By DOTTY NIST
The Walton County Code Enforcement Board (CEB) recently found violations and issued orders in cases involving the White Sand Protection Zone and setback requirements for subdivision entrance gates.
The decisions took place at the county board’s July 16 meeting at the South Walton Annex.
Action on the first case called for the removal of an estimated 500 to 1,000 cubic yards of fill material from the site of a retaining wall project to the west of the Edgewater Condominium on Scenic Gulf Drive, bordering a small lake. The project was for the stated purpose of stabilizing the condominium’s cooling towers.
Attorney Greg Stewart, representing county staff, introduced the alleged violation as one pertaining to the county’s White Sand Protection Zone Restrictions.
These restrictions, which apply to the area south of Scenic Gulf Drive and CR-30A, prohibit the use of “construction material that is subject to wind or water transport, and that permanently discolors the white beach sands…” There are provisions for material darker than the specified 8.0 Munsell Scale sand to be used, but only under specific conditions and with prior approval by the county.
Materials used for the retaining wall project, Stewart told the board members, were not approved as required by the county engineer, the plans review engineer, or their designee—and were found not to meet the allowable color and chroma value set for materials brought into the protection zone. Expert witnesses William Shane George of Southern Earth Sciences and Joseph Shuster of Ecological Resource Consultants presented testimony on tests performed on the fill material down to a depth of 3.25 feet indicating that it did not meet color criteria.
The fill material was the only issue raised by the county regarding the project. Soon after the September 2014 filing of the complaint leading to the investigation of the project, Walton County Public Information Manager Louis Svehla had stated that no county permit had been required for the retaining wall, as the county does not permit retaining walls. According to testimony at the meeting, the project was nearly completed when a complaint was filed, followed by a county stop work order.
Board member Richard Fowlkes asked Shuster if the material would “bleach out” after being exposed to the sun. Shuster responded that it would not change “in situ” but only whiten if placed in a very thin layer and exposed to rain.
Greg Graham of Walton County Public Works, who identified himself as engineering services manager, told the board members that a number of years ago code enforcement officers had been designated to make determinations on the compliance of sand being brought in for projects. However, he said the he does assist in these instances. He said that as county engineer he had not been contacted for his approval on the material being brought in by Edgewater and that he was not on the property during the construction of the project. Graham was aware of county staff member Jim Harman having met with Edgewater representatives but said that Harman had not been designated as county engineer or plans review engineer.
Ryan Cleveland, engineer for Edgewater, testified that he did not believe at any time that Edgewater was breaking the law with the project. He explained that in February 2014, based on a conversation with Harman, he had changed the drawings for the project, which had previously specified all white sand, to show the lower area with yellow sand topped by two to three feet of white sand. He said he had sent the drawings to Harman accompanied by a letter but had not received any response despite repeated phone calls to the county. Cleveland said he was not directed to contact Graham for his approval on the material.
Cleveland added that the contract for the project had been changed from all white sand to yellow sand topped with white sand, based on discussions with Harman.
Stewart asked Cleveland if Harman had told him that he could bring in sand not in compliance with the ordinance. “He didn’t tell me that I couldn’t,” Cleveland responded.
Cleveland indicated that the project was initiated under an emergency order in May following the April 2014 rain event. He told the board members that yellow sand was not actually used, as the contractor had other sand, but he acknowledged that the sand used was non-approved sand.
Allen Byrd, contractor for the project, testified that, after trying unsuccessfully to get the “say-so” from the county in a timely manner on the revised plan, when the emergency order went into effect, “we just went ahead with the plan.”
“I thought we were compliant,” testified Suzanne Harris, president of the Edgewater Beach Owners Association (EBOA). She noted that the complaint was filed by Scott Brannon. Brannon is a former Walton County Commissioner. Harris explained that she and Brannon “probably don’t have a good relationship.”
Harris explained that the cooling towers cost $500,000 apiece—and that the condo owners knew they had to build a retaining wall when water from the lake began to wash under them. In addition to the monetary loss in connection with destruction of the towers, without them the condominium would have become a “sick building,” she testified.
Harris explained that the flooding in connection with the April 2014 rain event resulted in the loss of 11 or more cars from the condo parking lot and that the water overflow did $4 million in damage to the building.
She testified that Harman had told her that she did not have to use all white sand because the sand would be encapsulated by the seawall, and that based on her and Cleveland’s conversations with him Cleveland had changed the plans. The new plans were sent to Harman, she said, and then Cleveland did not hear back on them.
