The Halls River Retreat developer is reviving his 54-unit proposal, based on the county's land development code that allows mixed use, something no longer in the comprehensive plan.
By ARCHANA PYATI
Published June 18, 2003
"Mixed use," it seems, has people all mixed up.
In the realm of land-use law, the zoning category of mixed use could not be a more vexing topic, an albatross around the county's neck.
It is what allowed the County Commission to approve the Halls River Retreat development in February 2002, and one of the factors that led a circuit judge to overturn the approval 10 months later.
Now mixed use is the basis for Halls River Retreat developer F. Blake Longacre's move to resurrect plans to build the 54-unit time share.
The plans are gathering dust in the Lecanto Government Building. Last week, Longacre asked county planners to revive them.
Longacre's application will have to go through the same process it did before: staff review followed by workshops and hearings before the Planning and Development Review Board and then the County Commission.
Mixed use has become a legal burden ever since 1997, when it was taken out of the county's comprehensive plan, a master plan for future growth. Mixed use, however, remains on the land development code, the document that acts as a snapshot for how property is being used today.
The problem boils down to this: Mixed use allows developers to do things that the comprehensive plan does not. It became part of the land development code in 1990 as a catchall for developments that defied easy categorization.
But when Circuit Judge Jack Springstead overruled the commission's approval of Halls River Retreat on Nov. 6, he said the comprehensive plan must trump all other considerations.
Opponents of Halls River Retreat argue that mixed use should be forever banished from the land development code. They have even filed an administrative challenge with the Department of Community Affairs, the state agency that regulates local comprehensive plans.
"Our position is that it should've been removed from the land development code" in 1997, said Dan Stengle, a Tallahassee attorney representing Protect Our Waterways, one of the citizen groups that has been fighting Halls River Retreat.
No date has been set for a hearing before an administrative law judge.
"The comprehensive plan is the bible, the controlling document, and all land use designations need to be consistent with (it)," Stengle added.
Longacre's attorney, Frederick Reeves, vehemently disagrees. He believes mixed use is still a viable zoning category, one that will preserve the "fair market value" of his client's land and that "was never meant to be eliminated."
He blames the county and the Department of Community Affairs for failing to resolve the discrepancy back in 1997, when the state agency vetted the county's comprehensive plan.
"It simply isn't fair for Halls River Development Inc. to be penalized for what is, in reality, multiple mistakes on the part of the Department of Community Affairs and the county," Reeves wrote in his June 14 letter.
He also says that the people who are now questioning mixed use should have spoken up in 1997, and in 2001, when the local planning board and County Commission initially reviewed Halls River Retreat.
Longacre's property, 11 acres near the Halls River, is zoned mixed use. But it is designated something different in the comprehensive plan: "coastal lakes," which would only allow a single house to be built on the site.
Longacre finds himself in the unenviable position of owning property whose value would be seriously diminished if the coastal lakes designation prevails.
Reached by telephone earlier this week, the Clearwater-based developer held fast to the development rights afforded to him by the mixed use designation.
When he purchased the property three years ago, "it wasn't coastal lakes and it's still not coastal lakes," he said.
He may be fighting an uphill battle. Even though Springstead's order was upheld by the 5th District Court of Appeal on May 1, Longacre was told he could resubmit his application.
It will be Halls River Retreat redux, except this time, the decisionmakers will have Springstead's order in hand.
Mixed use isn't the only zoning category that, in light of Springstead's order, concerns county planners. Of the roughly 800 properties with mixed use zoning, many are vacant or have a single-family homes; it's unlikely these property owners would mount a legal challenge about property rights.
Yet there are dozens of smaller properties that are zoned coastal lakes commercial, another category that has no corresponding designation in the comprehensive plan.
Many of these properties, with marinas, beauty shops, and other small businesses that serve coastal neighborhoods west of U.S. 19, might have their property rights curtailed by the judge's ruling. Like Longacre's property, development would be controlled by the more restrictive comprehensive plan category of coastal and lakes.
"It's kind of in limbo," said Chuck Dixon, the county's community planning director. He wants to create a "coastal lakes commercial" category in the comprehensive plan just for these properties.
On Halls River Retreat, Dixon was mum about what his staff will recommend to the planning board and the commission.
"We have to review it in accordance with the regulations that are in place, and the judge's order," he said.
Opponents of the project call Longacre's request an exercise in futility and a questionable use of staff time and taxpayer money.
"It seems imprudent, improper and wasteful for all those people to go through that process again with records, hearings and transcripts," said Carl Bertoch, a Crystal River attorney who represents Protect Our Waterways.
The group also has asked Springstead for a final ruling on a second legal challenge it filed against the county. When the judge issued his order in November, it only addressed one of two appeals.
Protect Our Waterways has asked the judge to rule in its favor in the second case, which would have led to a full-blown trial with witnesses, subpoenas and depositions.
"What we're saying, there's no dispute as to the facts or to the law, because why perpetuate the argument any further," Bertoch said.
Complicating matters is the county's own effort to revise its laws governing mixed use, to get it more line with the comprehensive plan.
In April 2002, by a 4-1 vote, the commission changed mixed use. Now someone who owns a mixed use property can only build one dwelling unit per 20 acres, or one unit per 40 acres in hurricane zones with fierce winds.
Prior to this vote, that owner could have built up to 20 units per acre. When the county revised its ordinance, it specifically exempted Halls River Retreat because of the pending lawsuits.
To protect his future property rights, Longacre filed a notice two months ago to sue the county, pursuant to the state's Bert J. Harris Jr. Act.
In the presuit notice, attorney Reeves said Longacre's loss of property value amounted to $5.3-million based on an appraisal of Halls River Retreat.
Attorney Clark Stillwell filed a similar presuit notice on behalf of the W.W. Caruth Jr. estate, alleging a 72-acre lot in northwest Citrus would lose $730,000 in property value because of the revisions to the mixed use ordinance.
The Harris Act, passed by the Legislature in 1995, requires local governments to compensate property owners if local regulations decrease their property value.
Longacre's property would be reviewed according to the old definition of mixed use, which will likely result in a denial by the County Commission because of Springstead's order.
"To me, it makes no sense whatsoever for the application to proceed," said Joanne Bartell, a member of Protect Our Waterways, and one of the challengers of mixed use zoning.
