Commission to meet on ruling

Now that the approval of the Halls River Retreat has been overturned, commissioners must decide whether to appeal.

By BRIDGET HALL GRUMET, Times Staff Writer
© St. Petersburg Times
published November 12, 2002

HOMOSASSA -- The judge's ruling last week slammed county commissioners, echoed the environmentalists' arguments and torpedoed the county's approval of the Halls River Retreat project.

The question, in some circles, remains: Did Circuit Judge Jack Springstead go too far?

The commission will answer that question for itself today when it decides whether to appeal the judge's ruling against the 54-unit condominium project.

The matter that came before Springstead was a limited one. Two anticondo groups, the Save the Homosassa River Alliance and Protect Our Waterways, asked the Brooksville judge to determine whether they had a fair shake at the Feb. 12 hearing in which the County Commission approved the plans for the time share project.

(Springstead was assigned the case after the Citrus judges recused themselves.)

In his seven-page ruling last week, Springstead agreed with the opponents, who said their evidence against the project had been ignored by the commission majority. He also found procedural errors in the hearing that created "a bias in favor of the (developer)."

Springstead threw out the commission's 3-2 approval of the project. In order for the condo project to move forward, developer F. Blake Longacre would have to resubmit his plans, and the commission would have to hold new hearings and take another vote.

But Springstead also went a step further. He found the project to be inconsistent with the comprehensive plan, a thick blueprint that is supposed to guide the county's growth.

At issue is the density. The comprehensive plan limits growth in that area to one home per 20 acres, or one home per 5 acres under special planning conditions. The condo project would have an average of about five units per acre.

Unless that ruling is appealed, it would be an insurmountable obstacle to Longacre, the Clearwater-based developer who has vowed to press forward with the project.

County Attorney Robert Battista said he thought Springstead's ruling went too far.

The judge was not supposed to weigh the evidence for himself and decide whether the project should be approved, Battista said. Springstead was supposed to determine only whether the commission held a fair hearing and whether it had evidence supporting approval of the project, Battista said.

"On the face of it and the tenor of the (judge's) order, it would appear that the court reweighed the evidence," Battista told the Times on Monday. "The issue it brings up is, essentially, the board should have listened more to the other side. That's basically reweighing the evidence.

"The question is whether there is competent and substantial evidence to support the way the board went. That's supposed to carry the day," Battista added. "Whether the other side had more evidence or better quality evidence -- the court was not supposed to venture to that point in its analysis."

Carl Bertoch, attorney for the Protect Our Waterways ad hoc group of homeowners, disagreed.

"I don't think (Springstead) crossed the line," Bertoch said Monday. "He wasn't reweighing the evidence. There's a lot of evidence out there, and you can see the reasons why we're saying the commission's decision was not supported by competent, substantial evidence."

There is an avenue for the courts to "reweigh" the evidence, but not through these appeals.

Both opponents' groups have filed separate lawsuits accusing the County Commission of violating the comprehensive plan by approving the project. Those suits may be moot, however, if the judge's ruling from last week stands, Bertoch said.

It is up to the County Commission today to make the next move, and Bertoch hopes commissioners accept the judge's ruling.

"Sometimes it's better to admit you're wrong if you're wrong, rather than perpetuate an error in judgment," Bertoch said.

-- Bridget Hall Grumet can be reached at 860-7303 or bhall@sptimes.com .

If you go

The County Commission meets at 1 p.m. today in the Masonic Building, 111 W Main St., Inverness. The commission chambers are on the third floor.

Question: What is the status of the Halls River Retreat project?

Answer: The 54-unit time share condominium project was approved Feb. 12 by the County Commission in a 3-2 vote. A month later, two opponents' groups, the Save the Homosassa River Alliance and Protect Our Waterways, an ad hoc group of homeowners, appealed the commission's decision to the circuit court. Last week, Circuit Judge Jack Springstead of Brooksville ruled in favor of both opponents' groups, essentially undoing the commission's approval of the project. As it stands now, developer F. Blake Longacre lacks the approval to build the four-story condos.

