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Something’s rotten in the City of Marco Island — at least that’s what some citizens and councilors feel with regards to the proposed Veterans Community Park hotel project.

On Aug. 3 Florida land developer Small Brothers, LLC announced its plan to build a 165-room hotel at 580 Elkcam Circle and 870 Park Avenue, two parcels of land adjacent to Veterans Community Park. Features of the hotel include a rooftop pool and deck, an enclosed parking garage and a 4,000 square-foot restaurant.

Small Brothers, LLC will also develop Veterans Community Park as part of the project; a band shell, water feature and waterfront boardwalk are among the proposed additions. But in order to move forward with the project, the developer has to borrow money from the city and there has to be a transfer of commercial intensity credits from the park to the hotel, which has some citizens crying foul.

“It smells funny,” one resident said at the Sept. 2 planning board meeting, which is when land use attorney and the developer’s representative Patrick Neale presented the project proposal. “And if it smells funny, it usually is funny,” she said.

Councilors Larry Honig and Amadeo Petricca also think something smells funny; both submitted letters to the editor bringing into question the origin of the project.

“It was with great surprise that I read in the paper that Marco Island has been negotiating with a developer to build a gigantic hotel near the park – that requires city property in order to be constructed – without first bringing it up with City Council, which is legally in control of all of the city properties,” Honig wrote in his letter, which was published in the Sept. 20 Marco Eagle. “This is amazing, and it’s unacceptable.”

Petricca wrote that he, too, first learned about the project from reading the Eagle.

“As a councilor, I was not aware of the negotiation and was shocked when I read this in the local newspaper,” Petricca wrote in Sept. 20 letter to the editor. “The first thought that came into my mind was, here we go again; a back room deal is being made and the transparency we speak of is lacking.”

But everyone has followed proper procedure, City Manager Roger Hernstadt said, and the city’s planned unit development (PUD) rezoning application process actually encourages transparency rather than hinders it.

“I think most would agree that true transparent government is when fact-based decisions are made after public comment at the several public meetings that the process requires,” he said. “Short of policy stating otherwise, it is not the job of the administration to block property owners from availing themselves of the application review process.”

At the Sept. 6 City Council meeting the councilors attempted to discuss the project, but City Attorney Alan Gabriel informed them that talking about the details would be a violation of the application review process.

“Any of the merits of that [planning board] meeting and any of the discussions will eventually come back to you…so it would not be appropriate for us to have discussions related to the merits,” he said. “If you’re going to talk about the particulars of the case…those are still before the planning board; it has not yet come to you as a council [and] it is appropriate for it to stay in the planning board until it comes…with recommendation to Council.”

So instead the councilors discussed the seemingly secretive nature of the project, prompting Chairman Bob Brown to suggest that the Council review the PUD rezoning application process at a future meeting.

“It sounds like the City Council at this point in time is not happy with the process [and] how things move forward, how an application is made up [and] how the whole process is,” he said, “so therefore, what we should do is put this on one of our agendas to review and make changes to the entire process.”

Despite the city attorney’s clarification of the review process, Honig wrote in his Sept. 20 letter to the editor that the proposal was “not approved, not reviewed, and not even discussed by City Council, nor ever disclosed to or discussed with the citizens of Marco Island prior to the deal being cut.”

But, like the city attorney said, it’s not the City Council’s place to approve or review a project prior to its first public hearing, Hernstadt said.

“The City has an established application review process and unless the city attorney determines that the process can't proceed due to legal insufficiency, an applicant should be allowed, if they wish, to submit an application, make their case to the public via the planning board or City Council and these bodies should consider the application,” he said.

Hernstadt also pointed out that no “deal” has been finalized, nor will it be without the Council’s approval.

“The application and PUD document are not closed but in fact open right up to the point that the City Council casts its final vote,” he said. “To be clear, the draft proposed PUD language is subject to review and rejection or review and modification/approval by the planning board and City Council over a series of public meetings, each of which provide the opportunity [for] public input.”

Hernstadt likened the Veterans Community Park hotel proposal to the recent Marco Walk project in which the property owner, city staff and attorney put together an agreement that the planning board reviewed, modified and eventually approved but the City Council rejected.

“If the community believes the hotel project is bad for Marco Island then the hotel project should be rejected – period,” he said, “but then at least we can all say that the process will have been adhered to and the entire community has spoken.”

Neale said leapfrogging the city staff and planning board and going straight to the City Council – which is what Honig and Petricca seem to be suggesting – isn’t how the process works.

“This is a quasi-judicial hearing; it’s literally like being in court,” he said, “and in court you can’t go to the judge before you take a case to trial and say, ‘Here’s what I’d like to do, but don’t make a decision yet.’ That’s not how it works.”

In fact, the city’s code clearly outlines how the process for PUD rezoning does work: first, the applicant meets with city staff prior to submitting an application. Then there’s a pre-hearing conference between the applicant and city staff to review the application and address any major problems or concerns.

After the pre-hearing conference, city staff prepares a report containing their findings as well as a recommendation of approval or denial. They submit their report to the planning board who then hears the applicant’s proposal and either approves the PUD rezoning as proposed, approves it with conditions or modifications, or denies it.

Although it’s not unusual for a city manager or city staff to inform councilors of a project prior to the planning board hearing, they are not required to do so; according to the city’s code, “unless the PUD application is withdrawn by the applicant, City Council shall, upon receipt of the planning board's recommendation, advertise and hold a public hearing on the application.”

Developers also have the option of informing councilors of a project prior to its planning board hearing, and Neale said that in the past he’s reached out to city councilors to – very informally and without much detail – tell them about a project; however in this case, his client is anxious to receive approval and start building, so he wasn’t able to do as much initial outreach as he would have liked.

He also said that he and his client – and any other developer – have to be cautious when speaking with elected officials or planning board members prior to a project’s hearing.

“You really have to be careful with how you bring these things forward,” he said. “You don’t want someone to challenge the decision because you met extensively with elected officials prior to the public hearing. You want it to be very clear that the decision is solely based on the evidence presented at the hearing.”

Petricca, however, has already made up his mind, despite the fact that the planning board has not given City Council a recommendation on the project.

“The current process by the city manager to form this alliance is being done without the support of the voters as well as current city councilmen,” he wrote in his letter to the editor. “There are many questions that have to be answered. Based on the facts that are available, I cannot support this project.”

The planning board also has many questions, which is why – after more than four hours of presentations, public comments and discussion at its Sept. 2 meeting – it decided that it did not have enough information to make a recommendation.

“There’s so many unanswered questions,” board member Charlette Roman said.

One of the biggest unanswered questions is whether Veterans Community Park even has any commercial intensity credits to transfer to the developer; some board members were under the impression that City Council had retired all of the park’s density and intensity credits as part of its decision to include density reduction in the city’s comprehensive plan.

City staff, however, said the City Council simply talked about retiring the park’s credits but never passed any legislation on the matter.

“There’s no ordinance or resolution that removed density or intensity from the park,” Hernstadt said.

Neale said he and his client are currently working on addressing the intensity credit question as well as the board’s other questions. They hosted a public town hall meeting last night and will host another one tomorrow night at 5:30 p.m. in Rose History Auditorium. The next planning board meeting is at 9 a.m., Oct. 7 in the City Council’s chambers, 51 Bald Eagle Drive.

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