BRADENTON BEACH – The construction of the tiki hut at the Drift-In is on hold pending further review by the city.
City Attorney Ricinda Perry said at a Jan. 16 city commission meeting that a permit approved by Building Official Darin Cushing for the construction should not have been issued based on factors which included the city-owned easements on the property as well as the size of the new tiki structure. She said the project should be classified as a major development and must undergo the hearing process.
“This was administratively approved, and it should have gone through a public hearing,” Perry said. “Legally I believe it should have been a major development.”
The discussion was a continuation of a discussion at a Dec. 19 city commission meeting, and at that meeting Perry said: “If there’s was a modification to the size of the structure that exceeded 10%, that becomes a major development approval, and a major development approval needs to go through a P&Z review and a city commission approval.”
“There was an increase in the size,” Perry said. “Under the old application it was 13 by 15 feet and the current one is 54 by 24, that’s a 450% increase. That increase triggered a major development.”
She questioned whether that would change the classification of the tiki area from an accessory use to a principal use.
Perry said the property owner was informed recently that the city required a major development application.
“I reminded the property owner two weeks ago before starting to pour concrete floors and doing the work I made the legal statement anything you do going forward from this meeting is at your own risk,” she said.
Perry said if someone voluntarily tears down a structure, it comes with the unintended consequences of setting a precedent.
“I know two property owners on the street are asking to have their easement modified,” Perry said. “My concern is when we start saying OK, we’ll let you modify this easement when you voluntarily rip this out, what does that mean for the other easements?”
The attorney for Drift-In owner Derek Williams may be asking the city for modification of the existing easements, one of which goes through the building.
“Derek’s attorney (Scott Rudacille) is supposed to get us some data that we need coming in to review a month or so,” Perry told the commission. “I have asked Scott Rudacille to provide us with the revised easement they want to consider. As this is coming to you for your review in a month or so, you have a responsibility to protect that easement. You can modify it however you want to modify it.”
Perry said she is not in favor of relinquishing the easements.
“When you have an easement and someone is infringing on it, I don’t care that there’s a mistake that comes out of the building department,” Perry said. “You’re interfering with the public right which trumps your building department permit.”
Another issue with the tiki structure is its material, according to Perry.
“There was a directive (at the Dec. 19 meeting) to make sure that public works, the Police Department and West Manatee Fire District were aware of what this application was and had an ability to comment on this.”
Perry said she was told by the fire marshal during a meeting that the West Manatee Fire District does not allow for a thatched roof and it must be replaced with synthetic materials.
“Derek stated at the meeting, ‘I spent $80,000 now you’re telling me I have to rip it off? Who’s going to pay for it?’ Good question,” Perry said. “In my opinion, this all could have been avoided if WMFD knew what the application was. It does come at a cost after the fact to the property owner.”
Fire Marshal Rodney Kwiatkowski placed a red tag on the tiki hut pending further review, Perry said.
“Once the fire marshal is satisfied, he’ll lift the red tags,” Cushing said.
“I followed it to a ‘t’ and now it’s all come crashing down on me,” Williams said. “I would say go back to that permit that was approved.”
Mayor John Chappie said there should have been two separate permits.
“Is he doing improvements inside?” Commissioner Scott Bear asked. “Can he open inside while we resolve outside?”
“If you let them proceed and operate, you are helping them identify business damages they could lose and we would have exposure,” Perry said.
Chappie said he would be hesitant in allowing the business to open before the major development process is complete.
“I’m working to resolve this. I want to go through this the right way and I did,” Williams said. “I just want to open the business and get back on track.”
Williams asked how the process could be expedited.
“A major development application goes through the P&Z meeting in February and goes to the commission the end of February, beginning of March,” Perry said. “For changes in the land development code, a 30-day public notice is mandated.”
