FBCC votes 3-2 to approve FLUM change, final plat for Amelia Bluff

Submitted by Suanne Z. Thamm
Reporter – News Analyst
April 19, 2019 5:37 a.m.

Opponents of the Amelia Bluff development turned out in force for the April 16, 2019 Regular Meeting of the Fernandina Beach City Commission (FBCC).  Seats in City Commission Chambers were filled an hour before the meeting began, with even more vocal opponents of the proposed residential development on Citrona Drive preparing to stand outside chamber windows with signs urging the FBCC to deny approval for the final plat and zoning change.

Following more than two hours of discussion and input from more than 30 speakers, the FBCC voted 3-2 to approve Ordinance 2019-08 changing the city’s Future Land Use Map (FLUM) from Conservation to Low Density Residential for the 6.4 acres of land constituting the Amelia Bluff development; and Resolution 2019-57 approving the final plat.  The vote mirrored the FBCC vote on First Reading of the ordinance, with Mayor John Miller, Vice Mayor Len Kreger and Commissioner Phil Chapman voting in favor, while Commissioners Chip Ross and Mike Lednovich voted in opposition.

Following the vote, a frustrated and disappointed audience shouted angry comments at the commissioners as they filed out of the meeting.

Attempts to resolve differences:  City Manager, City Attorney report

Following First Reading of the Ordinance, commissioners charged City Manager Dale Martin and City Attorney Tammi Bach to meet with the developer in an attempt to determine how the conflicting viewpoints might be resolved.  Martin reported the results of those discussions to the FBCC and the public before the FBCC began discussions on Second Reading.

Martin reported that he and Bach had identified three options.  The first was to move forward on a vote, thereby setting up a scenario that could involve a legal challenge.  Option two involved asking the developer for a “walk away” price, which he provided:  $3M.  

Martin said that this price only covered acquisition of the property, not restoration. Should the FBCC opt for that solution, Martin said it would likely be funded with a millage increase.  One mil generates approximately $2M, so this would mean a one-time ad valorem (property) tax increase of 1.5 mils.  Depending on the taxable assessment of a home, this increase could range from an additional $100-$500 per tax bill.

The third option presented to the developer on behalf of the FBCC was the city’s purchase of limited number of lots:  those closest to the Greenway.  The developer had no interest in pursuing this option, citing money already invested in infrastructure and engineering.  He said that such an option would require him to scrap the existing, permitted plan and begin anew.

City Attorney Bach weighed in on the city’s position with respect to a private property rights challenge under the Bert Harris Act.  Based upon her research, Bach had informed the developer that in her opinion the city had a very good case while the developer did not.  She added that the developer also has some arguments which are not good for the city.  “This is not a slam dunk,” she said, “and there is no attorney here tonight who can say this is a slam dunk. … My opinion is that the city’s case is better than the developer’s case, but it’s not going to be free.  I have advised the City Commissioners that there is a cost to this and that we have insurance that would cover up to $100,000 in legal costs.  Other than that, if we have a settlement or mediation [under Bert Harris], the city would pay those costs out of taxpayers’ money.

“I feel that our commissioners have been fully advised, and they will make their decision based upon that,” Bach concluded.  “If there is any new information, or a new case to be considered, that is brought forward tonight by an attorney:  shame on you for not coming forward earlier to help the city.”  Bach in an aside advised that not one of the attorneys quoted in a News Leader article of the previous week as planning to attend the meeting had contacted her.

Bach stressed that should the FBCC approve the FLUM change, it would not be formally changed for a period of 31 days to allow time for an appeal of the decision.

Amelia Bluff presents an option

Wirt Beard, on behalf of Amelia Bluff, LLC and his partner Bill Howell, expressed appreciation to the city for an educational and productive dialog over the past month.  Without recapping the history of the development, he cited the August 2017 Memorandum of Understanding (MOU) executed with the city that clarified the developer’s commitment to conservation.  That agreement included deeding 5 acres of the property to the city for conservation purposes along with a commitment to donate $115,000 to the city for conservation purposes upon final plat approval.

In order to underscore his firm’s commitment to conservation and to further the process, Beard presented an additional commitment:  Amelia Bluff, LLC, would contribute $10,000 for every lot sold to the Fernandina Beach Conservation Trust Fund upon issuance of a building permit for each lot.  With 30 potential lots, this could provide the city with an additional $300,000 toward land conservation.  He stressed, however, that Amelia Bluff, LLC, reserved the right to withdraw this offer “if all challenges and appeals are not concluded within 150 days of tonight’s meeting.”

