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JOLLY BAY PUD PROPONENTS FILE LITIGATION

Dec 10th, 2008 | 0

By DOTTY NIST

Property owners who had proposed the Jolly Bay PUD have sued Walton County in response to the county’s Sept. 22 denial of their mixed-use development proposal.
The property owners, Kimberly Maxwell and Carl Post, have filed a petition in circuit court seeking to reverse the denial of Jolly Bay PUD by the Walton County Board of County Commissioners (BCC). In a second lawsuit, Maxwell and Post are seeking monetary damages, including reimbursement of attorney fees and other costs, for alleged taking of their property and violation of their constitutional rights in connection with the project denial.
Proposed for a 60-acre site off Jolly Bay Road in the Freeport area, 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. At the Sept. 22 BCC hearing, the proponents also requested approval of a conceptual master plan for future construction of a restaurant, a bakery/coffee shop, a 20-unit bed and breakfast, office, retail, a 49-slip boat dock, and a 73-unit, 147.3-foot-tall condominium, overlooking the bay.
The most controversial element of the proposal, the condominium had previously been envisioned at 207 feet in height, according to testimony at the Sept. 22 public hearing. It would have been by far the tallest building north of the Choctawhatchee Bay in Walton County.
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 for the area south of the bay. However, Jolly Bay PUD was not deemed to be bound by that prohibition. This was because an application for the project had been submitted in June 2006, prior to the BCC vote on the north-county height limit.
The public and county staff, and ultimately also the BCC, nevertheless targeted the height of the condominium as problematic.
The litigation filed on behalf of Jolly Bay PUD alleges that denial of the project was on the basis of an “un-adopted standard” for building height set by county staff in response to public opposition to the project. Maxwell had stated at the Sept. 22 public hearing that the first public opposition to the project had not surfaced until project plans were presented at a Walton County Technical Review Committee meeting in Aug. 2007.
Dana Matthews, attorney for the developers, commented last week that, “Jolly Bay spent a lot of time and money working on the plans for an upscale project that was continually brought before the planning department staff over a two-year period before submittal of an application to ensure that the project met all Walton County Comprehensive Plan and Land Development Code requirements.
“Despite those efforts, Jolly Bay now finds itself in the position of having to sue to protect its constitutional rights and to seek millions of dollars in monetary damages from the county and its taxpayers,” Matthews added.
Lois La Seur, county planning manager, had contended at the Sept. 22 public hearing that planners had communicated to the developers early on that the height of the condominium would be an issue.
Prior to the BCC public hearing, the Walton County Planning Commission had voted unanimously to recommend approval of Jolly Bay PUD with the condominium at a height of 147.3 feet.
At the Sept. 22 BCC hearing, Tim Brown, Walton County senior planner, had reported that the project complied with all provisions of the county’s comprehensive plan and land development code, with the exception of the 147.3-foot building. As a high-rise, the building would not be an allowable use within the property’s Rural Village land-use classification, Brown had testified.
Planning department representatives had indicated that a maximum building height of seven stories, between 75 to 100 feet, considered mid-rise, would be acceptable for the land use, in consideration of wetlands protection being proposed as part of the PUD. Brown had stated that a height of eight stories or more would be considered urban rather than rural.
Walton County’s growth management documents do not define high-rises or mid-rises. The county had relied on planning resources other than the comprehensive plan and land development code to make these determinations.
Jolly Bay PUD representatives have pointed out that no height limits are specified in county code for the Rural Village land-use classification.
According to the land development code, Rural Village “is a mixed use district which permits predominantly residential development up to a maximum of 2 units per acre.” Primary uses allowed are silvicultural (tree farming), general agricultural residential, civic uses, and residential subdivisions, with “functional agriculture related non-residential” allowable as a conditional use.
Matthews has likened the Sept. 22 BCC denial to a 2001 BCC decision to deny an Inlet Beach development proposal by Thomas Henry. That denial, which the BCC based on the project’s alleged lack of compatibility, was later overturned in court. The court had ruled that the project did comply with the minimal standards for compatibility that were part of the land development code at the time.
County commissioners had indeed referenced compatibility at the Sept. 22 public hearing.
District 5 Commissioner Cindy Meadows had observed, “No other area in north or south Walton County will have a building over 50 feet.” She had then questioned how the proposed 147.3-foot condominium would “be compatible with that new reality.”
More of the discussion had centered on the suitability of the proposal for the Rural Village land use classification.
“I just don’t see how you make the argument that a high-rise is either rural or village,” District 1 Commissioner Scott Brannon had commented.
Brannon’s motion to deny the project had been based on his judgment that the applicants had not demonstrated that their plan was appropriate for the land use classification. Denial of the project was by unanimous vote.
The lawsuits filed by Jolly Bay PUD have been assigned to Judge Howard W. LaPorte. No court dates have been set at this time.

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