[TWIAR] Council to revisit Code Enforcement decision on communications tower (Marco Isl., FL)

[Greg Williams]

http://www.marcoeagle.com/03/08/marco/d957067a.htm

Council to revisit Code Enforcement decision on communications tower =
(Marco Isl., FL)

Sunday, August 24, 2003=20

By I.M. STACKEL, imstackel@naplesnews.com=20



Marco Island ham radio operator Stephen Kahn is a good guy who =
contributes a valuable service to his community. That fact is =
undisputed.=20

But Kahn built a communications tower after Marco officials rescinded a =
permit, and Marco's Code Enforcement Board said that's OK.=20

Some of Kahn's neighbors are not very happy with that decision. Neither =
are city planners and code enforcement officers.=20

So, for the first time since incorporation in 1997, Marco Island city =
officials will challenge a ruling by one of their own boards.=20


City Council on Monday night agreed with city planning and code =
enforcement staffers that an Aug. 12 opinion issued by the Code =
Enforcement Board did not accurately reflect land use rules.=20
Community Development Director Greg Niles on Wednesday filed for a =
rehearing.=20

Some of Kahn's neighbors are relieved.=20

The tower is "12 feet from my property line," neighbor Phil Ridge said =
Monday. "It's freestanding in his back yard, but it's closer to my =
property line than his."=20

Ridge said he and his neighbors had counted on the city protecting them. =
Not only is the structure an eyesore that will cause property value to =
decline, it's a safety hazard: It will attract lightening for miles =
around, he said.=20

"We tried to help and it backfired," City Planner Bryan Milk said =
Monday.=20

"Staff tried to act swiftly with the situation at hand," Milk said.=20

"We were overruled by Code Enforcement. Therein lies the problem. Now, =
what do we do? Now (Ridge and his neighbors are saying) 'You guys kinda =
let us down.' And we're saying, 'Yeah, we let ourselves down,' " Milk =
said.=20

Those neighbors turned out Monday to implore City Council to step in, =
and in the first case of its kind city officials filed for a rehearing =
before their own Code Enforcement Board.=20

"It was pretty clear that the council was disturbed with the (Code =
Enforcement Board) decision, and wants to revisit it," City Manager Bill =
Moss said Tuesday. "The request for rehearing will be ready today."=20

The word "disturbed" is an understatement.=20

Councilman Glenn Tucker called the Code Enforcement Board decision =
"ridiculous."=20

"I don't know why the Code Enforcement Board didn't look more carefully =
into this," Tucker said with disgust.=20

City Attorney Richard Yovanovich told council members they have the =
ability to request a rehearing within 10 days of the decision, but not =
the power to overturn the board.=20

"Do we have the ability to fire them?" Tucker asked, a question that =
ceased to be rhetorical when Code Enforcement Board member Sal Sciarrino =
stepped up to the microphone to say he took umbrage at Tucker's =
attitude.=20

"Fire them! Who (the heck) are you?" Sciarrino shot back at Tucker.=20

"The one who appointed you," Tucker replied.=20

Sciarrino said there are reasons for every action the board took. "Don't =
sit there and think we did something stupid," Sciarrino shouted back at =
Tucker. But the rest of the council agreed that council members needed =
to hear the facts.=20

Here are the facts:=20

Shortly after the new year, Kahn applied for a permit to build an =
antenna tower at his Kendall Drive home, and city planning officials =
gave it to him.=20

In May, city officials realized the permit was issued by mistake: The =
site at which Kahn hoped to erect his tower did not meet city setback =
requirements. They told Kahn they'd goofed, and asked him not to =
construct the tower. Niles apologized to Kahn in a May 7 letter and =
wrote that he would help him obtain a conditional-use variance to =
continue with his plan to build the tower.=20

"Should you desire to pursue a conditional use, city staff will work =
with you to expedite the review process," Niles wrote.=20

Kahn built the tower anyhow, without applying for a conditional-use =
permit.=20

On May 29, city officials cited him for violating city land-use rules, =
and asked him to remove the tower, which he did.=20

However, he reinstalled it, and city officials discovered it on July 21. =


Code Enforcement Director John Goodspeed said he met with Kahn, and Kahn =
admitted he reinstalled the tower.=20

