Recommendation Concerning Enforcement of Order Granting Petition for Certiorari brought by Petitioners Teramore Development, LLC, et al. v. Escambia County, Florida, Case No. 2017 CA 001778.
That the Board take the following action:
A. Accept the settlement proposal made by the Teramore Petitioners as outlined in the amended June 25, 2019 letter and hard copy of emails, and direct the Board of Adjustment to grant the appeal by the Teramore Petitioners to allow the construction of a Dollar General store so long as the development review process is satisfied;
OR
B. Reject the settlement proposal made by the Teramore Petitioners and allow the order of Judge Burns granting enforcement to stand and take no further action. |
Recently, the Circuit Court granted Teramore Development, LLC, Shu Cheng Shurett and Leo Huang's Motion to Enforce the Order of Judge Scott Duncan, who had granted their petition for certiorari and determined that the BOA had no competent substantial evidence to support the Planning Official's determination that the construction of a Dollar General Store was incompatible with the location criteria in the Land Development Code. As this Board may remember, the appeal was brought back before the Board of Adjustment on February 20, 2019. The Board of Adjustment allowed the County to call its own expert planner and to provide additional evidence as to why a Dollar General Store would be incompatible with the surrounding neighborhood. At the conclusion of the second hearing, the Board of Adjustment, by a 4-2 vote, after an initial 3-3 vote, denied the appeal of the Teramore Petitioners.
The Teramore Petitioners then filed a second petition for writ certiorari and then attempted to mediate this case through a statutory special magistrate proceeding. However, the mediation resulted in an impasse. The Teramore Petitioners subsequently filed motions for contempt and to enforce the original decision by Judge Duncan that no competent substantial evidence supported the incompatibility analysis by the planning official. After oral argument, Judge Burns entered his order granting both the motion for contempt and the motion to enforce Judge Duncan's original order. However, Judge Dannheisser, who assumed Judge Burn's cases when Judge Burns was transferred to a different division (as part of a regular rotation), decided that the contempt finding was not supported by the evidence or the law and vacated the contempt finding but, left intact the order of Judge Burns enforcing the order of Judge Duncan.
Subsequent to this entry of an order vacating contempt, the parties have been in contact and the Teramore Petitioners have made the following settlement proposal as set forth in the attached amended June 25, 2019 letter and as set forth in the hard copy of the email by the Teramore group's attorney, David Theriaque. In essence, the Teramore group is proposing that the Dollar General store would have design enhancements along with screening vegetation, LED lights that point downward, a knee wall to block glare from headlights and other amenities to meet the concerns of neighboring residents. The Teramore group has also agreed that they would not pursue the County for attorney's fees or expert witness fees. The County, in exchange, would not pursue an appeal of Judge Burns' enforcement order and direct the BOA to grant the appeal.
The proposed settlement has several favorable features that this office recommends accepting. It would remove any financial exposure to the County for expert witness fees, which could be substantial, or the possibility of the assessment of attorney's fees. The County, in exchange, would be obtaining an enhanced design and amenities for the Dollar General store including preservation of certain acreage within the proposed project area which would not be subject to further development. Further, an appeal or review proceeding of Judge Burns' order would have had a low chance of success. |