Vol. 17 No. 28 - April 26, 2017
Cortez rises again against Beruff
SUBMITTED | ARMY CORPS OF ENGINEERS
The area outlined in red is Aqua by the Bay's
proposed mitigation area off Long Bar Pointe
in Sarasota Bay.
CORTEZ – The last time Cortezians took on Carlos Beruff, they lined up a 90-year-old woman, several seniors in wheelchairs, grandchildren, babes in their mothers' arms and a disabled commercial fisherman along Cortez Road waving signs reading, "We are the little fish."
For months, they filled hearing rooms with Cortez residents packed as tight as mullet in a cooler.
They beat the developer's 2007 bid to buy the Cortez Trailer Park for $10.8 million, demolish it, displace the residents and turn it into a marina.
This time, Cortez-based FISH, the Florida Institute for Saltwater Heritage, has linked arms with Suncoast Waterkeeper and former Manatee County Commissioner Joe McClash to fight Beruff's Aqua by the Bay project, formerly Long Bar Pointe.
The 529-acre residential/commercial project will have 2,384 residential multi-family units and 510 single-family lots, including a five-story building and a 13-story building, according to a county staff report, which states that the buildings are not expected to create any adverse impacts on surrounding developments - Legends Bay to the south, Tidy Island to the north and the planned Lake Flores to the east.
The Manatee County Commission is scheduled to decide on Thursday, May 4, the fate of two miles of pristine, state-protected mangrove fringe on Sarasota Bay, known to Cortezians as the kitchen, where juvenile fish, crabs and other marine life has long been protected by nature. The county Planning Commission recommended approval of the project 3-2 on April 13.
Beruff and partner Larry Lieberman lost their bid in 2013 to build a marina and channel at Long Bar Pointe when a judge ruled against his constitutional challenge to Manatee County's comprehensive plan.
His new plan is to dredge out a 4.6-acre lagoon, or Estuary Enhancement Area, parallel to the shoreline and bordered by a proposed seawall on one side and the existing mangrove fringe on the other, with a break leading from the bay toward the project where the prohibited channel was located.
The construction of the lagoon will more than mitigate negative impacts to the 13 acres of wetlands in the project, and is "designed to create shallow vegetated wetland areas with deeper water refuges which are likely to create additional habitat for fish and wildlife," the report states.
Many Cortezians, including Capt. Kathe Fannon, a former commercial fisherman who leads boat tours of Sarasota Bay, say it will do the opposite.
"People don't come here to see high rises," she said. "They come here to see that eagle's nest (on the Long Bar Pointe property), and the manatees and dolphins in the bay."
The staff report states that the enhancement area ultimately will reduce sediment transfer and damaging scour, or tidal action on mangroves.
"They claim this will keep sediments from mangroves that would degrade them, but our experts say the opposite is true; mangroves need sediments to stabilize themselves, otherwise they get scoured by the tides," said Stuart Smith, of the Manatee-Sarasota Group of the Sierra Club and Suncoast Waterkeeper.
Seawalls have not been in favor since the 1970s in Florida partly because they cause erosion rather than prevent it, and "to bring them back now is ludicrous," he said. "It's a death sentence for the mangroves.
"This is the last intact coastal environment on Sarasota Bay, the best fishery on the bay, the only place you can go on the bay and not see a building," he said. "This design is not appropriate for this place."
"FISH wants this area protected; we here in Cortez need it protected as it plays such an important role in the very livelihood of so many who reside here in the village and make their living from the bay and coastal waters," FISH Vice President and former Manatee County Commissioner Jane von Hahmann wrote FISH members in a call to action. "If you can, please attend the Board of County Commission meeting on May 4th; we need hundreds if not 1,000 citizens to once again show up and make it known our shorelines are of the utmost importance to us. They make Manatee County the incredible place it is."
The Freckled Fin now uses a Yacker Tracker
like this to monitor their bands' volume.
BRADENTON BEACH – The City Commission agrees that a commission workshop is needed to review and discuss the noise ordinance adopted in 2014.
City Attorney Ricinda Perry proposed the workshop before noise-related public comments were made at the commission's Thursday, April 20, meeting. She said public input was welcomed, but the commission were not prepared to take action that day.
