" to take away what was settled in "good faith," he added.

The commission should not let some "over-zealous" marine engineer take the city down the wrong path," Montgomery concluded.

But Dye was a bit taken back by Montgomery's outburst and wondered aloud what was the big deal. The city has agreed to the construction as long as it meets DEP requirements.

"I'm not sure what the fuss is about," Dye said. There is nothing in Jenkins' comments that prohibits construction of the building. Jenkins sent his comments to "other regulatory" bodies that also have jurisdiction in this case, Dye noted.

"The city has no say over the DEP. They are issuing a permit. Either they give it or they don't. The city building permit process is not affected and nothing in [Jenkins] letter prevents that," he said.

Mayor SueLynn chimed in that the DEP had merely asked the city for comment about Buky's application. The city had asked Jenkins, as a qualified expert, to respond on behalf of the city.

 

Daylight plane ordinance

Montgomery also got his digs in against the city over another issue when the commission discussed the proposed daylight plane ordinance that would affect new construction.

"I caution the city that the more you reduce, the more likely you are to have an inverse condemnation" lawsuit, Montgomery claimed. If this ordinance violates his clients rights or the court order, there could be more legal action.

"Don't frustrate the vested property rights of people," he said.

A host of city residents followed with similar comments, particularly about the potential effect that a daylight plane ordinance would have on the future value of their property.

Those arguments apparently did some good.

While city planner Alan Garrett, who has spent numerous hours preparing the ordinance, said there has been no lawsuit against a similar ordinance in Holmes Beach, Bradenton Beach, Longboat Key or the City of Sarasota, commissioners weren't overly impressed.

Commission Chairman John Quam wanted to reduce the angle that second-floor construction must use to the side-yard setback from 45 degrees to 20 degrees.

Commissioner Linda Cramer said she didn't think the ordinance was worthwhile, but suggested the city establish an architectural review board.

"I'm not in favor of a daylight-plane ordinance," she said emphatically.

That left Commissioner Dale Woodland as the trump card as Commissioners Duke Miller and Christine Tollette were absent from the meeting.

"We need to get the commission on the same page" before going forward, Woodland said.

After 45 minutes of discussion, the three commissioners agreed to shelve the ordinance until their October worksession when a full compliment of commissioners are expected to attend.

       

Moratorium

In other business, the commission passed the first reading of an ordinance extending the current moratorium on subdividing property seaward of the coastal construction control line until March 1, 2007. The final reading will be at the commission's Oct. 26 meeting. There were no objections from the public on the extension.

Commissioners also passed the first reading of an ordinance regarding lot splits and subdivisions, but agreed it needs further review and input from Dye, who said he would check and see what city codes the ordinance would affect. The final reading was also scheduled for Oct. 26.

 

Flood plain management

Commissioners and city residents got some good news on their flood insurance.

Building Official Kevin Donohue presented the commission with a proposed flood management plan that, if adopted by the city and accepted by the Federal Emergency Management Agency, would make property owners eligible for a 20 percent discount on flood insurance from FEMA.

SueLynn said the plan would give the city a rating of 6 under FEMA's rating schedule, making Anna Maria one of the few Florida cities to achieve such a designation.

Commissioners agreed to proceed with the plan and accompanying ordinances and thanked Donovan for his effort.

 

Sign ordinance

Commissioners scheduled a special meeting for 6:30 p.m. Oct. 3 to have the second reading and public hearing on the proposed sign ordinance. The special meeting will follow the commission's comprehensive plan meeting with planner Tony Arrant at 4 p.m. the same day.

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