Appellate Court Spanks County over Land Use Rules Enforcement

A state appellate court took the county to task over enforcement of its comprehensive plan and land development regulations in a dispute over a development on St. Joseph Peninsula.

In a unanimous opinion, a three-judge panel from the First District Court of Appeals uniformly overturned a series of decisions by a circuit court judge and remanded the case back to Gulf County for a hearing consistent with the findings of the higher court.

The case involves property on Hibiscus Drive that was purchased by local developer Jay Rish in November 2005.

Prior to purchasing the property, Rish submitted an application for a dredge and fill permit to the Army Corps and FDEP for wetlands on the property.

Rish subsequently submitted two “minor replats” for county approval that created five lots from the original parcel.

Rish filed the first of two “minor replat” applications to the county. Prior to that replat, Rish’s parcel was made up of three lots; the resulting replatting altered the dimensions of each lot. A subsequent “minor replat” effectively created five lots from the original parcel.

Three of those lots were sold to other developers, who were also parties to the lawsuit under appeal.

In an unusual step, the appellate judges prohibited further development of the land at issue until the county complies with specific land use ordinances governing subdivisions.

Comp Plan

Fred Johnson, who owns a home on Hibiscus Drive and pressed the complaint, argued that the county allowed the development in violation of its comprehensive plan and land development regulations.

Johnson amended his complaint four times, had the case tossed by a circuit court judge, and appealed to the First District Court of Appeals, which reinstated the case at the circuit level.

After a subsequent trial found in favor of the county and Rish, Johnson appealed again. The ruling was released just prior to Christmas.

The appellate court cited a 1992 agreement between the Florida Department of Community Affairs (DCA) and the county following the 1990 adoption of the comp plan in which “development within 50 feet of coastal waters and wetlands (including salt marsh areas) will be prohibited.”

That provision aimed to promote the “protection of wetlands and other surface water resources, specifically the St. Joseph Bay Aquatic Preserve…”

The county’s LDR defined development as including “construction, clearing, filling … or similar activities” and that “no development shall be undertaken without prior authorization pursuant to this Code,” the appellate opinion notes.

In August 2006 Rish began to clear and fill the property, despite objections from Hibiscus Drive residents, who appeared before the county commission, action that constituted “development,” according to county planner David Richardson’s testimony at trial.

The court’s opinion noted, “Throughout this litigation, Rish proceeded to clear and fill his property.”

Rish acted under the county’s interpretation that since neither the Corps nor FDEP took jurisdiction of the wetlands, the county could do nothing pertaining to what it called “non-jurisdictional” wetlands.

However, the letter from the FDEP, the appellate opinion noted, included the statement, “Please be advised that this letter does not authorize any fill to be placed in regulated areas.”

At trial, Richardson, Susan Poplin with the DCA and county administrator Don Butler testified that they believed the 50-foot setback applied only to the waters of St. Joseph Bay.

Testimony at trial also indicated that the wetlands in question were located between 140-175 feet of St. Joseph Bay.

A retired FDEP employee testified that the wetlands at issue were connected to St. Joseph Bay and the FDEP and Corps were mistaken in not taking jurisdiction. An environmental consultant testifying for Rish acknowledged on cross examination that the Corps would appear to have jurisdiction of the wetlands on Rish’s property.

Circuit Court Judge Michael D. Miller, though, agreed with the county’s interpretation pertaining to the 50-foot setback.

He ruled that Rish’s filling of wetlands did not materially alter the density or intensity of the use of the land and rejected Johnson’s contention that the county should have issued a development order – triggering a comment period for those impacted by the development – before clearing and filling the wetlands.

Finally, Miller rejected Johnson’s contention that the county had violated its subdivision ordinance.

The appellate judges ruled that Miller erred in nearly every aspect of his decision.

As to the wetlands issue the judges cited the 1992 provision of the county comp plan agreed to by the DCA.

The judges found the language “unambiguously” provides that “development within 50 feet of coastal waters and wetlands (including salt marsh areas) will be prohibited.”

Citing a Supreme Court ruling, the judges noted that “where the language of a statute is plain and unambiguous there is no occasion for judicial interpretation …”

The appellate court rejected the county’s argument that there are “jurisdictional” wetlands over which the FDEP and Corps have sway and “non-jurisdictional” wetlands over which the County has no control.

