Town, Key Club make cases to appeals court

The Longboat Key Club and Resort has yet to break ground on its proposed $400 million Islandside redevelopment-and-expansion plans in the four years since it was unveiled, but the plan is definitely going places.

First, it went to Temple Beth Israel for 22 public hearings.

Then, it was off to the Lynn N. Silvertooth Judicial Center.

The latest stop happened Tuesday, June 5, at the Lawton M. Chiles Jr. Courthouse in Lakeland, where the Second District Court of Appeals heard oral arguments in the town’s and Key Club’s second-tier challenge of a decision by Sarasota Judge Charles Roberts. Roberts had granted a writ of certiorari to the Islandside Property Owners Coalition and L’Ambiance and Sanctuary condominium associations in their challenge of the development order approved by the Longboat Key Town Commission in June 2010.

Judges Nelly Khouzam, Edward LaRose and Robert Morris Jr. heard the case, in which both sides had 20 minutes to present arguments. In its petition, the town asked the appeals court to quash the circuit court’s order. The Key Club is paying for all town costs associated with the appeal.

Tampa attorney Sylvia Walbolt, shareholder of Carlton Fields, argued on behalf of the town that the 12th Judicial Circuit essentially reweighed evidence from the commission hearings in granting the writ. The court singled out testimony from the town’s former Planning Zoning & Building Director, Monica Simpson, that supported disapproval of the project without mentioning a “mountain of evidence” that would have supported its approval, Walbolt said.

As an example, Walbolt said that town codes’ had a clear formula for determining the site’s parking needs; however, the court, instead, focused on town staff testimony in which they expressed concerns about parking during special events.

“What is cited is always evidence that is contrary to the approval,” she said.

In his December ruling, Roberts found that the development order approved commercial uses that weren’t spelled out as a permitted use in the Gulf-planned development district, which allows for a mix of residential and nonresidential uses.

However, Walbolt cited testimony from Simpson in which she said that anything without an “R” in front of it — i.e. “residential” — was typically understood as the undefined “nonresidential” under town code. Nonresidential was understood to mean a number of uses, including tourism, commercial, office and marina, according to the testimony.

In the town’s petition and in court, Walbolt argued that the Circuit Court should only have looked at whether there was competent substantial evidence to support the town’s issuance of development order and that local zoning regulations should be applied and constructed to favor property owners when possible, according to principles of Florida law.

But Robert Lincoln, who represents IPOC and the condominium associations, argued that the key issue was the appeals court’s jurisdiction.

For the court to grant second-tier review, he argued, it would have to determine that one of three things occurred during first-tier review: that the court violated due process, departed from the essential requirements of law or failed to have findings supported by substantial evidence.

The appeals court would have to find that not only did the Circuit Court misapply the law but did so in a particularly egregious manner, Lincoln argued.

He said that the court found that the town’s codes were not unclear or ambiguous.

“The court did an exemplary job of systematically emphasizing what the codes actually said,” Lincoln said.

In her rebuttal, Walbolt said that the court must give the broadest interpretation possible to the code.

“Does that mean I need to disregard a dictionary definition?” Judge Morris asked.

The court shouldn’t enforce a code that is contrary to its intent, Walbolt said.

The hearing lasted a little more than 40 minutes.

If the court rules in favor of IPOC and the associations, it could issue a per curiam affirmed ruling, in which it would essentially uphold the lower court’s ruling and deny the town’s and Key Club’s petition without a written ruling. The court will issue a ruling if it finds in favor of the town and Key Club and could do the same if it upholds the granting of the petition to IPOC and the associations.

A per curiam affirmed ruling could come in as little as two weeks. If the court writes an opinion, it could take anywhere from a few months to a year.