By April L. Bogle
Twelve townhomes are one step closer to being built in a historic Fernandina Beach neighborhood after the city commission, in a four-to-one vote late last night, approved a preliminary plat/replat application for five land parcels along Beech Street between South Third and South Fourth streets. The 12-townhome subdivision is to be called “Third and Beech.”
“I believe they (city commissioners) violated their own Land Development Code (LDC) 1.03.05. I believe it’s a clear violation, and my advice is to take it to a circuit court judge,” attorney Ralf Brookes told citizens opposing the development shortly after the vote was taken.
“We presented a really great case,” said Taina Christner, who lives across the street from the Tringali property and has been leading efforts to prevent the subdivision. “I believe the commission has ignored the Land Development Code and violated their oath of office.”
After a nearly four-hour quasi-judicial hearing on the matter, Mayor Bradley Bean, Vice Mayor David Sturges and Commissioners Darron Ayscue and James Antun voted to approve the plat/replat application without citing examples of “competent substantial evidence” that it adhered to the city’s Comprehensive Plan and LDC.
Commissioner Chip Ross voted to deny the application after listing more than a dozen examples of how the testimony failed to provide competent substantial evidence. “There was no competent substantial evidence in the record that the proposed plat ensures the development adjacent to the historic district complements the patterns, character and scale of the historic district as required by Comprehensive Plan 11.06.01. In fact, as many of our citizens testified, it did not meet that standard,” he cited in one example.
In quasi-judicial hearings, the applicant must present competent substantial evidence to prove their request meets legal requirements. If they do not, their application must be denied.
“They just made a motion, but they didn’t list the competent substantial evidence. Is that appropriate?” Ross asked Harrison Poole, the attorney advising the commission in place of City Attorney Tammi Bach, who was arguing the Tringali case.
Poole responded, “As a general rule, I would recommend to list out that competent substantial evidence. Is it necessarily a requirement? If it’s something that goes to review, the entire record becomes available on certiorari review to the circuit judge that would be assigned to it, and they would be able to determine based on that review whether or not the decision was supported by competent substantial evidence.”
Prior to the vote, city staff and applicants Ron Flick of Compass Group and Asa Gillette of Gillette and Associates presented arguments supporting the application. These were followed by presentations from attorneys and witnesses representing Tringali neighbors who oppose it. Only Commissioner Ross cross-examined the witnesses.
Bach maintained that the application approval process being used in this case — seeking commission approval rather than approval from the Board of Adjustment (BOA), which is the governing body that decides on applications for variances — did not violate LDC 1.03.05 because the developer was not requesting to restore the property’s 20 underlying lots of record.
LDC 1.03.05 requires that where a single-family detached residential unit exists, it constitutes one building site and must be considered the lot of record and no construction permit can be issued for more than one residential dwelling. Currently, the property has been combined into five lots of record. It also states that a “change from the foregoing provisions for the purpose of establishing building sites, or separation of building sites requires supermajority approval by the Board of Adjustment. …”
“The fact that staff did not apply LDC 1.03.05 — and I came into this after the application came in and after the staff had done their analysis and they had decided to apply the subdivision standards and not 1.03.05 — the reason for that was because the applicant was not asking for the underlying platted lots of record … those were not asking to be restored, to be buildable sites. And in those cases in my research, when I looked back for the last 10 years, more like 20 … if subdivision is being asked for and it’s not including the underlying lots of record, then the subdivision platting requirements apply. If somebody wants to restore all of those underlying lots of record, or some of them that have been previously built on, then that’s when 1.03.05 applies,” said Bach.
Bradford Clark, an attorney representing Christner, refuted Bach’s argument. “The city and staff have taken a position that this section (LDC 1.03.05) does not apply in this case, and it only applies when the applicant is seeking to return to the original lots of record. Nowhere in the code does it say that. In fact, it says something totally contradictory,” he said.
Clark explained that section LDC 1.03.00, entitled Applicability, explains where the code applies “and it says, except as specifically provided, the provisions of this LDC shall apply to all development in the city 1.03.01.”
