Town loses Key Club battle

Editor & Publisher

The $400 million redevelopment plan for Islandside at the Longboat Key Club and Resort is officially dead.

The Second District Court of Appeal and its panel of judges unanimously and decisively upheld a lower court’s ruling which quashed the development last December.

In short, the lower court ruled, and the appeal court upheld this week, that the Longboat Key Town Commission in approving the Key Club’s development order at Islandside violated its own zoning laws.

For Islandside Property Owners Coalition President Bob White, IPOC prevailing over the Town of Longboat Key in court is a vindication of what he and his group has fought for over the past three years and it underscores his dislike of the Town Commission’s actions.

“I think one outcome of this is several commissioners should lose their job,” said White. “They did not do their homework. The Commission bulled its way forward without giving much consideration to the legal ramifications or rights of property owners or residents. I certainly think a change in the makeup of the Town Commission needs to occur — certainly of those who were sitting and approved this illegal development. Citizens should vote accordingly at the next election.”

White received word of the ruling from Icard Merrill Attorney Robert Lincoln while on vacation in Maine. After a day digesting its significance, White said he takes great issue with the actions of the Town Commission.

“The commissioners who voted for this failed to do adequate due diligence as to the legality of what they were approving. They failed to get adequate legal advice and they did not get good legal advice.

They were so intent on approving this plan that they failed to consider the implications of what they were doing relative to town code and the rights of residents of this Key and as a result they have really damaged the governance of Longboat Key,” said White.


History of the challenge

The Islandside Property Owner’s Coalition along with the Sanctuary and L’Ambiance condominium associations petitioned the circuit court after the development order was initially approved, citing seven conflicts with the town code.

The circuit court agreed with IPOC and granted the Writ of Certiorari, which made the development approval invalid last Dec. 30.

The Town and Key Club collectively appealed that decision, saying the circuit court departed from the essential requirements of law in two respects: The town claimed the court exceeded its jurisdiction in re-weighing the evidence and not deferring to an interpretation of code that should have been controlled by a previous case, Rinker Materials Corp. v. City of Miami.


Anatomy of the decision

In the Appellate court’s written decision, the court went into great detail reaching its conclusion and wrote strenuously against the Town’s interpretations and arguments.

The appeals court wrote that the Town was incorrect, and “re-weighing of the evidence is simply not apparent. …To the contrary, we can see the circuit assiduously applied the appropriate factors in its first tier certiorari review.”

The court went on to say, “The town’s argument reaches too far and would encourage a judge to omit any meaningful background information in an order lest he or she be accused of impropriety. This hardly promotes judicial transparency, sound explanation and rational analysis. Our careful review of the record uncovers nothing suggesting that the circuit court relied on Ms. Simpson’s testimony to reach its decision.”

In its appeal, the town argued that the circuit court departed from the essential requirements of the law by not applying the controlling principals of Florida law from the Rinker Materials court case.

According to the town, the circuit court should have applied the town’s interpretation of the code because zoning regulations should both be consistently applied and construed to favor property owners.

Ironically, the appeals court said the Rinker Materials Corp. case actually bolstered the circuit court’s decision. The appeals court wrote, “The Circuit Court limited its analysis to the wording of the code; its eschewed extraneous evidence of intent. When a term in the code lacked definition, the circuit court utilized the proper rules of statutory construction, turning to the dictionary meaning to find the plain and ordinary meaning of undefined terms.”

That means that the appeals court supported the circuit court’s using plain and ordinary language to discern the meaning of the code. It then strongly wrote in its opinion, “no rule required adherence to the town’s self-serving interpretation.”

Then the town argued to the appeals court that its own code was ambiguous, thus requiring the court to defer to the town’s interpretation. Then the town cited a long-standing tradition of using that methodology.

The appeals court countered by writing that “tradition cannot displace the plain meaning of a local code.” And the court went on to further write, “while great weight must be given to the administrative construction of a statute, a court cannot afford such deference when the interpretation is unreasonable or erroneous.”

Further on the topic of interpreting land use laws, the court wrote in its opinion that the town’s longstanding interpretation of its own code cannot “tie the circuit court’s hands.”

The appeals court said that such a shifting sands approach to code construction would deny any meaningful review of local decisions. The court said that the town’s approach and what it was asking for does not promote consistency in the application of law. The court then wrote, “As the wording of its laws binds a legislature, the town is bound by the wording of its code. This mounts a bulwark against the town’s unfettered exercise of power.”

The court then cited Florida case law that determined that courts cannot amend ordinances, “as the town would have liked it to read, by ignoring the language of the code in favor of after the fact expert testimony as to legislative intent to fill the cracks. Because property owners and residents have every right to depend on the wording of the code.”

In a final conclusion, the appeals court wrote, “The trial court did not depart from the essential requirements of the law in quashing the development order. There’s no indication that the circuit court re-weighed the evidence, and the circuit court properly construed the code in accordance with Rinker Materials Corp. therefore, we deny the petition.”


Money problems

White objects to the fact that the town’s entire court battle in this challenge against IPOC was paid for by the Longboat Key Club, thereby insulating the Commission from public criticism and cost. He called it an “unholy alliance” between the town and developer against a property owners group.

For Key Club attorney John Patterson, the decision leaves the Club with the option of appealing yet again, or reapplying the development order under newly amended codes. Patterson does not recommend another appeal, which brings an even higher legal threshold.

As for submitting a reapplication, it could prove easier for the Club, but still has risks.

Many town codes were changed after the development order was approved to specifically address what the lower courts took issue with. Those amendments are being challenged by IPOC as well.

