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Judge finds Walton County in violation of court order

Aug 14th, 2014 | 0

By DOTTY NIST
Walton County Circuit Judge Kelvin C. Wells has found Walton County in contempt of an order that he had issued three months earlier.
Judge Wells issued the finding of violation at an Aug. 6 hearing at the Walton County Courthouse. His original order had been issued on May 9. Walton County has appealed both the original order and the order finding the county in contempt.
The orders are in connection with a lawsuit filed on April 7 against Walton County by Sandestin Investments, owner of property in Sandestin Resort. This was a “Complaint for Declaratory and Injunctive Relief and Petition for Writ of Mandamus” filed in Walton County Circuit Court.
In the complaint, Sandestin Investments had requested that  the court declare “null, void and of no force or effect” the action taken by the Walton County Board of County Commissioners (BCC) on March 11 in connection with Sandestin Investments’ property and the Osprey Point development.
Osprey Point is a 77-unit residential development for which county staff had issued a development order on Feb. 6. The project had been proposed to be constructed on a 7.2-acre site at Sandestin Resort within the Sandestin Development of Regional Impact (DRI).
On March 11, the BCC had voted unanimously not to accept building permit applications from Sandestin Investments for Osprey Point pending a hearing being held to determine whether Sandestin was in compliance with its development of regional impact (DRI) development order.
In their April 7 complaint, Sandestin Investments also asked the court for an injunction “temporarily enjoining” the county from “refusing to accept or review for approval any building permit applications” submitted by Sandestin Investments in connection its property and Osprey Point.
Following a May 2 hearing on the lawsuit, Judge Wells had issued a May 9 order granting Sandestin Investments the temporary injunction from the March 11 BCC action. He had ordered that Sandestin Investments be allowed to “submit its building permit application for Osprey Point and that the county “process the application in accordance with their procedures and policies.”
Brought up at both hearings had been the matter of an “E-2 change” that Walton County Planning and Development Services had recommended last year that Sandestin Investments file for. Sandestin had done so. This was an amendment to the Sandestin DRI, an ordinance to correct a scrivener’s error regarding acreage on a parcel. Requirements for the E-2 change, also known as ordinance No. 2014-06, were approval by the BCC and submittal to and review by the state Department of Economic Opportunity (DEO)
The county commission approved the E-2 change on Jan. 28, and a copy of the ordinance from that action was sent to DEO, along with attached exhibits.
Later, after learning that county staff had issued a development order for Osprey Point, commissioners raised questions about that action. Two commissioners recalled that they had previously directed that no development orders would be issued for Osprey Point prior to a compliance hearing being held regarding the DRI, with that hearing not having taken place at that time.
At the March 11 BCC meeting, Walton County Attorney Mark Davis had told the commissioners that the E-2 change had been the last impediment in the way of development order issuance for Osprey Point. However, some of the commissioners said they had not been advised that approving the E-2 change would result in issuance of the development order.
At that meeting, the BCC had voted 4-0 to direct staff not to accept any building permit applications for the Osprey Point Development, at least until the compliance hearing.
On April 24, DEO Plan Processing Administrator D. Ray Eubanks wrote to Walton County Planning and Development Services Director Wayne Dyess advising him that attachments to the copy of Ordinance 2014-06 (the E-2 change ordinance) provided to DEO had not been legible.
Eubanks wrote, “Based on our program staff’s communications with the County, it is my understanding that the documents submitted by the Applicant and attached to the original Ordinance are not legible either.”
Eubanks then advised that, due to this illegibility, DEO did not consider the amendment to have been “rendered” pursuant to the applicable Florida Statutes—and had discontinued review of the ordinance.
“The County may wish to consider rescinding and readopting the Ordinance with legible attachments,” Eubanks suggested.
When the DEO letter was presented to the commissioners on May 13, a vote to rescind the ordinance and advertise it for rehearing was approved after a great deal of discussion. To date, the ordinance has not been reheard by the county.
On June 6, the BCC held a hearing to evaluate Sandestin’s compliance with its DRI development order. The hearing had originally been set for Feb. 3 and had later been rescheduled several times for various reasons. The commissioners’ finding at that hearing had been that the Sandestin DRI was not in substantial compliance and that further development would first require a Notice of Proposed Change (NOPC) procedure. This is a process requiring public hearings and state review that has yet to be undertaken by Sandestin.
The DEO letter regarding the illegible attachments had been introduced as evidence by Walton County at the May 2 court hearing. In his original order, Judge Wells also addressed the matter. He had ordered the county to immediately provide legible copies of the attachments to DEO.
