Submitted by Suanne Z. Thamm
Reporter – News Analyst
June 28, 2019 1:00 a.m.
The Poynter family has made its mark on downtown Fernandina Beach. Tim and wife Theresa Poynter own two successful food establishments on North 3rd Street: Cafe Karibo and Timoti’s Seafood Shack. Last year the Poynters decided to purchase property at North 2nd and Alachua Streets to expand into recreation business as well by replacing a rat and squirrel infested building with a miniature golf course and snack bar. Believing that downtown businesses would benefit from an activity that would draw families, Tim Poynter began working with the City of Fernandina Beach in May 2018, hoping to get his building permit in September.
It didn’t quite work out that way.
Little did Poynter realize that it would take him almost a year to get a city building permit and cost $4,000 more in permit fees than originally anticipated. According to city staff, his case proceeded along a normal timeframe for review, the only glitch occurring when his hearings before the Historic District Council (HDC) had to be postponed when a meeting was cancelled in July 2018 for lack of a quorum.
Poynter as a local businessman understood how and why it takes time to get a building permit. What he didn’t understand was why, since he had started his permitting process on May 28, 2018, the cost of fees he was required to pay in lieu of providing off street parking spaces rose by $500 per space when the city’s new fee schedule went into effect October 1 2018 — even though he had offered to pay those fees in advance of receiving a building permit. This meant that instead of paying the city $12,000 in lieu of providing 8 parking spaces, he was required to pay $16,000.
For Poynter, the extra $4,000 was a bridge too far. After unsuccessfully arguing his case throughout the city bureaucracy that the date for assessing fees should be based on the date of the application, not the issuance of the permit, he decided to file an appeal with the city’s Board of Adjustments (BOA).
The BOA took up Poynter’s appeal at their June 19, 2019 Regular Meeting. Members agreed that city staff had acted properly according to existing rules and policies. They spent significant time querying both Poynter and city planner Jacob Platt on the sequence of events, whether exceptions are ever granted, etc. They decided to grant Poynter’s appeal, and weighed recommending that the City Commission establish clearer, written policy with respect to the date from which fees are calculated.
The Poynters purchased the property on the northeast corner of Alachua and North 2nd Street in 2018. The underlying zoning for the property is Central Business District (C-3). That zoning district carries no requirement for off-street parking. However, as Poynter started the permitting process, he was informed that the western 75 feet of his property (roughly 40 percent of the total) was located in the Community Redevelopment Area (CRA). This meant that he would be required to either provide 8 off-street parking spaces or pay $1,500 in lieu of each space ($12,000).
According to city planner Jacob Platt, the City’s Code specifies that when a zoning district boundary divides the area of a lot unequally, the zoning district classification and regulations of the larger portion apply to the entire parcel. But because a portion of Poynter’s property was located within the CRA overlay the entire project had to go before the HDC for review. The HDC is charged with reviewing development and rehabilitation efforts within the CRA, whether or not the actual project is in the Historic District.
The HDC was required to rule on three items:
- Building a miniature golf course on a lot smaller than that specified in the city’s Land Development Code (variance needed);
- Demolition of the existing, failing structure on the lot (Certificate of Appropriateness (COA) required);
- Design of the snack bar/restroom facility associated with the miniature golf course (COA required).
When Poynter applied for his HDC variance on May 28, 2018, he was told that his case could be heard on the June 21, 2018 HDC agenda. However, because variance approval requires 4 affirmative votes and only 4 HDC members would be in attendance at that meeting, he was given the option to reschedule for the July meeting in anticipation that there would be a full board of 5 members in attendance. He opted to reschedule.
But the July HDC meeting was canceled due to lack of a quorum. He was rescheduled to a Special Meeting on August 1, at which the HDC approved his request for a variance. He immediately applied for a Certificate of Appropriateness (COA) to demolish a non-contributing primary structure on the property and was granted final approval on September 20, 2018.
He applied for the demolition permit on October 31, which he received on November 1, 2018.
In October he filed a request for HDC approval to construct a miniature golf course with associated customer service buildings and deck. The HDC granted conceptual approval on November 15, 2018 but required him to return for final approval, which he applied for on January 18, 2019. The HDC heard his case on February 21, 2019 at which time they granted final approval.
