A Beacon Hill resident has filed suit against the Board of County Commissioners seeking to quash an April 8 decision to grant a variance to the owner of property abutting Veterans Memorial Park in Beacon Hill.
Attorney J. Patrick Floyd filed the lawsuit on behalf of Bo Williams in the 14th Circuit Court.
The lawsuit seeks to quash the variance granted to Ellis Smith, Jr. to build within the setback on land adjacent to Veterans Memorial Park.
“They have violated their own (land development regulations) and therefore the comprehensive plan,” Floyd said, contending that issuing the variance was effectively providing a development permit that was contrary to the comp plan.
In the lawsuit, Floyd argues 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.
The lawsuit details that such variances should go before and be approved by the Planning and Development Review Board (PDRB), and only after the PDRB has considered the variance can the issue be brought to the BOCC for final approval.
The PDRB, however, did not vote one way or the other on the variance.
“The variance has not been granted by the body that should have granted it so it should not be acted upon,” Floyd said.
Secondly, the lawsuit contends the BOCC violated the quasi-judicial nature required for considering such a variance, which would require sworn testimony and presentation of evidence, neither of which occurred April 8.
In addition, such a quasi-judicial hearing – which is held in cases involving a single piece of property – must be held in front of an “impartial tribunal.”
That would require county commissioners to disclose the individuals with whom they had discussed the variance and reveal not only who they talked to, but the subject of those discussions.
Floyd said the lawsuit 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 for the variance carries the burden of proof.
The lawsuit, while not attacking the specifics, also notes that the BOCC altered the wording pertaining to minor replats in 2013 in a way that benefited applicants such as Smith.
Prior to the rewording, minor replats were allowed once on a parent property. However, the wording was changed in December 2013 to allow such request to, Floyd said, follow the applicant rather than the land, or parent parcel.
“Under that wording you can divide and deed and divide and deed and divide and deed,” Floyd said, arguing that such language could lead to unrestrained development and was not in the best interest of the county as a whole.
“It was a unique change in language without a lot of information coming out about why they were doing it,” Floyd said. “We wanted the court to note that the minor plat information had been monkeyed with though we did not attack that issue because of the time that has elapsed.
“The time to challenge that was in December but I’m not sure how many people understood what they had done. But that is something there should have been notice about.”
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.
While Williams is the plaintiff in the lawsuit, nearly three dozen residents of the Beacon Hill area turned out in support of the lawsuit during an informational session at Veterans Memorial Park last Friday.
The variance was controversial from the outset, with several residents, including Williams, speaking out against the variance during the April 8 meeting.
From the outset Commissioner Joanna Bryan has contended the minor replat from which the variance stemmed was illegal.
But county attorney Jeremy Novak argued the minor replat – the second of the parent parcel, Bryan noted repeatedly – was properly approved by the county planner and the lone issue before commissioners was the variance.
The property has long been a source for controversy.
Two previous owners of the parcel sought to have it removed from the tax rolls due to constraints on developing the property.
Smith’s father, also Ellis Smith, purchaser of the parent parcel, previously sought and dropped an effort to receive a variance.
Floyd noted that the change in the language concerning minor replats in the land development regulations occurred between the time of Smith, Sr.’s initial effort for a variance and the deeding to his son the parcel subject to the subsequent replat and variance request.