Samuel A. Osborne v. Walton County, Florida, a Political Subdivision of the State of Florida

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2021-3898

_____________________________

SAMUEL A. OSBORNE,

Appellant,

v.

WALTON COUNTY, FLORIDA, a

political subdivision of the State

of Florida, and SANDESTIN

INVESTMENTS, LLC,

Appellees.

_____________________________

On appeal from the Circuit Court for Walton County.

Jeffrey E. Lewis, Judge.

February 12, 2025

PER CURIAM.

This case involves the Development Order (“DO”) for the

Sandestin Development of Regional Impact (“the Sandestin

DRI”). 1 More specifically, it involves the enactment of Revised

1 Located in Walton County, Florida, the Sandestin DRI is a

Development of Regional Impact organized under Chapter 380,

Florida Statutes. As previously noted by the State of Florida Land

and Water Adjudicatory Commission (“FLWAC”), and as detailed

by Judge Winokur in his concurring opinion, the Sandestin DRI

DO has a “complex history” that dates back to 1976.

Ordinance 2017-12, the mechanism by which Walton County

approved a Notice of Proposed Change (“NOPC”) filed by Sandestin

Investments, LLC (“SDI”). 2 SDI submitted the NOPC in response

to a Determination of Non-Compliance (“DONC”) issued by the

County. Acting in its quasi-judicial capacity, the County approved

SDI’s NOPC, rescinded the DONC, and amended the Sandestin

DRI DO.

After these actions by the County, Appellant Samuel Osborne 3

filed an action in circuit court, challenging the process by which

the County amended the DRI DO. In his response to a motion for

summary judgment, Osborne accurately described the parties’

dispute: “[Osborne] contends that the proposed DRI changes . . .

have not been validly adopted; [SDI] argues that they have.” The

validity of that adoption hinges on whether, before it considered

Revised Ordinance 2017-12, the County should have complied with

the special public notice requirements applicable to development

agreements and DRI’s.

After the County enacted Revised Ordinance 2017-12,

Osborne claimed that, before considering SDI’s NOPC, the County

failed to comply with the special public notice requirements under

section 163.3225, Florida Statutes, section 380.06, Florida

Statutes, the Walton County Land Development Code, and

“Florida law.” Pertinent to this appeal, the section 163.3225

requirements apply when a local government considers entering

into or modifying a development agreement; and, the section

380.06 requirements apply when a local government considers

issuing or modifying a DRI DO.

SDI moved for summary judgment, arguing that development

agreements have nothing to do with DRI DOs. Rather than

addressing the special public notice requirements identified by

Osborne, SDI argued that the County did not need to comply with

the general public notice requirements under section 125.66,

Florida Statutes. According to SDI, Revised Ordinance 2017-12 did

2 SDI owns some of the development rights within the DRI.

3 Osborne owns a home in a developed portion of the DRI.

2

not substantially or materially alter Ordinance 2017-12. Thus, no

new round of public notifications was required.

Osborne responded, characterizing SDI’s assertion as “a

classic ‘straw man’ argument” because Osborne never claimed the

County failed to comply with section 125.66, Florida Statutes.

Osborne filed a cross-motion for summary judgment, claiming that

a 1984 development agreement between a previous developer and

the state land planning agency, as adopted by the County through

the enactment of Ordinance 89-9, serves as the “benchmark” for all

changes to the Sandestin DRI DO. According to Osborne,

Ordinance 89-9 incorporated the 1984 development agreement

into the Sandestin DRI DO. Therefore, any modification of the DO

necessarily qualifies as a modification of a development

agreement—thereby triggering the special public notice

requirements under section 163.3225, Florida Statutes.

The trial court granted SDI’s motion for summary judgment

and denied Osborne’s cross-motion for summary judgment. The

trial court did not address Osborne’s claim that, before considering

Revised Ordinance 2017-12, the County failed to comply with the

special public notice requirements applicable to development

agreements and DRI DOs. Instead, the trial court agreed with SDI

that section 125.66, Florida Statutes, did not require the County

to send a new round of notifications before it considered Revised

Ordinance 2017-12. The trial court found that such notifications

were not required because Revised Ordinance 2017-12 did not

substantially and materially change Ordinance 2017-12. We reject

that finding. By the parties’ own admissions, Revised Ordinance

2017-12 did something that Ordinance 2017-12 did not: it settled

a lawsuit between the Sandestin Owners’ Association (“SOA”), the

County, and SDI. 4 Therefore, we reverse the final summary

4 The DRI includes “a number of condominium and

homeowner associations which govern individual condominium

units and single-family residences.” Scott v. Sandestin Corp., 491

So. 2d 334, 334 (Fla. 1st DCA 1986). SOA “is a ‘master association’

comprised of representatives of these individual associations.” Id.

Formed in 1979, the SOA “is responsible for maintenance of

roadways, lakes and lagoons, landscaping and lighting, security,

3

judgment and remand for the trial court to address Osborne’s

cross-motion for summary judgment.

I

On July 8, 2014, the County issued a DONC to SDI. The

County found that SDI’s noncompliance with open space

requirements created regional impacts that had not been

addressed.

In response to the DONC, SDI submitted a NOPC in 2016

under section 380.06, Florida Statutes. But SDI did not provide

more open space acreage to address the deficiency identified in the

DONC. Instead, SDI sought to bring its activities back into

compliance with the Sandestin DRI DO by redefining what

constitutes open space. In other words, rather than complying with

the existing standard, SDI sought to change the standard.

SDI submitted the NOPC Application concurrently to the

Florida Department of Economic Opportunity (“DEO”) and the

West Florida Regional Planning Council (“WFRPC”). Neither DEO

(the state land planning agency at the time) nor WFRPC objected.

See § 380.06(19)(e)1., Fla. Stat. (2017).

On January 19, 2017, and January 26, 2017, a Notice of Public

Hearing appeared in the Defuniak Springs Herald & Breeze. Both

notices announced an upcoming meeting of the Walton County

Board of County Commissioners (“BOCC”) for January 30, 2017.

Under the heading “QUASI-JUDICIAL ITEMS,” the notices listed

the Sandestin DRI NOPC. As to the purpose of the public hearing,

the notices stated: “Sandestin Investments, LLC, is requesting a

determination that their application for a Notice of a Proposed

Change (NOPC) to the previously approved Sandestin

Development of Regional Impact (DRI) constitutes a non-

substantial deviation under subsection 380.06(19), Florida

Statutes.”

garbage service, pest control, insurance and taxes for the entire

project.” Id.

4

On January 30, 2017, the County held a public meeting and

considered SDI’s NOPC. At the suggestion of the Walton County

Attorney, the BOCC bifurcated the application and heard the

portion dealing with the open space requirements first. After more

than six hours of testimony and deliberation, a motion to approve

the NOPC failed. Rather than deny the NOPC outright, the Walton

County Attorney suggested that the BOCC entertain a motion to

continue the meeting to a date certain. The motion was made and

approved.

On March 2, 2017, and March 9, 2017, a Notice of Public

Hearing appeared in the Defuniak Springs Herald & Breeze. Both

notices announced an upcoming meeting of the BOCC for March

13, 2017. Under the heading “QUASI-JUDICIAL ITEMS,” the

notices listed the Sandestin DRI NOPC. As with the January 19,

2017, and January 26, 2017, notices, the March 2, 2017, and March

9, 2017, notices stated: “Sandestin Investments, LLC, is

requesting a determination that their application for a Notice of

Proposed Change (NOPC) to the previously approved Sandestin

Development of Regional Impact (DRI) constitutes a non-

substantial deviation under subsection 380.06(19), Florida

Statutes.”

On March 13, 2017, the BOCC reconvened and approved SDI’s

NOPC subject to certain conditions. The BOCC found that the

NOPC included no substantial deviations to the Sandestin DRI

DO. The BOCC rescinded the DONC.

On April 11, 2017, the County adopted Ordinance 2017-12,

which approved SDI’s NOPC and amended the Sandestin DRI DO

by changing the applicable definition of open space. The County

identified two types of proposed changes: “E1 Amendments” and

“F3 Amendments.” The term “E1” refers to changes subject to the

review requirements of subparagraph (e)1 of section 380.06(19),

Florida Statutes (2017); the term “F3” refers to changes that could

trigger the public hearing requirements of subparagraph (f)3 of

section 380.06(19). The BOCC found that both the “E1

Amendments” and the “F3 Amendments” in the NOPC “are non-

substantial deviations” under section 380.06(19), Florida Statutes.

5

On April 20, 2017, SOA petitioned for administrative review

with FLWAC, challenging the County’s adoption of Ordinance

2017-12 (“the administrative appeal”). See § 380.07(2), Fla. Stat.

(2017). SOA alleged that the “Amended Development Order was

approved as a non-substantial deviation without further review,

despite containing changes that qualify as substantial deviations .

. . .” SOA’s petition suspended rendition of Ordinance 2017-12. See

§ 380.07(4), Fla. Stat. (2017) (“The filing of the petition stays the

effectiveness of the order until after the completion of the appeal

process.”). SDI then intervened in the administrative appeal and

moved to dismiss SOA’s Petition. The County filed a notice of

joinder as to that motion.

On May 9, 2017, SOA sued in circuit court, alleging that the

amended Sandestin DRI DO violates section 163.3215, Florida

Statutes. SOA alleged that the terms of the DO were inconsistent

with the Walton County Comprehensive Plan (“the comp plan

challenge.”). The circuit court held the action in abeyance pending

the outcome of the administrative appeal.

During the fall 2017, SOA and SDI entered into a settlement

agreement to resolve both the administrative appeal and the

action in circuit court. On September 29, 2017, SDI and SOA

agreed to the entry of a Stipulated Order in the circuit court. The

Stipulated Order states: “[SDI] will ask Walton County to properly

notice a public hearing for the [BOCC] to consider a settlement of

this action by adopting the amended version of Walton County

Ordinance 2017-12, attached hereto as . . . ‘Amended DRI DO.’”

