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Tampa - St Pete
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Tampa was wrong to reject the Citivest condo plan, it rules.
By RICK GERSHMAN

TAMPA - An appeals court agrees with developer Citivest that the Tampa City Council erred when rejecting the developer's plan for a 24-story condominium along Bayshore Boulevard.

In an opinion filed Wednesday, the 2nd District Court of Appeal affirmed a lower court ruling that faulted the city for basing its denial largely on the building's proposed height, 195 feet.

The court said the city allowed Hyde Park historic district design guidelines to trump zoning standards. Historic district guidelines, the court stated, "were never intended to conflict with or supersede the primary zoning designations."

Tampa's Architectural Review Commission called the building incompatible with surroundings at Bayshore and Bay to Bay boulevards. Traditionally, the commission uses historic district design guidelines to decide whether to recommend projects to the council.

The appellate opinion states: "Can the ARC, based on the criterion of 'scale, height and width' alone, limit a proposed structure to any particular height? No such power ... has been identified."

It was unclear Thursday how the ruling will affect Citivest's plans for the site.

Council member Linda Saul-Sena said City Attorney David Smith would meet individually with council members to discuss options.

The decision also raises questions about the role of the commission, which last week withheld endorsement of a project in Old Hyde Park Village because of the size of two condo towers.

Representatives for its developer, David Wasserman, said they planned to propose the project to the council anyway.

The appellate opinion repeated the Circuit Court's claim that "Tampa has created this quagmire of competing and seemingly inconsistent building requirements."

Stated the appellate court: "We fully concur with that opinion."​

http://www.sptimes.com/2007/05/25/Hillsborough/Appeals_court_backs_t.shtml
 

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This ruling is very interesting and will probably screw up a lot of city council decisions - it may even negate the decisions of the towers near Bay to Bay
 

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I agree that the council made a horrible decision in this case. The Citivest tower was very nice if I remember correctly, and I think it would make a great addition to Bayshore. It even allowed for parking for those who want to take a stroll down Bayshore. I hope it gets built. If the developer fights it in court, I assume it means they want to build it.
 

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So let me get this straight:

This ruling says that the ARC cannot deny a building based on scale, only upon style?

So people can build a 40 story tower in the district as long as there are architectural stylistic touches that compliment the surrounding area?

Interesting...
 

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I guess that is what they are saying. That is the conclusion that I came to, but you said it before I could.
 

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What it says is that the ARC cannot deny it on height as long as the building fits the designated ratio - as per zoning.
 

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But the ARC doesn't really decide anything does it? Projects that weren't approved by the ARC can still go before the council. Seems odd to get a court order for a reversal of a suggestion from a neighborhood board. The neighborhood said they didn't like it, that won't change with any court ruling.
 

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The council is an appellate body for the ARC. The court is reversing the council and the arc saying that the ARC had no authority to deny approval on the grounds it did - so the council could not uphold that denial.

The court has removed height from this issue. It basically said that if it fits the ratio, then you can't say height. I also point out that massing in not a criterion that seems to be able to be used.
 

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Appeals court backs tower

Tampa was wrong to reject the Citivest condo plan, it rules.
Of course the court ruled in favor of the plaintiff... Just as I said would inevitably happen all along... The fact that this went to court is so ridiculous that to me, it almost borders on negligence by the city staff involved. Dumb, Dumb, dumb!!!

Now, I hope that the city is required to pay all expenses unduly incurred by the landowner... And then I hope that the morons in city govt. who perpetrated this shit lose their jobs, are never able to get a similar govt job, are held financially accountable to the taxpayers... Oh, it would probably also be a wise idea for City Council to stop kowtowing to neighborhood nannies, who also don't know what in the hell they are talking about when it comes to development and development rights.

As I always say, the only people who should be making such decisions are the ones who actually have the qualifications to do so. The COT obviously let unqualified (or incompetent) people make the decisions on this issue, and now it's going to cost the taxpayers a pretty penny.

WHERE IS THE ACCOUNTABILITY?!?!?!
 

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Of course the court ruled in favor of the plaintiff... Just as I said would inevitably happen all along... The fact that this went to court is so ridiculous that to me, it almost borders on negligence by the city staff involved. Dumb, Dumb, dumb!!!

Now, I hope that the city is required to pay all expenses unduly incurred by the landowner... And then I hope that the morons in city govt. who perpetrated this shit lose their jobs, are never able to get a similar govt job, are held financially accountable to the taxpayers... Oh, it would probably also be a wise idea for City Council to stop kowtowing to neighborhood nannies, who also don't know what in the hell they are talking about when it comes to development and development rights.

As I always say, the only people who should be making such decisions are the ones who actually have the qualifications to do so. The COT obviously let unqualified (or incompetent) people make the decisions on this issue, and now it's going to cost the taxpayers a pretty penny.

