9/21/2023

You decide…and tell the Madeira Beach Commission what you think! 

Consider that the facts show that City attorneys and planners told the City that it was required to amend its comprehensive plan and land use ordinances to comply with Pinellas County’s Plan.  Read my email to the City attorney, City Commission and Planning commission, below, explaining why the County Charter does not support their directive to amend the plan.

Recently, the City’s Director of Community Planning, Jenny Rowan, the City Attorney, Tom Trask, and his associate attorneys advised the City and the Planning Commission that the City is required to revise the City’s Comprehensive Plan (the permitted land use throughout the city) to conform to the County’s land use plan. In their presentation to the Planning Commission, the planners and lawyers advised the Commission:

The city is required to be consistent with the Forward Pinellas Countywide Plan. To be consistent with the Countywide Plan, the city must make amendments to the Comprehensive Plan and Code of Ordinances.

At the September 11, 2023 Planning Commission meeting, the City Attorney, a member of Mr. Trask’s firm, and the city’s planners then reviewed the proposed amendments that Mr. Trask had drafted. The amendments increased density in some areas and added new uses in many parts of the City and added many other changes. The attorney and the planner represented to the Planning Commission that the members were required to vote to approve the ordinances because the amendments were required to be adopted in order to be consistent, i.e. conformed, to the Countywide Plan and Rules, land use ordinances adopted by the County.

In other words, they were directing the City to change its comprehensive plan to be substantially the same as the County’s plan, because, the attorneys and planners said it was required. That does not appear to be correct. In fact, it may be an intentional misrepresentation. But why?

Comprehensive Plan = Future of the City

The city’s Comprehensive Plan determines, among many other issues,  the underlying land use, densities, and permitted uses throughout the city. When the plan is amended, as has been directed by Trask and Rowan, new ordinances are then adopted to implement changes throughout the City’s land use districts.

Residents may not be aware that currently proposed changes will affect land use throughout most of the city.

Incredibly, in the area north of the causeway, density could go as high as 100 units an acre.

And although residential density largely will not be affected, other proposed zoning changes will forever alter the character of the City.

Pinellas County Allows Cities to Have A Lower Density

Consider that Rowan sent a memo to the Planning Commission for its Sept. 11, 2023, meeting, attaching proposed changes to the city’s comprehensive plan ordinance, and – most significantly – informed them that the city is required to amend its Comprehensive Plan to match Pinellas County’s land use plan.

The Pinellas County Charter clearly states that a “municipal ordinance shall prevail over a county ordinance in the event a municipal ordinance provides for a less intense land use or a lesser density land use within the corporate boundaries of the municipality than that provided by county ordinance.” 

In other words,  it is the local municipality’s choice – your choice – your commissioners’ choice. If the City adopts, as it currently has, to have density lower than the County plan, it is permitted to do so. So why is the City now “required” to change its plan?

We all know that greater density usually means closer, larger, taller buildings and more traffic. Over the last two years, the planners have submitted ordinances to the Commission that make significant negative changes to the land development regulations. For example, they reduced the side setbacks for all property on Gulf Boulevard. so that new construction can be built closer together. That violated the City’s Comprehensive Plan requiring view corridors along Gulf Boulevard and the beach … but that’s another story. 

Did Officials Misrepresent The Law?

Did the lawyers and planners misrepresent the necessity to change the City’s ordinances in order to comply with the County’s ordinances?

 The City should hold a public hearing to consider whether any official misrepresented the law to the City and the public. What should the City do if it is determined that they misrepresented the law about the comprehensive plan requirements? 

The primary job requirement for attorneys and planners is to represent the law accurately and without bias. What justification can those Commissioners who voted to appoint Mr. Trask recently have to retain him if the Commission determines that he and his firm did, in fact, misrepresent the law to the Commission. And why would the City employ the Director of Community Planning if she also misrepresented the law to the Commission and Planning Commission? 

My interest in this issue is informed by being involved over much of the last 20 years in litigating with City attorneys, planners and commissioners in our local beach communities who cater not to residents but to developers. The negative comments about me are perpetuated by developers’ friends, which often times included city commissioners.

So why would the city attorney and city planner insist that the City amend its plan when that action does not, in accordance with the County Charter, seem to be required?

Cui Bono? Who benefits? After reviewing the proposed plan and ordinances, the benefits appear to lean heavily toward the development side, with little or no resident interests considered.

Is that what residents want? Is that what Madeira Beach residents elected their officials to do? If not, you can contact your public officials. Some will listen and some won’t. That doesn’t make any difference. Each of you makes the difference. And remember the Commissioners’ votes on land use matters.