Beard also noted that since the city’s creation of a Conservation Trust Fund a year ago, Amelia Bluff, LLC has provided the only commitment to contribute to the fund.  “We think the offer we are proposing tonight is meaningful and constructive, and we hope that following public input and discussion, the actions before the FBCC will be approved tonight,” Beard said.

Commissioners question developer

Commissioner Chip Ross asked why Beard had rejected the possibility of the city’s purchasing the lots bordering the bluff.  He said he knew that the land had been purchased for $1.6M and that in an earlier conversation, Beard had indicated that an additional $600K had been invested in the property.  Beard replied that the issue was more complicated than the situation as presented by Ross.  Because infrastructure had been permitted and constructed for the current configuration, Beard expressed his belief that it would be expensive and time consuming to revise the development, which would also be devalued by the change.  Additionally, 4 of the 6 lots in question have already been pre-sold.  “We are 90 percent developed, and we are trying to move forward with what we believe to be a generous offer,” Beard said.  “We are trying to listen and manage a difficult situation [where mistakes were made] and move forward.”

Ross was not satisfied.  “We are trying to save trees,” he said.  He went on to say he did not understand why the project would need to be re-engineered.  “20 years ago I did this sort of stuff,” Ross said.”I don’t think it’s that big a deal.  I realize you are not going to make as much profit, but I don’t think you are going to miss your dinner.”

Beard disagreed with Ross’ assertions, including the claim that the developers would make $3M from the project.  “I don’t know where you got your figures, but we stand to make a lot less than that,” Beard said.

Commissioner Mike Lednovich asked Beard about the “walk away” price.  He asked why the price had increased to $3M, from the $2.6 originally provided.  Beard said that people tend to confuse cost and price.  He said that the initial figure included purchase price and hard costs, such as infrastructure already constructed as well as engineering and surveying, but no profit.  Lednovich concurred that in previous conversations Beard had never implied that the developer would sell the property for $2.6M.

Vice Mayor Len Kreger moved to approve the ordinance and Commissioner Phil Chapman seconded the motion, allowing Mayor John Miller to move forward with the public hearing.

The public speaks

Thirty people had signed up to speak on this item, almost all city residents, and all in opposition.

First to speak was Tallahassee land use attorney Robert C. Apgar, who indicated he was representing the Amelia Tree Conservancy, the Nassau County Chapter of the Sierra Club, and the Conserve Amelia Now organization.  He reminded commissioners that should they pass the ordinance, it could not become effective for 31 days or until the appeals process was completed, whichever comes last.  He said that the Bert Harris Act was so vaguely worded that the burden of application was up to local government.  He cited the Ponce Inlet case that has been under litigation for 12 years.  He said that the recent resolution of that case involved the city paying millions of dollars to defend its Comprehensive Plan.  He urged the FBCC to defend the Fernandina Beach Comprehensive Plan as vigorously.

Commissioner Ross quizzed Apgar on legal points.  Apgar in response stated that the Comprehensive Plan trumps zoning, citing state law.  He cited the Ponce Inlet case as proving that a developer cannot rely on assurances of staff that are inconsistent with the Comprehensive Plan.  He appeared to reject the argument that the current problem was the result of a scrivener’s error, claiming that such an error had to be so obvious that it would be commonly accepted.  He also explained how the legal argument of equitable estoppel is not applicable in the current case because the developer does not yet have a valid building permit.

Other members of the public followed Apgar, mostly restating arguments voiced at the first hearing.  Speakers stressed the importance of trees and wetlands protection as well as their rejection of arguments that the FLUM map was in error.  They emphasized the inviolability of the city’s Comprehensive Plan.  They advocated for wildlife that would be adversely impacted by development.  Some speakers offered financial donations to the Conservation Fund and to assist tax payers burdened by any increased taxes to pay for purchase of the land.

Margaret Kirkland, representing the Amelia Tree Conservancy, said that more than half of their members were city residents.  She had also earlier presented commissioners with a 3-page letter that spoke to the importance of trees to sustainability and the dangers of overdevelopment.  The letter indicated that if the commission voted to reject the final plat, the Tree Conservancy would donate $5,000 to restore the land, but only if the land remained Conservation and that it would be accessible to the public.

Robert Weintraub suggested that the FBCC should vote down the proposed Ordinance and then enter into a negotiation with the developer to come up with a better deal.  He opined that the city would be able to enter into proper negotiations from a position of strength.

