Pros against the amateurs: Why residents lose construction battles

Members of the Edgewater Drive Neighborhood Association rallied against a proposed seven-story condominium building at the corner of Edgewater Drive and Sunset Point Road.

CLEARWATER — Residents of the Edgewater neighborhood printed up hundreds of “No Tall Condos” T-shirts and wrote reams of letters to city planning officials. They wore campaign buttons declaring their opposition and held up signs at boisterous public rallies.

When it came time to argue against a 100-foot-tall condominium project before the Community Development Board, they were outgunned. The board — consisting of a commercial real estate lawyer, a landscape architect, a civil engineer, and former planning officials — voted 5-2 on June 25 to allow Valor Capital chief executive Moises Agami’s seven-story condominium building at the corner of Edgewater Drive and Sunset Point Road.

The residents, driven to save their neighborhood of single-family homes from what they call a “behemoth” that would destroy the quiet character of the community as well as extinguish sunset views of St. Joseph’s Bay, couldn’t match the resources Valor Capital brought to the fight.

Veterans of Clearwater development battles say individual residents and homeowners associations who oppose construction projects often don’t have the resources to match what their opponents enjoy: Lots of money and close professional and cultural relationships with city lawyers, code experts and planning staff. Unlike large developers, residents often don’t have the money to hire subject-matter experts and lawyers to help them argue their case. Nor do average residents or neighborhood associations have the expertise or training to follow legal procedure during quasi-judicial hearings like the one that decided the fate of Edgewater residents.

The vote to approve the Edgewater condominiums came after a bruising, seven-hour hearing that allowed each side to present sworn witnesses to support their arguments. The witnesses were available for cross-examination, a process with its own set of rules. Though companies like Valor Capital can afford engineers, air quality experts and other specialists to make cogent arguments before boards, the nearly 150 Edgewater residents relied on each other to make their case.

Though the board listened carefully to the urgings of the residents and treated them respectfully, the difference in each side’s presentation was stark.

Commercial real estate attorney and CDB Chairman Michael Boutzoukas underscored the lack of experts on the residents’ side. After Valor Capital’s traffic expert said that 80 new condo units would not increase neighborhood traffic appreciably, Boutzoukas noted there was no one to counter that for the residents.

“The one part that really bugs me time and time again, is (the residents) not having a traffic engineer to contest (the developer’s) traffic study,” Boutzoukas said at the end of the marathon hearing. “The traffic patterns shift, you need an expert to come and contest that.”

Developers’ existing relationship with staff

CDB member D. Michael Flanery, a civil and environmental engineer who lives near Edgewater Drive, said developers negotiate with city planners and other city staff long before residents know a project is being planned for their neighborhood.

“(Developers) can hire the very best attorneys, because there’s a lot of money on the line,” said Flanery, who voted against the Edgewater project. “Development companies already operate within the connections of lawyers, experts, and planning people who have done this process before. It’s really hard for a small group like the Edgewater homeowners association to prepare in the same way.”

Former Clearwater City Councilman Bill Jonson, who represented the Clearwater Neighborhoods Coalition at the hearing, knows the planning process intimately. The CNC opposed the Edgewater condo project. He was interviewed separately from Flanery.

“The developer and the attorneys work from day one with a planning department, which has a policy of allowing redevelopment,” Jonson said. “A city planning department has a goal of a quick approval process, so there is constant interaction between the city and the developer from the beginning.”

According to Jonson, a developer can bring an idea to the Clearwater Planning and Development Department “on the back of a napkin and get comments from planning staff” on the next steps. Meanwhile, neighborhood associations don’t have the funds to hire lawyers. The residents of Clearwater Point, who fought the expansion of the Chart House Suites, hired an attorney for the initial fight in early 2019, but decided not to pay the expense of appealing the City Council’s decision to allow the project.

The Edgewater Neighborhood Association, headed by Kate Belniak for the past 15 years, had trouble finding a land-use attorney and/or a planning expert to help them present their evidence, Jonson said.

“They had to recuse themselves or were already involved in other cases or had time conflicts,” he said. “They called at least four and were turned down.”

Knowing procedure important

Belniak, a Pinellas 911 dispatcher, eventually found a planning expert, Patricia Ortiz of Ortiz Planning Solutions LLC of Tampa, to argue the residents’ case before the CDB. Quasi-judicial procedures strictly limit when witnesses can introduce evidence, and at one point Ortiz apparently didn’t understand that she had missed that opportunity.

“I’m certainly not trying to break the rules, this is my first time before this board,” Ortiz responded when told she wasn’t following proper procedure. “The rules are somewhat confusing to me, and probably to some others in this room.”

Ortiz began to reframe her argument, but Boutzoukas had to stop her again.

“You seem to be straying into other areas … but volunteering testimony is basically giving the presentation all over again and we can’t go down that path.”

Boutzoukas kindly pointed out Belniak’s lack of legal experience when she spoke.

“I’m trying to be somewhat flexible because (Valor Capital attorney) Brian Aungst Jr. does this for a living, and Miss Belniak does not. I’m trying to allow some flexibility in that.”

What residents lack is a list of pro-bono attorneys who will help neighborhoods fight development they oppose, Jonson said.

“The courts provide public defenders when people don’t have money for a lawyer,” he said. “Why not provide a list of lawyers and planners willing to represent the residents?”

Right argument, wrong time

In addition to Belniak, Jonson and Ortiz, individual residents took to the podium to argue against the Edgewater condominiums. The speakers were heartfelt, deploying cardboard models and kitchen-table sketches to indicate what they consider the building’s overbearing bulk in relation to their homes.

Without knowing development language, pertinent code and weak points in a project’s plans, residents aren’t sure what to argue, Flanery said.

“Residents who lack expertise tend to argue things that aren’t in the CDB’s purview,” Flanery said. “The number of parking spaces, for instance, are handled before they reach the CDB. We can’t change that, it’s limited by code.”

According to Jonson, the proper argument, which Belniak and other individuals used, is the project fails to meet Section 3-914 of the Clearwater development code. It states that proposed development of the land will be in “harmony with the scale, bulk, coverage, density, and character of adjacent properties in which it is located.”

The section also states that any new construction must also be consistent with the character of the immediate vicinity of the parcel proposed for development. The Valor Capital project certainly is not in harmony to that neighborhood, he said.

“Most proposed developments I’ve seen don’t have the stark contrast this building has on that community,” Jonson said.

The Clearwater Planning and Development Department’s website that helps developers shepherd their construction projects is a valuable point of reference for the general public, too. Information on proposed projects, development review, design processes, and other details of projects citywide are on the department’s website at www.myclearwater.com/government/city-departments/planning-development.

Sophisticated developers with deep pockets also understand the role politics play in land battles. They hire people to work the room, sit in the audience and cheer when positive things are said about their projects, and spread the message of good things to come. They hire public relations people to work the press and TV.

Weeks before the CDB hearing, Valor Capital erected a big sign on the property, proclaiming that luxury condominiums were “Coming Soon!”