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Judges deny review in Biltmore challenge
By HARLAN WEIKLE
| Article published on Wednesday, June 3, 2009 |
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BELLEAIR – The court ruling handed down May 28 came on the eve of the closing of the Belleview Biltmore, as celebrants and well wishers prepared to close the hotel in style.
“The Petition for Writ of Certiorari, DENIED,” ended the long wait for residents of Belleair as well as the owners of the Biltmore, Latitude Management Real Estate Investors Inc. formerly Legg Mason Real Estate Investors Inc. and the three petitioners; Belleair residents Robert Swinehart, Scott Spencer and Fred Thomas, who had asked the court to review the town’s decision to grant several variances to the Biltmore’s owners in preparation for a three-year renovation.
Three principle objections by the petitioners were at the heart of their request for review of the town commission’s decision: whether the petitioners’ arguments during a town commission meeting were afforded due process, whether essential requirements of law were observed and whether the commission’s final decision was supported by the evidence.
Circuit judges Amy Williams, J. Thomas McGrady and Peter Ramsberger found that the petitioners’ claim that they were denied due process by the time limits imposed by the commission for their individual testimony failed the standard of proof, considering that they were only three of the many interested persons to speak during the long commission meeting.
The second point addressed in the petition argued that essential law pertaining to the commission’s decision was not followed, namely that all accessory uses of the new resort’s construction, spas, restaurants, etc. should not exceed 16 percent of the total square footage; the petitioners calculated that the accessory use would be 16.3 percent of the gross space. The judgment was that the Biltmore owner’s calculations were based on net square footage and since the town’s code does not specifically address gross versus net method of calculation the judges determined that they must rely on the town’s interpretation of their own code.
Finally the court found that a legal standard was met with regard to the town’s decision to grant the variances based on the substantial amount of testimony, particularly the testimony of expert witnesses and the length of the transcribed meeting.
David Ottinger, who represented the town of Belleair’s interests in the challenge, reached by phone June 1 said, “I’m surprised there wasn’t a lot of case law cited in the judge’s decision, but again this was kind of an unusual situation.”
Regarding the 16 percent calculations, Ottinger said he was pleased the ruling did not attempt to second guess the town’s rules.
Reached at his office, the petitioner’s attorney Alan Zimmet said, “I’m disappointed, our arguments were solid and had merit.”
Asked if they would appeal the decision Zimmet said he hadn’t had a chance to speak with his clients but planned to offer that option.
“We can appeal based on the first two issues,” Zimmet said, “due process, and, essential law, but not on the question of competent evidence, at this level that section of the ruling cannot be appealed.”
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Article published on Wednesday, June 3, 2009
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