First District Court of Appeal hears appeal in The Roost case
Nearly a year after Duval County Circuit Court Judge Kevin Blazs rendered a decision to accept a motion to dismiss an appeal regarding a restaurant proposed in Riverside, the appeal was heard Dec. 14 in Tallahassee by the First District Court of Appeal.
The arguments were heard by Judge Timothy D. Osterhaus, Judge Scott Makar and Judge Thomas D. Winokur. Bryan S. Gowdy of Creed and Gowdy, P.A., represented Kevin Pettway, Jennifer Wolfe, and Nancy Murray-Settle, plaintiffs. Craig D. Feiser and Jason Teal, of the Office of General Counsel, represented the City of Jacksonville, while Paul M. Harden and Zachary Watson Miller argued for SDS Restaurant Group, the company owned by Ted Stein and J.C. Demetree.
Stein and Demetree are proposing to open a 150-seat restaurant and bar at 2224-2242 Oak St., the site of the former Deluxe dry cleaner and laundromat. The neighborhood group Positive Riverside Optimized Urban Development (PROUD) oppose the restaurant on the basis of incompatibility with the Riverside neighborhood.
Most of the arguments during the 45-minute hearing centered on the definitions of “filing” and “rendition,” terms used to note when the 30-day window begins under which to file an appeal. The plaintiffs argue the clock began on June 20, 2016, the postmark of the notice of City Council’s May 24, 2016 approval, while the respondents believe the window began on the date of the approval of the ordinance.
During the arguments, Feiser said the City was aligning itself with the plaintiffs on the issue of when the countdown began for the appeal process.
“Jacksonville City Council Rule 6.310 governs this issues and the Circuit Court gave short shrift to that rule and said it cannot govern this issue, but it actually does,” said Feiser. “It does not conflict with what the appellate rules consider to be rendition.”
Feiser said the first “element of rendition” is the written order, which goes to the Jacksonville City Council for approval. The second element is the council president and council secretary have to sign the order, and the third element of rendition is that it has to be filed.
“Filing happens when it goes out in certified mail to interested property owners who live within 350 feet of the affected zoning decision,” said Feiser. “That, our contention is, is the point when it is rendered and the appellate clock starts to run.”
Feiser said the City had chosen that its own ordinances are not final until they are mailed out to those who would be affected by the ordinances in the event they want to appeal.
“We’re trying to afford the proper due process to those who are affected. A postmark is certain; there is not a date certainty to know when things are posted online and when the clock started running,” he said. “The City could have picked any other point in time…but the City chose the best possible date for due process and to give those notice the appellate period has started.”
Harden said he did not agree that mailing is the customary method of rendition.
“The ordinance says it is effective when it is signed by the council secretary and the council President. That date, in this case, is May 24,” said Harden.
Even if the plaintiffs win, they may have to return to Tallahassee for the hearing of a second motion filed by the respondents, who cited a “lack of standing,” that is, the plaintiffs would not suffer adverse effects from the restaurant any different from the rest of the neighborhood.
By Kate A. Hallock
Resident Community News
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