Motion-Secondary: DEFOOR VENTURES LLC vs WALTON COUNTY FLORIDA

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                                Filing # 124758796 E-Filed 04/12/2021 03:42:34 PM

IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT
IN AND FOR WALTON COUNTY, FLORIDA

DEFOOR VENTURES, LLC,

Petitioner,

v. Case No. 2020-CA-480
WALTON COUNTY, FLORIDA,

Respondent,

 

RESPONSE TO PETITION FOR WRIT OF CERTIORARI

OFFICE OF THE COUNTY ATTORNEY

 
       

Steven'K. Hall |
Florida Bar Number 6 477}
161 E. Sloss Ave.

DeFuniak Springs, Florida 32433
Telephone (850) 892-8110

Facsimile: (850) 892-8471

Primary Email: halsteve@co.walton. fl.us
Secondary Email: earpaige@co.walton.fl.us
Counsel for Walton County

 

Electronically Filed Walton Case # 20000480CAAXMX 04/12/2021 02:42:34 PMTABLE OF CONTENTS

 
  

 

Page
TABLE OF CONTENTS .. Ji
STATEMENT OF THE CASE 2
STATEMENT OF THE FACTS..
STANDARD OF REVIEW. wisssssssssssstsessstsnsestnsinestneestnsesoiaeieesnssstngqansnnetnannaeenes 2
SUMMARY OF ARGUMENT ...sscsssscsssessesseesetssesnteetssetnesentstnnsnsetneenstateneeiaeneseses 10
ARGUMENT. ossessssssseesssssesseenstneecstsoesstentnesunesetnsisayiastnnenensesineiseuneusenesseasieeses il

A. THE COMMISSION DID NOT DEPART FROM THE ESSENTIAL
REQUIREMENTS OF LAW BASED ON THE “IRVINE” STANDARD OF REVIEW
URGED BY PETITIONER.... oo

B. THE COMMISSION DID NOT DEPART FROM THE ESSENTIAL
REQUIREMENTS OF LAW IN CONSIDERING, BUT NOT BEING BOUND BY,
THE RECCOMENDATIONS OF LOWER TIER ENTITIES WHICH ALSO
REVIEWED THE PUD APPLICATION.

C, THE COMMISIONS DECISION IS SUPPORTED BY COMPETENT AND
SUBSTANTIAL EVIDENCE IN THE RECORD OF THE HEARING BELOW AND

 

«16

 

IT’S DECISION SHOULD BE UPHELD........... trepeerseeseeee seeseenseeneeeereererereneee 17
CONCLUSION oneccseccsiesscssneessessecsssesnsssseenegnnecsnecnsecnsessassenecsnsenscssseqavecasssanecsseqavesaneasessnsesaessnes 20
CERTIFICATE OF SERVICE... cssccssesssscsessecsssessscsssssssssaneeanseseesvassseeeaneeseesaseesvesseeasetansessecontes 21
CERTIFICATE OF FONT COMPLIANCE ......scssscssesssssesrsesssseescesseenessssnneseeseessessssesseesseresssseen 21

iiWALTON COUNTY’S RESPONSE TO PETITION FOR CERTIORARI

Respondent, Walton County, through its undersigned counsel, presents the following
response to this Honorable Court’s February 8, 2021 Order to Show Cause and asserts that the
arguments presented to the Court in Petitioner’s Petition for Certiorari do not suppott this
Court’s intervention in the decision of the Walton County Board of County Commissioners

(“Commission”) in this matter.
The Petitioner’s arguments:

1. Ignore the discretion and specific decision-making authority granted to the Commission

in reviewing and ruling on an application for a Planned Unit Development Master Plan.

2. Incorrectly characterize and limit the full scope of evidence presented to and reviewed by

the Commission during the subject hearing.

3. Improperly rely on a judicial standard which is repeatedly cited as the “Irvine Standard”
which addresses a specialized form of land use approval known as a special exception approval.
This standard and process are distinctly different than the Planned Unit Development (“PUD”)

project approval at issue before the Commission here.

Respondent concurs with Petitioner’s assertions in its Petition as to this Court’s
jurisdiction to review this matter as a “first tier review” in its appellate capacity pursuant to

Rules 9,030(c)(3) and 9,100(¢)(2) Fla. R. App. P.

