Council agrees to revocation hearing

City officials broke with tradition Tuesday night when they set a hearing date to consider the revocation of a Design Review Board approval for an oceanfront project in Three Arch Bay.

The proposed single-family residence at 29 Bay Drive has a contentious history that goes back some nine years and involves neighbors’ allegations of negligence, intentional misrepresentation or fraud.

“Revocation is an unusual procedure, rarely used,” City Attorney Philip Kohn advised the council. “In over 20 years with the city, I can count on one hand and not use all the fingers the times it has been initiated.”

The council split 3-2 on the procedure after almost three hours of testimony that often came down to “he said, he said” as the attorney and architect on the project rebutted statements by the requestors of the revocation, which included a longtime critic of the project and his attorney.

Tuesday’s hearing was held to determine if sufficient grounds could be presented for the revocation hearing.

“This is not unlike a preliminary hearing or a probable cause hearing in a criminal case which allows the court to proceed with further action,” Kohn said.

Each side was given 10 minutes to make its case — but questions from the council stretched out the testimony from 9:05 to 11:50 p.m.

Attorney Gene Gratz, acting for property owners Charles and Valerie Griswold, asked that Councilwoman Toni Iseman recuse herself from the proceedings based on Gratz’s belief that she had already concluded how she would vote.

Kohn said he had been assured by Iseman that was not the case. Iseman did not recuse herself from the hearing.

The bellicose history of the project was made more confusing by technical mistakes, lapsed approvals, missing documents, appeals, revised plans and different studies to justify the building height and size proposed by architect Jim Conrad.

The municipal code sets forth the grounds for revocation:

Among the accusations leveled by revocation requester Sid Danenhauer:

More than 100 form letters were submitted to the city by Three Arch Bay residents, allegedly after they received mailers from Danenhauer.

“I am at a loss,” said Gratz after hearing the requesters’ presentation. “I thought this was a hearing to present facts, and I have not heard that, so I don’t know what to rebut.”

Mistakes were made, said Gratz, but they did not constitute deliberate fraud or misrepresentation. And the calculations for the slope were approved by a staff member, no longer employed by the city.

Councilwoman Elizabeth Pearson-Schneider said the city screwed up and the property owner should not be penalized.

“Rightly or wrongly, the applicant was operating with the concurrence of the city,” said Pearson-Schneider, who voted with Mayor Steven Dicterow against the revocation hearing. “I don’t find deliberate misrepresentations.”

Iseman said the question council members had to ask themselves was why there was so much confusion with the project.

“Elizabeth [Pearson-Schneider] doesn’t see misrepresentation, but negligence is the issue,” Iseman said. “I move we move forward to the next hearing.”

The requesters were instructed by council to present their evidence to Gratz by Sept. 29 for his review and preparation to respond by the council’s Oct. 17 meeting, unless an alternate date is selected and noticed.