Code board: No permit needed for radio tower

On a 5 to 1 vote, Marco Island's Code Enforcement Board decided that Stephen Kahn does not have to obtain a conditional use permit to keep his ham radio tower.

That decision leaves city officials with little recourse.

City Manager Bill Moss said he has to think about what to do with this case. The city can drop it, or appeal to Collier County Circuit Court. Moss will ultimately bring his recommendation to City Council.

"In my view, the board didn't act on the evidence presented to them," Moss said after the decision. They also didn't answer the necessary questions required for a finding of fact, he said.

Kahn's ham radio tower has generated some very hard feelings in the community.

Kahn was cited by Code Enforcement officials for erecting the tower at his Kendall Drive home after city officials asked him not to.

He originally was granted permission to build the tower, but city planners quickly realized the permits had been issued in error. They asked Kahn to halt the project, but he proceeded. They cited him, and former Code Enforcement Board member Monte Lazarus stepped forward to represent Kahn.

Kahn did what he was supposed to do, Lazarus said.

"The city has, continually, not only prosecuted but persecuted my client," Lazarus told the Code Enforcement Board on Tuesday night.

But, more to the point, the city chose to not negotiate with Kahn, and based on case law, city officials thereby forfeited the right to enforce their rules, Lazarus said.

Failure to negotiate pre-empts the ordinance, he said.

Code Board member Roy Sanders tried to argue that, based on that ruling, the decision should be clear-cut, but the board's attorney, Greg Urbancic, said that may not be the right legal decision to guide them.

"I'm not sure that case is applicable at all," City Attorney Greg Urbancic advised the board. "It's not Florida law. ... it doesn't deal with the specific issue at hand. ... (it is) talking about other FCC regulations. ... I just don't see how that case applies in the situation."

Code Enforcement Board members found for Kahn at an Aug. 12 session, and Kahn's neighbors protested. The tower is unsightly and dangerous for neighborhood children, they complained.

City Council members told city employees to take the case back to the Code Enforcement Board. The board on Sept. 9 refused to rehear the case and accused City Council members of trying to micromanage the code board's actions.

On Oct. 20, Councilman Glenn Tucker asked if the two sides could work out their differences, and Lazarus said Kahn was ready to do so.

However, city officials feel that before they start talking, Kahn must, at least, apply for a conditional use permit.

He will not do that, and with their vote, Code Enforcement members told him he does not have to.

They wanted to know why the city doesn't just negotiate with Kahn, but Urbancic explained that city employees believe they cannot substitute their judgment for legislation enacted by City Council.

"Staff believes a conditional use is required for this, so city staff members can't say 'go ahead and do it.' They are bound by city legislation. They believe they don't have the authority to waive that," explained Urbancic.

While Urbancic usually advises both staff and the board, in a case such as this, when employees and board face off, he could only represent the board.

City staff had to bring in another attorney, Dennis Cronin, to represent them.

As he did previously, board member Charles Hughes cast the dissenting vote.

"Mr. Lazarus said, 'We have a valid permit,' but that's not true," Hughes said. "Mistakes are made. ... case law stands: The city can revoke that permit. I would like to see a compromise too, but I just don't think that's our position here. There's a route for negotiation, and that is the conditional use process."

Board member George Amerine was absent.