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Condo approval sets off lawsuit

Published Aug. 24, 2005

(ran North edition)

Neighbors oppose the plan.

So does the director of Pinellas County's planning advisory board.

But Pinellas officials approved a proposal to build 35 condominium buildings and a high-rise on the back nine of a golf course at the Westin Innisbrook Golf Resort.

The decision means that more than 300 new condominiums might one day be built on 39 acres around five holes of the Island course at Innisbrook.

It also means a legal challenge to the development that was dismissed last year now can move forward.

Last week, the Innisbrook Condominium Association filed a new lawsuit in Pinellas-Pasco Circuit Court to block the development.

The crux of the case comes down to how many residences were originally allowed at Innisbrook. One side, including current condo owners at Innisbrook, says there are no development rights left on the land. But the county and the developer disagree.

And both sides say the court's decision could have repercussions that extend well beyond the gated confines of the luxury resort.

The Innisbrook dispute

David Healey, executive director of the Pinellas Planning Council, is not part of the lawsuit, but he and the condominium association have raised some of the same objections to the proposed development.

The way Healey reads the county's future land use plan, Innisbrook is overbuilt by about 300 dwellings. The proposed condominiums near the Island course should not be allowed, he said, because there are no development rights left at Innisbrook.

"I have no interest in this (other) than to see the countywide rules are followed," Healey said.

The Pinellas Planning Council consists of 24 members and serves as an advisory board to the County Commission.

But the resort owner, Golf Host Resorts Inc., the developer and the County Commission's planning staff take another position. They contend that the property in question has been designated for residential development since the 1970s and that Innisbrook does have the capacity for more new homes.

"This is not new," said Paul Cassel, director of the county's development review services department. The developer "asked for it to be approved, and it meets the standards, so we're legally obligated to do that."

Healey calculates that Innisbrook is allowed to develop about 1,500 units; that's about 300 fewer than are there. County development review officials have said the number of allowed units at Innisbrook is about 2,300, which would leave room for the condo project at the Island course.

As part of the argument, Cassel points to a process by which the county transfers development rights from undevelopable land such as golf courses and wetlands to residential areas.

In the late 1990s, Cassel said, Innisbrook's owners came to the county with a site plan for the more than 840-acre community. At that time, the planning staff designated areas where credits could be transferred, including 502 acres of golf course and 44 acres of preserves. Each acre counted for one residential unit, he said.

When added in with areas already residentially zoned, the total was 2,300 units, Cassel said.

But Healey said the county didn't follow its own rules.

"There is a process to transfer development rights where you transfer from one category to another," he said. "That record has to be filed with the clerk of the court, and a copy needs to be filed with the planning council. . . . There is no record of that to my knowledge."

The larger issue

While both sides agree the case has far-reaching implications, they disagree about what those are.

If the county prevails, Healey said, "spotty planning" would result. That would open the door for more developers to try to move rights from green spaces so they could build more residential units.

Cassel, on the other hand, said Healey's interpretation would undermine the way the county interprets when it can transfer development rights, known in the business as "credits," from one area to another. The change could be so drastic that five subdivisions in Pinellas would have to be officially considered overbuilt.

For example, developers used transfer credits to make way for about 326 homes in Cypress Run. Without those credits, the neighborhood would legally have room for only about 58 homes, Cassel said.

Homes that are already built would stay, but they might not be able to be rebuilt if a natural disaster, such as a hurricane, destroyed them, Cassel said.

"If the big one blows through and knocks down half the homes in one of these communities . . . some of those homes may not be able to legally rebuild," he said.

A waiting game

A new version of the lawsuit was filed last week. There is no hearing date set for the case, and Steve Cole, an attorney for the Innisbrook community group, said the case could take several months to a year.

In the meantime, Steve Samaha, the developer who represents a group called Innisbrook F LLC, is playing the waiting game. With the site plan approved for the condo development near Innisbrook's Island course, Samaha could begin putting in roads, sewers and drainage pipes. But Samaha, a lawyer, said he'll wait for a decision in the lawsuit. He has hired Tom Pelham, a high-powered land use lawyer who once ran the state's Department of Community Affairs, to represent him in the matter.

Home prices in Samaha's project would begin at $250,000 and go upward of $1-million, he said. The project could generate about $3.5-million in annual property tax revenues for the county.

Having the site plan approved moves everyone closer to a resolution, Samaha said.

"We're moving forward," he said. "We've finally got to the point now where we can proceed with the court case. . . . It's all on the court now."

Nicole Johnson can be reached at (727) 771-4303 or