Lazaro Aleman
ECB Publishing, Inc.
County officials recently refused to be hurried into a decision on a preliminary plat application that they had earlier denied and that a federal judge essentially ordered them to reconsider and approve.
Following a lengthy discussion on Thursday evening, Sept. 1, the Jefferson County Commission agreed to postpone action on the matter until its Sept. 15 meeting.
Attorney Tom Reeves, who represents Econfina Timberland LLC, the plaintiff in the lawsuit filed in federal court, acknowledged that no judge-set deadline existed per se for the board to make a decision on the order. However, implicit in the judge’s order, he said, was the understanding that action would be taken reasonably and promptly to accomplish the task.
“I just want to be real clear,” Reeves said. “We don’t object to a continuance. But we probably will object if there’s another continuance, as there is no need for it. All you have to do is review the record.”
The Sept. 1 proceeding began with attorneys for the county Gregory Stewart, of Nabors, Giblin and Nickerson, and Bill Warner, of Warner Law Firm, giving brief summaries of the application and litigation hearings, respectively.
Stewart reminded the board of its denial of the application in September 2021 and the lawsuit that ensued when the applicant appealed the board’s decision to the federal court.
Warner, who represented the board in the litigation, explained the judge’s ruling, which found that the commission had failed to follow the essential requirements of law in denying the application. Nor, according to the judge, had the local officials articulated the basis for the denial, based on the county’s Land Development Code (LDC) or Florida Statutes.
“More specifically, the judge found that the record did not contain competent substantial evidence to sustain the board’s denial,” Warner said. “The judge remanded the issue back to this board to perform its function.”
Stewart added that the judge’s ruling left the commission a limited option.
“If it’s not supported by record, you may not consider it,” Stewart said. “The judge has also determined that the record does not support a denial of the application.”
The judge’s ruling, however, allowed for the imposition of conditions, provided that evidence for these could be found in the record, Stewart said.
He went on to name six conditions that he said the record clearly reflected and that the developer had consented to do.
These conditions included assigning wetlands delineations to certain of the lots and establishing benchmarks for others because they were in the floodplain, as well as bringing to county road standards two of the impacted roads. On the latter issue, however, different interpretations arose between the attorneys as to whether the developer would be entirely responsible for the cost of the road upgrades, or only partly.
Stewart recommended that the board approve the preliminary plat, and that it also applied the six-mentioned conditions supported by the record. He also made clear that the when the project subsequently underwent other reviews in the process for final plat approval, the county could impose additional conditions not currently part of the record.
Notwithstanding the judge’s order that only information contained in the record could be considered in the board’s decision and Reeves’ objection that given the order, public comment would be pointless, the board allowed citizens to speak on the issue.
Several adjacent property owners expressed varying degrees of objections to the development. These included Franklin Foster, who said he had not been properly noticed on the original hearing and hence the entire procedure was defective; Chucha Barber, who expressed concern about the proposed subdivision’s potential impact on the roads and wildlife, as well the project’s overall unsuitability for the area; and Benny Bishop, a sixth generation Jefferson County resident and former county commissioner whose family owns much land in the area. Bishop went on record to say that his family would never lease or sell easement to the development for expansion or upgrade of Bishop Road in particular.
The board, for its part, was reluctant to comply with the judge’s order, instead expressing frustration that someone with no knowledge of the county or the circumstances could counter the board’s intent to protect the county’s natural resources and dictate otherwise.
Commissioner Stephen Walker alone offered a failed motion to approve the plat with conditions, acknowledging the board’s helplessness to do any different. He personally found the project objectionable, Walker said. But when private property rights collided with county codes and a federal judge stepped in to strike a balance, he didn’t see where the board was left much choice. “Personally, I don’t think it’s a good project,” Walker said. “But from what the judge ruled, it puts us in a box. I don’t see a way of navigating around that.”
Walker’s motion, however, failed to garner support.
Barfield decried it as woefully sad that the board’s hands were tied and the code presently allowed houses in a floodplain, provided that structures were two feet above ground level. She remained unwavering in her opposition to the development, she said. But if it ever were to be approved, she would ask that that the developer be held responsible for improving the roads, among other conditions, she said.
Commissioner J. T. Surles admitted having lost his cool at an earlier executive session on the issue.
“It’s unfortunate that the job we do and the people who elect us basically mean nothing,” Surles said. “This is not an area that this board wants to see developed. It’s a precious resource, and to have a judge not let us defend these wetlands is very upsetting. I can’t tell you how irritated this makes me that our hands are being forced on this issue.”
Commissioner Chris Tuten also couldn’t see the sense of the judge’s order.
“I can’t sit here and let a man who hasn’t seen the site make a decision on this,” Tuten said, adding that he stood by his original vote to deny.
Stewart reminded the board that denial was not an option.
“I recognize this puts the board in a difficult situation,” Stewart said. “But the denial card has been taken off the table by the judge.”
He asked Warner to comment on the possible ramifications if the board defied the judge’s order.
“The judge has the authority to enforce his mandate,” Warner said. “And he will. The next step, at a minimum, is to compel you by order to issue the approval. So this is the opportunity for the board to consider what conditions it might want to impose.”
He added the caveat that the option of conditions might not be available if the judge compelled the board to act.