JENSEN BEACH, FL-In what is believed to be the first such action in commercial real estate annals, a state trial court has ordered a developer to tear down five new, occupied buildings after the builder received local government approval and all the required permits.

Residents in this affluent South Florida community, 100 miles north of Downtown Miami, sued Martin County in 1995, alleging developer Thomas Thomson’s planned 19-building Pinecrest Lakes development shouldn’t be constructed because it was not following the county’s comprehensive land-use plan.

The demolition decision was upheld by a state appellate court. The developer has now filed an appeal with the Florida Supreme Court.

But regardless of the final outcome, the case has sparked a vociferous debate between developers and anti-growth forces over several issues raised by the lawsuit. Some have even suggested changes in existing legislation.

An activist group called 1000 Friends of Florida is hailing the court decision as “a landmark ruling in support of growth management that has statewide ramifications.”

On its Internet site, the Florida Homebuilders Association agrees the decision is “expected to have far reaching ramifications” for the development community, but worries the ruling “strips local governments of their zoning decisions” and could undermine the credibility of growth management programs.

The two sides do agree on one point–the current legal system is too slow and perhaps inappropriate for dealing with land use issues. One possible solution that appears to be gaining support from both sides is the establishment of a Land Use Board of Appeals, similar to those in several other states.

Here is a brief overview of the six-year court struggle:

In 1995, Martin County, following a series of public hearings, approved a request from Thomson to change his site plan for a 21-acre strip in Pinecrest Lakes, a subdivision of Jensen Beach, so he could build 19 two-story luxury apartment buildings with 136 rental units instead of 29 single-family homes.

Several homeowners’ associations and individual home owners, including Paul and Karen Shidel, sued the county, maintaining the revised site plan was not consistent with the Martin County Comprehensive Plan. The Shidels could not be reached for comment in this article.

Circuit Court Judge Cynthia G. Angelos ruled in favor of the county and the developer. Her decision was based solely on a review of information that had been considered at the county hearings.

The developer then applied for and received permits from the county to build five of the 19 buildings. But the Fourth District Court of Appeal overturned the ruling and sent it back to the circuit court.

Moreover, the appellate court agreed with the home owners, saying they must be allowed to introduce new evidence that was not presented during the county’s hearings–in effect ordering a new trial.

In 1999, a different circuit court judge ruled in favor of the home owners and ordered Thomson to tear down the five buildings he had already built– some of which are occupied–at an estimated cost of $3.3 million.

On Sept. 27 of this year, the appellate court upheld that decision. Thomson’s appeal to the Florida Supreme Court is not expected to be heard until early next year. Thomson could not be reached for comment in this article.

Tomorrow: The issues and some possible solutions: how would a Land Use Board of Appeals work?

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