On October 10, 2017, at a regularly noticed meeting, the

BOCC agreed to consider the settlement agreement between SOA

and SDI as well as Revised Ordinance 2017-12 at its upcoming

meeting on November 7, 2017.

On October 26, 2017, and November 2, 2017, a Notice of Public

Hearing appeared in the Defuniak Springs Herald & Breeze.

Signage was also posted within the DRI. The notices announced

an upcoming meeting of the BOCC for November 7, 2017. The

notices listed “QUASI-JUDICIAL ITEMS” to include “Sandestin

DRI 380.06(19)(e)1 Change – Sandestin Investments, LLC is

requesting to amend Ordinance 2017-12 to a previously approved

6

Development of Regional Impact (DRI), Section 380.06(19), Florida

Statutes.” The notices also stated: “The purpose of the hearing is to

consider settlement of the pending lawsuit styled Sandestin

Owners Association, Inc. v. Walton County/Intervenor Sandestin

Investments, LLC, Case #2017CA225, Circuit Court of Walton

County, Florida, by adopting an Amendment to Walton County

Ordinance 2017-12.” (emphasis supplied). Even so, before the

November 7, 2017, meeting, no notice by certified mail was sent to

the property owners within 300 feet of the project site.

Four days before the November 7, 2017, meeting SDI and the

County entered into an Indemnity Agreement in which SDI agreed

to defend and indemnify the County from any legal challenges or

actions brought against the County related to or arising from SDI’s

failure to send notice via mail of the November 7, 2017, Public

Hearing. The agreement states that “the Parties disagree as to

whether or not SDI should be required to mail certified letters to

all owners of property located within the Resort advising them of

the November 7, 2017, meeting (‘Certified Mailings’) . . . .” SDI

agreed to hold the County harmless for the cost of a legal challenge

to the BOCC’s consideration of the Replacement Ordinance at the

November 7, 2017, meeting.

The Indemnity Agreement also identified the purpose of the

November 7, 2017, public meeting: “WHEREAS, at a regularly

scheduled County Commission meeting on October 10, 2017, the

Board of County Commissioners scheduled a hearing for

November 7, 2017, in which to consider settlement of the Lawsuits

by adopting the Replacement Ordinance.” (emphasis supplied).

On November 7, 2017, the County held a public hearing at

which time the BOCC approved Revised Ordinance 2017-12. Along

with approving SDI’s NOPC, the BOCC approved the settlement

agreement between SOA, SDI, and the County. The ordinance

states:

• “The Amended Development Order approved as

Revised Ordinance 2017-12 shall replace and

supersede all previous Sandestin DRI Development

Orders except the 1984 Settlement Agreement . . . .”

7

• “[I]n order to effectuate a settlement of the FLWAC

Appeal and the SOA Comp Plan Case, Developer has

requested that the Board adopt certain revisions to

Ordinance 2017-12.”

On December 6, 2017, Osborne filed a civil complaint against

the County, seeking “equitable relief, including but not limited to,

declaratory relief . . . and related injunctive relief.” Osborne alleged

that Revised Ordinance 2017-12 is void ab initio because the

County did not send notice “via mail as required by [the Florida

Local Government Development Agreement Act, §§ 163.3220—

163.3243, Fla. Stat.], [the Florida Environmental Land and Water

Management Act, §§ 380.012—380.08, Fla. Stat.], the Walton

County Land Development Code (LDC) and Florida law.”

SDI then moved to intervene. The trial court granted the

motion.

On February 7, 2018, Osborne filed his First Amended

Complaint, alleging that:

• The 1984 Agreement between DCA and a previous

owner of the Sandestin DRI is a development

agreement.

• The County approved the 1984 Agreement when it

adopted Ordinance 89-9.

• Ordinance 89-9 acknowledges that the 1984

Agreement “is the benchmark for all future changes

to the Sandestin DRI.”

• “The Sandestin DRI [DO] is a ‘development

agreement’ as that term is used pursuant to Florida

law.”

• SDI’s NOPC “sought to change benchmarks and

definitions as provided for in the [1984] Development

Agreement.”

• Ordinance 2017-12 approved SDI’s NOPC.

8

• After SOA filed an administrative appeal and civil

action against the County, “SOA and SDI entered a

settlement agreement concerning SDI’s NOPC and

the development rights related to the Sandestin

DRI.”

• Revised Ordinance 2017-12 “made significant and

material changes to the development terms,

conditions, and rights of SDI.”

Notably, Osborne never alleged that the County failed to satisfy

the general notice requirements under section 125.66, Florida

Statutes.

On February 27, 2018, SDI filed its answer and affirmative

defenses. In its fourth affirmative defense, SDI alleged that

Osborne received constructive notice of the November 7, 2017,

public meeting because the County satisfied the general notice

requirements under section 125.66(2)(a), Florida Statutes. SDI

also denied that the DRI DO, the 1984 Agreement, and Ordinance

89-9 qualify as development agreements. 5

In its Fifth Affirmative Defense, SDI asserted that the specific

notice requirements under Chapter 163 did not apply to the

County’s consideration of Revised Ordinance 2017-12 because

“[n]either the Sandestin DRI, nor any of the amendments to it,

were applied for or approved as Development Agreements

pursuant to [The Florida Local Government Development

Agreement Act, §§ 163.3220–163.3243, Fla. Stat.].” SDI also

SDI did not address the County’s admission in the 2014

5

DONC that:

• The 1984 Agreement resolved a dispute between the

developer and the state land planning agency

regarding development rights under the Sandestin

DRI;

• Ordinance 89-9 adopted the 1984 Agreement; and,

• Ordinance 89-9 incorporated the 1984 Agreement

into the Sandestin DRI DO.

9

argued that section 163.3225, Florida Statutes, only applies to

“statutorily defined Development Agreements” and therefore does

not apply to DRIs under section 380.06, Florida Statutes.

Even so, SDI admitted that “[d]uring the fall [of] 2017, the

SOA and SDI entered [into] a settlement agreement concerning

SDI’s NOPC and the development rights related to the Sandestin

DRI.” (emphasis supplied). SDI also admitted that it “sought for

the County to approve the terms of the settlement agreement that

related to SDI’s development rights related to the Sandestin DRI

via revision to Walton County Ordinance 2017-12.” (emphasis

supplied).

SDI moved for summary judgment, arguing that Revised

Ordinance 2017-12 involved the modification of a development

order, not a development agreement. According to SDI, Chapter

163, which pertains to development agreements, can never apply

to Chapter 380, which governs DRIs:

Section 380.06, Florida Statutes, provides the statutory

scheme under which DRIs are categorized, evaluated,

approved, and amended, including the NOPC procedure.

. . . The process outlined in section 380.06 is distinct and

materially different that those processes for entering into

‘development agreements’ found in section 163.3225,

Florida Statutes. In fact, nowhere in section 380.06,

Florida Statutes, is the term ‘development agreement’

used. Therefore, the NOPC application and approval

cannot be categorized as a ‘development agreement’ as

that term is used within section 163.3225, Florida

Statutes, and any notice provisions found in section

163.3225 do not apply to the NOPC application submitted

by SDI.

(emphasis supplied).

As to public notice, SDI argued that Revised Ordinance 2017-

12 did not substantially and materially change Ordinance 2017-

12. Thus, no new round of notifications was required under section

125.66, Florida Statutes.

10

In response, Osborne characterized the 1984 agreement as a

“development agreement” 6:

The Revised Ordinance No. 2017-12 purports, on its face,

to adopt the entirety of the NOPC (with minor changes

requested by the SOA), including the adoption of the

change in the way “open space” was calculated, so as to

bring SDI back into compliance with the DRI [DO] and

the 1989 Development Agreement.

Osborne also argued that Ordinance 89-9 amended the

Sandestin DRI DO by incorporating the 1984 Agreement:

Changes were made in 1989 in a previous NOPC

proceeding, and the County approved the 1989

development agreement by its Ordinance Number 89-9.

That ordinance acknowledged that the 1989 action was a

“development agreement” which was to be the

benchmark for all future changes to the Sandestin

DRI/PUD.

According to Osborne, the 1984 Agreement and Ordinance 89-

9 control the definition of “open space” for the Sandestin DRI DO.

Thus, any change to the definition of “open space” is necessarily a

change to a development agreement.

Osborne characterized SDI’s argument under section 125.66,

Florida Statutes, as “a classic ‘straw man’ argument” because

Osborne never raised such a claim.

Osborne filed a cross-motion for summary judgment, arguing

that “the November 7, 2017, approval of the NOPC and of the

6 Osborne referred to the “1989 Agreement.” Based on context,

it appears that Osborne intended to refer to the 1984 agreement

between a previous developer and the state land planning agency.

That said, we recognize the possibility that Osborne used that

phrase to describe Ordinance 89-9, which adopted the 1984

agreement, as a development agreement between a previous

developer and the County.

11

Revised Ordinance failed to strictly comply with the notice

requirements and were therefore void.”

On November 12, 2020, the trial court heard both summary

judgment motions. At the start of the hearing, SDI summarized

Osborne’s claim as follows:

The argument in the Amended Complaint is that they

have laid out three grounds, and one [1] that, under

Chapter 163.3225, the notice has been violated. [2] Under

Chapter 380 they allege that the notice has been violated

without telling you where under th[ere] or what the exact

standard is that they allege has been violated. And then

[3] they cite you to 10.03.02(d), as in dog, Walton County’s

Land Development Code, and there are [the] three bases.

SDI asserted that Chapter 380 is the only statutory section

that applies to DRIs: “It’s important for the Court to keep in mind

that Chapter 380 is the exclusive statute in Florida which governs

DRIs, and it allows the applicant or the declarant to seek changes

with the DRI over time in this process.” (emphasis supplied).

