IPOC rationale, strategy explained
STEVE REID
Editor & Publisher
sreid@lbknews.com
Why the IPOC lawsuits? How much will they cost and who will pay? Why is this an island-wide issue?
These questions have been a topic of discussion among all concerned with the town’s approval in June of the Longboat Key Club’s Islandside redevelopment proposal. Sanctuary Condominium President and IPOC Vice President and Treasurer Michael Seery wrote the following to address the questions swirling around the community, IPOC’s strategy, his take on the challenges and what lies ahead.
Why didn’t we just ‘move on’ after the Town Commission approved the Loeb/KCA ordinance?
The time to move on was when the commission approved the Spoll-Simpson ordinance at first reading. This gave Loeb everything they wanted except condo units on the open space of the north parcel. IPOC showed its willingness to move on by agreeing to this compromise, that gave it very little, and committing not to appeal. Loeb had a hissy fit that the commission only gave them 95 percent of what they wanted. They refused to move on unless they got everything they demanded. The commission folded and approved on second reading the Loeb-written ordinance, knowing the result would be litigation. Here is the town attorney telling the commissioners that:
“Dear Mayor Spoll and commissioners, just a reminder that one of the actions that may be taken against the town’s decision will be a challenge to its Comprehensive Plan. If this happens, the court’s review is ‘de novo,’ meaning that it will look at this anew and not be confined to the record of your proceedings. (A Writ of Certiorari, on the other hand, directly challenging your decision, is limited to the record that was before you when you made your decision.) Any statements by you about the Comprehensive Plan will be discoverable (i.e., you may be asked questions about them under oath either at deposition, trial or both.) I’m not suggesting that you should not comment (that’s up to you). Nor should it prevent or discourage any effort to amend the comp plan to expand its description of what is or is not appropriate for the future land uses of the town. Rather, I am suggesting caution when making statements and would be pleased to discuss it with you if you have any questions.”
Why does IPOC claim this issue is important beyond Islandside?
If this plan goes forward it will set the stage for other large tourist developments on the key; changing the character of Longboat Key from the stated goals of the 1984 referendum that cut commercial and tourism density and defined the key as a primarily residential community with limited tourism and commercial.
When will it be time to move on?
After resolution of the De Novo appeal, or if it becomes apparent that our case is no longer viable.
How many and what appeals have been filed?
Three. One is Administrative and a hearing on that started last week; a decision is expected mid-September. The other two are court appeals; both are sharply focused and are aimed at protecting your property rights, in summary:
• De Novo appeal is to the Sarasota Circuit Court and constitutes a request for a “new trial,” as it were, on the limited issue of whether the ODP/LIS amendments are consistent with the Comprehensive Plan. New testimony by all sides would be taken and new evidence would be submitted; it would be similar to the quasi-judicial procedure leading up to the approval but focused on the Comprehensive Plan issues.
• Certiorari (Record) appeal alleges the town failed to follow the essential requirements of the law, i.e., its own code, as amended. Winning would invalidate the approval. It was an attempt to protect itself from this appeal that the Key Club/Loeb requested the code changes.
How will we fund the appeals?
Icard Merrill understands that IPOC will be paying the bills and that there is no obligation on the part of either Sanctuary or L’Ambiance as individual associations for legal fees.
According to some attorneys under Florida statutes, an association board has the authority to assess owners for such a cause, however that approach used by some associations has long ago been ruled out by the SNC Board and our attorney has repeatedly reminded us that Sanctuary Community governing documents do not empower the board to do that.
So at The Sanctuary we are doing as we did during the legislative phase, requesting contributions to the ‘Sanctuary Voluntary Contribution Fund—IPOC.’
Which appeal is the most important?
The De Novo appeal. The challenge here would be that the approval of the ODP amendment is inconsistent with the Comprehensive Plan. If successful, it is the most difficult to fix in that it would require a Comprehensive Plan amendment. That is especially so if the proposed “Hometown Democracy” amendment to the Florida Constitution passes in November 2010, which is being aimed at stopping Florida local governments doing what the LBK Town Commission just did.
You may recall that at the beginning of all those 23 days of hearings the town attorney advised the P&Z Board to address the Comprehensive Plan before considering the Loeb requested ordinance.
IPOC attorney Mike Furen has always maintained that a court is a better audience for our property rights concerns than the political process. We are now finally at that point. Why ever would we give up now?
Are we just throwing everything up against the wall and hoping something sticks? Why not focus our resources on the De Novo appeal?
Two elements of the cert appeal have significant potential for a judicial ruling in our favor. These are the treatment of the garages as separate structures for the purposes of calculating the 30 percent view angle and the 50 percent reduction in the parking requirement for the conference center as being accessory to the hotel, rather than independent use.
Failure to file the cert action by July 30 would have forever prevented IPOC and each of the associations from ever challenging the Town Commission’s ordinance approving Key Club’s plan on the basis that it and Key Club’s plan do not comply with and violate the town’s land development regulations and zoning code.
Why are only L’Ambiance and Sanctuary co-plaintiffs in the legal appeals and not the other condo associations as well?
L’Ambiance and Sanctuary are the only condominium associations in IPOC that actually are the owners of real property, i.e., L’Ambiance owns a condominium unit and TSALKCCAssoc owns all the common real property within the boundaries of the Sanctuary site except for the parcels that are included within the boundaries of the four residential condominiums.
The common areas of the other condominium developments are not owned by the respective associations but are owned by the unit owners in undivided shares appurtenant to their units.
The reason it was important from a “standing” perspective that L’Ambiance and TSALKCCAssoc be named plaintiffs was that they owned real property in proximity to the proposed development and IPOC did not.
Is the appeal process risk free?
To quote Bob White: “Everyone needs to keep in mind that while there is some risk associated with this action, as with just about everything in business, we would not be doing this if there were not significant negative considerations for all property owners behind the gates. I think that is unrealistic to expect that our actions in asserting our rights be entirely risk free.”
If we all avoided risk as the primary reason for inaction in defending our rights, we will forever be at the mercy of anyone who would take advantage of this policy. Unless we file a frivolous suit there is no cause of action against us. A SLAPP suit by the Key Club, which is unlikely given that the appeals all name the town as the defendant, would result in the award of attorney’s fees and penalties against the club if they lose. The actions that are filed are not subject to “loser pays” provisions.
