NASSAU County v. WILLIS
| Citation | 41 So.3d 270 |
| Decision Date | 03 August 2010 |
| Docket Number | No. 1D09-1008.,1D09-1008. |
| Parties | NASSAU COUNTY, Appellant, v. Lynwood G. WILLIS and Jane T. Willis, husband and wife, Robert H. Still, Jr. and Michael D. Abney, as Co-Trustees of the Lynwood G. Willis and Jane T. Willis Trust u/d/o December 31, 1992, Vincent G. Graham, Piedmont Square, LLC, a Virginia Limited Liability Corporation, Amelia Island Company and Crane Island Investments LLC, a South Carolina Limited Liability Corporation, Intervenors-Appellants, v. Eric Titcomb, Robert Weintraub, and Julie Ferreira, Appellees. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
David A. Hallman and Mollie M. Garrett, Yulee, for Appellant.
Fred D. Franklin, Jr., and Cristine M. Russell of Rogers, Towers, P.A., Jacksonville, for Intervenors-Appellants.
Ralf Brookes, Cape Coral, for Appellees.
In this case, we must decide two issues. First, must a person challenging a development order based on an alleged conflict with a county's comprehensive plan show more than demonstrated recreational interests in the natural resources of the affected area in order to establish standing, pursuant to section 163.3215, Florida Statutes? We answer this question in the negative, and hold that such interests are sufficient under the plain text of the statute, especially in light of liberalizing amendments to the standing requirements. See City of Ft. Myers v. Splitt, 988 So.2d 28, 31-32 (Fla. 2d DCA 2008).
Second, we must decide whether a county's comprehensive plan policy that permits density adjustments based on an official jurisdictional wetlands determination is ambiguous or unlawful under chapter 163, Florida Statutes. We hold it is not ambiguous or unlawful. We therefore reverse the trial court's order setting aside the development order.
This action concerns the development of a privately-owned 207-acre site known as Crane Island located in Nassau County, Florida. In June 1993, Nassau County and The Department of Community Affairs (the Department) entered into a stipulated settlement agreement approving and amending Nassau County's Comprehensive Plan (the Comprehensive Plan). The Comprehensive Plan contains a future land use element which sets forth several polices, goals, and objectives concerning the treatment and development of wetlands in Nassau County.
A critical part of the Comprehensive Plan is the Future Land Use Map in which each parcel of property is given a land use designation. That designation determines the density at which the property may be developed. The Comprehensive Plan, as amended per the settlement agreement, provides:1
Conservation lands placed under the Limited Development Overlay may not be developed at a density greater than 1 residential dwelling unit per five acres with all permitted development clustered on the upland portion of the site or on that portion of the site which will be least environmentally impacted by construction/development. Whereunless underlying land use as shown on the Future Land Use Map designates a lesser density, in which case the density of the underlying land use shall prevail. Passive recreation and silviculture, also, are permitted uses in the Limited Development Overlay area.
If there is indication that wetland is present on a proposed development site, the developer shall be required to request a wetland determination from the St. Johns River Water Management District.
Areas of Nassau County designated as "Conservation" land use to be included under a Limited Development Overlay, include all areas shown as wetlands on the Future Land Use Map series except for Fort Clinch State Park and Aquatic Preserve, Nassau River-St. Johns River Marshes Aquatic Preserve and Cary State Forest. Historic properties may also be included in the category of Limited Development.
With regard to protection of natural resources, changes made pursuant to the settlement agreement were as follows:
1.04A.02 The County shall restrict development in conservation areas to the maximum extent possible short of a "taking". Development in conservation (Limited Development) will be permittedthat must be permitted will proceed at a density of no greater than 1 unit per 5 acres with permitted density clustered on the upland portion of the parcel or on that part of the parcel that will least environmentally be affected by construction/development. Where the Future Land Use Map identifies anunless underlying land use requiresof less density, In such cases, density of conservation areas will satisfy underlying land use densitythe density of the underlying land use will prevail. Development will be prohibited in areas designated as Conservation—Preservation. (Policy 1.02.05.H, I.4).
