TARPON SPRINGS — A resident-backed nonprofit is asking a circuit judge to overturn the city commission’s recent approval of a 404-unit apartment complex on green space along the Anclote River — again.
In a petition filed in Pinellas County circuit court on Nov. 29, Concerned Citizens of Tarpon Springs alleges the city violated its comprehensive plan in a “fatally flawed” approval of multifamily housing on a piece of property that the city’s land use map has designated for primarily commercial uses. The group also alleges the city violated the public’s due process during the hearing on the preliminary application, which lasted 10 hours and didn’t get to citizen comment until after 2:30 a.m. on Oct. 29.
The complaint is the resident group’s second legal challenge of Anclote Harbor, a proposed luxury apartment complex spread across five buildings on the nearly 74-acre property on the east side of U.S. 19. Of the site’s 64 acres that are not submerged, 12 acres will have buildings and parking lots, according to the application. Of the 22 acres of wetlands, slightly less than 1 acre would be developed.
The Tarpon Springs Board of Commissioners initially approved the preliminary application for the project in January. Concerned Citizens sued in February, before a vote on the final plan was scheduled. The lawsuit alleged the city commission robbed residents of due process by including requirements for a second access point along U.S. 19 on the day of the January vote. A few months later, the developer submitted a new application that spelled out the two access points into the complex, which restarted the review process.
During a final, nine-hour hearing that adjourned at 3:31 a.m. on Nov. 10, the city rezoned the property from “general business” to “residential planned development.” Commissioners also granted the project’s developer, Morgan Group, a “conditional use approval” for residential within the commercial general Future Land Use map category.
In its Nov. 29 complaint, Concerned Citizens alleges the city violated state law and city codes by approving an exclusively residential development in a “commercial general” district that only allows residential as a secondary or supplemental use.
If the city had required Morgan Group to apply for an amendment to the future land use map for residential, the developer would have had to seek city, county and state approval for the project.
“This amounted to backdoor effort to change the future land use on the parcel without complying with the required future land use map amendment procedures per Florida Statutes and City Code,” wrote attorney Jane Graham, who represents Concerned Citizens.
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Morgan Group declined to comment on the lawsuit through attorney Ed Armstrong.
According to the city’s future land use element document, development in commercial general districts “shall include” primary uses of office, retail, storage, and other business uses. A secondary use of residential requires a review by the city for compatibility.
The document notes a limit of 5 acres for secondary uses of institutional and transportation developments, but it does not outline acreage limits for residential uses.
City Planner Renea Vincent declined to comment on why the city did not require Morgan Group to apply for a land use change since residential is the primary, not secondary, use of the project. But the city staff report submitted to the commission states that the residential uses on the south and east sides of the property and the buffering provided by the Anclote River and U.S. 19 “serve to prevent and/or mitigate any potential conflicts” with future commercial uses nearby.
The property is also prone to flooding as it sits in the Coastal High Hazard Area, according to Pinellas County Emergency Management. Concerned Citizens alleges that Morgan Group did not provide the competent substantial evidence required for such quasi-judicial approvals to address flooding and storm surge vulnerabilities or show that the apartment complex would not adversely impact transportation and emergency services.
The base flood elevation on the property, or the level the government sets for potential high water in a flood, is expected to increase to 9.67 feet by 2050, according to a memo submitted to the commission by Matt Brosman, an engineer with consulting firm Kimley Horn. Brosman confirmed that all habitable structures in the Anclote Harbor project are planned to be built above 9.67 feet.
Concerned Citizens also argued in its complaint that residents were deprived of their due process rights to speak at the Oct. 27 hearing. It took seven hours for the developer, city staff and Concerned Citizens to get through their testimonies. It was past 2:30 a.m. before 30 residents had an opportunity to address the commission and 4:25 a.m. when Graham was able to present a closing argument.
“Speaking after 2:30 am is simply not a meaningful time and manner to be heard, nor can one expect the attention of the voting decisionmaker at this time,” Graham wrote. “It should not be a herculean effort to give public comment.”