Commission seeks to change codes to chop offensive hedges at Marina Bay

STEVE REID
Editor & Publisher
sreid@lbknews.com

The Longboat Key Town Commission approved an ordinance on first reading that will reduce hedges between condominiums and single-family properties to ensure water views are preserved for the condominium unit owners as they look across neighbors’ properties at the water.

The issue was raised by residents of Marina Bay condominium who complained that a hedge on the southern border of their property, on Harbour Court, has grown from 6 to more than 30 feet high and is blocking views of the Sarasota skyline, which were part of the reason they bought their units in the first place.

Currently, the town does not regulate the height of hedges in the side yards between properties, but there is a disparity between single family and condominium properties in the required setback from where a hedge is permitted to begin.

A residential property can begin its side yard hedge 20 feet from the front of the property bordering the water. Condominium hedges must be set back 50 feet. Condo buildings themselves must also be set back further from the water’s edge, further exacerbating the effect a high hedge bordering a single family home will have on their views.

Marina Bay owner Michael Fried says he has lost well over 50 percent of his view.

“I would not have bought it without its view of Sarasota,” said Fried.

Fried estimates his loss in property value at several hundred thousand dollars. In total, he said the one hedge bordering Marina Bay will take over a million dollars in property values from the affected condominium owners. He added that the laws the town regulations when he bought his property, protected his position, but those rules were changed. The town removed height limitations for hedges, and 20-foot plus hedges are common throughout the Key.

Fried was asked by the commission if he had tried to resolve the issue with the individual neighbor or the Harbour Court Board of Directors. Fried said he went to the Board of Directors and they deferred the decision on trimming the hedge to the individual neighbor where the hedge is located.

“I asked the neighbor—she is intransigent. The hedges have no value, but she wants them and wants nobody to take them away,” said Fried.

Commissioner Jack Duncan said he was the President of Marina Bay and that at least six units are affected. Commissioner Terry Gans asked if the hedge was not there, could the condo residents peer down into the home or property at Harbour Court.

Fried said he did not know, but that he has tried everything in his power to reason with this neighbor, but nothing has worked.

Gans said that he had conflicting concerns on the issue, and asked if the town would run into a problem in attempting to address this issue “surgically.”

The “surgical” intent of the ordinance was intended according to town planner Steve Schield to resolve this particular issue, and Schield said that fewer than 30 properties share a condominium/single family boundary.

Town Attorney David Persson said the town does not run into trouble legally when it treats similarly situated properties the same.

Duncan said that he was “selfishly happy” with the language in the ordinance and the way it relates to the issue at Marina Bay.

“But I do not want to be selfish,” he added.

 

Planning and Zoning Board snubbed?

Another concern regarding the ordinance approval was voiced by Mayor Jim Brown who said the Planning and Zoning Board did not approve this ordinance and had intended that it go back to staff to be reconsidered and revised. And while the commission has the legal authority to ignore the Planning and Zoning Board, Brown initially suggested it go back to staff.

“It seems there were some sticky issues and it sounds to me like it needs work at the staff level before the commission should work on it,” said Brown.

Brown later added that the last time the hedge ordinance was considered, there were many interested parties and differing views, but the consideration was in the busy season when residents were in town, and he suggested the town should not consider the issue until the residents are back.

Commissioner Pat Zunz argued that the condo owners still have a view straight out from the water, and they are just talking about the view at an angle across other people’s properties.

“I don’t see any reason to fool with this,” said Zunz.

Vice Mayor David Brenner said he didn’t like to get involved in a morass or a swamp. He asked how many hedge complaints Planning and Zoning Director Robin Meyer had received since he had gotten here.

Meyer replied “zero,” only existing complaints.

Brenner said it might have been “a heck of a lot more effective if this has been dealt with in conflict resolution in the beginning—I’m sure personalities have by now come into play.”

Commissioner Lynn Larson also was concerned about changing a rule because two properties have a problem.

“We are going to make more people unhappy than we’re going to make happy. This needs to be handled through a mediation process…we’re going after a gnat with a hammer,” said Larson.

Brown said they are doing an injustice if in the middle of the discussion they do not try to get more input on the issue.

Larson said she would be glad to sit down “with all of you at Bay Isles,” to try and help resolve the dilemma.

Duncan replied that sitting down as mediator does nothing because the code sides with one party.

The ordinance under consideration did have a three-year time-frame to allow the residential property owner to cut the hedge down to the six-foot level. This time was given to help prevent shock to the plants.

Before the vote, Duncan moved to amend the ordinance to reduce that time-frame to two years from three “to stop the suffering.”

The vote split the commission with Commissioners Duncan, Brown, Phill Younger and Terry Gans voting yes and Larson, Brenner, and Zunz voting against the measure.

 

Conflict alleged

Following the meeting, former commissioner Gene Jaleski strongly faulted the commission for ignoring the town Planning and Zoning Board and also faulted Duncan for not recusing himself, because he lives in Marina Bay.

“Jim, were you aware that the tie-breaking commission vote on Ordinance 2012-19 was a property owner in a condominium that is directly and favorably affected by the ordinance? I know you have a great deal of experience and expertise with courts as part of your previous professional background, but do you really believe a judge will let this pass? If the people at the condominium adjacent to Marina Bay choose to take exception to being specifically ordered to cut their foliage, to afford a better view for the folks in Marina Bay, I suspect the town will be rebuffed by the courts once again.

In addition, the commission once again failed to follow the guidance of the Planning and Zoning Board. This time as concerns 2012-19. Do we really need a PZB anymore? I find this odd given the number of commissioners who previously served on the PZB.

If there ever was a case where a commissioner should have recused oneself, this was that case,” wrote Jaleski.

Town Attorney David Persson defended Duncan and replied in a letter dated Oct. 4 that Commissioner Duncan did not have to recuse himself because his condominium, although in Marina Bay, is in the middle building and the view from his condominium is not in any way affected, therefore he does not face property gain or loss from the hedges being cut.

“Marina Bay Condominium has sixty (60) residential units located in three (3) separate buildings. According to the testimony at first reading on the proposed ordinance, approximately six units at Marina Bay may be impacted if the regulations were enacted. These units are located on the southerly side of the southernmost building. You reside in building two and are unable to see the hedge between building 1 and its neighbor to the south. You have participated as past President of the Condominium Association and feel strongly about the value of protecting waterfront views on Longboat Key.”

Persson continued, “Under Florida law, there is an affirmative duty placed upon you as a town commissioner to vote on matters that come before the commission and you are prohibited from abstaining unless there is or appears to be a possible conflict of interest. The analysis that the law requires to determine whether a conflict exists is straight forward. Essentially, there needs to be a special private gain or loss in order for a conflict to exist.”

The hedge ordinance will have a second and final reading at 7 p.m. at the Nov. 5 commission meeting.