SDI argued that a DRI development order is not a

development agreement. Thus, section 163.3225 did not apply to

the County’s consideration of Revised Ordinance 2017-12.

Nevertheless, SDI characterized the settlement agreement

between SOA and SDI as a “very comprehensive settlement

agreement concerning all the issues in the NOPC . . . [that came]

to the county to get them to approve [it].”

On January 28, 2021, the trial court rendered an order

granting SDI’s summary judgment motion and denying Osborne’s

cross-motion. The trial court did not address Osborne’s claim that

the County failed to comply with the special public notice

requirements contained in sections 163.3225 and 380.06, Florida

Statutes. Instead, the trial court found that the County did not

need to comply with the general public notice requirement under

section 125.66, Florida Statutes. The trial court concluded that no

new round of notifications was required because Revised

Ordinance 2017-12 did not substantially or materially alter the

substance of Ordinance 2017-12.

12

On November 23, 2021, the trial court rendered a Summary

Final Judgment for Defendant and Intervenor. Osborne appealed.

The standard of review for this appeal is de novo. See

Dudowicz v. Pearl on 63 Main, Ltd., 326 So. 3d 715, 718 (Fla. 1st

DCA 2021). The old summary judgment standard applies. See In

re Amends. to Fla. Rule of Civ. Proc. 1.510, 317 So. 3d 72, 77–78

(Fla. 2021); Washington v. Fla. Dep’t of Revenue, 337 So. 3d 502,

508 n.1 (Fla. 1st DCA 2022).

II

Section 125.66(4), Florida Statutes, outlines the minimum

procedures that a county must follow to make certain zoning

changes through the ordinance enactment process. See § 125.66(4),

Fla. Stat. (2017). Here, the trial court granted final summary

judgment after finding that no new round of notifications was

required under that statute. But Osborne never claimed that the

County failed to comply with the general notification requirements

under section 125.66. Because that question was not before the

court, we reverse the final judgment.

III

We also reverse because the trial court erroneously concluded

that Revised Ordinance 2017-12 did not constitute a substantial or

material change to Ordinance 2017-12. In reaching its conclusion,

the trial court compared the number of “entitlements” under

Ordinance 2017-12 with the number of “entitlements” under

Revised Ordinance 2017-12 and found no material change. In

doing so, the trial court failed to recognize that Revised Ordinance

2017-12 did something that Ordinance 2017-12 did not: it settled

a lawsuit between SOA, the County, and SDI.

A

Subsection (4)(b) contains the general notification

requirements pertinent to this appeal. See generally Neumont v.

13

Fla., 451 F.3d 1284, 1286 (11th Cir. 2006), certified question

answered sub nom. Neumont v. State, 967 So. 2d 822 (Fla. 2007)

(“Neumont”) (“Florida Statutes section 125.66(4)(b) contains the

notice requirements for proposed ordinances that change the

actual list of permitted, conditional, or prohibited uses within a

zoning category. The district court recognized that ‘[u]nder Florida

law, strict compliance with the notice requirements of the state

statute is a jurisdictional and mandatory prerequisite to the valid

enactment of a zoning measure.’ ‘Failure to follow the state

statutory notice requirements render[s] a zoning ordinance void.’”

(citations omitted)).

In Neumont, the appellants sought “to invalidate a Monroe

County ordinance limiting the use of homes as vacation rentals.”

Neumont, 967 So. 2d at 823. According to the Court, “[t]he County

first advertised the [draft] ordinance on November 7-9, 1996.” Id.

The Court noted that the “advertisement included the ordinance’s

title: ‘Modifying the existing prohibition on tourist housing

including vacation rentals in all land use districts.’” Id. (emphasis

supplied). The Court highlighted that the “advertisement stated

that a first public hearing was scheduled for December 10.” Id.

At the December 10 hearing, the “board of county

commissioners considered a new draft [ordinance that] differed

from the advertised draft in several respects . . . .” Id. Based on the

comments received at the hearing, “the board ordered additional

changes.” Id. at 824.

A month later, the “County advertised a notice of a second

public hearing [that] stated the title of the [draft] ordinance, which

was the same as the original titles except in one respect.” Id.

Whereas the original title included the phrase “land use districts,”

the new title used the phrase “residential districts.” The following

table illustrates the differences between the two titles.

Original Title New Title

“Modifying the existing “Modifying the existing

prohibition on tourist housing prohibition on tourist housing

including vacation rentals in including vacation rentals in

all land use districts.” all residential districts.”

(emphasis supplied) (emphasis supplied)

14

On review, the Court adopted the “general purpose standard”

and held that “changes to an ordinance during the enactment

process are only ‘substantial or material’ if they change the

ordinance’s general purpose.” Id. at 823. Only a “substantial or

material” change would require the notification process to “start

from scratch.” Id.

The Court noted that “the County considered several versions

of the ordinance.” Id. at 826. And the Court found that “[b]etween

the first published notice in November 1996 and the final public

hearing in February 1997, the County altered the list of land use

districts where vacation rentals were permitted.” Id.

Even so, the Court determined that “the change in the

advertised title was not substantial or material” because the

second title limited “the scope of the ordinance.” Id. at 831

(emphasis supplied). Whereas the “first advertised title provided

notice to all zoning districts . . ., the second advertised title only

provided notice to residential zoning districts.” Id. Because the

phrase “all land use districts” necessarily includes “all residential

districts,” “[b]oth [advertised] titles put residential district

residents on notice of the zoning change that was ultimately

adopted.” Id. Finally, the Court noted that “[o]ur opinion might

differ if the second advertised title had broadened, rather than

limited, the scope of the ordinance.” Id.

B

Here, the trial court concluded that Revised Ordinance 2017-

12 did not substantially or materially alter the substance of

Ordinance 2017-12. But the trial court’s conclusion is inconsistent

with Neumont. Contrary to the situation in that case, the second

advertised notice in this case included something substantial and

material that the first advertised notice did not, to wit: the

County’s consideration of the settlement agreement between SOA

and SDI. According to the trial court, the County conducted the

public hearing in November, at least in part, “for the purpose of

discussing the proposed settlement agreement and for ratifying

the settlement agreement reached between SOA and SDI (and the

County).” The trial court also found that agreement “resolved all

15

issues between SOA, SDI, and Walton County.” In other words, the

trial court determined that the County conducted a hearing to

decide whether it should enter into an agreement between SOA

and SDI that settled a legal dispute between SOA, SDI, and the

County. 7

Under any Neumont analysis, whether Revised Ordinance

2017-12 reduced the number of SDI’s “entitlements” under the

Sandestin DRI DO remains irrelevant. Because it addressed both

the NOPC and the settlement agreement, the scope of Revised

Ordinance 2017-12 was broader than the scope of Ordinance 2012-

17. Consequently, the January advertisement did not put

impacted homeowners on notice of what the County considered

during the November public meeting. See Neumont, 967 So. 2d at

831 (“Our opinion might differ if the second advertised title had

broadened, rather than limited, the scope of the ordinance.”). The

following table lists the notices side-by-side:

Notices published on Notices published on

January 19 and January 26, October 26 and November 2,

2017 2017

“Sandestin Investments, LLC, “Sandestin Investments, LLC,

is requesting a determination is requesting to amend

that their application for a Ordinance 2017-12, to a

Notice of a Proposed Change previously approved

(NOPC) to the previously Development of Regional

approved Sandestin Impact, section 380.06(19),

Development of Regional Florida Statutes... The purpose

Impact (DRI) constitutes a non- of the hearing is to consider

substantial deviation under settlement of the pending

subsection 380.06(19), Florida lawsuit styled Sandestin

Statutes.” Owners Association, Inc. v.

Walton County/Intervenor

Sandestin Investments, LLC,

7 The Indemnity Agreement between SDI and the County

further proves this point: “WHEREAS, at a regularly scheduled

County Commission meeting on October 10, 2017, the Board of

County Commissioners scheduled a hearing for November 7, 2017,

in which to consider settlement of the Lawsuits by adopting the

Replacement Ordinance.” (emphasis supplied).

16

Case #2017CA225, Circuit

Court of Walton County,

Florida, by adopting an

Amendment to Walton County

Ordinance 2017-12.” (emphasis

supplied).

Because of the difference in purpose between Ordinance 2017-

12 and Revised Ordinance 2017-12 (as reflected by the differences

in the advertised purposes), the County’s consideration of Revised

Ordinance 2017-12 triggered the requirement for a new round of

notifications under section 125.66, Florida Statutes. See Neumont,

967 So. 2d at 823.

In this case, however, the trial court did not analyze whether

the actual notice provided by the County prior to its consideration

of Revised Ordinance 2017-12 satisfied the requirements of section

125.66(4)(b), Florida Statutes; instead, the trial court granted final

summary judgment after finding that no new round of notifications

was required under that statute.

But Osborne never alleged that the County failed to comply

with 125.66(4)(b), Florida Statutes; therefore, we do not address

whether Revised Ordinance 2017-12 is void for failure to satisfy

the general public notice requirements under that statute. See

Webb v. Town Council of Town of Hilliard, 766 So. 2d 1241, 1244

(Fla. 1st DCA 2000) (“Attempts of local government to grant zoning

changes without compliance with procedural requirements have

been deemed invalid and void.”).

IV

The trial court committed reversible error when it granted

Appellees’ motion for summary judgment. At least in part, the trial

court based its decision on an issue not before the court. To the

extent that issue did apply, the trial court reached the wrong

conclusion. The trial court also committed reversible error when it

denied Osborne’s cross-motion for summary judgment. By

responding to SDI’s strawman argument, the trial court never

17

addressed the actual claims raised by Osborne. Therefore, we

REVERSE and REMAND.

ROWE and NORDBY, JJ., concur; WINOKUR, J., concurs with opinion.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

WINOKUR, J., concurring.

