BRANDON - Hillsborough County environmental officials want an administrative hearing officer to uphold their decision to deny a developer's request to destroy a wetland and replace it with a gas station and convenience store.
The Environmental Protection Commission has filed two legal briefs that could end - or, at least, abbreviate - an appeal by the developer of the commission's denial. The property is at the southeast corner of Lumsden Road and Kings Avenue.
The commission's position is based on the property's history, said Andrw Zodrew, assistant legal counsel for the environmental commission. In 2003, when the property was rezoned for construction of an office park, it was with the understanding that wetlands on the site would be preserved, he said.
The developer filed a response to the commission's motions last week, maintaining the property's history shows the county, in 1995, was prepared to allow destruction of the wetland so the land could be developed.
Attorney Vincent Marchetti, representing J.E. McClean III, as trustee of the Lumsden-Kings Avenue Land Trust and RaceTract Petroleum, filed the response.
The 1995 rezoning request, which eventually was abandoned, gave the current owners the expectation they could develop the wetland, according to Marchetti's response.
For months the county and current would-be developer have gone round and round about the project. Initially the environmental commission denied a request to destroy several acres of wetland for construction of a RaceTrac. The developer appealed that denial.
Meanwhile, the Hillsborough County Commission decided to hear the rezoning request without considering the wetland, because it was the subject of an appeal. The county commission approved the rezoning and residents in the area subsequently sued, saying the county had no authority to separate out the wetland issue when considering whether to allow zoning for a gas station and convenience store.
A hearing on the developer's appeal of the environmental commission's denial was set for July 9-11. But because EPC now is asking the hearing officer to uphold its finding, that hearing has been cancelled.
The hearing officer will consider both legal motions during a hearing July 18 at 10 a.m. at the Environmental Protection Commission's EPC headquarters at 3629 Queen Palm Drive, Tampa. That proceeding is open to the public.
If the hearing officer rules in favor of the environmental commission, Zodrew said, it could, at the very least, limit argument on the facts surrounding the denial. Or the hearing officer could side with the developers and move forward with the full-blown appeal process.
"What we are saying is that there are a bunch of facts that really can't be disputed," Zodrew said. "The fact is that the wetland was set aside as a preservation area, to get the original zoning for the office park in 2003. Based on these facts, we are entitled to get a summary recommended order."
Marchetti disagrees. "Basically, we can't stipulate to facts with EPC (the environmental commission) because the information they put in the record goes toward their assumption that there is self-imposed hardship." His clients do not agree the wetland was set aside in 2003 as a conservation area. "We don't agree with EPC's analysis of the facts," Marchetti said.
Terry Flott, chair of United Citizens Action Network, or U-CAN Hillsborough County, said she is urging people to attend the hearing for a firsthand look at how the process works.
Flott has been instrumental in rallying opposition on the project and is involved in fundraising to pay for the lawsuit against the county. The lawsuit is being funded by members of the community and the Tampa Bay Sierra Club.
"I do think it's important for people to be educated on the process," Flott said. "I am encouraging people to attend the July 18 hearing and hope the administrative hearing master will see through the claims being made."
Flott said Marchetti's argument on the 1995 rezoning request has no merit because the rezoning in that case was withdrawn and any decision made at that time is now moot. "The zoning request was withdrawn and any delineation of the wetlands (from 1995) would have expired by now."