Town, IPOC still courting Key Club

STEVE REID
Editor & Publisher
sreid@lbknews.com

In the very same week the Longboat Key Club resubmitted an application under amended Longboat Key zoning laws to develop its Islandside property, the legality of the laws that were changed and the manner in which they were changed went under attack in a Sarasota courtroom.

Islandside Property Owners Coalition attorney Robert Lincoln argued in Sarasota Circuit Court Judge Lee Haworth’s courtroom on Thursday that recently amended zoning codes and comprehensive plan changes were not executed properly by the Town and are not permissible.

The Town of Longboat Key, represented by attorney Kelly Fernandez, defended the land uses changes.

After the three-hour proceeding, Haworth asked for written summaries of the arguments from each side and to present the written argument in the form of a ruling by Oct. 1.

If the judge finds in the favor of IPOC, the Key Club and Town are faced with several options: The Town could appeal the ruling; the Town could correct some issues through changing yet-again certain land use codes, or, the Town could opt to hold a public referendum on allocating additional units to the Islandside planned development if that argument is supported by a judge.

Technically, this is one prong in IPOC’s actions fighting the Islandside redevelopment plan, which was approved in 2010. This action seeks declaratory relief from the judge — in essence a determination that the zoning changes initiated by the Town to accommodate the application are inconsistent with the Comprehensive Plan.

The Town amended several land use rules to ensure that if the plan had to be reconsidered by the town because an initial approval was reversed, it would pass legal muster. And that is what happened.

IPOC won in both the lower court and on appeal it was upheld that the Town’s initial approval of the Islandside redevelopment was illegal and not in conformance with Town Code.

While that battle was being fought, the Town amended specifically the laws and comprehensive plan to remove the contentious parts of the code in anticipation of the likelihood of a resubmittal. Those changes are now under attack.

IPOC’s arguments against the amended codes focus on several points. One is that to add additional tourism units to the Islandside property requires a public referendum due to the Town’s density cap imposed in the 1984 Comprehensive Plan. Lincoln says the Tourism zoning use at the site and the tourism units must be approved by voters via a referendum.

The Town argues that the Town does not distinguish between tourism units and residential units when determining density — a unit is a unit — and since the overall density is available, it is moot whether it is a hotel unit or residential unit.

IPOC argues that the Inn on the Beach tourism units currently in existence are a grandfathered use and not compliant. Lincoln said tourism units have a higher impact than other units.

Another argument made by IPOC is the Town failed to amend its zoning map when it created an amended zoning district. Lincoln said this oversight denied due process and was not properly noticed.

“Inadvertently or not, the Town did not do what was required — it violated due process,” Lincoln told the judge.

Another argument is that the Town’s recent amendment to remove the requirement for written findings of fact in considering redevelopment proposals is a due process violation.

Lincoln also argues that the Town must specify what uses and standard of uses are allowed in the development area and the Commission does not have “unfettered discretion.” Lincoln says no objective criteria are in place to govern the proposed uses. Lincoln argues that the Town has provided insufficient and non-specific standards.

Lincoln also argues that the Commission’s removal of any setback requirement leaves unfettered discretion to the Commission of appropriateness.

In defense, Fernandez argued that the Town’s “1984 Comprehensive Plan is not a beacon of clarity and not to the standards of modern day Comp plans.”

Fernandez said as for allowing additional tourism units at Islandside, that the Town has always recognized the underlying zoning as permitting up to 5.05 units per acre at the Islandside site. She said that encompasses both or either tourism or residential.

“Mr. Lincoln wants to look beyond the plain use of density,” said Fernandez.

The judge asked Fernandez why the Town distinguishes between Tourism and residential zoning and continues to do so on zoning maps. Fernandez replied that while the Town does form distinctions in certain areas, it does not at Islandside.

The judge then asked Fernandez how much discretion does she see this allowing: he asked if a Seven-Eleven or restaurant with a drive-through could be approved.

“I have seen several zoning codes and they seem to fairly concerned with mixture of uses,” said Judge Haworth.

Fernandez said there is nothing explicit in Town Code that says it cannot be one use or another but that other constraints come into play.

The judge then asked Fernandez if a developer could reach a zero-lot-line or have no setback.

Fernandez said other provision as well would or could come into play such as lot coverage percentages and percentages of uses allowed. She said the planned development zone was created “to encourage flexibility.”

“Does the zone have a setback or not? Is at the discretion of the Commission?” asked the judge.

“Would that not lead to a fairly inconsistent result? One Commission could say this requires a setback and another one does not — it is pretty unlimited up to the limits of the property itself,” continued the judge.

Fernandez said it is considered within the totality of the application and while there are no “book end” standards, there are quite a bit of standards adopted by the commission.

As for written findings of fact, Fernandez said they are not required and many communities do not have that standard. As for the zoning map, Fernandez said the Town has already applied to amend the map.

“They are textual changes; not rezonings,” Fernandez added.

While the Longboat Key Club did submit a request for a pre-application conference to discuss reapplying for the Islandside development, it could be stalled by the court action.

The Key Club application can go forth unfettered if the judge sides with the Town. If it sides with IPOC, it would have to either appeal, change the development or try to address through further code modifications the issues the judge has with the current zoning laws.

Once a formal application is deemed complete by the Town, a public hearing will be held before the town’s Planning and Zoning Board. The Planning and Zoning Board will make an advisory opinion to the town commission. The Key Club hopes to gain approval by Summer 2013.