Goodspeed said Kahn then told him he felt the structure was legal, and =
he would take his chances before the Code Enforcement Board.=20

Kahn tells a different story, according to Monte Lazarus, a former Code =
Enforcement Board member and retired attorney, who represented Kahn pro =
bono at the Aug. 12 Code Enforcement hearing.=20

In a long position paper Lazarus presented to the board, Kahn said he =
was granted the permit on Feb. 19 and began to excavate the site. On =
April 16, a building inspector gave him the OK to pour the needed seven =
yards of concrete, which cost the five-year Marco resident more than =
$4,000. He attached the communications tower to the concrete base on =
April 25.=20

Kahn said Milk issued a stop-work order on May 2 "notwithstanding that =
the work had already been completed," Lazarus wrote. The basis was that =
the tower's base encroached too far into the property's rear setback.=20

Lazarus wrote that he and Kahn had several meetings with city staff, =
reiterating Kahn's desire "to comply with the law and even to move the =
tower if the city desired."=20

"However, Steve did not want to bear the cost of reconstructing the base =
because of an error by the city," Lazarus wrote. "Steve repeatedly told =
the city staff that he would locate the tower anywhere on his property =
to maintain goodwill, but that the city should bear the cost. In a =
series of discussions, Mr. Niles at first indicated that the city might =
be willing to pay an undisclosed portion of the expense, but he later =
dropped this possibility. Then, for the first time, the city also =
asserted that Steve not only had to move the tower at his own expense, =
(but) had to go through a conditional use proceeding plus an additional =
permit process."=20

A retired New Jersey police officer, Kahn wanted the ham radio tower to =
function as a Collier County emergency operations substation, Lazarus =
told board members Aug. 12.=20

City officials are depriving locals of a service "vital to the safety of =
the island," he said.=20

City Attorney Greg Urbancic tried to keep Code Enforcement Board members =
on track at the Aug. 12 meeting.=20

"Your role here is to decide whether there is a violation," Urbancic =
said. The board was not there to decide if Kahn performs an important =
service to the community, or whether the city should pay for its error, =
he added.=20

The $4,000 is "relevant to the discussion, but a civil matter. You're =
not here to fine the city, but to find out if we have a violation or =
not," Urbancic said. Furthermore, Florida case law shows that a =
government entity can rescind a building permit after it mistakenly =
issues one, Urbancic said.=20

"There's no violation," insisted Code Enforcement Board member Roy =
Sanders, a contention with which four fellow members agreed. They said =
little else, taking a stand with their 5-1 vote.=20

Board member George Amerine was absent from the Aug. 12 meeting. Charles =
Hughes cast the dissenting vote.=20

"I realize ham radio operators do an admirable job, but then I also =
(understand that) neighbors have to look at the structure. I have some =
problems along those lines," Hughes said.=20

Fellow ham radio operators shepherded Kahn from the meeting room Aug. =
12, delighted with the board's decision. They'd come prepared to speak =
out on behalf of Kahn and the service he performs if the board didn't =
see the situation their way, said John Boucher, a licensed amateur radio =
operator for 46 years. Conventional means of communication can be =
seriously disrupted during natural disasters such as hurricanes, and =
amateur radio operators have repeatedly helped out.=20

After the meeting, Kahn said he fears city officials will find another =
way to prevent him from operating his tower.=20

Moss on Tuesday said the whole issue, start to finish, is complicated =
and politically confusing.=20

First off, the city would have to hire outside legal help to represent =
city staff at the rehearing, because the city attorney represents the =
Code Enforcement Board.=20

"We need to be equally matched," Moss said.=20

Second, there are numerous amateur radio operators in the county, and =
the city doesn't want to antagonize them or imply they're not =
contributing an important service.=20

Third, Lazarus presented case law implying that Federal Communications =
Commission law trumps local rules where local emergency radio operators =
are concerned, whereas city officials presented their own legal =
precedents on the issue.=20

In the interim, council members want to look at the communication tower =
language.=20

"We don't need this to happen again," Moss said Tuesday.=20

Greg Williams
k4hsm@lock-net.com

Tis often better to be silent and thought a fool rather than to speak =
and remove all doubt.
No trees were destroyed in the sending of this contaminant-free message
We do concede, a significant number of electrons may have been =
inconvenienced.=20


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