Permitting efforts continue for 105 Elm Ave.
UPDATED May 10, 2022 – ANNA MARIA – A silt fence has been erected on the undeveloped beachfront property at 105 Elm Ave., reigniting interest in an ongoing permitting process.
Bradenton resident Fedora Campbell owns the beachfront property at 105 Elm Ave. Permitting records obtained from the city of Anna Maria list Greg Gagne as the permit applicant and the Anna Maria-based Gagne Construction firm as Campbell’s contracted construction company.
The recent appearance of the silt fence does not mean the proposed construction has been fully permitted by the city and the city commission. Elm Avenue does not currently extend to Campbell’s property. Elm Avenue currently ends near the driveway for the home at 107 Elm owned by Wendy and Robert Jordan.
A city-issued right of way permit would be required for the construction company to install an unpaved, shell-covered extension of Elm Avenue in the city right of way which would then provide access to the 105 Elm driveway. The city-owned right of way at the west end of Elm Avenue also serves as a beach access entrance. On April 20, the Anna Maria Building Department received a right of way access plan from Gagne Construction.
On May 1, The Sun asked Anna Maria Mayor Dan Murphy about the recent installation of the silt fence.
“No vote has taken place regarding the use of the city-owned right of way. A permit to build the house has been submitted and is pending review. Meanwhile, before a permit can be reviewed, the property needs to submit soil bore samples for analysis. A silt fence is required to do the soil bore. Hence, a silt fence is up at the property,” Murphy said.
“No permits have been issued. As it stands now, no permit will be issued until the right of way issue is run by the Planning and Zoning Board for comment and then taken to the city commission and either approved or rejected. If the commission approves the right-of-way permit, then the Florida Department of Environmental Protection must also review and either reject or approve the permit request. If all approve, then a permit can be issued,” Murphy said.
Driveway access
According to Section 114-421 of the city code of ordinances, “Generally, with the exception of the planting of grass or 250 filter mix, no encumbrances of any kind, such as trees, bushes, rocks, stones, plantings, pea gravel, crushed shell, etc., shall be placed or constructed on the right-of-way within 8 feet of the edge of pavement without the written approval of the director of public works and a majority of the members of the city commission.”
On Nov. 14, 2007, then-Public Works Director George McKay approved a right-of-way work permit related to the construction of a home at 107 Elm. That permit references an “extension of driveway.” An accompanying document dated Nov. 21, 2006, references a “road extension in right of way” and noted the materials used to extend Elm Avenue to provide access to 107 Elm were to consist of #250 sand mix, FDOT screenings mix or filter mix. That permit resulted in Elm Avenue being extended without the use of asphalt or concrete. McKay’s administrative issuance of the 2007 right of way permit was not presented to the city commission for approval.
The need for a city commission-approved right-of-way permit was the subject of a memo that Campbell’s attorney, Kevin Hennessey, sent to the Anna Maria Building Department on April 20. Hennessey’s memo prompted a written legal opinion in the form of a memo from Anna Maria City Attorney Becky Vose, which she sent to Murphy and Hennessey on April 26.
In his memo, Hennessey cited Section 114-604 of the city code of ordinances which states, “The director of public works is authorized to approve an application/permit for right of way utilization which is in compliance with this article. After approval of an application/permit by the director of public works and payment of the required fee by the applicant, a copy of the approved application/permit will be issued to the applicant.”
Hennessy’s memo stated, “It is our position that the city code allows for administrative approval, by city staff, of the proposed right of way improvements, without the need for approval by the planning and zoning board or the city commission.”
Hennessey’s memo stated, “It is also the experience of Gagne Construction that the city has never previously made it a requirement to go in front of the city commission or planning and zoning board to get approval of a similar access/driveway work in a city right of way. The city’s public records also show that the driveway approval for the 107 Elm Ave. home, which similarly was in the Elm Avenue right of way, did not require city commission approval. The owner of 107 Elm Ave. did go before the city commission for a setback variance, but nothing in the agenda or minutes reflect any discussion of the right of way permit. Mr. Gagne also called Mr. Whitehead, who was part of the permit process for the 107 Elm Ave. property. Mr. Whitehead said the city commission meeting was not a part of the requirement for the right of way permit.”
In her memo, Vose stated, “Mr. Hennessey concludes that an administrative approval of his application is necessarily justified. I disagree with Mr. Hennessy. The authority of the director of public works to approve an application/permit for right of way utilization is limited to instances when such utilization ‘is in compliance with this article (Section 114-601).’ The section really begs the question of whether the application/permit should be granted.”