"As we work through things, there may be little areas that could be tweaked," she said of the ordinance. The commission members unanimously agreed to review the ordinance at a future date.
After noting there are more open-air music venues operating now, Mayor Bill Shearon said he hoped the workshop provides "a clear understanding of the rules, so everybody can play in the sandbox nice."
The noise ordinance took center stage when Freckled Fin owner Scott Lubore was arrested for a noise violation on April 5, after he received multiple warnings and citations. The Bradenton Beach Police Department then implemented a zero-tolerance policy that subjects venue owners and managers to possible arrest for a single noise violation.
"Some of us have been dealt with a little differently than others," Lubore told the commission.
He said people who come to island destinations expect live music.
"All we're trying to do is provide a service they want."
After noting that most bands play from 6 to 10 p.m., Lubore referenced the noise ordinance that allows 85 decibels in the commercial district until 7 p.m.
"At 7 p.m. it drops to 75 decibels. I'd love to see how somebody can play an instrument and not be above 75 decibels with the crowd noise, wind and everything else," he said.
Freckled Fin general manager Steve Shannon said, "I think the decibel level needs to be looked at."
Decibel readings are supposed to be taken from where the aggrieved party is impacted by the music, but a complaint made on a cell phone while standing at the venue's property line could result in a reading taken there. The same applies when an officer acts without a complaint.
Island Time owner Bill Herlihy said, "I think that measurement should be from the complainant's property line or from 100 feet of the source of the music. Remember, we are in a commercial district."
Local musician Koko Ray Hansen said, "It is very difficult for a five-piece band to stay under 75 db. and put on an effective show. We do this as a living. It's a hardship to put a leash on an entertainer."
Like Herlihy, Hansen suggested decibel readings be taken at the actual point of complaint.
Singer Melanie Massell wants to keep performing at the Freckled Fin.
"With the low 75 decibels, it's a challenge. We just played there. We had our own meter; it was not easy. It affects our show. We can't give that energy. We have no one-on-one contact and that affects our tip jar. I don't have to scream at 100 decibels, but 75 is totally unreasonable," she said.
Friday night, Stacy Jo and Brad Conner performed at the Freckled Fin as Blue Mason Barter, a duo with no bass or drums. While on break, Stacy Jo pointed to the Yacker Tracker sound meter that looks like a traffic light and now faces the band. The green light signifies an acceptable volume. The yellow light serves as a warning and the red light means it's too loud. Conner said keeping a constant eye on the device was stressful and impacted her performance.
"It's a good guide for the bands, but it can't be used an enforcement tool because it's not calibrated like our decibel meters are," Special said of the device.
Speciale was not aware of any music-related noise complaints last weekend. This included Island Time, which last week received a commission-approved extension that allowed their live music to continue until midnight after the Bridge Street Merchants' Blue, Brews and Barbeque ended at 9.
Fitness trail fiasco continues
joe hendricks | SUN
With Commissioner Ralph Cole at this side, Vice Mayor
John Chappie, left, expresses his displeasure with the
delays incurred when trying to submit a funding request
to county officials.
BRADENTON BEACH – City Commissioners will take a third crack at completing the preliminary paperwork needed to submit a fitness trail funding request to the Manatee County Commission.
On April 17, the commission reluctantly directed City Attorney Ricinda Perry to draft a revised city resolution and a revised letter of joint support, both of which are to include a not-to-exceed project cost of $15,000.
It is the commission's hope that Anna Maria Mayor Dan Murphy and Holmes Beach Mayor Bob Johnson will join Mayor Bill Shearon in signing a joint letter deemed acceptable by all parties involved. Murphy and Johnson would not sign the previous letter they received because it did not contain a not-to-exceed amount. The county requires a letter of support from the three mayors for the proposed use of country-controlled excess beach concessions funds.
During last week's commission discussion, Perry noted the cost estimate to install exercise equipment along the Coquina Beach fitness trail at the county's expense was removed from the previous resolution and letter of support at Shearon's request.
