Submitted by Suanne Z. Thamm
Reporter – News Analyst
February 5, 2015 11:28 a.m.
At the conclusion of a 90-minute Special Meeting on February 3, 2015, the Fernandina Beach City Commission (FBCC) voted 3-2 to reject the order of Special Magistrate W.O. Birchfield, which directed that the city defer to the Saint Johns River Water Management District (SJRWMD) for wetlands determination and mitigation on a unique property located in both the city of Fernandina Beach and Nassau County. This was the third FBCC hearing on this matter. The vote after the first hearing on January 20, 2015, was 4-1 in favor of accepting the ruling, with only Vice Mayor Johnny Miller dissenting. During the reconsideration of the vote on January 28, requested by Commissioner Pat Gass, the FBCC reversed itself on a 3-2 vote, with Commissioners Pat Gass and Robin Lentz changing their vote to rejection of the Special Magistrate’s order. Because of objections from First National Bank South (FNB) the property owner and their counsel Michael Mullin, the FBCC scheduled the third hearing during which the city’s insurance counsel would present the city’s position for commission consideration as well. At this time it is unknown whether the property owner will proceed with legal action.
The dispute, which has been laid out in previous Fernandina Observer articles, began when the city’s Board of Adjustment (BOA) denied FNB’s request for a variance to allow the filling of wetlands on a 24-acre parcel located on the southwest corner of Lime and 14th Streets, located partially in the city and partially in the county. The city portion is zoned medium residential, while the county portion is zoned commercial. Because of the city’s restrictive language in its Comprehensive Plan (comp plan) regarding the filling of wetlands, FNB is limited to building 55 units on the city property, when it desired to build up to 200. The BOA upheld the city’s position during its hearing, causing FNB to seek a remedy under Florida Statute 373 due to overlapping political jurisdictions for the property. That statute mandated that the dispute be referred to a Special Magistrate for mediation and resolution.
Prior to opening the third hearing, City Attorney Tammi Bach recapped the matter, reminding commissioners that they could accept, reject or modify the Special Magistrate’s Order that directed the dispute be referred to the SRJWMD for wetlands and mitigation determinations. Bach introduced David Willis and Brian Hayden, the city’s insurance attorneys from the law firm of Rumberger, Kirk and Caldwell, who argued the city’s case before the Special Magistrate.
Willis spoke first, arguing that a rejection of the Special Magistrate’s order created no legal cause of action for FNB. He said at least as early as 1943, the land in question has been recorded as wetlands. He said that FNB was not being denied use of the land because wetlands could be used for recreation, stormwater mitigation, or even construction of a boardwalk while the uplands could be fully developed in accordance with appropriate zoning. He added that legally the city has the right to declare through its comp plan that wetlands may not be filled. Since they have done so, the city must adhere to its comp plan.
In response to FNB’s claim that the city’s BOA has granted variances to fill wetlands in other cases, Willis presented a slide showing the amount of wetlands in each request. He added that the FNB application was a request to fill all wetlands on the property, not a portion thereof. Willis said that in considering a variance, the BOA must determine that the application meets specific criteria. In this particular case, the BOA determined that the application failed to meet “almost all.” In counsel’s mind such a request was not for a variance, but for a complete waiver.
Willis asked, “Is a waiver really a variance?” He went on to say that typically a variance is requested for a minor variation, not a wholesale disregard of the comp plan. He suggested that the FNB need for a variance was based solely on not being able to get its desired financial return for the property, and that such was not grounds to grant a variance.
Willis took issue with FNB’s interpretation of Florida Statute 373 with respect to the need to defer the matter to SJRWMD. The city’s position is that the statute contemplates that the city must first act on an application to develop before the matter can be brought before SJRWMD. There has been no development application filed to date. Should the city not approve the application, then SJRWMD would attempt to reconcile the parties. If mutual agreement could not be reached, SJRWMD would make the determination. “No one knows how SJRWMD will act,” Willis said.
Attorney Brian Hayden explained that the city’s attorneys disagreed with the Special Magistrate’s conclusion that the denial of the variance application was arbitrary and capricious. He said that variances are decided on a case-by-case basis and that the three previous variance grants cited by FNB involved minimal filling of wetlands, while the FNB application involved filling almost 6 acres of wetlands.
In representing FNB, Rogers Towers attorney Michael Mullin recapped how the parties came to select W.O. Birchfield, a land use attorney with 50 years of experience, to hear the case. He said that about 68 percent of such cases are settled through mediation, because the process saves considerable money in legal fees. He said that Birchfield had issued a very detailed order and recommendations. Mullin said that while he was not threatening legal action, he was reminding the FBCC that FNB, like the city, must protect its interests. In reference to the city’s comp plan and variance denial he said, “It’s hard to argue that you can’t fill wetlands, when you did.”
Mullin said that the city’s comp plan indicated that the city will work toward a system that will define categories and/or grades of wetlands, but that the city has not yet done that. He said that the other 3 variances granted also did not meet all criteria. He said the rationale seems to be “you can fill in a little bit of wetland.” He went on to ask, “But who determines what ‘a little bit’ is?” He claimed that no one knows what the bank’s impact will be until SJRWMD rules. He concluded by claiming that the comp plan inordinately burdens the property owner as currently written, that the property seeks to be treated fairly in accordance with law. He said that FNB cannot develop the property with any return under the current framework.
Commissioners questioned the attorneys representing both sides. Mullin and Willis agreed on several points, but differed on their interpretation of the role of SJRWMD.
Mullin maintained that statute directs that the Special Magistrate’s order must be sent to SJRWMD if the city rejects the order, while Willis believes that the requirement does not kick in until there is an action by the city to deny a development application.
