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Avenues to fight housing are narrow

If projects meet zoning and financial needs, there is very little opponents can do, lawyers say.

By JEFFREY S. SOLOCHEK, Times Staff Writer
© St. Petersburg Times
published April 21, 2002

Hundreds of Spring Hill residents have made it perfectly clear they do not want affordable apartments to rise near their more upscale homes.

They have formed action committees, collected hundreds of signatures, and inundated county offices with phone calls and letters. They raise all sorts of concerns, from possible increases in crime and traffic to the potential decrease of their property values, as the reasons for their opposition.

Some of their points could lead to legitimate challenges against the developments, experts say. Others probably are not viable avenues for action.

Asking government to discriminate against a type of apartment because of who might live there is perhaps the worst line of defense, said John Shubin, a Miami land-use lawyer who regularly represents neighbors against developers.

"Any time you're dealing with the issue of affordable housing as contemplated with the Fair Housing Act, both the neighbors and the government should be very cautious and conservative in challenging the action," Shubin said.

If the land is zoned for apartments, a builder can put in any type of apartment, lawyers agreed. More generally, St. Petersburg land-use lawyer Don Mastry said, a property owner is entitled to use the land in the manner for which it was zoned.

"If you file an application and it meets the requirement of the zoning ordinance, I don't think the county . . . has the right to take away that permitted use," said Mastry, who often represents developers.

All five sites under consideration for affordable housing in Hernando have appropriate zoning. The Seven Hills location also won state approval for apartments as part of a 15-year-old development of regional impact.

Developers of the Seven Hills and Regency Oaks-area apartments are "very far along" in seeking permits, county development director Grant Tolbert said. They have submitted detailed site plans and building designs. The developer for the Silverthorn-area project, by contrast, has turned in only sketches, and the two Brooksville projects have no paperwork filed.

The more work done and money spent on a project, the lawyers said, the more difficult it becomes to strip developers' property rights through rezoning or other government action.

However, Shubin added, if the neighbors can prove that the developer is not complying with the county comprehensive plan or the terms of a development of regional impact, they might have legal recourse.

He and Mastry both referred to a 2001 Martin County case, Pinecrest Lakes vs. Karen Shidel, in which the 4th District Court of Appeal ruled that residents have the authority to challenge a county's interpretation of its comprehensive plan, and courts have the power to review a project's consistency with the plan.

"It just shows that property owners have rights; these people have rights," Mastry said.

Hernando County does not have an "apartment" land use in its comprehensive plan, planning director Larry Jennings said. Rather, it defines areas appropriate for multifamily housing as those with such things as mixed commercial and residential uses, and access to major roadways without passage through single-family neighborhoods.

"There is not anything I have seen to show (the five sites) are inconsistent with the plan," Jennings said, noting that none abut a single-family neighborhood.

Once the project gets past zoning questions, Tolbert said, from his perspective it becomes a "how-to" and not a "yes or no." At that point, Mastry said, other issues come into play.

"In most jurisdictions, one of the conditions of development is that the project meets concurrency requirements," he explained. "That deals with traffic, water and all sorts of services. And it's not something where a neighbor can just say, "I think there will be too much traffic.' "

Tolbert said his staff has not yet completed concurrency studies of the sites for which developers have applied for permits.

"If concurrency requirements are met," Mastry said, "then those are not valid objections."

Still, other avenues for challenge remain.

"Sometimes, the neighbors will use a tool that makes it so costly for the developer to be in there that he may go elsewhere to develop," noted Lucia Dougherty, a developers' lawyer who formerly served as city attorney for Miami and Miami Beach.

That tool is, in a word, politics.

"There's a legal leg, and there's a political leg," Dougherty said. "Typically, running down to city hall, if you're a registered voter, is a political leg. If the politics last long enough, the developer has to decide, is it worth it to fight the battle."

She concurred with Shubin and Mastry that, based on the available information, it appeared neighbors in Hernando should not be able to stop the affordable apartments on legal grounds. But politically, "they might be able to do it."

Commissioners could tie up a project through detailed questions about permit matters, or even implement a building moratorium if certain conditions exist and it is applied equally to all similar properties. Contesting the financing is another possibility.

State Sen. Ginny Brown-Waite, R-Brooksville, has brought that issue into play for the Barclay Avenue apartments. She has called for a public hearing on the state-supported bonds the developer has applied for, to ensure the opposition goes on the record for Gov. Jeb Bush to hear.

Bush, who is up for re-election in November, must sign off on the bonds before they would become effective. Last year, he declined to issue bonds for an affordable apartment complex that Pasco County residents vehemently opposed.

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