OSTERHAUS, J.
Appellants have challenged an order approving a 20-unit planned unit development (PUD) immediately seaward of their beach-view property at Inlet Beach in Walton County. Citing § 163.3215, Florida Statutes (2013), they assert that the order conflicts with Walton County's comprehensive plan (Comp Plan) by approving new lots seaward of the coastal construction control line (CCCL); approving other construction (dwellings, roads, grading, drainage, etc.) on the primary dune within the Coastal Protection Zone (CPZ); and mis-locating the CPZ. Appellees moved for summary judgment, which the circuit court granted.
We now affirm because the 2013 order being challenged here did not materially alter the development, CCCL, or CPZ. Rather, an earlier development order from 2010, had already approved the developer's first-step PUD application, including its site plan and the location of development relative to the CCCL and CPZ. The Board of County Commissioners ("County") further found this earlier application "in compliance and consistent with" the Comp Plan. And nobody challenged it. See § 163.3215(3), Fla. Stat. (requiring consistency challenges to be filed "no later than 30 days following rendition"). Instead, Appellants filed this action after the County approved the follow-up, detailed plan in 2013. But because § 163.3215 is predicated upon showing a material alteration of property inconsistent with a Comp Plan, and here the County's 2010 order had already approved the placement and relative location of the things that Appellants challenge, this challenge to the 2013 order fails to meet the requirements of § 163.3215.
In 2009, Appellees EBSCO Gulf Coast Development, Inc., and A.E. Foster, Jr., (collectively, "Developer") set out to develop a 20-unit coastal residential community on Inlet Beach in Walton County. Walton County's Land Development Code sets forth a two-step approval process for PUD projects: a concept plan phase and a detailed plan phase. Walton Cnty. Land Dev.Code § 2.06.02 (hereinafter "LDC").
At the first step, the County specifically reviews a concept plan "for compliance with the goals, objectives and policies of the comprehensive plan and compatibility with the character of the surrounding area." Id. A report is then made publically available at least one week in advance of a public hearing held by the Planning Commission. After the hearing, the Board of County Commissioners holds another public hearing in order to approve or deny the concept plan, or to approve it with conditions. Id. At the second step, "an applicant has the option to submit a Detailed PUD Plan for all or part of the development approved in the conceptual plan approval." LDC § 2.06.02(B). If technical requirements are met, the Board issues another final order memorializing its approval of the detailed plan. LDC §§ 2.06.02(B), 10.02.01, 10.02.03.
In this case, Developer submitted a "Concept Plan" with maps showing all
In 2012, Developer followed-up by submitting a "Detailed Plan" that was also approved by the County. The 2013 Order approving the Detailed Plan noted that it had "previously approved ... and rendered a Final Order for the Lupin Beach Conceptual PUD Plan on March 16, 2010, which is hereby incorporated by reference." Nothing in the Detailed Plan or 2013 Order indicated that the location of development relative to the CCCL, CPZ, or primary dune had been materially altered. Rather, each remained in the same place in relation to the other, as had been approved by the 2010 Order — lots remained seaward of the CCCL and the CPZ's upland boundary line (as marked by the primary dune) remained seaward of the proposed construction of dwellings, roads, driveways, and other infrastructure.
After the Detailed Plan was approved in 2013, Appellants challenged the PUD under § 163.3215.
(Emphasis added).
Developer moved for summary judgment.
A trial court may grant a motion for summary judgment only if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. See Fla. R. Civ. P. 1.510(c). "Once the moving party establishes that there are no genuine issues of material fact, the burden shifts to the nonmoving party to show the existence of a disputed issue of fact." Master Tech Satellite, Inc. v. Mastec N. Am., Inc., 49 So.3d 789, 790 (Fla. 3d DCA 2010). The trial court must view the evidence and draw all inferences in favor of the opposing party. Castle Key Ins. Co. v. Raymond H. Duke Enterprises, Inc., 135 So.3d 578, 579 (Fla. 1st DCA 2014). But a party cannot create disputed issues of fact "by merely stating factual conclusions." Master Tech Satellite, Inc., 49 So.3d at 790.
Appellants claim that the 2013 Order materially altered the Lupin Beach property inconsistent with Comp Plan in three ways: (1) locating lots seaward of the CCCL; (2) allowing development on the primary dune; and (3) incorrectly locating the CPZ and allowing development therein. See Compl. ¶ 24. But the 2013 Order didn't materially alter the property in these ways; and, if any order did, it was the 2010 Order.
Appellants argue first that the 2013 Order altered the property by approving new lots seaward of the CCCL contrary to the Comp Plan. See Comp Plan Policy C-1.6.2.
