By Adam Kaufman
February 25, 2019
9:30 p.m.
During the last few days I have been in conversations that either begin with or end with “it’s time for it to stop.”
“It” for some is the loss and destruction of the city’s maritime tree canopy, for others “it” is “development,” however defined. For some “it” is both. When asked what I would do about residential development at Amelia Bluff, let’s just say that some conversations have been better than others.
I am old enough to have organized and participated in events on the first Earth Day in 1970. I have been on the Clearwater. I was part of an effort to establish a “Conservation Party” and place it on the New York State ballot. When Rochester, New York, lost thousands of trees as the result of an ice storm, I was a participant in discussions of how the City would restore its “urban forest.” The Amelia Island Fernandina Restoration Foundation, of which I am president, is playing a role in the potential rehabilitation of Bosque Bello Cemetery. I have read Richard Powers’ “The Overstory” (spoiler alert, the real protagonists are the trees).
I think I get “it.”
Commissioners Miller, Chapman and Kreger are now being pressed to change their votes cast on February 19, 2019 on “First Reading” that authorized a correction to the City’s Future Land Use Map (FLUM) that would permit continued low density residential development at Amelia Bluff. The second vote on the amendment is scheduled for March 19.
For over 20 years I was General Counsel for the Rochester City School District, New York State’s 3rd largest school system representing the District and a partisan seven member elected board. Virtually all litigation and potential litigation at that time was handled in my office.
Not infrequently, when faced with contentious and volatile issues, where the resolution was certain to offend one group or another, the School Board and/or Superintendent of Schools, would limit public comment to: “We did it on the advice of Counsel and in the interests of the students, citizens, and taxpayers of the City.” A cliché, yes, but true.
In determining whether the FLUM should be corrected to allow residential development at Amelia Bluff to proceed, the Commission needs to consider the advice of its professional staff, and is obligated to assess the City’s potential exposure to damages and other costs.
In the words of Commissioner Ross, how “expensive a lesson” would it be if the Commission fails to permit the project to continue?
To put that calculation in context, a mil for tax purposes produces about $500,000 of revenue to the City.
HOW DID WE GET HERE?
This is what we know about Amelia Bluff and the interactions of the City and the developer:
The land at issue was owned by the School Board as a potential construction site for a school or school facilities.
It was not a “conservation” property. It was ultimately declared surplus and advertised for sale.
The property (10 acres) was purchased by the developer with the proviso that a city right-of-way running through the property would be vacated.
The City, the School Board and the developer entered into an agreement in August 2017 that was approved by the City Commission. Wetlands on the property (3.63 acres) were transferred to the City and set aside as conservation land.
The developer will donate $115,000 to the City for land conservation purposes when the final plat at Amelia Bluff is approved.
The developer has also paved a new sidewalk on Citrona at the High School.
Prior to the execution of the agreement, the developer received assurance from the City’s Planning Director, that the designation of the property on the FLUM as “conservation” was a “mapping error,” could be corrected, and was not an impediment to development.
The details of the conversation have been confirmed by the former Planning Director. The City Attorney has acknowledged his representation in her transmittal to the Commission of the proposed change to the FLUM.
In May 2018, city staff reported that the developer had fulfilled his obligations pursuant to the agreement, and the Commission approved the preliminary plat for the Amelia Bluff development. No one raised a question related to the FLUM.
City staff, the City Manager and the City Attorney at the February 19, meeting all continued to support the correction to the FLUM. “A FLUM change from Conservation to Residential (with regard to the remaining 6.4 acres) is consistent with the Comprehensive Plan and Land Development Code.”
Frank Santry, who serves on the Planning Advisory Board, emphasized that at every prior step in the approval process, staff had certified that the Amelia Bluff plans were consistent with the City’s Comprehensive Plan. Santry became aware of the discrepancy in the FLUM in November 2018.
Construction at the Amelia Bluff site continued through February 19, 2019.
The developer has estimated that over $2.3 million dollars has been spent on the project as of February 19.