I fully concur with the decision to reverse the trial court’s

order granting SDI’s motion for summary judgment. I write

separately, however, to address two concerns: (1) both the County

and SDI misstated the law; and (2) the trial court misapplied the

law. In the opinion that follows, I trace the history of the Sandestin

DRI, discuss development agreements and DRI’s generally,

identify the misstatements of law by the County and SDI, address

rendition and forum, and then list a series of legal questions that

the trial court should address on remand.

I

In 1976, the County approved the original Application for

Development Approval (“ADA”) and issued the first development

order (“the 1976 DO”) for the Sandestin DRI. Forty years later, SDI

would argue that its development rights were governed by the

original 1976 DO, not any subsequent modification. 1

1 On July 8, 2014, the County issued a DONC to SDI, which

described as meritless SDI’s argument that the 1976 DO provides

the benchmark for all modifications to the Sandestin DRI:

The Developer raises several issues as to these

deficiencies. The first is that the benchmark standard

18

In 1984, after bankruptcies splintered ownership, the

Sandestin Corporation reestablished unified development control

over the Sandestin DRI and filed a NOPC application. See

§ 380.06(17)(a), Fla. Stat. (1983) (“A developer shall submit

proposed changes to a development of regional impact previously

approved pursuant to this section to the local government for a

substantial deviation determination.”).

The County approved the 1984 NOPC application as a non-

substantial deviation and issued an amended DO for the Sandestin

DRI (“the 1984 DO”). See § 380.06(17)(a), Fla. Stat. (1983) (“The

local government shall review the proposed changes pursuant to

the criteria enumerated in this subsection and shall make a

substantial deviation determination.”).

In a 2004 en banc decision, this Court described substantial

and non-substantial DRI DO deviations as follows:

[A] substantial deviation is a change that, per se, creates

reasonable likelihood that it will have a substantial effect

on the health, safety or welfare of citizens of more than

one county. Such a change is automatically required to

undergo a new DRI review. Changes which meet this

classification are expressly delineated. See

§ 380.06(19)(a)-(c), (e), Fla. Stat. (2001).

All other changes, whether statutorily enumerated

or not, would be classified as “not a substantial

deviation.” See § 380.06(19)(e), Fla. Stat. (2001).

Logically, because the changes in this case do not have

regional (i.e., multi-county) impact, they are not required

that is to be applied is the 1976 original Development

Order and not the 1984 Agreement. In essence, the

Developer suggests that it is entitled to the development

rights that were originally granted when the DRI was

approved but that it may ignore all of the prior changes

that have occurred over the years. This position lacks

merit.

19

to undergo a new development of regional impact review

process.

Here, the parties stipulated that Appellant’s

proposed changes fall within this second classification.

Although not a term used in the statute, the parties label

the proposed changes “non-substantial.” This label

mainly serves as a convenience to indicate the project

does not have a regional, or multi-county impact. The

term does not lead to a conclusion that the proposed

changes are minor, of no significance, or exempt from the

Bay County Comprehensive Plan.

Bay Point Club, Inc. v. Bay Cnty., 890 So. 2d 256, 258 (Fla. 1st DCA

2004) (en banc) (citation omitted).

When the County transmitted the 1984 DO to the Florida

Department of Community Affairs (“DCA”) as the state land

planning agency at the time, DCA questioned the County’s

determination that the NOPC did not request a substantial

deviation to the 1976 DO. See § 380.06(17)(a), Fla. Stat. (1983)

(“The local government shall, at the conclusion of local review,

modify the development order to reflect approved changes to the

development and shall notify the regional planning agency and the

state land planning agency of the changes to the development

order, with the findings subject to the appeal provisions of s.

380.07.”); cf. Bartecki v. Dep't of Cmty. Affs., 498 So. 2d 972, 974

(Fla. 1st DCA 1986) (“Despite appellants’ prodigious and

successful efforts in obtaining development approval from the

county, the Department of Community Affairs (Department)

appeared on the scene to challenge the county’s action, wielding its

sword of authority afforded by section 380.07(2), Florida Statutes,

to appeal to the Commission any development order affecting any

area of critical state concern.”).

On October 12, 1984, the Sandestin Corporation and DCA

entered into an agreement (“the 1984 Agreement”) whereby DCA

agreed not to seek administrative review of the County’s non-

substantial deviation determination; in exchange, the Sandestin

Corporation agreed to provide DCA with a complete copy of its files

for the Project (“the 1985 Developer Submittals”). See § 380.07,

20

Fla. Stat. (establishing an administrative appeal process with

FLWAC).

In pertinent part, the 1984 Agreement states: “Future

substantial deviation determinations shall be made in reference to

the 1984 Master Plan as supplemented with [the 1985 Developer]

submittals . . . .”

On August 29, 1989, the County adopted Ordinance 89-9,

which amended the Sandestin DRI DO. The Ordinance recognized

and incorporated the 1984 Agreement as part of the Sandestin DRI

DO. Additionally, Ordinance 89-9 acknowledged that the 1984

Agreement serves as the benchmark for all future changes to the

Sandestin DRI DO.

Ordinance 89-9 also states that “[t]he terms and conditions of

this Ordinance shall insure [sic] to the benefit of and be binding

upon the heirs, personal representatives, successors and assigns of

Sandestin Corporation.” 2

“In 1998, Sandestin Corporation conveyed its assets and

assigned its rights under the DRI order in turn to Intrawest

Sandestin Company, L.L.C. In March of 2010, Intrawest Sandestin

sold its assets and assigned its rights under the DRI order to

Sandestin Investments, LLC.” Howard v. Murray, 184 So. 3d 1155,

1159 n.5 (Fla. 1st DCA 2015).

In 2012, SDI filed it’s 2011 Annual Report. The County

objected to the report for the following reasons:

The format of the report was contrary to that which had

been submitted in the past. Though the 1984 Agreement,

as approved by Ordinance 89-9, had defined how all land

uses, including open space, would be reported, the

methodology utilized in the 2011 Annual Report did not

meet this requirement.

2 This language comes from the 2014 DONC issued by the

County to SDI.

21

The 2011 Annual Report did not comply with the

requirements of the 1984 Agreement, as approved by

Ordinance 89-9, in that the 1984 Agreement had required

that open space parcels be labeled as stand-alone parcels

and that large tracts of open space be counted towards

preservation, green space and recreational spaces.

However, the Developer’s modified reporting

methodology substantially changed this approach and

included as open space not only stand-alone parcels and

large tracts that had been included under the 1984

Agreement, but small areas drawn from residential and

commercial parcels. It also greatly expanded the extent

of roadways which were considered as open space beyond

what was authorized by the 1984 Agreement.

Additionally, the 2011 report modified the classification

of non-residential uses and treated all such property as

commercial, regardless of the specific uses that the

property had been classified in the past. All these land

use changes were unilaterally made by the Developer

without the approval of the Board . . . .

(emphasis supplied).

At a hearing held on June 6, 2014, the County determined

that SDI was not in compliance with the Sandestin DRI DO.

Additionally, the County found that SDI’s noncompliance created

regional impacts that had not been addressed. This decision was

based in part on a deficiency in open space acreage. Pursuant to

section 380.06, Florida Statutes, the County directed that no

further permits, approvals, or extension of services could be

provided to SDI until the Sandestin DRI was brought back into

compliance with the DO. See § 380.06(17), Fla. Stat. (2014) (“Local

governments shall not issue any permits or approvals or provide

any extensions of services if the developer fails to act in substantial

compliance with the [DRI] development order.”).

On July 8, 2014, the County issued a DONC to SDI. In the

determination, the County found that SDI improperly inflated the

open space acreage by “completely changing the manner that open

space was calculated, including adding inappropriate areas in the

22

calculation and doing so without seeking approval of the Board.”

(emphasis supplied).

The majority opinion in this case outlines the facts from the

2014 DONC all the way to Osborne’s notice of appeal.

II

A

The term “development agreement” is not defined by statute

in Florida; nevertheless, appellate courts have relied on a law

review article to define that term as “a contract between a [local

government] and a property owner/developer, which provides the

developer with vested rights by freezing the existing zoning

regulations applicable to a property in exchange for public

benefits.” Morgran Co. v. Orange County., 818 So. 2d 640, 643 (Fla.

5th DCA 2002) (quoting Brad K. Schwartz, Development

Agreements: Contracting for Vested Rights, 28 B.C. ENV’T AFF. L.

REV. 719 (Summer 2001)); see also Citizens for Responsible Dev.,

Inc. v. City of Dania Beach, 358 So. 3d 1, 10 (Fla. 4th DCA 2023)

(Warner, J., dissenting) (quoting same).

The Florida Local Government Development Agreement Act

supports this view of a development agreement as a regulatory

freeze that provides certainty for local governments and

landowners. Compare § 163.3233(1), Fla. Stat. (“The local

government’s laws and policies governing the development of the

land at the time of the execution of the development agreement

shall govern the development of the land for the duration of the

development agreement.”) with Robert M. Rhodes & Cathy M.

Sellers, Vested Rights: Establishing Predictability in A Changing

Regulatory System, 20 Stetson L. Rev. 475, 509–10 (1991) (“The

most significant benefit of a development agreement for a

developer is the opportunity to freeze application of local land use

regulations at the time the agreement is executed. . . . The freeze

provision supplements, rather than supplants, rights that may

vest under the common law, and a developer entering a

development agreement does not lose the opportunity to challenge

any subsequently adopted changes based on equitable estoppel

and vested rights common law principles. The regulatory freeze

23

reduces development risks, protects the value of a project, and

enables a developer to more accurately assess project costs.”).

