Judge approves Roost’s motion to dismiss appeal

Despite vocal neighborhood opposition, a judge has ruled in favor of The Roost, allowing for the 150-seat restaurant to be built in the Riverside neighborhood of Oak Street, where a dry cleaner and laundromat used to operate.

Five months after an appeal was filed by Positive Riverside Optimized Urban Development (PROUD), the neighborhood group protesting Jacksonville City Council’s approval of The Roost, Duval County Circuit Court Judge Kevin Blazs rendered a decision Dec. 22, 2016 to accept a motion to dismiss based on jurisdiction.

Two motions to dismiss had been filed in early August by Paul Harden, another attorney for The Roost.

Harden’s first motion to dismiss, filed Aug. 11, 2016, was for lack of jurisdiction, meaning the Jacksonville legislature – that is, City Council – cannot arbitrarily change the date of rendition of an order (in this case, Bill 2016-55). The motion was heard on Sept. 7, 2016, and the judge’s ruling blocks the court from hearing the substantive issues of the City Council’s decision to approve the 150-seat restaurant.

The motion stated the 30-day countdown to file the appeal began on May 24, 2016 when the bill was enacted, not on the June 20 postmark when the notice of City Council’s approval was mailed to all residents within 350 feet of the site, located at 2224-2242 Oak St.

PROUD’s appeal to the Circuit Court was filed July 25, 2016 by attorney Barry Bobek on behalf of Kevin Pettway, Jennifer Wolfe, Nancy Murrey-Settle and Fred Pope 60 days after City Council enacted the ordinance.

The appellants claim a clerical error between the Office of the General Counsel and Legislative Services, which delayed a certified mailing of the notice, effectively re-set the filing deadline for the appeal, thus giving PROUD nearly another month to prepare its petition for Writ of Certiorari or, “order for judicial review.”

The certified notice regarding the approval of Bill 2016-55 included the statement “Please note that June 20, 2016, shall be the date of rendition.”

“This is relevant because our petition for appeal was entered according to a deadline fixed in place by the date of rendition, and we were given the wrong date by the Secretary of the Council, the City Council Rules, and the city’s Office of General Counsel,” said Pettway in an email to The Resident.

“The ruling established that City Council does not have the right to determine dates of rendition for the decisions they themselves make, and that no avenue of recourse exists for a damaged party who takes the City at its word,” said Pettway, one of four appellants in the petition against the City of Jacksonville.

“Put another way, if the City gives you false information regarding their own dates of rendition, it is your fault for believing them,” said Pettway.

The City’s position, according to Deputy General Counsel Jason Teal, is City Council can determine its own date of rendition for its own opinion, but all such decisions are subject to judicial challenge. “There are courts that review City decisions all the time to determine their validity,” he said. “The City’s position is the Legislative branch – that is, City Council – can control when dates of rendition are decided.”

The Legislative Services Division is governed by the Rules of the City Council. Rule 6.310 states that “the Legislative Aide shall send, by certified mail, a copy of the order to the applicant and the affected parties. The date of rendition of the order shall be the date of the mailing by the Legislative Aide.”

Teal explained the circuit court judge hearing the case found that appellate rules state the “date of rendition” is the date the order – the enacted ordinance – is given to the clerk.

“The Florida Rules of Appellate Procedure are not consistent with the Rules of the City Council,” he said, “and the judge decided the appellate rules trump local rules.” Teal noted that up until Judge Blazs’ decision, the City had no indication the Rules of the City Council may be incorrect.

“The City Council Rules determining when the rendition of zoning decisions would take place were drafted for the protection of adversely affected persons who may not have been in attendance at the City Council meeting when the zoning decision was made, and thus may not become aware of the decision until more than 30 days afterward,” said Teal. 

“In a typical court case that starts at the Circuit Court level which may be appealed to the District Court, all the parties are in attendance at the Circuit Court and know about the decision,” he explained. “However, with a local government zoning decision, because both local and state law allow a zoning decision of the City to be appealed by ‘any adversely affected party,’ the City drafted its Rules to require the notice of the decision to be sent to property owners within 350 feet of the rezoned property as well as registered neighborhood organizations, so that anyone who might be ‘adversely affected’ would be aware of the City’s rezoning decision and determine if they wanted to pursue and appeal of that decision to Circuit Court.”

Harden’s second motion to dismiss, also filed Aug. 11, 2016, was for lack of standing; that is, the appellants (PROUD) would not suffer adverse effects from the proposed restaurant to a different degree from or in a different manner than the rest of the community. This motion was denied because the judge didn’t need to consider it, having already granted a dismissal for the timeliness issue, according to Teal.

PROUD has requested a re-hearing before Judge Blazs. If he does not change his Dec. 22, 2016 decision regarding the lack of jurisdiction, they will appeal his ruling to the First District Court of Appeals in Tallahassee. “Our chances are not excellent, but some chance is better than none,” said Pettway.

“Even if we lose in court, we will have demonstrated that our neighborhood will not be invaded without a cost, and that our community will never back down,” he said.

While there is no indication yet as to when SDS Restaurant Group, the company owned by Ted Stein and J.C. Demetree, will begin to renovate the space on Oak Street, Stein did provide a statement.

“We are excited to move forward to serve great food to the neighborhood,” he said in an email to The Resident. “We feel confident that we will begin the process soon under the guidelines that our city leaders approved. We want to thank the neighborhood for their continuing enthusiastic support, we look forward to building a restaurant that will make Riverside proud.”

By Kate A. Hallock
Resident Community News

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