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Owners of waterfront home sue Clearwater over halted demolition

Clearwater says it should never have issued David and Aileen Bair a permit to renovate their Island Estates property.

JIM DAMASKE | Times

Clearwater says it should never have issued David and Aileen Bair a permit to renovate their Island Estates property.

CLEARWATER — At the south end of one of the fingers of land that make up Island Estates, there's a long line of well-kept waterfront homes with backyard access to the Intracoastal Waterway.

There's also one home site that looks like it got leveled by a hurricane. All that's left at 1 Windward Island Road are a few sections of concrete-block walls, broken marble floors, "No Trespassing" signs and a swimming pool filled with scum.

This apocalyptic landscape has been untouched for a year and a half. The well-to-do retirees who populate the neighborhood shake their heads in disbelief.

Now the property's owners are suing the city of Clearwater. They say the city shut down their home renovation in 2011 and accused them of violating Federal Emergency Management Agency (FEMA) flood-zone regulations, even though city officials had previously given the project their approval.

The city isn't saying anything due to the lawsuit. "We don't comment on pending litigation," said City Attorney Pam Akin.

Lifelong Clearwater residents David and Aileen Bair own this lot on Island Estates. They bought a waterfront house and intended to remodel it and add nearly 700 square feet before moving in.

The Bairs' lawsuit claims:

• That Clearwater building officials approved their permit, which authorized the Bairs to demolish part of the existing house to make way for new construction.

• That when demolition was finished in August 2011, the city issued a stop-work order, asserting that the Bairs had demolished more than their permit allowed.

• And that when it turned out the city permit actually did allow that much demolition, the city backtracked and decided it should never have issued the permit in the first place.

The two sides have been at an impasse ever since.

"While the city admits they made mistakes, they rejected all of the changes we proposed, refusing to accept any responsibility for their errors and refusing to make any accommodations," said David Bair, co-owner of Quality Boat Sales in Clearwater. "I grew up here. I have never sued anyone. Suing the city is the last thing I would ever want to do. They have left us with no alternative."

However, Clearwater officials say the property owners are clearly violating FEMA's 50 percent rule. They point to how little is left of the original house.

The federal government requires a home to be elevated if the cost of repairs or renovations will exceed 50 percent of the value of the original building.

Even though Island Estates is a low-lying community just east of Clearwater Beach that is surrounded by water, the vast majority of its roughly 500 houses are not elevated. The Bairs didn't want to elevate their house.

Although officials aren't talking about the case, a thick file of documents in the city's Building Department sheds some light on what happened. When the Bairs applied for their construction permit in April 2011, their general contractor put the project's cost at $136,850. That was less than half of the structure's $285,462 value, according to an appraisal commissioned by the Bairs.

The permit was approved in July 2011.

When demolition work began that August, officials were surprised by how much of the house was taken down. They stopped the work.

"They came and said, 'You demolished more than what was permitted.' But that's just not true. They made a mistake," said the Bairs' attorney, Paul Raymond.

The following month, the Bairs' general contractor submitted another set of figures, putting the renovation project's cost at $231,600 and the original structure's value at $479,755.

All of this led to a lengthy series of plan revisions, technical correspondence, legal threats, an appeal to the city's flood board, and now a lawsuit.

In correspondence between the two sides, city officials appear to acknowledge that they made a mistake in approving the original permit. But they say that doesn't change the fact that FEMA rules were broken. Building officials are required to use retail pricing for materials and standard contractor fees when determining whether to invoke the 50 percent rule. A letter from Clearwater building officials to the Bairs' architect refers to this:

"An analysis is done using this type of data to establish the value of the proposed improvement. This part of the process was inadvertently omitted during the review process for your project, and although it is unpropitious that this omission occurred, the Building Department is yet charged with the responsibility of enforcing floodplain development regulations."

In 1990, FEMA threatened to cut Clearwater out of the federal flood insurance program for insufficient enforcement of the 50 percent rule in the city.

Mike Brassfield can be reached at brassfield@tampabay.com or (727) 445-4151. To write a letter to the editor, go to tampabay.com/letters.

Owners of waterfront home sue Clearwater over halted demolition 03/30/13 [Last modified: Saturday, March 30, 2013 1:10pm]
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