Submitted by Suanne Z. Thamm
Reporter – News Analyst
January 22, 2015 5:17 p.m.

 

View of property from Lime Street east of 14th Street
View of property from Lime Street east of 14th Street

Following more than an hour of testimony and discussion in a quasi-judicial hearing during its January 20, 2015 Regular Meeting, the Fernandina Beach City Commission (FBCC) rejected staff recommendation and agreed with the plaintiff to defer to the St. Johns River Water Management District (SJRWMD) for review of a multi-family development proposal requiring the filling of wetlands. Only Vice Mayor Johnny Miller opposed the decision in the 4-1 final vote.

 

In May 2014, the city’s Board of Adjustment denied a variance requested by First National Bank South to impact wetlands on their property located on the southwest corner of Lime and 14th Streets. First National Bank South (FNB) subsequently filed a request for a special magistrate hearing pursuant to Florida Statutes 70.51 in June 2014. The parties were at an impasse at the first magistrate hearing and were directed to go back to the table and try to come to a solution. After a second hearing in November 2014 during which parties presented their final information, the Special Magistrate issued an Order and Recommendations on December 16, 2014, upholding the FNB position.

Subject property viewed from north side of Lime Street
Subject property viewed from north side of Lime Street

The 24-acre property in question consists of multiple parcels and lies partially in the county and partially in the city, allegedly the only such property in the city. Therefore, different development rules govern the different parcels. The city’s 2030 Comprehensive Plan and Land Development Code (LDC) each contain provisions that prohibit both the placement of fill in jurisdictional wetlands and the alteration of wetlands. The City’s LDC also requires 25-foot buffers around all wetlands. In contrast, Nassau County’s 2030 Comprehensive Plan and LDC generally defer to state and regulatory agencies for wetlands development. Florida Statutes 373.414(1)(c) states that where a project is located in more than one jurisdiction and there is a conflict between regulatory requirements that cannot be reconciled, the permitting conditions and regulatory requirements of Florida Statutes Chapter 373 control.

As a Conclusion of Law, the Special Magistrate found that Florida Statutes 373.414(1)(c) mandates that the conflict be controlled by a permit issued by the required permitting agency, in this case the St. Johns River Water Management District.

The Special Magistrate found that the city has previously granted variances from wetlands requirements and that “[b]ased upon the location and size of the wetlands as shown on the wetland’s map, a literal application of the City’s wetland and buffering requirements to the Subject Property renders the property undevelopable.” He went on to suggest, “A deferral to the SJRWMD will result in the minimum variance needed to make possible the reasonable development of the Subject Property.”

Property is located at the SW corner of Lime & 14th Streets.
Property is located at the SW corner of Lime & 14th Streets.

The Special Magistrate also found internal inconsistencies in the City’s Comprehensive Plan regarding wetlands. He wrote, “The policies are internally inconsistent and many have not been implemented as required. Since zoning regulations are in derogation of private property rights, they should be interpreted in favor of the property owner. … The City has failed to comply with its Comprehensive Plan by failing to depict wetlands on its FLUM; yet the City is requiring applicants to comply with its policies. … In this case, an applicant such as FNB is left to decipher on its own which policies have been implemented, which are enforced and which are not.” He went on to suggest that the City was arbitrary and capricious in enforcing wetlands provisions “to the detriment of FNB’s property rights …”

The city and its attorneys (Rumberger, Kirk and Caldwell, P.A.) took issue with the Special Magistrate’s ruling, claiming that it did not accurately reflect the nature of quasi-judicial decision-making and incorrectly interpreted Florida Statutes 373.414(1)(c). They believed that the Special Magistrate incorrectly viewed the granting of variances as precedent setting, when in fact they were decided based upon the facts and conditions with respect to a single project. The city maintains that allowing a variance to impact wetlands violates the City’s Comprehensive Plan, and that FNBS maintains development potential on the uplands portion of their property for approximately 55 dwelling units.

City Attorney Tammi Bach recapped the case and the city’s position for the commissioners. She said that she had not had time to research whether the issue required a quasi-judicial hearing, but that it should be treated as such to allow the applicant as much time as needed to present his case. She noted the presence of a court reporter. Bach advised commissioners, “A decision tonight does not create a cause of action.” She said that the Special Magistrate’s Order is not legally binding on the city, and that the city can accept, modify or reject it.

Court reporter records the proceedings of the quasi-judicial hearing.
Court reporter records the proceedings of the quasi-judicial hearing.

Community Development Director Adrienne Burke also stated the position of city planners. She said that the city respectfully disagrees with the Special Magistrate’s Order and Recommendations for the following reasons:

  1. Community Development Director Adrienne Burke explains the city's position.
    Community Development Director Adrienne Burke explains the city’s position.

    The City is appropriately upholding the policies as outlined in the Comprehensive Plan and LDCs that protect wetlands from development;

  2. The situation is not subject to Florida Statutes 373.414(1)(c) because at no point has the applicant submitted or attempted to submit anything for consideration to the County, and
  3. The Board of Adjustment is a quasi-judicial board in which no cases set precedent but are considered individually on their own merits.
Mike Mullin, attorney representing First National Bank South
Mike Mullin, attorney representing First National Bank South

Rogers Towers Attorney Mike Mullin, who represented FNBS during the January 20, 2015 hearing before the City Commission, disagreed with the position taken by City Attorney Bach and city planning staff. He walked commissioners through the Special Magistrate’s report and recommendations. He informed commissioners that the Special Magistrate, W.O. Birchfield, has served in that capacity for 25 years. He said that Birchfield’s conclusions and recommendation were very specific, leaving no gray area.