For consistency, this response will utilize the same citation form to the documentary

evidence and transcripts as utilized by Petitioner.I. STATEMENT OF THE CASE

On November 24" and December 8, 2020, the Commission held quasi-judicial hearings
to consider Petitioner’s application for approval of a Detailed Planned Unit Development Master
Plan consisting of fifty-five (55) two story residential townhome units and five (5) mixed use
townhomes which include five hundred s.f. (500 s.f.) of commercial space on the ground floor
with no other amenities provided beyond minimal internal sidewalks and required open space

and landscaping.

The Commission voted to deny Petitioner’s PUD application by a 3-2 vote on November
24' and executed a written order of denial on December 8". The Corrected Final Order in this

matter expressly finds the following:

3. The application for NELLIE LANDING TOWNHOMES PUD is hereby DENIED
based upon the finding that the evidence presented at the November 24, 2020 hearing did
not support increasing the base density of four (4) dwelling units per one (1) acre, See
Land Development Code Section 2.02.18.E and 2.02.18.G. (App.72)

Petitioner filed its Petition for Writ of Certiorari review on December 22, 2020 and this

Court issued its Order to Show Cause on February 8, 2021.
Tl. STATEMENT OF THE FACTS

Respondent does acknowledge that Petitioner provided a statement of facts in the context of
its petition. However, Respondent respectfully provides its own statement which it feels better

describes the facts underlying the Commissioner’s decision here.A. This Case Is About a PUD Approval.

The application at issue in this matter is a request from the Petitioner for the Commission’s
approval of a PUD. To be more specific, it is a request for approval of a detailed or technical

PUD plan. This aspect of the facts of the case is foundational to this Court’s appellate review.

A PUD isa special zoning device used to permit flexibility and creativity in the design and
use of a parcel of property. It is not a by-right type of review or approval. It is, in essence, a
flexible agreement between the parties and the zoning authority and the terms of development
are negotiated between the parties in accordance with conditions set forth in the governing
ordinances. See, Palm Beach Polo, Inc, v. Village of Wellington, 918 So.2d 988 (Fla.4"" DCA
2006) and Kelly v. Davis, 2015 WL 12030513 (USDC, N.D. Florida 2015) “Under by-right
zoning, an ordinance contains the rules that apply to new development, and a developer can build
under them without further (discretionary) review. The developer has an entitlement. There is no
need for discretionary approval. Planned unit development requires a discretionary review that
eliminates this entitlement. This shift to discretionary review is a major and critical change. By-

right zoning provides certainty, and planned unit development review removes certainty.” |

Petitioner’s request for treatment as a PUD is authorized in Policy L-1.12.1 of the Walton
County Comprehensive Plan (“Comp Plan”) and Section 2.06.01, et seq., of the Walton County
Land Development Code (“LDC”). Section 2.06.02 provides the County’s express purpose for

this vehicle as follows:

' NEW PERSPECTIVES ON PLANNED UNIT DEVELOPMENTS, 52 Real Property, Trust
and Estate Law Journal 230 By: Daniel R. Mandelker, Stamper Professor of Law, Washington
University in St. Louis, B.A. 1947, LL.B. 1949, University of Wisconsin; J.S.D. 1956, Yale
University.

32.06.01. - Purpose.

It is the purpose of the Planned Unit Development (PUD) to provide flexible land use
and design regulations and to permit planned diversification and integration of uses and

structures, while retaining to the County Commission the authority to establish

limitations and regulations thereon for the benefit of the public health, welfare and
safety, PUDs shall be established as overlay districts to the Official Zoning Map and

shall not exceed the overall allowable densities or intensities associated with the
underlying Zoning District. (emphasis added)

In other words, the PUD Ordinance grants to the developer certain flexibilities in
designing its project where the strict adherence to other provisions of the LDC would not permit
such density, designs and uses. In exchange for providing flexible land use and design
regulations, the Commission retains the authority to establish limitations and regulations thereon
for the benefit of the public health, safety and welfare. The most important feature of planned

unit development is negotiation between the developer and the municipality.”

The Commission is expressly authorized to impose conditions that insure compatibility of
the project with the surrounding areas, insure compliance with the comprehensive plan or

enhance the public health, safety and welfare.

Importantly, Petitioner volunteered here to submit a PUD application rather than by-right
major development application at a maximum density of four (4) units per acre to access a bonus
density reward available to projects located within the Small Neighborhood Zoning District. In
this case, the stakes for the gamble of leaving the certainty of the by-right process meant the

possibility of gaining up to sixty (60) additional units. Site limitations practically limited the

21d., at 256bonus sought to twenty (20) additional units on a ten-acre lot. By any account, that is a

huge boost to potential project revenue in today’s market.

