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Lowe's sues over access to property

The home center chain and the developer that is selling the land along U.S. 19 want the county to approve a truck access road. But nearby residents oppose the location.

By KATHERINE BLOK

© St. Petersburg Times, published July 21, 2000


BROOKSVILLE -- Lowe's Home Centers Inc. and Berkeley Manor Ltd. have sued Hernando County, the County Commission and four county officials over access to property along U.S. 19 that Berkeley Manor wants to sell to Lowe's.

The lawsuit, filed Tuesday, names Grant Tolbert, development director; Gary Fisher, zoning administrator; Charles Mixson, public works director and county engineer; and Larry Jennings, planning director.

Lowe's and Berkeley Manor have a tentative agreement for the sale of 34 acres at U.S. 19 and Berkeley Manor Boulevard, just south of Weeki Wachee, that is contingent on the county's approval of a site plan, said Joe Mason, the attorney for Lowe's and Berkeley Manor.

In addition to approval of the site plan and permits, the plaintiffs are asking that the court award attorney's fees, which probably will exceed $100,000 if the case goes to trial, Mason said.

County Commission Chairman Paul Sullivan said Wednesday that the commission rejected the site plan to protect a residential neighborhood -- Berkeley Manor -- from commercial encroachment. The site plan that Lowe's and the developer of Berkeley Manor want approved would allow a truck access road to be built off Berkeley Manor Boulevard at the front of the Berkeley Manor subdivision -- something residents have vehemently opposed.

Sullivan said it is possible to build a truck access road off U.S. 19, as the nearby Home Depot store has done. He said the commission would be willing to work out a compromise with Lowe's and Berkeley Manor and approve the site plan if the truck access road were off 19.

Mason said one of the key points the plaintiffs make is that the County Planning and Zoning Commission and the County Commission both approved commercial plans for the property as early as 1987, then "all of a sudden, when a contingent of potential voters shows up (at a November 1999 commission workshop)," the commission would not approve Lowe's plan.

"Unfortunately, that's the way our County Commission operates: How is my vote best calculated to get re-elected?" Mason said.

Sullivan said Mason's comments were political.

"My decision was based on the facts in the case," Sullivan said. "Lawyers who have a weak case will often say anything to help their case, including saying that our decision was political."

The property was classified as commercial in 1987, Mason said, and was vacant for about 12 years. As part of the approval process for a sale of about an acre and a half of the property in 1999 for a 7-Eleven store, Mason said, the county required a more detailed site plan, which included three access roads, he said. That plan was approved.

In July 1999, Lowe's made a deal with Berkeley Manor to buy the remainder of the land, and the site plan for that sale was approved by the Planning and Zoning Commission, Mason said. The planning and zoning decision should have been final, he said.

But in November 1999, after some residents of Berkeley Manor came to the commission concerned about an increase in traffic through their neighborhood, the commission held a workshop during which it recommended to county staff that additional changes be made to the site plan, Mason said.

"It was an obvious ploy by the (commission) to tell staff, "Don't you dare approve this site plan. (Although) the county attorney has told us we can't do this, take a hint,' " Mason said.

Mason said county staffers have told him there is nothing wrong with the site plan, but the plan cannot be approved because the commission will not allow it.

The property is assessed at about $34,000 an acre, according to the county Property Appraiser's Office, but likely would sell for more. Property assessed similarly at Spring Hill Drive and U.S. 19 recently sold for $60,000 an acre.

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