Developer demands legal fees from Pasco residents fighting proposed apartments

Article Courtesy of The Tampa Bay Times

By Lisa Buie

Published April 11, 2013

NEW PORT RICHEY The developer of an apartment complex that has drawn legal challenges from several neighborhood associations has demanded that homeowners reimburse it for more than $27,000 in attorney fees or face a lawsuit.

"I am hopeful that this matter will be amicably resolved," wrote Kent G. Whittemore, attorney for Clearwater-based Scherer Development, who sent a letter on April 4 giving the presidents of three homeowners associations until the end of the month to send the money. "If however, it is not, my client will have no alternative but to seek its full damages against all of those legally responsible," the letter said.

The associations, which represent neighborhoods heavily populated with retirees, have been fighting efforts by Scherer to build the Oaks Apartments at Riverside Village, on land off Amazon Drive.

In September, county staffers approved plans for the complex, which call for a first phase of six two-story units, a 3,000-square-foot clubhouse, swimming and splash pools, a playground, picnic pavilions, tennis and basketball courts, a mulched car wash area, a 2-acre park with an open play area, parking lots and seven garages. County staffers said the development meets or exceeds all land use requirements, and the land is already zoned as multifamily.

Last month, the Development Review Committee, a group made up of the county's top administrators, rejected the homeowners' appeal of the staff decision. The homeowners then vowed to appeal to the Pasco County Commission, and if that fails, to court.

Shortly after the project was proposed, opponents of the proposed complex started a group called We Are 5533 Strong, hired an attorney and set up a website. They found an ally in state Rep. Mike Fasano, R-New Port Richey, a former resident of the area who spoke up for them at a county meeting, where they expressed concerns about flooding, traffic and reduced property values.

"The threatened suit is basically a blackmail effort by the developer," said Fasano, who issued a statement Tuesday along with state Rep. Richard Corcoran that called Scherer a bully. "It is outrageous and disgraceful that a deep-pocketed developer would threaten to take to court ordinary citizens who have every legal right to protest a proposed action in their own back yard."

The expenses Whittemore cited in the letter stem from a separate front: the homeowners' appeal of state drainage permits issued by the Florida Department of Environmental Protection. The presidents of Heritage Lakes and two Cedarwood Village condo associations asked for a review by the state Division of Administrative Hearings. But they withdrew the appeal after deciding to pursue the issue through local government channels.

"This is baseless and has no merit," said Marcy LaHart, a Gainesville attorney representing the three homeowners' associations. "They exercised their due process rights in good faith."

She said the letter was simply a way to intimidate the residents so that they don't pursue the matter before the Pasco County Commission.

Lawsuits filed to discourage members of the public from challenging issues before governmental agencies are called "SLAPP" suits, or Strategic Lawsuits Against Public Participation.

Florida law prohibits any governmental entity from suing "a person or entity without merit and solely because such person or entity has exercised the right to peacefully assemble, the right to instruct representatives, and the right to petition for redress of grievances before the various governmental entities of this state, as protected by the First Amendment to the United States Constitution and (the Florida Constitution)."

Another state law applies only to homeowners in a homeowners' association and prohibits suits by individuals and business and governmental entities based on homeowners' "appearance and presentation before a governmental entity on matters related to the homeowners' association."

However, the law does say a defendant who can show that a losing plaintiff brought a claim without any factual or legal support for it to recover attorney fees from the other side.

Whittemore was in court Tuesday and could not be reached for comment.

LaHart said her clients appealed the drainage permits without a lawyer and should not have caused Scherer to incur that much cost.

"If they really spent $27,000 to defend a petition filed by a pro se litigant," she said, "then I obviously don't charge enough for my time."