By Adam Kaufman
Legal Analyst
September 16, 2019
The Amelia Tree Conservancy (ATC) and the Sierra Club (Sierra) challenge to the City of Fernandina Beach Small Scale Future Land Use Map (FLUM) Amendment to the City’s Comprehensive Plan with regard to the proposed 30 parcel residential subdivision at Citrona Drive was rejected by Administrative Law Judge (ALJ) E. Gary Early in a 67 page Recommended Order issued Monday afternoon September 16, 2019.
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.”
Judge Early found that ATC and Sierra did not prove “beyond fair debate” that the FLUM Amendment is not based upon relevant and appropriate data and analysis or is otherwise inconsistent with Florida Statute and the City’s Comprehensive Plan.
Judge Early stated that he would give “no consideration” to whether the property at issue’s prior “Conservation” designation was a “scrivener’s error.” “The bottom line,” he noted, “is that this case will be decided on the basis of whether the FLUM Amendment is or is not consistent with the Comprehensive Plan, and not on whether the FLUM is accurate.”
In analyzing the consistency of the FLUM Amendment with the Comprehensive Plan Judge Early stated that he “gave full attention to not only the witnesses and evidence produced by the parties, but also to the public comment taken during the evening of July 15, 2019.”
Judge Early continued: “This project has clearly evoked a great deal of justifiable passion from people who are concerned, invested, and involved in their community. However, the burden applicable in proceedings of this nature – beyond fair debate – is substantial. The decision that was made by the City officials was … a legislative decision. Regardless of the extent that their attention may have been misdirected to the issue of whether the adopted and valid Conservation designation was a ‘scrivener’s error,’ the data and analysis in support of the FLUM Amendment was available. Under the specific facts of this case, the decision of the elected officials to approve the FLUM Amendment, regardless of their publically stated reasons, was one that reasonable persons could differ over, and was therefore ‘fairly debatable.’”
Addressing the claimed “scrivener’s error” Judge Early noted: “It is an absolute shame that much of the confusion in this case was brought about by a statement of a senior City planner, Mr. McCrary, made without a shred of authority and without any factual basis whatsoever, that a planning document adopted by the Fernandina Beach City Commission contained an error that he could ‘fix’.”
Judge Early observed that, in part, because of the alleged “scrivener’s error” the City Commission’s discussion of the FLUM Amendment focused on that “error,” the cost of litigating a Bert Harris Act “taking” claim if the FLUM Amendment was denied, the cost of acquiring the Amelia Bluff property and “nothing more.”
Judge Early maintained that he “was convinced that, at least as to the public discussion of the issue, little consideration was given to whether the FLUM Amendment was consistent with the Comprehensive Plan.” Judge Early then stated: “If the issue in this case was whether the Commission actually considered available data and analysis supporting consistency, the evidence would suggest the answer is ‘no.’ However, the issue in this de novo proceeding is whether data and analysis that was available to the Commission at the time of adoption of the FLUM Amendment, and whether that data and analysis, together with any subsequent analysis, establishes that the FLUM Amendment is ‘in compliance’ with the Comprehensive Plan under a ‘fairly debatable” standard.”
Florida case law has established that all data available to the local government in existence at the time of the adoption of the plan amendment may be relied upon to support an amendment in a “de novo proceeding.”
Judge Early found that when the application for the FLUM Amendment was filed, the purchasers of the Amelia Bluff property provided the City with a substantial amount of information for review by City staff, and to which the City Commission had access at the time it voted upon the FLUM Amendment. “Though there was little evidence that the data and analysis was fully considered by the Commission,” Judge Early ruled “the evidence established that there was substantial data ‘available at the time of adoption of the…plan amendment,’ and that the data was, at a minimum, analyzed and considered by City staff.” Judge Early stated “The FLUM Amendment is supported by the data collected by Amelia Bluff in support of its application.”
Judge Early denied each and every claim made by ATC and Sierra that the FLUM Amendment was inconsistent with and not in compliance with the City’s Comprehensive Plan and Florida Statutes.
The parties have the right to file written exceptions to the Recommended Order within 15 days.
The link to the full Recommended Order is:
https://www.doah.state.fl.us/ROS/2019/19002515.pdf
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.
Thanks Adam for the writeup and explanation. The ruling went the way I expected it would go as this was not about conservation but process. Hopefully the developer will reinstate his commitment to donate funds to the land conservation fund.
Process is only as good as the people charged with fulfilment of that process.
Judge Early in his opinion indicated that, “data and analysis” supported the FLUM amendment, though he wasn’t convinced that commissioners considered the available information.
Suggested reading on this issue, which summarizes some of Judge Early’s more critical comments embedded in his opinion, may be found on the NCF Independent website:
http://www.ncflindependent.com/2019/09/18/administrative-law-judge-sides-with-city-on-amelia-bluff-but-criticizes-approach/
Really! After demonizing him, putting him through a court case, having our our own local paper editor, Peg Davis start a whole campaign against him just for doing his job you hope he still donates money. He is a fool if he does. All the wannabe, clueless “activist” on the City Commission and in this town need to get a life.
Tim, I understand your comments but hopefully hewill continue to take the high road as he has done all along.
I have lived in Fernandina since 1974 and grew up in the historic district. I am no longer an employee of the County planning department and I am no longer in the land development business but thought I would read this article because I saw signs along the street about “bluffing” etc.
Before I could learn the meat of the story, I read this:
“Addressing the claimed “scrivener’s error” Judge Early noted: “It is an absolute shame that much of the confusion in this case was brought about by a statement of a senior City planner, Mr. McCrary, made without a shred of authority and without any factual basis whatsoever, that a planning document adopted by the Fernandina Beach City Commission contained an error that he could ‘fix’.”
Why is this Planner in charge of making decisions for our city? And has been for more than a decade.
Some city staff have their own personal agenda, or they side with someone who convinces them at the counter to see things their way, ignoring city code, they always have, just read the old Facebook page, the Amelia Island Brewing Company page (located at 228 North 2nd Street.) The code was not followed. City staff made up their own rules.
Another example I see that shows a total disregard for city’s land development code and the well being and preservation of Fernandina…The 200 year old square top house at 224 North 2nd Street is leveled and the Bailey House is barn red. The old wood railings and medallions from the Bailey House porch were thrown in a dumpster, original heart pine shipped in by Effingham Bailey in the late 1800s were allowed to be dumped. Some would say it’s not worth saving, too far gone.
Who’s in charge at City Hall?
Again I will say, each individual person at City Hall is quite nice and I really like the folks there but when you put them all together as a governing group, it is a dysfunctional organization and personal opinion is winning over the laws that are put in place by our Commissioners.
Thank you Judge for explaining the problem.
Courtney makes some good points. Regarding the preservation of Fernandina, the monthly Historic District meetings are the 3rd Thursday each month at 5:00 in city hall– the next one this Thursday 9/19. I would encourage citizens with concerns or interest in preserving the character and nature of our historic district to attend and feel comfortable in making your voice heard. If this is your bag, it’s exciting and informative.
Getting involved early in any development pipeline helps shape the final outcome of projects with cross-pollination and input. If there is public discontent once shovels hit the dirt and jobs commence, it is usually long after approvals were granted, and changes are not met with enthusiasm.
Get involved early and frequently. No reservation required. 🙂
As long as I have lived here – 20 plus years – that’s the way decisions like this have handled.
Sometimes common sense and logic carry the day…..welcome to Amelia Island new Amelia Bluff home buyers….it really is a nice place despite the disrespectful behavior of a minority.