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Town close to falling into litigious Colony quagmire

STEVE REID
Editor & Publisher
sreid@lbknews.com

Here we go again.

Longboat Key government is working hard for its taxpayers to find a way to snatch defeat from the jaws of victory.

In this main event, we are entering the most litigious 17.2 acres on planet earth — the Colony Beach & Tennis Resort.

Just when you thought the Town of Longboat Key would be determined to develop strong, clear land-use and zoning rules, some of our community leaders are once again playing chicken with lawsuits, development rights and how to go about applying the rules in a fair and equitable manner. And it could all affect the outcome at the Colony as well as the chances that the Town gets sued.

 

A perilous path…

The Town had and has two main tasks relative to the Colony. First and foremost — stay out of litigation.

The second is to set up clear development rights so Longboaters, Colony owners and any developer knows the outer parameters of what is allowed or what the Commission and Town wishes to see on the site.

So far, the Town has succeeded in the first task and abysmally failed in the second.

In six years since the Colony doors closed, the Town is no closer to a zoning and land use policy for the property. In fact, we are in the same spot with 237 non-conforming units on a site that was zoned once upon a time to six tourism units per acre. And now, with a development proposal currently being voted on by Colony owners and another developer in the shadows proposing a completely different approach, we are at a crossroads filled with legal peril, ramifications and possibly even ethical breaches.

The Town has in fits and starts tried to develop a planned unit development process to consider a future Colony and other properties on the Key that may one day redevelop, but that effort has devolved into a convoluted mess if last week’s Planning and Zoning Board meeting is any indication of the progress. But before we talk about what is going wrong and why, we must look at a bit more history.

 

Context of chaos

To put the following Colony opinion in context, hold in your mind the protracted legal battle that divided our community, cost taxpayers and residents millions in legal fees, and ultimately led to the fire sale of the Longboat Key Club after a judge told the Town Commission that the development order it approved for the previous Key Club owners, Loeb Partners Realty, was not legal and even worse  — neither were the land use regulations we were using. We were told they were too discretionary, lacked clarity, etc. etc.

The sitting Commission did not listen to the Town Attorney who for months told them it was not the safe way to go. The Town attorney said you could assert the stance that this plan is legal, but the chance of success is 50-50. He said amending the Comprehensive Plan and making the appropriate land-use and zoning changes first before considering the application was the proper method.

But no, our Commission, wowed by the intoxicating scent of massive redevelopment, ploughed forward even as residents banded together and spent more than a million dollars fighting the plan.

And the residents were right and the residents won. They had to fight their own town to enjoy the protection from overdevelopment that they should have been able to count on their Commission to disallow.

Soon after, Jim Brown became mayor and has repeatedly stated that the judge got it wrong. In short, those who got the Town in the mess flatlined when it came to exhibiting any learning curve relative to our community, land use laws or what this Town wants to see in redevelopment.

 

Klauber lawsuits anyone?

Now hold in your mind the fact that in the 1990s former Colony Chairman Murf Klauber successfully sued the Town and was awarded a $13 million judgement, which the town settled for less in trade for no appeal.

Klauber asserted that the Town capriciously revoked a building permit he held for another resort he was developing. The Town asserted it had the right because he was not making sufficient progress.

We not only lost in court, we spent about $9 million in taxpayers’ money on the settlement. The lesson to be learned was to avoid at all costs using your like or dislike of a developer to sway policies and what is allowed and how one is treated. It also should serve as the all-time bellwether for avoiding sunshine violations and using the rules to force an outcome that is improper.

 

Here is what happened last week…

Last week, the Planning and Zoning Board considered again planned unit development language. The Planning and Zoning Director brought an ordinance that the board said had tremendous flaws and most importantly and fundamentally had the flaw of allowing mixed use on sites such as the Colony.

Chairman Jim Brown told the Director that she needed to bring back an ordinance that would not allow mixed use and said that residents want to see tourism sites remain tourism.

But there is major problem on so many levels with Brown’s statement, approach and the timing.