LDC Section 2.02.18, describes the allowable uses within the Small Neighborhood
zoning district. Subsection E establishes a maximum residential density of four (4) units per one
acre (by-right) unless a landowner chooses to request the bonus system provided in Subsection
G.8. That subsection provides the following offer to a landowner that is willing to engage the
PUD negotiation process to obtain density it could not achieve in an application that would be

approved by-right.

8. An additional six (6) dwelling units per acre above the base density of four (4)
dwelling units per acre may be achieved for projects achieving a mixture of land uses
and that utilize a form based code or urban design code and the Planned Unit
Development process, (emphasis added)

This choice of negotiated terms versus “by-right” approval is significant in that it injects a
substantial degree of negotiating latitude into the Commission’s deliberative process and places
more emphasis on the case-specific analysis of impacts and benefits by the Commission before
agreeing to the bargained-for density bonus. The Commission alone is granted the express
authority to weigh the merits of the bargain. This latitude, voluntarily accepted by the Petitioner
here below, in turn affects this Court’s review of the Commission’s authority and discretion in

making the decision at issue here,
B. The Record Is More Than Just Testimony Presented At the Hearing.

With this framework established, a description of the details of the project presented to the
Commission is next in order. Both the written narrative and graphic components of the staff

report, the Site Plan and PUD Narrative provide a wealth of evidence as to the physical attributes

5of the proposed project site and its surrounding environment. These elements were all presented

in evidence and were available to the Commission members for review and analysis and

questioning during the course of the subject hearing and prior to their vote to deny the PUD

application.

1.

The Physical Character of the Site. The project site is less than ten (10) acres in size
and is more than one-third jurisdictional wetlands. (App.11) The area between the site
and Choctawhatchee Bay to the North is dominated by jurisdictional wetland areas
(App.8). The northern edge of the site is bounded by an existing man-made drainage
ditch which connects at the northeastern corner of the site with an existing mosquito
control ditch which runs north to ultimately connect with Choctawhatchee Bay. (App. 37
and Tr. 7 lines 9-13) The site is predominantly composed of Rutledge Fine Sand defined
as “poorly drained,..with a high water table at or near the surface for long periods of the
year. Shallow ponding is common. Internal drainage is impeded by the high water table.”
(App. 10-11)

The Zoning and Density of the Site and Its Neighboring Properties. The proposed site
is zoned Small Neighborhood which requires mixed use development with a base density
of four (4) units per one acre. The parcel adjacent to the north is developed with single
family residential uses in a Low Density Residential zoning limited to four (4) units per
acre. (App. 37) The predominant zoning to the south, east and north of the site beyond
the adjacent existing subdivision is zoned Conservation Residential (“CR”) which is
limited to a maximum of 1 unit per 2.5 acres. The Respondent’s PUD application
negotiated for 6.1 units per acre which is substantially more density than approved for the
developed parcel next door to the north and more than thirteen times denser than the

maximum density allowed in directly adjacent CR parcels to the south and east. (App. 7)
6Further, a review of the site plan (App. 23-23) shows that the functional density of the
proposed project is much higher in relation to the existing subdivision to the north
because of the dense line-up of townhomes clustered on the limited buildable upland area
on the parcel using density transferred out of the wetland areas of the site.

. The Project Site Plan. The Petitioner’s proposed development is limited to the upland
portions of the parcel, so the site plan describes a long linear row of connected townhome
lots along a single straight east west access road lined with parking. Where the shape of
the upland areas allow, there are two “pods” of units which connect to the long
straightaway via short north south lanes. (App. 21 and 40) Instead of a grid street pattern
as urged by the unnamed author of Petitioner’s written PUD narrative report, the natural
limitations mandate two standard “t’s” as the only apparent street pattern (App. 40).

Some internal sidewalks are proposed, but the Petitioner requested a “buyout” to pay cash
in lieu of constructing an additional 1,513 linear feet of sidewalk that would otherwise be
required under the applicable LDC site design criteria as necessary pedestrian
comections. That confusing element raises a natural question as to the Petitioner’s
commitment to encouraging pedestrian interconnection.

. The Proposed Commercial Use. The proposed plan included two very closely related
uses in 55 2 story townhomes and 5 two story townhomes which would allow
neighborhood commercial uses on the ground floor. There was no condition proposed by
Petitioner or staff which mandated that these ground floors be used as commercial space.
Without that requirement, the built out uses could be 60 residential townhomes without

any mix of uses as required by the site’s zoning.