The Aug. 6 court hearing was prompted by a Motion for Contempt filed by Dana Matthews, an attorney representing Sandestin Investments. In the motion, Sandestin Investments stated that they had learned that Walton County had failed to file legible copies to DEO as of May 8. On May 8, the motion continued, Sandestin Investments’ attorney had legible copies of the documents that DEO had indicated they did not have, delivered to the county attorney’s office.
The motion concluded with the statement that the county had “continued to ignore” the court order and had failed to deliver the legible copies to DEO as required.
At the Aug. 6 hearing, Matthews brought up the fact that, three months after Judge Wells’ previous order, Sandestin Investments’ building permit application for Osprey Point had still not been processed by the county.
Speaking for the county, attorney Davis objected, pointing out that Sandestin Investments’ Motion for Contempt had made no mention of the building permit application but only referenced the matter of whether legible copies had been provided to DEO by the county. “That’s why we’re here,” he said.
Judge Wells responded that his May 9 order had dealt with more than that, namely that he had directed that the county “give thumbs up or down” on Sandestin Investments’ building permit application.
Davis stated that the county had provided DEO with the requested copies on June 30. He also explained that the copies delivered to the county by Matthews had been the same as ones previously provided to DEO by the county which DEO had not accepted.
Matthews complained about the county’s delay in providing DEO with legible copies after being ordered to do so in the May 9 court order. He charged county staff had incorrectly reported at a commission meeting that the copies had been provided to DEO immediately after the court order.
“What do you want me to do?” Wells asked Matthews.
Matthews continued to complain that, after legible copies as required by DEO had been provided by the plaintiffs to the county, the county had not properly provided them to DEO because they had not sent them certified mail.
He requested that the county be required to pay Sandestin Investments’ court fees and costs and process Sandestin Investments’ building permit application for Osprey Point.
Davis responded that the latter was not possible due to Sandestin having been found out of compliance with its DRI requirements by the BCC.
Per the portion of Florida Statutes applying to DRIs, “The local government issuing the development order is primarily responsible for monitoring the development and enforcing the provisions of the development order. Local governments shall not issue any permits or approvals or provide any extensions of services if the developer fails to act in substantial compliance with the development order.”
Called by Matthews, Walton County Planner Renee Bradley was asked to provide testimony. Bradley confirmed that she had provided copies to DEO on June 30. Asked why she had waited until that date, Bradley responded that the BCC had rescinded the ordinance and that she had been waiting for it to be reapproved so that she could resubmit the entire approved package to DEO, as had been done when the BCC had first approved the ordinance on Jan. 28.
Bradley also indicated she had not sent additional copies to DEO earlier because the ones she had were from her files and not same as the ones that the BCC had adopted. This was also why she had not sent the copies provided to DEO on June 30 by certified mail, Bradley said.
However, Bradley said DEO had recently stated to her that they had accepted the copies she had sent on June 30 and that the ordinance had now been deemed “rendered” by DEO.
Matthews also called Walton County Building Official Billy Bearden. In response to Matthew’ questions, Bearden said he had accepted and spent several hours reviewing the building permit application for Osprey Point but had been told by Davis not to process it.
In response to a question from Davis, Bearden said he had been told not to process the application because of the noncompliance finding in connection with the Sandestin DRI.
Asked by Judge Wells how long the processing of a building permit application takes, Bearden responded that he could have completed the processing if legally allowed by to do so.
Davis said the county would stipulate that the process usually took approximately 60 days.
Following the testimony, Judge Wells observed that it sounded as if Davis’ instructions to the staff members and the county commission’s actions at meetings following the last hearing had been “almost to thwart” his court order.
Davis assured him that the county had been respectful of the order, but that they also had to take into account state law, given the finding of noncompliance for the DRI. Once such a finding is made, it is not possible for the county to provide services or issue permits for a development, he noted. Davis pointed out that the compliance hearing had been scheduled long before the May 9 court order.
However, Matthews argued that the county had not sought a modification of the court order for any reason. Instead, he alleged, staff had just been told not to comply with the order.
“My order was clear,” Judge Wells emphasized. He was of the opinion that the county had “drug their feet” on processing the building permit application in violation of his order.
Finding the county in contempt, Judge Wells ordered that the building permit application for Osprey Point be processed within 10 days, whether approved or denied. He also assigned payment of Sandestin Investments’ attorney fees and costs to the county, but put that part of the order on hold. He explained that the latter requirement could be removed in the event that his order were reversed on appeal.
Davis advised that the county would request a stay, appeal the ruling, and seek an expedited hearing on the matter. This was agreed to by the court.

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