Colony asks for extension
Editor & Publisher
The Colony Association of Unit owners officially petitioned the Town of Longboat Key on Friday to grant an 18-month extension to allow the grandfathering of the Resort’s use and 237 units past a town-imposed Dec. 31 deadline.
The request was made by Carlton Fields Attorney Don Hemke, who represents The Association, in a letter to the Town asking that the matter be considered in September and voted upon by the Town Commission — the body that must approve any extensions to the grandfathered rights beyond the year-end date.
Hemke made his case in the 20-page letter (printed in its entirety below this story) that gives a history of the Colony litigation and his party’s case for the benefit to the community in granting an additional 18 months.
In short, Hemke argues that the goals of the Town, the Town’s adopted Mission Statement and Vision Plan as well as the parties involved and the community as a whole are all served best by a completely restored, renovated or rebuilt Colony and that resolution by year-end is not feasible.
Hemke writes: “Due to ‘legal restraints,’ however, the Colony cannot be re-opened as a first-class tourist-oriented development prior to December 31, 2012. Most optimistically, a first-class resort at the Colony cannot be reopened until June 30, 2014. The Association certainly appreciates the frustration the Town has voiced concerning the delay in reopening a first-class resort at the Colony. But the Association would point out that its 232 Unit Owners also are frustrated because the ‘legal restraints’ at the Colony have precluded the Unit Owners from personally using their units and from obtaining economic benefits from their units for more than two years (while at the same time being assessed approximately $1,650,000 to maintain, preserve development rights, and plan and implement a first-class rehabilitation or redevelopment at the Colony.”
Last March is when the Town Commission extended the right for unit owners to grandfather the resort use until the end of 2012. Town law says an abandoned use can only be grandfathered for one year or the zoning of the property reverts to the current, or in the case of the Colony, the underlying zoning.
At the Colony site, that underlying zoning is 6 units per acre, which would effectively reduce the historical unit count from 237 to about 120 on its near-18 acre site.
As testimony to the complexity and distance from any resolution of the Colony litigation, Hemke wrote that court-ordered mediations have been impassed and all the settlement attempts thus far have been unsuccessful and many of the legal determinations are still to be carried out.
Hemke writes that if the Town does not continue the grandfathering, “The Unit Owners and the Association would have no alternative but to proceed to resume tourism operations akin to what was in existence as of mid-August 2010 without the first-class rehabilitation or redevelopment being in place in order to avoid losing their ‘grandfathered’ rights. The alternative of resuming limited tourism operations without first-class rehabilitation or redevelopment at the Colony would, however, be highly detrimental to the Colony long-term and to Longboat Key.”
Hemke spells out the commonality of the goal of a complete rehabilitation of the property:
“Indeed, Dr. Klauber, the Colony’s founder, Colony Lender, Longboat Key media, the Town Mayor, Town commissioners, and Town staff appear to share the view that a quick-fix reopening, without first-class rehabilitation and redevelopment, would damage the Colony long-term and would damage Longboat Key. There is no public interest in attempting to eliminate the Colony’s ‘grandfathered’ density. Indeed, such elimination would be contrary to the public interest. If the ‘grandfathered’ status were eliminated, the Town would lose up to 142 units, which have traditionally been used for tourism (232 ‘grandfathered’ tourism units minus 90 tourism units which would be permitted if there were no ‘grandfathering’).
Hemke said The Association would be willing to provide periodic status updates to the Town during the time extension, as was suggested at the Town Commission meeting of July 2, 2012.
The Town will likely act on the petition in September, when it returns from its summer hiatus.
Hemke writes that the Association is joined by Colony Lender in the request. Colony Lender is controlled by Longboaters Randy Langley and David Siegal and holds a 15 percent interest in the three recreational acres at 1620 Gulf of Mexico Drive, holds the mortgage on the Klauber-related entities’ 80 percent interest in the three recreational acres, and holds a mortgage on other Klauber-related entities’ interests at the Colony. Hemke is also joined by Breakpointe, LLC, which holds a five percent interest in the three recreational acres.
The General Partnership, controlled by Murf Klauber, is quoted as supporting the petition in spirit by Hemke, but is not legally joined by Hemke in this request.