Judge tosses Sand Mine Exception because Levy County Commissioners violated their own rules 2024-09-18 | WWALS Watershed Coalition (WWALS) is Suwannee RIVERKEEPER®

A judge today quashed the Special Exception the Levy County BOCC approved for the 3RT Sand Mine.

Craig C. DeThomasis, Florida Eight Judicial Circuit Court Judge, ruled that the county failed several ways to provide notices required by law for hearings and appeal requirements, and failed to do at least two kinds of required studies: traffic and wildlife.

Florida Judge Quashes 2024-09-18 Levy County 3RT Sand Mine: Lack of Public Notices & Lack of required studies

This does not mean it’s all over. It does mean the applicant has to start the whole process over, and this time the county has to follow state law and its own procedures. Meanwhile, the opposition is still organized and ready.

The judge did not consider that the mine is in the springshed of Rainbow Springs nor that SWFWMD in issuing an ERP did not consider its own Rainbow Springs BMAP.

The judge noted:

10. In considering a petition for writ of certiorari, “a court has only two options—it may either deny the petition or grant it and quash the order at which the petition is directed. The court may not enter any judgment on the merits of the underlying controversy or direct the lower tribunal to enter any particular order.”…
11. In certiorari the reviewing court will not undertake to re-weigh or evaluate the evidence presented before the tribunal or agency whose order is under examination. The appellate court merely examines the record made below to determine whether the lower tribunal had before it competent substantial evidence to support its findings and judgment which also must accord with the essential requirements of the law….
12. While the Petition under review contains assertions and averments of the potential and practical impact of the approval of the application submitted by the respondent, this court limits its review as set forth in paragraphs 9, 10, and 11, above.

One of the judge’s reasons for quashing the Special Exception was lack of a required Wildlife Impact Study. Seems like that should include the Rainbow Springs Basin Management Action Plan (BMAP).

The judge’s decision is on the WWALS website.

Thanks to Laura Parks Catlow for sending it, and for posting the below report.

The court decision says the petitioners were Jeffrey Ferguson and Kimberly Swift. The below article says the people organized under the facebook group RURL Residents United for Rural Levy filed the appeal, so presumably the two named petitioners are part of that group.

Terry Witt, Freelance Journalist, RURL Residents United for Rural Levy, September 18, 2024, Judge Throws Out County Commission’s Approval of 3RT Sand Mine for Violating Its Own Rules,

Circuit Judge Craig C. DeThomasis issued an order Tuesday tossing out the Levy County Commission’s unanimous approval of the 1,100-acre 3RT sand mine, citing lack of “competent substantial evidence.”

A citizens group, Residents United for Rural Levy (RURL), hired attorney Ralf G. Brookes to file a lawsuit challenging the commission’s decision on grounds that it violated the county’s Land Development Code regulations governing how a major sand mine must be approved.

RURL’s lawsuit was successful. DeThomasis voided the county commission’s decision on the sand mine, saying the county didn’t properly notify neighbors of the sand mine application, didn’t conduct a legitimate traffic study and offered nothing more than empty promises that a study of wildlife living on the property would be done in accordance with the county’s rules for approving a major mining operation.

“Given the foregoing examples of incomplete studies and/or those not yet performed, all of which were necessarily required prior to approval of the Application, as well as there being clear indication that future study remains necessary, it cannot be said that there is competent substantial evidence supportive of the decision to approve the Application,” DeThomasis said.

He added that the lack of procedural due process provided to the petitioners Jeffrey Ferguson and Kimberly Swift showed that “the essential requirements of applicable law were not observed,” and because the decision of the board wasn’t supported by competent, substantial evidence, the commission’s approval was “quashed,” meaning it was tossed out.

The court’s decision wipes the slate clean. It’s as though sand mine applicant Ryan Thomas never filed an application for a special exception to operate a major sand mine. A special exception can be granted by the county commission to bypass agricultural and residential zoning rules and allow a sand mine where it normally wouldn’t be permitted, but commissioners must follow their own stringent rules for approval of the special exception before they can give approval. They failed to do that.

Commission Chairwoman Desiree Mills and Commissioners Matt Brooks, John Meeks, Rock Meeks and Tim Hodge voted as a board to approve operation of the sand mine in violation of their own Land Development Code rules.

A standing room only crowd of angry neighbors opposed to sand mine were outraged when commissioners ignored their comments in a public hearing and proceeded with a 5-0 vote to approve the facility.

Levy County sheriff’s deputies immediately formed a human barrier in front the commissioners apparently to shield them from the possibility of violence from the crowd of mostly senior citizens who were livid about the indifference commissioners exhibited toward their concerns.

Citizens were herded out the front door like cattle.

In his written order, DeThomasis noted that while the county did provide notice of its proceedings dealing with the sand mine, there was no evidence that the requirement to use certified mail was followed and notices posted in a local newspaper didn’t contain the required language set for in Florida statutes. Also, posted road sign notices had fallen to the ground.

The judge said the county’s Land Development Code requires a wildlife impact study before the sand mine can be approved. Transcripts provided to the court showed that such a requirement wasn’t met by the county. The county promised to study wildlife impacts on the property in the future, but the judge said that promise wasn’t good enough to meet the requirements of the county Land Development Code.

Regarding the county’s failure to provide a traffic study by a professional traffic engineer licensed by the state, DeThomasis quoted from the county’s Land Development Code to show why such a study is important. He cited the following passage: “The applicant shall ensure that neither public nor private property will be damaged by the hauling of material, and that hazardous traffic conditions will not be created as shown by a traffic study prepared by a traffic engineer licensed by the State of Florida, which study shall be submitted by the applicant.”

DeThomasis said the testimony of county road department officials at the public hearing promising to conduct a legitimate traffic study in the future runs counter to a requirement of the Land Development Code that such studies must be done in advance of final approval, to “assure no degradation of road infrastructure…and/or assurance that the mining operation would not be detrimental areas residents or businesses or the public health safety and welfare of the community as a whole.”

For more on this case, see:
https://wwals.net/issues/sand-mining/

-jsq, John S. Quarterman, Suwannee RIVERKEEPER®

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