County Commissioner Joanna Bryan last week continued to question the legality of a variance recently approved by the Board of County Commissioners.
And with county attorney Jeremy Novak present for the meeting the discussion centered, as Novak noted late in the debate, on differing legal opinions.
Novak had not been present during the prior regular meeting when the BOCC, by a 3-1 vote with Bryan dissenting, approved a variance on property owned by Ellis Smith, Jr. which is adjacent to Veterans Memorial Park at Beacon Hill.
As the variance was being awarded, Bryan came under attack from fellow commissioners for her continued doubts over whether the variance was legal.
As part of receiving the variance, Smith, through his father Ellis Smith, pledged to deed to the county just under a quarter acre along the beachfront to provide “public beach access.”
That deed was part of last week’s consent agenda and Bryan requested it be pulled and urged commissioners to decline the deed.
“I believe the deed further compounds the problem,” Bryan said.
A private practicing attorney, Bryan questioned whether the original minor replat of the parcel, which led to the variance request into established setbacks in order to build on the property, which abuts park land, was legal.
She said the attorney’s written opinion of two weeks prior seemed to indicate the board could approve a replat in violation of the LDR.
Novak said it was a proper replat, but also said the replat was not within the purview of the BOCC.
The BOCC’s lone consideration in the matter was reviewing and approving or denying the variance request.
He said the replat was permissible under county land development regulations and within the purview of the county planning office.
“The planner had the authority to approve the minor replat,” Novak said.
He contended that Bryan’s characterization of the replat being illegal was faulty because it was based on just one section of the LDRs, that speaking to additional replats of a parent parcel.
In this case, Ellis Smith purchased the property, subdivided it and sold one parcel to his son who subsequently subdivided that parcel.
The variance pertained to the parcel created by the second division.
Novak said the subsequent section of the LDRs, allowing such divisions on land “contiguous to the original replat,” prevailed over Bryan’s argument.
Bryan said that was incorrect.
“This is not contiguous,” Bryan said. “This is the parent parcel. The parent parcel is the parent parcel. Your argument does not hold up.”
But Novak argued that the county planner applied rules and a process that had been followed for decades. The planning office had operated within its established policies.
“Until the rules are changed, this is what should be applied,” Novak said.
He said if commissioners did not like the rules being applied, they were the ones with the power to change the rules.
Bryan replied, “It is my opinion we did not follow our LDR.”
The variance request was imbued with controversy to its location abutting Veterans Memorial Park.
Smith is at least the fourth owner of the land in question in the past 15 years and previous owners have sought to have it removed from the tax rolls due to the lot’s dimensions and proximity to the park.
Smith ran into resistance from some in the community when he previously sought a variance on the property.
In part, Novak argued last week, that could be perceived as a hardship.
In a debate over the issue falling under a hardship case for the variance, Bryan had argued any hardship had been created by Smith’s subdividing the property, not any external action, therefore not qualifying for a hardship.
But Novak wondered aloud whether the hardship wasn’t created years before, suggesting the adjacent land being created as a park by the U.S. Department of the Interior could be considered the cause.
The BOCC accepted the deed with Bryan voting no, contending that in her legal opinion the BOCC’s course of action was wrong.
With little discussion commissioners approved a motion from Commissioner Carmen McLemore to increase the annual salary of county administrator Don Butler to equal that of Sheriff Mike Harrison.
Harrison, as a constitutional officer, has his salary, roughly $104,000 per year, set by the Florida Legislature.
Bryan, while not specifically dissenting, said the item was not on the agenda and the BOCC should allow for public input before upping Butler’s salary by roughly $20,000 a year.
Bryan, who also wondered where the additional money would come from, was overruled and Butler’s salary was raised to $104,000 effective immediately.