The Amelia Bluff development is advertising 30 homes with 7 custom floor plans, ranging in size from 2,403 – 3,705 square feet starting from the high $500’s. Seven are under contract. It is not clear what the expected profit is on the sale of homes at Amelia Bluff.
At the February 19, Commission meeting, and in other public statements, the developer has maintained that he relied upon City staff and officials who he believed had actual or apparent authority regarding the project as well as relying upon the prior actions of the Commission itself related to Amelia Bluff.
At that Commission meeting, Commissioners were quick to publicly state that the City staff, the Commission, or the PAB were somehow at fault or had some responsibility for “mistakes” or “misleading” the developer.
Only Commissioner Kreger said he was convinced that the issue was a result of a “mapping error,” stressing that the land had been designated for school construction.
If, by action of the City Commission, the Amelia Bluff parcel could no longer be used for residential development:
- Would you sue the City of Fernandina Beach if you were the developer?
- If you sued, what would you include in your claim for damages?
WHAT WILL BE THE STATE OF AMELIA BLUFF?
As of today the removal of trees on the Amelia Bluff parcel is complete, the infrastructure for 30 home sites is in place, and streets and roads are ready to be paved.
Is there a rationale for preventing construction on a parcel that the Nassau School Board had set aside for the building of a school facility, and where City staff has made the assessment and finding that the FLUM is in error?
Does a campaign promise to stop “it” and never change the FLUM trump the findings and recommendation of City professional staff?
I note that in March the City Commission plans to enact a moratorium on subsequent FLUM amendments.
If the FLUM is not corrected, as City staff has recommended, and Amelia Bluff lies fallow, what would be the plan for the property, if any?
Does the City acquire the property, how and at what cost?
Can the property somehow be restored to its former state, over what period of time, and at what cost?
What is the projected loss of revenue to the City if the property is not developed? The City millage rate is 5.8533.
BERT HARRIS TO THE RESCUE?
In discussing the City’s potential exposure to litigation, I have been told that “the City Attorney said that the Bert Harris Act protects the City.” I was at the Commission meeting and that is not quite what Tammi Bach said.
The Bert J. Harris, Jr., Private Property Rights Protection Act was enacted to provide protection to private property owners against burdens placed on their property rights by governmental entities. The property owner has to show “a specific action of a government entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property.”
For example, the fact pattern in Ocean Concrete, Inc. v. Indian River County Board of County Commissioners, where the plaintiff wanted to build a concrete batch plant and bought a piece of property zoned light industrial, a zoning that allowed for a concrete batch plant. After the plaintiff bought the property there was local opposition to the planned plant development. In response to that opposition, the County changed the allowed uses of property zoned light industrial, and concrete batch plants were no longer allowed. There was no “grandfather” exception. Ocean Concrete sued. The Fourth District Court of Appeal upheld the plaintiff’s Bert Harris Act claim and remanded the case to the trial court for a determination of an award of damages
Bert Harris litigation is complex and is evolving. I leave it to law professors and the courts to opine on whether a governmental action not to correct a FLUM in circumstances such as those presented by Amelia Bluff is a “specific action of a governmental entity” that can “inordinately burden an existing use of real property or a vested right to a specific use of real property” pursuant to the Harris Act.
It is important to understand, however, that the Bert J. Harris Act was intended to provide property owners protection against government action. It is an additional arrow in a developer’s litigation quiver.
IS “TO BE OR NOT TO BE” A FALSE CHOICE?
Those who oppose the Amelia Bluff development are doing so to underscore their belief that it is time to stop the loss of conservation lands, protect the maritime tree canopy, and to control development. In the words of Commissioner Ross, they want to teach the City, the Commission, and others “a lesson.” Whether a newly discovered error (new to them) in the FLUM is the appropriate platform from which to teach that “lesson” is problematic.
