A lawsuit seeking to void a land variance granted by the Board of County Commissioners in April took a turn last week with several filings.
J. Patrick Floyd, attorney for Beacon Hill resident Bo Williams requested and was granted by the Gulf County Clerk of Courts a default motion after the county failed to respond to one portion of the suit within the statutorily-required time period.
That default motion was filed by the office of Clerk of Courts Becky Norris last week.
County attorney Jeremy Novak responded in a filing by arguing the plaintiff had “rushed to judgment” with a premature motion and that a court order from Circuit Court Judge John Fishel set a deadline of June 19 to respond.
The filing asks that the default motion be struck and the county awarded attorney’s fees for being forced to respond to a premature motion.
In a subsequent filing, Floyd argued the county failed to respond to the request for declaratory relief as required under law and the county moved to strike the default motion instead of answering the merits as required by statute.
A response to the second component of the lawsuit, seeking a writ of certiorari, Floyd argued, is that triggered by Fishel’s order and therefore the default motion was proper due to the lack of response from the county.
The court will have final say.
The lawsuit seeks to quash the variance granted to Ellis Smith, Jr. on April 8 to build within the setback on land adjacent to Veterans Memorial Park at Beacon Hill.
The lawsuit argued that in granting the variance the BOCC overstepped in two significant ways.
First, the BOCC was not the proper body to take up the variance.
Secondly, the lawsuit contends the BOCC violated the quasi-judicial nature required of such action as the variance, which would require sworn testimony and presentation of evidence.
In his filing, Floyd seeks a new hearing on the variance during which due process strictures, compliance with the county’s comp plan and land development regulations and support for granting the variance must be “strictly construed against the applicant”, meaning the applicant on the variance carries the burden of proof.
At its core, the lawsuit makes two fundamental arguments.
One, the BOCC violated its own development rules in awarding a variance the board should not have even taken up.
Secondly, a variance, which allows a majority, roughly 60 percent, of Smith’s proposed structure to be built within the setback, consuming all but six inches of the setback, was not required.
The lawsuit contends the parcel Smith owns is sufficient to build a structure without entering the setback and impacting the view from and beach access to land that belongs to Veterans Memorial Park.
Williams is the plaintiff in the lawsuit, but nearly three dozen residents of the Beacon Hill area turned out in support of the lawsuit during an informational session.