Vice Mayor John Chappie noted the first attempt to forward this project to county commissioners involved Shearon signing and presenting to the other mayor's a letter that was never approved by the Bradenton Beach Commission. Chappie said he was disappointed the mayors made it so challenging to get a relatively simple project funded.
Grassy Point reopens to the public
KRISTIN SWAIN | SUN
Guests at the April 19 grand re-opening of Grassy Point Preserve in
Holmes Beach pause to look for starfish in the tidal pools below and
to the side of the new boardwalk pathway leading to Anna Maria Sound.
HOLMES BEACH — The gates of Grassy Point Preserve are officially open, at least for the hours between dawn and dusk.
City leaders and more than 30 guests gathered April 19 for a ribbon cutting and first look at the newly expanded park.
Holmes Beach Mayor Bob Johnson called the event a thank you to everyone who contributed to the purchase, maintenance, planting, expansion and support of the park.
"You are very special people to have done so much for so long," he said. "I just want to say thank you to all of you."
Holmes Beach resident Nancy Deal stepped in for longtime Grassy Point supporter Billie Martini who could not attend the ribbon cutting ceremony. In a letter which Deal read aloud, Martini thanked the people and organizations who helped create the park.
"Thank you for coming to Grassy Point today," she said in the letter. "It is one of a very few locations remaining that is Anna Maria Island as nature intended it — no concrete in sight."
The preserve reopened to the public immediately following the ribbon cutting ceremony and first tour of the expanded path and boardwalk additions. The park was closed for several months to extend the existing pathway through trees and across tidal ponds to view Anna Maria Sound.
"This is a very special little place," Holmes Beach Commissioner Carol Soustek said.
Grassy Point is located at the northern end of Avenue C in Holmes Beach.
Rental regulations get a push
joe hendricks | SUN
Commissioner Ralph Cole, right, expresses his desire to get
rental regulations in place.
BRADENTON BEACH – The Quality of Life Ordinance adopted in 2015, but never implemented, appears poised for a comeback.
A discussion initiated by Commissioner Ralph Cole at the April 17 meeting resulted in city's department heads again being directed to provide cost estimates for the implementation, administration and enforcement of vacation rental regulations and a registration program. The commission wants this information for its June 1 meeting.
The recommended fees will then be included in a fee resolution drafted by City Attorney Ricinda Perry.
By resolution, the commission must also repeal a resolution adopted in March that formally suspended the enforcement of the Quality of Life Ordinance that was never enforced.
The ordinance was adopted during Mayor Jack Clarke's final meeting in November 2015. The ordinance never took effect because the next two commissions led by Mayor Bill Shearon failed to adopt the fee schedule that would revive the dormant ordinance or pave the way for an amended ordinance that incorporates planning board recommendations supported by the commission.
The commission's renewed sense of urgency took shape last week after Cole said it seemed less likely the state legislature would hinder local governments' ability to regulate rentals. Cole wants rental regulations in place before the soon to be extended building moratorium expires in August.
Shearon suggested more commission workshops, but got no support for further delaying the process.
Cole addressed one of the original ordinance's most challenging elements: inspecting rental units during the registration process. He suggested rentals only be inspected after violations occur – something the planning board previously recommended.
Cole, Perry, Vice Mayor John Chappie and Commissioner Jake Spooner agreed that the planning board recommendations submitted after six months of discussion differed little from the original ordinance the board members wanted to repeal and replace.
"We asked them to make them to make the tweaks and then they decided to just throw it out and start new," Commissioner Spooner said. "Some of the members said at our joint meeting that they didn't even bother to read our Quality of Life Ordinance."
At that joint planning board/city commission meeting in February, Perry and City Planner Alan Garrett said it made more sense to modify the 2015 ordinance than it did to write a new one. Staff was asked then to provide implementation cost estimates, but that information never materialized.
In October, the planning board submitted a bullet-point list of rental regulation recommendations that called for side yard trash pickup; smaller; less-conspicuous, exterior owner/agent information signs; an interior placard that lists occupancy and parking allowances; a false advertising ordinance; and escalating penalties for properties that produce multiple ordinance or code violations.
The 2015 ordinance's only occupancy restrictions were tied to the air-conditioning load specified in the certificate of occupancy issued by the building department after construction is completed. The planning board originally recommended an occupancy limit of two persons per bedroom, plus two additional guests per unit.
