9/2/2023
Following the Law Is Not A Loophole
Madeira Beach Commissioner Anne-Marie Brooks asked an interesting question recently. ”Why is the city always sued when it adopts PD [Planned Development] ordinances?” Then she stated “we have to trust our staff to review these rezonings.” “Is there some kind of loophole that the people who are suing us are using?’ Brooks asked, perhaps to the City attorney and City planner who stayed silent.
There is no loophole, Commissioner Brooks. The reason the City is involved in litigation in rezonings is simple. The City has repeatedly failed to follow the City’s Municipal Code when it approves PD rezoning applications. Even after a court decision which found that the City failed to follow its zoning code and after an amendment to the City PD ordinance, the City has approved two PD rezonings that all failed to comply with the City’s Code Planned Development zoning requirements.
Commissioners Brooks complaint is one that has been raised by developers and their supporters for quite some time. They falsely state that some residents file lawsuits against the City and pocket hundreds of thousands of dollars. The facts are different. The citizens spend their own dollars as a matter of principle. And, as the city continues to permit rezoning applicants to violate the rezoning code Commissioner Brooks should not be surprised that the City is sued because of it.
The fact is that if the City followed its own municipal code, there would be no litigation. Yet, Commissioners Brooks and McGeehan still support the lawyer and law firm who allowed the City to get into that situation.
The three PD rezonings at issue are the Town Center PD rezoning in 2017, the 2021 Schooner PD rezoning and a subsequent 2022 Schooner rezoning. All of them failed to comply with the City’s Code.
A court opinion ruled that the Town Center rezoning was invalid “Because the City departed from the essential requirements of law by approving the rezoning application without a complete site plan as required by the plain language of the City’s Code.”
The following history of Madeira Beach litigation explains that the City attorney, MR, and the City planners, Linda Portal and Jennifer Rowan, reviewed and supported rezonings that failed to follow the court’s guidance, failed to comply with the City Code, failed to comply with the City’s comprehensive plan and implemented a provision in development agreements which the court opinion called an unconstitutional deprivation of the citizens’ due process.
The Planned Development (PD) Rezoning Process
A PD rezoning application is a request to the City to rezone property for development into mixed uses, such as retail, residential, hotels and restaurants. The City Code contains detailed PD zoning application requirements that have to be provided to the City before the Commission can even vote on the PD rezoning. But court cases show that the City consistently failed to adhere to those requirements after following the advice of the City attorney and city planners.
The process for approving a PD rezoning application begins with the application itself. Code Section 110-388 of the Madeira Beach city code, entitled Application For PD Zoning, provides that the application “at minimum, must include” a detailed list of specific requirements. The failure to meet these requirements will be addressed below.
After the legal review of the zoning application, a report and recommendation to the Commission is made by the planning staff. It is their obligation to make a presentation to the Commission that supports compliance with both the City’s land development regulations and the legality of the rezoning. Yet, for the Town Center and two Schooner rezonings, the rezoning failed to comply with the City Code.
The 2017 Town Center Court Opinion
In 2017, the City approved the PD rezoning of Madeira Beach Town Center. William Gay challenged the rezoning because it failed to comply with the site plan requirements of the City Code. The Court agreed.
In the 2017 Town Center opinion, the three-judge appellate panel ruled that the Town Center rezoning was invalid. The judges said that the plain language of the Madeira Beach City Code dictates that a complete site plan “shall include all items required” and must be submitted simultaneously with the rezoning application because the site plan provides “the basis for the rezoning application.”
The Court also ruled that a provision in the development agreement was an unconstitutional denial of due process because “future site plan review under the Development Agreement is contrary to the City’s Code and does not afford due process or comply with the essential requirements of law. More on that below,
The opinion was withdrawn when the case was settled in mediation on the same day the opinion was issued. It is not a binding order on the City. It provides clear guidance on the court’s view of error in the City’s procedures. Nevertheless, the City did not follow any of the Court’s guidance. Why didn’t the City rely on that guidance?