WHERE IS THE ACCOUNTABILITY?!?!?!
I recall that David Smith, City Attorney, warned the city council that there was an excellent chance that the city would lose the appeal if they went forward. City council decided to go against the advice of their legal counsel... Oddly enough, staff should be telling city council "I told you so..." at the next meeting, but of course that will never happen :)
 

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Indeed. This is the city council's fault - as are most lawsuits agaisnt the city of this nature. But, hey, they still get to say they tried to protect their constituents, so they don't care - not their money
 

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^^ That's correct. Mr. Smith did warn the city council that the odds on appeal were not in their favor. I believe he also mentioned that this could burden the city financially in the long run through the legal process.

If I remember correctly, the project was called "C" and it was an attractive tower.

So let's see . . . the city council members were gearing up for the next election; if the district's council representative Dingfielder went against the overwhelming opposition of his constituency then he most certainly would have lost; the remaining members know who the "movers and shakers" are here in Tampa and they didn't want it either, so in order to secure cash and votes they chose to oppose the project. Hummm, I wonder why?

seems clear to me that maybe the ignorant constituency is to blame. It's funny isn't it?.?. If you vote against the will of the people then you're failing to represent your "people" and you're out on ur ass, but if you vote against them out of principle while they're flexing too much muscle then you're a sellout to the developers and you're out on your ass, as well. Sometimes in politics, you can't win no matter what decision you make and YES, every politician plays the game to win even if they have to plug their nose sometimes to stay in the game.

Anyone up for a friendly game of chess? ;)
 

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Looking further back into it, it appears that Councilman Dingfelder was quite the cheerleader when it came to frothing up the neighborhood... Exactly what sort of leadership did he think he was providing by inviting residents to whip up a shitstorm over a project that he knew there was no legal foundation with which to oppose, and in fact by opposing has cost the very constituents he claims to represent an untold sum in legal fees?



boo! hiss!
 

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This DCA opinion should be taken with caution - it probably has little, if any, value as legal precedent.

The circuit court was acting in a sort of appellate capacity for the city council. The city had filed for certiorari to the district court, which is a request for the DCA to review an issue from a non-final judgment or ruling issued by the circuit court (i.e. the final outcome from the circuit court is not being reviewed.) Certiorari is hard to get because the courts generally want parties to a suit to wait until the lower court action is complete. Note the bottom of page 4: for cert. to be granted, there has to be a violation of a "clearly established principle of law resulting in a miscarriage of justice." The DCA denied the city's request.

All the DCA is saying is that there was no drastic violation of a clear law in the decision of the circuit court. The city may be able to seek plenary appeal (what most people think of an appeal - after a full trial, etc.) for the entire circuit court ruling if a final order or judgment is issued. And the DCA hasn't said the circuit court got it right - they're just saying there's no major snafu.

Also, the opinion is per curiam, meaning no judge really "wrote" it. It's highly questionable whether this would be considered persuasive in any similar legal action in the future.
 

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That is a very odd way of looking at it. IT is not dicta. It is an opinion by the whole court (per curiam) without dissent. You don't need someone to "write" the opinion for it to be precedent. Moreover, the explanation of the interplay between the zoning and the ARC will probably be followed because it seems to be the only explanation there is and no circuit judge is going to want to be reversed. Whether the city makes better decisions is another matter altogether.

The value of the case is that it tells the ARC what it cannot do. . .

I'll put it this way - I would rather be arguing with the case in hand than on the other side.
 

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My bad about the per curiam. I thought that it meant the court adopted an amicus brief verbatim (why, I don't know.)

My only point about the opinion is that you have to show serious error to get cert. review. It says that the circuit judge's decision, i.e. that zoning is controlling over the ARC, is not a deviation of clearly established law that results in a miscarriage of justice. Basically: "the judge wasn't on crack when he ruled this way. We won't hear you right now". While the zoning issues in the DCA opinion are certainly not dicta, they still do not have much of any probative value on the substantive issues (though I know that's arguable.)

I definitely agree that a circuit judge will want to avoid getting whipsawed, so this may put some pressure on her to rule the same way in a similar situation, but that's an operative effect and not a legal one. Either way, you're right in noting that it's advantage: Citivest.

Not that I'm trying to cross swords, smiley. I'm taking a Fla. civ pro class right now, so it's interesting to see how it plays out in real life, even if it is all academic.
 

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No problem - unfortunately this is a bit out of the civ pro realm in the sense that the City COuncil is sitting in a quazijudicial capacity, so the circuit court is appellate - which takes it out of the straight rules into a nether world of local rules, appellate rules, civ pro rules, and judicial fiat. . .
 
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