Judge Asks, What If the Halls Had Just Included a Convenience Store?

Pegasus Trial, Part 2

Paraphrasing its case against Green Cove and the Virginia Hall family, Pegasus Technologies portrays the city as having performed a cute trick to benefit the Halls:

Knowing that simply designating a particular 14-acre parcel as residential would all too obviously constitute a “spot zone” (See Part I of trial coverage) because it was surrounded at the time by industrially zone parcels, Green Cove called it a Mixed-Use Zone instead, and then the city approved a development within that zone that was 100 percent residential.

(For new readers, Pegasus is an aviation company trying to prevent construction of the apartment complex, some of whose four-story buildings would stand under the glide path to its runway. Visit greencovesprings.substack.com for background)

Green Cove’s Comprehensive Plan is effectively the law that governs future growth in the city, a lawyer for Pegasus argued. That assertion is uncontested.

The trial, held July 6 and 7, was largely over whether the city’s application of the Mixed-Use category violated that law. Lawyers categorize the case as a “consistency challenge” with Pegasus saying the city’s rezoning and development approvals for the 14-acre parcel were inconsistent with the city’s own law.

As an expert witness for the Hall family was quoted in Part 1 of this series, the defendants contend Mixed Use doesn’t have to actually have a mix of uses, as long as there is some sort of a mix in the general area anticipated for the future.

The defendants also argued that Green Cove’s plans for the future anticipate that the 1,550 acres of what is now Reynolds Industrial Park, which is adjacent to the 14-acre Hall parcel, will eventually be redesignated as a custom-crafted zone called Mixed Use Reynolds Park—so Mixed Use alongside Mixed Use-plus.

One question before Judge Don Lester, who is expected to hand down a ruling before the end of the month, is whether a Mixed-Use zone has to have a mixture of uses, as Pegasus and co-plaintiff Reynolds Park contend, or is it enough for it to be somehow part of a mixture of uses, as defedants claim.

It’s often significant when the judge in the case asks questions of his own. In this case Lester engaged directly with Pegasus attorney Scott Thomas. To understand their exchange you need to know that PUD means “planned unit development,” which is a zoning tool that local governments to permit greater flexibility and creativity in developing a specific piece of land.

Judge Lester: Let me ask you a hypothetical before we get to that.

Scott Thomas: Yes, sir.

Lester: Hypothetically, the Halls sell off an acre of this 14-acre parcel and a convenience store is put on there, are they good to go?

Thomas: If they got the entitlements to do that. They don't currently have the entitlements to do that.

Lester: In your argument, that would be consistent with mixed-use?

Thomas: Yes.

Lester: Okay.

Thomas: Here's what they could do—in fact, your honor, we'd welcome it. Here's what they could do. You get a PUD, a mixed-use PUD…the PUD can only be developed consistent with the plan description. And they have a plan description we put into evidence, which is that Mr. Herzberg (an expert witness) explained, currently for all—I'm just going to call it 14 acres—for all 14 acres to have a single use.

They readily could have put together a PUD that said, no…let’s say this side of the property (indicating on a rendering), on this side of the property we're going to put multi-family tall buildings. This side of the property, genuine mixed use: We're going to put a one-story convenience store, the part of the property that's below where the planes take off and land.

That would be a genuine mixed-use project, you know, the parcel would have two different uses and, by the way, be done in a way that wouldn't have these airport issues that we currently have. So not only what you described be permissible, it will be welcome, a more proper development of a mixed-use parcel.

What you can't do is masquerade single use as mixed use, which is what’s gone on here.

Settlement discussions are off-limits for discussion at trial, but Thomas’ scenario resembles what apparently had been an unsuccessful settlement offer suggested at one point by Reynolds Park.

In this rendering, suggested as a settlement, the tall apartment buildings are all limited to an area of the 14-acre parcel that is outside the RPZ or “runway protection zone” for Reynolds Airpark. In this scenario the reddish area would be devoted to a second, commercial use within the parcel, which a lawyer for Pegasus suggests would include a one-story convenience store.