Submitted by Suanne Z. Thamm
Reporter – News Analyst
September 16, 2016 2:12 p.m.
In an unusual move, the Fernandina Beach City Commission (FBCC) met in special session during a break in the regular meeting of the city’s Planning Advisory Board (PAB) on September 14, 2016. The FBCC meeting followed an hour of PAB deliberation and public input over three ordinances approved by a PAB subcommittee dealing with the city’s Comprehensive Plan Conservation and Coastal Management Area, including provisions for land uses within a special flood hazard area; Land Development Code amendment modifying industrial zoning standards and creating the Heavy Industry (I-2) zoning district; and map changes to reflect the new zoning categories for Heavy Industrial (I-2) and switching Industrial Airport (I-A) and Industrial (I-1).
Before an audience of 40-50 people, many of whom wore mill uniforms, the FBCC debated the PAB recommendations, took public input, and voted unanimously to approve the three proposed ordinances with modifications proposed by Commissioner Tim Poynter. Second readings of the ordinances and final votes are scheduled for the October 4, 2016 FBCC Regular Meeting. Additional public input will be taken at that time.
For additional background on the issues, consult earlier Fernandina Observer articles on the proposed LignoTech project and the Planning Advisory Board.
Both PAB members and city commissioners expressed frustration with the process and time frames for considering the issues before them.
PAB deliberations and actions
The PAB members during their meeting seemingly had difficulty understanding the insertion of new comments and changes to their subcommittee report following added staff and industry comments, primarily on the first of the three cases, PAB Case 2016-09. Some of their members even attempted to make changes to their subcommittee recommendations, which they had developed earlier. PAB Chair Mark Bennett reminded members of the time limit imposed by the FBCC for final consideration of their recommendations, moving discussion along in order to provide opportunity for public input.
Retired attorney Frank Santry commended the PAB for their work but objected to the last minute insertion of new material, which he said the public had not had sufficient opportunity to review. He objected to the City Attorney’s inclusion of references to Florida Statutes which he had not had time to study prior to the meeting. City Attorney Tammi Bach replied that certain federal and state requirements have not been delegated to local government and therefore are binding in this case. Santry appeared to argue that the local government could impose higher restrictions, but not eliminate or lower those imposed by a higher governing authority.
Rayonier Advanced Materials Assistant General Counsel Colby Slaughter also spoke during PAB public hearing. He said that the PAB’S current position appeared to be one step forward and two steps back. While the thrust of the original ordinances appeared to be toward the question of providing secure storage of hazardous materials, the scope had been expanded to the use of hazardous materials in industrial operations. He said that such an approach would limit the mills’ ability repair or upgrade their operations to keep up with new technology, in effect rendering the mills obsolete with time.
After discussing the additional input provided by city staff and the mills earlier in the week, a somewhat confused PAB voted unanimously to recommend their subcommittee report with some, but not all, recommended changes, thereby passing their recommendations on cases 2016-09, 2016-19 and 2016-20 to the FBCC for further action.
PAB Member Chip Ross recused himself from voting on PAB Case 2016-09, citing concerns raised by the City Attorney regarding his “adverse interest” in the topic.
FBCC deliberations and actions
All five Fernandina Beach City Commissioners were present for all or part of the PAB deliberations prior to the FBCC’s consideration of the matters. The FBCC considered these matters in the form of three ordinances:
- Ordinance 2016-32, amending the Land Development Code (LDC) for purposes of redefining the Industrial (I-1) Zoning District as Light Industrial (I-1), shifting the Industrial Airport (I-A) Zoning District to only the operational area of the municipal airport, creating a new Zoning District called Heavy Industrial (I-2) and adjusting provisions for the Industrial Zoning categories of I-1, I-A, and I-2 for specific uses, design requirements, tree protection and landscape criteria as contained in LDC Chapters 2 and 4; providing for severability and providing for an effective date.
- Ordinance 2016-33, changing the Zoning Map to reflect the new categories.
- Ordinance 2016-09, amending definitions and tables in the Land Development Code specific to land uses (storage of hazardous materials) within the areas of Special Flood Hazard Area and addressing coastal resource protection and waterfront planning.
