Riverstone Wins Appeal — But Court Says Other Legal Challenges May Remain

By Mike Lednovich/Editor

FERNANDINA BEACH — A state appeals court Friday rejected a legal challenge to the controversial settlement that could allow high-rise condominium development on 51 pristine oceanfront acres at the southern tip of Amelia Island, handing Nassau County and Riverstone Properties another victory in the long-running development battle.

But in a lengthy 12-page opinion, the Fifth District Court of Appeal also said that Bert Harris Act settlement agreements such as the one between Nassau County and Riverstone are not necessarily insulated from judicial review — potentially leaving the door open to other types of legal challenges.

"We certainly need to confer with counsel to determine a menu of possible next steps. If there are good alternatives, they will need to be presented to the broad community that has consistently opposed the Riverstone towers," wrote Corky Hoffman of the property owners association in response to the ruling.

The three-judge appellate panel unanimously affirmed Circuit Court Judge Marianne Aho's ruling against the Amelia Island Sanctuary Property Owners Association, which had argued that the settlement between the county and Riverstone constituted a "development order" that violated the Nassau County 2030 Comprehensive Plan.

"The trial court was correct," Judge Scott Makar wrote for the court. "The settlement agreement does not constitute a 'development order.'"

The ruling represents the latest development in a years-long legal fight over Riverstone's plans for the 51-acre tract between Amelia Island State Park and The Sanctuary residential community.

"Amelia Tree Conservancy joined the Riverstone lawsuit to help protect the community’s interests. We believe the property owner should be fairly compensated for the value of the land and that the land should be preserved rather than developed. ATC is grateful to the many donors whose support made this effort possible," said ATC President Lyn Pannone.

Riverstone previously proposed developing 85-foot-tall condominium buildings on the property. After Nassau County reduced the allowable building height from 85 feet to 45 feet, Riverstone filed a claim under Florida's Bert J. Harris Jr. Private Property Rights Protection Act, arguing that the county's action placed an "inordinate burden" on its property rights.

The county and Riverstone eventually reached a settlement that restored the potential for greater building heights while providing other concessions, including increased buffers and beach access.

The Sanctuary homeowners association sued, contending that the settlement was effectively a development order and therefore had to be consistent with the county's comprehensive plan.

The appeals court rejected that argument.

The court emphasized that the settlement itself does not authorize construction of a specific development and that Riverstone has not yet submitted development applications for the property.

"The settlement agreement does not permit any development whatsoever at this time; in fact, development of the property may never occur," Makar wrote.

The court quoted Nassau County's attorney at oral arguments as saying the property remains in its natural state and that the county is unaware of any current plans to develop it.

"The County is aware that there has been interest by preservation groups, both public and private, to keep the land exactly as it is," the county told the appellate court.

The court said Riverstone could eventually pursue development by filing permit applications that would then undergo county review under the terms of the settlement. Riverstone could also sell the property to a public or private entity seeking to preserve it.

"Other scenarios are possible, but the point is that the settlement agreement itself does not fit within the meaning of a 'development order,'" Makar wrote.

The ruling, however, goes significantly beyond simply rejecting the Sanctuary association's lawsuit.

The court said the association chose the wrong legal theory when it challenged the settlement exclusively as a development order under Chapter 163 of Florida law.

"The Association, for unknown reasons, chose not to pursue this available remedy in this case," Makar wrote, referring to the possibility of directly challenging a Bert Harris settlement through an action seeking declaratory or injunctive relief.

The court devoted much of its opinion to whether settlements under the Bert Harris Act can be reviewed by courts to determine whether they protect the public interest.

"One view is that the settlement agreements under this subsection are self-effectuating and insulated from any circuit court review," Makar wrote. "Another view, and the more reasonable, is that judicial review of the terms of a settlement agreement under section 70.001(4)(d)1. is permissible, not mandatory."

The court said it would make little sense for the Florida Legislature to shield settlement agreements that modify local regulations or ordinances from any judicial review, particularly when such agreements could potentially endanger the public interest.

"What would stand in the way of settlement agreements whose provisions disserve the public interest and are directly contrary to the Act's goals?" Makar wrote.

The court also stressed the importance of public participation in land-use decisions, quoting previous Florida case law that described a comprehensive plan as similar to a "constitution for all future development within the governmental boundary."

The court said "robust public participation" is necessary when courts consider whether Bert Harris settlements adequately protect the public interest.

Still, the appellate judges made clear that those broader questions were not properly before them in the Sanctuary association's appeal.

"In summary, affirmance is warranted because the sole theory the Association has asserted is that the settlement agreement is a 'development order' reviewable under Chapter 163, which it is not," Makar wrote. "Other available avenues of relief have not been asserted in this case, thereby requiring affirmance."

Judge Adrian G. Soud Lambert concurred with the majority. Judge John MacIver also concurred but wrote separately to caution against reading the decision as an invitation for courts to routinely substitute their judgment for that of elected local governments on questions of public policy.

MacIver agreed that judicial review of some Bert Harris settlements may be permissible, but said the statutory presumption that such settlements protect the public interest creates a high bar for challengers.

"I worry that future litigants will read the majority's recognition that judicial review is available as an invitation to shift the determination of which policies are or are not within the public interest from local governments to the courts," MacIver wrote.

He added that "in most cases separation of powers concerns" would likely limit judicial intervention.

The ruling comes after the Sanctuary association was previously ordered to pay approximately $291,000 in attorney fees to Riverstone and Nassau County stemming from the litigation.

Friday's opinion is not final until the disposition of any timely and authorized motion for rehearing or other review under Florida appellate rules.