Appeals Court Sides with RV Park Developer

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December 16, 2010 by   - () Leave a Comment

It’s called “competent, substantial evidence” and Clark Stillwell, an Inverness, Fla., attorney who represents developers, trumpets it at every zoning meeting where he faces a crowd of opponents.

Stillwell tells county commissioners it isn’t enough for someone to say his client’s project will crowd roadways, pollute groundwater or decrease their property values.

They have to prove it.

And now an appeals court says he’s right, the Citrus County Chronicle reported.

The Fifth District Court of Appeal this week upheld the Citrus County Commission’s 2009 support of a comprehensive plan change on 9.9 acres in Homosassa for an upscale RV park. In doing so, it overturned an administrative law judge’s ruling against the commission’s approval for Katherine’s Bay on Halls River Road in Homosassa.

The court’s order says a neighboring property owner who challenged the board’s decision could not prove a recreational vehicle park is incompatible with the area and his testimony was based on opinion.

“Although it was proper for the ALJ (administrative law judge) to consider appellee’s observations that … the area is predominantly residential and that it is peaceful, appellee presented no competent, substantial evidence to support his claim that the new RV park would unduly interfere with those characteristics of the area,” the court wrote.

Stillwell, who represents Katherine’s Bay LLC and its owner, Jerry Peebles, said the district court got it right.

“We’re pleasantly surprised and real happy,” Stillwell said.

Dr. Ronald Fagan, a neighbor who challenged the board’s approval of Katherine’s Bay, is considering his options, attorney Denise Lyn said.

“I haven’t completely digested the whole opinion,” Lyn said. “My client is really disappointed with the outcome.”

Commissioners voted 3-2 in May 2009 to change the comprehensive plan from coastal low-density to a designation that allows RV parks.

Though Katherine’s Bay never discussed specifics, Stillwell said Wednesday the site probably would hold 25 to 40 RV spots. The property is adjacent to an existing RV park that wants to expand.

Upon Fagan’s appeal, administrative law judge Donald Alexander ruled Katherine’s Bay was not compatible in a residential area. The governor and cabinet upheld his ruling, which Katherine’s Bay then appealed.

The appeals court noted the county staff supported the land designation because, while in an area known for environmental considerations, the RV park would be allowed so long as it met provisions of the comprehensive plan and land development code.

“…The mere fact that an area has environmental limitations is not a basis to prohibit development as long as the development is carried out in accordance with the limitations provided by the plan and the LDC,” the opinion states.

Stillwell said that, just as significant, the court said it was Fagan’s burden to prove the RV park is incompatible with the area, and he could not do that.

“You don’t meet that definition by getting up and making generalized statements,” he said.

The ruling now makes the comprehensive plan change effective. However, Peebles cannot develop the property until he receives a site-specific zoning change and county commission approval for a development plan.

Stillwell said Peebles had only applied for the comprehensive plan change because he didn’t want to bear the expense of developing a specific proposal if the board denied the first step.

He said he didn’t know when Peebles would apply for the zoning change and development order. In the current economy, Stillwell guessed it wouldn’t happen for at least six months.

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