In November, the board majority changed course and recommended an eight-person occupancy limit with no grandfathering provisions for existing rentals. When it was noted at the joint meeting that an eight-person limit would likely provoke Bert Harris claims, board members Reed Mapes, John Metz and Patty Shay expressed a willingness to expose the city to that risk.
City commissioners have not yet engaged in formative discussion on occupancy limits, but that could be debated if the commission decides to amend the existing Quality of Life Ordinance before it's rolled out.
Metz appeal costs climbing
joe hendricks | SUN
Planning board member John Metz, right, huddles with
his attorney, Nelon Kirkland, during the April 17 special
BRADENTON BEACH – John Metz's appeal of a 2015 permitting decision made by Building Official Steve Gilbert has already cost Bradenton Beach taxpayers $11,447 in attorney fees.
On Monday, April 17, City Treasurer Shayne Thompson e-mailed the mayor and city commissioners a detailed summary of the mounting legal costs associated with Metz's attempts to have a neighboring property owned by Wendy and George Kokolis declared abandoned in terms of its continued use as a vacation rental.
Thompson's cost summary did not include legal fees incurred after the March 13 special master hearing, when the testimony and cross-examinations began. The hearing resumed on the same morning Thompson distributed the e-mail that anticipated an additional $3,000 for legal services that day and beyond.
The Metz-requested hearing featured nearly five hours of testimony in March and four hours and 45 minutes of additional testimony last week. Thompson's cost summary did not include the $65 per hour paid to both Gilbert and City Planner Alan Garrett for their combined 18 hours of hearing attendance.
The case at hand
Metz serves on the city's Planning and Zoning Board. He and his attorney, Nelon Kirkland, contend the Kokolis' structure was not occupied for more than 18 months during the recent renovations and, therefore, should lose its historic use as a vacation rental.
The argument is based on Land Development Code (LDC) language that applies to properties the traditional use of which no longer complies with updated building codes or zoning restrictions. This is referred to as a non-conforming use, which means the original use is allowed as long as the existing structure is not demolished and replaced.
The Kokolis' bought the two-story structure at 308 Gulf Dr. in 2014 and Gilbert issued the first renovation-related building permit in June 2015. Metz had 30 days to challenge the permit, but did not do so until nearly a year later.
As stated in his 2016 e-mail to Metz, Gilbert testified the city does not consider an existing allowed use to be vacated during renovations. He also said the 30-day time limit on permit appeals protects property owners from challenges presented after the work is completed.
When testifying, Garrett supported Gilbert's positions. He said if a similar claim was applied to an existing condominium unit that had been maintained by not occupied for 18 months, the entire building would have to be shut down.
Garrett also questioned whether the swimming pool Metz had installed at his own house – half of which is used as a vacation rental – was code-compliant for a structure that also maintains a historic, non-conforming use.
Kirkland claimed the original cost appraisal provided to Gilbert in 2015 was not an accurate representation of the project's anticipated costs. The appraisal is used to determine whether the estimated renovations would exceed the 50 percent cost threshold and thus be considered new construction and result in the loss of the existing non-conforming use.
Gilbert and the Kokolis' attorney, Robert Lincoln, claimed the appraisal was accurate and was properly modified to account for additional costs.
When the testimony ended, it was agreed that Kirkland had 20 days to submit his written closing arguments and requested legal order. Once those are received, Perry and Lincoln have seven days to review them and file their closing arguments and requested orders. Special Master Lisa Gonzalez Moore then has 15 days to issue her ruling.
Bert Harris settlements continue ...
JOE HENDRICKS | SUN
The city of Anna Maria is offering to buy this vacation
rental property at 801 North Shore Dr.
ANNA MARIA – The most recent group of Bert Harris settlement claim offers approved by the Anna Maria City Commission includes an offer to purchase a vacation rental home at 801 North Shore Dr. for $2.27 million.
The city previously offered property owners James and Jeanette DePorre a maximum guest occupancy of 10, but the owners requested 14, plus additional infants and children, based on the property's history of rentals to large families. The commission authorized the purchase offer on April 4. As of Sunday, City Attorney Beck Vose had not heard back from the property owners' attorney, Kevin Hennessy.
