Pinellas County has filed an appeal to try overturning a $16.5 million judgment for a developer denied a zoning and land use change.
The notice of appeal, filed Monday, comes days after Judge Walter L. Schafer Jr. turned down the county’s motion for a new trial.
Clerk of Court Ken Burke transmitted the appeal to the Second District Court of Appeals on Tuesday.
But the Pinellas County Commission never formally voted to appeal the judgment.
“There was no formal agenda item,” assistant county attorney Jewel White said Friday. White agreed that the commission also did not have a shadow, or shade, meeting to discuss the appeal. A shadow or shade meeting is one held outside the Sunshine to discuss trial strategy. It is permissible under the state public meetings law.
“Appeals are considered part ongoing litigation and are not taken back to the board for formal action,” White said.
White said she was not part of the case and could not comment further. County Attorney Jim Bennett was out of the office Friday afternoon and could not be reached for comment.
Even though commissioners did not formally agree to the appeal, they apparently were consulted.
“That was my discussion with Jim Bennett,” Commissioner Ken Welch said. He added, “That was the plan. If we lost the first round, we would appeal.”
The appeal carries a major risk. If the county wins, the judgment simply goes away.
A loss could make things worse.
As it is, the county has to pay the original judgment of about $14.8 million plus interest that had accrued before the June 29 order, making the total judgment $16.5 million. The county also has to pay the developer’s attorneys’ fees, which have not yet been determined. And the county must pay interest at the rate of 4.78 percent per day until the judgment is paid off (or is nullified by an appeal).
That interest will continue to accrue during the appeal — about $1,900 per day — and if the county loses, that will be added to the $16.5 million. It’s unclear how long an appeal might take, but in the 30 days since the order was filed, about $58,200 has been added to the amount the county owes.
And, if the county loses the appeal, it will also likely have to pay the developer’s attorneys’ fees for the appeals process.
The case arose from a 2012 request made by the Richman Group that the city of Safety Harbor rezone a 34.55-acre parcel of land at the intersection of McMullen-Booth Road and 10th Street so that it could build a 246-unit apartment complex and 25,000-square-feet of single story office space. To accomplish this, the land — which had several zoning designations — had to be rezoned to residential. About 15.8 acres of the larger property was zoned industrial.
The proposal won preliminary approval with a 3-2 vote from the Safety Harbor City Council. The proposal had to win the county’s approval before it went back before the Safety Harbor council for the final OK.
But, after hearing from 308 residents opposed to the development, Pinellas County commissioners turned down the proposal saying they believed in the preservation of “industrial” land.
Richman appealed to an administrative law judge, who ruled that the commission had erred. Preservation of industrial land was not one of the reasons the county code listed as an allowable reason for turning down a zoning or land use change.
The case went back to the county commissioners who were cautioned by Bennett that they needed to follow what the administrative law judge had said. But commissioners ignored the advice and unanimously voted to deny the zoning and land use change.