Our View

 

Our View

 

Date: May 12, 2010
by: The Observer Staff

 
 

“Are we changing the policy?” asked Longboat Key Commissioner Hal Lenobel.

Town attorney David Persson: “Absolutely not.”

Lenobel: “Do you believe the comp plan allows this clarification?”

Persson: “Yes. At the end of the day, you have the power to do this.”

Lenobel asked these two questions two weeks ago at the Longboat Key Club and Resort’s zoning-code hearing, witnessed in an overflowing Town Commission Chambers.

In spite of Persson’s assurances, he also wisely pointed out that, even though he believes the Key Club “is more right” on its application, in matters as contentious as these “you start with the idea you’re going to be sued.”

Indeed, especially on Longboat Key.

And to his point, attorney Michael Furen, representing the Islandside Property Owners Coalition, has served the town a draft of a petition he has prepared to trigger a legal and administrative challenge to the state, protesting what IPOC apparently believes to be inevitable: the Town Commission’s approval of the Key Club’s application.

For starters, you’d have to be clueless to think IPOC would not challenge the outcome if the Town Commission approves the Key Club’s application. That has been inevitable from the start.

But the tactic is, well, Furenesque and IPOCish — aggressive, grating, exhausting, which is clearly part of their strategy. Wear down the enemy. You can see an attempt here to prompt commissioners and taxpayers to think about the mounting legal costs for taxpayers as IPOC’s challenge moves through the lengthy appeal process.

And that process indeed will be lengthy. Read the text below; you can see how the appeals could go on for seven months if carried to the end.

Another effect of IPOC’s legal threat could be to prompt Key Club officials to compromise. You can bet the club’s top executives and legal team have had many discussions in that vein.

But what compromise would be acceptable? IPOC even opposed 20 or so townhouses six years ago, an indicator that compromise means no more than remodeling the Islandside golf course. Don’t compromise.

Longboaters should resign themselves to an exasperating process that is far from over. And likewise, the threat of future legal costs from IPOC’s appeals should not deter Longboat taxpayers from urging the Town Commission to carrying this process to the end. Fortunately and unfortunately, this is the way Florida’s development system works. It’s laborious and costly no matter what.

But let’s also not ignore the other side of the coin. Denying the Key Club’s application has risks as well. Town attorneys and staff have indicated the Key Club’s proposal can be approved legally. To deny it could be far more costly to taxpayers than the appeal process. Remember the Klauber suit?

Emotional rhetoric and threatening tactics are understandable. This is an emotional issue. But when they surface, they tear at the fabric of what we know to be a high-quality small town. Take, and stay, on the high road.
 


How the Appeal Process Works
The following excerpts are from Florida Statutes 163.3213: Administrative review of land development regulations:

(3) After the deadline specified in s. 163.3202 for each local government to adopt land development regulations, a substantially affected person, within 12 months after final adoption of the land development regulation, may challenge a land development regulation on the basis that it is inconsistent with the local comprehensive plan. As a condition precedent to the institution of a proceeding pursuant to subsection (4), such affected person shall file a petition with the local government whose land development regulation is the subject of the petition outlining the facts on which the petition is based and the reasons that the substantially affected person considers the land development regulation to be inconsistent with the local comprehensive plan. The local government receiving the petition shall have 30 days after the receipt of the petition to respond. Thereafter, the substantially affected person may petition the state land planning agency not later than 30 days after the local government has responded or at the expiration of the 30-day period which the local government has to respond. The local government and the petitioning, substantially affected person may by agreement extend the 30-day time period within which the local government has to respond. The petition to the state land planning agency shall contain the facts and reasons outlined in the prior petition to the local government.

(4) The state land planning agency shall notify the local government of its receipt of a petition and shall give the local government and the petitioning, substantially affected person an opportunity to present written or oral testimony on the issue and shall conduct any investigations of the matter that it deems necessary. These proceedings shall be informal and shall not include any hearings pursuant to s. 120.57(1). Not later than 60 days nor earlier than 30 days after receiving the petition, the state land planning agency shall issue its written decision on the issue of whether the land development regulation is consistent with the local comprehensive plan, giving the grounds for its decision. The state land planning agency shall send a copy of its decision to the local government and the petitioning, substantially affected person.

(5)(a) If the state land planning agency determines that the regulation is consistent with the local comprehensive plan, the substantially affected person who filed the original petition with the local government may, within 21 days, request a hearing from the Division of Administrative Hearings, and an administrative law judge shall hold a hearing in the affected jurisdiction no earlier than 30 days after the state land planning agency renders its decision pursuant to subsection (4). The parties to a hearing held pursuant to this paragraph shall be the petitioning, substantially affected person, any intervenor, the state land planning agency, and the local government. The adoption of a land development regulation by a local government is legislative in nature and shall not be found to be inconsistent with the local plan if it is fairly debatable that it is consistent with the plan. The hearing shall be held pursuant to ss. 120.569 and 120.57(1), except that the order of the administrative law judge shall be a final order and shall be appealable pursuant to s. 120.68.

(b) If the state land planning agency determines that the regulation is inconsistent with the local comprehensive plan, the state land planning agency shall, within 21 days, request a hearing from the Division of Administrative Hearings, and an administrative law judge shall hold a hearing in the affected jurisdiction not earlier than 30 days after the state land planning agency renders its decision pursuant to subsection (4). The parties to a hearing held pursuant to this paragraph shall be the petitioning, substantially affected person, the local government, any intervenor, and the state land planning agency. The adoption of a land development regulation by a local government is legislative in nature and shall not be found to be inconsistent with the local plan if it is fairly debatable that it is consistent with the plan. The hearing shall be held pursuant to ss. 120.569 and 120.57(1), except that the order of the administrative law judge shall be the final order and shall be appealable pursuant to s. 120.68.
 

(6) If the administrative law judge in his or her order finds the land development regulation to be inconsistent with the local comprehensive plan, the order will be submitted to the Administration Commission. An appeal pursuant to s. 120.68 may not be taken until the Administration Commission acts pursuant to this subsection. The Administration Commission shall hold a hearing no earlier than 30 days or later than 60 days after the administrative law judge renders his or her final order. The sole issue before the Administration Commission shall be the extent to which any of the sanctions described in s. 163.3184(11)(a) or (b) shall be applicable to the local government whose land development regulation has been found to be inconsistent with its comprehensive plan. If a land development regulation is not challenged within 12 months, it shall be deemed to be consistent with the adopted local plan.
 


Sound Off...A Correction and Comment
We were wrong two weeks in a row. Here’s the correct version: The Longboat Key Town Commission voted to renourish the beach only with one type of sand, not a dual layer. Meantime, another reader responded to our Sound Off! questions:

WHITE SAND
Dear Editor:
I live in Tampa and have been visiting Longboat for years. I have fond memories of taking my college friends to Longboat to showcase the beautiful white sand beach and clear greenish blue water.

Years later, I am fortunate to afford my own condo at Longboat. Although my unit overlooks the Intracoastal Waterway, I frequent the beach on the north end of the Island. It is a shame that such a beautiful white beach has now been transformed into a drab gray beach.

My property taxes have gone down for the last two years by about 33% because of the housing market. I would gladly pay my old property taxes to restore our former white powder paradise to its previous grandeur.

I cannot vote in Longboat Key because I maintain my primary residence in Tampa. I pay taxes and am happy to pay more to have the absolute whitest possible beach.

John L. Holcomb
Tampa


 

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