Florida Keys News
Saturday, May 4, 2013
Homeowner wins right to paint white
Ruling: HARC can't control choice of 'energy saving' devices

A judge ruled Tuesday in favor of a Bahama Village property owner who's been at loggerheads with the city for four years over his use of white, heat-reflecting, energy-saving roof paint.

But the four-year legal row between Victor Cushman and the city of Key West could be far from over as the city mulls appealing circuit Judge David Audlin's ruling, which states the Historical Architectural Review Commission (HARC) can't tell property owners what "energy saving devices" they may use, said Cushman's attorney, John Marston.

Cushman has clashed with HARC since 2010, when the board told him the white-painted roofs on his 720 and 726 Emma St. properties didn't comply with its rules, which state roofs must be silver or clear-coated.

The city previously ordered Cushman to use a different environmentally friendly paint that was a "buttonwood gray" color and not the white he preferred.

Cushman could not be reached for comment.

Audlin agreed that Cushman's paint falls under a state statute that defines and allows it as an "energy device," meaning local laws cannot prohibit its use.

Section 163.04 states: "The adoption of an ordinance by a governing body ... which prohibits or has the effect of prohibiting the installation of solar collectors, clotheslines or other energy devices based on renewable resources is expressly prohibited."

The decision basically means the city can't legally trump the state statute.

"What this ruling practically means is, suppose you're living in a HARC district and you want to put a solar collector on your roof and HARC says, 'No, we want something less conspicuous than the panels you've chosen,'" Marston said. "Well, Audlin's ruling means that HARC can't say that. They can no longer dictate which 'energy saving devices' you chose to use."

Audlin made the ruling from the bench and his written ruling had not been published on Friday, but he told Marston to prepare a proposed order to codify the ruling that would be reviewed by the city, Marston said.

The city is mulling whether nor not to take Audlin's ruling to the 3rd District Court of Appeal, said Assistant City Attorney Ron Ramsingh.

Ramsingh declined to comment at length on the matter, saying the case could be ongoing, but he did say: "I don't think it was the legislative intent with this statute to affect historic buildings."

And that sentiment speaks to the heart of the argument. Audlin's ruling could feasibly clear the way for someone in a HARC district to erect windmills and cover their property in solar panels or skylights.

Any such installations still have to have an energy-saving capacity that can be proven, but Audlin's ruling is clearly a loss for HARC, attorneys on both sides said.

HARC Chairman Rudy Molinet declined to comment for this story, citing the legal case.


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