Mullin commended city staff for their presentations before the Special Magistrate and said that the staff was taking the only position it could by defending the Comprehensive Plan. But, he added, the planners’ position was not the legal position, which requires conflicts to be sent to SJRWMD for determination. Mullin said that the city’s position might be considered under the Bert Harris Act as rendering the subject property undevelopable. He also said that should the city reject the Special Magistrate’s ruling, his report would be part of the record in any legal challenge that should result.

Julie Ferreira supports city position.
Julie Ferreira supports city position.

Julie Ferreira, the only member of the public to speak on this issue, said that the city’s Comprehensive Plan is “not contradictive but protective.” She said that the city operates under home rule and that the SJRWMD would not protect the unique environment on this parcel. She believed that the applicant was not being inordinately burdened by the city’s ruling, since it still allowed for up to 55 units to be built on the site. “They are holding out for higher profits,” she said, referring to FNB’s desire to build up to 200 units on the property.

Commissioner Tim Poynter said, after the public hearing closed, “I’m not trying to thwart anything, but I see the inconsistencies. What I heard, because we haven’t gotten to it yet, that there is going to be some way of grading wetlands. If you believe Mr. Mullin, this is a unique property that is shared with the county. It seems clear from the Special Magistrate’s ruling that when there is a dispute it should go to SJRWMD. So I’m not changing anything, I’m looking at what appears to be what we should do next. And that’s why I recommend that we send this to SJRWMD.”

Commissioner Pat Gass quickly seconded Poynter’s motion, “Not that I am in favor of filling in wetlands,” she said, “because I’m not. And I really don’t believe in mitigation, but on this particular piece at this particular time, I think this is what we should be doing.”

After hearing no more discussion Mayor Ed Boner asked City Attorney Bach, “Is this consistent with out Comprehensive Plan and does it create any legal problems?” Bach replied, “No it does not create any legal issue, but in our opinion it is inconsistent with our Comprehensive Plan.” Gass said, “But we don’t know what SJRWMD is going to say.” Poynter said, “But if they use the same criteria [city staff] did, theoretically we should get the same answer. So let’s not second guess.” Boner remarked that SJRWMD allows for some fill, but the city allows for none.

When the vote was taken, all commissioners except Miller, who had not engaged in discussion, voted to reject the city’s recommendation. Attorney Bach clarified for the record the FBCC’s decision to modify Resolution 2015-12 to replace “reject” with “accept,” meaning that the FBCC accepts the ruling of the Special Magistrate.

Suanne Thamm 4Editor’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.

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Dave Lott
Dave Lott (@guest_27073)
7 years ago

It will be interesting to see what SJRWMD decides in this matter, especially given the decimation of their staff and authority over the last few years. One of the benefits of the City is its stricter protection of wetlands and we continue to see the loss of those areas over time. Mitigation off Island does nothing to address the filling of designated wetlands that only places more burden on the City’s under-developed stormwater handling capabilities.

Lynn Williams
Lynn Williams (@guest_27081)
7 years ago

When the Board of Adjustment (of which I am a member) was asked for a variance to allow the filling of wetlands at 14th and Lyme Streets, we were given a full packet of information which described the property and its permitted uses. Much of it is a jurisdictional wetland, but there is sufficient upland to build some 55 dwelling units. The out of state bank applicant wanted (wants) approval t0 build more than 200 units. They needed a variance to do this, which, if granted, would allow them to fill the wetlands and come out from under what was otherwise a loan gone bad. It was an easy vote. The city ordinances specifically deny the filling of wetlands and the BOA voted to uphold the city ordinance and deny the variance request.
Last Tuesday night our city commission was asked to approve a resolution on the agenda which would have moved the case to circuit court. Instead, when the published resolution was brought forward, it was turned into a quasi judicial hearing and the commissioners were treated to a very excellent lawyerly presentation by the out of state bank’s counsel. It was law school 101 where you learn to push the opposition into playing in your court.
The commissioners had no chance (with the exception of Vice Mayor Miller) They had expected to follow a simple staff recommendation; but they were hammered otherwise by a very skilled lawyer. They had none of the backup we had at the BOA, our city staff was blindsided as well. What was advertised as a simple resolution became an unadvertised quasi judicial hearing. The net of it all is that we may well have lost our ability to protect City wetlands, leaving them now to the vagaries of the St. John’s River Management District which is surely less protective of Fernandina Beach than are those who live here.
I hope there might be a way to revisit last Tuesday’s decision, one where the commissioner’s might have the chance to study the matter beforehand and be treated to a presentation which presents the city’s side of the story as elegantly as the other side provided last Tuesday evening.

Robert Weintraub
Robert Weintraub(@rukbat23gmail-com)
7 years ago

SJWMD is controlled by developer interests so you know how they will respond. Mullin, the Great Enforcer of developer interests, knows this that’s why his fancy talk fooled the commissioners. Anytime you see Mullin, be prepared for specious arguments.

Robert Warner
Robert Warner (@guest_27125)
7 years ago

Privatization of profit, socialization of risk at work – in a card game with a GOP rigged deck.

Pat Foster-Turley
Pat Foster-Turley (@guest_27299)
7 years ago

Please come to the Special City meeting @3PM Weds Jan 28at Fern. Beach City Hall and we can all learn and respond to this issue. We need to let people know we care about enforcing our City Codes, not only about Wetlands, but all the Quality of Life issues for residents. And yes, especially now about the NATURE of our home. Thanks!

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