[For full titles and texts of the proposed ordinances visit the city website fbfl.us.]
Ordinances 2016-32 and 2016-33 approved 5-0 on First Reading
Commissioners first considered Ordinance 2016-32. City Senior Planner Kelly Gibson explained that the ordinance originated with respect to changes in the Tree and Landscape Ordinance. She said that existing language discussed mill sites by name (i.e. Rayonier, WestRock) and that city staff had been asked to modify the code to reflect use (e.g., heavy industry) without attaching specific company names. She added that while examining this issue, staff also determined that some changes needed to be made with respect to separating airport operations from light industrial use areas on airport property. Mayor Miller asked whether the proposed solar farm at the airport would be consistent with the proposed zoning change, and Gibson assured him that it would.
Judith Lane, immediate past chair of the Planning Advisory Board, explained the extensive involvement of property owners, the mills and environmentalists in discussions over this ordinance over many months and urged the adoption of the ordinance. She said that passage of this ordinance will help people to better understand and differentiate light industry and heavy industry when attaching LDC amendments and codes to a particular land type.
Frank Santry renewed objections voiced at previous meetings with respect to the sequencing of effective dates, cautioning commissioners that none of the proposed LDC changes could become effective legally until the proposed changes in the Comprehensive Plan were adopted. City Attorney Tammi Bach said that she did not anticipate the city’s granting permits in the 30-day period between the effective dates of the LDC changes and the Comprehensive Plan approval.
City Commissioners passed both proposed ordinances as recommended by the PAB and without change on unanimous votes.
Ordinance 2016-09 amended and approved unanimously on First Reading
Commissioner Len Kreger moved and Commissioner Roy Smith seconded this item as recommended by the Planning Advisory Board.
WestRock representative Colin Campbell sought clarification of the matter under consideration on behalf of the industrial group that had provided comments on the PAB subcommittee report. He said that throughout the period of consideration of this ordinance, the PAB had increased its scope to include not just the storage of hazardous materials but also the use of hazardous materials as part of the industrial process. He said that comments by the mills reflected their concerns that the expanded scope of the ordinance would cause the mills to freeze current operations to this point in time, thereby ruling out advances in industrial processes, materials handling, etc. He said that language could require WestRock to raise the rail bed by 12 feet to bring in coal to its facility.
Commissioner Tim Poynter asked city staff if the FBCC was looking at two separate ordinances. City Attorney Bach explained that the initial ordinance that the commissioners had received last week had been modified the previous day to incorporate the mills’ comments. She clarified that Kreger’s motion to approve the ordinance was to adopt the proposed ordinance as written without the additional changes suggested by the mills.
With that explanation, Commissioner Smith withdrew his second from Kreger’s motion, and the motion died for lack of a second.
With no motion on the floor, Commissioner Poynter made a new motion seconded by Commissioner Smith to approve Ordinance 2016-09 with seven amendments:
- Adding specific references to Federal and State Law to the definition of Hazardous Material and adding references to the Florida Administrative Code under Section 1.07.00 of the Land Development Code;
- Including the word “Primary” before the term “Uses” under LDC Sections 3.2.5(B) and 3.2.6(B) to clarify that prohibited uses must be primary, not just temporary or ancillary to the primary use of the property;
- Including the term “Bulk” before the word “storage” to describe the type of primary use where storage of hazardous material is prohibited under LDC Section 3.2.5(B) within Environmentally Sensitive Lands;
- Including the term “Bulk” before “storage” and “Non-exempt” before “industrial” under LDC Section 3.2.6(B) to mean that non-exempt industrial land uses that involve bulk storage of hazardous materials must follow the design and construction standards required for this type of land use in areas of Special Flood Hazard;
- Including the provision that hazardous materials shall not be stored in the Coastal High Hazard Area unless the design and construction requirements of Section 3.2.6(B) are met for the areas of Special Flood Hazard;
- Clarifying the language or combining wording of LDC Section 3.2.6(B) to read that “fixed tanks or vessels for bulk storage of Hazardous Materials shall be designed or modified to meet the City’s requirements under the Floodplain Management Ordinance and to require the lowest extremity of such tanks or vessels to be located one (1) foot above the 100-year base flood elevation.” Also requiring that bulk storage of Hazardous Materials at a Wastewater Treatment Facility meet the one (1) foot above base flood elevation requirements.