The proposed, non-mandatory 4500 s.f. of commercial use constitutes one percent (1%)

of the proposed site (using the formula provided by the Petitioner’s consultant on the face
7of the site plan for other site plan use percentages - 4500 s.f./426850.5 s.f. total site area).
LDC Section 2.02.18.G.4 requires a minimum of five percent (5%) of any Small

Neighborhood project be committed to commercial use. (Tr. 7 line 18)

5, The Written Elements of the Record Before the Commission. The Appendix provided
by the Petitioner includes two sets of BCC Inserts, 1 and 2. (App. 19-69) These
documents are provided in large format as a portion of the documentary information
provided to each member of the Commission several days prior to the quasi-judicial
hearing in their hardcopy “meeting book” or “packet” (Tr. 6 line 25). These inserts are
provided as attachments to the Walton County Staff Agenda Item Report and in this case
were accepted into the record of the quasi-judicial hearing on the motion of Staff Planner

Stephen Schoen. (Tr. 5 lines 7-9)

6. Testimony Produced at the Hearing. In addition to this documentary evidence accepted
into the record, the Commissioner heard testimony from Stephen Schoen. Mr. Schoen
was the only sworn witness which provided direct testimony. The Commissioner asked
questions of Mr. Schoen, Mac Carpenter, the County’s Director of Planning, and
Petitioner’s non-lawyer representative James Eubanks, P.E.. Petitioner did not offer any
additional documentary evidence into the record at the hearing and notably did not
present any expert or lay testimony as to the ultimate issue of compliance of Petitioner’s
application with the required applicable provisions of the LDC and Comp Plan or the
special PUD conditions which might merit the approval of the bonus density sought by
the Petitioner. Mr. Eubanks took questions from Comm. Glidewell and Comm. Anderson
on stormwater management, parking and was “just happy to take any questions if you

have any.” (Tr. 6-9)The written recommendation included in the staff report was “To Approve,
approve with conditions or deny the application.” (App. 5) Mr. Schoen and Mr. Carpenter
provided what might be described as summary expert testimony as to whether this
application “meets the comp plan and the code (Tr. 5 lines 17-19) when repeatedly

questioned by Comm. Anderson, (Tr. 10 lines 1-5, Tr. 12-13)

7. The “Ultimate” Question. Mr. Anderson sought legal clarification on his question related
to the obligation of the Commission to vote for approval of an application where he saw
there was no evidence that the application “does not meet the comp plan and the code
requirements.” (Tr. 11 lines 5-15) The County Attorney, Ms. Noyes, provided her
opinion that the caselaw on these matters is that the Commission is to review the project,
and based on the competent, substantial evidence before it, determine whether or not the
project meets the requirements of the comp plan and land development code.” (Tr. 11
lines 10-15) Larry Jones, the County Administrator, echoed Ms. Noyes advice generally
on questioning by Comm. Anderson adding that “it is at the discretion of the Board to
determine whether the evidence presented, supports and affirmative motion or denial.”
(Tr. 11 lines 21-25) Comm. Glidewell consistently expressed that he disagreed with the
opinion of staff that the project met the necessary requirements. He consistently stated
that the project as proposed was too dense and did not qualify for anything above four
units per acre. He expressed that position as the basis for his vote against approval of the
application. (Tr. 10 lines 22-25, 12 lines 5-7, 13 lines 6-7). No public comment was

received at the hearing. The Commission voted 3-2 to deny the PUD application.IIL. STANDARD OF REVIEW IN FIRST TIER CERTIORARI REVIEW OF A LOCAL

GOVERNMENT QUASI-JUDICIA DECISION

Respondent concurs with the basic standards guiding this Court’s appellate review of the
Commission’s decision in this matter as provided by the Court in it’s Order to Show Cause.
However, Respondent is the local government decisionmaker being challenged and would
provide additional, well-established standards which guide this Court’s limited and deferential

review in this matter.

The Court’s Order to Show Cause cited to some of the seminal judicial authority as to the
third prong of the Vaillant test, the competent and substantial evidence standard, which forms the
primary basis of the Petitioner’s argument here. One of cited cases was the Florida Supreme
Court’s opinion in Dusseau v. Metro Dade County Board of County Commissioners, 794 So.2d
1270(Fla. 2001. At pages 1275-76 the Supreme Court provided the following clear assessment of

this Court’s scope of inquiry:

“Rather, this standard requires the reviewing court to defer to the agency's superior
technical expertise and special vantage point in such matters. The issue before the court
is not whether the agency's decision is the “best” decision or the “right” decision or even
a “wise” decision, for these are technical and policy-based determinations properly within
the purview of the agency. The circuit court has no training or experience and is
inherently unsuited to sit as a roving “super agency” with plenary oversight in such
matters.

