Our View

 

Our View

 

Date: July 22, 2009
by: The Observer Staff

 
 

When you hear the Longboat Key Club and Resort executives and lawyers tell it, the conversation boiled down to this:

The Key Club met with Longboat Key planning and zoning officials and informed the town that it planned to dismantle 14 of the 18 tennis courts at Islandside. With the opening of the Longboat Key Tennis Gardens, there was no longer enough play on the Islandside courts to justify operating them. Key Club officials said they would keep four courts open, as well as locker rooms and showers, for guests of the Inn on the Beach.

The town’s response? Where does it say in the town code that you are allowed to do this?

The lawyer’s response: Excuse me? We thought this was still the United States; in most places in this country, citizens say, “Show me where it says I am not allowed to do as I wish with my property.”

So it began — another confrontation in Longboat Key between a property owner and the town government, enforcer of the town’s arbitrary and capricious rule of law, aka the town code.

As we now know, Longboat Key Planning, Zoning and Building Director Monica Daigle, with help from Town Attorney David Persson and town counsel Nancy Stroud, formally replied to the Key Club that it would need permission from the Town Commission via the formal (and expensive) application and public- hearing process to amend the club’s outline development plan and apply for site-plan exemptions.

These steps would be required for the Key Club to remove the fencing around the unused courts, plant grass on the old courts, remove the night lights and remove and erect new shade shelters.

In Daigle’s three-page letter to the Key Club, one of the town’s primary justifications for its position is that in 1992, when the Town Commission approved development plans for Regent Place and Regent Court, the commission allowed the Key Club’s Islandside tennis facilities to be counted toward Regent Place and Regent Court meeting the required recreational amenities.

Even though the town code doesn’t specifically say the Islandside courts must remain in perpetuity or as long as Regent Place and Regent Court exist, Daigle said in her letter the removal of the courts would require Town Commission approval.

The Key Club’s attorneys, Brenda Patten and John Patterson, believe the town codes require nothing of the sort. In a position paper on the subject, the club’s attorneys refer to the Regent Place ordinance, noting the ordinance “states that ‘off-site recreational facilities (golf and tennis) provided within the Longboat Key Club GPD shall satisfy 50% of the onsite recreational facilities requirement.’ The ordinance says nothing about how many tennis courts are needed, and the code has no guidance on this either.” What’s more, Patten says, the code says nothing about whether the recreational acreage applied to Regent Place should be from the golf course or tennis courts.

“Furthermore, there is nothing in the ordinance that requires the then-existing courts to remain as they were then, or that the number remain the same. Key Club Associates, as the owner of the property where the tennis courts were (and are) located, did not consent to any provision to keep or operate any specific number of tennis courts for the benefit of Regent Place, Regent Court and its developers.”

Not surprisingly, Patterson, who examined all of the same codes the town examined, reaches a different conclusion than the town:

“The after-the-fact imposition of what amounts to a restriction on this property, without the consent of its owner, that can only be changed with the consent of the town is not justified by the town’s code or resolutions.

“[The town’s] position ignores the rights that a property owner has to do as he wishes with his or her land unless the proposed use is prohibited by law, ordinance or regulation that is a valid exercise of local government ‘police power.’”

At this point, Michael Welly, general manager of the Key Club, says the club plans to send a letter back to Daigle expressing the club’s disagreement with the town’s position.

And so it goes. Round after round after round.
It makes every step of the Key Club’s plans to renovate and improve an excruciatingly nagging confrontation between a property owner — in this case, the town’s largest taxpayer and customer — constantly at odds with Longboat Key’s government. The Key Club is the serf. The town is the ruler, not the public servant.

Indeed, this has been the legacy and history of the Longboat Key Planning, Zoning and Building Department. The attitude is seldom: “Let’s see if we can make your request happen legally.” More often it’s: “No. Prove you are allowed.” The servant places the burden of proof on the master.

Eight years ago, we advocated as part of a Longboat Key Chamber of Commerce task force that the town’s entire zoning code be tossed and rewritten. As we shall see as the Key Club’s expansion plans move through the system, the “arbitrary and capricious” nature of the code will become a gold mine for lawyers and, we predict, a costly legal bill for the town’s taxpayers.

+ Unearned benefits
Public debate is healthy — as long as the conversation stays on a level that includes what commentator William Bennett describes as “intelligence, candor and good will.”

In that vein, the “My View” column last week by Robert White, chairman of the Islandside Property Owners Coalition, is deserving of response — at least in two areas:

“Unearned benefits”: While addressing some of his group’s concerns with the Longboat Key Club and Resort’s proposed $400 million expansion, White asked: “Exactly what ‘free, unearned benefit’ is being bestowed on the residents?”

The answer requires a hypothetical:

Let’s say the Town Commission does reject the Key Club and Resort’s $400 million expansion plan. And say Key Club Associates, owner of the club and resort, determines that it is not in its shareholders’ economic interest to scale back the project, and therefore it abandons any expansion altogether.

This would bestow many free, unearned benefits on the Islandside Property Owners Coalition. They will have achieved their objective of stopping construction of buildings that would have changed their eastern views. They will have stopped multiple years of construction, avoiding noise and disruption to their status quo. They will have blocked additional commercial activity in a new hotel and condos. They more than likely will have achieved their desire to keep the Islandside golf course driving range in tact. In short, they will have preserved their happiness and status quo at almost no cost.

These will not be “earned” benefits, because they will not have involved a mutual exchange of value, i.e. IPOC residents paying Key Club Associates a consideration for forgoing the club’s expansion. Except for the legal fees IPOC residents will pay (a pittance compared to the $400 million Key Club Associates is willing to invest), if the Key Club’s plans are rejected, IPOC residents will have become the recipients of a gift — the Town Commission bestowing a benefit by fiat.

• The right of expectation: “Islandside property owners have the right to expect that these amenities [the Islandside golf course and tennis courts] will continue to be maintained according to the original plan of development, without imposing the additional requirement that they be subjected to a massive and inappropriate expansion of the commercial operations of the Key Club.”

So said Bob White last week in the same “My View” referred to above.

When the Longboat Key Town Commission approved Arvida Corp.’s plans in 1979, there were no guarantees specified and voted into law that said the Key Club’s property would never change. There was no legal right bestowed. While property owners may have had the expectation that the Islandside tennis amenities would not change, an expectation is not the same as a right.

PUBLIC OR PRIVATE?


Longboat Key Commissioner Gene Jaleski three weeks ago suggested the town consider buying a five-acre block of undeveloped property south of Broadway between Longboat Drive South and Palm Avenue in Longbeach Village (behind the former chamber of commerce building). The owner, the William Conrad Saba family, is asking $2 million.

Meantime, Andrew Hlywa and Realtor Tina Rudek are trying to attract developers for an Old Florida resort on Hlywa’s four acres of Whitney Beach Plaza and other nearby properties.

Of the two, the preference should be obvious. Keep the property in private hands. The town’s taxpayers  shouldn’t buy it.
 

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