First, this is an arbitrary sentiment and observation. Many voters might say the Key Club has been approved for hundreds of additional hotel rooms to be built on New Pass. They may say that the former Hilton, which Mayor Brown and the Commission allowed to develop as the densest Tourism site on Longboat Key at more than 50 units per acre, will open by year’s end doubled in size.

Add to this that area traffic has been a tipping point issue for many as evidenced by the Floridays vote.

Add to this that the Town is enjoying a healthy economic commercial environment with most every business from Harry’s to the Lazy Lobster to Publix and even Realtors enjoying record years. In fact, Amore opened, Moore’s is being modernized and rebuilt as the Shore, Mar Vista is expanding, Whitney Beach Plaza and the Center Shops are busy, etc., etc.

Add to this that hundreds of property owners offer the homes and condos for rent as tourist rentals through VRBO and Homeaway.

In other words, the argument could be made that the last thing Longboat needs is to develop more and more tourism. It could be argued that a mixed-use Colony with an equal emphasis on residential investment and Tourism as in a mixed-use resort similar to the Ritz Carlton and the Key Club, albeit smaller, might make sense.

And one could argue the other way. The Town wants to see a new Colony rise from the ashes and that is what residents want and expect.

 

Timing off for new rules

But the fact is, the timing is now too late. The Town needed to make these decisions during some point over the past six years. They should have planned when everyone was fighting at the Colony, not when a development proposal has been approved by the board and that very proposal is out to all the voters for approval.

The greatest problem is that Chairman Brown’s desire to not allow mixed use would in particular preclude the very development owners are voting on. It would allow the very proposal offered by a rival developer, Manfred Welfonder, who the Colony board rejected.

What this means is the Town does not want to adopt at the 11th hour rules that particularly preclude the very development that right now is up for a vote.

The fact is, the Town lost its opportunity to create new rules outside of the shadow of influence. Now it should wait and it put itself in the position of having to lead by following and in this limited moment in time that is the safest course.

 

Wait, watch and learn

The Town ought leave the existing rules in place and wait, watch and learn.

First, we will learn if Whittall can get approval for his plan from unit owners and Andy Adams.

If he does, than he goes to the next step, which the Commission should be keenly interested in. In that step he will make his case to the community as a whole why mixed use and residential will work. Why the traffic will be manageable. Why it will be the best result. If he convinces the voters and they approve his residential referendum request, than the Town Commission will be in a reasonable position.

The Commission can then take the position that everyone knew the rules going in and that the property is zoned Tourism. Then Whittall can make his case. He can say residents want this, he can show his plan, he can request a zoning change to accomplish the project subject at each level to the Town’s approval and limitations. But the Commission would have the knowledge that he has everyone on board and the residents bless his plan.

If Whittall fails at getting approval from the owners, at least we did not develop legislation that would specifically favor one redevelopment approach over another.

If Whittall fails with the voters to get residential density, then the Mixed Use issue becomes moot.

In other words, we ought to now wait. We should not create and adopt planned development policies that only invite potentially catastrophic litigation. We need to slow the train down. We should not make the mistake as we did with the Hilton in hurrying up because a development is coming. That is when mistakes are made.

In short, stick with the land use rules in place.  A major and comprehensive Colony redevelopment plan is moving forward. We should not play chicken with developers.

We should stay out of harm’s way. Either that, or we will stupidly get hit in a crosswalk of our own creation.

 

 

 

 

 

 

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1 Response for “Town close to falling into litigious Colony quagmire”

  1. gene jaleski says:

    Voters need to realize that hyper-developer, never too much tourism, zealots such as Jim Brown and the current pro-tourism commission need to be replaced in March by a resident friendly commission. If not, these pro-tourism advocates will further choke our roads with foreigner tourists who are here for a good time and care nothing for our residents. This commission has already demonstrated that they will ignore the will of our property owners and use extra-legal means to further increase traffic so that developers can make millions. If it were somewhere else, one might question this commission’s motives.

    We need a new, and residential friendly commission.

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