Nassau County v. Willis

41 So. 3d 270, 2010 Fla. App. LEXIS 7662, 2010 WL 2196459
CourtDistrict Court of Appeal of Florida
DecidedJune 3, 2010
Docket1D09-1008
StatusPublished
Cited by15 cases

This text of 41 So. 3d 270 (Nassau County v. Willis) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nassau County v. Willis, 41 So. 3d 270, 2010 Fla. App. LEXIS 7662, 2010 WL 2196459 (Fla. Ct. App. 2010).

Opinions

THOMAS, J.

In this case, we must decide two issues. First, must a person challenging a development order based on an alleged conflict [272]*272with 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 168.3215, 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, 81-32 (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.

I. Facts and Procedural History

A. Nassau County’s Comprehensive Plan

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. Where unless 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 [273]*273maximum extent possible short of a “taking”. Development in conservation (Limited Development) will be permitted that 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 an unless underlying land use requires of less density, In such cases, density of conservation areas will satisfy underlying land use density the density of the underlying land use will prevail. Development will be prohibited in areas designated as Conservation — Preservation. (Policy 1.02.05.H, 14).
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.

B. Development Proposal

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 [274]*274Island. 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.

C. Consistency Challenge and Trial Proceedings

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.

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Nassau County v. Willis
41 So. 3d 270 (District Court of Appeal of Florida, 2010)

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Bluebook (online)
41 So. 3d 270, 2010 Fla. App. LEXIS 7662, 2010 WL 2196459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nassau-county-v-willis-fladistctapp-2010.