TREASURE ISLAND – City commissioners approved a request by City Attorney Maura Kiefer March 4 to get a legal opinion regarding the application of state law on Treasure Island’s land development regulations.
Kiefer asked commissioners to allocate up to $5,000 for Boca Raton attorney Charlie Siemon to determine if the referendum process set up in the city’s charter violates Florida House Bill 537, more commonly known as the Anti-Referendum Act, when applied to land use issues. Siemon successfully defended the city of Boca Raton in Archstone Palmetto Park vs. City of Boca Raton, a recent legal case involving land use regulations, and is considered the leading legal expert on the statute.
Specifically, Kiefer wants Siemon to determine if the city’s proposed North End Planned Development ordinance would be in compliance with House Bill 537 and if the city’s 2012 downtown redevelopment referendum was in violation of the law.
“Mr. Siemon has a very good working knowledge of HB 537 and the appeal process,” said Kiefer. “So I thought if there was anyone qualified to give us an opinion it would be him.”
House Bill 537, which became law last June, is a growth management statute that prohibits referendums in regard to development orders,
a comprehensive plan or land use map amendments.
The city’s proposed North End Planned Development ordinance would allow for the Gator’s site, which is owned by Homeowners Choice Inc./Greenleaf Capital LLC, to be planned, developed and operated in accordance with a final development plan. Greenleaf Capital has indicated it would like to build an upscale resort on the site at some point in the future.
The site is currently zoned Commercial General but would likely be changed to Resort Facilities High. Both zoning designations allow for a maximum height of five stories above one level of parking. The maximum density is 15 permanent residential units and 50 tourist dwelling units per acre.
Any increase in height or density must be done through a change in the current land use regulations, which would require a public referendum. The maximum density allowable is 100 tourist units per acre.
Kiefer said the legality of the city’s referendum requirement is a gray area that could go either way.
“I’m hoping and thinking not but I cannot guarantee anything,” Kiefer said. “So my suggestion is we need to get to the bottom line (and hire Siemon).”
Commissioner Phil Collins said he was against spending the money for a legal opinion.
“We’re just getting someone’s opinion and it doesn’t mean anything,” he said. “It’s no ammunition for us. I don’t know how valuable opinions are to spend this kind of money.”
“I think it’s a good idea because I think our North PD absolutely violates 537,” said Commissioner Alan Bildz. “It’s just my opinion.”
Commissioner Carol Coward said “it seems to me if we have this done we’re doing our best effort of doing due diligence, trying to find out if we are in compliance or are we not in compliance.”
Commissioner Tim Ramsberger agreed.
“For me personally, I think we need this opinion,” he said. “I don’t want to spend taxpayer dollars but I think we ought to continue on.”
Mayor Bob Minning gave it more perspective.
“It is germane and it’s germane to the issue in front of us this evening (first reading on the North End Planned Development ordinance),” said Minning. “It’s germane to the downtown referendum that passed last year and whether or not that’s legal or not. It doesn’t preclude that a lawsuit could be filed one way or the other and this could ultimately resolve another lawsuit. I agree that we should put our best foot forward and find out from the legal person who has been involved in this matter what their opinion is.”
Marie Barba, a resident of Paradise Island who served on the city’s charter review board, didn’t agree. Barba served on the charter review board in 2002 when the referendum clause was added to the city’s charter regarding height and density changes.
“You don’t need this opinion,” Barba said. “This to me is a slap, an insult. To me it looks like an effort to circumvent a clause that’s in the North End PD. What for? To invalidate that?”
“I think it’s an easy call,” said Heidi Horak of Sunset Beach. “It’s a development order. I don’t think there’s any question about that. However, I do support the city getting an opinion if it moves the city toward a better NPD.”
Former city commissioner Ed Gayton said he believes the referendum is legal.
“What if this opinion (from Siemon) is yes, we’re in violation (with a referendum)?” Gayton asked. “What do we do then? That (city) ordinance is legal.”
Minning said it’s basically a no-win situation for the city.
“Let’s say we chose not to go with the opinion and we went ahead with the (North End PD) ordinance,” Minning said. “Let’s say the ordinance passed and the developer goes ahead and does whatever they’re going to do and then comes back to us and says we want to increase height and density by a certain amount, then that goes on the ballot and (Treasure island voters) agree or disagree with that.”
The problem, he said, is someone could come back and legally challenge the city’s referendum policy.
“What we’re trying to do now is short-circuit that and get somebody’s opinion as to whether it (height and density change) is a development order or not,” Minning said. “So we’re sort of damned if we do and damned if we don’t on this thing.”
The decision to hire Siemon passed by a 4-1 vote with Collins dissenting.