For the purposes of argument, let us assume that the Commission approves the correction to the FLUM – whether because Commissioners believe the Map to be in error, or because, on balance, the prospect of litigation based upon the developer’s reliance on the City’s actions and the potential exposure to damages is determinative, or because they do not want to leave an open sore on Citrona and/or because there are no funds available to acquire and “rehabilitate” the site, or because Commissioners have based their vote on their reliance upon “the advice of the City Attorney and staff” or for some or all of the above.
Clearly, the Tree Conservancy and its supporters have been heard. There is a community consensus with regard conservation and the protection the tree canopy and of our “city forest.” There is recognition of the importance of our historic downtown and the need for its preservation. There is acknowledgment that Bosque Bello Cemetery and its tree canopy have been neglected.
These are not new discussions. There has been only limited or no funding on an ongoing basis to meet these needs.
Does the Amelia Bluff/FLUM controversy provide the opportunity to address issues of preservation and conservation? Is there an opportunity for mutual gain? Are there shared interests?
I understand the impatience and acknowledge the commitment of those who oppose the ordinance amending the FLUM. There is, however, no fundamental difference between this Commission and those who oppose correcting the FLUM with regard to issues of conservation. Acquiring conservation land, protecting and maintaining the tree canopy, and planting additional trees are goals set by this Commission less than three weeks ago.
Amelia Bluff is the wrong battle for the right reasons.
A Proposal
What if, upon approval of the amendment correcting the FLUM, the Commission adopts a resolution committing to allocate a portion (50%) of the proceeds generated from the City property tax assessed on the 30 Amelia Bluff homes, to be set aside each fiscal year going forward as dedicated funding for conservation and historic preservation.
I understand that one Commission cannot bind another, but I am sure the Tree Conservancy and others in the community will be watching.
It is hard to unring a bell and that also is the story of Amelia Bluff.
Editor’s Note: Adam Kaufman, has been General Counsel, labor negotiator, and lobbyist for the Rochester City School; he was appointed by Governor Mario Cuomo as Counsel, Associate Director and First Deputy Attorney General to a New York State Special Commission; he served as an Administrative Law Judge, mediator and Regional Director of the New York State Public Employment Relations Board; now retired, for the last 13 years he was a labor arbitrator and mediator. A graduate of the Northwestern Pritzker School of Law, he is a city resident.
Excellent analysis by a professional who understands the facts and nuances – and probable outcome here. This is not an easy call, but I agree with Adam. it’s time to let this go and apply our energy and city resources towards the future – fixing what we can with the FLUM and city oversight of unauthorized contractor activity which harms our tree canopy.
I have to object to the statement: “that authorized a correction to the City’s Future Land Use Map (FLUM)”
It’s NOT a correction. The FLUM was correct. That IS supposed to be conservation land. It’s a CHANGE. And, if every time there’s a developer who wants a change, it is granted, there’s no point in even having the FLUM because it’s all a lie.
Changing the FLUM is not the answer because it will just encourage and allow future “corrections”.
Thank you. This was a well written, thoughtful piece. It laid out the issues and proposed a very reasonable solution. I hope the participants read it as well.
The article states, “the developer has maintained that he relied upon City staff and officials who he believed had actual or apparent authority regarding the project…”
This is the point at which the problem occurred. The City staff never had the sole authority to change the FLUM. The City staff does have the responsibility and obligation to inform the City of these discrepancies. In fact, City staff had this information in 2017 and failed to bring it the City’s attention.
Because of the City staff’s omission of this one most important fact, every subsequent decision in the permit process made by board members regarding Amelia Bluff – from technical reviews to plat approval etc, were not fully informed.
Now thanks to City staff, commissioners and residents are faced with this shameful conflict.
My question is “When will staff be replaced with personnel whom we can trust?
City staff are not elected. They do not represent the city residents. Staff decision to withhold this critical information is nothing less than taxation without representation.
The fact that you recommend leaving matters to the City’s “professional staff” demonstrates that you don’t get it. City staff is the primary reason we are in this situation. A staff person chose not to initiate the proper process to correct this problem and in doing so overrode the authority of the Commission to make a final call on this issue. Your description of the history of this case is, frankly, inaccurate in too many ways to respond to here. Many other writers have clarified the facts of this case.