The Schooner Rezonings 2021 and 2022
Failure to Follow The City Code For Rezoning Applications
In the Schooner rezoning cases, the City attorney and City planners were aware of the Court order, were aware that the rezoning application did not comply with the City Code, and were aware that in the 2021 Schooner rezoning the City’s comprehensive plan was violated. Clearly the City was made aware that one of the provisions in the agreement “is contrary to the City’s Code and does not afford due process or comply with the essential requirements of law.”
The failure to follow the PD zoning application requirements has been an issue in each of the rezonings. In the Town Center case, the Circuit Court Appellate Division ruled that a rezoning application without fully complying with the City’s Code is void and invalid. The City has known this since 2017.
The 2021 Schooner Rezoning
Fast forward to 2021. A PD rezoning application was submitted to build a new Schooner hotel. That application failed to include some of the site plan details that were required by the City’s Code. A hearing was held on July 21, 2021 to approve the rezoning. Testimony from the hearing shows that the City attorney and the City planner had knowledge that the rezoning did not comply with either the City Code or the City’s comprehensive plan, but failed to advise the Commission of the defects.
The first Schooner rezoning was approved in July 2021 despite the fact that, exactly as in Town Center, the City failed to follow its code by failing to require the developer to provide some of the rezoning application requirements until after the rezoning. There is simply no authority in the City Code for that postponement.
From the hearing transcript Mr. Trask acknowledges reviewing the rezoning:
CITY ATTORNEY TRASK: But with that background in mind, this Agreement was negotiated over a number of months and revised a number of times by City Staff. I’ve had an opportunity to review it, comment on it, make some changes, as well. We believe it’s at a state where it’s ready to be considered by you for –so with that, I’m going to leave to it Linda to give you some more of the details about the project and about this particular Development Agreement.
During the 2021 Schooner rezoning, the lawyer opposing the rezoning obtained testimony from Linda Portal, the City planner, that many of the requirements of the City’s PD zoning application were missing from the application, including the requirement that the application, among many other details, requires a “Lighting design standards and Tree survey, indicating the species and size of all existing trees”.
Did Mr. Trask or Ms. Portal respond? No. But ‘We need to be sure the developers make a profit’ former mayor Hendricks did.
From the hearing transcript:
HENDRICKS: I can’t imagine us sitting up here tonight and deciding what kind of trees are going to go in or what kind of flooring they’re going to put in or light fixtures they’re going to put in. I just I can’t imagine any City Commission sitting there and doing that.
Commissioners Price, a lawyer, said: I mean, it’s all right here. So I’m happy with this information. I don’t think the Applicant omitted anything.
But that is exactly what the City’s ordinance requires. Mr. Trask knew of the defects. Linda Portal knew as well. Neither said a word.
That rezoning was challenged because of the failure to comply with the Code. Is failing to comply with the City Code a loophole?
The 2022 Schooner Rezoning
In November 2021, the developers submitted another PD rezoning application, which again failed to include all of the Code requirements. In January and February 2022, with Mr. Trask present, Jennifer Rowan, the City’s planner, made the staff’s presentation to the Commission supporting the rezoning. After the rezoning, which was approved, it too, was challenged.
Mr. Trask acknowledged that he had spent many hours reviewing the PD zoning application and drafting the development agreement. Mr. Trask, however, never advised the planning board or the Commission during any of the rezoning hearings that the PD zoning application failed, yet again, to contain the required information.
The 2022 Schooner rezoning is still pending in the Court and Mr. Trask’s law firm is still being paid by the taxpayers to defend the case.
From Mr. Trask’s deposition:
Q. And if you are aware of certain defects in the Application, is it your practice to explain that to the City Commission?
A. If they ask me.
Violation of Comprehensive Plan
But there were more defects in the 2021 Schooner Rezoning. The developer’s application requested the City to rezone property from the designated residential R-3 use in the City’s Comprehensive plan to hotel use, which was not a permitted use. Every land use planner and attorney knows that the underlying use set out in a comprehensive plan cannot be changed without amending the comprehensive plan.
Mr. Trask and all of the planning staff knew the property was zoned R-3 because it was disclosed in the staff report.
