The state’s Department of Community Affairs (DCA) ruled Wednesday, Oct. 20 that an ordinance amending parts of Longboat Key’s code is both consistent and inconsistent.
If the ruling is upheld, it would mean that non-residential uses are not allowed under the Comprehensive Plan in a Gulf-planned development, such as the Longboat Key Club and Resort.
Key Club attorney John Patterson, however, is not worried with the ruling and thinks the town can easily clarify the position of its Comprehensive Plan.
“Everything we are proposing for this project is tourism or residential,” Patterson said. “We believe the DCA misinterpreted the open-endedness of a Comprehensive Plan it approved for the town, and the town will defend its position.”
Patterson doesn’t believe the ruling can stand because it would defy the very essence of land planning and would make commercial structures all over the Key that are in planned developments, including Publix, non-conforming.
The Longboat Key Club and Resort submitted in March seven changes to the code, in an effort to diminish much of the legal challenges presented by the Islandside Property Owners Coalition, which opposes the club’s $400 million renovation-and-expansion project.
The DCA was charged with deciding whether the Town Commission’s decision to adopt changes to its codes was consistent with the town’s Comprehensive Plan.
IPOC filed an administrative appeal July 14 challenging the approved code changes.
In three of the five challenges alleged by IPOC, the DCA ruled that the town’s Comprehensive Plan was consistent with the code changes.
Those challenges included alleged inconsistencies of allowable clustering of density and open-space requirements in Gulf-planned developments (GPDs) and an alleged inconsistency with allowing commercial tourism (hotels/motels) in GPDs.
But in the other two challenges, the DCA ruled that IPOC’s challenges were partly consistent and partly inconsistent.
Those challenges include claims by IPOC that non-residential uses, intensities and densities are not allowed by the Comprehensive Plan and that changing the permitted amount of non-residential land (commercial, office and other non-residential uses) within a GPD from 5% of the area to 15% is inconsistent with the Comprehensive Plan.
And even though DCA ruled in favor of the town on the challenge by IPOC that no commercial tourism (hotels/motels) is allowed in GPDs, the DCA also states that when three subsections are read together, planned developments and GPDs prohibit permitting tourism uses in those same zoning districts.
IPOC attorney Michael Furen told The Longboat Observer he was pleased with DCA’s ruling.
“I think DCA has made it abundantly clear that several of IPOC’s core positions were correct, specifically with the core position that the plan doesn’t permit commercial and tourism uses in a GPD,” Furen said.
“Our initial read of the decision is that DCA found the zoning code amendments that allow expanded commercial uses within the GPD are inconsistent with the town’s Comprehensive Plan.”
Furen said DCA’s ruling provides direct support that the club’s Islandside project approval is inconsistent with the Comprehensive Plan.
“The town improperly interpreted and applied this plan and its zoning code to approve this project,” said Furen.
Although Patterson says the inconsistency ruling regarding how much commercial is allowed in a GPD would not hamper the Islandside project, he said DCA’s inconsistency ruling regarding the disallowance of anything besides residential uses in the GPD raises concern.
Town attorney David Persson, meanwhile, told the Town Commission at its Oct. 21 regular workshop that the ruling “shouldn’t come as a surprise to anyone.”
“We know there are some issues out there with the Comprehensive Plan,” Persson said.
Persson, however, expressed some dismay over the ruling.
“The way the logic is treated is disconcerting,” Persson said. “But I think that’s because the state is caught between a rock and a hard place because they approved your Comprehensive Plan as written. They may not like it now, but that’s what it is and how it works.”
DCA’s ruling means the town will appeal to an administrative law judge, who will schedule future hearings to hear from both the town and IPOC counsel before taking an official position on DCA’s ruling.
If the judge agrees that the town’s actions were inconsistent with its Comprehensive Plan, the matter could be referred to a district court of appeals if the town chooses to appeal the decision.
Patterson also told The Longboat Observer that the town will have the option of making simple amendments to the codes it changed to further clarify its position with the state and avoid the administrative process that’s looming.
Contact Kurt Schultheis at firstname.lastname@example.org.