Robyn Nemes and five members of the Junior Naturalists Club urged the commissioners to vote down the proposed ordinance.  The children who spoke thanked the FBCC for their support of conservation efforts and presented each of them with thank-you cards, explaining why conservation was important to them.

Robert Prager, a forensic engineer and a scientist, explained his extensive work with GIS mapping and presented his analysis on the accuracy of the existing FLUM in the Amelia Bluff development.  He concluded that the current map presented an intentional, not accidental, designation of conservation land.

Other speakers reinforced each other on the supremacy of the FLUM and the Comprehensive Plan, the importance of conservation to both ecology and quality of life for residents, and fears that the island has reached a tipping point with development.  Speakers were generally respectful, directing their comments to the issue.  Some, however, attacked city staff for the initial error that spawned the controversy.  City commissioners listened respectfully as each speaker took advantage of the 3-minute speaking rule to express his/her sincerely held views.

Commissioners discuss and vote

Following the last speaker, Mayor Miller called a brief recess to allow him to speak with the City Attorney.  Upon their return to session at 8:46 p.m. Miller invited commission discussion.

Commissioner Ross thanked the audience and said that he believed there is a plan, and that is called the Future Land Use Plan.  “I believe we should follow that plan,” he said.  He expressed his intention to vote against the measure.

Vice Mayor Len Kreger also thanked the audience, commending them for their passion.  He said that he had closely reviewed the application and concluded that there is a mapping error.  “I won’t try to change your mind,” Kreger said to the audience, “but there are 70 other mapping errors that have also been identified and that have resulted in a moratorium.  This is not about 14th Street and other areas, but about Amelia Bluff.  I will vote yes on this.”

Commissioner Mike Lednovich followed Kreger.  He read portions of a letter from Munsell McPhillips, who could not attend the meeting.  He characterized her as an expert on the environment and cited portions of her letter warning about the cumulative effects of development.  She asked for consideration of issues such groundwater, wind effects and evacuation capacity should additional development be approved.  Lednovich emphasized, “We are at a tipping point.  This island is under assault.  We have a developer who wants to develop airport property; we have this development; we have 50 acres at the south end of the island where the developer wants to put 17 Carlton Dunes-like buildings and a 300-room hotel.  Thank you for coming out tonight.  We are now fighting for the preservation of our island and our city.  I will vote no.”

Lednovich also suggested pursuing the “walk away price”, but spreading the cost to taxpayers over 3 years.

Commissioner Phil Chapman said that the current discussion involves 6.4 acres of land.  He held up a report provided by Marc Hutson of the North Florida Land Trust that identified a priority list of privately owned parcels that the city could pursue for conservation purposes.  He said that for the $3M that it would take to buy out the Amelia Bluff development, the city could instead purchase all 452 acres on the Trust’s list.  “This being Easter,” Chapman said, “we could put all our eggs in one basket and purchase Amelia Bluff; or we can take that same tax increase and purchase al these lands.

“The Conservation Fund has been around for about a year, and no one has anted into that fund.  If all of the people who had all this passion around this issue had known — and they should have known — about this fund, we might have been able to do this financially.  But I can’t justify giving up 452 acres for 6.  I just can’t do it.”

Mayor Miller called for a vote without stating his position.  Kreger and Chapman voted yes; Ross voted “hell no” and Lednovich voted “hell hell no;”  Miller voted yes.

The previously controlled audience erupted into angry shouting, some calling “Shame on you!” forcing the Mayor to declare a brief recess to clear the chamber.  Miller expressed disappointment with the outbursts.  “You could afford us the same respect we’ve accorded you during this process.  We’ve been called names, it’s been said that we’ve been stealing, that we are nefarious.  Personally, I have not responded to any of that.”

And the Amelia Bluff issue moves on to consideration of Resolution 2019-57 – Final Plat Approval

Some people stayed to participate in the quasi-judicial hearing required by this resolution.  City Attorney Tammi Bach explained that evidence presented had to be based on fact, not opinion and must come from affected parties.  This item was considered for more than an hour before being approved by the 3-2 vote, identical to the prior ordinance.

Commissioner Ross moved to delay discussion on this item for 31 days until the first meeting in July following the end of potential appeal filings.  Lednovich seconded his motion.  Ross sounded confident that the previous decision would be overturned by appeal and did not feel the FBCC should be spending time on an action that could become moot.  Bach said that if passed, this resolution would not become effective until the FLUM map was changed.  Ross’ motion failed on a 2-3 vote.  