If the Club reapplies, White says the Commission needs to look at the original town code and require the developer more closely comply with the Town code as it existed prior to the original approval.

“We have to stop this outrageous procedure of continuing to modify the code to meet the Key Club’s desire. They need to look toward the true public interests and the right of property owners of the expectation that the commission would enforce the rules of the town,” said White.

But for the Commission and Patterson, the changes to the code are the very changes they say the community wants and the community needs to allow the resort to go forward without legal ambiguity.


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5 Responses for “Town loses Key Club battle”

  1. They are Bullies says:

    The Town Commission, specifically this seated body, has a history of doing exactly what they want to do, with a “Damn the Torpedoes” posture. They bully their way through decision making, because their lawyers are telling them essentially, “do what you want to do and let them sue.” Just look at your labor attorney in his dealings with town employees. That’s exactly the advice he usually gives. Why? But of course, it’s because the lawyers rack up all the spoils of litigation! It’s time to wise up and vote in some people who actually care about doing the job, rather than having the title.

  2. geneonlbk says:

    This from Observer 3/3/10

    Jaleski wants representation

    The commissioner who hates spending town money on consultants says the commission needs one now more than ever.

    Longboat Key Commissioner Gene Jaleski asked the Town Commission to consider hiring an independent third-party law firm, which specializes in land-use regulation, to help the commission sift through what’s legally permissible in the Longboat Key Club’s Islandside renovation-and-expansion project.

    Said Jaleski at the Feb. 1 regular meeting: “I’m uncomfortable moving forward without it.”

    Town Attorney David Persson was frustrated with the comment.

    “I have told you how this process works both privately and publicly,” Persson said. “I’m not sure how else to explain it.”

    Persson said that as the town attorney, he assists the commission in accordance with the town charter regulations and representing it in hearings.

    “You have every right to replace me if you like,” Persson said.

    Commissioner Peter O’Connor said he understood Jaleski’s concern.

    “Everyone in this case has counsel except the seven guys who are hearing the case,” O’Connor said.

    Persson, however, said the seven commissioners are indemnified from litigation as long as they play by the rules.

    “You are immune from personal liability as long as you are weighing the evidence appropriately,” Persson said. “But if you want to hire additional experts, you have the power to do so.”

    Said Commissioner Jim Brown: “Gene, you can get 10 land-use attorneys in here and you still won’t be sure what to do. You have to listen to the testimony and decide what it is you believe.”

  3. Joe Milller says:

    Well Loeb, too bad you put all your eggs into the ‘I’m John Patterson and Michael Welly we’re the best ever’ basket. Did you ever consider council and advice from a neutral entity that did not blow you smoke just to keep things going? I told you when IPOC offered what they would support, to ‘take the deal’. I told you it would not get better than that. Remember, they (well the Town) did present a very viable development during the hearings with a small decrease in total development. But unfortunately you kept bad management with bad representation and stuck to your greediness. Why so greedy? Pressure from the investors or just you, probably both. What an A 1 fiasco you all created and a waste of everyones money. Proud? Did you really need all the residential and tourism units you desired? To make ‘it work’, really, oh…for you. Too bad for the members, wait, we have members?? It’s obvious you, and no one cares about them. Been that way for years, its obvious and everyone knows. No need to sugar coat it.  Just put heads in beds, and if you piss guests off, who cares, they’d be gone. Just like the attitude towards members, but they have nowhere else to go. I’d surely find a place. I guess it’s time to open the doors (and courses) to the public. Although we all know no one wants to play the dog tracks, maybe for $20 just to say they were there. MW And JP did a great job of digging you a hole so deep, it is what it is for years to come. Way to go. Suggestion, if you plan to have at it again with a new plan under the new code, I recommend using the exact opposite methodology and tactics you used the first time around. 
    Too bad for Ocean, If they stick with it, they’re nuts. MW created a mess. Although you could make a 2 star Days Inn and a Bobby Jones type Club. 
    Print it Steve.

  4. geneonlbk says:

    Why does the Longboat Key Commission pay twice the going rate for legal counsel, year after year?

    And for what?

    What has this current commission accomplished?

    If there is any sense of accountability on the commission, I would think they would resign if, after three years, they have been unable to contribute to the em-betterment of their community.

  5. geneonlbk says:

    “Robert Half Legal has released its latest report which contains data on in-house counsel salaries for 2012. The report shows a salary range of $130,750 to $225,000 for lawyers with 10-12 years of experience, $96,750 to $184,000 for lawyers with 4-9 years of experience, and $76,750 to $118,000 for lawyers with 1-3 years of experience. First year attorneys working in house can expect a salary range of $64,000 to $98,250. These figures reflect an increase ranging from 3.4% to 1.9% from the most experienced lawyers to the first year positions from the 2011 figures. The Robert Half Salary Guide gives guidance on positions in demand, as well as methods for adjusting the figures based on where the in-house attorney will be working.”

    “Last year Persson billed out 2.048 hours at $227 per hour for a total of approx. $464,000.”

    I suggest that the town seek new legal counsel in the form of a full-time in-house attorney. The town desperately needs a complete review of its codes and ordinances. Paying very high legal fees for questionable legal advice should end immediately. An in-house attorney offers the best and most economical way to review and rework the town’s framework quickly and far less expensively that what we are now getting for more than twice the cost.

    The town can retain full-time well qualified legal counsel for less than half of what we are currently paying Mr. Persson for part-time work. Longboat Key needs a full-time attorney to work on town documents that have been neglected for the past twenty years. We also need to seek a new legal perspective, since we have gotten nowhere with our current arrangement over the past decade.

    Things must change if we are to move ahead. What we are doing presently is clearly not working.

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