Port St. Lucie Planning Board majority recommends Riverland/Kennedy denial due to annexation controversy

PORT ST. LUCIE – The majority of the Planning & Zoning Board refused to back an amendment to a Tradition-area development of regional impact that would have allowed for more age-restricted housing due to a perceived lack of information in the midst of ongoing litigation between adjacent real estate developers.

GL Homes, the developer of the Riverland/Kennedy Development of Regional Impact, had asked the P&Z Board to support an amendment to its conceptual site plan for the DRI in order to set aside more than of a third of the planned 8,424 units as senior adult housing. A handful of GL Homes representatives, as well as those representing the adjacent developer of the Wilson Groves property – Akel Homes – assailed the Board with contradicting information that at times seemed as if they were litigating their actual civil court case during the quasi-judicial hearing.

After city planner Daniel Robinson recommended approval of the requested change to the 3,845-acre property south of Discovery Way and west of Community Boulevard insisting it wouldn’t

“change the net acreage of any land use designation,” Urban Design Studio’s Ken Tuma assured P&Z members they had statutory authority to do just that.

“Another part of the component of this discussion will be House Bill 1151, which changed Florida statutes on how DRIs are implemented and how the regulations have been delegated to local government for consideration of these amendments,” he said. “So. these amendments are in your regulatory component.”

Mr. Tuma emphasized that GL Homes needed P&Z Board approval because the original DRI did not mention senior housing but insisted the change would not increase total residential density.

“The most important part of the discussion today is that there is no net change to residential density, no change in commercial intensity, no additional land area,” he explained. “We’re just reallocating the sub-districts around the project, updating the phasing, the build-out and the permit days.”

Doug Smith, the Tallahassee-based attorney representing GL Homes, then opened up the can of worms facing the P&Z Board that day, a letter sent via email to the city on New Year’s Eve by Akel Homes alleging that approval of the request would violate an annexation agreement signed years ago by both developers to financially collaborate on the western extension of Becker Road.

“That is not germane for the analysis before the Board,” he insisted. “It is germane, however, for the circuit court that is going to interpret the meaning of the annexation agreement. The primary objection raised is that it somehow affects Wilson Groves’ access to the property. The annexation agreement itself makes it very clear that the city’s approval process is not impacted by the annexation agreement. It can’t be – it would violate doctrines of contract zoning.”

Akel Homes’ West Palm Beach-based attorney Al Malefatto then disputed that argument.

“The application we believe should be denied as noted in the letter, or at the very least tabled, until the issues are resolved,” he said. “As noted, there is this annexation agreement that went back to 2004 and it involved three developers within the southwest annexation area: Riverland/Kennedy, Wilson Groves and Southern Groves. The application improperly seeks approval of more units than currently permitted under Phase 1 of the DRI without the required road construction. Approval of the current application would allow Riverland to avoid meeting its obligations under the DRI… and the annexation agreement to construct roads necessary for both Riverland and the surrounding developments.”

Akel Homes’ contracted traffic engineer Susan O’Rourke told the Board more time was needed before approving the request in order to study potential traffic impacts.

“Those revisions could be substantial,” she said. “We don’t know because we don’t have a traffic study that evaluates the change and the location of the land use. If that phasing and the infrastructure is being changed, there should be an analysis of that to demonstrate it wouldn’t have an impact.”

Cotleur & Herring Land Planner Daniel Sorrow was the first Akel Homes representative to claim the change to the Riverland/Kennedy project would leave his client unable to develop the 2,500-acre Wilson Grove property.

“It’s got entitlements for 7,200 residential units, parks, schools, civic facilities, etc. [but] to-date we’ve been able to construct zero homes, zero parks, zero roads,” he exclaimed. “We’ve been able to do nothing because we’re landlocked by Riverland/Kennedy. Akel Homes/Wilson Groves has given the city over $20 million to develop their property, and they haven’t been able to do so since 2006. We think it’s appropriate to table this project to give staff [and] the developer more time to find out how they’re going to get us a road network to Wilson Grove.”

Akel Homes’ Horacio Moncada echoed those sentiments.

“Akel Homes invested more than $20 million towards planning and constructing roads within the City of Port St. Lucie,” he said. “This substantial amount of money was invested into the city in good faith based on the city’s assurances that the rights and interests of Akel Homes would be protected by the city itself. Unfortunately, [city] staff’s conduct and willingness to bend to the improper demands of the developers involved with the development of the annexed properties has jeopardized the vision for a better city that all parties to the annexation agreement originally shared.”

Mr. Smith then asked to return to the podium for rebuttal.

“If you look to your Land Development Code and Comprehensive Plan, you’re not going to see anything in there that says any development order that you consider needs to be in compliance with the annexation agreement,” he said. “The landlocking of the Wilson Groves property is false. It’s something that’s in front of the circuit court and we plan to aggressively pursue. The annexation agreement itself affords Wilson Groves the right to build two lanes across the Riverland property and then charge the cost and 18 percent interest to the developer.”

When Mr. Moncada continued to insisted that Akel Homes has paid $300,000 annually to the city for the last 10 years in addition to its $20 million investment and had “nothing to show for it,” P&Z Member Dan Kurek threw up his hands in the face of the contradicting testimony.

“I don’t think any of us have the legal [authority] or the ability to try to second guess what the circuit is going to do,” he said. “This is above our paygrade. We can’t deny it: I don’t think we the ability to do that without consequences legally or otherwise. We could certainly table it or approve it and send it off to City Council and let them figure this out.”

Chairwoman Debra Beutel agreed to the need for more time.

“You took the words out of my mouth,” she said to Mr. Kurek. “I do believe it would probably be beneficial to have some time to do some research of our own before we come to any conclusion on this request.”

Board Member Ana Gomez-Malata then made a motion to table the matter until Feb. 2 in order to gain access to the annexation agreement documents.

“I want to see them, both documents,” she said.

When her motion subsequently died for a lack of a second, Board Member Alfreda Wooten made a substitute motion to recommend denial, which was seconded by Ms. Gomez-Malata. That motion passed 4-2, with Chairwoman Beutel and Mr. Kurek dissenting. The request now goes to the Port St. Lucie City Council Jan. 25 with a recommendation for denial.

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