Sections 163.3220 and 163.3223 grant “broad authority” for

local governments to enter into development agreements. See

§ 163.3220(3), Fla. Stat. (2017) (“In conformity with, in

furtherance of, and to implement the Community Planning Act

and the Florida State Comprehensive Planning Act of 1972, it is

the intent of the Legislature to encourage a stronger commitment

to comprehensive and capital facilities planning, ensure the

provision of adequate public facilities for development, encourage

the efficient use of resources, and reduce the economic cost of

development.”); § 163.3220(4), Fla. Stat. (2017) (“This intent is

effected by authorizing local governments to enter into

development agreements with developers, subject to the

procedures and requirements of ss. 163.3220-163.3243.”);

§ 163.3223, Fla. Stat. (2017) (“Any local government may, by

ordinance, establish procedures and requirements, as provided in

ss. 163.3220-163.3243, to consider and enter into a development

agreement with any person having a legal or equitable interest in

real property located within its jurisdiction.”); James R. Brindell

et al., Planned Unit Developments: Securing Judicial and

Governmental Approval, in FLA. ENV’T. AND LAND USE L., Vol. II,

Ch. 18 (1994) (“It should be noted that as in some other states the

Florida Legislature has granted broad authority to local

governments to enter into ‘development agreements’ with

developers. F.S. 163.3220 encourages this type of ‘agreement’

which may be indistinguishable from the outlawed contract

zoning.” (emphasis supplied)); see, e.g., Leon Cnty. v. Gluesenkamp,

873 So. 2d 460, 461 (Fla. 1st DCA 2004) (discussing the terms of a

development agreement).

The statutory authority for local governments to enter into

development agreements supplements rather than supplants

other authorities. See § 163.3220(5), Fla. Stat. (“Sections 163.3220-

163.3243 shall be regarded as supplemental and additional to the

powers conferred upon local governments by other laws and shall

not be regarded as in derogation of any powers now existing.”).

In addition to the general public notice requirements that may

apply under section 125.66(4)(b), Florida Statutes, special public

24

notice requirements apply when a local government seeks to enter

into, modify, or revoke a development agreement. See § 163.3225,

Fla. Stat. (2017) (requiring “at least two public hearings,”

advertisement “in a newspaper of general circulation,” and a notice

of intent “mailed to all affected property owners”).

B

“The term ‘development of regional impact,’ . . . means any

development which, because of its character, magnitude, or

location, would have a substantial effect upon the health, safety,

or welfare of citizens of more than one county.” § 380.06(1), Fla.

Stat. (2017).

The statutory process for DRI’s places additional

requirements on developers; it does not supplant other land

regulation measures. See Suwannee River Area Council Boy Scouts

of Am. v. State, Dep't of Cmty. Affs., 384 So. 2d 1369, 1374 (Fla. 1st

DCA 1980) (“Designation of a project as a development of regional

impact operates to impose yet another restraint upon the use and

development of property, in addition to those already imposed by

state and local regulatory measures.” (emphasis supplied)).

Similar to the regulatory freeze of a development agreement,

an approved DRI DO vests a developer with certain development

rights. See Bay Point Club, 890 So. 2d at 258 (“Once a DRI has

been approved, the right to develop pursuant to the terms of the

DRI vests. Vesting means development rights obtained through a

previously approved DRI are not lost by subsequent changes in the

law.” (citation omitted)).

However, vesting does not include rights “greater than those

originally obtained.” See Bay Point Club, 890 So. 2d at 258 (“It does

not, and cannot, create entitlement to greater rights than those

originally obtained. Accordingly, a proposed change jeopardizes

vested rights because, by definition, the change seeks different

development rights than those development rights originally

approved.” (footnote omitted)).

25

III

A

The County erroneously declared in Ordinance 2017-12 that

the 1984 Agreement provided SDI with a vested right to make

future, non-substantial deviations:

The Board finds that the 1984 Agreement vested the

Developer with the right to adjust land uses internally

within the DRI . . . and to shift density and commercial

square footage within the DRI . . . without requiring

review for consistency with the Comprehensive Plan. . . .

The 1984 Agreement authorizes the Developer to

implement Land Use Adjustments, Like Kind Transfers

and Non-Like Kind Transfers, subject only to the singular

requirement that the adjustments will not result in

significant additional regional impact. These are vested

rights that the NOPC implements and do not constitute a

change that is subject to review for consistency with the

Walton County Comprehensive Plan.

(emphases supplied).

By declaring that the 1984 Agreement entitled SDI to make

non-substantial deviations “without requiring review for

consistency with the Comprehensive Plan,” the County misstated

the law. See § 163.3194(1)(a), Fla. Stat. (“After a comprehensive

plan, or element or portion thereof, has been adopted in conformity

with this act, all development undertaken by, and all actions taken

in regard to development orders by, governmental agencies in

regard to land covered by such plan or element shall be consistent

with such plan or element as adopted.” (emphasis supplied)); see

also Imhof v. Walton Cnty., 328 So. 3d 32, 37 (Fla. 1st DCA 2021)

(“All development on land covered by a local government's

comprehensive plan, and all action taken by the government

regarding that development, must comport with the plan.”

(emphasis supplied)).

As to future, non-substantial deviations, the 1984 Agreement

did not pre-empt local land use regulations. See Bay Point Club,

890 So. 2d at 259 (“The language ‘and is otherwise approved’ [in

26

section 380.06(19)(f)6.] clearly and unambiguously requires a

proposed change be subjected to, rather than exempted from,

additional local approval even when no further DRI review is

necessary.”).

By stating that the developer could “adjust the land use . . .

provided there is no significant regional impact,” the 1984

Agreement did not pre-approve future, non-substantial deviations.

See Bay Point Club, 890 So. 2d at 259 (“[A developer] has no vested

right to the significant development changes proposed. Its only

vested development right is in completing development authorized

by the original DRI.”).

In other words, the 1984 Agreement does not provide SDI with

vested development rights as to future, non-substantial deviations.

As this Court clearly stated in Bay Point Club:

The question before us is: Once a DRI has been

approved by the regional planning agency, do all

proposed changes not requiring additional regional

review become vested development rights, exempt from

any local government review and approval? We answer

the question “no,” and affirm the order of the Florida

Land and Water Adjudicatory Commission (FLWAC).

Id. at 257.

Rather, the 1984 Agreement simply states that non-

substantial deviations (i.e. deviations with no regional impact) fall

outside the scope of the Agreement. Hence, local land use

requirements—like those found in the comprehensive plan—still

apply:

[A]n approved DRI creates vested rights to complete any

development that “has been authorized.” See

§ 163.3167(8), Fla. Stat. (2001). Proposed changes that

are not required to undergo a new DRI permitting

process, must be “otherwise approved” and may be

subject to “conditions of approval.” See § 380.06(19)(f)6.,

Fla. Stat. (2001). “All development” and “all actions taken

in regard to development orders” “shall be consistent”

27

with the comprehensive plan. See § 163.3194(1)(a), Fla.

Stat. (2001). Stated more clearly: DRIs previously

authorized may be completed, but changes must obtain

approval, and must comply with the comprehensive plan.

Id. at 259 (emphasis supplied).

In the order granting SDI’s motion for summary judgment,

the trial court repeatedly referred to the non-substantial

deviations requested by SDI’s NOPC as “entitlements.” To the

extent the trial court found that SDI was entitled to make non-

substantial deviations without review for consistency with the

Comprehensive Plan, the court erred. See Id.

Even if SDI’s NOPC only requested non-substantial

deviations that did not trigger a public hearing under section

380.06(19)(f), Florida Statutes, those proposed changes were still

subject to local land use approval. Id.

Furthermore, just as the County’s Comprehensive Plan still

applies to non-substantial deviations to the Sandestin DRI DO, so

too, the notification requirements contained in section 163.3225

also apply—provided the NOPC involves adoption of a new

development agreement or the modification of an existing

development agreement.

B

Throughout the proceedings below, SDI repeatedly misstated

the law by claiming that, when it comes to development

agreements and DRI’s, never the twain shall meet. See RUDYARD

KIPLING, THE BALLAD OF EAST AND WEST lines 1-2 (“Oh, East is

East, and West is West, and never the twain shall meet, Till Earth

and Sky stand presently at God's great Judgment Seat. . . .”).

The following are just a few examples of SDI’s

misrepresentations to the trial court:

• “Section 380.06, Florida Statutes, provides the

statutory scheme under which DRIs are categorized,

evaluated, approved, and amended, including the

28

NOPC procedure. . . . The process outlined in section

380.06 is distinct and materially different than those

processes for entering into ‘development agreements’

found in section 163.3225, Florida Statutes. In fact,

no where in section 380.06, Florida Statutes, is the

term ‘development agreement’ used. Therefore, the

NOPC application and approval cannot be

categorized as a ‘development agreement’ as that

term is used within section 163.3225, Florida

Statutes, and any notice provisions found in section

163.3225 do not apply to the NOPC application

submitted by SDI.” (emphasis supplied).

• “[S]ection [163.3225] deals with development

agreements; and that is a whole separate category in

Florida development agreements or opportunities for

developers to come in and go through a process with

the county and enter into a development agreement

dealing with land. This is a DRI. This is governed

under Chapter 380.” (emphases supplied).

But just as Kipling also wrote that “there is neither East nor

West, Border, nor Breed, nor Birth,” so too there is no legal line of

demarcation that forevermore separates development agreements

from DRI’s. RUDYARD KIPLING, THE BALLAD OF EAST AND WEST

lines 3-4 (“But there is neither East nor West, Border, nor Breed,

nor Birth, When two strong men stand face to face, though they

come from the ends of the earth!”).

The 2017 version of section 380.06 in effect during the

County’s consideration of Revised Ordinance 2017-12 proves this

point, as it contains several provisions that expressly used the

phrase “development agreement.”

Most notably, subsection (8) of section 380.06 was entitled

“Preliminary Development Agreements.” § 380.06(8), Fla. Stat.