Clark reiterated that LDC 1.03.05 was “added to the code specifically and explicitly” to prevent property owners with single-family homes built on combined lots from tearing them down, or subdividing and building multiple, single-family homes so that the character of the neighborhood can be maintained.
“This doesn’t mean you can never do it. Section 1.03.05C provides you can go to the Board of Adjustment. Right there, that should be enough to decide this case, which is to say, our code requires us to send this case to the Board of Adjustment,” Clark said.
Clark also challenged Bach’s assertion that sending the Tringali application to the BOA for approval would put the city at risk for an Equal Protection claim because LDC 1.03.05 has not been uniformly applied. In noting the staff’s list of 16 cases that went to the BOA, he said, “Many of them were denied. So I would say two things. One, why did they go to the BOA if it (LDC 1.03.05) doesn’t apply in all these cases, and two, if it would create an Equal Protection problem to go to the BOA or have the BOA deny the claim, then all these cases where the application was denied by the BOA would have Equal Protection claim.”
Twenty citizens requested to speak, but due to the late hour, only nine citizens remained in the auditorium when the hearing’s public comment period opened. All nine opposed the development, stating concerns including negative impacts on the character of the neighborhood, loss of tree canopy, risk of increased drainage and flooding issues, increased density and traffic, and unsightly views of the townhomes rather than green space from porches across the street where neighbors love to gather.
Flick attempted to address the concerns in his presentation and closing remarks. He said he never considered going back to the city’s original 1847 plan that specified 20 lots on the property, choosing instead to reduce the lots from 20 to 12. “There will be six buildings, three facing Third Street and three facing Fourth Street.” The Fourth Street side will have 20 feet of green space between buildings.
He clarified that the development is medium density, not high density. “It is exactly by the law, exactly by your ordinance and your comprehensive plan.” And he explained the development is a single-family home subdivision. “The only difference is that we’re attached, which makes us a two-home townhome. We’re not a row of townhomes with no air space in between.”
Flick discussed parking concerns in terms of the amount of impervious space that would be used by the development’s shared driveway. “Our intent was to have the least amount of impervious space making us consistent with Comprehensive Plan. We’re only consuming 41% of impervious space and your requirement is 60.”
In terms of drainage and flooding, Flick explained that although the property will be raised by about two feet he joked it doesn’t have a 360-degree retaining wall. “It would look offensive if I looked across the street and everything was up on a pedestal,” he said.
Instead, “the idea” is to create a front green slope of grass. “The impervious area that we collect off our roof system goes into collection systems and into our water system in the back to be retained and percolated into the soil so it doesn’t add to any water conditions,” Flick said.
Additional drainage details came from Gillette, who is serving as the project’s engineer.
In terms of the approval process, Flick said, “I rely on city staff, who I think have done a very thorough job and explained it very clearly to me and therefore we took that route and followed that for the past year.”
Once the testimony, cross-examination and public comments were completed, it was time for the commission to vote. At that point, Antun asked Poole for his opinion. To the surprise of many in the auditorium, Poole presented a slide show he had prepared in anticipation of this question. The document was not in the agenda packet.
Poole pointed to LDC 4.04.00, which regulates subdivision or re-subdivision of land. “That’s what you have in this case. This is not restoring an underlying plat of lots, this is a new subdivision. So it is effectively destroying what the original lots were and replacing them,” he said.
Furthermore, Poole said, in this case, regulations for subdivisions should be followed. “It’s my legal opinion that where you have a section that says this controls, regulates subdivision or re-subdivision, if there’s a conflict, the specific portion controls.”
Finally, he said, “Why that becomes significant is that when you look at Chapter 11 (of the LDC) on who has authority or jurisdiction to hear a preliminary or final subdivision plat, that is only vested in the city commission. My opinion is this can’t go to the Board of Adjustment. It has to be your decision.”
Says Christner, “The presentation that Harrison Poole made this evening was sprung upon us and I think that should have been thrown out. I’m pretty shocked.”