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Jolly Bay PUD denial stands court test

Smiling JOe avatar
Smiling JOeSoWal Expert
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Jolly Bay PUD denial stands court test
from the Defuniak Herald


By DOTTY NIST
A Walton County Circuit Court judge has concluded that the Sept. 22, 2008, decision of the Walton County Board of County Commissioners (BCC) to deny approval of the Jolly Bay PUD project was in accordance with due process of law, met essential legal requirements, and was supported by competent substantial evidence.
In a June 8, 2009 decision, Judge W. Howard LaPorte ruled against Jolly Bay PUD's petition for writ of certiorari. The writ had been filed to seek reversal of the BCC decision to deny the project.
Proposed for a 60-acre site one-half mile from the northeast U.S. 331 Bridge landing and off Jolly Bay Road near Freeport, Jolly Bay PUD would have included in its first phase an RV park, a camp store, a laundry/shower building, and a swimming pool with splash pad. Project proponents Kimberly Maxwell and Carl Post also requested approval of a conceptual master plan for the PUD that would have provided for future construction of a restaurant, a bakery/coffee shop, a 20-unit bed and breakfast, office and retail space, a 49-slip boat dock and a 73-unit, 147-foot-tall condominium overlooking the Choctawhatchee Bay.
The 5-0 BCC decision to deny the project had followed a motion by District 1 Commissioner Scott Brannon, based on his opinion that the applicants had not demonstrated that their plan was appropriate for the Rural Village land use classification.
"I just don't see how you make the argument that a highrise is either rural or village," Brannon had commented.
In the petition challenging the denial, Jolly Bay PUD had alleged that the BCC decision had been based on an "un-adopted standard" for building height set by county staff in response to public opposition to the project.
In November 2007, the BCC had voted to impose a 50-foot height limit for new construction in the area north of the bay, a limit previously existing south of the bay. The north-of-the-bay height limit has since sunset and been renewed a number of times without lapse, and the BCC is scheduled to consider non-temporary height limits for the area north of the bay on June 30.
Jolly Bay PUD was not deemed to be bound by these height prohibitions, since the application for the project had been submitted before they were put in place.
In considering Jolly Bay PUD's petition for writ of certiorari, LaPorte noted that in these instances a circuit court has only two options, denial of the petition or or granting it, thereby quashing or nullifying the "order at which the petition is directed."
"It (the court) may not enter any judgment on the merits of the underlying controversy, or direct the lower tribunal to enter any particular order," he wrote. The BCC in this case would be considered the lower tribunal.
Project proponents had argued that they had met with county planners over a two-year period to design the project in keeping with requirements of the Walton County Comprehensive Plan and Land Development Code, prior to submitting an application. Maxwell had testified that the first indication that height of the condominium would be a problem had come in August 2007.
Judge LaPorte disagreed with the petitioners' claim that due process had not been afforded them. This had been argued based on timing of their finding out from county staff that the height of the condominium would be problematic.
It was LaPorte's opinion that "the requirement of procedure due process, notice and opportunity to be heard," had been met by the county.
LaPorte also ruled that, in its decision, the BCC did not depart from the essential requirements of the law, as alleged.
"Upon considering the evidence, the County exercised its authority in finding the urban structure of the project as not compatible with the surrounding area and the Rural Village land use category," he wrote.
Turning to the petitioners' contention of the absence of competent substantial evidence in connection with the BCC decision, Judge LaPorte commented, "It matters not whether there is also---or even more---evidence to support a different conclusion..," but merely whether the record demonstrates that competent substantial evidence existed to support the decision.
LaPorte found that such evidence did exist, in the form of a staff report and the testimony of Pat Blackshear, the planning director, along with the testimony of other county planners, indicating that "the project proposed by the Petitioner was incompatible and should not be allowed in a Rural Village."
In response to the BCC denial of their project, Jolly Bay PUD had targeted the county with a second lawsuit seeking monetary damages, including reimbursement of attorneys' fees and other costs, in connection with alleged "unconstitutional taking" of property and rights violations. That lawsuit is still pending.
Dotty Nist may be contacted at beachbreezenews@gmail.com.

Replies

42
scooterbug44 avatar
scooterbug44SoWal Expert
#27
Isn't it fraud to sell the project by claiming it's an approved PUD and failing to mention that all those "permits, engineering, etc." are worth bupkiss. :idontno:
Smiling JOe avatar
Smiling JOeSoWal ExpertAuthor
#28
It has been approved, but instead of having it be 13+ stories high, they revised it to only four stories, including one level of parking. It will be so out of place for at least 10-20 years, that it won't likely draw many buyers of condos, especially since it will overlook the RV camp.
miznotebook avatar
miznotebookBeach Fanatic
#29
The county commission approved conceptual plans for the project in June 2010 and detailed plans for phase I, which includes the RV spaces, camp store, laundry/shower, and swimming pool. The height for the condo proposed for Phase II was reduced to a maximum of 50 feet. The number of units in the condo was reduced from 73 to 50, and the number of RV spaces was reduced from 55 to 50. At that time they estimated that construction on Phase I could start in nine months.
Smiling JOe avatar
Smiling JOeSoWal ExpertAuthor
#30
they estimated that construction on Phase I could start in nine months.

