The city of Holmes Beach responded at its April 23 commission meeting to an April 18 filing of a petition for relief by attorney Robert Lincoln representing the Mainsail development team.
The petition outlines the history of the Mainsail development project at 5325 Marina Drive and seeks relief from the commission’s 3-2 vote in March to revoke the site plan.
The petition accuses the city of taking unlawful action in its decision by violating its procedures and alleges the commission lacked authority with jurisdiction in the decision belonging instead to the mayor and building official.
The petition reminds the city of prior resolutions and ordinances passed to move the lodging and marina project forward, and that more than $1 million was spent in good faith.
The petitioning is part of the Bert Harris Jr. Act, a Florida law that allows a property owner to seek relief from a government organization’s action that “inordinately burdens” a property’s existing use.
City attorney Patricia Petruff said the petition is an alternative to litigation, but also can be a first step toward litigation.
“It’s a two-phase process,” said Petruff. “There’s the dispute resolution phase, where a special magistrate tries to determine if the parties can reach an agreement. If no agreement can be reached, then the special master takes evidence and provides a written recommendation to the commission. The commission can accept, accept with conditions or deny the recommendation.”
If denied, Petruff said the next step would likely be litigation.
Petruff said the Bert Harris Act can be used as a first step to litigation because if Mainsail had filed for relief in a court of law first, “They would have given up the right to pursue the Bert Harris procedure.”
Commissioner David Zaccagnino asked if Petruff thought the petition for relief is a “shot across the bow to do a full lawsuit if this doesn’t conclude to their satisfaction.”
She said Mainsail has already supplied her a “courtesy copy” of the lawsuit that she believes will soon be served on the city.
The suit calls for the city commission to be issued a writ of quo warranto — which would require the city to appear in court to “demonstrate its authority for its action taken on March 26,” according to the documents not yet served on the city as of Islander press time.
The city revoked the Mainsail/Tidemark site plan March 26 based on significant changes to the site plan among other reasons.
Under the Bert Harris Jr. Act, the city had 10 days to respond to Mainsail’s petition by supplying its attorney with three names of potential special masters to mediate the dispute.
Petruff presented commissioners with biographies of Steven Seibert, Dennis Stotts and Carlos Alvarez.
She said Stotts has performed mediation work for the city of Anna Maria, but has not done a Bert Harris petition.
“The other two have vast experience, but I included Mr. Stotts because he has done work in our area before,” she said.
Petruff asked the commission for authorization to send Mainsail’s attorney the three names. Mainsail has the right to reject any of the city’s nominations, but the city retains the right to choose any of the special masters who are not rejected.
Commissioner Judy Titsworth wanted the decision moved to the April 25 work session in order to review the three special masters Petruff suggested.
“You don’t have to make a decision on one of them tonight,” said Petruff. “Basically, to fulfill our obligations, the city is required to send three names to the opposing side. These are the three names I suggest. There aren’t a lot of people who do this kind of work.”
Commissioner Pat Morton agreed with Titsworth, saying he would like to move the decision to the work session, but Commission Chair Jean Peelen disagreed.
“I don’t think it’s necessary,” she said. “We have three names from our attorney out of a few people who do this work. Our deadline is Monday.”
Peelen called for a vote and she, Zaccagnino and Commissioner Marvin Grossman gave Petruff the authority to send the city’s three suggestions for special master to the Mainsail attorney.
Titsworth and Morton voted “nay.”
Petruff suggested that commissioners review the biographies of each one to make an informed decision when the time comes to select the special master.
Petruff also suggested commissioners schedule a special meeting at 7 p.m. Tuesday, April 29, to discuss the city’s response to Mainsail.
There is a 15-day deadline for the city to file its response to the petition for relief and Petruff said there would not be sufficient time to wait until the commission’s next regular meeting.
The Bert Harris Act “is a fast process and we have limited time,” she said. “I’m more comfortable with commission input on the response because I know there were differing opinions during the Mainsail process.”
A consensus was given to schedule the April 29 special meeting, which is after press time for the May 1 edition of The Islander.
Petruff said the city’s response will basically contain the rationale of why the city reached its decision to revoke the Mainsail site plan.