Submitted by Suanne Z. Thamm
Reporter – News Analyst
March 8, 2018 6:00 p.m.
Despite opposition from city staff and the city’s Planning Advisory Board (PAB), the Fernandina Beach City Commission unanimously approved Ordinance 2018-01 as amended by Commissioner Chip Ross at Second Reading on March 6, 2018. This ordinance transfers decision-making authority from the Board of Adjustment (BOA) to the City Commission for variance consideration of applications which request filling of wetlands or combining of lots within the established Job Opportunity Areas. The amendment also prohibits variances to exceed the 35-foot height limit on oceanfront property.
Because of the amendment, this ordinance will require a Third Reading scheduled for April 3, 2018.
The PAB has consistently opposed transferring approval authority to the FBCC. In keeping with the staff recommendation, the PAB cited that the Board of Adjustment or Historic District Council (HDC) is the most appropriate body to hear and consider any variance requests. Further, the board directed that no wetlands variance applications should be taken under review as it would violate provisions of the Comprehensive Plan (policy 5.08.04) and referenced in LDC Section 10.02.01(C)(2).
On February 6, 2018 the FBCC overrode PAB and city staff recommendations to approve the change unanimously.
During the Public Hearing at Second Reading on March 6, 2018, BOA member Lynn Williams rose to continue his opposition to the proposed change. Williams said that during his 7 years of service on the BOA, different city commissions would have voted in opposition or in favor to the change. He said, “The thought that you folks, elected politicians, should be hearing these cases, is a mistake.” Williams claimed that during his tenure, the BOA has never approved a case to fill wetlands. He said that the wetlands issue is not “a cut and dried thing.” While the city knows in general where they are, their size and shape changes depending on rain or drought. Williams said, “The key to where builders can build is the buffer: 25 feet outside a wetland.”
The BOA has requested on several occasions, Williams claimed, that the city hire an environmental engineer on retainer to help with wetlands determinations. City Attorney Tammi Bach clarified that the city’s Comprehensive Plan and the Land Development Code both state that wetlands cannot be filled. But the buffer area is not addressed. The change under current consideration would not prohibit applicants from seeking a variance to the 25-foot buffer requirement.
John Hartrich addressed the FBCC in opposition to forbidding variances to fill wetlands. As a city property owner along Egans Creek he objected to language in the proposed ordinance that would prohibit him from even applying for a variance with respect to his property along Sunrise Drive. “It’s not fair,” he said. “And it directly affects the value of my property.” Hartrich said that when he purchased the property he had received from the seller a DEP permit to fill wetlands on the property. After years of paying for a renewal of the permit, DEP advised him to stop until he was ready to build. “Where do I go from here?” he asked.
At the close of the public hearing, Commissioner Chip Ross spoke to the reasons for granting variances, including the six criteria outlined in city code. He explained that at variance hearings, city staff proceeds to explain to the BOA how the application meets or does not meet all six criteria. Ross quoted from a Florida Supreme Court ruling which stated: As a general rule variances are to be granted sparingly only in rare instances and under peculiar circumstances.
In responding to Williams’ claims that the BOA was not political in hearing variance cases, Ross noted that in 2017 the BOA heard 11 cases. “The staff, whom I believe are experts in determining whether criteria had been met, said that only 2 of those cases should be approved,” Ross said. While the BOA agreed with those cases, they went on to approve variances for 7 of the 11 cases that came before them. A similar situation occurred in 2016, when the BOA heard 20 applications for variances, only 3 of which staff supported. However, the BOA went on to approve 13 of the cases that came before them.
Ross also cited deficiencies in the BOA minutes, which by law are required to address the reasons for deciding why each of the 6 determining criteria have been met. “From the cases I reviewed,” Ross said, the BOA did not address that.”
Ross then offered an amendment to the proposed ordinance, which would prohibit granting a variance exceeding 35 feet maximum building height for ocean front buildings (buildings within 800 feet of the ocean). “I think that is very important and supported by the community,” Ross said.
Ross said he would support transferring to the FBCC the hearing of variance requests to combine commercial lots in Job Opportunity Areas. He believed that hearings before the FBCC were more widely viewed than those before the BOA, which are not televised or well publicized. “I think this is an issue that has vexed the community for years,” he said.
Vice Mayor Len Kreger reminded commissioners that the proposal to move hearing of variance applications to combine lots in Job Opportunity Areas along the beach was a compromise by the previous commission. Before this compromise was offered, there was an absolute prohibition against even requesting a variance for this purpose. Kreger said that with respect to the filling of wetlands, there is an absolute prohibition against that in the city’s Comprehensive Plan. Should commissioners desire to change that, they will have an opportunity when the entire Comprehensive Plan comes up for review next year.
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.