VENICE — The City Council is done with Murphy Oaks. It remains to be seen if Murphy Oaks is done with the City Council.
In a rare Wednesday session, the Venice City Council voted 5-1 to reject a special magistrate’s recommendation that a proposed rezoning of the 40-acre Murphy Oaks parcel along Auburn Road be approved.
The decision could get the city sued, though Herb Lawson, CEO of the company seeking the rezoning, has said he’s never sued a city over a land-use decision.
It was the third rejection of the rezoning of the property as a planned-unit development, all for essentially the same reason — incompatibility with Fox Lea Farm, a nationally known horse show facility to the south.
The Council had voted down proposed rezoning ordinances in November 2018 and again in October 2019. The latter ordinance was the product of a mediation between the city and the applicant, Windham Development Inc., after the first rejection.
Windham again sought mediation under the Florida Land Use and Environmental Dispute Resolution Act after the second rejection.
That time Special Magistrate Scott Steady couldn’t broker a settlement, so he conducted a hearing, after which he concluded the rejection was “unreasonable and unfairly burdens the owner’s property.”
The city’s comprehensive plan and land-development regulations have only vague compatibility standards, he found, giving the Council no basis to impose on Murphy Oaks the conditions Fox Lea sought.
Venice Development Director Jeff Shrum acknowledged that “those standards just aren’t there,” which gives the Council some leeway but can also be an area of concern if a decision needs to be defended.
Steady recommended approval of a revised rezoning ordinance that City Attorney Kelly Fernandez told the Council members they should give “serious consideration,” because it was the product of a hearing in which all the affected parties, including Fox Lea and the Sawgrass Community Association, participated.
By the time testimony had wrapped up, there were basically two major sticking points between Windham and Fox Lea: the location of a stormwater pond and the timing of the construction of a berm and wall dividing the properties.
The pond was sited south of the southernmost road in the planned community, with the berm and wall south of that and north of a vegetative buffer.
Through attorney Jeff Boone, Fox Lea asked that the pond be relocated and the area left natural, to block more sound.
Windham, which had already agreed to eliminate home sites south of the road, said there was no place to put the pond without further reducing the number of units or reducing the lot size.
It had already downsized, as its original proposal was for 119 units — the maximum allowed.
And it couldn’t agree to limit work on the berm and wall to Fox Lea’s slow period — a 16-week window during hurricane season for a 16-week-long project, attorney Robert Lincoln said.
Lincoln said he recognized the special place Fox Lea has in the community.
Laurie Birnbach, director of business development, said it’s the No. 1 sports tourism venue in the county.
But, Lincoln said, the Council’s decision had to be based on the application and the city’s comprehensive plan and land-development regulations, not emotion. The staff report, he said, shows compliance with both.
Under FLUEDRA, the Council’s options were to accept Steady’s recommendation; modify it; or reject it.
Steady said that in his opinion making Windham relocate the pond, rendering about a quarter of the property unusable, would constitute a “taking” under Florida law, possibly entitling it to damages. It might even be an illegal taking, he said.
Council Member Mitzie Fiedler said she would never vote for that, and no one else seemed interested in the idea.
She moved that Steady’s recommendation be approved, with the conditions and stipulations Windham had indicated it was agreeable to. There was no second.
Then Council Member Brian Kelly moved to reject the recommendation, based on incompatibility with the existing neighborhood, including Fox Lea.
The reference to Fox Lea concerned Council Member Helen Moore, who said it might look as though the Council were favoring the business improperly. Kelly said that it was the same language as in the October denial.
“It would behoove you” to remove the reference to Fox Lea, Fernandez said, but she also noted that the record of the hearing was full of references to the need to protect it.
Vice Mayor Rich Cautero said Windham and Fox Lea were at an impasse.
“This may be beyond the ability of our City Council to settle,” he said. “I continue to have trouble crossing the compatibility finish line.
Council Member Joe Neunder likened the proposed rezoning to putting “a square peg through a round hole.”
Fiedler said they had been elected to make the hard decisions, and that rejecting the rezoning could open the city up to the risk of litigation at the taxpayers’ expense.
“The question comes down to, if you can’t develop this, can you develop anything?” she said. “What will ever get approved?”
The property is designated for residential development on the city’s future land use map and is overdue for rezoning, having been annexed in 2008.
“This is a really tough decision,” she said, “but the law is the law.”
Hers was the only vote against the motion, which passed 5-1. Council Member Nick Pachota was absent, on duty as a public health service officer.
Fiedler’s question is key because under FLUEDRA the city is required to “issue a written decision within 30 days that describes as specifically as possible the use or uses available to the subject real property.”
There was no discussion along those lines Tuesday or Wednesday.
After the order is issued, Windham can challenge it either in a proceeding with the Division of Administrative Hearings or by an appeal to the circuit court.