The recent settlement offers also included an American Disabilities Act (ADA) accommodation for a vacant lot at 501 South Bay Blvd. owned by Rick and Kristina Kellar. The ADA accommodation will allow for elevators, wider doors and bigger bathrooms than the current building code allows. The city amended its code in a more restrictive manner after the original construction plans were submitted in 2014, and the agreement stipulates the home built cannot be used as a short-term vacation rental for its first five years.
The settlement offer made to the Kellars is the only one of the 112 claims received that did not seek occupancy allowances greater than the eight-person limit established by the vacation rental ordinance adopted in 2015.
The latest round of settlement offers provided two-plus-two occupancy allowances for eight other existing vacation rental properties or properties slated for development as short-term rentals.
According to the city website, 48 of the 112 claims received have been closed out to the satisfaction of the city and the property owners. Settlement agreements are also anticipated for dozens of other offers made by the city in recent months.
Once a claim is filed, the city and the property owner have 120 days to reach an out of court agreement. To date, none of Anna Maria's unsettled claims have made their way to the circuit court in Bradenton.
Vacation rental bills on collision course?
www.myfloridahouse.gov | Submitted
Rep. Mike La Rosa presented his vacation rental bill to the
House Commerce Committee Monday.
TALLAHASSEE – On Monday, the Florida House of Representatives' Commerce Committee ruled favorably on the vacation rental bill known as House Bill 425.
The Commerce Committee was the final committee stop for the bill filed by Mike La Rosa (R-St. Cloud); and the committee did not amend the House bill to resemble the significant amendments made to Greg Steube's Senate bill, SB 188, on April 17.
SB 188 was scheduled for a final hearing by the Senate Rules Committee Tuesday afternoon and the result of that meeting were not known at press time. Sen. Bill Galvano (R-Bradenton) is a member of the Rules Committee.
If the Senate bill remained as recently amended by the Community Affairs Committee, there could be two drastically different vacation rental bills arriving on the House and Senate floors for final votes by their respective members.
As of Monday, the Senate Bill no longer contained language that would prevent local governments from enacting new vacation rental regulations or enforcing those already on the books. The bill simply calls for existing local rental regulations to be made less restrictive without losing any grandfathering provisions, and it lessens regulatory burdens on active military personnel and disabled veterans.
The House bill still contains language that says any local rental regulation adopted after June 2011 must apply equally to all residential properties whether they are used as short-term rentals, long-term rentals, vacation homes or permanent residences.
The House bill would essentially wipe out the vacation rental ordinances adopted in recent years in Anna Maria and Holmes Beach, and prevent the city of Bradenton Beach from adopting new regulations or reviving the suspended Quality of Life ordinance adopted in 2015.
If the amended Senate Bill passed through the Senate Rules Committee Tuesday as presented, the contrasting bills would need to be reconciled in a similar manner If not, both bills would die, and the status quo would be maintained.
Last week, Anna Maria's lobbyist, Chip Case, provided Mayor Dan Murphy some possible scenarios as to what might happen next.
Case correctly predicted the House bill would not be amended to match the Senate bill.
"SB 188 will probably pass as it is now and go to the Senate floor because it is a non-controversial bill which leaves our rights intact," Case wrote.
"Once the two bills arrive on the floor it then becomes a matter of procedures between the House and the Senate. Potential outcomes are:
• It could go to a conference committee for resolution;
• It could be dropped because there are more important issues such as the budget and/or lack of floor time;
• It could become the topic of last minute compromise and amending."
When sharing Case's e-mail, Murphy wrote, "Chip does not feel it will go to a conference committee. It is not the type of issue traditionally taken up by them. He thinks the second outcome is a possibility. However, the third outcome – making it the subject of last minute negotiating – is the one we do not want to have happen."
On Monday afternoon, Murphy said he was not surprised HB 425 passed through the Commerce Committee unscathed.
"It just reinforces my belief that the situation is not over. We need to be vigilant as the two bills move to the floor. Now is not the time to become complacent," he said.
The 2017 legislative session is scheduled to end Friday, May 5.