Submitted by Suanne Z. Thamm
Reporter – News Analyst
January 29, 2015 5:00 p.m.
About seventy people packed Fernandina Beach City Hall Commission Chambers for a special meeting on Wednesday, January 28, 2015. While the meeting had initially been called to approve the award of a $285,000 bid to dredge the City Marina, Commissioner Pat Gass had expanded the meeting to include reconsideration of the Fernandina Beach City Commission’s (FBCC) vote to accept the Special Magistrate’s order to defer to St. Johns River Water Management District (SJRWMD) for review of a multi-family development proposal submitted by First National Bank South (FNB) that would require filling of wetlands on a 24-acre property located on the southwest corner of Lime and 14th Streets. The meeting was scheduled to last thirty minutes, but lasted twice as long as commissioners listened to public comment and debated among themselves a course of action. The audience applauded speakers and the commissioners who supported reconsideration of the earlier decision.
When the vote was taken, Commissioners Pat Gass and Robin Lentz reversed their vote from the vote taken at the January 20 FBCC Regular Meeting to join Vice Mayor Johnny Miller in reconsidering the decision of the Special Magistrate. Both Mayor Ed Boner and Commissioner Tim Poynter maintained their original position, citing the uniqueness of the property in question, property rights, and a desire to avoid protracted litigation and legal costs that would likely lead to the same result.
The FBCC will hold another hearing at 4:00 p.m. on February 3, 2015 to allow both sides to present arguments before taking a vote to possibly repeal Resolution 2015-12, by which the FBCC accepted the order of the Special Magistrate. City Attorney Tammi Bach advised commissioners that in her opinion, a quasi-judicial hearing is not required. But in an abundance of concern for all parties, she recommended that both sides—the property owner and agent, as well as the city—be allowed sufficient time to present their arguments during that hearing.
The award of the marina dredging contract to Brance Diversified, Inc., was approved unanimously with no discussion.
In opening the discussion on Commissioner Pat Gass’ request to reconsider the FBCC vote on accepting the Special Magistrate’s recommendation to refer the wetlands determination and possible mitigation to the SJRWMD, City Attorney Bach provided a brief recap:
- The property in question encompasses 24 acres of land, partially in the city and partially in Nassau County;
- The city’s Board of Adjustment had denied a variance request by First National Bank South (FNB) in June 2014 to impact wetlands on the property;
- The Special Magistrate’s order—to refer the matter to SJRWMD—is not legally binding on the city, and that the city can accept, modify or reject the order;
- City staff maintains that the order is inconsistent with the city’s Comprehensive Plan.
Commissioner Gass moved to approve reconsideration and was quickly seconded by Vice Mayor Johnny Miller. Mayor Ed Boner opened the meeting to public input and 6 individuals took advantage of their opportunity to speak.
Members of the public raised concerns ranging from the banking practices of First National Bank South to the importance of the particular wetlands that might be lost as well as the need to enforce city regulations without fear of pressure from special interests who threaten legal action.
Vice Mayor Miller thanked members of the audience for what he termed “astronomical research” into the matter. He said that the property is a wetland right in the middle of the city. In addressing concerns about legal arguments mounted by the applicant’s counsel, Miller said, “I know an attorney, a really good one. And she (City Attorney Tammi Bach) and city staff have advised against accepting the Special Magistrate’s Order. I will vote no again and again on this issue.”
Commissioner Pat Gass addressed the audience and apologized for her previous vote. “I dropped the ball,” she said. “I let the residents down. Forgive me. I want all the information on the table before we vote. I don’t believe in filling wetlands or mitigation.”
Commissioner Robin Lentz admitted that she was conflicted over the issue. She said that in her heart, she is an environmentalist, but she is torn over the need for more workforce housing in the city. She said that as a single teacher, she would not be able to afford living in the city. She concluded that she wanted to hear both sides of the argument on accepting the Special Magistrate’s order.
Commissioner Tim Poynter said that he had left the January 20 FBCC meeting thinking “we had done the right thing.” He cited the law requiring referral to SJRWMD for property that overlaps jurisdictions. He said, “Shame on the city for not annexing this property into the city [earlier]. I’m not in favor of filling in wetlands, but I also believe in property rights. The Special Magistrate’s order is very specific to one piece of property.”
Mayor Boner said that he agreed with Poynter. He said that judges hate dealing with property forfeitures, and that not all wetlands are the same. He said that if the matter goes to court and the judge upholds Florida Statutes and the Special Magistrate, the matter would still go to SJWMD. But in the meantime, the city will have incurred lots of legal fees.
Gass noted that the county portion of the property is zoned commercial – utility. She opined that the city’s current annexation is the reverse of what it should be in that the city should only provide water and sewer services if the property owner agrees to annex into the city. She asked the city attorney to draft an ordinance changing the rule.
Miller said, “I am tired of being pushed around by attorneys.” He cited threats of lawsuits over annexation from Gateway Amelia property owners that never materialized. “We need to make a stand at some point.”
Bach informed the audience that Michael Mullin, agent for the property owner, had notified the city by letter that afternoon of objections to the reconsideration. Mullin continued to cite Florida Statutes Section 373.414(1)(c) that in his opinion preempts the imposition of city restrictions because the property lies in two separate political jurisdictions: the city and Nassau County. Mullin objected to the short notice (one day) provided to appear to address reconsideration.
Poynter asked Bach, “So it’s your opinion that they have no case?” Bach replied that the Special Magistrate’s decision does not create a cause of action, and that the property owner has not yet exhausted all remedies because he has not yet approached Nassau County with his development proposal. Poynter said that he understood that it was the county’s policy to automatically defer such wetlands determinations and mitigation to SJRWMD.
Brian Hayden, an attorney with the city’s insurance law firm Rumberger Kirk & Caldwell, said that the city’s position is that the Florida Statutes Section 373 does not apply in this case because the city is not seeking mitigation. Bach said that the matter is within the prerogative of the FBCC.
Gass said, “I don’t mind development; just don’t fill in wetlands.” Commissioners reminded Gass that she chaired the Board of Adjustments when it approved filling in wetlands to build the new Amelia Community Theatre. Gass responded that in that case it had been demonstrated that the wetlands were not natural wetlands but as a result of human actions over a 30-40 year period.
Miller congratulated Gass on her admission that she had been wrong in her previous vote.
Bach emphasized to commissioners following their 3-2 vote approving reconsideration that in her opinion there is no requirement for a quasi-judicial hearing, despite contrary opinion from the property owner. She repeated that at the February 3 hearing, commissioners may accept, reject or modify the ruling of the Special Magistrate.