In response to a question from Mayor Miller, Beard indicated that the 25 foot buffer separating the residential property from the Greenway would be enforced by the Amelia Bluff Homeowners Association as well as city Code Enforcement.

Commissioner Ross asked that the developer redraw the property line so that the 25-foot buffer at the top of the bluff would be excluded from the property and presumably included in the city property.  Beard stood by the existing plat, stating that redrawing the property line would reduce the size of lots.  Given a 25 foot setback, the new lot size would restrict siting of a house or a pool, possibly leading to a loss of trees that could otherwise be saved.

Ross rejected Beard’s position, claiming that development close to the existing buffer would undermine the bluff.  He said that the developer could build smaller houses.

Public Comment

Seven people spoke in addition to Wirt Beard, the developer.

Robert Prager said that his issue involved inconsistencies between the plat and the engineering.  He presented slides that showed that the bluff and the buffer do not coincide.  He pointed out that there was no buffer at the southernmost tip of the site bordering wetlands.

Margaret Kirkland, representing the Amelia Tree Conservancy, and Julie Ferreira, representing the Nassau Chapter of the Sierra Club, addressed concerns to the FBCC on the proposed development, restating the current benefit of trees that could be lost with the project as well as negative effects on the Greenway water quality.

Commissioner Ross recalled Prager and asked him if he would be considered an expert.  Prager said that he is a licensed professional engineer in the state of Florida, but that he had not talked with the engineer behind the Amelia Bluff project, he had not reviewed calculations, he had no discussions with the developer about the philosophy of his design.  He explained that he was expressing personal opinions, not professional opinions, because he did not have all the data.  He said he was considered a water expert by the Army Corps of Engineers.  He said that setting property lines does not necessarily produce desired results, citing examples.  “It’s not a simple question, Commissioner Ross,” he said.  He went on to express his concern over the absence of a buffer at the southernmost limit of the development.

When Beard attempted to address Prager’s concerns, Ross interrupted.  “Point of information:  are you an expert?”

Beard replied, “I’m as much as an expert as you are, sir.”

Ross snapped back, “I’m not the one who’s testifying:  you are.”

Beard explained that his engineer was not present to answer questions, but Ross emphasized that in a quasi judicial hearing consideration could only be given to experts.  Beard thanked him for the clarification.

Attorney Bach reminded commissioners and the audience that anyone is allowed to speak, leaving to commissioners to decide how to weigh the evidence.

Vice Mayor Kreger interjected.  “My comment is that this project has been reviewed and approved by the St. Johns River Water Management District.  The city’s Technical Review Committee which includes the stormwater manager and other engineers has approved it.  So it’s all gone through that process, correct?”

Beard confirmed Kreger’s statement.

Ross acknowledged that the application had gone through the process but said that was the same process during which the Conservation designation had been missed.

Kreger reminded Ross that the FBCC had missed that as well.

Public input continued with comments about what appeared to be a lack of enforcement and failure to meet development conditions laid out in the agreement to develop neighboring Shell Cove.

At 10:00 p.m. Mayor Miller closed the public hearing.

Commission discussion and vote

 Kreger moved approval of the resolution, and was seconded by Chapman.

Kreger recapped all the approvals that the developer had received for this project.  He said there were many compromises made, especially with the stormwater issue.  “We may have challenges,” he said, “but this is an accumulation of things.  I’ve heard more about other developments and Lime Street, which I fully understand.  But this is about Amelia Bluff, whose developers gave us 6 acres for conservation.”

Commissioner Ross claimed that for the item to be passed it had to be based on evidence presented at the hearing and “not one shred of evidence” had been presented to support passage of this item, “and we’ve heard from an expert lawyer [reference to Apgar].”  Ross quoted from the city’s Comprehensive Plan, stating that because the project violates those policies it should be denied.

City Attorney Bach asked Ross if she had heard him correctly describe attorney Robert Apgar as an expert.  Ross said he had said that.  Bach said that for an attorney to be considered an expert in the state of Florida, he/she had to be Board Certified in a specialty.  According to her research, Apgar was not Board Certified as an Environmental or Land Use Attorney.  Apgar did not disagree.  Ross withdrew his assertion.

The motion to approve passes on a 3-2 vote.

Editor’s Note: Suanne Z. Thamm is a native of Chautauqua County, NY, who moved to Fernandina Beach from Alexandria,VA, in 1994. As a long time city resident and city watcher, she provides interesting insight into the many issues that impact our city. We are grateful for Suanne’s many contributions to the Fernandina Observer.