City to Appeal Court Decision on Sand Key Zoning
By Carl Wagenfohr
CLEARWATER – It didn't take long for the City Council to act on the December 1 Circuit Court ruling that ordered Tourist zoning be applied to the Shoppes at Sand Key property. At their meeting on December 4, the Council directed the city's legal staff to appeal that court order.
At issue was the ongoing tug of war between the D. A. Bennett Company, owner of the Shoppes property, and the residents of Sand Key, who desire that the only retail businesses on the island be saved from any redevelopment that could cause their demise.
City Attorney Pam Akin said that the appeal would cost “a couple thousand dollars”, and be made by staff attorneys. The appeal must be filed within 30 days of the court's December 1 ruling, she said.
Assistant City Attorney Leslie Dougall-Sides, who represented the city during the lower court hearing, told the council that there were 3 “potential winning grounds on appeal.” The first was “a procedural issue” that the court should not have ordered the Council to apply Tourist zoning to the property, but should simply have ordered a rehearing of the zoning application with the council making a decision “in accordance with the [court's] opinion.”
Dougall-Sides explained that there were two 'substantive' issues with the court's order. She claimed that the court ruled Tourist zoning had to be automatically granted because it was the only applicable zoning at the time of the application. The court ignored an element of Clearwater's land development code, she said, that requires a zoning category does not conflict with “the needs and character of the neighborhood and the city.”
In addition, Dougall-Sides claimed that under Florida statute, an inconsistency between a city's Land Development Code and Comprehensive Plan should be resolved by applying the most recently enacted ordinance. In the case of the Shoppes property, she said that Clearwater's most recent action was the Comp Plan, which identifies High Density Residential, Commercial and Tourist as eligible zoning classifications. The council was therefore correct in applying Commercial zoning to the property.
Regardless of the outcome of the city's appeal, the continued existence of the Shoppes would not be assured. “In the C zoning district there are a number of other uses that are potentially possible,” Dougall-Sides said, “It doesn't guarantee that the Shoppes, as currently configured, would remain.”
Councilmember Carlen Petersen was the only dissenting voice in the 4-1 vote authorizing the appeal. She said, “I will not support this going forward. I didn't support it before because I think that legally we were on very very shaky ground, and obviously the court agreed. I'm not going to waste any more taxpayer dollars on this.”
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