- June 28, 2024
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A proposal for 15 homes on a 17-acre parcel at the State Road 70 entrance to The Concession was approved June 20, but some Panther Ridge and Concession homeowners who are opposed to the project are not backing down just because one vote by Manatee County commissioners didn’t go their way.
Those homeowners have vowed to continue with a battle that began four years ago over a patch of green space and a horse trail. They hope to raise funds to file a lawsuit against the county.
“Our boards, our residents, there are many of us who have a greater resolve than what I think The Concession (representatives) would like us to have,” said Nikki Olarsch, vice president of the Foxwood at Panther Ridge Homeowners Association. “They can expect to see us again.”
The Concession developer Kevin Daves had an equally strong resolve to reallocate the 22 remaining units out of the 255 housing units that were approved in The Concession’s General Development Plan in October 2000.
Daves’ proposal was denied twice by commissioners in 2020 and 2021. In 2022, Daves filed a lawsuit against Manatee County claiming an estimated $8.9 million in damages for not being able to reallocate the units.
Commissioners, in their first two votes, along with residents in Panther Ridge and The Concession, found The Concession's proposal to be incompatible with the county's Comprehensive Plan. Most of the surrounding homes sit on five to 10 acres. This project would be clustered on a 17-acre parcel that sits 1,500 yards from the gates that lead into The Concession.
In 2000, commissioners turned down the project for the first time, voting 6-1 against it. Another reason for the denial was that the property was home to a trail — an abandoned railroad easement from the 1930s — that had been used by Panther Ridge residents for horseback riding, biking and walking for 20 years.
Residents also said that the open area has been important to the two communities in terms of flood control.
Bill Galvano, attorney for The Concession Golf Club and former state senator, said the developer had considered environmental effects. “This proposal doesn’t represent any significant environmental negative impact,” Galvano said. “They’re not impacting wetlands. They fit neatly into this existing development. And frankly, they’re consistent with the trends that are going on in this area.”
Since being rejected in 2000, the Concession’s plan was modified from 22 units down to 18, three of which will be moved to a separate parcel.
At the June 20 land use meeting, the current board approved the proposal to transfer the units from the original General Development Plan in a 5-1 vote.
The staff's analysis was that the proposal "can be found to be" consistent with the Comprehensive Plan and in compliance with the Land Development Code, and Daves will now drop his lawsuit against the county.
"It can be found to be consistent — I can drive a truck through that language," Foxwood resident Mark Lyons said. "How many at-bats do these people get?"
“We have been advised by the county attorney’s office that we don’t have much of a legal path forward,” Commissioner Kevin Van Ostenbridge said. “Our odds of winning this are slim to none.”
Dan Lobeck, attorney for the Foxwood at Panther Ridge Homeowners' Association, provided a packet of information for each commissioner that laid out an opposing argument to those odds. The moment the packet reached Van Ostenbridge’s hands, he stood up, walked over to the garbage can, threw the packet in and returned to his seat.
Residents, their attorneys, Commissioner George Kruse and county documents offered reasons as to why the odds were not slim to none.
“This is not my opinion. This is the county attorney office’s statement in the record of the lawsuit (filed by The Concession),” resident Rich Williams said as he read from the statement. “Denial did not deprive the plaintiff of the ability to make reasonable economic use. Plaintiff’s complaint fails to state a cause of action for inverse condemnation.”
“The Florida Bar Journal” defines inverse condemnation as “a claim made by a property owner that the effect of a governmental action on its property is so devastating that it is the equivalent of the direct exercise of eminent domain, and thus requires just compensation under the Fifth or 14th amendments.”
Attorneys for The Concession argued that they've had the right to build 22 more homes for 24 years, but Kruse said that doesn't matter because Daves profited on the land twice already in that time.
“There may not be 255 physical structures, but that doesn’t mean they didn’t make a reasonable expected return on the land itself,” Kruse said. “They also subsequently sold the golf course, and part of that was with the cottage rights. There were 16 of them, and now they’re trying to take those 16 away that they already sold, and take them back after they profited from selling them the first time with the golf course.”
The Concession sold all 255 lots, but many to the same owners for single homes. Olarsch said the developer’s “stupidity” should not be the public’s problem.
“As the developer, you made that choice,” she said. “Now, it’s become the public’s problem that you think you’re entitled, like some child, to get whatever you want just because you have money to keep pushing the issue.”
Daves’ lawsuit was filed under the Bert J. Harris Jr. Private Property Rights Protection Act. To summarize the act, the government can’t inordinately burden a piece of private property with laws and regulations.
When passed in 1995, the focus was on farmers. Now, the act is often used by developers when their projects are denied.
“(The Harris Act) has taken away all subjective opinions of a board to do what’s in the best interest for the community,” Kruse said. “It’s tried to quantitatively analyze things that, in some cases, just have to be qualitatively analyzed.”
Commissioner Ray Turner said the commission has to try to avoid litigation if the county attorney says the case has merit.
“We can’t take the approach of — it’s only $9 million and it serves this small number of people,” he said. “It’s the rest of the county’s money, too.”
Kruse said there’s no way The Concession has a viable Bert Harris claim because the act doesn’t state how much profit has to be made. The act simply states that a property owner is entitled to make a return that he or she could reasonably expect to make, which was accomplished when all 255 lots were sold for profit.
“What’s disturbing about this scenario is that, as Commissioner Kruse indicated, nothing has been taken away,” said Maggie Mooney, resident and legal representation for The Forest Homeowners’ Association. “The only thing ever denied was the right to place those units in a particular spot.”
Residents were calling the lawsuit frivolous and nothing more than a threat back in September 2023 when commissioners signed off on a settlement agreement that didn’t actually settle anything. The agreement stated that if the proposal wasn’t reheard for a third time, the lawsuit would continue. If the proposal was reheard and approved, the lawsuit would be dropped.
Galvano reiterated that message to start off the presentation.
“Commissioners, what you have before you today is a proposed ordinance that represents an opportunity for you to resolve, once and for all, costly, active, pending litigation impacting the taxpayers of Manatee County,” he said
County attorney Christopher DeCarlo backed up Galvano saying that the lawyers and residents for the opposition group are asking the county to absorb the risk of a multimillion-dollar lawsuit because they don’t want to see a piece of property developed.
