Hearings conclude on court challenge to Cypress Lake PUD approval [PREMIUM]

SITE PLAN for Cypress Lake PUD.

By DOTTY NIST

Testimony was wrapped up on Nov. 12 in the last of a series of hearings on a legal challenge to Walton County’s approval of the Cypress Lake Planned Unit Development (PUD), with Walton County Circuit Court Judge David Green presiding.

The PUD consists of 85 single-family units, 40 duplex units, and 16 condominiums, totaling 141 residential lots, and 53,000 square feet of commercial space on 22.36 acres on the west side of CR-30A about six-tenths mile south of the western CR-30A/U.S. 98 intersection. The property is across from the Emerald Walk subdivision, formerly known as Flamingo Village, and borders Topsail Hill Preserve State Park on two sides. Developers are Cole Forsythe and Mike Grimsley of Ashwood Holdings Florida, L.L.C.

The project was approved in a 4-1 vote of the Walton County Board of County Commissioners (BCC) on Dec. 12, 2017.

In January 2018, the BCC approval was met with the lawsuit, filed in Walton County Circuit Court by two local nonprofit organizations, Beach to Bay Connection and the South Walton Community Council (SWCC), jointly with several other plaintiffs who are residents and owners of property in the vicinity of the PUD property. Both Walton County and Ashwood Holdings were named as defendants in the legal complaint.

The plaintiffs have sought to bar the developers from constructing the project as approved, alleging that their plans had failed to meet county standards for a mixed-use PUD.

Hearings on the lawsuit began on Nov. 8. The Nov. 12 hearing featured testimony by several expert witnesses called by attorney Dana Matthews, who represents Ashwood Holdings. The witnesses included Patrick Imhoff, environmental scientist, Kenneth Brian Metcalf, planner, and Mac Carpenter, Walton County planning and development services director.

Imhoff reported on his research and inspection of the development property and adjacent property contained within Topsail Hill Preserve State Park. He testified that the portion of the park adjacent to the development property does not have the environmental sensitivity of the western portion of the 1,643-acre state park. (The western portion houses the park entrance, parking lot, RV sites, and related features.)

Imhoff’s conclusion was that it would be “exceedingly unlikely” for the development to have an environmental impact on the state park property.

In cross-examination, Terrell Arline, attorney for Beach to Bay Connection, the SWCC, and the plaintiff residents/property owners, asked about a “scrubby flatwoods” area that Imhoff had mentioned seeing in the southeastern portion of the state park, asking if the Flatwoods Salamander, a threatened species, could be found there and if salamanders could move from the park property to the development site. He also asked about the possibility of black bears traversing the site.

Imhoff responded that black bears are not a protected species—and that to serve as habitat for the threatened salamanders, property requires a lot of management, which was not the case in this instance. He concluded that salamanders would not be likely to use the development site.

Metcalf was questioned about the compatibility of the PUD project with surrounding uses. He indicated that the density for the PUD, 6.3 units per acre gross density, is higher than the density of existing subdivisions, and lots are smaller for the PUD, but his determination was that this did not make Cypress Lake PUD incompatible. Metcalf also testified that, due to their design, the commercial and condominium uses for the PUD would not make the project incompatible with neighboring property.

Later he calculated the density for the residential portion of the PUD as 3.8 units per acre.

In response to questions from Matthews, Metcalf also said that buffers for the PUD and the floor area ratio for the commercial portion were also consistent with the Walton County Comprehensive Plan.

Under cross-examination by Arline, Metcalf acknowledged that he had not done a compatibility analysis for the PUD with regard to the park property. He observed that any development adjacent to a park would “change the situation” versus not having development next to the park. The standard for compatibility, Metcalf explained, would be whether the park would still be “able to function” with the development existing adjacent to it.

Arline asked about a pool planned for the top of one of the four-story buildings within the PUD, and Metcalf agreed that he would expect there to be lights in connection with the pool. However he was of the opinion that people staying in the park RV section would not be able to see the lights on the pool and that the pool and lights would not represent a use that would be incompatible with the park.

The first issue that Matthews focused on clarifying with Carpenter’s testimony was the future land use category of the PUD property. Carpenter indicated that the land use category is Neighborhood Infill and that this is not considered a mixed use, even though both residential and commercial are included.

