Betz Farm: The Hearing That Never Happened

Wow... what a meeting yesterday.

Let's talk about a few things.

1) It is clear this board does not like this page and the influence is has. Over the weekend and on Monday, I talked about a filibuster opportunity for the meeting. Basically, this would be me and a few others speaking on every agenda item and dragging out the meeting.

Even the attorney for James Dicks got involved and sent an email to the county complaining about the tactic and asking them to try to stop it. You can read that below.

That is a lot of words about me and their concern about something I mentioned on Saturday and again on Monday.

The problem... I never intended on doing it. It was a bluff. I wanted to see what the county staff and commissioners did when faced with an issue like that. And let's be honest, if I did it, it would have only added time to the meeting and made them all stay later. That is it.

But instead of keeping things as they were, they did gymnastics on the agenda.

First, they moved items before open to the public, which violates County Ordinance 2-49.

"Public comment on any concern under the jurisdiction of the board or on any proposition to be considered by the board shall be heard as an agenda item at each meeting of the board prior to the beginning of the regular business of the meeting and prior to the board taking any action on the concern or matter."

Then they moved an item to the consent agenda that was not of routine nature and non-controversial. Commissioner Barek voted against it. This violates Administrative Regulation 3.02-17

"The Consent section of the Agenda will contain items that require action by the County Commission but are themselves of a routine and non-controversial nature."

When is discussion of creating an aviation economic development board routine in nature? They didnt even discuss it. Just a vote to approve it 3-1 with Barek against.

We know this board does not care for the rules, ordinances, etc... but what are we doing? They are so concerned with the possibility of staying late, they will do whatever they can to avoid that, including breaking their own ordinances and regulations?

And for what? I never even did it. Again my intent was to see how they react when I post something like that publicly. I guess I have a bit more sway than people realize. When was the last time you saw an attorney send a letter about a citizen using their 1st Amendment Right to speak at a meeting?

Wild.

Anyway, there was a motion to fire the county attorney. It ultimately failed... so that will be one to watch. More on that later.

But the big news of the day... Betz Farm hearing wasn't a hearing after-all. It was cancelled after no-quorum was seated.

This will be a bit long, but for the cliff notes version... Holly Davis recused herself for the potential appearance of bias. Then Janet Barek followed suit. Since Diana Finegan was not there, only two members of the commission remain. That is not a quorum and no business can be conducted, even a land use hearing.

So it will come back at some point.

But importantly. When it comes back, Davis and Barek cannot vote on it. They removed themselves for bias... that bias does not suddenly go away. Assuming this comes under the new board, that leave Stacey Worthington, Jeff Kinnard and Holli Herndon as the commissioners that will hear the case.

What happens if one of them also has conflict? Who knows. I assume it never comes back to the board and they may need to find someone outside the county. Could be interesting.

So that is it in a nutshell. I will dive deeper into all of it below if you want to learn more. Buckle up.

Note... the following conversation is based solely on my opinion and research that I have done. I do not claim to be an attorney or anything of that nature.

How did we get here.

Let's jump in the time machine back to April 27, 2021. The board wanted to list this property and have the offers include the development plan so that the board could look at them and decide which plan they liked best. The idea was to make sure someone bought it and developed it, not let it sit.

However, there was a wrinkle in that mentioned by County Attorney Denise Lyn. She stated:

"You have two roles. You are the regulatory body over the land use issues, as well as the owner. We have to be careful when we are talking about negotiating usage rights and intensity and densities because you guys sit as the board who makes those ultimate decisions on the land use aspect."

What is she talking about. Then County Administrator stated:

"Its called contract zoning".

In general, contract zoning occurs when a local government agrees, expressly or implicitly, to exercise its zoning authority in a particular way in exchange for a promise, payment, benefit, or other consideration from a property owner or developer.

Remember this... it will come into play in a moment.

The board solicits offers for the property and ends up choosing one from Ashatari. After several extensions, the board cancels his contract and re-lists the property.

James Dicks, via his company Bravo Land Group, LLC, makes an offer on the property. In it, he includes the development vision.

This was part of his "Additional Terms" in his offer dated November 16, 2023. The board ultimately accepts this offer.

Now, this offer was chosen in part because it closed quickly. At the time, the board wanted to move it. To do that, they made the contract "As Is" meaning the buyer was buying it as it stood, with all the potential issues. Again, per his terms.

Due diligence was 90 days and closing no later than 60 days after that.

In April 2024, the board brought an Addendum to the contract forward. This addendum tied the closing to the approval of the land use application... basically they need to approve whatever he wants to do. This came forward because of the January 2024 Pine Ridge denial.