Harris said she had also contacted Walton County Administrator Larry Jones and asked him to let her know if what Harman had told her was not correct. “We rebid the job…stupidly I thought we were doing the right thing,” she said.
Called to testify, Jones said his recollection was that Harris had said that she needed a retaining wall and that he said he would check with Wayne Dyess, county planning director. Jones said he had asked Dyess to tell Harris that no county permit was needed. He did not recall making any representation that Edgewater could use non-white sand.
Also called to testify, Jim Harman, project administrator for Walton County Public Works, was asked if he had told Harris that she could use sand that was not white. He responded that he did not have that authority. He did say that he was sent to help Harris and give her advice. Harman said he had sent Harris a copy of the White Sand Protection Zone Ordinance.
In response to a question from EBOA’s attorney Matt Gaetz, Harman said he had met with Harris as directed in an email from Jones and had talked with her about possible alternatives to backfilling the wall with white sand. He recalled that he may have spoken about sand being encapsulated with the project and that it would be difficult for such material to reach the beach under those conditions.
Following a question from a board member, Harman said he had discussed the possibility with Harris that material other than white sand could work better for compaction.
However, Harman stated, “I did not give anyone express permission to do anything.”
Harman said he brought Cleveland’s revised plans with the lower portion of the fill material non-white sand to the Public Works Director Wilmer Stafford. He said he did not have any other dealings with Edgewater on the matter at that point and was not contacted about it further by other county staff or officials.
“Why would you not route this to the appropriate person?” Fowlkes asked.
Harman responded that he thought he was doing so.
On behalf of Edgewater, Gaetz indicated agreement on the circumstances of the sand not complying with the ordinance. However, he requested, “Put yourself in the position of the Edgewater people.”
“The question is, where do we go from here?” Gaetz continued.
He suggested that the board direct Edgewater to remove the sand to the 3.25-foot depth that had been tested and found noncompliant and then cap with white sand or asphalt.
Fowlkes responded that he would not be comfortable doing that and that his feeling was that whatever material was put in should come out.
“I sympathize greatly as to what they had to deal with as far as the direction they received from the county,” Fowlkes acknowledged.
Board member Gordon Porter recalled seeing coastal areas washed out 300 feet deep after Hurricane Opal. “Eventually it could wash out,” he said of the discolored material.
Local attorney Gary Shipman told the board members that he is representing some Edgewater homeowners in a lawsuit against EBOA and Harris. He charged that a 75-percent vote of owners would have been required for material changes to the property and was not obtained for the wall project.
Randy Gardner, a citizen in attendance, commented that it “all comes down” to the White Sand Protection Zone Ordinance and the requirement that approval in advance is required if noncompliant sand is to be substituted.
With testimony, comment and discussion concluded, the board members approved a motion finding Edgewater in violation and requiring three additional tests of the material down to its full depth, after which removal of all the material brought in is to be required if it is found to be noncompliant to the full depth.
Board Chairman Tom Stein estimated that this could amount to 500 to 1,000 cubic yards of material.
According to the approved motion, five weeks from the time of testing will be allowed for removal of the material, and fines of $450 a day are to be imposed in the absence of compliance by that deadline. A fine of $450 was also imposed to pay the cost of expenses for the hearing.
Harris commented to a reporter after the hearing, ” If Larry Jones, the county manager, was going to ask a department to come out and help me, why didn’t he send the right department? Why didn’t he send engineering?”
In other action at the July 16 meeting, the board members found the Las Palmas Homeowners Association in violation for construction of an entrance gate to their subdivision within the 100-foot setback required from the public right-of-way for gated residential developments with 10 single-family units or more.
The purpose of the requirement is to provide space for stacking of vehicles pulling in to access the gate so that traffic is not backed up on roadways.
In January 2013, the Walton County Zoning Board of Adjustment (ZBA) had denied the Las Palmas owners’ request for a variance to construct the gate 19 feet from the CR-30A right-of-way. The 10-lot subdivision is located about 1,000 feet east of Gulf Place.
At the July 16 meeting, Jason Catalano, Walton County code enforcement officer, reported that the subdivision had constructed its entrance gate approximately 20 feet from the right-of-way, encroaching into the required setback.
The board members found the homeowners’ association in violation, ordering the dismantling of all metal between the gate pillars within 30 days, with $250-a-day fines to be imposed if that deadline is not met, with the association also to pay the cost of the hearing.
Mark Thomas, an attorney representing the homeowners, indicated that they would appeal the decision.
Walton County Code Enforcement Board decisions are appealable in Walton County Circuit Court.
