No basis in law or fact: ALJ finds against Ross

Submitted by Adam Kaufman
Legal Analyst
November 9, 2017 5:26 p.m.

Administrative Law Judge Suzanne Van Wyk has found that City of Fernandina Beach Commission candidate Ronald “Chip” Ross’ challenge to action by the City related to property located at North 2nd Street and Broome Street was based upon “inaccurate” contentions, that he “presented no relevant acceptable data or analysis which contradicted” that action and that he “did not prove” that the City’s action was in violation of Florida Law.

View of Broome Street properties from city parking lot

Ross, who lives on North 3rd Street, filed a Petition with the Division of Administrative Hearings contesting whether amendments to the City’s Comprehensive Plan in June 2017 were in compliance with Florida Statute.

The plan amendments affected eight contiguous parcels at the corner of North 2nd Street and Broome Street which runs perpendicular to and ends at the City’s waterfront. 211 Broome Street is an existing single-family home, circa 1900; 205 Broome Street is a vacant single family home, circa 1900; 224 North 2nd Street contains a multi-family structure, and the remaining parcels are undeveloped. The properties as of June 2017 were zoned “industrial” and therefore “residential” uses would not be permitted. However, 211 and 224 Broome are “grandfathered” from that prohibition. 205 Broome is in such disrepair that it cannot be redeveloped for residential use. The amendments were requested by the owners of the properties. The parcels are located in the City’s Community Redevelopment Area (CRA).

The City adopted, consistent with Florida Statute, a “Finding of Necessity” that specified an area of deterioration and “blight” in establishing the CRA. In 2004 in adopting the Waterfront Area CRA Redevelopment Plan the City found: “The Plan will afford maximum opportunity, consistent with the sound needs of the municipality as a whole, for the rehabilitation or redevelopment of the Area by private enterprise.”

The amendments to the Comprehensive Plan for these parcels would, among other permissible uses, permit single-family or duplex residential structures, as well as, mixed residential and business structures.

Ross made four claims alleging violations of policy, regulation and law by the City. Each was rejected and found without basis.

Ross’ argument that the plan amendments are required to be supported by relevant data and analysis as he alleged is mandated by City’s Housing policy which requires the City to “perform a housing needs assessment” was found to be without any merit by the Administrative Law Judge stating: “The cited policy does not prohibit the City from adopting any plan amendment until the assessment is completed.”

Ross’ contention that the amendments were somehow “inconsistent” with the Housing policy requiring that the City shall establish a “City-wide neighborhood planning program” was similarly rejected by the Administrative Law Judge finding that the policy “does not prohibit the City from adopting plan amendments until the neighborhood planning program is implemented.”

Ross’ claim that the amendments were “inconsistent” with a Florida Statute that requires that they be based upon relevant and appropriate data and analysis was also found to be without basis. The Administrative Law Judge ruled that the plan amendments “are supported by both the Findings of Necessity establishing, and the Redevelopment Plan for, the Waterfront Area CRA.” The Judge underscored the fact that the property owners requesting the amendments were seeking to redevelop a deteriorated residential structure, and reinvest in and develop the adjoining parcels which could not be accomplished without removing “the impediment” created by the prohibition on residential uses in the “industrial” category.

Ross’ assertion that the amendments someway run afoul of the City’s Future Land Use Policy was summarily denied. The Administrative Law Judge stating: “the issue is whether the … amendments are supported by data available at the time the amendments were adopted, not whether non-existent data may be contrary to the amendments.”

Based upon the Findings of Fact and Conclusions of Law the Administrative Law Judge recommended that the Department of Economic Opportunity issue a final order determining that City’s Comprehensive Plan amendments are in compliance with Florida law.

Ross has the right to submit written exceptions within 15 days from the date of the decision to that agency.

Ross will face Orlando Avila in a run off election on December 12, 2017 for Group 3 seat on the Fernandina Beach City Commission.

Adam Kaufman

Editor’s Note: Adam Kaufman, a graduate of Northwestern University Pritzker School of Law, is a retired attorney, mediator, and arbitrator.

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Steven Crounse
Steven Crounse (@guest_49808)
6 years ago

Always felt sorry for the couple who invested in this property and was caught in the middle of the pissin’ contest between Mr. Ross and the City. Hope this clears the way for them to move in. It’s always the Innocent, that get caught in the middle.

John Martin
John Martin (@guest_49811)
6 years ago

If that’s how you feel Steve, why have you been so critical of Orlando Avila and silent regarding Chip’s actions against the City?

Steven Crounse
Steven Crounse (@guest_49812)
6 years ago

John Martin, Just because I have issues with Mr Ross actions defending the Cities comprehensive plan as written, does not mean I disagree with his intent in all City Matters. I’ve worked along side both Chip and Faith on other community concerns, and they both have my total respect. I was a supporter of Mr. Monzon, during the campaign, thought his holistic approach to managing this City was the right way to go. This Island, County, and City are in for huge growth changes in the next 5 years. We need to be prudent, need to maintain our environment and quality of life. We don’t want to become another Hilton Head. I’d rather be cautious in our growth. I will cast my humble vote for Dr. Ross.

Faith Ross
Faith Ross(@faith-ross)
6 years ago

I also felt sorry for the couple caught in the middle. It was never the intent to keep them from moving into their home. However, we all learned a valuable lesson with this appeal. That a local government does not need to follow all elements of a Comprehensive Plan. That if it chooses to ignore certain elements of its plan, ie, “shall” conduct a Housing Needs Assessment by 2013, it can do so at its pleasure. So if the City Commission chooses to ignore “shall not fill wetlands”, logic follows that it may do that also. We have a great deal of language in our Comprehensive Plan that is ignored, such as educating the public on our air quality, improving our water quality, no glare and no loud noise which is ignored, etc. I guess what we all learned from this exercise, is that our Comprehensive Plan which is required by Florida Statute to be produced, is really just that, a production. It was never meant to be followed. So in reality the City Commissioners get to pick which parts they want to use or ignore. So I hope folks choose their future City Commissioners wisely, because they will determine the future of the island with their choices, the plan has no teeth. Thank you for your kind words, Steve.

Doug Adkins
Doug Adkins (@guest_49817)
6 years ago

The election Tuesday night was set back for the “power brokers” and the “big names” that have found their way into the city election. The voters have clearly signal a desire for a more careful and deliberate approach to managing the framework moving forward. One of the biggest and most pressing problem will be with all those “retirees” that Mr. Avila seemed to infer through his statements during the debate over the port that they “did not care”, these “retirees” are engaged and will continue to shape the agenda for the community for a very long time and city leaders will need to start thinking about a framework that will improve access to health care, ensure that they can ensure their safety during evacuations and hurricanes and provide meaningful ways for them to be engaged and involved in the life of the community. The growth that is coming will start to age and we will need to have the work force, access to quality health care systems and a quality of life and environment to sustain them into the sunset years. Just my view but I think that voters have sent a strong message about where they are headed.

Courtney McCranie
Courtney McCranie (@guest_49821)
6 years ago

The Judge did a great job!

John Martin
John Martin (@guest_49833)
6 years ago

How ironic is it for Doug Adkins to talk about “power brokers”. For many years that is exactly what he was in Nassau County. Now, he is making it his mission to sully the reputation of Orlando Avila because Orlando was part of the Dr. Kathy Burns team that opposed Janet Adkins in her despicable campaign for Superintendent of Schools. Please don’t fall for these ridiculous shenanigans.