(2017) (emphasis supplied). That subsection provided that “[a]

developer may enter into a written preliminary development

agreement with the state land planning agency to allow a developer

to proceed with a limited amount of the total proposed

development, subject to all other governmental approvals and

29

solely at the developer’s own risk, prior to issuance of a final

development order.” § 380.06(8)(a), Fla. Stat. (2017) (emphasis

supplied); see also White v. Metro. Dade Cnty., 563 So. 2d 117, 129

(Fla. 3d DCA 1990) (“Section 380.06(8), Florida Statutes, permits

a developer to obtain a written preliminary development

agreement from the FDCA as a prerequisite to engaging in limited

construction of a project which will ultimately trigger DRI

review.”).

Subsection (8) of section 380.06 also stated that “[f]ailure to

timely file an application and to otherwise diligently proceed in

good faith to obtain a final development order shall constitute a

breach of the preliminary development agreement.”

§ 380.06(8)(a)2., Fla. Stat. (2017) (emphasis supplied).

Additionally, subsection (8) provided that “[t]he preliminary

development agreement may allow development which is . . . .”

§ 380.06(8)(a)5., Fla. Stat. (2017) (emphasis supplied).

Furthermore, it stated that “[a] notice of the preliminary

development agreement shall be recorded by the developer in

accordance with s. 28.222 with the clerk of the circuit court for each

county in which land covered by the terms of the agreement is

located.” § 380.06(8)(a)10., Fla. Stat. (2017) (emphasis supplied).

Finally, subsection (8) outlined a process for “a developer who

no longer wishes to pursue a development of regional impact may

propose to abandon any preliminary development agreement

executed after January 1, 1985.” § 380.06(8)(a)11., Fla. Stat. (2017)

(emphasis supplied). Thus, contrary to SDI’s assertion below,

section 380.06 clearly included the term “development agreement.”

While 2017 version of section 380.06(8), Florida Statutes,

contemplated a development agreement between the state land

planning agency and the developer, section 380.032(3) permits the

State land planning agency to enter into an agreement separate

and distinct from the preliminary development agreement

specifically contemplated by section 380.06(8). See § 380.032(3),

Fla. Stat. (2017) (“The state land planning agency shall have the

power and duty to . . . [e]nter into agreements with any landowner,

developer, or governmental agency as may be necessary to

30

effectuate the provisions and purposes of this act or any rules

promulgated hereunder.” (emphases supplied)).

With its “broad” grant of authority, section 380.032(3) permits

the State land planning agency to enter into development

agreements with entities beyond just the developer. See Compass

Lake Hills Dev. Corp. v. State, Dep’t of Cmty. Affs., Div. of State

Plan., 379 So. 2d 376, 382 (Fla. 1st DCA 1979) (citing § 380.032(3),

Fla. Stat.) (“[W]e see no reason why the expense and effort

required to bring this development into compliance with Chapter

380 cannot be minimized under the broad authority given to the

Department to enter into agreements with any landowner,

developer, or governmental agency as may be necessary to

effectuate the provisions of the act. (emphasis supplied)); see also

Friends of Everglades, Inc. v. Bd. of Cnty. Comm’rs of Monroe

Cnty., 456 So. 2d 904, 906 n.1 (Fla. 1st DCA 1984). (“The

‘agreement’ outlined steps to be taken by the developer, [South

Florida Regional Planning Council], Monroe County and the

Department [of Community Affairs] so that expeditious review of

changes made in the original development order could be had. The

basis of the agreement was that all parties would strive for

development of a plan which would not amount to a substantial

deviation from the original plan for development of [the] Port

Bougainville [DRI]. If such a plan could be devised, a resolution

and proposed amended development order would be prepared and

circulated for review. The county, which was responsible for

properly scheduling and noticing public hearings on the issue,

would then consider and act upon proposals submitted to it. If the

county adopted those proposals, copies of the amended

development order were to be furnished to SFRPC and the

Department for further review. Finally, if the final plan approved

by the county did not differ significantly from draft plans

tentatively approved by those agencies, then they would agree not

to appeal the amended development order to FLWAC. Our

research indicates that such agreements are not new to the DRI

process which has been said to encourage such compromise and

informal settlement of issues.” (emphasis supplied)).

Even though section 380.032(3) does not expressly use the

phrase “development agreement,” that appears to be what the

provision contemplates. Compare § 163.3220(4), Fla. Stat. (2017)

31

(“This intent is effected by authorizing local governments to enter

into development agreements with developers, subject to the

procedures and requirements of ss. 163.3220-163.3243.”) with

§ 380.032(3), Fla. Stat. (2017) (“Enter into agreements with any

landowner, developer, or governmental agency as may be

necessary to effectuate the provisions and purposes of this act or

any rules promulgated hereunder.”).

Indeed, it appears that the 1984 agreement and Ordinance 89-

9 are precisely the type of agreements authorized by section

380.032 and at issue in Compass Lake Hills and Friends of

Everglades – agreements that brought the developer back into

compliance with the requirements of Chapter 380 and the DRI DO.

And unlike section 380.06(8), the version of section 380.032 in

effect today is the same version that was in effect in 2017. See Ch.

72-317, § 1, Laws of Fla. (creating “The Florida Environmental

Land and Water Management Act of 1972”); see also Ch. 72-317,

§ 6, Laws of Fla. (establishing Developments of Regional Impact as

part of “The Florida Environmental Land and Water Management

Act of 1972”); Ch. 77-215, § 1, Laws of Fla. (creating section

380.032(3) as part of “The Florida Environmental Land and Water

Management Act of 1972”).

Thus, contrary to SDI’s misrepresentations of law, state and

local governments can rely on sections 163.3220 and 380.032,

Florida Statutes, to execute development agreements with

developers whose development rights are controlled by a DRI DO.

IV

A

The trial court erroneously concluded that, because he failed

to challenge Ordinance 2017-12, Osborne forfeited his ability to

challenge Revised Ordinance 2017-12:

Failing to avail himself of the opportunity to preserve his

objections to [Ordinance 2017-12], Plaintiff is not entitled

to bring an objection to [Revised Ordinance 2017-12]

approved at the November 7, 2017, BOCC meeting where

32

the revisions did not change the subject or operation of

[Ordinance] 2017-12 in any material way.

At least in part, the trial court relied on that conclusion to

deny Osborne’s cross-motion for summary judgment, stating:

“Because of this Court’s finding the time for appealing [Ordinance]

2017-12 expired on May 26, 2017, Plaintiff’s cross-motion for

summary judgment must fail.”

In his Initial Brief, Osborne argues that “[t]he trial court erred

by holding that the date for challenging [Revised Ordinance 2017-

12] occurred before its coming into existence.” In the Answer Brief,

SDI concedes the trial court’s error but argues that the error “is of

no consequence” because Osborne only challenged the notification

process for—and not the substance of—Revised Ordinance 2017-

12. As to rendition and appealability, however, SDI’s distinction is

one without a difference.

With regard to rendition, the trial court’s order granting SDI’s

motion for summary judgment contains conflicting language

regarding finality. On the one hand, the trial court stated that

Ordinance 2017-12 was “finalized in substance” on April 11, 2017,

suggesting that Ordinance 2017-12 was final prior to the

enactment of Revised Ordinance 2017-12. On the other hand, the

court suggested that Revised Ordinance 2017-12 was a

continuation of Ordinance 2017-12, suggesting that neither

ordinance became final prior to the complaint filed by Osborne

below.

As to the ability of Osborne to challenge Ordinance 2017-12

specifically, the trial court found the following:

• “The right to challenge approval of 2017-12 expired

on May 26, 2017 [which was 45 days after the final

order approving 2017-12 was rendered].”

• “The time for Plaintiff to challenge adoption of 2017-

12 was May 26, 2017.”

• “In the case of 2017-12, the latest an appeal could

have been filed was on May 26, 2017.”

33

This language indicates that the trial court viewed April 11,

2017, as the rendition date for Ordinance 2017-12: “Plaintiff

thereby seeks to raise issues which are time barred due [to]

Plaintiff’s failure to timely raise them as required by law upon

rendition of the ordinance by the BOCC on April 11, 2017.”

Because Osborne failed to file a challenge within 45 days of

the date of rendition, the trial court determined that Osborne “is

barred from challenging” the approval of Ordinance 2017-12: “The

time for Plaintiff to challenge adoption of [Ordinance] 2017-12 was

May 26, 2017. By failing to file an appeal to FLAWAC within that

time, or with the circuit court within 30 days of approval, Plaintiff

is barred from challenging its approval.” See § 380.07(2), Fla. Stat.

(“Within 45 days after [a DRI development] order is rendered, the

owner, the developer, or the state land planning agency may

appeal the order to the Florida Land and Water Adjudicatory

Commission by filing a petition alleging that the development

order is not consistent with the provisions of this part.”).

According to this line of reasoning, Ordinance 2017-12 was

final and unchallengeable well before the enactment of Revised

Ordinance 2017-12.

Of note, however, the trial court acknowledged Osborne’s

argument that SOA’s petition for administrative review tolled

rendition of Ordinance 2017-12 and therefore tolled the time to

challenge that ordinance: “Plaintiff’s motion essentially argues

that the implementation of 2017-12 which was finalized on April

11, 2017 did not become ‘final’ as a result of the appeals filed by

Intervener which suspended the effective date of the ordinance.”

See § 380.07(4), Fla. Stat. (“The filing of the notice of appeal stays

the effectiveness of the order until after the completion of the

appeal process.”).

Additionally, the court acknowledged that SOA’s petition

enjoyed some effect on Ordinance 2017-12, stating: “By operation

of § 380.07 (4) Fla. Stat., the implementation of 2017-12 was stayed

pending the outcome of the appeals.”