Since they are selling it, construction may not happen, though they will have to push some dirt around in order to keep the Development Order, so the RV thing might work, given the lack of RV spots in the general area.
Smiling JOe avatar
Smiling JOeSoWal ExpertAuthor
#31
If I'm reading this correctly and Amendment 4 were in place at the time then the voters could have said no and the county wouldn't be liable, possibly, for millions of dollars in damages?

Just saying.
Perhaps, but maybe the six people who would have shown up to vote on it would have passed it, and we would have a high rise in Freeport.
Matt J avatar
Matt JSWGB
#32
Perhaps, but maybe the six people who would have shown up to vote on it would have passed it, and we would have a high rise in Freeport.

I don't see anywhere in Amendment 4 where it calls for special elections. The cynical comment of 6 people showing up is just that. Granted only 27.53% of registered voters turned out for the midterm primaries, but that's still a total of 10,073 votes.

http://votewaltoncounty.com/Election Results/Primary 2010 Official Summary Report.pdf
scooterbug44 avatar
scooterbug44SoWal Expert
#33
If Amendment 4 passes, there would be no special elections - these items would be voted on during regularly scheduled elections.
Matt J avatar
Matt JSWGB
#34
If Amendment 4 passes, there would be no special elections - these items would be voted on during regularly scheduled elections.

I know, SJ seems to be under the Realtor spell. ;-)
Smiling JOe avatar
Smiling JOeSoWal ExpertAuthor
#35
You know I don't drink any flavor Kool-Aid, SWGB. I haven't mentioned special elections. I may be wrong to guess how most people vote, but when I'm uncertain of how to vote on something, I don't vote at all. Imagine Walton County voters trying to sort through 100+ land issues on a ballot. Maybe they are worded to be in default of in favor of the project. It can easily be done. Double negatives and a little legal wordiness and people won't know if they are voting for or against a project.

I mentioned 6 people showing up to vote on this issue because if I correctly recall, there were six people who spoke about this project at the Walton County Commissioner's meeting where it was finally approved.

I'm in favor of being able to publicly question the developer/engineers/etc on a project and have them explain their plans if not clearly done so on paper. Ever seen all the plans submitted with a project? They would be more than enough to confuse any voter and voting wouldn't take 3 minutes per person for the entire ballot. Rather, it might take a person who is very familiar with all the projects more than 20 minutes to vote. The not so well versed voters may take more than an hour, but we both know they will leave before voting, or they will just checkbox all for or all agin, which isn't good for anyone.

One last thought on Amendment 4 ? I think that every property owner or citizen of Walton County should be able to have a say so on what may affect their property value or their enjoyment of property. If Amendment 4 passes, only registered voters of Walton County will have a say so in how neighboring properties may be developed. That strips away their voice, and that isn't fair.
Matt J avatar
Matt JSWGB
#36
Alright, leave the power to decide in the hands of a few. How many people showed up to demand a concrete plant be built in their neighborhood? How many people were against it? It got built didn't it?
KoaBeach Fanatic
#37
I thought you were in favor of having paved roads and sidewalks. Cannot have roads and sidewalks without concrete and asphalt plants nearby.
Andy A avatar
Andy ABeach Fanatic
#38
It is my firm belief that those favoring passage of Amendment 4 are one of three things. Greedy, without any land use knowledge or totally anti local government. If you think development now is uncontrolled and irresponsible, just wait until something like Amendment 4 passes.
SWGB, I am not sure what you do for a living, but I will come and take over your job for a week and I will guarantee that it will be less successful at the end of that time than it is now. The same thing applies to community planning. To be done properly it demands a great degree of education and experience. Please note the word "properly". It is not an area that should be decided by the voting public. SJ has it exactly correct in his post above.
scooterbug44 avatar
scooterbug44SoWal Expert
#39
I think many who favor it are those who are all too aware of the level of corruption and bias of those currently making the decisions.

Not saying amendment 4 is a great solution (actual zoning and planning would be much better.)
Andy A avatar
Andy ABeach Fanatic
#40
I think many who favor it are those who are all too aware of the level of corruption and bias of those currently making the decisions.

Not saying amendment 4 is a great solution (actual zoning and planning would be much better.)
Not a solution at all. It would lead to a great deal more corruption and bias than there is presently. You are right about zoning and planning.

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