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[Note from site administrator: The following is the text of a letter from the legal counsel for Pine Avenue Restoration to Anna Maria City Attorney James Dye.]
A t t o r n e y a t L a w
February 9, 2010
VIA E-MAIL and HAND DELIVERY
James D. Dye, City Attorney
City of Anna Maria
Dye, Dietrich, Petruff & St. Paul, P.L.
111 3rd Avenue West
Suite 300
Bradenton, FL 34206
Re: Chapter 90 of the City’s land development regulations (LDR’s) and the
Comprehensive Plan Consistency Requirement
Dear Mr. Dye:
On February 11th, there will be a joint session of the City Commission and the Planning and Zoning Board to discuss Commissioner Harry Stoltzfus’ opinion that if off-street parking requires the use of public right of way for ingress and egress, it violates Section90.3 (m) of the City Code (“Ordinance”) which states that:
February 9, 2010
VIA E-MAIL and HAND DELIVERY
James D. Dye, City Attorney
City of Anna Maria
Dye, Dietrich, Petruff & St. Paul, P.L.
111 3rd Avenue West
Suite 300
Bradenton, FL 34206
Re: Chapter 90 of the City’s land development regulations (LDR’s) and the
Comprehensive Plan Consistency Requirement
Dear Mr. Dye:
On February 11th, there will be a joint session of the City Commission and the Planning and Zoning Board to discuss Commissioner Harry Stoltzfus’ opinion that if off-street parking requires the use of public right of way for ingress and egress, it violates Section90.3 (m) of the City Code (“Ordinance”) which states that:
All off-street parking areas, including all areas for maneuvering,
shall be located solely on the subject property, shall not use public
rights-of-way, shall have vehicular access to a public street, and
shall be designed to provide safe and convenient circulation in
accordance with commonly accepted traffic engineering practices.
Legal counsel for Pine Avenue Restoration has previously written you concerning the unfairness of this interpretation and the selective application to the Pine Avenue Project1, both of which violate certain constitutional rights of the Owner. In addition to these legal issues, we are also asking you to take into account the Comprehensive Plan and statutory requirements that all City land development regulations2 must be consistent with that plan.3 You will find that the
1 As you recall, the Pine Avenue Project has received City approval on three different site plans, wherein City staff and City boards have found the Project to be consistent with the current and historic interpretations of the City’s Comprehensive Plan and all codes and ordinances that implement it. Pine Avenue plans completed so far, as well as those currently in process, create distinct buffers between commercial and residential uses by setting the residential uses as buffers between commercial uses and the neighbors abutting the rear lot lines. Residential abuts residential and commercial faces Pine Avenue. Now, arguably, for no other reason than political retribution, a City Commissioner seeks to change the rules midstream, in order to impede and terminate the Pine Avenue Project. Florida law is clear that the City may not enforce a land development regulation which is inconsistent with the Comprehensive Plan.2 "Land development regulations" means ordinances enacted by governing bodies for the regulation of any aspect of development and includes any local government zoning, rezoning, subdivision, building construction, or sign regulations or any other regulations controlling the development of land,… Section 163.(23) Florida Statutes
James D. Dye, City Attorney
2/9/2010
Page 2 of 3
______________________________
proposed interpretation of the above-Ordinance is clearly inconsistent with the City’s
Comprehensive Plan.4 The City adopted its first comprehensive plan on June 12, 1989 (See, Ordinance No. 89-496). Policy 1.3.1 provides that “development within the Residential/Office/Retail [ROR]…shall be encouraged through….the City’s Land Development Regulations” Policy 1.3.4 provides that “the…[ROR]category shall be used as a means of encouraging mixed use development and/or redevelopment in keeping with the…residential character…” (Emphasis added.) Policy 1.3.8 states: “strip commercial development...is strongly discouraged…through regulations…controlling the number and location of curbcuts”.
The City adopted its second comprehensive plan on December 11, 2007 (See, Ordinance No. 07-682). Goal 1 (establishing legislative intent) provides that the intent of the Plan is to “…..ensure that the single-family residential character of the City of Anna Maria is maintained and protected, while supporting commercial uses in the commercial and ROR land use categories.” (Emphasis added.) Policy 1.3 provides that “All non-residential development in the mixed use development area shall provide appropriate, proper separation and buffering between residential and nonresidential land uses.” Policy 1.3.4 provides that “The [ROR] land use category shall be used as a means of encouraging mixed use development and/or redevelopment in keeping with the overall residential character of the community.” (Emphasis added.)
In both plans, mixed use development is encouraged. In fact, in the first plan, the ROR District was formed in order to encourage mixed use development. In the second plan, since very little materialized to “encourage” mixed use development, the City proactively added the following language: “supporting commercial uses” to Goal 1. Thus, legislative intent was specifically established in the second plan. Additionally, occupancy restrictions, which were seen as
3 Section 163194 (1)(b) Florida Statutes provides that: All land development regulations enacted or amended shall be consistent with the adopted comprehensive plan, or element or portion thereof, and any land development regulations existing at the time of adoption which are not consistent with the adopted comprehensive plan, or element or portion thereof, shall be amended so as to be consistent. If a local government allows an existing land development regulation which is inconsistent with the most recently adopted comprehensive plan, or element or portion thereof, to remain in effect, the local government shall adopt a schedule for bringing the land developmentregulation into conformity with the provisions of the most recently adopted comprehensive plan, or element or portion thereof. During the interim period when the provisions of the most recently adopted comprehensive plan, or element or portion thereof, and the land development regulations are inconsistent, the provisions of the most recently adopted comprehensive plan, or element or portion thereof, shall govern any action taken in regard to an application for a development order.