- Adding any staff recommendations that have been put forward that are not in conflict with the previous six bullets.
During public comment, Rayonier Advanced Materials attorney Colby Slaughter stressed that both mills take compliance with legal and industry standards extremely seriously and that they participate in the regulatory process to make sure that reasonable bars are set. He expressed support for Poynter’s motion.
Lynn Williams expressed concern that areas of the code dealing with marinas and pilings had not been addressed in the proposed changes. He offered to work with staff to modify language to meet Florida Department of Environmental Protection regulations.
Former PAB Chair Judith Lane urged the commission to adopt Poynter’s motion. Without Poynter’s modifications she said the mills would not be able to upgrade their machinery and tanks to top-notch standards. In her words, “That would be a ridiculous thing to do.” She added that these same requirements would apply to the city’s wastewater treatment plant as well.
In addressing both the PAB and FBCC’s frustration with getting the mills’ comments so late, Rayonier spokesman Russell Schweiss said that they had waited to comment until they saw what had been synthesized from the last PAB subcommittee meeting. They only received that on Friday. Schweiss reinforced Campbell’s comment that the original intent had been to address only storage of hazardous materials. He expressed strong industry opposition to expanding the restrictions to operations. Schweiss explained that the mills run batch operations citing the complications that arise in replacing one piece of equipment that might be attached to an older piece of equipment that had been “grandfathered” into the operation. He said that language approved by the PAB could make the entire plant a non-conforming use, indicating that language would require the plant to be put on stilts to come into compliance, a move that is not feasible.
Frank Santry declared that the proposed ordinance was fundamentally flawed, claiming that it equates requirements for handling hazardous materials in the heavy industrial zone to that of single-family homes. He claimed that every regulatory agency recommends freeboard standards higher than a foot above the floodplain, adding that most agencies recommend a total ban on hazardous materials in the floodplain. He said that it was “appalling” that the city would entertain a motion to allow hazardous materials in the coastal high hazard area.
Environmental activist Julie Ferreira said, “We have 21st century neighborhoods living in the shadow of toxic industry.” She said that Fernandina Beach is “a community at the mercy of Mother Nature,” and urged the FBCC to adopt the PAB’s recommendations.
Robert Prager, an engineer and co-founder of an engineering firm specializing in the restoration of streams and rivers in flood-prone urban areas and who served on the PAB subcommittee, stated that the city’s floodplain ordinance already requires compliance with industry standards to meet flood resistance in design and construction of new facilities. He said that the freeboard required for any particular tank, based upon the type of hazardous material contained, could vary from one to three feet by class. [Prager’s report to commissioners is contained in a separate article.]
Following public comment Commissioner Len Kreger expressed his unhappiness with receiving a staff report on September 12 and industry comments on September 13 for commissioners to consider and digest for action at a public meeting on September 14. He said, “In my previous job [United States Marine Corps] people would be dead by now.” This was in response to the length of time this matter has been debated and discussed. He renewed his criticism of the process, stressing that “this last minute stuff” is not the way to do planning.
Commissioner Smith appeared interested in pursuing a compromise between the mills and the PAB recommendations, asking if two feet of freeboard would be acceptable to the mills. Rayonier Advanced Materials Project Manager Mark Homans agreed with Prager’s previous comments, explaining that engineering standards dictate the required freeboard at “whichever is higher.” The mills both agreed that they could accept two feet as a minimum with the understanding that the amount of freeboard depended on the engineering standards for the particular application.
Commissioner Poynter explained the genesis of his recommendations. He said that he had spent many hours with Mr. Prager to understand the complicated engineering information. He questioned whether Smith’s option to move the standard to two feet above minimum standard freeboard requirement would make the community and the operation safer or whether it would just add an extra cost and burden to the mills.
Kreger said that the reason for increasing the freeboard to three feet above minimum standard related to concerns over sea level rise and local mitigation. However, he agreed with Poynter’s position on one-foot elevation, providing that the city will provide proper review to insure safety of the citizens.
With no further comments from commissioners, the vote was taken and the ordinance passed unanimously on first reading.