For the same basic reason, the court appropriately entered summary judgment on Appellants' claims related to the destruction of the primary dune and the location of the CPZ.
As a preliminary matter, Appellants are correct that Walton County's Comp Plan severely limits almost all development on the primary dune within a CPZ. It permits only "boardwalks, shoreline access structures, and erosion control measures that will enhance and protect the dune system" to be built in this area. Comp Plan Policy C-1.6.1(2). But, as with the issue above, the 2010 Order — not the 2013 Order — specifically addressed the location of the primary dune and CPZ relative to the residential development. If the PUD materially altered the primary dune and CPZ on the property for purposes of § 163.3215, then the alteration occurred with the 2010 Order.
The Complaint's assumption about where the primary dune and CPZ were located circa 2013 is wrong. Appellants asserted that the primary dune (and hence the CPZ
In sum, Appellants cannot prevail with arguments that the 2013 Order materially altered the property by allowing development within the CPZ, or on the primary dune, because the Concept Plan in 2010
Appellants submitted two affidavits from individuals familiar with coastal projects in response to the motion for summary judgment. But neither creates genuine fact issues as to Appellants' three claims. The affidavits identify many details of the project not contained in the Concept Plan approved in 2010, such as the materials and building processes to be used in completing the construction of the dwellings, roads, driveways, and other adjacent infrastructure, and where precise boundaries within the development would fall. But these details don't bear on the particular issues framed by Appellants' Complaint that more narrowly involve the location of development relative to the CCCL and CPZ/primary dune. Again, Appellants' Complaint "[s]pecifically ... contend[ed] that the Project violates [Comp Plan] provisions related to protection of the primary dune ..., the location of individual lots in relation of the CCCL, and the method by which the location of the CPZ was determined." Compl. ¶ 24. These three allegations relate to the location of the CCCL and CPZ vis-à-vis the residential construction, but not to the many details of upland construction that may (or may not) have altered the property's use or intensity of use in other ways.
Finally, we reject Appellants' contention that the 2013 Order presented the first opportunity to challenge the County's approvals because the 2010 Order wasn't a "development order." Section 163.3215(3) only authorizes challenges to local decisions involving applications for "a development order, as defined in § 163.3164." Under § 163.3164(15), "development order" refers to "any order granting, denying, or granting with conditions an application for a development permit." (Emphasis added). The term has been broadly construed. See Graves v. City of Pompano Beach ex rel. City Com'n, 74 So.3d 595 (Fla. 4th DCA 2011); Arbor Properties, Inc. v. Lake Jackson Prot. Alliance, Inc., 51 So.3d 502 (Fla. 1st DCA 2010). The definition of "development permit" includes "any other official action of local government having the effect of permitting the development of land." § 163.3164(16), Fla. Stat. (emphasis added). As recognized by the Fourth District in Graves, 74 So.3d at 598, "development" is broadly
It follows here that the 2010 Order was a challengeable "development order," because it approved and recorded the Developer's plan to subdivide the property into many new parcels and build new dwellings, roads, driveways, and other infrastructure. That the 2010 Order included conditions,
For the foregoing reasons, we AFFIRM.
VAN NORTWICK, J., concurs.
BENTON, J., dissents with opinion.
BENTON, J., dissenting.
In its natural state, the parcel in question could not have been developed as now proposed, in keeping with Walton County's comprehensive plan (Comp Plan). This is because, as the scholarly majority opinion explains, the Comp Plan allows no beach houses — only "boardwalks, shoreline access structures, and erosion control measures that will enhance and protect the dune system" — in the "coastal protection zone." Comp Plan Policy C-1.6.1(2). The 2013 development order at issue here authorizes construction of at least two houses in what all parties seem to agree was the coastal protection zone before the 2010 PUD order was entered.
Insofar as pertinent here, the Comp Plan defines the coastal protection zone as the area between the Gulf of Mexico and "the landward toe of the primary dune ridge...." Comp Plan Policy C-1.6.1. At the time the 2010 PUD order was entered, the primary dune ridge lay landward of sites on which the 2013 order allows construction of at least two houses. With the intention of removing the legal impediment the primary dune ridge — and therefore the coastal protection zone it defined — posed, the developer proposed in 2010 to bring in bulldozers to move the primary dune closer to the Gulf, seaward of the construction it plans.
The 2010 order which approved this approach was not appealed, and it may be, as the majority opinion assumes, that it would be inequitable not to allow the relocation of the coastal protection zone at this point. I express no view on the issue except to suggest that the answer might very well turn on factual questions which should not be resolved on summary judgment. The