Here is an email from our realtor, Kevin Cunningham, to James Dicks with a draft letter to send to the county for this addendum

This addendum was offered only because he did not want to close on the property and not get approved for his development project and did not want politics to get in the way.

The problem... the county attorney did not agree with the changes.

And here is her redline version sent back.

You notice she took out the contingency section that allowed him to close only if he receives his development approvals. She stated the county cannot accept those conditions.

Then attorney for Bravo, Clark Stillwell, asked for both versions to go to the board and that it is a board decision, not the attorneys.

In an email to Dicks, Cunningham says that it will come to the agenda under Kinnard.

At the meeting, Stillwell addresses the board and tells them again, that in order for this to close, they need to have the master plan approved.

Despite their own attorney's objections, they approved the original addendum requested by Stillwell.

Now, remember contract zoning above? The board now has a contract that ties the $6m purchase to approvals of the project that Bravo desires. The board cannot deny the project and close on the deal. They have negotiated away their zoning authority.

Further, it promises the county will fully cooperate in the process.

Then in an email from Cunningham to Susan Boelk on June 12, 2024, he summarizes the agreement between both parties.

This is EXACTLY what contract zoning is. The government gives away its authority in zoning cases for some type of benefit. In this case, it is $6m. They HAVE to approve the project to receive $6m.

Here are some cases if you want to dive into them further.

In Hartnett v. Austin, 93 So. 2d 86, the Florida Supreme Court recognized the prohibition against contracting away governmental zoning authority.

In Chung v. Sarasota County, 686 So. 2d 1358, the court invalidated a contractual commitment involving rezoning that bypassed the required governmental process.

And in Morgran Company v. Orange County, 818 So. 2d 640, the court held that a county could not contractually commit itself to support a developer's rezoning application, even where the formal zoning process remained in place.

Yikes.

So it appears we have an illegal contract.

Well, the county can say "No" right? They do not have to approve this project and he can still buy it, right?

Yes and No.

Yes, they can still deny the project.

However, they cannot close on the original DRI.

Wait, what? Why not?

Because, remember, back in April 2021, the board wanted developers to submit their proposed development. In the original contract without the addendum, the terms were an "as-is" sale. He could have closed on the DRI and then did the development approval process.

Instead, he was afraid of denial like Pine Ridge, so he did the addendum. In the addendum, there is this clause.

It ONLY closes if the buyer successfully obtains the approval for the modifications that allow for the intended use.

What is the intended use?

The Master Planned community he mentioned in the offer that I shared above. A community with walking trails, amenities, sports fields, etc.

Guess what? The DRI is 1) not a master planned community and 2) not the Buyers intended use.

Therefore, they CANNOT close on the original DRI.

They can, however, try to annex into Crystal River.

Further... the commissioners may have a hard time explaining how they ALL do not have potential bias and prejudice. Afterall, they are the ones that sit in the quasi-judicial decision making body. They are also the ones that determine how the money is spent and all of that.

How can commissioners be un-prejudiced when they are (the county) stands to make $6 million?

That is why Commissioner Barek recused herself from the vote last night. She felt that she had an appearance of bias due to this, which is what the quasi-judicial rules allow.

Commissioner Davis recused herself, in part, due to the videos and emails that I exposed over the last week with various statements that appeared to support the Betz Farm project.

So where do we go now?

Well, this comes back in the future. I do not think it will be the next meeting, although the agenda deadline is today. It is possible, but not likely.

My guess is that this comes back in December or January, with the new board.

What does that mean going forward?

Well, due to recusing themselves for bias, Davis and Barek cannot participate in any future land use hearings regarding Betz. If there is a discussion on the contract or anything at a regular meeting, they can participate as conflict rules are different than quasi-judicial bias.... but for the land use hearing, they are out.

That means it will be Kinnard, Herndon and Worthington that decide the zoning... unless one of them also has bias.

or

the contract is cancelled.

Let's talk about that last part for a minute.

This contract can be cancelled under contract zoning laws. This is different than the previous attempt to cancel the contract under the non-performance and missing deadlines.

If Bravo were to fight it, they have to prove that the contract is actually legal and not contract zoning. That could be an uphill battle to climb based on the previous comments and communications.

So that is the next fight. Get the board to cancel the contract over the contract zoning issue rather than non-performance. That is a much stronger argument and much easier to defend in court.

If that were to happen, the contract could essentially be cancelled and Betz stays with the county, unless the board votes to again sell it.

Going to be interesting!

This may be it for me for a few days on here. I may pop in on the Facebook page here and there, but I have spent literally 80 hours the last few weeks preparing for this hearing and I am taking a much deserved break!

Great job everyone!