By DOTTY NIST
An attorney representing SBG-PR, L.L.C, applicants for the Kaiya Planned Unit Development, has prevailed in an appeal of the county planning director’s interpretation regarding a requirement for a 250-foot buffer in Residential Preservation land use areas within the Neighborhood Planning Area district.
The Walton County Zoning Board of Adjustment (ZBA) heard the appeal at its Feb. 25 regular meeting at the South Walton Annex.
The subject matter dealt with the county’s two documents governing land use, the Walton County Comprehensive Plan (CP), which sets goals and guidelines for future development, and the Walton County Land Development Code, (LDC) which provides standards and requirements for implementation of the CP.
The Kaiya PUD is a mixed-use project proposed for 28.64 acres at the CR-30A/WaterSound Parkway South intersection with an adjoining parcel south of CR-30A. Currently proposed for the PUD are 148 residential units and approximately 138,562 square feet of commercial space, including retail, office, limited lodging, civic, health and fitness, back of house services, and a beachfront pool amenity.
The applicants had filed a challenge to an opinion by Wayne Dyess, Walton County planning and development services director, that Section 2.01.03.J.2.e of the LDC would apply to the Kaiya PUD.
The code section states: “No new commercial or workplace uses shall be established within a 250-foot buffer around areas which meet the definition of Residential Preservation Areas within the NPA (Neighborhood Planning Area) district…”
Attorney David Theriaque represented the applicants at the Feb. 25 meeting.
He introduced certified planner and former Florida Department of Community Affairs official Charles Gautier as an expert witness.
Gautier disagreed with Dyess’ interpretation, observing that the NPA land use district had been removed from the CP in 2011 when the county amended the plan. He also commented that in lieu of NPA are Residential Preservation, Neighborhood Infill, Small Neighborhood, and Traditional Neighborhood Development. Gautier explained that the latter were previously project types under NPA that were elevated to land use categories with the 2011 CP amendment.
He called the 250-foot buffer a “relic provision” or “ghost provision” that is no longer applicable after the amendment.
The situation could have been avoided, Gautier testified, if the county had brought the LDC into conformity to the CP after the 2011 amendment. “Unfortunately, that has not happened,” he said.
Greg Stewart, an attorney representing county staff, asked Gautier if he was saying that, with the elimination of NPA, the subcategories of Residential Preservation (RP), Neighborhood Infill (NI), Small Neighborhood (SN), and Traditional Neighborhood Development (TND) were also eliminated. Gautier responded that those four uses had not been eliminated but had been presented as “discrete categories.”
Stewart was in agreement that some of the changes to the CP had applied to NPA and that the LDC had not been amended to comply with the CP as amended. However, he pointed out that the 250-foot buffer for commercial was in the LDC prior to the time the CP was amended and that the buffer requirement still exists in the LDC
“It is clear that they do work together,” Stewart said of the two documents, adding that it is evident that the county’s intent had not been to eliminate any land development requirements for project types that existed as subcategories before the 2011 CP amendment process.
If the four subcategories had been eliminated from the CP, then the county would be in agreement with the applicants, Steward noted, emphasizing that they were not. The subcategories remain and the restrictions associated with them continue to apply, he maintained, one of those being the 250-foot buffer.
The LDC, Stewart added, is allowed to be more restrictive than the CP and still be considered consistent with the CP.
Representing adjacent property owners in an RP land use area, attorney Steve Hall encouraged the planning commissioners to “sort through” the LDC provisions to determine what regulations apply in this instance. He said his clients are interested in ensuring compatibility of development occurring next to them. He told the board members that it would be within their authority to find the 250-foot buffer provision to be consistent.
Attorney Ken Goldberg had also appealed the planning director’s opinion on the same issue on behalf of applicants that he was representing, 395 Land Trust. He was allowed to testify as a witness during the hearing of Kaiya PUD’s appeal.
He maintained that the LDC regulation for a buffer did not disappear as a result of the 2011 CP amendment but that the provision was no longer enforceable. Goldberg added that it is clear from state law that the CP is the document that controls.
