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Wednesday, Apr, 16, 2014
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Davis site plan on hold pending legal review

The public hearing for the site plan review of the development of a four-unit condominium at 5622 Gulf Drive has been continued from Oct. 7 until Nov. 5 pending a review of some facts in the case.

Legal counsel for property owner Frank Davis has been granted time to submit a synopsis of facts and law proving its argument to the city's special counsel that the use of the property at 5622 is a grandfathered use, and therefore would not be subject to a variance request.

Prior to the Oct. 7 hearing, David Persson of Hankin, Persson, Davis, McClenathen & Darnell, who has been selected as the city's special counsel to address the Davis site-plan applications for 5622 and 5626 Gulf Drive, had been asked to render a legal opinion concerning whether the city's zoning code requires a variance for nonconforming lots prior to construction of certain improvements in the A-1 zoning district.

Persson initially determined that although the plans meet the permitted use of an A-1 district, the lot did not meet the frontage requirements of the city code. In the absence of a savings clause, a provision that allows a nonconforming lot to remain buildable for its intended purpose so long as it meets certain minimum standards, the applicant would need to be granted a variance or other relief from the city.

Mark Barnebey and Peter Mackey, legal co-counsel for Davis, disagreed with Persson's recommendation, saying it was too conservative.

Mackey disagreed that the site-plan review needed to be delayed. He argued that the use of the property at Davis' 5622 property is not changing. He then said the lot currently has four units and it will still have four units. He said Davis is entitled to have three or more units on the property now without requesting a lot width variance.

Mackey claimed the city has more than 200 legal nonconforming lots and submitted information dating back to 1989, when city codes were last revised, that alleged none of those property owners have been required to get a lot-width variance prior to obtaining permits to build or remodel their homes.

Mackey further stated that the commission is missing the point. "We're not changing the use of the lot. We're not asking for anything but to continue with the existing use. No law says in the absence of a savings clause you have to get a variance. To change now in the middle of Davis' application would be hitting him with a moving target. He already has a letter of no objection from the city."

Mackey said that although it may be prudent for the city to utilize a saving clause, there is no reason the city could not proceed with Davis' site plan review.

Persson agreed to review arguments from both legal counsel for Davis and legal counsel for neighbors opposing the proposed site plan as to the existing use of the property and will recommend how the city should proceed with the site plan review.

John Shubin, legal counsel hired by Ruthanne McLean and Barbara Coloney to oppose Davis' proposed development, said he has been working to obtain evidence from the city regarding the permitted use of the property for the past three months.

Shubin alleged that there are four bed and breakfast units on the property and not four separate dwelling units, therefore the application is plainly not consistent with the law.

"The truth is much more complicated than what has been presented tonight," said Shubin.

Shubin asked that a clarification be made on what is meant by "grandfathered use" what is allowed by code or how it has been used in the past.

The one question Shubin said he wanted answered is which four families have been living separately on the property for the past 14 years.

Persson said he would make his recommendation to the commission at its Oct. 28 regular meeting. If the recommendation is that the site-plan review can proceed, the public hearing was continued to Nov. 8.

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