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.

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Good!

They keep trying to make a profit off the taxpayers for this dumbarse project - it was rightfully denied (not because of the height BTW, but because it was a cluster).

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The enemy is ignorance.

Thank goodness the court recognized that the BCC and Planning department have, not only the right, but the duty to foster good land use planning. If I were the county, I'd counter sue for the costs incurred by the county in litigating this case. I hate suits and the issues that bring them. I also believe we should do everything possible to develop our community in such a way that is of greatest use to all and not just a greedy and selfish few.

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Speak out freely...Hold to the truth...Question boldly.

as someone that lives on that bay, im just glad i wont have to look at it. im for growth, but responsible growth. at the sametime the government should have no say what one does with their land unless its written into law prior or voted against by the people.

Transect planning would be very useful in this.

Can the county counter sue to recoup costs of litigation?

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I am not sure if they can sue to recoup the losses. If they can, they should, IMO. SWGB, you are right about the transect planning for this area. I think it would work very well in this location.

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Speak out freely...Hold to the truth...Question boldly.

If only the County Commissioners would take the time to learn about Transect Planning. Good Stuff, and the property owners wouldn't have had to guess what the rules were.

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Have any of them shown any interest?

I believe I heard that Commissioner Sarah Comander has shown some interest, but they all need to sit down and take some notes.

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It's funny that the commissioner's haven't taken any interest. From what I've seen transect planning is pretty much a bipartisan issue in the area. Never fear, the sock puppets are reading up on this and will be posting how it's socialism at it's finest.

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Not to sound ignorant, but could someone explain transect plannning a little, or point me in the direction to research it?

You're not ignorant, I didn't know anything about it either, until I attended a meeting on it recently, and urban planning was my field of study. It is developing an area beginning with agricultural or rural zoning and progressing up to urban, making the best possible use of the land area being considered. This is a very short and generalized explaination. To learn more, I suggest you contact Susan Horn or Mark Schnell. (It is possible I have his name wrong, I've slept since then). There is a thread on here (Local Gov) concerning the presentation if you wish to find out more about it and how it might be applicable locally.

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Speak out freely...Hold to the truth...Question boldly.

I guess I'm still a little confused about the socialism thing?

Andy A hit it pretty well. It designates land densities going from urban to rural agricultural, with smooth transitions in between. Currently, Walton County has commercial use backing up to single family residential without rhyme or reason. Looking at land use maps, they put squares around major intersections, and zoned the property as commercial, but it backs up to rural agricultural land. Transect based planning allows for smoother transitions, so that we wouldn't likely have some of our current problems. One other huge plus that I see is that transect planning informs property owners of what type of development can be done with their property. Currently, the Planning Dept has a set of vague guidelines, and developers may not understand what they can or cannot do with their property. Google it.

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The Defuniak Herald » COURT ISSUES TWO ORDERS IN JOLLY BAY LAWSUIT

COURT ISSUES TWO ORDERS IN JOLLY BAY LAWSUIT

Oct 30th, 2009 | 0
By DOTTY NIST

The Defuniak Herald » COURT ISSUES TWO ORDERS IN JOLLY BAY LAWSUIT

COURT ISSUES TWO ORDERS IN JOLLY BAY LAWSUIT

Oct 30th, 2009 | 0
By DOTTY NIST

So, what were the two court orders?

I talked to one of the commissioners about it back when it was first coming in front of them and was told that the height (which is what I was focused on) was the least of the major issues that would prevent it from happening.

Trying to use a different word than cluster**** to describe the project, but it is just SO appropriate.

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The enemy is ignorance.

One of the partners wrote a letter to the editor of the Sun. Published in yesterday's issue.

"Scuze me, where do I check in my motorhome? at the high rise condo or the camp store?"

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Here's the letter to the editor in the Walton Sun:

COLUMN: Walton's reckless actions put all taxpayers at risk | walton, reckless, county - Local News - WaltonSun.com
COLUMN: Walton's reckless actions put all taxpayers at risk




November 02, 2009 8:09 AM

Carl Post


I am concerned that the bigger issues relating to the Jolly Bay story, which was online at waltonsun.com, are not being reported. Walton County’s reckless actions have deprived property owners of their property rights, stifled economic development in the area and put the taxpayers at substantial risk of having to pay large damage awards.
In these trying times, we need more from our County Commissioners other than making up rules that have not been adopted in order to appease special interests. Not only do these actions by our county expose taxpayers to large multi-million dollar damage awards that are not covered by the county’s insurance, but they also deprive the citizens of an opportunity for more jobs, an upscale project, and an increased tax base that benefits all (not just the people in power and their special interests).

The Jolly Bay project is a mixed-use project clustered on 17 acres of a 60-acre tract that includes an upscale recreational vehicle park, bed and breakfast, and 73 units, in a 12-story condominium, a 49-slip boat docking facility and commercial space for the neighboring community. The condominium was designed in a location that made it not visible from neighboring homes or drivers passing by on Jolly Bay Road.
There are also other results of the county’s actions — besides our lawsuit for violation of our constitutional rights that Judge Laporte recently allowed to move forward.

After being educated as to the real facts of how the county handled our Jolly Bay project, who in their right mind is going to invest money to TRY to get a project approved in Walton County — a county where the commission makes up rules at the eleventh hour to kill a project that has been in the works for many years and unanimously approved by the technical review committee and the Walton County planning commission?

We worked closely with the county planning department staff over a two year period prior to submitting a project that met all of the Walton County rules.

We were continually assured by county staff, as we kept spending substantial amounts of our hard-earned money, that the project that we submitted met all of the rules.

Some people may justify the county violating our property rights because they are opposed to our project, but the bigger issue is that the county will continue to violate the property rights of its citizens at their will, until Walton County’s citizens require the county to follow the rules.

Our case is not the first time that the county made up rules to deny a project. The county was previously told by the circuit court in 2001 that it could not base denial of projects on its own made-up, un-adopted rules since property owners have rights and must have notice of the rules they must comply with to improve their property.

As the economy comes back, there will be a lot of competition for limited development monies. It is not too late for the county to do the right thing and reverse course so as to attract investment in Walton County.
It is not too late for the taxpayers and property owners to demand that the interests of all be represented and that property rights that make this country so great be respected by our own elected officials.

Carl Post has lived in Walton County for 17 years. Carl is the owner of Jolly Bay LLC, which is in litigation with the county.

Carl, nice try, but the county just saved you a ton of money by not approving your proposal. If your project met all of the rules, why did you lower the height of the original building? That seems very weird since there was no limitation on height for north Walton. Perhaps the real answer is that it didn't conform, which is what the County Commissioners said.

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The project was a joke - don't try to sway public opinion by now claiming it will bring jobs, taxes, and investment to Walton County.

P.S. How many jobs, services, and projects could the millions you are trying to gouge out of the taxpayers pay for?

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The enemy is ignorance.

I'll go even further than this. The project is a matter of pure greed. There is no consideration of the land use code or further long range planning in the Jolly Bay project. It is anything but Jolly. The letter to the Sun was misleading in many aspects. It stated the Court allowed the project to go forward. The court denied the plantiff's claim but they can continue the suit, the way I read it. The fact remains that once again a private group sues the taxpayers of Walton County and then has the nerve and audacity to tell us what a good deal it is for us taxpayers. All it did was cost us money and make some lawyers richer. There was no thought of future planning whatsoever. Pure selfishness! Lets all hope the days of you scratch my back and I'll scratch yours is over in this county!

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Speak out freely...Hold to the truth...Question boldly.