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Date of Issue: March 17, 2005

Replay for Holmes Beach variance request

If this were the National Football League, attorney Mark Barnebey might have thrown the red flag at the Nov. 25 Holmes Beach City Commission meeting, calling for a coaches challenge of an official ruling on the field.

Barnebey was before the commission asking them to overturn the board of adjustment's denial of an after-the-fact variance request by Robert Taylor of 693 Key Royale Drive to build an additional 3.5 feet above the city's current height restriction of 36 feet above the crown of the road.

Go to the replay and check the tapes, said the commission.

Commissioners didn't agree to overturn the ruling, but by a 4-1 vote ordered "further review" and sent the Taylor variance request back to the BOA to reconsider.

The height of construction error was only discovered when Taylor hired Hugh Holmes Jr. as a replacement contractor after the new roof was in place.

Holmes, who is also chairman of the board of adjustment, spotted the error and, in effect, told Taylor the right thing to do was ask for a variance, although other homes in the area have been built above the height restriction without a variance, said Barnebey.

The BOA, however, with board chairman Holmes recusing himself, denied the request and Taylor appealed to the commission to overturn the decision.

City Attorney Jim Dye said the commission did not have to overturn the denial, but could have Taylor file another variance request if there were new facts to consider. Dye also said the commission should focus on whether or not the Taylors were treated fairly and if the facts supported the BOA decision.

The commission could uphold the BOA decision, find the BOA made an error and send the variance back for review, or decide that the Taylor's don't need a variance, Dye said.

Commissioner Don Maloney wondered why Taylor didn't just go to the circuit court for a decision, but Dye pointed out that a first appeal to the city commission was part of the city's administrative procedures.

Barnebey argued that the BOA's decision was taken in response to public outcry over two other recent height variances the BOA granted just prior to the Taylor application.

"In that climate, the Taylors fell into the mess," said Barnebey, and the BOA was reacting to public pressure. "I feel that decision was in error."

He said the Taylor's were honest in informing the city of the mistake and they should not be punished for trying to do the right thing.

Commissioner Roger Lutz agreed, but Maloney was concerned about setting precedent. "There's no such thing as a single variance" and more height variances will follow, he suggested.

Commissioner Rich Bohnenberger, however, disagreed that the Taylors were not given due process. He believed their request did not meet the criteria established by the city codes for such a variance.

A motion to send the Taylors request back to the BOA "for further review" carried 4-1 with Bohnenberger voting against the measure.

Barnebey said the Taylors were not going to consider filing a new variance request until after the BOA's review of the current request.

Other options pending the BOA review include a variance request for just two feet, or a civil suit in the circuit court, he said.

Because the commission was only considering an appeal of a BOA decision, no new facts were allowed and no public comment was taken, said Commission Chairperson Sandy Haas-Martens.

Several members of the public objected when they were not allowed to speak on the issue, but Haas-Martens noted they will be able to speak when the BOA reconsiders the variance.

The BOA has a tentative meeting scheduled for Dec. 19.

Will the ruling on the field "stand" or will it be overturned "upon further review?"

According to NFL replay rules, "indisputable evidence" is required to overturn a decision on the field.

According to city rules, the BOA can hear new evidence, but is not required to overturn its prior decision.

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