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Date of Issue: June 21, 2007

Anna Maria comp plan, FLUM likely face legal challenges

Strip mall location?
This property on the northwest corner of the Pine Avenue/Bay Boulevard intersection in Anna Maria, under the present land-use designation, can accommodate a restaurant, marina or strip mall for retail shops. Islander Photo: Rick Catlin

Forgive the owners of the property on the northwest corner of Pine Avenue and Bay Boulevard in Anna Maria if they feel like a used tennis ball. Since the city began revising its comprehensive plan and future land-use map four years ago, discussion on the land-use designation on their property has been bounced back and forth more times than a Roger Federer - Andre Agassi match point.

Larry Herrig of LBK Realty bought the property several years ago knowing that a lawsuit against the city in 1981 resulted in a zoning change on the property from residential to commercial.

Herrig and his partners subsequently petitioned the commission during its deliberations on the FLUM to change the land-use designation from commercial to ROR. That suggestion was originally turned down, but upon further review, the planning and zoning board agreed that ROR was the proper land use for that parcel.

Alas, that ROR designation only lasted until May 21, when the commission reversed the P&Z course and voted 3-2 to retain the commercial land-use designation on the property.

Attorney Matt Taylor, representing Herrig and LBK Realty, said he found the commission change of heart was "absolutely amazing and defies reason.

"We were floored," Taylor added. "We can’t understand the decision because it goes against the entire comprehensive plan." He argued that the comp plan and FLUM are to encourage the "village atmosphere" and "residential character" of Anna Maria and the commission action is emphasizing commercial development.

An ROR designation on the property would allow his clients to create a project that would be in keeping with the goals of the comprehensive plan, he maintained.

The owners, Taylor noted, have demonstrated that strictly commercial activity at that location "won’t work" under the prevailing property tax and wind insurance rates on Anna Maria Island.

Without the ROR land-use designation and accompanying zoning, "the commission majority has zoned my clients out of being a benefit to the community," Taylor said.

But while his clients may have lost the first battle, the war is far from over.

Taylor said he will submit a 12-page letter to accompany the FLUM and comprehensive plan to the Florida Department of Community Affairs, which must review and approve the documents before the city can enact appropriate legislation.

"We’ll certainly show how the commission has flip-flopped on this particular issue," he said, in addition to a number of other legal points.

The comprehensive plan and accompanying ordinances are a "legislative process and we have to let the action play out, but this is not a dead issue as far as our clients are concerned. It would be fair to say that future legal action is always an option. We are reserving all our clients rights," he concluded.

And Taylor wasn’t the only attorney who had "issues" with various aspects of the comp-plan and FLUM.

Attorney Michael Connolly, representing former Commissioner Linda Cramer, said that a "logical" future land use for Cramer’s property at 9702 Gulf Drive is retail-office-residential, not residential as passed by the commission May 21.

Connolly claimed Cramer’s property was being singled out and is being treated differently than that of other properties in the area, which have been designated ROR.

He also presented historical background which indicated the city commission at a special meeting Nov. 26, 1991, had unanimously approved a motion to designate the property commercial, not residential.

Failure of the commission to change the land-use designation to ROR will place an "inordinate burden" on the property and "will result in a substantial diminution in the value thereof," Connolly claimed.

The sudden shift at the May 21 meeting by the commission to allow new construction in a commercial zone to be built to a maximum height of 37 feet, not 27 feet as previously agreed to by the commission, resulted in a letter from attorney Brendan Rowe, representing William and Barbara Nally of Spring Avenue.

Rowe said that pushing the height limit from 27 feet to 37 feet allows construction of a three-story building with two usable floors on top of a level for parking and deliveries. This, Rowe argued, "would create a new, very intense, use of commercial property within the city of Anna Maria," and that’s inconsistent with the goals, objectives and policies of the plan.

Rowe also claimed that, despite what commissioners may believe, under the city’s current land development codes, the commission does not have the "discretion" to apply restrictions on commercial activity at such a structure.