Sport Fisherman's Landing loses zoning fight

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Sport Fisherman's Landing loses zoning fight

Sun, 01/05/2020 - 10:14
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Tommy Evans, owner of Sport Fisherman’s Landing was denied his request to reinstate a previous nonconforming use approval that had been granted to the property that he bought in 2016, and revoked in 2019.

Located at the southwest corner of the intersection of Calienta Street and Gulf Coast Drive, the business has been used for commercial fishing, crabbing and shrimping operations, with vessels exceeding 26’, which would usually require a CM-2 designation, hence the non-conforming use exception which was granted to the original owner of the property in 1989.  The property included 4 lots.  It has since been split in half.  Evans owns two of the parcels.  Any decision made by the commission in regard to the non-conforming use would also affect the two properties to the south.

Both the client’s attorney and the county attorney explained that all four parcels only have two boat uses. “Whatever you decide will affect the other property, no matter how you carve it up,” said county attorney Garth Coller. “The properties total will have two.”

At the regular Board of County Commissioners (BOCC) meeting on Dec. 17, 2019 after a lengthy discussion of the intentions of previous decisions and defining terminology, the board voted 3-2 to deny Evans’ request to reinstate the nonconforming use approval.

Evans requested a review of the Administrative Official's decision that the previous non-conforming use status for Sports Fisherman's Landing Inc., is no longer valid and not in effect, making the property subject to the current use classifications and standards of the existing zoning designation, which is CM-1 (Commercial Marine 1).

A significant amount of time was spent on the discussion of original documents, which specified “shrimp boat” in one sentence, and then used a non-specific term such as “boat” in another.  
When Evans addressed the board, he stated that his business is “a commercial fishing operations,” not limited to shrimp.  

Evans stated to the board, “I catch shrimp, I catch crab, I catch grouper.  I’ve done it all, and it’s all at different times, and when I need it.   I bought Sport Fisherman’s Landing in 2016.  There was a shrimp boat on the property, in use at the time, and I let (the owner of the boat) continue using it while I repaired the docks.  I just want to keep doing what I’ve been doing for 24 years … that’s all I want.”

Evans stated that his catch is taken to another location for processing.  

According to Zoning Administrator Chris Linsbeck, since 1989, several code enforcement reviews have been conducted, and aerial photographs showed more than the two allowable vessels at various times from 1995 through 2011. In 2016, the BOCC denied a request for rezoning from CM-1 to CM-2 based on incompatibility with the area Comprehensive Plan and inconsistent with the surrounding land use areas.

Additionally, Linsbeck noted that according to Hernando County ordinances, there are several arguments to terminate any existing non-conforming use exceptions, including the expanded use by mooring more than the allowable number of boats, and that the lots were sold to different owners and also that the excepted uses that have not actually been in use or practice are invalid after 12 months.

Evans’ attorney, Jake Cremer of the Stearns Weaver law firm specializes in land use law, and began his presentation by stating that the matter of this property has been in dispute since the early 1970s.  The property has the most direct access to the Gulf of Mexico, making it attractive to commercial operations, however there is a specific line drawn when it comes to boats over 26’, and the processing of fish and shellfish on the land.

Citing a discrepancy on the original paperwork, Cremer posed the question, “Was the approval only for shrimp boats, or was it for all commercial vessels over 26 feet?”  

In 1989, the Board of Zoning Adjustments and Appeals heard an appeal by a prior owner of the property and determined that as a non-conforming use, lots 1,2, and 4 may be used to dock or moor two shrimping vessels, “grandfathering in” the two boats longer than 26’.  At that time, the lots were owned by one entity.  It has since been split -- Evans owns lot 4, and another owner owns lots 1 and 2.  It was determined later in the meeting that this was not a factor in the decision to revoke the non-conforming use permit.

Sports Fisherman’s Landing, Inc. purchased the property in 1994, in reliance upon the non-conforming use approval.  Evans purchased the business in 2016 for the same reason, and according to Cremer, the county contacted Evans for the first time in 2019 to inform him that the non-conforming use approval was revoked.

Cremer addressed Linsbeck’s argument that the non-conforming exception could be revoked due to the fact that the uses in question have been discontinued at some point.  Cremer argued that the excepted use has not been discontinued, nor have any dates been provided of when the alleged discontinuance took place.

Cremer further argued that the exception is attached to the land, not the owner.  

Prior to motions being made, commissioners provided some of their thoughts.
One of the factors in the decision was that in order for the grandfathered designation to remain in effect, the shrimping operations had to remain continuous.  Commissioner Allocco stated that he hasn’t seen effective proof that the operation had been in continuous use.  Several community members came before the commission to say that the operation had not been operating for over a year.

Commissioner Champion remarked that he doesn’t wish to see a business go under, but “at the same time we got to look at the record and consider the property owners that are around it- what was the intent of the commission in 1989- that’s tough to interpret. The conclusion at the end is I don’t see any evidence that shows we are intended to land this product.”

Champion did say that he believes the original intent was to have two shrimp boat operations at that location with docking and mooring.  He said the landing operation goes against the original intent.

Commissioner Wayne Dukes commented that during an early meeting about the December 17 agenda, he was discussing this item with Linsbeck, who told him,  “Remove the two words “shrimp boat” and replace them with “commercial vessel” and this all goes away.  

Commissioner Dukes supported the more expansive usage of the property.  He made the motion to reverse the zoning administrator’s termination as to the non-conforming use, but modify the scope of the said use to allow two commercial vessels at the location.

Other commissioners asked about landing.  Dukes remarked, “I always assumed that if you brought in a load of shrimp you’ve got to get it on the banks. Yes the landing would include that. You’ve got to get it off the boat.”

Holcomb made the suggestion that he’d have to deliver the catch to a CM-2 designated lot or put it on another boat that goes to Tampa.

“I think we’re shutting him down by doing that,” stated Dukes.

The motion was not seconded.  Mitten motioned, “I move to reverse the zoning administrator’s termination as to the non-conforming use, but continue the scope as presented in the initial grandfather hearing with two shrimp boats and landing.”  This motion would restrict the business to catching shrimp only.  Mitten explained that this would continue the allowance of the two shrimp boats for the 4 parcels and the usage of the landing.  

The business owner’s vessel, the Thunder and other two chartered vessels would not be affected by the decision.

Dukes seconded the motion.  

Cremer clarified that commercial fishermen use shrimp boats to bring in other types of catch.  “That’s our only concern about the way the motion was made.” He said the grandfather limited the vessel, not the type of catch.

It was again clarified that under this motion, the property can only be used to moor shrimp boats up to 26’ and allow the landing of shrimp on the property, but not processing or packaging.

Commissioners John Mitten and Wayne Dukes were the minority approving the motion.

Another motion was brought by Commissioner Steve Champion to ultimately deny this appeal and uphold the decision of the Zoning Administrator and staff.

Clarification was given that all four lots would be CM-1 only and there would be no shrimping or landing.

Commissioner Allocco seconded the motion.  The motion passed 3-2 with Mitten and Dukes voting against it.

 

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