County's hands tied on builder's 'vested rights'

By A TIMES EDITORIAL
Published October 21, 2007

Ten years ago, a controversial high-rise apartment building pushed "vested rights" from an obscure legal and bureaucratic term into the everyday vernacular around a premiere coastal neighborhood.

Now, county commissioners again will hear whether more multifamily housing is appropriate for Gulf Harbors, a water-front development with origins that predate the county's zoning and land development codes.

The big difference this time is the Pasco Commission will hold a public hearing and vote on the so-called vested rights determination. A decade ago, neighbors objected to commissioners, but the matter already had been settled via a county attorney's ruling that allowed a nine-story senior housing complex in a coastal flood zone.

The neighbors sued the county, contending they had been denied input because there had been no public hearing, nor a commission vote. The legal fight ended after a judge ruled the residents' attorney had a conflict of interest that prohibited his participation.

Two weeks ago, commissioners agreed to a new ordinance establishing the protocol for determining vested rights - essentially allowing someone to continue developing a project even if relevant ordinances went into effect after the original permission had been granted. The new ordinance diverts authority for vested rights determination from the staff to the commission after an appropriate public hearing.

The first case again is Gulf Harbors. Developer Joe Borda wants vested rights for three remaining undeveloped parcels that could be used for a 7,000-square-foot commercial building and up to 351 multifamily units.

The origins of Gulf Harbors date to a 1959 county approval of the permit to dredge the canals and a 1968 settlement with the state that spelled out how the neighborhood would develop. That 39-year-old agreement is the de facto development order, according to earlier vested rights rulings from the state and county, which didn't adopt zoning and land development codes until the 1970s.

This week the county attorney's office recommended the commission grant the vested rights determination on the final parcels, but noted the construction is not excused from impact fees or some other land development requirements.

Commissioner Jack Mariano said he worries allowing such housing densities could mean giant apartment towers on the coast. County codes limit building heights to five stories, though the county has granted occasional exemptions. A vested rights determination frees Borda from the five-story limit.

In this instance, following the law and following good government standards appear incompatible. Building seniors-only apartment towers in high-hazard flood zones is far from ideal land-use and emergency-management planning. Still, if the county has no legal basis to reject the vested rights ruling, commissioners would be inviting a potentially costly and likely indefensible lawsuit if they dismissed Borda's request out of hand.

The county will be better served if the commission and its staff concentrate on ensuring the parcels' future site plans and eventual construction include sufficient mitigations to safeguard public safety and wellbeing.

[Last modified October 20, 2007, 20:27:37]