The sole issue before the court on first-tier certiorari review is whether the agency's
decision is lawful. The court's task vis-a-vis the third prong of Vaillant is simple: The
court must review the record to assess the evidentiary support for the agency's decision.
Evidence contrary to the agency's decision is outside the scope of the inquiry at this
point, for the reviewing court above all cannot reweigh the “pros and cons” of conflicting
evidence. While contrary evidence may be relevant to the wisdom of the decision, it is
irrelevant to the lawfulness of the decision. As long as the record contains competent
substantial evidence to support the agency's decision, the decision is presumed lawful and
the court's job is ended.”

10This Court’s inquiry is limited to determining whether the COMMISSION’s quasi-
judicial decision is supported by any qualifying evidence, narrative or testimonial, in the record.
Lee County, 619 So.2d at 1003. If it is, then this Court’s inquiry is completed and the Petitioner’s

Writ must be denied, Dusseau, Id. at 1275-76.

The question of the applicability of the “Irvine Standard” as urged by the Petitioner will

be addressed in the context of argument provided in a later section of this response.
IV. SUMMARY ARGUMENT

This Court is asked to overturn the decision of the Walton County Commission on

Petitioner’s PUD application and remand the matter back to the Commission for rehearing.

A. Departure from the Essential Requirements of Law. Petitioner has argued that the
Commission departed from the essential requirements of law “by ignoring the Irvine standard’
and failing to consider the recommendations of the Planning Commission, the Technical Review

Committee and the Planning Department Director as required by Section 1.11.13.B of the LDC.

The foundational problem with this argument is that the Irvine case, and the bulk of the cases
citing to the Irvine case provided in the Petition, simply do not govern the standard of review that
this Court should apply in this case. This review centers on the Commission’s decision in the act
of reviewing a Planned Unit Development Plan proposal containing a bonus density provision.
These “Irvine Standard” cases involve a very distinctive and dissimilar land use review process

for the review of applications for special exceptions.

Further, the standard urged by the Petitioner as establishing the obligation of the Commission
to approve the application is likewise inapplicable in a PUD review where the controlling

ordinance expressly empowers the Commission to impose conditions to achieve its ends in

11negotiating the PUD terms. The by-right standard of entitlement upon applicant meeting the

minimum requirements of the LDC and Comp Plan is not applicable here.’

B. The Absence of Competent and Substantial Evidence to Support the Commission’s
Denial. Perhaps, based on the Petitioner’s insistence on viewing this case through the lens of the
Irvine Standard, the Petitioner has staked it’s position to the assertion on most every page of it’s
Petition that there is simply no competent and substantial opposition evidence at all in the record
of the Commission’s quasi-judicial hearing on this application allowing the Commission to deny
the application. The record is full of detailed information, much of it produced by experts hired
by the Petitioner, which the Commissioners had ready access to, reviewed and used in making

their collective decision to deny the application.

The Petitioner draws its definition of evidence available to support the Commission’s denial
far too tightly. It is not appropriate to subjectively categorize all evidence as either for or against
the approval of a project. It is inaccurate at best to cast the County’s planning staff as advocates
or enemies of the applicant or the application. In the proper review context, there are simply two
parties here providing evidence to the Commissioners as the ultimate finder of fact to assist it in

applying the law to the facts of this PUD application.

In the proper context, using the correct standard of appellate review, there is competent and

substantial evidence in the record to support the Commission’s denial of this PUD application on

3 There is no question that one member of the Commission questioned both County witnesses
and the County attorney as to the applicability of the by-right standard on his duty to approve the
application. This, in itself, does not mandate acceptance of this standard as applicable to this
Court’s review. (Tr. 11 lines 5-15) Both the County Attorney and the County Administrator
responded with what were summary statements of the Vaillant standard.

12the basis of the inadequacy of the benefits offered by the applicant to earn the requested density

bonus.

Finally, as a public policy note, it is unacceptable, without any reference or substantiation, to
cast an individual member of the Commission as having “a personal aversion to development” or
“a known aversion to development.” (Petition Pages 10 and 14) He might just as easily be
categorized as a Commissioner who has an aversion to overly dense development in wetland

floodplains with a lack of creative design.
V. ARGUMENT

A. The Commission did not depart from the essential requirements of law based on the

“Irvine” standard of review urged by Petitioner.

