MANATEE -- A nearly decade-long battle over how many homes can be built in Robinson Farms is not quite over, even though the Manatee County Commission has approved an amended rezone of the property in efforts to settle the pending lawsuit.
In separate votes Thursday, Manatee County commissioners unanimously approved a compliance amendment and a county ordinance to rezone 20 acres at 9523 17th Ave. NW to allow 38 homes to be built there.
Neal Communities, project developer with the Robinson family, will have to return to the commission for site-plan approval before any homes are built. The project is a joint venture between Bochi Properties LLC and Robinson Farms LLC.
The resolution bridged a gap between the county's approved land-use map of granting one unit per acre, or 20 units, and three units per acre, or 60 units. The county lacks a land use to allow two units per acre, so a compliance amendment must be attached to the comprehen
sive plan to allow 38 units on property partially in a Coastal High Hazard Zone. That zone means the land is prone to flooding during Category 1 hurricanes.
Attorney Thomas Reese, who represents residents Katie Pierola and Greg Geraldson, said he plans to appeal the decision to the Florida Division of Administrative Hearings.
"Increasing density in a coastal evacuation zone is prohibited," Reese said. About 23 acres of the project are within the Coastal High Hazard Zone.
County staff told commissioners the approval could conflict with the comprehensive plan to not allow higher density in Coastal High Hazard and Coastal Evacuation zones, but the overriding factor would be whether the decision is in the best interests of Manatee County residents.
Using a larger portion of acreage, Neal wanted to build 150 homes on the property in 2011. This latest decision focuses on a smaller part of the Robinson Farms plan.
The approval resolves a 3-year-old pending lawsuit in Circuit Court claiming the commission used insufficient or incorrect map data in its decision to reject the homes, and sought to answer whether the county had the power to rescind an ordinance once written to allow the higher density. The developers applied for a land-use change in 2009. Maps for hurricane evacuation and Coast Evacuation Area were updated in 2010, altering how much of the land is in a flood-prone area.
"I've had fun with this experience, and I learned a lot about Florida law and the coastal evacuation law. I learned that the process works," said former state Sen. Pat Neal, president of Neal Communities. "It's been a useful, but expensive activity for the Neals."
The expensive legal experience included the pending trial, visiting the Manatee County Commission five times, the Manatee County Planning Commission once, mediation twice and one appearance before an administrative law judge and the Florida Administration Commission, which includes Gov. Rick Scott and his cabinet, Neal said.
Given the anticipated appeal by Reese, Neal could be making at least one more visit. Reese said he thinks the case will likely go before the governor again through the Florida Administration Commission because of the issue's history.
An administrative hearing case brought by Pierola and Geraldson through the Department of Economic Opportunity, formerly the Department of Community Affairs, resulted in an advisory opinion in 2011 that 28 acres in an original proposal of 49 acres was found to be noncompliant based on a 2010 statewide evacuation study because the plan was not based on the latest data, but no final order has been issued.
Several commissioners, including Michael Gallen, said it's best to resolve the issue now rather than risk the case being appealed and the county potentially losing decision-making power through a judicial decision in appellate court.
"That's something that you have to consider when you're looking at the settlement because you don't know what a judge is going to do," Gallen said. "If the (District Court of Appeals) rules, that covers our entire region."
Members of the Sierra Club and Manasota-88 environmental groups oppose the project because of flooding concerns. John Osborne, Manatee County's planning and zoning official, said the developer will have to demonstrate when it raises the property elevation neighbors will not be adversely affected.
Commissioner Betsy Benac, who worked on the project while employed with WilsonMiller before her election, said the issue would have been easier to resolve if this was a new plan.
"If this were an application coming to us today for the first time, clearly in the adopted maps that weren't adopted until 2011, I don't think there would be any question as to what this board would do," Benac said. "We uphold our comprehensive plan here. We have great respect for our comprehensive plan here."
Reese, who was not at Thursday's hearing, contended Benac should have recused herself because she testified as an expert witness in an administrative hearing. Because Thursday's meeting was a quasi-judicial hearing, it would be like a judge reviewing and considering his own testimony, Reese said. He said he did not raise the issue with the county attorney's staff because it ought to be determined by a third party.
County attorneys determined Benac had no conflict of interest and had to vote.
When the county adopted its first comprehensive plan, the property was allowed 4.5 dwelling units per acre. In 1989 the county updated the property to RES-1, or one dwelling unit per acre. A 1997 application to RES-3, or three dwelling units per acre, was denied.
A southern part of the property, which includes 29 acres, has an expired site plan, but the developers plan to bring that plan back to the commission, said Ed Vogler II, the attorney representing Robinson Farms.
Commissioner Robin DiSabitino said the issue might have been easier to resolve if the county had the RES-2 future land use category, offering a bridge between two densities, but the amendment is the best solution.
The decision would not allow other developers in surrounding areas to argue for higher densities because the commission's decision is a "site-specific analysis," said Sarah Schenk, assistant county attorney.
Charles Schelle, business reporter, can be reached at 941-745-7095. Follow him on Twitter @ImYourChuck.