Submitted by Suanne Z. Thamm
Reporter – News Analyst
February 8, 2018 – 12:54 p.m.
The city’s Planning Advisory Board (PAB) recommended against it. City planning staff did not support it. But at their February 6, 2018 Regular Meeting the Fernandina Beach City Commission (FBCC) unanimously approved on First Reading Ordinance 2018-01, which would transfer decision-making authority from the Board of Adjustments (BOA) to the City Commission for consideration of variance applications that seek to combine lots within the established Job Opportunity Areas along South Fletcher Avenue. They also added a prohibition on accepting variance applications to fill wetlands.
The FBCC generated the request for the code change in November last year. PAB considered the request at its Regular Meeting on January 10, 2018, and issued a unanimous recommendation of denial. In keeping with the staff recommendation, the PAB cited that the Board of Adjustment (BOA) and Historic District Council (HDC) are the most appropriate bodies 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).
Staff recommended denial of the proposed amendments to remove variance review authority from the BOA, agreeing with the PAB that the BOA and HDC are boards well versed in making determinations of hardship under the guidance of the City’s criteria for granting a variance. The Summary Report reads: Changes, such as those under consideration, not only serve to undermine prior efforts of remove subjective decision making procedures through the LDC re-write in 2006, but it also erodes the arduous work provided by volunteer bodies serving the City to improve processes which are equitably applied.
The underlying concern of both the city staff and the PAB is the potential for politicizing a process that has operated well under the jurisdiction of citizen boards composed of individuals with expertise gained over time and who do not seek election in the course of carrying out their responsibilities.
Vice Mayor Len Kreger explained that the request for the change had come about as a result of a compromise among the previous City Commissioners: to lift the absolute prohibition on requesting variances to combine lots in Job Opportunity Areas along South Fletcher, the FBCC would hear the applications themselves, as opposed to allowing a newly permitted area of variance applications to be heard by the BOA. He added that Mayor John Miller had also included variance applications to fill wetlands as an FBCC duty.
Kreger said that since the city’s Comprehensive Plan bans the filling of wetlands, such variance requests should not even be accepted for consideration. Commissioner Chip Ross cited parts of Florida Statutes that reinforced Kreger’s position. He asked that a statement be included in the ordinance that clearly states a variance shall not be granted for the filling of wetlands, taking the matter completely off the table.
Ross said that he was ambivalent about the combining of lots, but that he wanted such cases to go to the Board of Adjustments. Commissioner Roy Smith explained that the lot combination potential applied to a limited areas zoned commercial and in the Job Opportunity Areas on the west side of South Fletcher. He said that right now the lots in question are so small, that without combinations they are almost useless for commercial purposes.
City Attorney Tammi Bach and Planning Manager Kelly Gibson attempted to clarify whether the ordinance applied to Job Opportunity Areas on both sides of South Fletcher or only the west side. Smith said it was the intent of the FBCC last year to apply only to the west side.
Kreger moved to approve the Ordinance with Ross’ amendment about not considering variance requests to fill wetlands. There was considerable hesitation and some discussion before Smith seconded the motion. PAB Member Frank Santry cautioned against including language prohibiting requests to fill wetlands. He said that the issue is already clearly covered in law and the city’s Comprehensive Plan, and if included could provide another vesting claim for someone seeking to fill wetlands.
Commissioner Ross and Mayor Miller agreed with Kreger’s claim that despite what currently should be an absolute prohibition, the Board of Adjustments has given permission to fill wetlands. Santry suggested that the City Attorney should explain to the BOA members that they shall not give such approvals.
BOA member Lynn Williams addressed the FBCC and said that during his 7 years on the BOA, the board has never approved the filling of wetlands, although five cases had requested permission. He charged the FBCC as the only group that has approved filling wetlands. “That’s particularly why I don’t trust the Commission to hear these cases,” he said.
Attorney Bach challenged Williams claim. “That’s not true,” she said. She cited two cases where the BOA had approved filling wetlands, one for a marina and one to construct a swimming pool. Miller agreed with Bach’s claims. Williams claimed that he was not a BOA member for the marina case.
The ordinance will return for a second reading and a public hearing before a final vote of the commission.
I wonder if, by not taking such variance applications to the BOA, the FBCC is not only failing to follow the specific process designed to handle such matters in a fair and impartial manner but if the FBCC is also forfeiting our system of checks and balances with regard to the LDC. If the FBCC can side step well established processes like this, what other procedures or processes might be next on the chopping block?