Smiling JOe
SoWal Expert
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.
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.
