By Adam Kaufman
July 18, 2019 10:41 p.m.
The Amelia Bluff hearing concluded Wednesday evening July 17.
The Day was devoted to testimony of additional witnesses for the City of Fernandina Beach (City) and the intervenor, Amelia Bluff, LLC. (Amelia Bluff).
Restating the facts:
Amelia Tree Conservancy (ATC) and the Sierra Club (Sierra) are challenging whether the Small Scale Future Land Use Map (FLUM) Amendment to the City’s Comprehensive Plan with regard to 6.4 acres on the Amelia Bluff site is in compliance with Florida statutes.
The Amendment changes the designation of those 6.4 acres to Low Density Residential. The 6.4 acres were part of 11.07 acres purchased from the School District that was designated Conservation. 3.76 acres of the purchase are jurisdictional wetlands, and were conveyed to the City. 0.917 acres were dedicated for a right-of-way connection between Hickory Street and Florida Department of Transportation property.
The 6.4 acres are part of the 11.71 acre Amelia Bluff site, which includes 5.31 acres of land already designated Low Density Residential, where there is proposed construction of a 30 dwelling subdivision.
There are no jurisdictional wetlands on the 6.4 acres in question or the subdivision as a whole.
The proposed subdivision is bordered on the East by 25 foot buffers and is approximately 300 feet from Egans Creek. Egans Creek is the border of the Egans Creek Greenway.
The St. Johns River Water Management District issued Amelia Bluff an Environmental Resources Permit for the proposed subdivision.
Small Scale Amendments apply to 10 acres or fewer. The change must maintain internal consistency between elements of the City’s Comprehensive Plan. A Plan amendment must be supported by relevant data and analysis.
A Small Scale Amendment, by statute, is to be determined to be in compliance, if the City’s determination is “fairly debatable.” If the decision is reasonably subject to disagreement, it is “fairly debatable.”
ACT and Sierra claim the Amendment “involves more than 10 acres”: the 11.71 acres of the subdivision and, in the alternative, that the Amendment is internally inconsistent with City’s Comprehensive Plan.
The parties have 10 days after receipt of the transcript of the hearing to file briefs. Administrative Law Judge E. Gary Early indicated his Recommended Order would be filed and issued 20 days thereafter.
If the Amendment is found to be in compliance, the Recommended Order goes to the Department of Economic Opportunity (DEO). DEO has 30 days after it receives the Recommended Order to issue a final order or send the matter to the Administrative Commission if DEO thinks the Amendment is not in compliance.
If the Amendment is found not to be in compliance, the recommended order goes directly to the Administration Commission, which has 90 days after it receives the recommended order to issue a final order.
Judge Early confirmed his statement, made the second day of the hearing, concerning the relevance of the claimed “scrivener’s error” with respect to the conservation designation of the 11.07 acres of former School District property.
Noting he is bound by Section 163.3177 of Florida Statutes as to the required elements of a comprehensive plan and its amendments, he stated that “how we got to that designation is beyond my jurisdiction.”
The City’s first witness was Jacob Platt, its Senior Planner. Platt was Chair of the City’s Technical Review Committee when it reviewed the Amelia Bluff project.
Platt was questioned about the City’s Tree Ordinance, the buffer at the Amelia Bluff site and “consistency” of the Amelia Bluff project with residential developments on Citrona Drive, including Shell Cove. He testified that he was instrumental in identifying trees on the Amelia Bluff site for protection. He was challenged on cross examination with regard to current protection of the trees and the buffer’s native vegetation. He was asked, who is now or in the future responsible for their protection.
The City’s Tree Ordinance prohibits removal of trees with a diameter greater than 5 inches at breast height and requires the planting of trees and/or the payment of fines in mitigation. Petitioners have claimed that trees are no longer marked for protection and others have been injured.
Platt ultimately answered, Code Enforcement.
Andre Desilet, the City’s Stormwater Director was next to testify.
Desilet testified as to proposed stormwater treatment at the project site. He called attention to the City’s requirement that the water treatment at the Amelia Bluff site received approval from the St. Johns Water Management District, as well as, to the soil studies and engineering reports that were required.
Nick Gillette, of Gillette and Associates, Amelia Bluff’s project engineer, was the following witness.
Gillette testified as to the integrity of the stormwater system and the placement of its two connected ponds, one smaller than the other. He referenced the topographic, geotechnical, soil and tree surveys that had been completed. Gillette stated that the water discharge from the site would not be demonstrably different than it is currently. He testified that the system exceeded standards.
Gillette testified as to the appropriateness of the 25 foot buffer. He also testified as to the language required by the St. Johns Water District that will be incorporated in homeowners’ documents that would ensure environmental protection.
On cross examination, Gillette was pressed as to the appropriateness of the stormwater system design. Finally causing Judge Early to suggest to the Petitioners, that he was “not here to redesign” that system.
Lee Gerald, of LG2 Environmental Solutions, who holds a Masters Degree in Marine Biology and Coastal Systems, was accepted as an expert in environmental science and wetland ecology.
Gerald, who made site visits to the project property, testified that there would be no adverse effect as a consequence of the Amelia Bluff project, as designed, to the buffer, wetlands, Egans Creek, and to the Greenway beyond. Gerald challenged whether “Maritime Forest” was a classification that is used with precision. He indicated that it is the Maritime Hammock Forest that is imperiled.
Gerald also testified that LG2 completed a wildlife study that was submitted to the City. The study found no adverse effect as a result of the Amelia Bluff development.
The Comprehensive Plan
Brian Teeple, the former CEO of the Northeast Florida Regional Council (NFRC), and American Institute Certified Planner, was accepted as a land planning and comprehensive planning expert. He testified on behalf of Amelia Bluff.
Teeple testified that he had, over his 33 years at NFRC, participated in the development of some 1600 Comprehensive Plans and over 600 small scale amendments. He indicated the NFRC had assisted the City of Fernandina Beach in the past.
Teeple noted that the City has some 872 policies in its Comprehensive Plan. He observed, with respect to a small scale amendment, that when someone looks for internal consistency between elements of a comprehensive plan, you cannot “nit pic.”
Teeple testified that he reviewed all materials, data and analysis with regard to the small scale amendment at issue and found it to be consistent with the Comprehensive Plan, and in compliance with Florida statute.
He rejected the Petitioners’ claim that the amendment had to be precluded as “small scale” because it applied to a portion of a site plan that was over 10 acres. He suggested that has never occurred in his experience.
Teeple found pivotal the transfer of the 3.7 acres of wetlands, in perpetuity, to the City for conservation and viewed the City’s actions with regard to site approval that protected certain trees and ensured water quality significant.
Petitioners questioned Teeple with regard to a series of policies in the City’s comprehensive plan. As to those policies that applied to conservation, water quality, protection of wet lands, preservation of native vegetation, and forested areas, Teeple asserted that the Amendment was in compliance and consistent with the Comprehensive Plan.
Toward the conclusion of Teeple’s testimony, there was a back and forth debate about Policy 6.05.01: “The City shall continue to include conservation areas on the FLUM.”
Petitioners’ arguing that this policy should prohibit any alteration of the FLUM with regard to areas designated conservation. Teeple suggesting that no policy statement is that absolute.
At the end of the hearing there was an interchange about whether the Amelia Bluff site was “adjacent to,” “abutted,” or “bordered” the Egans Creek Greenway. One attorney googled Merriam Webster and showed a definition on his phone to Judge Early. Early suggested he would consult his own dictionary when drafting his Recommended Order.
From my home, the Greenway is a little more than “over yonder,” but not quite as far as “you can’t get there from here.”
It was a long three days.
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.