In between HDC meetings, Poynter’s project also appeared twice before the city’s Technical Review Committee (October 11, 2018 and January 10, 2019).
On March 20, 2019 Poynter applied for a general building permit which required successful reviews from:
- Planning and Zoning
- Building (Flood Zone)
The Building Permit was issued on May 1, 2019.
Poynter represented himself before the Board of Adjustments. His appeal:
I am appealing charges I was required to [pay] in order to receive my building permit. When I had started this project in May 2018 the fees were one price, and when I finally made it through all the requirements I needed to even be able to submit my building plans the fees were increased 33%. I believe I should be “grandfathered” in at the fees when [I began the process].
In presenting his appeal, Poynter said that he hoped policy could be changed to prevent a similar problem for other people seeking building permits. He believed that in securing financing for a project, it was important to firm up permit costs up front. Otherwise, depending on the size of a project, some applicants might need to apply for a loan modification or seek significant additional funds elsewhere in similar situations.
Poynter said that when he tried to pay the fees for the parking spaces in July, he was told that there was no mechanism to allow him to do so. He said that when he expressed his frustrations to city staff, he was told, “That’s just the way it is in Fernandina. And that’s the risk you take doing business here.”
City staff and BOA members reminded Poynter that other than the 12-day delay due to HDC quorum problems in July, the city had moved his case expeditiously through the permitting process, and that all applicants follow the same process. Poynter did not argue process. Rather he stood on the principle that since he applied for his permit in May of Fiscal Year 2017-18, his fees should have been set according to the Master Fee Schedule approved for FY 2017-18. He maintained that as long as his project was moving through the permitting process, he — or any other applicant similarly situated — should not have been kicked into a higher fee structure set for the next Fiscal Year.
BOA Deliberations and action
BOA members wrestled with the case before rendering their decision. Finally, based upon the uniqueness of Poynter’s property and the resulting need for additional steps in the permitting process, they granted Poynter’s appeal.
BOA Chair Matt Miller acknowledged that the BOA has no ability to make policy changes as to when or how the city establishes fees. However, he did acknowledge Poynter’s argument that it would not be unreasonable for an applicant to expect permit fees to remain constant from the time of application to issuance of a permit, assuming that the project continued to move forward. BOA members also discussed whether, if applicants know that fees will increase prior to their receipt of a final permit, they might be allowed to pay those fees before the rates increase.
City Attorney Tammi Bach said that any advisory board may make a policy recommendation to the City Commission or the City Manager.
Chair Miller asked BOA members to think about recommending a policy and come back to the July meeting prepared to discuss going forward with such a recommendation.
Member Steven Papke moved to approve Poynter’s appeal to overturn the administrative decision on how the parking fee was assessed based on the applicant’s ability to meet the timing and the city’s failure to be able to support him in an appropriate time frame and the additional requirements on the applicant because of the location of the property. Member Marcy Mock seconded the motion.
BOA member Mark Gleason said that while initially he intended to deny the appeal, the fact that the case was so convoluted with Poynter caught between multiple board appearances as he was trying to start a new business made the matter very complicated.
Chair Miller voted last, expressing his reluctance because he believed the city had done nothing wrong. But he expressed sympathy for permit applicants who experience delays when city-mandated appearances before boards are delayed for quorum reasons. “The government has to be fully functioning at all times and act in a timely manner,” he said.
When the votes were tallied, the appeal was approved unanimously.
City Commissioner Chip Ross, who attended the hearing, spoke during public input. He said, “It seems to me that the fundamental issue you were discussing tonight is when does the fee get set. Is it when you apply or when you pay? I’d be curious to know from this board when you think the fees should be set.”
BOA members expressed a general belief that because of variables encountered during any particular project, the fee should be set at the end. But some also called for flexibility to allow applicants to pay some fees earlier if they can be fairly determined.
It should be noted that application fees for HDC cases and demolition permits are collected at the time application is made, not at the time the final building permit is issued.
Chair Miller said that with all due respect to the commissioner, this was a job for staff to determine based upon research to see how other communities handle these matters.
If you are wondering when you will be able to play miniature golf at the new course at North 2nd and Alachua Streets in downtown Fernandina Beach, opening now appears set for August.
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.