Q: How could the groups challenge the project?

A: Both anticondo groups thought they got an unfair shake at the Feb. 12 hearing. They filed an appeal asking a judge to review the evidence and testimony presented at that hearing and determine whether the approval for the project should stand.

Q: What did the opponents' groups argue?

A: Denise Lyn, attorney for the Save the Homosassa River Alliance, said she had not been allowed to cross-examine certain witnesses for the developer. Longacre's engineering and environmental consultants testified during the public comment portion of the hearing, not the evidentiary portion, so Lyn could not question them.

Lyn and Carl Bertoch, attorney for Protect Our Waterways, also argued that the developer failed to show that his project met the county's standards for development. Some buildings would be within 15 feet of wetlands, rather than separated by 50 feet, as county regulations require. Opponents also argued that the large project lacked safeguards to protect the manatees and avoid breaching the water table, which sits a few feet below the surface.

Finally, Bertoch argued that commissioners Jim Fowler, Josh Wooten and Roger Batchelor had walked into the Feb. 12 meeting with their minds made up in favor of the project. Fowler dismissed much of the residents' comments during the 51/2-hour hearing as "opinion" and said the commission had to base its decision on "competent, substantial evidence."

Q: What did the judge say?

A: Springstead agreed with the opponents. In his Nov. 6 opinion, the judge wrote that Lyn's inability to cross-examine the developer's witnesses created "a bias in favor of the (developer)" and violated the opponents' rights to due process.

The judge listed the evidence presented against the project, from inaccuracies in the developer's drawings to statements that the Homosassa Water District was unable to provide drinking water to the condos. Such fact-based testimony is "competent, substantial evidence," Springstead wrote, even if it comes from residents instead of schooled experts.

On the developer's side, however, "little or no fact-specific evidence was presented" in favor of the project, "and certainly nothing regarding the project's compatibility with the Comprehensive Plan," Springstead wrote.

That led Springstead to conclude that Fowler, Wooten and Batchelor "had predetermined their decision (in favor of the project) and that they disregarded evidence and testimony provided at the public hearing."

Q: What does the ruling mean?

A: Longacre no longer has approval to build his project.

Q: What happens next?

A: The county and the developer have two choices. They could ask the 5th District Court of Appeal to overturn Springstead's decision. Or Longacre could revamp his plans to address the judge's concerns and go through the public hearing process all over again.

There is an obvious problem for Longacre under that second option. Springstead agrees with the opponents who say the comprehensive plan limits the property to one unit per 20 acres and one unit per 40 acres in the coastal zone west of U.S. 19, where this site is located. That would limit Longacre to one home on the 11-acre property, a far cry from the 54-unit condominium complex he had in mind.

Q: How could commissioners approve the project in February if the comprehensive plan limits the area to one home per 20 acres?

A: The Halls River Retreat site was zoned in 1990 for mixed use, a catchall category that allows up to 20 residential units per acre. County planners argued that the zoning determines how densely the property may be developed now. However, the zoning is at odds with the comprehensive plan, which designates the site for low intensity use at one unit per 20 acres. County planners say the comprehensive plan designation is there to guide future rezoning decisions, not dictate the density of current projects.

Q: What about the other challenges to the project?

A: Both opponents' groups have separate lawsuits pending against the county. These essentially sue the County Commission, accusing it of violating the comprehensive plan by approving the project. The lawsuits are moot, attorneys say, if the judge's ruling from last week stands.

In the coming months, an administrative law judge will make a recommendation in a separate challenge to Longacre's permit from the Southwest Florida Water Management District. The permit deals with the impact to wetlands and the stormwater runoff system, and the permit is essential for the project to move forward.

The state Department of Community Affairs has scheduled a mediation session for Nov. 25-26 between the county, the opponents' groups and the developer to see if a compromise can be reached. That, too, may be moot if Springstead's ruling stands.

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