No, the trees at Bosque Bello have not been neglected; they have been abused, largely because Parks and Rec has no dedicated trained staff. The City Manager and Commissioners have been sent the documentation of this abuse on multiple occasions. If you are interested in Bosque Bello, you need to know this.
I recommend that you become more engaged in the tree issues on our island and the implications of our vanishing canopy for our future. We invite you to join Amelia Tree Conservancy.
Excellent and well written description of the issue. After reading the article I do not understand Ms. Springer’s statement that it was “supposed to be conservation land”. Although, as an Amelia Island native, I would have been happier if all undeveloped land had been declared “conservation” around 1950. It was not and much of the natural beauty has been lost.
Land that is truly designated as conservation at this point must be protected and additional land should be purchased and protected. As stated by Mr. Kaufman and Mr. Warner, spend the money the city would lose on this court battle to buy and protect other undeveloped parcels of land. Don’t waste funds on litigation where the facts show very little, if any, chance for the City to prevail.
This land was lost when it was sold to a developer; that was when the FLUM “error” should have been discussed, not after the developer spent additional millions on infrastructure. City funds are finite and should not be wasted on litigation and/or settlements that will result in much less land protected than if the money is spent purchasing undeveloped land for conservation.
Why are the tree conservation folks not a part off the sign off for all development projects? I’m sure the historical district has sign off by special committees and therefore this would be nothing new just due diligence and avoidance of this type of situation.
Mr. Kaufman, really excellent job on explaining this issue thank you. I am one of those people that would like to see NEW development on this island essentially cease. I think the town should be opposing all new development like this in any legal way they can. That being said, I agree with your conclusion. The town failed on this. The damage is done. The cost to high to backtrack and as much as I am against developers it is also simply wrong to cancel or back out on the the deal now. He was mislead. Let it go forward and for god’s sake start putting up some road blocks for this type of development or there will be nothing but concrete and cars on this island in 10 years.
Excellent and well-balanced analysis. Thanks Adam.
Fantastic article Adam. While some may disagree on some of your points, if I were on a jury hearing litigation brought by the developer I would side with them. There clearly have been missteps on the City’s part in not raising this issue earlier. I think your suggestion is a good one although unless it is acknowledged that this is a unique situation, I fear the allocation suggestion will turn into a “mandate” for future development. The City is fortunate to have all the green space it has and it should protect and nurture its tree canopy so we don’t become an island of just palm trees.
Just a thought, I’m not a lawyer. But I’ve heard to the term. “Deep Pockets” What if, say sometime down the road, and it will happen. The $500,000 plus Homes in the designated FLUM Conservation area are flooded, inundated with water. These are lowlands, have been mapped as such. What Liability does the Commission, the City have when this happens.?? Another point, this was a “Blunder” by Primarily one person, who should have known, it was his responsibility, in his job description. Mistake or Avarous.? But the Professional Engineers (PE) working for this developer understood what was going on, and took advantage of the situation. In my humble opinion.
Adam, you’ve used the wrong Bert Harris Act case law. Look at Town of Ponce Inlet v. Pacetta. The developer sued the town because it refused to change its FLUM to accomodate him. The appeals court ruled that,the developer could not rely in good faith on town officials’ assurances that the Comprehensive Land-Use Plan would be amended to allow for the development.
I think we can all agree that it’s really bad policy to have allowed some sort of stream-lined decision making process to be made for ANY particular party.
The activities that ensued regarding Amelia Bluff bypassed the whole structure of how city planning works in regards to the Future Land Use Map and scriveners errors. Marshall, I would think, understood city procedures. If he did not we have a larger problem than we know.
Marshall served as a Senior Planner and then was quickly promoted to be Community Development Director where he oversaw the planning, building, and code enforcement staffs. In 2013, he was appointed to the position of Deputy City Manager.
So why would a Senior Staff member choose not to initiate the proper process to correct the problem with the Future Land Use Map (FLUM), and why did it take until 2018 after years of negotiation via public meetings for this property’s true FLUM designation to be found?
