Court invalidates county board’s zero setback variance approval

PHOTO OF THE 187 San Roy Holdings. L.L.C., property on San Roy Road submitted along with an application for a variance to reduce the front setback on the property.

By DOTTY NIST

A decision by a county-appointed board granting a variance for a zero front setback on a lot has been invalidated by a recent court decision.

The court order was issued by Walton County Circuit Court Judge Jeffrey E. Lewis on Feb. 16.

The case was in connection with a May 24, 2018, decision by the Walton County Zoning Board of Adjustment (ZBA).

On that date, the ZBA had voted to grant a variance request by 187 San Roy Holdings, L.L.C., to reduce the front setback on the applicant’s two-acre beachfront property on San Roy Road, located next to the dune lake outfall for Eastern Lake.

Representatives of the applicant had stated that the buildable area of the lot was small and limited due to a 33-foot roadway easement on San Roy Road and the property being subject to environmental restrictions, including the Coastal Construction Control Line and coastal dune lake and outfall setbacks for Eastern Lake.

A conceptual drawing had been presented for a 12,000+-square foot, four-story home on the property with a footprint of approximately 3,700 square feet.

The applicant’s representatives had stated that the front setback reduction was needed in order for the state Department of Environmental Protection (DEP) to approve a footprint for the home that would allow a ramp for parking. 

The applicant’s request to reduce the 20-foot front (north) setback on the property to a zero setback was approved a 4-2 board decision.

The ZBA decision was challenged in Walton County Circuit Court. In September 2018, PATCO Energy. Ltd., owner of adjacent property to the east of that of 187 San Roy Holdings, L.L.C., filed a petition for writ of certiorari requesting that the court “quash” or negate the final order resulting from the ZBA decision to grant the variance.

In his order issued on Feb 16, 2021, on the PATCO petition, Judge Lewis found that the ZBA decision had departed from the essential requirements of law and that the decision had not been supported by competent substantial evidence.

He found that, contrary to requirements of the Walton County Land Development Code (LDC), the ZBA failed to consider the least restrictive variance that would allow reasonable use of the property.

“Although it is undisputed,” Judge Lewis wrote, “that the reasonable use of the subject property would be as a single-family residence, the record does not contain any evidence establishing the reasonable use is to build a 12,000 square foot single-family residence. The LDC also does not provide that the reasonable use of a residential property is to build a single-family residence of a particular minimum size that would require automatically granting a zero-foot setback variance.”

Judge Lewis deemed a comment by counsel for the applicant that the lot would not be buildable without the zero-foot setback to have been “merely conclusory or speculative.” He referenced, in part, testimony by Walton County Planning and Development Services Director Mac Carpenter at the ZBA meeting that he could not come to the conclusion that the lot would be unbuildable without the variance, considering the size of “this particular house.”

The judge’s ruling granted PATCO’s request that the ZBA order be quashed.

In a Feb. 25, 2021, order, Judge Green dismissed a similar petition that had been filed by William Horn challenging the ZBA approval. Horn’s petition was deemed moot due to the issue having been resolved with the order on the PATCO petition.

At the Feb. 25, 2021, regular meeting of the ZBA, board attorney Hayward Dykes provided the board members with an update on Judge Lewis’s order regarding the PATCO petition.

Dykes discussed that the 187 San Roy Holdings, L.L.C., variance request would be required to come back before the ZBA for rehearing as a result of the board’s order being quashed, although he did acknowledge the possibility that the variance applicant could seek an appeal of Judge Lewis’s order. Dykes pledged to provide the board members with copies of the court order and keep them updated on the matter.

The 187 San Roy Holdings, L.L.C. property remains vacant. At one time the Walton County Board of County Commissioners (BCC) had approved a contract to buy a 1.62-acre portion of the property, but the contract had been withdrawn by the county in September 2016 after the property owner disagreed on terms and declined to sign the contract.