In Jones v. State, 477 So.2d 566 (Fla. 1985), the Florida Supreme Court set forth what

constitutes a departure from the essential requirements of law:

The required "departure from the essential requirements of law" means something far
beyond legal error. It means an inherent illegality or irregularity, an abuse of judicial
power, an act of judicial tyranny perpetrated with disregard of procedural requirements,
resulting in a gross miscarriage of justice. The writ of certiorari properly issues to
correct essential illegality but not legal error.

In G.B.V. int'/ Ltd., the Supreme Court again addressed the purpose and power of the writ
of certiorari when it stated "The writ was never intended to address mere legal error, for common

law certiorari - above all - is an extraordinary remedy, not a second appeal." Jd. at 842.

Applying the standard of Jones and G.B.V. Int’/ Ltd. to our facts, the Commission acted in
accordance with the essential requirements of law in applying the correct law and operating

under the correct quasi-judicial procedure for the consideration of a PUD Major Development to

13find that this PUD application failed to meet the requirements of Section 2.02.18.G of the LDC.
and the PUD approval process required there. A majority of the Commission determined, based
on the evidence in the record, that contents of the record did not support the award of density

bonuses requested by the Petitioner.

The lynchpin of Petitioner’s analysis of the Commission’s action in this matter is

summed up in it’s opening paragraph of its argument on page 13.

“The Commission failed to adhere to long-standing, controlling Florida law which requires a
local government to grant an application for a permitted use, provided that the applicant meets the
legislated criteria, unless opponents of the project adduce competent, substantial evidence
demonstrating both that the legislated criteria have not been met and that the proposed
project is against the public interest.”

This argument is then tied to it’s explanation of the Irvine Standard based on the Florida
Supreme Court’s1986 opinion in /rvine v. Duval County Planning Commission, 495 So.2d 167
(Fla. 1986) In the express terms of its explanation, Petitioner concedes that the Court “addressed
the allocation of burdens in the context of applications for special exceptions”. The highlighted
language of the quote Petitioner then provided from the opinion supports that it only applies to
the type of special exception process addressed in that case. Petitioner’s subsequent reference to
Broward County v. G.B.V Intern., Ltd. 787 So.2d 838 (1986) (relating to a plat approval) relates
to plat approval process and does not address in any way the applicability of this standard in the

review of a discretionary major planned unit development order application like this one.

The distinguishing factors which separate these special exception specific case standards

are:

141. the additional element of requiring an affirmative presentation by opponents (after the
applicant has met it’s initial burden of proving that it’s application met the statutory criteria for

granting such exceptions) that the exception does not meet such standards; and
2. that the exception is, in fact, adverse to the public interest.

Unlike a variance, an exception follows legislatively created rules for permitting a
different zoning use. The reviewing board merely needs to follow the rules set forth in the
applicable ordinance to determine whether an exception is necessary.‘ For example, the Walton
County LDC has a separate and unique process for review of special exception applications in
Section 1.13.14.B which places the primary review responsibility on the Zoning Board of

Adjustment and includes substantial public interest and compatibility related criteria.> If this

4 19 Fla. Prac., Florida Real Estate Section 15:10 (2021 ed.) Types of Zoning — Special and Conditional Uses.

+ LDC 1.13.14.B. Special Exceptions, Any development on parcels of land, for which the use is by special
exception shall receive a recommendation from the Board of Adjustment prior to being acted on by the Board of
County Commissioners:

1, The Board of Adjustment shall consider the application at a public hearing. In reviewing the application, the
Board of Adjustment shall consider the recommendations of the TRC and shall determine whether the proposed
development meets the requirements and special conditions of Section 3 below in its recommendation. Based
upon such determination, the Board of Adjustment shall make a recommendation on the project prior to its being
heard by the Planning Commission,

2. When a use is requested on a parcel or parcels with more than one land use designation and one of those
designations requires a special exception for that use, the development application in its entirety will be treated as
a special exception.

3. To promote the compatibility of special exceptions with existing development the developer must:

a. Hold a community meeting that will take place following a pre-application conference with the County and
before submitting a special exception application. Topics covered in community meetings shall include, but are
not limited to: scale, intensity and overall impacts from proposed special exception use. The applicant must
address any potential traffic impacts, including traffic circulation and existing road conditions and improvements

to be made to support the proposed special exception use;

b. Provide a compatibility analysis and mitigation plan that addressed: scale, intensity, traffic impacts, including
traffic circulation and existing road conditions. Each analysis shall also demonstrate:

i. That the proposed use will not unreasonably increase traffic on local residential strects in the impacted area;

15Court was presented with a petition challenging the denial of a special exception application
proposed and reviewed under Section 1.13.14.B, this Court might consider the application of the
Irvine Standard, But that is clearly not the case here. Accordingly, in the type of proceeding

under review here, the record does not have to reflect these additional opposition burden of proof

and adverse public interest element in order to be properly reviewed by this Court.

