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Reporting from Bar Harbor, Maine:
COLLIER COUNTY — Legal opinions are becoming plentiful whether a proposed move of commercial zoning in Ave Maria for Jackson Laboratory would require approval by four Collier County Commissioners or if three votes is enough.
Commissioners are expected to discuss the issue Tuesday as it relates to the 2002 creation of the Rural Land Stewardship Area, RLSA, in eastern Collier, a zoning overlay for nearly 200,000 acres in eastern Collier, which includes Ave Maria.
In exchange for giving up development rights on environmentally sensitive land, landowners receive “credits” that can be sold for development on land that is less sensitive, with the intended result that “smart growth” is promoted.
At issue now is whether an amendment to the master plan for Ave Maria within the RLSA is ruled a rezoning. If it is, it will require a supermajority vote. If it isn’t, only a simple majority vote is needed.
In December, the commission will be presented with an amendment to the Ave Maria master plan, called a stewardship receiving area, to move half of commercial zoning in place in the Ave Maria town center along Camp Keais Road to the 50-acre site off Oil Well Road where Jackson Lab would be built.
Commissioner-elect Georgia Hiller, a critic of the Jackson Lab project without a voter referendum and because of the potential $130 million local cost, will be in the District 2 seat by then. That sets up a scenario of Jackson votes likely being 3-2 vote with Hiller and Commissioner Tom Henning dissenting. In the past, Hennning has been the sole dissenter on Jackson votes.
Officials with the Eastern Collier County Property Owners, a group of eight large landowners including Barron Collier Co., which owns the 50 acres on Oil Well Road that would be donated to Jackson, says the RLSA “was to be implemented using a unique set of guidelines and criteria rather than traditional zoning procedures,” according to Russell Priddy, representing the group, in an Oct. 22 letter to commissioners.
When the issue came up two weeks ago at the board meeting, County Attorney Jeff Klatzkow said staff members were researching the legalities but he said a 1967 state law and the county’s own zoning ordinances require a supermajority vote on all zoning changes.
In follow-up correspondence Nov. 1 to the County Attorney’s Office, local attorney John Passidomo, representing the Eastern Collier landowners, stated an amendment to the Ave Maria stewardship receiving area does not constitute a change in the zoning ordinance. He goes on to say that the RLSA is the zoning ordinance for the area.
“The adoption of the overlay by the Board itself constituted a ‘change in the zoning ordinance’ and was accordingly approved by (a) super majority of the board,” he said.
Passidomo also said that requiring a supermajority vote to approve a stewardship receiving area designation or to amend one would undermine the objective of the RLSA to provide an incentive to private landowners to participate in the program to protect environmentally sensitive lands.
From another standpoint, he said the County Attorney’s Office has used an internal checklist since 2008 for when amendments to a stewardship receiving area requires a super majority vote but such a checklist carries no legal weight.
Passidomo said commissioners should not be making any decision on the issue.
“It is a legal question and the proper forum is to have it decided in a legal forum,” he said, adding that is why his opinion was sent to Klatzkow and not commissioners. “I don’t think anyone expects the (commission) should be rendering that kind of opinion.”
Mark Strain, chairman of the Collier County Planning Commission, which was scheduled last week to consider the amendment to move some of the commercial zoning in the Ave Maria town center to Oil Well Road, said the planning board’s task is only a zoning analysis. The issue was rescheduled for the planning board’s Dec. 2 meeting.
He said if there isn’t any negative impact to road capacity, the planning board cannot turn it down.
“This type of movement is routine,” he said.
But with respect to whether the county commission would have to approve the amendment by a supermajority vote or not, Strain said state law and the county’s local zoning ordinance is clear that a supermajority vote is required.
“A supermajority vote is needed for any changes in zoning,” Strain said.