At the rezoning hearing, Mr. Trask read the provision that called for the rezoning of residential to hotel use from the Ordinance when he stated the property was to be rezoned from medium density multi-family residential R-3, retail commercial C-3 to PD.
Later in the meeting Mr. Trask stated: “The Board shall determine whether the Applicant has met the burden of proof by showing that the application is consistent with the City’s Comprehensive Plan and causes all other applicable standards of review and procedural requirements of law.”
Despite that, neither Mr. Trask nor Ms. Portal advised the Commission that the City could not rezone the R-3 property to PD because it would violate the City’s comprehensive plan.
Notably, Mr. Trask’s firm represented another city which defended a lawsuit by a property owner who wanted a change in usage that was inconsistent with the city’s comprehensive plan. Mr. Trask even cited this as his firm’s case in his RFQ response to be appointed City attorney. The Case is Mojito Splash v City of Holmes Beach.
Here is a quote from the Mojito case:
“The legislature instructs us that adopted comprehensive plans shall have the legal status set out in this [Community Planning Act] and that no public or private development shall be permitted except in conformity with comprehensive plans, or elements or portions thereof, prepared and adopted in conformity with this act.”
And one of the most relevant quotes from the opinion: “From the start, Mojito’s development was inconsistent with, and unauthorized by, the City’s Comprehensive Plan.” Exactly as in the 2021 Schooner rezoning when the City rezoned an R-3 residential lot to hotel use.
Here is an excerpt of Mr. Trask’s deposition testimony regarding the 2021 Schooner rezoning;
Question: Did you advise the Commission that the — that the use of a hotel on an R3 residential property violated the City’s Comprehensive Plan?
A. No.
Q. Why?
A. I don’t know the answer to that question.
Failure to read public comment
At one of the Schooner public meetings, the City received a public comment (which was to be read in public due to Covid restrictions) by William Gay. At the meeting in which the comment was to be read, the City Manager advised the Commission and the public that Mr. Trask told him not to read the public comments. There were also other public comments regarding the defects in the rezoning which Mr. Trask told the city manager not to read. Here is an excerpt by Mr. Gay of what was not read:
“Attorney Trask, why didn’t you speak up and advise the Commission at any of the Schooner hearings that the east building did not comply with the city code? Commissioner Price, when you ran for the commission, you campaigned to use your legal background as a commissioner. Here is a perfect opportunity for you to fulfill your campaign promise. Explain to your commission colleagues why the development violates the comprehensive plan.
“As a Madeira Beach resident, I respectfully request that the Commission instruct Attorney Trask to submit a written legal opinion on whether or not the Schooner rezoning complies with the city’s comprehensive plan.”
But the public comment wasn’t read. And Mr. Trask didn’t write an opinion letter supporting his advice to the City. And the City was again involved in litigation because of its failure to follow its Code.
Was Mr. Trask obligated to tell the Commission that the R-3 designation in the comprehensive plan prohibited the rezoning application? Was Ms. Portal obligated to advise the Commission? If not them, then whom?
At the hearing, attorney Tim Weber, who represented the party opposing the rezoning stated, ”Wrapping up here. They presented you an illegal project. They presented you a project that is a unified site plan was the testimony, and it has transient lodging uses in a land use category that is not designed for that and does not support that and prohibits that. And that’s what you’re being asked to approve is an illegal project.”
Unconstitutional Provision In Schooner Development Agreements
In the 2021 Schooner and the Town Center rezoning Mr. Trask was responsible for drafting the development agreement which contained the following provision:
“Final approval of the Community Services Department and the City’s civil engineer for the site’s compliance with the site plan requirements of Article II of Chapter 110 of the Land Development Code prior to issuance of a Certificate of Occupancy by the City for any portion of the Project.”
In the Town Center opinion, the Court ruled that the provision referred to above was an unconstitutional denial of due process of the citizens of Madeira Beach.
“…the Court notes that to proceed without a complete site plan submitted simultaneously with the rezoning application would raise due process concerns, because site plans submitted for future development phases would not be subjected to public notice and hearing. The Development Agreement states, and both the City’s and MBTC’s Responses agree, that each phase of development is conditioned on “[f]inal approval of the Community Services Department and the City’s consulting engineer for the site’s compliance with the site plan requirements.” Thus, future site plan review under the Development Agreement is contrary to the City’s Code and does not afford due process or comply with the essential requirements of law.