“All the categories are still there,” Dyess told the board members. He explained that the four categories were what had appeared on the Future Land Use Map (FLUM) in connection with the CP and had only been linked with NPA in the CP language. Bringing the CP and LDC into compliance is a long process, Dyess continued, that is ongoing. A consultant hired by the county is to assist in getting this accomplished, he noted.
Walton County Planning Manager Mac Carpenter testified that he had been with the planning department when the amendment to the CP had been formulated. This had been an effort to simplify the CP, not to eliminate any requirements from the LDC, he told the board members.
“To suggest that these categories got whacked off the map is just not true,” Carpenter said.
Carpenter said the changes to bring the LDC into compliance with the amended CP had been addressed in a piecemeal fashion based on priorities and direction by the county commission.
Theriaque countered one of Dyess’ statements by observing that NPA had been displayed on the FLUM as a hatch-marked area.
With the four project types now independent of NPA and the NPA district deleted, the “very basis” for the requirements associated with the project types is now gone, he asserted.
With the NPA district erased from the CP, it cannot be implemented in the LDC, Theriaque continued. By state law, he said, the county should have amended the LDC to comply with the amended CP within a year, he maintained.
Theriaque urged the board members to base their decision not on Stewart and staff’s arguments about intent but instead on “the plain language of the land development code.”
ZBA member Art Miller commented that he failed to see that anything had been done away with other than the NPA district and did not see that there had been any intent to do away with the 250-foot buffer.
ZBA member Scott Rosenheim disagreed, saying that the board members’ responsibility was to go by the “black and white” of the statutes, with the removal of NPA as a land use district in the CP. The CP rules over the LDC, he added. Other board members expressed agreement.
Rosenheim brought up the possibility of imposing a development moratorium in order to “let the county fix it,” speaking of the CP/LDC nonconformity on the issue under consideration.
ZBA member Tony Vallee commented that NPA still exists as a land use category that can now fall within Residential Preservation. He saw this as an indication that the 250-foot buffer would not apply.
ZBA member Bill Fletcher saw the appeal as the use of “semantics” to throw out protections for the community.
A motion to grant the appeal was approved in a 5-2 vote, with Miller and Fletcher voting no.
The ZBA decision is considered to be generally applicable to project applications. Undetermined at the hearing was whether it would apply to other standards associated with the four categories in addition to the 250-foot buffer.
ZBA rulings are subject to appeal in Walton County Circuit Court.
Goldberg’s appeal regarding the planning director’s opinion, which was also on the agenda, was not heard. The board members declined doing so because the name of the party requesting the appeal had not been identified correctly in the appeal request and meeting notification. It is anticipated that the appeal by 395 Land Trust will be heard at the ZBA’s March 24 meeting.
In other board business at the Feb. 25 meeting, a request was heard for reduction of a west side setback to zero feet in order to rebuild a 750-square-foot home at 457 Park Place Avenue, Inlet Beach, to its original home footprint. The zero-foot setback was requested not for the home itself but for stairs that had extended to the lot line in the original footprint.
Dean Burgis, a representative for the applicants, explained that after buying the home, the owners had discovered substantial rot in the walls and floors. The home has now been demolished, it was reported. Burgis said the owners would be able to utilize some of the existing pilings.
Carpenter noted that the lot was a nonconforming one created prior to 1975.
Burgis told the board members that any change to the home footprint would require the owners to file for a state Coastal Construction Control Line (CCCL) permit. If required to do that, they would plan on building a larger structure, he said.
Neighbors in attendance indicated that they would prefer rebuilding of the small structure.
The request was approved on the condition that the reconstruction would be per the current plans submitted for rebuilding of the previous home footprint.
Approved, as well, was the Tricoli Variance, providing for a side-yard setback reduction from 7.5 feet to zero feet on the west and east sides, respectively, of two adjoining lots on the south side of Chivas Lane. The purpose of the variance was for two elevated walkways to access a common dune walkover on one of the lots.
For Lots 6 and 7, Village of Blue Mountain Beach, side yard setback reductions from 7.5 feet to 6 feet were approved for cantilever overhangs. These variances received support from a representative of the subdivision homeowners’ association.