34

Nevertheless, the trial court found that SOA’s petition for

administrative review did not toll the time to challenge Ordinance

2017-12: “nor does this Court find that under the facts of this case

that the November 7, 2017, hearing extended the time to file an

appeal of 2017-12 as it was finalized in substance on April 11,

2017.”

Rejecting the argument that SOA’s petition for administrative

review tolled rendition of Ordinance 2017-12, the court found that

Osborne lost his ability to challenge that ordinance, stating: “In

this case, even if the revisions to Co. Ord. 2017-12 had not been

adopted as requested, what would remain is the version of 2017-

12 approved by the BOCC on March 13, 2017 for which no appeal

remains.” (emphasis supplied).

In reaching this conclusion, the trial court did not address

whether, without the enactment of Revised Ordinance 2017-12,

the time for challenging Ordinance 2017-12 would have started

anew when SOA withdrew its petition for administrative review.

Cf. Rice v. 1989 Ford Bronco; Fla. Tag: HNM 33P; VIN:

1FMCU12T6KUC74759, 609 So. 2d 639, 639 (Fla. 2d DCA 1992)

(holding that a timely and authorized motion for rehearing which

was withdrawn on the day the appellant filed a notice of appeal

nonetheless tolled rendition until it was withdrawn); cf. also

Simpson v. Simpson, 780 So. 2d 985 (Fla. 5th DCA 2001) (holding

that the time for filing an appeal begins to run anew from the date

a party withdraws a timely and authorized motion for rehearing

that suspended rendition).

At first glance, the rendition date for Ordinance 2017-12

might appear irrelevant for the purposes of this appeal. However,

the trial court found that, because he failed to timely challenge the

enactment of Ordinance 2017-12, Osborne lost his ability to

challenge the enactment of Revised Ordinance 2017-12.

It appears that the court reached that conclusion based on a

belief that Revised Ordinance 2017-12 was nothing more than a

continuation of Ordinance 2017-12: “The BOCC’s consideration of

revisions to 2017-12 on November 7, 2017 to conform its language

to the provisions of the SOA/SDI Settlement Agreement did not

create a ‘new version’ of the ordinance with was substantially or

35

materially different so as to require a new round of notices be

provided.”

But instead of concluding that the continuation extended the

time to challenge Ordinance 2017-12, the court found that the time

for challenging Revised Ordinance 2017-12 expired when the time

for challenging Ordinance 2017-12 expired – even though,

according to the court, the time for challenging Ordinance 2017-12

expired before the enactment of Revised Ordinance 2017-12.

Under the facts of this case, however, the trial court cannot

have it both ways. By identifying April 11, 2017, as the rendition

date for Ordinance 2017-12, and by concluding that Ordinance

2017-12 was “finalized in substance” prior to enactment of Revised

Ordinance 2017-12, the trial court strongly suggested that

Ordinance 2017-12 and Revised Ordinance 2017-12 involved

separate enactments with separate opportunities for Osborne to

raise a challenge (setting aside the question whether SOA’s

petition tolled the time to raise a challenge).

In other words, if Osborne could not challenge Ordinance

2017-12 because that ordinance was final and complete well before

the November 7, 2017, public meeting, then Revised Ordinance

2017-12 would appear to be a separate ordinance that triggered a

new opportunity for Osborne to file a challenge.

However, by characterizing Revised Ordinance 2017-12 as a

continuation of Ordinance 2017-12, the trial court suggested that

the two ordinances involved a single enactment process with a

single opportunity to raise a challenge, an opportunity that never

expired under the facts of this case. Either way, Osborne never lost

his ability to challenge Revised Ordinance 2017-12.

Put another way, if Revised Ordinance 2017-12 was a

continuation of the Ordinance 2017-12 enactment process, and/or

if SOA’s notice of appeal tolled rendition of Ordinance 2017-12,

then it does not appear that Osborne ever lost his ability to

challenge the culmination of that process: the County’s adoption of

Revised Ordinance 2017-12.

B

36

In its order granting summary judgment, the trial court

erroneously stated that an administrative appeal under section

380.07(2), Florida Statutes, provides the exclusive means to

challenge a DRI: “[Section 380.07(2), Florida Statutes] establishes

the exclusive means to challenge DRI’s and any such challenge

must be brought within forty-five (45) days of rendition of the

local action.”

The trial court recognized the statutory authority for filing a

“comp plan challenge” under section 163.3215, Florida Statutes.

However, SDI argued below that “the sole method, for appealing

any decision by the county dealing with DRI’s, are found in [section

380.07].” (emphasis supplied). The trial court appeared to agree

with SDI, at least in part, by separating a “comp plan challenge”

from any other legal challenge involving a DRI.

But during the hearing on a motion for protective order, the

trial court stated that “the only way to bring an appeal is through

FLWAC is [Chapter] 380.” And during the hearing on the motions

for summary judgment, the trial court stated that “Chapter 380 is

the exclusive means dealing with development of regional impact

or DRI as opposed to, you know, local that wasn’t part of the DRI.”

(emphasis supplied).

To the extent the trial court determined that an

administrative appeal under section 380.07(2) provides the

“exclusive” means for Osborne to challenge the process by which

the County amended the Sandestin DRI DO, the trial court erred.

See Suwannee River Area Council Boy Scouts of Am., 384 So. 2d at

1374; see also Friends of Everglades, 456 So. 2d at 908.

In its order, the trial court also did not acknowledge that the

Sanedestin DRI DO is a local government development order just

like any other. See Edgewater Beach Owners Ass’n, Inc. v. Walton

Cnty., 833 So. 2d 215, 221 (Fla. 1st DCA 2002) (“A DRI

development order is a ‘final local development order,’ just as a

building permit or zoning decision is.”).

Additionally, the trial court did not acknowledge the type of

action authorized by section 380.07(2)—an administrative

37

challenge to a local government’s decision that denies DRI

development approval or fails to adequately address regional

impacts. See Friends of Everglades, Inc., 456 So. 2d at 911

(“Chapter 380 provides for notice and hearing at the local level and

then provides for [administrative] review by the FLWAC if the

developer or property owner believes local authorities have acted

improvidently in denying an application for development approval,

or if the regional or state planning agencies believe that the

public’s interests will not be served by the local government’s

approval of a plan for development.”).

As the 1984 Agreement in this case illustrates, the local

government’s decision often involves a determination whether a

requested deviation to an existing DRI DO qualifies as substantial

(regional impacts) or non-substantial (no regional impacts). See §

380.06(19), Fla. Stat.; see also Bay Point Club, 890 So. 2d at 258.

That is a specific determination, with a specific

administrative review mechanism under section 380.07(2), Florida

Statutes. See Londono v. City of Alachua, 438 So. 2d 91, 93 (Fla.

1st DCA 1983) (“Appellants therefore have no statutory standing

to complain to the Commission that Alachua’s development order

insufficiently protects regional interests; that function is reserved,

as [Caloosa Prop. Owners Ass'n, Inc. v. Palm Beach Cnty. Bd. of

Cnty. Comm'rs, 429 So. 2d 1260, 1264 (Fla. 1st DCA 1983)] holds,

to the designated governmental bodies whose responsibility it is to

protect those regional issues.”).

Here, Osborne does not challenge that determination. Rather,

he challenges the notification procedures followed by the County

prior to that determination.

Section 380.07(2) does not preclude an adjoining landowner

from challenging “a zoning decision that forms a part of or that is

related to a development order.” Caloosa Prop. Owners Ass'n, 429

So. 2d at 1264–65.

Nor does the availability of an administrative remedy under

section 380.07(2), Florida Statutes, preclude an individual from

raising a circuit court challenge to the process by which a local

government amends a DRI DO. See Friends of Everglades, Inc.,

38

456 So. 2d at 909 (finding that parties “would have, at the very

minimum, standing in circuit court to challenge procedural

irregularities in zoning decisions” relating to a DRI).

Therefore, Osborne’s failure to join SOA’s petition for

administrative review (to the extent he could do so) did not

preclude Osborne from challenging, in circuit court, the process by

which the County enacted Revised Ordinance 2017-12.

Finally, the trial court did not acknowledge that section

380.07(2) only authorizes a limited class of challengers. See §

380.07(2), Fla. Stat. (2017) (limiting the class of challengers to “the

owner, the developer, or the state land planning agency”); see also

Grand Dunes, Ltd. v. Walton Cnty., 714 So. 2d 473, 474 (Fla. 1st

DCA 1998) (“[I]n clear terms, section 380.07(2) permits only ‘the

owner, the developer, or the state land planning agency’ to appeal

a DRI development order to FLWAC.”).

Under this Court’s precedent, that class of challengers can

include a homeowners’ association. See Edgewater Beach Owners

Ass’n, Inc., 645 So. 2d at 543 (finding that a homeowners’

association “is an ‘owner’ under the terms of Section 380.07(2), and

therefore has standing to appeal the amended development order

rendered by the Board of County Commissioners”).

However, that class of challengers does not include an

individual like Osborne who owns a home in a previously

developed portion of a DRI. See Caloosa Prop. Owners Ass'n., 429

So. 2d at 1264 (“The legislature, in enacting this statute, did not

refer to ‘an owner’ or to ‘any property affected by such order.’

Rather, the legislature referred to the property that is the subject

of the Chapter 380 review and to the owner of that property.”); see

also Londono, 438 So. 2d at 93 (“These appellants, owning lots

within the designated DRI but not proposed thereby for

development, are in the same position as was the Caloosa

association of property owners adjoining the proposed DRI.”).

Osborne specifically argued this point below, stating: “the only

parties who may pursue the appeal [to FLWAC] are the owners of

the property on which the DRI is located, the developer, the

regional planning council, and the local land planning agency.”

39

Nevertheless, the trial court erroneously concluded that, by

“failing to file and preserve the objection to the ordinance,”

Osborne lost his ability to challenge the enactment process.

V

A

Is the 1984 Agreement a Development Agreement?