Listing mixed use categories, Carpenter explained that percentages for various types of uses are specified. The difference is that for Neighborhood Infill, a mix of uses is allowed but not required, he commented.

Later Carpenter was asked to go into detail on the method used to calculate allowable residential density and commercial intensity for the PUD. He countered allegations that there had been “double-dipping,” or using the entire acreage of the property to calculate both density and intensity. Carpenter testified that the commercial or nonresidential entitlement (10.9 percent) had been subtracted from 100 percent of the entitlement before using the remainder (89.1 percent) to calculate maximum allowable residential density (stated as 158 residential units). He testified that density and intensity for the project were consistent with the Walton County Comprehensive Plan (CP) and Land Development Code (LDC).

Answering a question about a CP requirement for sidewalks and their absence in the PUD, Carpenter responded that a series of interconnecting paths are being provided with the project which are not always located at the edge of the street as is a traditional sidewalk, providing for access to the PUD commercial center. Alternative design is allowed with PUDs, he noted, testifying that in his opinion the paths serve the intent of the CP sidewalk requirement.

Carpenter was also questioned about the sufficiency of the 10-foot buffer being provided between the PUD property and the state park, along with the PUD plans to landscape and put as many as 60 to 70 pervious parking spaces within the 20-foot CR-30A Scenic Corridor buffer and county right-of-way.

Arline raised the issue whether a 25-foot buffer should be provided with Topsail Hill Preserve State Park as wildlife habitat. Carpenter countered that state park property was not listed with types of property requiring a 25-foot buffer in the CP Coastal Zone Element and that 10 feet, which was being provided, would be the applicable buffer.

He deemed buffers with neighboring subdivisions as in accord with county requirements, also stating that many projects all along CR-30A have parking and driveways in the Scenic Corridor buffer area, and adding that plans were for the developers to “enhance at great expense” with landscaping the buffer area and right-of-way.

In a closing argument, speaking of the Cypress Lake PUD, Arline told the court, “We think you can conclude that it’s a mixed use development.” He noted that the county had referred to the PUD as such in some of its materials but was trying to “get around it” in order to avoid different requirements associated with mixed-use projects that are not being applied.

Arline also disagreed with Carpenter’s account regarding calculation of allowable density and intensity—and said this was the first time he had seen material handed out by the defendants on the calculations at the hearing.

“You’ve double-dipped,” he asserted.

Arline emphasized compatibility requirements associated with Neighborhood Infill and questioned whether they had been met. It has to be demonstrated that “the project fits the neighborhood,” he told the court. He pointed out that residential lots in the PUD were about half the size of those in adjacent and neighboring subdivisions—and that buffers with adjacent residential properties were only five feet.

Arline also highlighted that Metcalf had not evaluated the compatibility of the PUD with the state park.

“I think you can look at whether it’s reasonable to say the project is compatible with the neighborhood,” he said.

In closing, Matthews questioned whether the plaintiffs should be considered to have standing and asked the court to review the question, which had been the subject of a motion that he had previously filed.

He also pointed out that the state park property bordered by the PUD property was previously an RV park that was acquired for addition to the state park. “There’s already a developed area over there,” he said, arguing that there are “no critical” wildlife, plants, or soil on that portion of the park except for a wetland area for which the PUD has provided a buffer per county requirements.

Matthews pointed out that no one from the park was present to object to the project.

He noted that the neighboring Cypress Dune subdivision, as well as other subdivisions in the vicinity, were approved with a 10-foot buffer from the park. No evidence was presented, Matthews added, that the size of the buffer would negatively impact the park.

Calling the PUD property “one piece of the neighborhood that has not been developed,” Matthews concluded, “I don’t see this as being incompatible.”

Walton County Attorney Sidney Noyes signified that he county joined in Matthews’ closing argument.

Judge Green requested that attorneys for the parties submit written material, including cases they were citing, by the end of the day on Nov. 16. He did not provide a ruling at the hearing.

Walton County Circuit Court Judge Jeffrey E. Lewis is presiding over a separate lawsuit, a petition for writ of certiorari, filed by the same plaintiffs in connection with the Cypress Lake PUD approval.