In 2017, Murphy restructured the city’s building, planning and code enforcement departments and reassigned McKay to serve as the city’s building department coordinator. Murphy assigned Dean Jones to serve as public works manager, a title Jones still holds. McKay is now an hourly employee in the city’s building department.
In her memo, Vose stated, “It should be noted that the position of director of public works is currently a vacant position. In the absence of a director of public works, the authority that would be vested in such director is actually exercised, if at all, by the mayor. Even if there were currently a director of public works, the provision that ‘the director of public works is authorized to approve an application/permit for right of way utilization which his compliance with this article’ does not mandate that the director of public works necessarily take such action, particularly due to the provisions of Section 114-421, requiring the approval of both the director of public works and a majority of the members of the city commission under certain circumstances with appear to apply here.
“In this instance, due to the possible far-reaching effects of this decision, the public scrutiny relating to this subject and the provisions of Section 114-421, the mayor, acting in the stead of the director of public works, has chosen not to make this decision himself, but rather refer it to the city commission to make that decision,” Vose stated in her memo.
“It is my opinion, that under current conditions, the city commission does have the authority to make the decision as to the approval or denial of the application for right of way permit. It is my understanding that the city will schedule your application to be heard before the planning and zoning board for a recommendation, then schedule your application to be heard before the city commission for final decision,” Vose stated in her memo.
The 105 Elm Ave. right of way use permit is scheduled for discussion at the Monday, May 16, planning and zoning board meeting at City Hall at 2 p.m. The meeting will be open to the public.
Regarding the right of way permit approval process, Murphy said, “As our city attorney interpreted the code, the director of public works only has authority over 8 feet of the right of way in front of a residence. In this case, we’re looking at approximately 70 feet of right of way and the right of way is public property and the city is the guardian of that public property. Hence, that’s the reason an employee cannot give away public property for public use. That’s a matter for the commission to decide.”
Coastal construction concerns
Through their North Carolina-based WAJ Rustic Vacations LLC, the Jordans bought the beachfront home and property at 107 Elm for $4 million on April 1, 2021. On April 23, the Jordans then bought the undeveloped 103 Elm property from Steven Decker for $500,000. The 103 Elm property is located seaward and west of Campbell’s property.
On July 6, 2021, Wendy Jordan sent Murphy an email that referenced the Jordans’ efforts to also purchase the 105 Elm property.
“We first offered the lot owner $2 million dollars for her lot; she is 83 years old. She asked for $2 million and we met to set the closing and then she turned it down,” Jordan stated in her email.
In that email, she also stated, “For those who immediately say, ‘You are only worried about your view.’ Of course I am worried about my view. We paid for a view and it is in jeopardy of change that will ruin the wildlife.”
The Jordans have publicly opposed the construction of a new home at 105 Elm through the Preserve AMI website and public awareness campaign they launched a few months after purchasing their new home. According to the Preserve AMI website, the Jordans and some of the other Preserve AMI supporters are also concerned that allowing Campbell’s home to be built seaward and west of the state of Florida’s Coastal Construction Control Line (CCCL) would establish a precedent regarding the development of other undeveloped properties seaward of the Coastal Construction Control Line.
On June 25, 2020, the Florida Department of Environmental Protection provided Campbell with a notice to proceed and a permit for her desired construction activities at 105 Elm Ave.
On Aug. 3, 2020, attorney David Levin filed a petition for a formal administrative hearing with the Florida Department of Administrative Hearings (DOAH). Levin filed that petition on behalf of potentially impacted property owners David Morris, Ling Liu, DAR Real Estate Enterprises and Richard Theidel. The Jordans did not own the 107 Elm property at that time.
“Campbell’s proposed structures do not comply with the applicable requirements and are not eligible for a CCCL permit. Petitioners seek a final order revoking Permit No. ME-1341,” Levin stated in his petition.
In response to that request, administrative law judge Francine Ffolkes later presided over a six-day DOAH hearing. On June 7, 2021, Ffolkes issued her written recommended order which stated: “It is hereby recommended that DEP enter a final order granting Campbell’s application for a CCCL permit to construct a single-family residence and associated structures seaward of the CCCL.”
On July 20, 2021, Interim FDEP Secretary Shawn Hamilton signed the final order that formalized Ffolkes’ recommended order. The final order provided a 30-day appeal period. On Aug. 12, 2021, the Jordans filed three notices of appeal regarding Hamilton’s final order, but at the advice of Levin, they later decided to stop their appeal process.
Related coverage:
Building permit sought for beachfront property
Impact of FDEP permitting order remains to be seen
FDEP allows beachfront development
