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Condo ruling is a thicket of legalities

If a judge's decision stands, officials fear it could open the door for legal challenges.

By BRIDGET HALL GRUMET, Times Staff Writer
© St. Petersburg Times
published November 17, 2002


INVERNESS -- Just think: 26,500 parcels.

That's one out of every five pieces of property in the county, all ripe for legal challenges and taxpayer-funded reparations if a judge's ruling on Halls River Retreat stands.

Or at least that was the argument several county commissioners made last Tuesday when they voted 3-2 to appeal Circuit Judge Jack Springstead's decision, which quashed the county's approval for the 54-unit condominium project.

But is the situation really that bad?

Gary Maidhof, the county's director of Development Services, said the number, generated by his staff, reflects the "worst-case scenario."

"It reflects 26,000 property owners who have certain rights today who, under the ruling, would not have those same rights unless the ruling is appealed," County Attorney Robert Battista added.

Condo opponents, however, say commissioners are trumpeting the number as a "scare tactic" to support their appeal and turn public opinion against the Homosassa homeowners fighting the project.

"You almost have an argument that is interesting when you throw out those large numbers," said Carl Bertoch, an attorney representing Protect Our Waterways pro bono. "But when you look at the facts of the situation, that's not a compelling argument."

"There was about as much truth in that as there has been in the whole bogus thing," added Jim Bitter, co-founder of the Save the Homosassa River Alliance.

Anatomy of an argument

The number -- and, several commissioners say, the problem in Springstead's ruling -- sprouted from the thorny thicket of maps that govern development in Citrus County.

The first set of maps, the Land Development Code Atlas, show the current zoning on every piece of property. This designation determines how a site can be developed today, Assistant County Attorney Michele Slingerland said. The second map, the Generalized Future Land Use Map, or GFLUM, depicts the vision of the Comprehensive Plan, the blueprint for the county's growth. If a property owner wants to rezone his land, it must be consistent with the GFLUM's vision of the future, Slingerland said.

The problem arises when the two maps show different designations for the same piece of property.

Consider the 11-acre Halls River Retreat site. The Atlas zoning map designates the property for mixed use, which allows 20 residential units per acre. The GFLUM showed the land as low intensity coastal lakes, where one home per 20 acres is allowed.

County planners said the Atlas map took precedence, and the mixed-use zoning paved the way for the commission's 3-2 approval of the condo project Feb. 12.

In his Nov. 6 ruling, Springstead essentially said the commissioners relied on the wrong map.

New developments must be consistent with the Comprehensive Plan, the Brooksville judge wrote. After all, the condo opponents have argued, how do you accomplish the county's vision for the future if you don't apply the Comprehensive Plan's standards today?

As shown on the GFLUM, the Comprehensive Plan envisions one unit per 20 acres in that area, not a 54-unit condo project.

Here's where the number of potentially affected lots -- 26,737 to be exact -- comes into play.

On the hook?

That is the number of properties throughout the county where the zoning on the Atlas map differs from the designation on the GFLUM.

If Springstead's ruling stands, county attorney Battista said, the county would have to "down-zone" those properties. Developers would be limited to what is allowed on the GFLUM, not the zoning that applied when they bought the property, he said.

"That's a person's property right," Battista said, referring to the zoning. "We don't go out and down-zone it. If we do, we pay them for that lost expectation of development."

As the argument unfolded at last Tuesday's meeting, commissioners Jim Fowler, Josh Wooten and Roger Batchelor worried the county could find itself on the hook for millions of dollars.

If a local government reduces the amount of development allowed on a specific piece of property, state law allows the land owner to seek compensation for the property's loss in value.

"There's not enough money in the state of Florida to pay for the damages the taxpayers of this county would be liable for," Fowler said during the meeting.

A closer look, however, suggests those fears are overinflated.

The 26,737 properties in question fall under four zoning categories.

In two categories covering the vast majority of properties in question, development rights would not wither away under the GFLUM designation. If anything, land owners could potentially do more with their property than the Atlas zoning had allowed.

The worst-case scenario for the other two categories: Existing businesses could stay in place, but they might not be able to expand.