My Recent Correspondence with City Officials

For now, here is my recent correspondence with the City Attorney Thomas Trask, which was distributed to the City Planning Commission and the City Commission:

Here is my Sept. 11, 2023, email to City Attorney Thomas Trask and Atty. Nancy Meyer:

Mr. Trask/Ms. Meyer, 

Attached are two opinions from your firm regarding the proposed Comprehensive Plan amendments and corresponding ordinances. In those opinions you have advised the City of Madeira Beach that it is required to adopt a comprehensive plan and ordinances in order to be consistent with and essentially identical to the Countywide Plan and Rules. Ms. Rowan has also advised the Planning Commission that it is required to adopt the proposed ordinances or else the County could sue the City under its enforcement powers. Mr. Trask did so in his opinion and Ms. Meyer, did so in her advice to the Planning Commission and subsequent communication with the Planning Commission, both of which are attached below.

Ms. Rowan, after your firm’s review, issued the following in her staff report:

Background: The Madeira Beach Comprehensive Plan and the Madeira Beach Code of Ordinances are inconsistent with the Forward Pinellas Countywide Plan. The city must remedy this inconsistency.

Discussion: The city is required to be consistent with the Forward Pinellas Countywide Plan. To be consistent with the Countywide Plan, the city must make amendments to the Comprehensive Plan and Code of Ordinances

My opinion on the matter and the law associated with it appears to show that your opinion, and that of Ms. Rowan, appears to misrepresent the law on this matter. I repeat my opinion below.

The law:

Forward Pinellas (formerly the PPC) only has such powers as granted by the Legislature in special act 2012-245 as amended.

Section 9 of the Special Act limits Forward Pinellas’ authority to what is included in the Pinellas County Charter Section 2.04(s) 

Section 9. Countywide planning authority of the board of county commissioners.—The Board of County Commissioners of Pinellas County is vested with countywide planning authority by section 2.04(s) of the Pinellas County Charter. Such authority is limited to the authority provided for in the county charter and as provided in this act.

County Charter Section 2.04(s) states: “Countywide planning authority as provided by special law. In the event of a conflict between a county ordinance adopted pursuant to the county’s countywide planning authority as provided by special law and a municipal ordinance, the county ordinance shall prevail over the municipal ordinance; however, a municipal ordinance shall prevail over a county ordinance in the event a municipal ordinance provides for a less intense land use or a lesser density land use within the corporate boundaries of the municipality than that provided by county ordinance.” 

The conclusion from those provisions, therefore, is that that Forward Pinellas cannot enforce an ordinance of the City of Madeira Beach if the ordinance provides for a less intense land use or a lesser density land use than that provided by county ordinance. Therefore, any provisions of the City’s comprehensive plan or land use ordinances which are less intense and lesser density are NOT inconsistent with the Countywide Plan and Rules or the County Charter and Forward Pinellas’ enabling legislation. Your advice that the City must be consistent with the Countywide Plan and Rules does not take those limitations into consideration.

Given the fact that your firm had my opinion and the law before Ms. Meyer attended the Planning Commission, it appears to indicate that your firm may have intentionally ignored the County’s Charter and Forward Pinellas’ enabling legislation when providing advice to the City of Madeira Beach. Should your firm not issue an opinion consistent with the County Charter and Forward Pinellas enabling legislation, it would appear to be an intentional misrepresentation of the law to the City of Madeira Beach with the intention of misleading the planning commission and elected officials of the City to increase density and intensity in the City. Ms. Rowan’s opinion appears to be intentionally incorrect as well, although may be based on your firm’s advice.  

There is absolutely no reason for the City to amend its comprehensive plan other than to comply with developers’ demands for increased density, intensity and uses. There are no benefits to the residents. As you well know, the City has been out of compliance with the Countywide Plan and Rules since 2008 and there has been absolutely no action by the County. In fact, the reason the City is out of compliance is because it knowingly and intentionally violated the Countywide Plan and Rules when it overbuilt John’s Pass and created density and intensity that was not compliant with the Countywide Plan. Now, those same property owners in John’s Pass who built out of compliance want the City to fix their non-compliant properties by creating the John’s Pass Activity Center.

In fact, the City has applied for 3 special area plans since 2008  with the County and the County has granted each one. If the County chose to enforce the Countywide Plan, it would already have done so or it would have denied the application for a special area plan. 

Furthermore, since your firm represents a number of cities throughout Pinellas County, I note that it appears that none of those cities have been advised by your firm that they are required to conform their comprehensive plans to the Countywide Plan and Rules. A review shows that none of the cities that Mr. Trask has represented for years, Oldsmar, Tarpon Springs, Dunedin, Bellaire have modified their plans to conform to the Countywide Plan and Rules. Why only Madeira Beach, Mr. Trask, and Ms. Meyer? The citizens and commissioners deserve an answer.

Based on your opinions, your advice to Ms. Rowan and your statements to the Planning Commission, your representations appear to be a breach of the fiduciary duty that you and your firm owe to the City of Madeira Beach, it’s elected officials and its citizens. If you disagree with my opinion and the references above, please advise. Otherwise, I expect that you will publicly correct the advice consistent with the County Charter and Forward Pinellas enabling legislation.

Respectfully,

Kenneth L. Weiss

Future discussion about the city’s future character

In upcoming posts, I will discuss the details of the proposed revisions to the Comprehensive Plan and ordinances and how these changes will affect you and the city.

Stay tuned…