Construction site of Milton's Cambria subdivision

Pensacola News Journal – December 2, 2019

Santa Rosa County set out nearly a year ago to revise its land development code, the official rule book for who can develop what and when in the county.

The goal was to have the new land development code finished by October. But the county’s planning and zoning director, Shawn Ward, said what was originally a simple “editing” of the code has become a full-fledged revise and replace. 

“In the original memo that I took to the board back in January 2019, I was asked to update the land development code and I said I had a timeline outlined and that by the end of the year we could do this,” Ward said. “However, the further we got and the deeper we got into it, I determined that it wouldn’t be able to be finished by the end of the year. Every board meeting, the commissioners would say, ‘Hey, we’re updating the land development code, can we look into that?’ So what was just an update turned into a complete repeal and replace.” 

Ward expects the revised land development code to be ready for initial review by the zoning board in March, and to be adopted by the Board of County Commissioners in April.  

Some key changes coming to the updated land development code include the definition of “heritage trees,” how many and what kind of signs you can have on your property, and building and sea wall maintenance regulations. 

But as the county works to essentially create a road map for what it’s going to look like in the future, how far will the board go to implement long-term solutions to control growth and development?

Rewriting the original land development code

The original land development code was adopted Aug. 22, 1991, when Santa Rosa County had a population of around 85,000 people. Now, it has nearly 180,000 people. Ordinances have been changed, added and deleted since then, but a large-scale rewrite of the code hasn’t been attempted until this year. 

The land development code dictates all aspects of what a person in the county can and can’t do with their land. It regulates zoning and density, what kind of shrubs you can plant in your yard and how you can advertise your business in a sign on the side of the road, among thousands of other things.

“I think as time changes, so should the land development code,” said District 3 Commissioner Don Salter, who was first elected to the board in 2000. “It should reflect the current status of the county and the future, but we’re going to have to make sure we’re not stepping on private property rights as we work through the land development code.” 

t’s that push and pull — the one between private property rights and ordinances that govern property — that’s at the crux of a lot of tension in Santa Rosa County. This was on display just a few weeks ago when the board voted 3-2 on Nov. 14 to approve a subdivision in unincorporated Gulf Breeze that is directly adjacent to an old dump and is suspected to have contaminated groundwater. 

Liz Pavelick, a member of the citizen activist group Save Our Soundside, was among those who wanted commissioners to hold off on approving the preliminary plat, citing environmental concerns. But the majority of the board insisted their hands were tied and they had to approve the subdivision because the developer met all of the requirements under the land development code, and denying the plat would be a violation of the Bert Harris Act, which guarantees private property rights in Florida. 

County Commissioners have done this dance at several meetings — a developer proposes building a subdivision that upsets residents for various reasons, and the board looks to its attorney, Roy Andrews, who responds that if all of the land development code requirements are met, the board must approve it or risk legal action. 

But Pavelick said there has to be something they can do. 

“If something is going to be detrimental to the health and welfare or safety of other people living around it, why can’t you stop it?” Pavelick said.   

What is the Bert Harris Act?

Commissioners have said for years that their hands are tied and they’re forced to approve all developments that meet the land development code requirements due to the Bert Harris Act, a law that protects Florida property owners from “inordinate burdens” on their property rights.   

The law means they’re not legally allowed to deny a property owner a plat or construction rights if the owner has met all of the requirements of the land development code, even if commissioners want to put a hold on the approval in order to investigate environmental issues or infrastructure concerns. 

But what exactly is the Bert Harris Act, and how do other local governments in the state treat property rights in relation to this law?

The Bert Harris Act was adopted by the Florida Legislature in 1995. It’s meant to protect property owners whose rights to their property are negatively affected by government regulation, said Pensacola attorney and property rights expert Will Dunaway. 

“All things governments do must have a public purpose, so if the government wants to build a new road and they need to have a right of way to build that road, after providing full compensation for the taking, that’s called imminent domain,” Dunaway said. “But when the government doesn’t take all of your property, but ‘inordinately burdens’ — that’s the term of art, here — through regulation, then a property owner is entitled to some sort of compensation.” 

For example, if you own a piece of property next to a church, and you bought the property with the intent to build a bar there and have taken out a $1 million loan for construction, but then the county passes an ordinance that there can be no bars next to churches, you might have a Bert Harris claim. 

So what is the point of having any ordinances at all, if developers could file a Bert Harris claim at seemingly every turn?

“This was certainly a big pressing question when local governments enacted the first zoning codes. We haven’t always had zoning in Florida,” Dunaway said. “In Florida, when you drive down to places sometimes, you’ll see a mobile home next to a million-dollar mansion. Those are grandfathered in. 

“Local governments and counties throughout the state are enacting ordinances almost every day that, in some ways, have a public purpose,” he continued. “And they may or may not negatively affect a property owner … so governments can move forward with regulations, they just have to know, if those regulations inordinately burden property, be aware that property owners can seek just compensation.” 

Dunaway said he’s currently representing a property owner who has a Bert Harris claim against Santa Rosa County. And that’s what commissioners are afraid of — that putting “teeth” in the land development code would give them some regulatory authority over development, including the ability to say “no,” but it could also subject the county to more lawsuits and cost taxpayers lots of money. 

