By DOTTY NIST
A Walton County couple operating a sky-diving business have prevailed in their appeal of an earlier Walton County Circuit Court ruling that their business did not comply with allowable activities for the land use district.
The business is known as Skydive North Florida and is operated by James and Melanie Nipper on their 290-acre farm in the Paxton area. The Nippers offer a sky-diving experience as a “fee-for-service” activity.
Both Nippers formerly served in the U.S. Army, he as a paratrooper and she as pilot. Melanie Nipper took office as Walton County District 3 commissioner in November 2016.
In a Jan. 17, 2017, opinion, the First District Court of Appeal reversed the Dec. 2015 circuit court ruling. The appeals court found that Walton County had not demonstrated “a clear legal right” to bar the Nippers from conducting the business on their property.
The opinion read in part, “here it isn’t clear that the Nippers’ skydiving operation violated Walton County’s zoning code.” It referenced a decision by the Walton County Code Enforcement Board (CEB) in January 2015 in a hearing on an alleged violation involving the sky-diving business.
At the CEB hearing, Wayne Dyess, Walton County director of planning and development services, had stated his position that uses allowed for property in the applicable classification, Large-Scale Agriculture, as listed in the Walton County Land Development Code and Comprehensive Plan, were “not consistent” with a sky-diving business.
However, members of the volunteer board had noted that outdoor recreational activities such as hunting or fishing camps, bait and tackle shops, shooting ranges and golf courses were listed as allowable supporting commercial uses within the Large-Scale Agriculture land use classification in the Walton County Comprehensive Plan.
“Common sense says that this is not a violation,” CEB member Richard Fowlkes had commented, moving to find the Nippers not in violation, with the motion for no violation carrying in a 3-2 vote. Walton County had considered challenging the CEB decision in court but opted not to do so.
Prior to the CEB decision, the Nippers had filed a claim in circuit court, ultimately unsuccessful, attempting to establish that they would qualify as an agritourism business for a state law exemption from local land use regulations.
Resulting from a cross-claim by Walton County to stop the operation of the sky-diving business, the December 2015 circuit court ruling had also referenced the CEB decision—but had stated, “as stipulated by the Plaintiffs (the Nippers), that determination is not binding on this Court.”
The circuit court ruling had instead relied on successive Walton County planning director determinations “that a commercial skydiving business was not allowed in the Large Scale Agricultural District.”
“The Court finds that public’s interest is served in granting this request for an injunction because the public has an interest in seeing that local ordinances and laws are enforced,” Walton County Circuit Judge Thomas J. Santurri wrote in his ruling in favor of the county.
The District Court of Appeal found that the lower court had not been correct in disregarding the CEB decision and instead relying on the planning director determinations. The court ruled that these determinations “do not override a final enforcement decision by the CEB,” which had had the authority to decide the issue.
“What is more, the language of Walton County’s zoning code itself is ambiguous and doesn’t establish the County’s case for the injunction,” the appeals court opinion also stated.
The opinion is not final until the expiration of the deadline for filing a motion for rehearing and disposition of the motion, if filed.
The Nippers were represented by Matt Gaetz, who served as a member of the Florida House of Representatives from 2010 to 2016, and worked for the Fort Walton Beach-based legal firm Keefe, Anchors & Gordon prior to being sworn in as U.S. Representative for Florida’s 1st Congressional District in early January. Gaetz is to continue to serve as an attorney of counsel to the law firm, according to information provided by the firm.