4 § 163.3201. states that: “It is the intent of this act that adopted comprehensive plans or elements thereof shall be implemented, in part, by the adoption and enforcement of appropriate local regulations on the development of lands and waters within an area. It is the intent of this act that the adoption and enforcement by a governing body of regulations for the development of land or the adoption and enforcement by a governing body of a land development code for an area shall be based on, be related to, and be a means of implementation for an adopted comprehensive
plan as required by this act.”
James D.Dye, City Attorney
2/9/2010
Page 3 of 3
Impediments to mixed use development, were removed from the Plan, in an effort to achieve the objectives of both Comprehensive Plans: “to encourage mixed use development”.
In addition to the conflict the Ordinance will create with the Comprehensive Plan, there are a number of other issues that arise:
· The newly proposed application of the Ordinance will result in the creation of the very “strip center” look and feel the Plan says must be rejected.
· Additionally, the new-found application of the Ordinance will minimize a residential look and feel, while exposing neighbors to full commercial parking lots, and/or buildings jammed up against the rear setbacks
· The application of the Ordinance, as represented in drawings submitted by supporters of Stoltzfus’ position, will deprive residential owners of their property rights by limiting one residential until to two lots, and
· Finally the Ordinance does not encourage, but in fact discourages, mixed use development in direct conflict with the Plan.
It is obvious that the Ordinance was not drafted to be consistent with the Comprehensive Plan, but, in fact, predates it by decades. The fact that this artifact from the past remains on the books at all is evidence that the City has failed to meet its obligations to create LDR’s in support of its own Comp Plan objectives and eliminate those that are inconsistent. The Florida Attorney General has opined that: “All land development regulations and actions including permits for the construction and use of property issued by a municipality must be in accordance with the local government’s comprehensive plan. Additionally, pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, ss. 163.3161-163 3215, F.S., effective October 1, 1985, except as noted supra, local governments are required to amend any land development regulations inconsistent with the comprehensive plan or element or portion thereof so as to be consistent, and during the interim period prior to such amendment, the provisions of the most recently adopted comprehensive plan or element or portion thereof shall govern any action taken in regard to an application for a development order., 85-56, 1985 Fla. AG LEXIS 45; 1985 Op. Atty Gen. Fla. 158. For this and other reasons, the Comprehensive Plan, not the Ordinance, governs any action taken by the City with regard to the PAR site plan applications. If the City wishes to proceed with the Ordinance, in order to remedy the consistency issue, it must first amend its Comprehensive Plan. Any other action to implement the Ordinance will subject the City to a legal challenge pursuant to Chapter 163.
I hope you find this useful and that you will consider this issue and advise the City Commission accordingly.
Very truly yours,
cc. Clients
Valerie Fernandez, Esq,
The Honorable Fran Barford, Mayor City of Anna Maria
2/9/2010
Page 3 of 3
Impediments to mixed use development, were removed from the Plan, in an effort to achieve the objectives of both Comprehensive Plans: “to encourage mixed use development”.
In addition to the conflict the Ordinance will create with the Comprehensive Plan, there are a number of other issues that arise:
· The newly proposed application of the Ordinance will result in the creation of the very “strip center” look and feel the Plan says must be rejected.
· Additionally, the new-found application of the Ordinance will minimize a residential look and feel, while exposing neighbors to full commercial parking lots, and/or buildings jammed up against the rear setbacks
· The application of the Ordinance, as represented in drawings submitted by supporters of Stoltzfus’ position, will deprive residential owners of their property rights by limiting one residential until to two lots, and
· Finally the Ordinance does not encourage, but in fact discourages, mixed use development in direct conflict with the Plan.
It is obvious that the Ordinance was not drafted to be consistent with the Comprehensive Plan, but, in fact, predates it by decades. The fact that this artifact from the past remains on the books at all is evidence that the City has failed to meet its obligations to create LDR’s in support of its own Comp Plan objectives and eliminate those that are inconsistent. The Florida Attorney General has opined that: “All land development regulations and actions including permits for the construction and use of property issued by a municipality must be in accordance with the local government’s comprehensive plan. Additionally, pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, ss. 163.3161-163 3215, F.S., effective October 1, 1985, except as noted supra, local governments are required to amend any land development regulations inconsistent with the comprehensive plan or element or portion thereof so as to be consistent, and during the interim period prior to such amendment, the provisions of the most recently adopted comprehensive plan or element or portion thereof shall govern any action taken in regard to an application for a development order., 85-56, 1985 Fla. AG LEXIS 45; 1985 Op. Atty Gen. Fla. 158. For this and other reasons, the Comprehensive Plan, not the Ordinance, governs any action taken by the City with regard to the PAR site plan applications. If the City wishes to proceed with the Ordinance, in order to remedy the consistency issue, it must first amend its Comprehensive Plan. Any other action to implement the Ordinance will subject the City to a legal challenge pursuant to Chapter 163.
I hope you find this useful and that you will consider this issue and advise the City Commission accordingly.
Very truly yours,
cc. Clients
Valerie Fernandez, Esq,
The Honorable Fran Barford, Mayor City of Anna Maria
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