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Citizen hands developer a defeat

Published Oct. 22, 2001|Updated Sep. 10, 2005

There are a few battles in life worth fighting, no matter the personal toll.

That's how Karen Shidel, a 54-year-old secretary, felt about the apartments built three years ago at the edge of her back yard.

So, she fought. For five years, the lawsuit has been quietly grinding away _ a technical dispute over growth management laws.

Last month, there came a stunning decision: A state appellate court upheld a finding that the $3.3-million luxury complex, approved by Martin County commissioners, violates the county comprehensive plan and must be demolished.

The decision _ which will be appealed to the Florida Supreme Court, said lawyers for the developer _ caused a ripple of reactions across the state.

Growth management proponents called it a victory for the local comprehensive plan and a warning to developers who think they can buy their way out of restrictions. Builders say it will encourage frivolous challenges and delay projects.

Some Martin County officials say it makes clear that the judiciary has deigned to put itself in the driver's seat when it comes to interpreting local plans. Commissioners are considering enlisting legislators to curb the power of courts in these matters.

The head of the statewide agency that oversees comprehensive planning said the decision will put a spotlight on the comprehensive planning process, which he says is ripe for reform.

And Karen Shidel? Though she is technically a winner at this point, she feels more like a victim of her local government, which she said failed to defend her rights.

"I don't think a citizen should have to do this," she said. "We should be able to expect our government to protect us."

Stephen Fry, Martin County attorney, said Shidel's feelings neatly sum up a major question in the case: "Was she protected? That's sort of the question, isn't it? Who is going to decide that? The court or the County Commission?"

Houses vs. apartments

Pinecrest Lakes is a quiet neighborhood of wooded 1-acre lots, larger homes and chirping birds.

Though some homes are swanky, many of them are modest. The development is typical of suburban Jensen Beach, a largely white, middle-class community of 11,000 on Florida's east coast.

Karen Shidel and her husband, Paul, 58, bought their lot 20 years ago. They built their home in 1986 and raised two boys there. They plan to spend their retirement years there.

A 21-acre strip of land _ which became the comprehensive plan battleground _ runs up against their back yard. Every county has a comprehensive plan that very specifically maps out how and where growth is to take place.

The developer, Pinecrest Lakes Inc., initially wanted to put 168 multifamily units on that land, then there was a plan for 29 single-family homes. But in 1995, the developer asked the County Commission to go back to multifamily, this time 136 units.

The Shidels and many of their neighbors objected, but the County Commission approved it, saying it was consistent with the comprehensive plan. There were petitions, crowded public meetings and ultimately, the lawsuit. At first, others, including the homeowners association, joined in the lawsuit. Over the years, they dropped out.

The case went to trial in 1998.

Two parts of the comprehensive plan were key issues in the trial: compatibility of development, and policy mandating the gradual stepping down, or tiering, of densities.

The developer and its lawyers, argued that the county already had considered the issues and determined the apartments were compatible.

"I think anybody who would actually see the project would be shocked that it's not deemed compatible with adjacent development," said Morris Crady, a former Martin County planner who testified as an expert witness on behalf of the developer.

Trial judge Larry Schack, who visited the neighborhood, found that the 40 two-story apartments were too much, too close to the single-family homes. He called them "imposing and overbearing."

Furthermore, he found that the developer essentially thumbed its nose at authority, building part of the project before the challenge process was finished. The developer knew demolition was an option.

Monetary damages, Schack said, would not fix the wrong done to Shidel.

His order came in 1999: Tear them down.

How to manage growth?

There was, of course, an appeal.

But last month, the 4th District Court of Appeal upheld the Circuit Court decision.

The case is destined for the state's highest court.

"We believe that it is always a matter of great public importance when there is a decision in which we as developers are told to take down our buildings," said Lo Bielby, a Tallahassee lawyer representing the developer.

To some in Martin County, the decision seems like a judicial intrusion on a decision that clearly belongs to local government.

"If there's a blatant or egregious call, then it belongs to the court," said Charlene Hoag, a former Martin County commissioner who voted to allow the apartment complex. "But if it's not, local government should be left to local government."

The current group of Martin County commissioners is considering enlisting state legislators to change state law to strengthen their hand in making development decisions. The county attorney recently sent commissioners a memo outlining their options.

"We think the courts should defer to our expertise," said Fry, the Martin County attorney.

Any such proposed legislation would come at a propitious time: State lawmakers have been of a mood in recent years to hem in what they consider a judiciary that is overstepping its powers.

The lawyer who represents homeowner Shidel said any such maneuver would be an effort to boost developers' interests at the expense of ordinary people.

"Their answer is to gut the citizen's enforcement ability," said Shidel's attorney, Richard Grosso of Fort Lauderdale. "That's outrageous."

Steve Seibert, the state Department of Community Affairs secretary, said the decision has thrown a spotlight on growth management reform. And while he believes comprehensive plans ought to be followed, he thinks they ought to change dramatically.

"I am frustrated by the minutiae it involves and the cost and energy that goes into simply making lists," he said. "Can you write enough rules to answer every question? Or do you say, "I'm just going to rely on common sense'? To me, the answer is not to write it all down."

Shidel's attorney said the case demonstrates the exact opposite. Having only broad guidelines subject to local interpretation that could change over time is like having no protection at all.

"Frankly, where we need to be headed is to more specific policies," Grosso said.

Tom Pelham, one of the architects of the state's 1985 growth management act under former Gov. Bob Martinez, said the demolition order is an important message to developers.

Had the court awarded monetary damages instead, it would give developers license to buy their way out of comp plan restrictions.

Developers say the decision is just another way for obstructionists to hold up progress whenever controversial projects are approved, said Stephen Grimes, a Tallahassee lawyer and former Florida Supreme Court justice who filed a friend of the court brief on behalf of state and national development interests. The effect, he said "is very drastic."

Drastic is how Karen Shidel would describe the impact the case has had on her life. It's something she doesn't like to talk about. Not only has it been costly, people have questioned her motives and pressured her to drop the case. The developer even placed an ad in a local newspaper that mentioned her by name.

Shidel said she has continued the case, rejecting settlement offers, because she felt she couldn't quit. Every time she looked at the apartments she felt wronged. They didn't belong, not according to law, not according to common sense.

"You do the right things for the right reasons in life," said Shidel. "There are very few things you fight for. The things you do fight for are your home, your family, your friends. This is one of those things."

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