Commissioner Gass asked if FNB intended to develop the property or sell it to a developer. Mullin responded that developing the property piecemeal would not work, and that there would need to be a rezoning application for development.
Both Commissioner Tim Poynter and Mayor Ed Boner continued to emphasize the unique circumstances of the property in question, which overlaps two jurisdictions with different comp plan requirements with respect to wetlands. While the city’s comp plan prohibits filling wetlands, the county’s plan refers the determination to SJRWMD. Poynter said, “If the city accepts the Special Magistrate’s Order, the wetland determination must go to SJRWMD. Can the bank comply with both city and county requirements? If not, SJRWMD rules.”
Vice Mayor Johnny Miller asked if the city’s action would influence SJRWMD. Willis seemed to think it would, while Mullin disagreed.
City Attorney Tammi Bach spoke following Miller’s motion. She said that she believed that the city’s action would affect the SJRWMD decision on mitigation and how much wetland fill would be allowed on the property. Mullin, based upon his conversations with SJRWMD disagreed, while allowing that Bach could have information that he did not. “Rules are interpreted,” Bach said. “That’s why we [lawyers] have jobs, quite frankly.”
Seven audience members, four of whom had also spoken in opposition to accepting the Special Magistrate’s order during previous hearings, urged the FBCC to reject the order once more.
At the conclusion of public input, Miller said, “We have an obligation to adhere to the Board of Adjustment’s ruling. We don’t want to fill in wetlands.” He recapped the previous city denials and said, “I think that any roadblock we can put in front of this issue, we should. Everyone up here has said that we don’t want to fill in wetlands. “
Gass said she would vote to reject the order. “If it’s going to go to SJRWMD anyway, we might as well send it with a double whammy to tell them we don’t want to fill wetlands. Then we’ll have to see about carpooling or renting a bus so that we can all tell them in person how we feel and do anything else we can to make sure they know our position.”
Poynter said, “There’s a cost to doing this; it’s tax payer dollars that we are spending.” He referred back to a comment made by audience member Pat Foster Turley regarding the city’s decision to buy a wetlands property on Sadler Road to prevent its development as a hotel. He said, “I don’t want to fill wetlands; I want to follow the state law. We don’t know what SJWMD is going to do – they may say, ‘look there’s a natural spring here.’ There’s a myriad of things that can be said and done. They may not be able to get the zoning changed, and this is not the end of the story. We have already rejected this [variance request]. This vote is not saying we agree [with the Special Magistrate’s recommendations and order]. All it’s saying is that we agree to follow the law as indicated in FS 371. That’s what I believe this vote is for. That’s why I will vote against this motion.”
Commissioner Robin Lentz said that she knows it will end up with SJWMD, but that she wanted to send a message. She asked Bach how the issue will proceed. Bach said that it will definitely go to SJRWMD because there are wetlands on the parcel, and the county defers to SJRWMD in such circumstances. Lentz said she was just trying to get that information out to the public. She followed with a question asking if, in following Poynter’s argument, settling the matter would involve “thousands and thousands of taxpayer dollars.” Bach replied, “It very well could go to SJRWMD and to court. Mr. Mullin says property rights are at stake. We do not necessarily agree, but a judge would have to make that determination. But it would cost taxpayer dollars to defend that.”
Gass asked if the city has insurance to cover the legal costs. Bach replied that while the city does have insurance, she could not tell at this time what type of claim might be filed and whether the city’s insurance would cover such a claim. Gass said, “Again, some things are just worth fighting for.”
Lentz said, “But at the end of the day [FNB] could just go to SJRWMD and accept what they say.” Bach agreed.
Mayor Boner said that since the city had agreed to participate in mediation and had agreed upon the selection of the Special Magistrate, he believed that the city should not be fighting what it had agreed to settle amicably. “That’s how we ended up in the airport lawsuit, how we ended up in things over the years that seemed almost mind boggling to the outside world.”
Miller disagreed with Boner, saying that while he agreed that the FBCC should behave in a fiscally responsible manner, from the emails he has been receiving and from the public input at hearings, money would appear to be well spent in this matter. “When I look at that photo of wetlands [on the parcel] taken in the 1940’s, I want no part in filling them in.”
Gass questioned Boner’s comment about agreeing to bring in a Special Magistrate. “That was the process mandated by law,” she claimed. The city attorney agreed. Boner pressed on, saying that both parties agreed on the person selected to hear the matter. Bach said, “No one is questioning the qualifications of Mr. Birchfield.” Gass emphasized, “But we had to do this process. It was the next step [under the law].”
The commissioners voted 3-2 to reject the Special Magistrate’s order and agreed to place their decision in writing: 55 units are allowed on the uplands portion of the city property.
Bach had maintained that the hearing would be conducted in a quasi-judicial manner, but also claimed that such procedure was not a requirement. While FNB had a court reporter record the first hearing, there was no court reporter at this final hearing.
Although Mullin has not filed any subsequent action to date, in a letter to City Attorney Bach dated January 28, 2015, he stated:
“Please understand that First Ntional will proceed accordingly to ensure the protection of its private property rights. If some action is necessary, we intend to use discovery to : (1) thoroughly investigate our concerns regarding ex parte and/or Sunshine Law violations; (2) challenge any action taken today ; and (3) explore all of the issues set forth above.”
Editor’s Note: Suanne Z. Thamm is a native of Chautauqua County, NY, who moved to Fernandina Beach from Alexandria,VA, in 1994. As a long time city resident and city watcher, she provides interesting insight into the many issues that impact our city. We are grateful for Suanne’s many contributions to the Fernandina Observer.