In the 2014 DONC, the County stated that the 1984

Agreement “resolved the Department’s threatened appeal of

Walton County’s determination that the proposed Master Plan did

not constitute a substantial deviation.” Despite the County’s

admission, the trial court did not address whether the 1984

Agreement is a development agreement under section 380.032,

Florida Statutes.

Because it resolved a dispute between a developer and the

state land planning agency as to whether proposed deviations to

the Sandestin DRI DO were substantial or non-substantial, the

1984 Agreement may qualify as a development agreement. See

generally Compass Lake Hills, 379 So. 2d at 382 (citing §

380.032(3), Fla. Stat.). On remand, the trial court should answer

that question.

B

Is Ordinance 89-9 a Development Agreement?

In the DONC, the County admitted that Ordinance 89-9

approved the 1984 Agreement. Despite the County’s admission,

the trial court did not address whether, upon adoption of

Ordinance 89-9, the County became a party to a development

agreement (i.e., the 1984 Agreement). See Friends of Everglades,

Inc., 456 So. 2d at 906 n.1. On remand, the trial court should

answer that question.

40

C

Is the DRI DO is a Development Agreement?

In the DONC, the County admitted that Ordinance 89-9

incorporated the 1984 Agreement into the Sandestin DRI DO;

additionally, the County described as meritless SDI’s argument

that the 1984 Agreement does not serve as the benchmark for all

future changes to the Sanestin DRI DO.

Despite the County’s admission, the trial court did not address

whether, by incorporating the 1984 Agreement, the Sandestin DRI

DO itself became a development agreement. On remand, the trial

court should answer that question.

D

Did Ordinance 2017-12 Modify

an Existing Development Agreement?

In Ordinance 2017-12, the County admitted that SDI

submitted the NOPC to “amend the Sandestin Development of

Regional Impact (‘DRI’) Development Order.” Additionally, the

trial court found that the “NOPC sought changes to the

benchmarks and definitions as provided for in the Sandestin [DRI

DO].” (emphasis supplied). The trial court also found that

Ordinance 2017-12 “adopted certain, requested changes to the

Sandestin DRI Development Order.” Furthermore, the County

admitted in Ordinance 2017-12 that the ordinance is an “Amended

Development Order.”

Despite all of that, the trial court never addressed whether

Ordinance 2017-12 modified an existing development agreement

(i.e., the 1984 Agreement, Ordinance 89-9, and/or the Sandestin

DRI DO). On remand, the trial court should answer that question.

E

Is Ordinance 2017-12 a New Development Agreement?

In Ordinance 2017-12, the County admitted that approval of

SDI’s NOPC terminated the County’s enforcement action. Despite

the County’s admission, the trial court did not address whether

41

Ordinance 2017-12 qualifies as a new development agreement

between SDI and the County.

As part of its monitoring responsibility, the County reviewed

the annual reports submitted by SDI and concluded that the

Sandestin DRI was not in compliance with the open space

requirements contained in the 1984 Agreement. The County

issued the DONC to SDI; and in response, SDI submitted the

NOPC.

An important point not addressed by the trial court, SDI did

not request a change to the definition of “open space” prior to the

DONC. In other words, SDI did not pursue a prospective change

that opened the door for future development; rather, SDI sought a

retrospective change that closed the door to an ongoing

enforcement action. In other words, SDI did not seek a legislative

change independent of the County’s quasi-judicial, enforcement

action.

Consequently, Ordinance 2017-12 does not represent the

culmination of the typical give-and-take process whereby a

developer successfully obtains modification of a development

order. See generally Pres. Palm Beach Pol. Action Comm. v. Town

of Palm Beach, 50 So. 3d 1176, 1179 (Fla. 4th DCA 2010)

(recognizing that “an order, by definition, is often unilateral and

non-negotiable,” but that “development orders are often the

product of negotiations between a developer and a municipality”).

In this case, the County was acting in an enforcement or

quasi-judicial capacity when it issued the DONC and considered

the NOPC. See Lee Cnty. v. Sunbelt Equities, II, LTD., 619 So. 2d

996, 1000 (Fla. 2d DCA 1993) (“Placed in the zoning/code

enforcement context, the court or agency asks: ‘Has the party done

something in violation of the law?’ or ‘Will the law allow the party

to do what it wants?’ By contrast, legislation changes the existing

law. Arguably, it is immaterial whether such change stems from

the fiat of the governing body (e.g. a comprehensive rezoning) or

from an individual request to ‘change the law for me’ (the

Snyder/Sunbelt rezonings).”); see also Hirt v. Polk Cnty. Bd. of

Cnty. Comm’rs, 578 So. 2d 415, 417 (Fla. 2d DCA 1991) (“Whether

a board’s zoning decision is considered legislative or quasi-judicial

42

appears to turn on whether the local governmental body is

enacting an ordinance, in which case it is acting legislatively, or

enforcing it, in which case it may be acting quasi-judicially.”).

By approving the NOPC and withdrawing the DONC, the

County resolved a dispute regarding the “appropriate” definition

of “open space” for the Sandestin DRI DO. The resolution of that

dispute—in the form of Ordinance 2017-12—may qualify as a new

development agreement between SDI and the County. On remand,

the trial court should answer that question. Cf. Compass Lake

Hills, 379 So. 2d at 382 (citing § 380.032(3), Fla. Stat.) (recognizing

a development agreement as a means to bring a developer back

into compliance with applicable land use regulations).

F

Did Revised Ordinance 2017-12

Modify an Existing Development Agreement?

If the 1984 agreement, Ordinance 89-9, or the Sandestin DRI

DO qualify as a development agreement, then, for all the same

reasons that Ordinance 2017-12 modified an existing development

agreement, so too Revised Ordinance 2017-12 modified one.

Additionally, if Ordinance 2017-12 qualifies as a new

development agreement (because it resolved a quasi-judicial,

enforcement action involving development rights), then Revised

Ordinance 2017-12 may have modified another development

agreement, to wit: Ordinance 2017-12.

If either is so, then the County’s consideration of Revised

Ordinance 2017-12 may have triggered the special public notice

requirements that apply when a local government seeks to modify

an existing development agreement. On remand, the trial court

should answer that question.

G

Is Revised Ordinance 2017-12

a New Development Agreement?

SDI and the County admitted that Revised Ordinance 2017-

12 resolved a legal dispute involving development rights under the

43

Sandestin DRI; and, the trial court expressly found so. Despite all

of that, the trial court never addressed whether Revised Ordinance

2017-12 qualifies as a new development agreement.

In its answer to Osborne’s complaint, SDI admitted that

“[d]uring the fall [of] 2017, the SOA and SDI entered [into] a

settlement agreement concerning SDI’s NOPC and the

development rights related to the Sandestin DRI.” (emphasis

supplied). Additionally, SDI admitted that it “sought for the

County to approve the terms of the settlement agreement that

related to SDI’s development rights related to the Sandestin DRI

via revision to Walton County Ordinance 2017-12.” (emphasis

supplied).

During the hearing on the motion for summary judgment, SDI

characterized the settlement agreement between SOA and SDI as

a “very comprehensive settlement agreement concerning all the

issues in the NOPC . . . . [that came] to the county to get them to

approve [it].” (emphasis supplied).

Likewise, the Indemnity Agreement identified the purpose of

the November 7, 2017, public meeting as follows: “WHEREAS, at

a regularly scheduled County Commission meeting on October 10,

2017, the Board of County Commissioners scheduled a hearing for

November 7, 2017 in which to consider settlement of the Lawsuits

by adopting the Replacement Ordinance.” (emphasis supplied).

The County’s public meeting notices provide further proof, as

they state: “The purpose of the hearing is to consider settlement of

the pending lawsuit styled Sandestin Owners Association, Inc. v.

Walton County/Intervenor Sandestin Investments, LLC, Case

#2017CA225, Circuit Court of Walton County, Florida, by adopting

an Amendment to Walton County Ordinance 2017-12.”

Additionally, Revised Ordinance 2017-12 itself states that “in

order to effectuate a settlement of the FLAWAC Appeal and the

SOA Comp Plan Case, Developer has requested that the Board

adopt certain revisions to Ordinance 2017-12.” (emphasis

supplied).

44

Finally, the trial court found that the County conducted a

public hearing “on November 7, 2017, for the purpose of discussing

the proposed settlement [of SOA’s challenge to Ordinance 2017-12]

and for ratifying the settlement agreement reached between SOA

and SDI (and the County).” (emphasis supplied). The trial court

even found that the settlement agreement between SOA and SDI

concerned “SDI’s NOPC and the development rights related to the

Sandestin DRI.” (emphasis supplied).

SDI’s admissions, the County’s public notices, the language of

the ordinance itself, and the trial court’s findings illustrate why

Revised Ordinance may qualify as a new development agreement:

(1) the ordinance adopted a settlement agreement that resolved a

legal dispute involving development rights; and, (2) the ordinance

brought a developer back into compliance with a development

order. See generally Chung v. Sarasota Cnty., 686 So. 2d 1358,

1360 (Fla. 2d DCA 1996) (“[W]e can envision developers filing an

unacceptable plan for rezoning, appealing its denial, and then

obtaining approval of a modified plan by settlement agreement

before satisfying the public notice and hearing requirements.”

(emphasis supplied)).

If it does, then the County’s consideration of Revised

Ordinance 2017-12 may have triggered the special public notice

requirements that apply when a local government enters into a

new development agreement. On remand, the trial court should

answer that question.

_____________________________

Marie A. Mattox and Ashley N. Richardson of Marie A. Mattox,

P.A., Tallahassee, for Appellant.

William G. Pafford of Coppins Monroe, P.A., Tallahassee, for

Appellee Walton County, Florida; Dana C. Matthews and C.

Stephen Tatum of Matthews & Jones, LLP, Destin, for Appellee

Sandestin Investments, LLC.

45