The parcel was designated Conservation on the FLUM approved in 2011, but listed as low-density residential (R-1) on the zoning map. So why was the appropriate documentation never revealed in any city meeting- not the Technical Review Committee, the Planning Advisory Board or in City Commission meetings? These groups met throughout 2017 and 2018 on permitting issues for this property.
And why did the Planning Director feel empowered to report that the project was in compliance with the Comprehensive Plan and never once mentioned the conflict in any discussion in city meetings?
As Ms. Lehosit states above- the City staff has the responsibility and obligation to inform the City of any of type of FLUM discrepancy. We should not have to “assume” that the planning department understands correct procedures, especially our Senior Staff.
Bob
My understanding of the of the Ponce Inlet case is that neither side disputed that the development was prohibited under the Town’s comprehensive plan. The promise there was to change the the existing codes etc. Here the City position is that Amelia Bluff comports with the Comp Plan and Land Development Code and the City’s position is the FLUM is in error. The facts and circumstances are different, hence my statement that I leave it to the courts to opine in the circumstances presented concerning Amelia Bluff, whether the failure to correct “an error” may violate the Harris Act.
Adam
Again….kudos to Chapman, Kreger and Miller for doing the right thing…please continue. The developer seems willing to work with the city to meet conservation requirements…..let him continue and let all parties win. Responsible development is good development….increases the tax base, brings fresh ideas and new contributors into the community…..conservation and development can cohabit. Thank you.
“Responsible development is good development…increases the tax base, brings fresh ideas and new contributors into the community…..conservation and development can cohabit”
I really question the above statement when it applies to a place like Amelia Island. If the statement were made about an undeveloped place, someplace poor, lacking in jobs, no services, I would support the statement. And while I think we can agree responsible development is far better than bad development, on Amelia Island anything other than redevelopment of property is probably not necessary. There is a lot of that going on which is good. However, new development is not something the island needs. The long-touted theory of bringing in increased tax revenue is one of those never-ending stories sold to residents. Unfortunately, it never seems to materialize. Raised revenue simply ends up going to support all the new development. Have your taxes ever gone down even though the population has doubled? If you have lived here all your life is it better and cheaper today because of all the development? There is no doubt there are improvements and no doubt things were lost. However, I think we need to be very suspect when people tell us all the new development will give us great tax benefits and somehow improve our current community. Lastly, implying conservation and development can “cohabit”. I would like to think that. It is such a nice ideal. The issue I have is that conservation is always some afterthought. Developers grudgingly agree to allowing some trees. Is that conservation? Has everyone reading this gone by the development going in on 14th and Lime? Remember the fight over that? The wet land battle. If you have not driven by take a gander at that. Drive down Lime and see all the apartments. Ask yourself if you see any of that conservation area promised. I am sure there will be a little park, a place to walk the dog. Is that what you think of as conservation?
Chris, could not have said it better myself. These development pushes are supported on the misguided notion that the “revenues” they bring will be beneficial. They are not revenues. Businesses have revenues, cities have taxes. Businesses entice customers with facilities and product. Cities are supposed to represent those who live there. They are not the same thing.
One thing troubles me. Someone else noted it above. Is it likely someone would entertain a multi million project and rely solely upon a land use opinion by the City staff as to its availability for development. I would think any developer would have reviewed the public records themselves. Frankly had it been the reverse, I am sure they would have pointed out the FLUM was the guiding document if it showed it was an unencumbered parcel.
As far as where this stands now, unfortunately the cat is out of the bag. The financial downside to terminate this project now will lead to very expensive litigation, something this city has a history of losing. It pains me to see these “mistakes” pile up like the developer who “mistakenly” clear mowed the parcel on Sadler a few months back. Same result different day, the ecology of the island get kicked to the curb again.
Wonder about the implications of Peg Davis’s piece in the “News Leader” on the dump/contamination issues in the area around this proposed project – for both sides….