The Vaillant standard, as cited in the Clay County and Dusseau cases cited by this Court
in it’s Order to Show Cause applies and the state of the evidence in the record should be

reviewed as described herein in Section II.

B. The Commission did not depart from the essential requirements of law in
considering, but not being bound by, the recommendations of lower tier entities which also

reviewed the PUD application.

Petitioner apparently cited to Section 1.13.11.B of the LDR in its Petition to claim that it
somehow imposes a duty on the Commission to agree with the recommendations of the Planning
Commission, the Technical Review Committee and the Director of the Planning and

Development Services Department in making its decision, The ultimate action of the Planning

ii, That the scale, intensity, and operation of the use shall not create adverse impacts from noise, smoke, exhaust,
emissions, dust, lighting, vibration, or odors that are detrimental to the reasonable use or quiet enjoyment of
existing development in the surrounding neighborhood;

iii. That the proposed development is consistent with the extent, design, and location of parking, parking access
drives, service areas, outside storage, landscaping, and other site features of the surrounding neighborhood,
including but not limited to setbacks, buffers, fences, walls, and open space; and

iv. An operational plan that includes operating hours, number of employees, number of work related vehicles and
equipment considered as part of the proposed development.

For the purposes of this compatibility analysis, "surrounding neighborhood" shall be construed as the surrounding
residential uses within a minimum of a one-quarter mile radius and any additional area as determined by the
Planning and Development Director, of the special exception parcel, with the strongest consideration given to
those residential uses that are adjacent to the special exception parcels.

16Commission on the matter is reflected in the staff report (App.2). The Director provided.
testimony in response to questions from the Commission as the whether the project complied
with the Comp Plan and LDC (Tr. 12 line 19). These matters are of record and were considered
by the Commission appropriately during the course of the public hearing. The Commission
occupies and performs the role as the sole finder of fact in the context of the quasi-judicial
proceedings here. The Commission, appropriately, is not bound by the details of the staff level
and Planning Commission level reviews that occurred prior to the opening of the hearing. The
staffs review process findings which are memorialized in the Staff Report are indisputably to be
considered as competent evidence for the Commission to consider in it’s decision making
process, But, the only written recommendation in that report is for the Commission to approve,
approve with conditions or deny the application. All staff testimony at the hearing reflects their
professional opinion on the ultimate question of whether the PUD application at hand meets the
requirements of code and defers to the Commission’s authority to come to its own decision. The
Commission had access to the cited elements in the course of the hearing and accordingly can be
treated as having the opportunity to consider them and weigh the impact of each of them in the
context of the totality of the evidence presented at the hearing in logical fulfillment of the

procedural step described in Section 1.13.11.B of the LDC.

c THE COMMISSION’S DECISION IS SUPPORTED BY COMPETENT AND
SUBSTANTIAL EVIDENCE IN THE RECORD OF THE HEARING BELOW AND IT’S

DECISION SHOULD BE UPHELD.

17As discussed earlier in this Response, the particular question for this Court is the
determination of whether any competent and substantial evidence supports the Commission’s
decision to deny this PUD application based upon the Commission’s written finding that the
evidence presented at the November 24, 2020 hearing did not support its agreement to increase
the base density of four (4) dwelling units per one (1) acre to over six (6) units per acre, when
measured against the Small Neighborhood density bonus processes in Sections 2.02.18.E and

2,02,18,G. of the LDC.

In sum, it is clear that the Commission did have a well-developed, detailed and
professionally prepared documentary record before them in this matter. The Commission is
called to absorb and discern that value of this documentary evidence subjectively and give it the
weight it is due. They are cloaked with a presumption of good faith and diligence in their
deliberation. They are not constrained to slavishly accept anyone’s opinion on any point of fact
or law. They have been chosen by the citizens of Walton County and empowered to use their
detailed knowledge of their community and its people to see the bigger picture in evidence
provided to them in this hearing. This local knowledge of areas of the County like the rapidly
developing sections along Nellie Drive and the pressure that projects like this add to