Here's how it breaks down:

Coastal Lakes Residential. This covers 26,003 properties. The zoning applies to homes and subdivisions west of U.S. 19 and east of U.S. 41.

Many of those lots already have homes. The number of new homes allowed would not change if the GFLUM designation, low intensity coastal lakes, took precedence, Maidhof said.

"Because they're in the coastal zones, (the density is) pretty much locked in place" at one home per lot, or one home per 20 acres, he said.

Maidhof could find only two differences. The GFLUM designation could "arguably" open the door to agricultural activities that are not allowed under the Coastal Lakes Residential zoning, he said.

It also could require new houses to be smaller, covering only 25 percent of the lot instead of 35 percent. (Homes on quarter-acre lots, however, could cover up to 40 percent of the property.)

Coastal Lakes Commercial. This includes 113 restaurants and businesses west of U.S. 19 and east of U.S. 41, and they are Maidhof's biggest concern.

The businesses were in place before the 1989 Comprehensive Plan went into effect. They are more intense than the area's GFLUM designation, low intensity coastal lakes, allows.

If the GFLUM designation took precedence, the businesses would become "valid, nonconforming uses." They could stay open, Maidhof said, but they could never expand.

Central Ridge Residential. This affects 85 properties. It is a special zoning for areas such as Pine Ridge, where residents want to keep their spacious 2.5-acre lots from being subdivided into smaller lots.

Revert to the GFLUM designation of low-density residential, Maidhof said, and those lots could be subdivided if central water or sewer is available.

But that scenario is unlikely, even if the judge's ruling stands, Maidhof said. Central Ridge Residential is mentioned in several Comprehensive Plan policies and charts, so residents could argue it's already part of the plan Springstead says commissioners should follow.

"Quite frankly, Central Ridge Residential is not my biggest concern," Maidhof said.

Mixed Use. That leaves 536 properties in mixed use, the zoning category that spawned this whole debate.

After the Halls River Retreat project highlighted the discrepancies between mixed-use zoning and the GFLUM designations in certain areas, the County Commission passed an ordinance in April to fix the problem.

Essentially, it did what Springstead now suggests in his ruling: New developments on mixed-use properties must be "consistent with the underlying GFLUM land use categories."

Problem solved? Not quite, Maidhof said.

Mixed-use properties that are already developed would face the same problem as Coastal Lakes Commercial sites. They would be "valid, nonconforming" uses under the GFLUM designation. They could stay open but never expand, Maidhof said.

A new tool

In all four cases, Maidhof said, "these are worst-case scenarios."

"We don't know if someone would challenge (the land use)," he said. "But if this (Springstead's) ruling is left to stand, there is a new tool left for those who wish to make those kinds of arguments."

Battista, the county attorney, said the appeal to the 5th District Court of Appeal is worth the $169.50 filing fee (and about a solid week of assistant county attorney Slingerland's time to draft).

"Why not make the appeal when it has this effect that we know about?" he asked.

And there are other effects. County officials think Springstead overstepped his bounds by declaring the Halls River Retreat project inconsistent with the Comprehensive Plan.

The anti-condo groups, which filed the legal challenges, say the judge simply did his job: He was supposed to determine whether commissioners followed the "essential requirements of law" in approving the condo project, and the opponents believe the commission majority didn't.

"I don't think there's any doubt what state statute says and what the case law is now saying. Your development has to be consistent with the Comprehensive Plan," said Bertoch, attorney for Protect Our Waterways. "It's just strange nobody wants to recognize the superiority of the Comprehensive Plan."

As for the 26,737 number, the condo foes say the figure is meant to sway public opinion, not carry legal weight.

"I think it's very important that the citizens of the county realize that scare tactics won't work," said Mary Kathleen Stonerock, a Riverhaven resident and member of the Save the Homosassa River Alliance. "We love this county and we want responsible growth."

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

Learn More

For information on the condo project, visit the developer's Web site at www.hallsriverretreat.com. The Web site for the Save the Homosassa River Alliance, www.homosassariveralliance.org, includes a full copy of Circuit Judge Jack Springstead's order derailing the development.

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