Planning long-term for the future

In nearby Destin, which has experienced rapid growth similar (but certainly not identical) to Santa Rosa County, the City Council there made changes to its building codes in 2016 that lowered building heights and decreased density for subdivisions. 

The city got a “smattering” of Bert Harris claims after the ordinances were enacted, according to City Councilman Parker Destin, and some of them were ultimately litigated. 

“Basically, the way the rule is, until you have your property rights vested — meaning you get your development order and go through the process of applying to get your development order — and then the government says, ‘We’re changing the rules on you,’ that’s when you can argue a Bert Harris diminution in your property value,” Destin said. 

But the law doesn’t stop commissioners from enacting ordinances now for not-yet-thought-of developments in the future, like conditional use approval for subdivisions or lower density for housing developments. Conditional use, as opposed to current permitted use, would give commissioners the ability to place certain conditions on a new development, like lower heights or less housing units. 

“The county would be best advised to be looking long-term, and they can look to their comprehensive plan and their zoning code and then make smart decisions that are not parcel by parcel specific, meaning they don’t act reactively,” Dunaway said. “So, when ‘XYZ’ company comes in with their 120-unit subdivision, that’s not the time to deny it then, because that person by that time has probably already spent a lot of money. 

“The time to do it would be, well, when’s the best time to plant a tree? Twenty years ago. When’s the next best time? Today,” he added. “The best time to do it would be to look to the future and determine where would be best to focus our long-term planning process so that we can minimize the problem that’s at hand, if one exists. That’s just called good planning.” 

But Santa Rosa County Commissioners have indicated they don’t plan to put any long-term development solutions in the updated land development code, insisting they’re hamstrung by Bert Harris and property rights. 

Salter, the District 3 commissioner, said he would “see what different groups have to say” about the code, but that Santa Rosa’s property rights were paramount. 

“One of the things we take great pride in in Santa Rosa County is private property rights,” he said. “So if somebody owns that property and the zoning is in place, then they have the right to develop that property.” 

Parker, the District 1 commissioner, said cautiously that he would be willing to look at additional “viewpoints” concerning the Bert Harris Act when determining where the board would direct the land development code. 

“Basically, in Destin, they said, ‘We can’t continue to grow at this rate, because our infrastructure can’t handle it,’ ” Parker said. “And absolutely I think that’s something for us to look at, although we’re in a different situation than the city of Destin. There’s no shortage of land in the central and north part of Santa Rosa County.”

What will the new land development code address?

In terms of what is going to be included in the updated code, though, both Salter and Parker said they would support measures to better monitor developments that are underway, like increased fines for environmental violations and more stringent wetlands policies, stormwater regulations and tree ordinances. 

Pavelick said her group had approached the board earlier this year with a tree ordinance that they were promised would be “fast tracked,” possibly even enacted before the updated land development code would come out. That still hasn’t happened. 

“The old ordinance talks about how big around the trees have to be to be considered heritage trees, and because we’re on this peninsula (in Gulf Breeze/Navarre) there’s not good enough soil for the trees to get that large, so none of the trees are big enough to save,” she said. “When the developers come in they can just cut down all the trees and then replace them with non-native plants.

“When you plant things that aren’t native to the area, wildlife doesn’t know how to respond, birds don’t eat from certain bushes or nest in certain trees because they’re not native. So these whole big developments come in and then there’s nothing left to support wildlife.” 

Parker said he expects the tree ordinance change to be made in the updated land development code, along with other “antiquated language” that governs things like signage. 

“An example of that is when we created the new code enforcement division and they started having people take down their feather flags,” Parker said. “We saw the hardship that caused a lot of businesses, and that was something on the books, of course, but had never been enforced before. And so clearly, the County Commissioners, we voted to put a stay on that. That’s an example of a lot of language we have that needs to come out.” 

The commissioners are also considering dividing the county into three sections — north, central and south — to make the codes more specific to the needs of each area of the county. 

The south end, for instance, includes the Navarre and Gulf Breeze areas, which have higher density areas and a more diverse environment. The north end, with areas like Jay and Chumuckla, is more rural and is the cradle of the county’s farming and agriculture industry. The central part includes the fast-growing Milton and Pace areas, which are suffering from crippling infrastructure woes. 

“I think it would be extremely beneficial to our county to compartmentalize as far as the land development code and even code enforcement to make it where we recognize we have different communities and we don’t just paint them all with a broad brush,” Parker said. “I would support that if it’s something we could legally or feasibly do.” 

The land development code will also include changes to rules governing seawall and building maintenance, living in recreational vehicles, burrow pits and more. 

The land development code is expected to be finished by early next year, possibly late winter or early spring. Commissioners said they’re continuing to take input from people like Save Our Soundside, the Home Builders Association of West Florida and others as they determine what direction the updated code will go. 

But people like Pavelick, who wants the code to substantially address growth issues that she said negatively impact existing residents, aren’t holding their breath. 

“They’re just dragging their feet, in my personal opinion,” she said. “We’ve got so few corridors left, and by them dragging their feet on this land development code, by the time a new one is in place there won’t be anything left to save.” 

Annie Blanks can be reached at [email protected] or 850-435-8632.