infrastructure capacity and the health of natural systems in invaluable.°

5 From the Memorandum to the Rules of Judicial Administration Committee of the Florida Bar from the Ad Hoc
Committee on Broward v. G.B.V. of the Environmental and Land Use Law Section of the Florida Bar on the
Question Referred by the Supreme Court in Broward County v. G.B.V. International, Inc. (Nov. 29, 2001):
“Their members are expected to bring to these collegial bodies their background in and knowledge of the
community, as well as an experience-based vision of how their constituents want their communities to look and
function. Indeed, land use authorities are the people’s elected representatives (or their direct appointees), chosen to
effectuate the people’s vision of what the community should look like. Florida courts have recognized the matter of
local land use as one integral to the functioning of our representative democracy. See Cross Key Waterways v.
Askew, 351 So. 2d 1062 (Fla. 1* DCA 1977), aff'd, 372 So. 2d 913 (Fla. 1978) (land use issue “affects the right of
access to government—the right of the people effectively ‘to instruct their representatives and to
petition for redress of grievances’ on which other cherished rights ultimately depend.” At P. 10.

18The Commission was required by it’s LDC to apply this evidentiary record to its
standards and determine whether the density and site design of this offering would adversely
impact its neighbors on and around Nellie Drive. Both Section 2.06.02 of the LDC and Policy L-
1.12.1 of the Comp Plan require any development proposed as a PUD to be compatible with the
surrounding areas. The record below supports the Commission's determination that the density
bonus sought by the Petitioner would approve a project density on Petitioner’s 9.8 acres that was
as much as thirteen (13) times as dense per acre as the adjacent Conservation Residential
properties that surround it. A density that was generally more than 2.1 units per acre higher than
the existing adjacent Low Density Residential zoned neighborhood and in effect much denser
because of the clustering of the units out of the wetlands on the uplands which back up to the
neighborhood, (See subsections II.B.2 and ILB.3 above) This well substantiated and fundamental

factor is sufficient, in and of itself, to support the Commission’s denial.

In addition, the record below supports a finding that the approval of this PUD application
would allow this intensive development within an environmentally sensitive resource area (See
subsection II.B.1 above) which one Commissioner clearly expressed concerns about in his

questions to the Petitioner’s only witness during the course of the hearing (Tr. 6-7).

The Commission based its decision on substantial, competent narrative and graphic
evidence properly submitted into the record of the hearing. The facts in evidence which were
considered by the Commission provide the necessary quantum of evidence which allows, on first
tier certiorari review, this Court to complete it’s task of finding record evidence that supports the

agency's decision. Broward County v. G..B.V. Int’ Ltd., 787 So.2d 838 (Fla. 2001)

19VL CONCLUSION

The Commission’s decision in this matter was not vision of an anti-development ambush
as urged on this Court by the Petitioner. [t was not the denial of a by-right entitlement due to the
Petitioner. Instead, it was a proper discretionary decision in the context of a PUD approval which
expressed disagreement with the opinion of its staff and the Petitioner on the adequacy of the
Petitioner’s exchange for the grant of more than a thirty percent (30%) increase in allowable
density which would authorize a density over thirteen times the density allowed for most
adjacent properties. The Commission acted within the scope of its express authority as the sole
finder of fact on this question. This Court is within the scope of its allowable discretion and

deference to recognize that and to dismiss the instant Petition.

OFFICE OF THE COUNTY ATTORNEY

    

Steven K. Hall { \
Florida Bar Number 77

161 E. Sloss Ave,
DeFuniak Springs, Florida 32433
Telephone (850) 892-8110

Facsimile: (850) 892-8471

Primary Email:
Secondary Email:
Counsel for Walton County

 
 
 

 

20CERTIFICATE OF SERVICE

 

Thereby certify that a true and correct copy of the foregoing Response to Petition

for Certiorari has been furnished by Electronic Mail delivery to Jeffrey S. Carter, Esquire as

  

counsel for the Petitioner via jeff@jelfcarterpa.com and service@ie rterpa.com on this

12" day of April, 2021.

7) pe DP aot
Steven K. Hall,
Office of the County Attorney

  

 

CERTIFICATE OF COMPLIANCE

 

1 hereby certify that this Response complies with the applicable requirements set forth in

Florida Rule of Appellate Procedure 9.100(1).

OFFICE OF THE COUNTY ATTORNEY

  
 
        

Steven K. Hall, isa
Florida Bar Numbet 602477
161 E. Sloss Ave.

DeFuniak Springs, Florida 32433
Telephone (850) 892-8110

Facsimile: (850) 892-8471

Primary Email: eve@co.walton.tLus
Secondary Email:
Counsel for Walton County