“The County is required to implement its comprehensive plan ‘through the adoption of land use regulations that are consistent with the plan’ ” … The County cites no authority for the proposition that it can enact a land regulation which is inconsistent with its comprehensive plan...

“Thus, in short, Gulf County’s comprehensive plan required it to take jurisdiction and regulate any development within 50 feet of wetlands under its land development regulations.”

Development Order

The appellate court also ruled that the county should have required a development order.

“The record is clear that Rish’s clearing and filling activities constituted ‘development’ under the county’s comprehensive plan.

“More importantly, Gulf County’s comprehensive plan required development on the Rish parcel to comply with a 50-foot setback from the wetlands on that property. Under the circumstances here, we hold that the County was required to issue a development order before Rish’s activities could proceed.”

The appellate judges ordered that on remand to the circuit court, Rish shall comply with all laws and regulations governing development of the property and the county shall comply with its land use regulations by issuing a development order.

The judges also left the door open for Johnson to pursue a new hearing to challenge the county’s decision to permit Rish’s development.

Further, “the County shall determine whether other remedies are necessary or appropriate, including requiring Rish” and the other developers “to restore wetlands previously on their portion of the subject property to the condition that existed prior to Rish’s development activities.

“Further, development activities on the subject property shall be enjoined until the completion of such proceedings.”

Subdivision Ordinance

The county’s subdivision ordinance pertains to the platting of real property into three or more lots.

The appellate court found that Miller erred in ruling that Rish’s new five-lot subdivision did not fall under the purview of the county’s subdivision ordinance and rejected Miller’s finding that Rish was not obligated to comply with the ordinance because the first replat simply moved the boundaries.

“Changing the boundaries of lots is not a recognized exception to the subdivision ordinance,” Van Nortwick wrote.

The judges found that Rish had created a subdivision by reconfiguring his property into three new and different lots. The second minor replat of one of those lots created three parcels from one.

The county’s subdivision ordinance required the submission of a development plan if one “minor replat” is further divided.

“Allowing Rish to circumvent the subdivision ordinance enabled him to create five lots in his development rather than three. Further, because no development plan was required, Rish was not obligated to satisfy the street width and surface requirements of the ordinance.”

The subdivision ordinance requires notice in the newspaper and by not noticing the development, Johnson and neighbors were denied the right to submit comments as they were never notified of the replats, the appellate court ruled.

Miller, the appellate court found, should have issued a declaratory judgment against Gulf County for failing to enforce its subdivision ordinance.

Corps and FDEP

As the agencies were not parties to the lawsuit, the appellate court did not address jurisdiction of wetlands, though the opinion spends several paragraphs articulating the judges’ issues with the decisions of the Corps and FDEP.

As Van Nortwick wrote, in an opinion in which Judges Edward T. Barfield and Charles J. Kahn agreed, neither agency indicated it had jurisdiction over the wetlands.

The trial proceedings, the opinion notes, raised sufficient issues concerning jurisdiction that the appellate judges ruled that upon remand, should Johnson exercise a right to a new hearing, the extent to which he can submit evidence challenging the decisions of the Corps and FDEP should be addressed by the trial court.

In a statement, Johnson said, " While an individual has the right to use his or her property as they see fit, this right is subject to federal, state and local law. The Appellate Court ruled that Gulf County has not been enforcing all applicable local laws. This lack of enforcement should concern everybody because it places public resources, such as St. Joe Bay, at risk.

 “In this case, Gulf County allowed Mr. Rish to dump over 150 truck loads of fill dirt into wetlands that are adjacent to St. Joe Bay. With this opinion to guide it, I hope Gulf County will order Mr. Rish to restore the wetlands that were illegally filled so that they can again provide a natural buffer that will help maintain the pristine quality of the Bay."

County attorney Tim McFarland said after apprising commissioners of the appellate decision he has been authorized to file a motion for a rehearing before the First District Court of Appeals on the wetlands issue.

Rish’s attorney, Sandy Sanborn, said, “We are reviewing our options at this point and we will proceed accordingly.”

Sanborn added that their position was the appellate court missed the mark pertaining to the 50-foot wetland setback as defined by the county and the Department of Community Affairs and will be asking the court to revisit that issue.