The Tallahassee City Commission voted 4-1 last week to approve an apartment complex in an environmentally sensitive area, against the advice of City Attorney Jim English.

The final approval for the Arbor Walk at Market Square project was one of the last items discussed at Wednesday night's meeting and was listed as an annexation and "vested rights transfer."

The developer - Gordon Thames of Arbor Properties - wants to build 288 apartments on 28 acres north of Timberlane Road, bordered by Martin Hurst Road. The property lies in the Lake Jackson basin and contains "numerous environmental constraints ... likely wetlands, watercourses and significant and severe slopes," according to a June 24 memo from the Tallahassee-Leon County Planning Department.

At issue is whether the commission, in effect, rezoned the property without proper public notice or a public hearing. That was Commissioner Debbie Lightsey's belief and the reason she cast the lone vote against the proposal.

Four-fifths of the Arbor Walk property is zoned "lake protection," which doesn't allow multifamily uses such as apartments. The remaining one-fifth is zoned "office/residential," which does allow apartments.

On Wednesday, the commission voted to allow the entire parcel to be treated as office/residential despite its zoning status.

"I don't see how any action we take here tonight can convey approval to this density," said Lightsey during the meeting.

Later she said: "We have an ordinance that says certain uses are permitted under certain land use categories. We can't ignore that. At least I can't."

Further complicating the issue is the fact that what was actually approved - the "vested rights transfer" that allows property to be developed under the land-use rules in effect when the current owner bought the property - doesn't address the issue of whether building apartments would be an allowable use of the land.

The earlier designation - the entire tract was zoned for agricultural use - apparently wouldn't have allowed the apartment complex either.

Agricultural zoning "allows a laundry list of types of development ... one of the things not allowed was multifamily use," said Bob Herman, growth management director for the city.

Tangled communications Confused? Join the club. At least one commissioner was questioning his own vote by the end of the week, calling it a "tacit rezoning."

Commissioner Steve Meisburg said later in the week that he would not have voted for the proposal had he known the neighbors weren't notified. He said he thought neighbors knew about it after talking with a resident in the Hawk's Nest neighborhood who mentioned he was going to a meeting at the growth management department. Meisburg said he assumed the meeting pertained to the Arbor Properties apartment complex.

But during Wednesday's meeting, Meisburg asked English whether it was "legal to avoid the zoning process." English answered: "If you pass this motion, and it is challenged by a third party, I don't believe I can defend it."

English said granting the density Thames was requesting "would require a Comp Plan amendment," a petition to change a land use classification that would take "a year to do" due to feedback from planning staff and public hearing requirements.

The Comprehensive Plan is the book of land use guidelines for growth in the city and county.

Charles Gardner, the attorney representing Arbor Properties, said he was "surprised" to hear English's opinion. He said the development proposal is exempt from density requirements in the Comp Plan, which was written in the early 1990s, since the commission approved the transfer of vested rights along with the annexation.

"The zoning doesn't apply to us because when you're vested, any subsequent change in the law doesn't apply to you," Gardner said.

But Lightsey said later that "a transfer of vested rights only works when you have the right zoning, and this property does not. When Jim English tells me he can't defend this, that tells me it's not a legal act."

No one, not even Lightsey, questioned the quality of the project.

The developer has promised to collect and treat stormwater on the site and has proposed preserving some of the wetlands. All said it was the kind of upscale development they wish to encourage. The sticking point was the process.

Commissioner Allan Katz - who made the motion to annex the property, transfer the vested rights and designate the land use as multifamily - said he's "maybe more oriented toward product than process. I'd like know if we can do this or not."

By law, the board is required to issue a public notice if a developer wants to change zoning on a piece of land. The commission doesn't typically make policy decision to alter zoning by a vote. Katz said he was led to believe there was legal precedent for approval - after talking with English, Herman and Dwight Arnold, another growth management staffer.

"Today, they indicated to me that the zoning issue was one that needed to be addressed as a policy matter in a motion to allow all of this in," Katz said at the meeting. "I was told we had the power to do this. Now if I'm in error, if we can only do part of it, we'll only do part of it. My reason for trying to bundle it all together is that it's such a reasonable thing to do and it seems like we ought to see if we can get it done reasonably."

English then turned to Katz and said, "I hope we didn't miscommunicate this morning."

Problems aren't new Others noted problems weeks ago. The annexation proposal first appeared on a City Commission agenda at the July 10 meeting. In that agenda item, city staff mentioned the problem with the number of apartments given the property's zoning. "If development is to occur, this issue will have to be resolved," the agenda item read.

Mayor Scott Maddox acknowledged that the vote changed the zoning, but he defended it. "It's zoned the wrong thing today (Wednesday), and (our approval) corrects this mistake," he said at the meeting.

"We're not talking about wetlands or any piece of environmentally sensitive land," he said, although later he said he hadn't seen the June 24th planning department memo that mentioned "likely wetlands."

And despite the fact that the memo said Arbor Properties "was advised to show proof of vesting or reconfigure the proposed plan to be consistent with the Comprehensive Plan and zoning requirements," Maddox said after Wednesday's vote: "We got all the way through the annexation before knowing there was a land-use issue."

He and Katz both said they're confident that environmental concerns will be flagged once the developer has submitted a site plan and has to go through the permit process.

One resident who lives near the site called the commission's decision and the process by which it was made "totally inappropriate." He said he was disturbed to find out that neither he nor his neighbors knew about the development until after it was approved.

"The quality of the development is absolutely no justification for not having citizen input, and we'll contest it," said Danny Pietrodangelo, president of the nearby Hawk's Nest Neighborhood Association.

"Why is the city continuing to allow developers to rezone from lake protection to multifamily use with the ongoing degradation of Lake Jackson?"

After the meeting, Katz said when he made the motion he "probably wasn't aware of all the legal concerns" but that he thought that "failing to move forward on this project would have meant no project."

He later said: "I think we have a right to choose which interpretation of the rules we like to accept and accept the consequences if we're wrong."

The board "can't be immobilized by the fear of potential litigation," he said.