. . . .
1.09.03 Areas identified on the FLUM map series as wetlands are generally defined. A landowner may provide more detailed data to the County to clarify jurisdictional wetland areas. Those land areas determined by the Board of County Commissioners with the advice of the St. Johns River Water Management District that are determined not to be jurisdictional wetlands will be allowed to be developed at the least intense adjacent land use densities and intensities, as determined by the County.
Testimony during the hearing indicated Crane Island was originally designated as both conservation and wetlands; however, the Future Land Use Map designated Crane Island entirely as wetlands. Wetlands must comply with the conservation land use designation under the Comprehensive Plan. In 1994, 1997, 2003, and 2005, various amendments to the Comprehensive Plan were proposed to reclassify Crane Island as non-conservation land in order to increase the density, but those amendments were withdrawn after the Department expressed opposition.
In 2006, the owners and prospective developers (the Intervenors) of Crane Island submitted a proposal to change Crane Island's land use designation from wetlands to Planned Unit Development. The proposal included 169 residential units, up to 50 townhomes, 90 boat slips, boat basin, "lock" system, and marina. The island is currently inaccessible, but development of a 5.75-acre park included in the plan will make the island open to the public for the first time.
As part of the application process and pursuant to Policy 1.09.03 quoted above, the Intervenors submitted a formal wetlands determination issued by the St. Johns River Water Management District. This process required an application for a formal determination and wetlands delineation. The Water Management District determined that 71.58 acres of the Crane Island site were actually uplands, not wetlands.
Upon submission of the Planned Unit Development application in 2006, county planning staff evaluated its consistency with the Comprehensive Plan. The county planning director concluded that Policy 1.09.03 allowed development of the uplands portion of Crane Island. As part of his review, the planning director partially relied on an opinion letter by the Nassau County Attorney which concluded that Policy 1.09.03 applied to Crane Island, did not include any qualifying language, and, if density was utilized, did not require an amendment to the county's Future Land Use Map.
After a public hearing, Nassau County's Planning and Zoning Board recommended approving Policy 1.09.03 and allowing development of the uplands portion of Crane Island. The County categorized the uplands area as low-density residential, which permits two units per acre, rather than one unit per five acres in jurisdictional wetlands. Following an additional public hearing, the Board of County Commissioners issued Ordinance 2006-08 approving the densities requested in the Planned Unit Development application.
Plaintiffs reside in Nassau County and oppose the development. They filed an amended complaint pursuant to section 163.3215, Florida Statutes, challenging the development's consistency with the Comprehensive Plan. In their second amended complaint, they alleged that the Comprehensive Plan authorized only 41 units, and that Policy 1.09.03 could not be applied to permit development at the higher density.
The case proceeded to non-jury trial and was bifurcated into two phases, consistency and standing. In order to establish standing, Plaintiffs claimed to be "aggrieved or adversely affected" parties, as required by section 163.3215, asserting that (1) they are environmentalists and members of an environmental organization; and (2) they enjoy recreational activities in the surrounding environment of Crane Island which will be negatively impacted by the proposed development.
In their complaints and discovery documents, Plaintiffs argued they generally utilize the waters surrounding Crane Island by participating in land, canoe, and kayak tours for the purpose of observing habitat, ecological systems, fish, and wildlife. According to Plaintiffs, the development will cause increased runoff due to lawn fertilizers, pesticides, and boat marina contaminants, and increased density on roads used for hurricane evacuation. One plaintiff, a resident of a community directly opposite Crane Island across the Amelia River, asserted the proposed marina and docks will create a large amount of river traffic which will adversely affect his enjoyment of the lands and waters.
During the trial, the court heard testimony from Plaintiffs, none of whom were tendered as experts in environmental impacts. Although residents of Nassau County, none had any legal, business, or financial interest in Crane Island or any adjacent property. They acknowledged the site is private property, but they have used it for their own purposes without the owners' permission. None have a view of Crane Island from their own property.
Plaintiffs testified...
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