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City asks judge to toss lawsuit over Nov. 5 aquarium referendum

CLEARWATER — The city has asked a judge to throw out a lawsuit filed by two downtown residents that seeks to derail a Nov. 5 referendum on a new downtown aquarium.

A Tampa lawyer hired by the city argues that the suit filed last month doesn't make the case that the court should stop the referendum because the law requires courts to act on facts, not speculation.

"Courts cannot be called upon to answer questions based on events that may or may not occur," according to a motion to dismiss filed Monday by Alan S. Zimmet, the city's lawyer.

The plaintiffs, Thomas Petersen and Inge Spatuzzi, argue that the city violated the Florida Constitution by entering into a tentative agreement with the aquarium.

The city denies that claim, saying the agreement — or memorandum of understanding— is just a template for future negotiations and won't leave taxpayers on the hook if the project fails.

"There is no direct or indirect obligation assumed by the city on behalf of the CMA. The City would not assume any debt of the CMA and the City-owned property would not be placed in jeopardy by a default," the city's motion states.

In its request for Judge John A. Schaefer to toss the lawsuit, the city also contends that Petersen and Spatuzzi erred by not naming the Pinellas County Canvassing Board as a party to the suit.

Petersen and Spatuzzi had asked Schaefer to prevent the counting of the ballots if he didn't rule in time to stop the vote. The county canvassing board is responsible for the tally.

Ballots for the Nov. 5 referendum will be mailed Friday to overseas and military voters. Ballots will be mailed to domestic voters on Oct. 1.

Petersen lives in Water's Edge, a high-rise condo tower that would be next door to the proposed 200,000-square-foot aquarium. Spatuzzi lives in Pierce 100, a condominium just west of the proposed site.

Robert K. Lincoln, a Sarasota lawyer representing the plaintiffs, said the city's legal action was a delaying tactic. "It's just to put off the substantive issues," he said.

Lincoln said he would try to file a response this week and would urge Schaefer to act quickly.

The city is seeking voter approval to enter into negotiations with the Clearwater Marine Aquarium for a 60-year lease on the waterfront property currently occupied by City Hall.

CMA would only be allowed to build an aquarium on the property if negotiations with the city bore fruit. The aquarium would also pay $7.5 million to the city toward the cost of building a new city hall. That money would be generated by a 50-cent surcharge on tickets at the new aquarium. After that sum was paid, the aquarium would pay $250,000 annually to the city for the remainder of the lease.

CMA has said it would pay up to $30,000 toward the city's legal fees associated with the lawsuit. The aquarium also will pay for the cost of the referendum, estimated to be about $70,000.

Charlie Frago can be reached at or (727) 445-4159. You can follow him on Twitter @CharlieFrago.

City asks judge to toss lawsuit over Nov. 5 aquarium referendum 09/17/13 [Last modified: Tuesday, September 17, 2013 6:59pm]
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