Opponents of Cypress Lake PUD get favorable ruling from appeals court [PREMIUM]

SITE PLAN for Cypress Lake PUD

By DOTTY NIST

To be determined in Walton County Circuit Court will be whether Walton County’s approval of the Cypress Lake Planned Unit Development (PUD) was completely consistent with the Walton County Comprehensive Plan (CP).

This is in the wake of a Sept. 15, 2021, decision by the First District Court of Appeal. The appeals court has reversed an earlier Walton County Circuit Court decision—and directed that the circuit court consider claims related to the PUD approval which that court had previously deemed not relevant.

Cypress Lake PUD had been approved in a 4-1 vote of the Walton County Board of County Commissioners (BCC) on Dec. 12, 2017, with the PUD to consist 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 currently-vacant acres. The site is on the west end of CR-30A and on the west side of the county road, across from the Emerald Walk (Flamingo Village) subdivision. The property borders Topsail Hill Preserve State Park on two sides. Ashwood Development was the project applicant.

Challenge in Walton County Circuit Court

In January 2018, the BCC approval of Cypress Lake PUD 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. The case was assigned to Walton County Circuit Court Judge David Green.

        The plaintiffs had alleged that the PUD violated the Walton County Comprehensive Plan (CP), among the allegations being that allowable density was exceeded with the PUD and that setbacks and buffers with adjacent property, including Topsail Hill Preserve State Park, were insufficient to comply with the CP. Also charged was a violation of the CR-30A Scenic Corridor buffer.

In a Nov. 30, 2018, order, Judge Green had ruled that SWCC lacked standing to challenge the development order due to having failed to establish “that it possesses any interest in the project beyond that shared by all persons.” However, he found that the plaintiffs who owned homes near the project site, along with Beach to Bay Connection, did have standing.

Judge Green had also found that circuit courts’ review of aggrieved/adversely affected parties’ challenges of county development order approvals was limited to the issues of use, density, and intensity of use. This was based on the 2017 Heine v. Lee County decision by the Second District Court of Appeal in which that court had ruled that claims allowed under the state’s Consistency Statute, Section 163.3215, were limited in this manner.

The Consistency Statute applies to legal challenges to local government development orders on the basis of the development orders violating the local government’s comprehensive plans. 

Judge Green had found that the uses approved in the development order were consistent with those allowed within the land use classification of the Cypress Lake PUD property and were compatible with the surrounding area, and that a need had been demonstrated for “such development.”

This left the density and intensity of use considerations as the only ones remaining for circuit court review, and in a Feb. 15, 2019, final judgment, Judge Green had found that the project did not exceed the CP thresholds for density or intensity.

Appeal to First District Court of Appeal and order 

In March 2019 the SWCC had announced the filing of an appeal of the latter decision to the First District Court of Appeal. Calling the case a landmark one, the SWCC stated, “The Cypress Lake ruling failed to consider significant deficiencies related to buffers and setbacks, including the Topsail Hill Preserve State Park buffer and the 30 A Scenic Corridor landscape buffer. We believe these are important Comprehensive Plan requirements that need to be incorporated into Cypress Lake as well as future developments.”

Oral arguments were heard on the case in January 2020.

Judge A.S. Tanenbaum wrote the court’s Sept. 15, 2021 opinion on the case, with Chief Judge Lori S. Rowe and Judge Stephanie W. Ray, concurring.

Judge Tanenbaum indicated agreement with the appellant parties that the trial court (circuit court) should have reviewed all the parties’ claims of inconsistency with the CP, not just those related to land use, density and intensity of use. He conveyed the appeals court judges’ disagreement with the Heine v. Lee County ruling that parties are limited to the “three bases” of use, density of use and intensity of use in challenging the consistency of a development order.

The First District Court of Appeal also directed that the case be “remanded” (returned) to the circuit court for the appellant parties’ other claims to be considered.

In addition, the appeals court concluded that the SWCC in fact had standing to participate in the case as an aggrieved or adversely affected party and instructed the trial court to reinstate the organization to that status for the remainder of the proceedings upon the case coming back before the circuit court.

Observing that the SWCC operates as a watchdog group to protect environmental interests alleged to be affected by claimed violations of the CP, Judge Tanenbaum opined, “By its activities, SWCC showed it is more animated or motivated by an affected interest protected by the plan than the average member of the public.”

Judge Tanenbaum wrote of local government comprehensive plans, “All development on land covered by a local government’s comprehensive plan, and all action taken by the government regarding that development, must comport with the plan.”

“There is no textual basis in section 163.3215 to limit the trial court’s scope of review as to whether a challenged development order is entirely consistent with the comprehensive plan,” he concluded.

New proposal for the property

A new proposal for the Cypress Lake PUD property, known as the Parkside Subdivision, had been placed on the agenda for review by the Walton County Technical Review Committee in June 2020 on behalf of Ashwood Development. The proposal was for a 110-lot residential subdivision on the 22.36-acre site, with no commercial requested.

The proposal was continued at the June 17, 2020 TRC meeting, and was later placed on a number of other TRC agendas and continued. In September 2020 the project was tabled pending the conclusion of the litigation associated with the property.