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Mike and Shari Judkins sue over decision to rehear appeal

Aug 30th, 2012 | 0

By DOTTY NIST

Holiday Road residents Mike and Shari Judkins have sued Walton County, making the argument that a decision made by the county Zoning Board of Adjustments (ZBA) should be considered final, aside from a challenge of the decision in circuit court.

At a Feb. 23 hearing, the couple had prevailed in their appeal of Wayne Dyess’ administrative determination regarding a drywall business that had located in their neighborhood the previous summer. Dyess is Walton County planning and development services director.

Dyess had made the determination that the business, Creative Walls, located in the Coastal Center land use category, was an allowable use. The Judkins’ contended that the business was industrial in nature and did not belong in the Coastal Center neighborhood.

No one was present at the hearing to oppose the appeal on the part of the business or business property.

Following a motion for denial of the Judkins’ appeal of Dyess’ decision, the ZBA vote was 2-5, resulting in failure of the motion to deny. This was understood by the board members to mean that the appeal was granted. Responding to a question following the meeting, Dyess had commented that the ZBA decision would mean that the business was considered out of compliance and would have to relocate.

The Walton County Land Development Code states that any appeal of a ZBA decision must be filed in circuit court. However, there were further developments with the ZBA regarding the Feb. 23 vote.

Toni Craig, who came on board as Walton County attorney the same month as the ZBA appeal hearing, identified a procedural problem with the ZBA vote in which the motion to deny the Judkins’ appeal had failed. A vote to ratify the decision with an affirmative motion was therefore scheduled for the ZBA’s next meeting, which was set for April 26. When that meeting was convened, Craig told the board members and the Judkins’ that in her opinion proper notice of the item at the April 26 meeting had not been provided, due to the owner of the property in question and neighboring property owners within 300 feet not having been notified by mail.

Craig’s recommendations regarding notification were a departure from those in use by the ZBA for many years. The Judkins’ strongly disagreed that notification had not been sufficient.

However, due to the notification concern, the vote to ratify the earlier decision was rescheduled for the ZBA’s May 24 meeting, with the notification procedures outlined by Craig to be undertaken. Subsequently, when that meeting was convened, the item was again postponed due to a full board not being present.

Then, at the June 28 ZBA meeting, representatives of the property owner and drywall business came forward to make the argument that they had not been notified of the original appeal prior to the Feb. 23 hearing. Representing those parties, local attorney George Ralph Miller called for the board to hold another “full-blown hearing” on the appeal, at which all parties could make their arguments to the board members.

Creative Walls employees also testified that they did not have knowledge of the ZBA hearing on the appeal prior to the Feb. 23 hearing.

Bob Apgar, an attorney representing the Judkins’, countered that the business owner and property owner had had knowledge of the appeal—and that notice had been provided through newspaper publication according to the requirements of county code. He maintained that the code requires notification by mail only when a change to the land development code is being considered that would affect a property owner.

The ZBA members voted to rescind their previous decision on the appeal and rehear the appeal at their Aug. 23 meeting. That hearing did not take place due to the Judkins’ filing their lawsuit on July 30.

In their lawsuit, the Judkins’ ask for declaratory relief to determine the legality of the ZBA action rescinding the decision on their appeal and voting to hold a second hearing on the appeal. The lawsuit also seeks to have the court examine the legality of what is termed an “after the fact re-interpretation of the Code” by Craig regarding the notification procedures.

Among the exhibits included with their litigation is a copy of a Jan. 18 email, apparently from then-Walton County Attorney Lynn Hoshihara to a county staff member, stating that she had spoken with Creative Walls and informed them of the upcoming ZBA appeal hearing.

The Judkins’ seek a court judgment “determining that once a final decision has been made by the (Board of Adjustments), it is FINAL and can ONLY be appealed to the Circuit Court…”

They also seek recovery of fees, costs and any other damages or relief deemed proper by the court “under these very unusual and what Plaintiff believes to be unjust circumstances.”

The case has been assigned to Walton County Circuit Judge Kelvin Wells. There has been no responsive filing by the county at this time, and no court date has been set.

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