Despite the Court’s ruling that the provision was unconstitutional, Mr. Trask included that exact language in both the 2021 and 2022 Schooner rezonings.
From Mr. Trask. In reviewing my time records for the Schooner Hotel project, those time sheets reflect that I spent approximately 81 hours where I met with City Staff, spoke to the attorneys representing the applicant, negotiated the Development Agreement, drafted the Ordinances, reviewed notices for the public hearings and attended numerous city meetings, all of which were for the purpose of representing and advising the City of Madeira Beach.
What did the City get for Mr. Trask’s review and the planners’ advice? Litigation.
The Solution:
Follow The Law
The Court stated: The preliminary PD development plan proposal must include all information deemed appropriate, necessary, and relevant by the city to conduct the staff review and, at minimum, must include the following”
The City should have followed the court’s guidance to require all elements of the PD zoning application to be submitted prior to the rezoning. Instead, the City has adopted as a policy, the processing and rezoning of incomplete zoning applications. This occurred in the Town Center and the 2021 and 2022 Schooner rezonings.
The City’s theory, as evidenced in rezoning hearings, is that the information that the ordinance says the application “must include” can be submitted after the rezoning occurs. This, the city has called, in various descriptions, as being “the site planning process” which continues well after the rezoning and all out of public view. There is no such procedure permitted in the Code.
From the transcript of the July 21, 2021 rezoning hearing. Mr. Weber is asking the planning director whether the developer provided all of the requirements of the Code.
WEBER: Okay. If they were required to make findings on what the appearance of the trees and the landscape would be five years from now, is there any plan submitted by the Applicant which demonstrates that?
DIRECTOR PORTAL: No. It will be later during the site plan process, but it’s very — it’s unnecessary that you go to that level of detail in the zoning.
WEBER: So until you actually see all those other additional plans and details, you cannot give an opinion that the plan complies with the Land Development Code, correct?
DIRECTOR PORTAL: I can say that it complies with the Land Development Code as it is required at this level of review.
There is no other level of public review and Ms. Portal and the planners know. Ms. Portal’s interpretation is simply not supported by the Code.
The Schooner Rezoning hearing transcript reflects Mr. Weber’s statement to that effect: And, in fact, Ms. Portal testified this evening that many of the items that are set forth in the criteria you’re required by law to evaluate, are not being submitted to you tonight but are made conditions subsequent to your approval for you to decide at a later time.
Section 110-388. The preliminary PD development plan proposal must include all information deemed appropriate, necessary, and relevant by the city to conduct the staff review and, at minimum, must include the following:[list of 30 requirements, including trees, lighting and landscaping details.]
It seems clear that the current City policy and procedure is not in compliance with the Code. It would be helpful if, in a public meeting, the City discusses and, if it so decides, to correct this policy in accordance with the Code.
Before the next PD rezoning, be sure to ask the City Attorney to write an opinion that the PD Zoning Application is complete and that the proposed development is consistent with the City’s Comprehensive Plan and Land Development Regulations. In fact, since Mr. Trask’s law firm is defending the litigation, before he is appointed City Attorney he should write that opinion now because if he won’t submit an opinion to that effect, why are the taxpayers paying for his law firm to defend his advice?
The Court also ruled one of the provisions in the agreement unconstitutional because: [The] future site plan review under the Development Agreement is contrary to the City’s Code and does not afford due process or comply with the essential requirements of law.
The reason the Court determined that it was unconstitutional is because it permits the City Planner and Engineer to make final decisions on the site plans that were supposed to be completed before the rezoning occurred, but without submitting the final plans for public review. This is exactly what has happened and continues to happen in the Town Center development and that exact issue is the subject of litigation.
Thus, the conundrum. The City can be rezoned and developed without litigation, but only if the City’s lawyers and planners follow the law and, then, only if each and every Commissioner is willing to require it.
The City can close the “loophole” by simply following the law.
… Kenneth L. Weiss
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