By DOTTY NIST
A violation of the Walton County Land Development Code (LDC) has been found in connection with pavers that had been placed within a required 10-foot setback for a Beach Drive, Miramar Beach home.
The Walton County Code Enforcement Board took up the case at its May 17 regular meeting at the South Walton Annex.
Code Enforcement Officer Kurt Rose presented the case to the code board members at the meeting.
The home was owned by Louisiana residents Jeffrey and Terri Tate.
Responding to a June 2017 complaint, Rose found the home to be in violation due to pavers associated with a pool deck extending into the required 10-foot setback and to within 2 to 2 1/2 feet of the property line. He explained that pools and their decks are considered structures and must comply with building setbacks. Fences, in contrast, are allowed to be placed at property lines, Rose stated.
The code section applying to building setback requirements, Section 5.03.03, provides an exemption for all nonconforming undeveloped residential lots platted prior to June 1975, allowing for these lots to use a five-foot setback. Although the lot for the home had been platted prior to June 1975, according to testimony, the exemption was not deemed to apply. This was due to a Feb. 2017 Walton County Planning Director’s opinion. The opinion stated that the exemption would not apply to lots exceeding 10,000 square feet, which was said to be the case with the Tates’ lot, slightly over 13,000 square feet, according to testimony.
Rose noted that the 10-foot setback had been the requirement on the property owners’ building permit.
He told the board members that code enforcement had been advised in February 2018 that the Tates would be applying to the Zoning Board of Adjustment for a variance in order to resolve the setback issue. However, he said that the following month the department was told that the property owners would no longer be seeking the variance.
Board Chairman Tom Stein asked if it was allowed to plant grass within a setback. Rose responded that this was allowed and that artificial turf was allowed within the setback as well.
Asked the extent of the pavers that would have to be removed with the property being found in violation, Rose responded at least a section of seven feet by 30 to 45 feet.
Michael Henry of the Dunlap & Shipman legal firm spoke on behalf of the property owners. He told the code board members that the pavers are not elevated and that there are no neighboring properties to the east or south of the Tate property to be impacted by potential water runoff from the pavers, which face the right-of-way bordering the property.
Bill Williams, code manager, later countered that the code section applying to setbacks does not contain any reference to neighboring properties.
Henry brought up one of the LDC revisions that had been recommended for approval on May 10 by the Walton County Planning Commission to go before the Walton County Board of County Commissioners (BCC). This, he said, would exempt non-elevated features such as the pavers so that they would not be deemed as encroaching into setback areas. If the revision language were approved by the BCC, the pavers on the Tates’ lot would be subject to the exemption and would be allowed in the setback, he explained. Henry therefore requested that the board members continue the hearing and postpone voting on the alleged violation.
He also explained, in response to a question, that the property owners had opted not to pursue the variance because there was a “good faith belief” that the lot would qualify for the reduced setback per the existing code exemption. Then the property owners became aware of the proposed revision language, Henry added.
“You had a logical legal recourse,” Stein said in reference to the variance procedure, observing that instead of pursuing that, the property owners had just left the violation unresolved.
Henry countered that a finding of violation by the board could possibly be undone within 30 days or so by the BCC approving the code revision language.
There was discussion about the timeline of the BCC potentially adopting the revision language. It was determined that, due to workshops planned to precede a BCC decision, early September would be a reasonable date for the adoption to potentially be completed.
Heather Christman, assistant county attorney, indicated that the county would not object to the board members determining a violation, if they so chose, and directing that the property owners bring the violation into compliance by September, in order to allow time to see if the code revision language was adopted.
Rene Youell, code enforcement board attorney, added that the property owners could come back and request more time if the BCC process took longer.
The board members voted to find the property owners in violation for the setback violation, directing for the property to be brought into compliance within 90 days or begin incurring $250-per-day fines at the end of that time if compliance is not achieved; however with the latter decision subject to a possible change to the LDC that would make the order moot. Included in the motion was the ability for the property owners to request an extension of the 90 days if the BCC process takes longer to complete.
The motion was approved with all aye votes of the four board members present.
Walton County Code Enforcement Board meetings are held regularly at 5 p.m. on third Thursdays at the South Walton Annex. depending on whether there are cases to be heard. These meetings are open to the public.