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Judges: Clearwater council's denial of Sand Key rezoning was wrong

CLEARWATER — The City Council was wrong when it denied a property owner's zoning request that would have allowed a 100-foot building on the land now occupied by the Shoppes on Sand Key, a three-judge panel ruled this week.

The council was obligated to follow its development code when it denied the D.A. Bennett Co.'s request in March, the judges ruled on the appeal filed by the company. Therefore, the city must allow a use that many Sand Key residents lobbied against.

"The landowner should not be unduly burdened or denied a zoning designation to its property when requested merely because the City Council wishes to have a different designation placed on the property which is not available under the Development Code," the panel from the Sixth Judicial Circuit Appellate Division wrote.

The company had asked that its 3-acre plot at 1261 Gulf Blvd. be zoned Tourist, which allows for a 100-foot tall structure.

Residents of Sand Key were in an uproar and aggressively lobbied the council, which denied the request. Only Carlen Petersen voted in favor. About 300 residents showed at the February meeting.

"The opinion showed the city's treatment of the Bennetts was wrong," said Paul Raymond, the Clearwater attorney representing Bennett. "Unfortunately, they were forced to incur substantial expense and delay. Ultimately, it shows you can fight city hall and win when the law is on your side."

The city can appeal the decision to an appellate court and the Council will likely discuss the issue at today's 6 p.m. meeting.

"I can't speak for the entire council but I believe we will appeal it because we think we had the right to do it and it's the best fit," said Mayor Frank Hibbard.

A 20-year agreement between former owner U.S. Steel and Clearwater allowed up to 85,000-square-feet of shops and restaurants to be built under a business zoning. The Shoppes on Sand Key, a commercial strip that caters to locals, was built. But the zoning agreement expired in October 2006.

Bennett then requested that the property be zoned Tourist as designated in the city's Development Code for the Sand Key area. At the time, the property had no zoning.

During the 20-year agreement, Clearwater adopted a Future Land Use Plan and a Comprehensive Plan and Bennett's property was placed in a Resort Facilities High category. The city's Development Code said the Tourist designation was the only zoning for a Resort Facilities High category.

City Attorney Pam Akin said the Tourist only designation was an oversight and that "commercial" should have been an option. Akin said the city later adopted that change and now the property is zoned commercial. The City Council changed the Development Code on Aug. 7, about five months after it denied Bennett's request.

"They did follow the law," Akin said of the council's decision. "They looked at the requirements for granting a tourist district. We understand the opinion, we don't necessarily agree."

Council member George Cretekos, who lives on Sand Key, said he voted no because city was moving forward with the change in the Development Code that would allow the commercial designation.

But the court's decision said the Council was "obligated to apply its Code as it exists at the time of the proceeding."

"They were looking at a substantial number of residents who were basically demanding certain actions and instead of following the law,'' Raymond said, "they listened to the crowd."

Demorris A. Lee can be reached at 445-4174 or dalee@sptimes.com.

Judges: Clearwater council's denial of Sand Key rezoning was wrong 12/03/08 [Last modified: Friday, December 5, 2008 10:00pm]
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