Submitted by Suanne Z. Thamm
Reporter – News Analyst
July 9, 2017 9:20 p.m.
What can you do with city property that has been rezoned if someone decides to contest the zoning? Pretty much nothing in the short term. That is the situation facing property owners who rehabilitated a dilapidated house on Broome Street across from a city parking lot. Today the city cannot grant a Certificate of Occupancy (COO) to permit the owners to move into their rehabilitated house. Will that change soon – or ever?
The current situation developed in a highly unusual way. Robert and Loretta Erickson purchased property at 205 Broome Street. The property, zoned industrial at the time, contained a small house, which they rehabilitated. But because “residential” is a non-conforming use within an industrial district, the new owners could not move into the house they had purchased and renovated. Had the house been continuously occupied prior to their purchase, there would not have been a problem. But because the non-conforming use (“residential”) of the property had been in effect abandoned, residential use was no longer an option. The house located at 211 Broome Street, which has been continuously occupied, is unaffected by the zoning change.
The Fernandina Beach City Commission (FBCC) approved both a change in use and a change in zoning for the property at their June 6, 2017 Regular Meeting that would have allowed the Ericksons to move into their renovated house. But city activist Dr. Ronald J. “Chip” Ross has challenged the city’s actions as violative of Florida law and the city’s Comprehensive Plan. Ross, who lives a block away from the property in question, has filed two actions, one with the State Division of Administrative Hearings and the other in Circuit Court.
Ross formerly served on the city’s Planning Advisory Board and regularly speaks at FBCC meetings concerning land use and matters affecting the downtown area. He has filed to run for the City Commission seat currently held by Mayor/Commissioner Robin Lentz.
[For details, photos and maps of all the properties affected, see the Fernandina Observer article reporting the First Hearing of the ordinances: https://fernandinaobserver.com/2017/05/11/land-use-zoning-changes-proposed-for-n-2nd-broome-streets/. ]
While in his appeal and legal action he cites what he believes to be violations of the city’s Comprehensive Plan and state law, Ross has publicly opposed density increases in the Central Business District, the new land use and zoning categories the city approved for the Broome Street properties in question in addition to several parcels north of those properties on North Second Street. Ross’ objections do not appear to be personal to the property owners. Rather, his actions appear to stem from his conclusions that city actions have opened the area to the possibility of more intensive residential development.
Until these matters can be decided by the proper authorities, property owners in the challenged area are in limbo. They no longer have an industrial zoning, but they cannot proceed with actions consistent with the city-approved Central Business District land use and zoning.
According to Fernandina Beach City Attorney Tammi Bach, There is no relationship between the two actions Ross has filed against the city. The administrative appeal and the court case will each follow their separate courses independent of each other.
Section 163.3187(5)(a), Fla. Stats. provides the right of affected parties to file an administrative appeal on the Comprehensive Plan amendments. Administrative Law Judge (ALJ) Suzanne Van Wyk has been selected to hear the case on August 8, 2017 beginning at 9:00 a.m. in Fernandina Beach City Hall Chambers. The hearing is open to the public.
According to Bach, one day has been scheduled for the hearing, but Ross has indicated that he will call witnesses. The city’s outside counsel is asking for depositions from all the witnesses by the end of July.
The ALJ’s job is to rule on a relatively narrow question: Did the city violate the law in amending the Comprehensive Plan? Language in the statute requires that the Comprehensive plan amendment shall be determined to be in compliance if the local government’s determination that the amendment is “fairly debatable.” The Florida Supreme Court has stated that “the fairly debatable standard of review is a highly deferential standard requiring approval of a planning action if reasonable persons could differ as to propriety …”
The ALJ has 30 days to rule on the question and must send her ruling to the Florida Department of Economic Opportunity. The entire process, which began on June 13, 2017, can take 90-120 days.
To track this case, readers may search the case number 17 – 003286GM on the state’s Division of Administrative Hearings website: https://www.doah.state.fl.us/ALJ/searchDOAH/default.asp
Ross filed his second action with Circuit Court last week in which he has challenged the city’s rezoning of the property under Section 163.3215(2) and(3), Florida Statutes, as an “aggrieved or adversely affected party.” Ross is seeking to prevent the City from taking action “which materially alters the use or density or intensity of use” on the Broome and North Second Street properties which he alleges is not consistent with the comprehensive plan. That action could take years to be resolved.
According to the statute, the term “aggrieved or adversely affected party” means any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources.
Ross must demonstrate that the adverse effect as to him or others “must exceed in degree the general interest in community good shared by all persons” as a result of the Comprehensive Plan amendment.
Fourth Judicial Circuit Judge Steven Fahlgren will hear this case. The matter has yet to be scheduled for a hearing.
UPDATE: On July 3, attorneys for the City filed a Motion to Dismiss the Ross petition with the Division of Administrative Hearings. Ross replied on July 5. A telephonic hearing on the Motion to Dismiss has been scheduled for July 18, at 10:30 by the ALJ. Ross filed an additional response to the City’s Motion on July 10.
CORRECTION: In the initial publication of this article the author misidentified the house owners as the Claytons, who own Broome Street property on either side of 205 Broome. The article has been corrected to reflect that Robert and Loretta Erickson own the house in question. The Fernandina Observer regrets the error and thanks Mr. Holmes for clarification.
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.
The survival of the character and fiber of our community requires thoughtful long term community vison guided by the Comprehensive Plan, not piecemeal revisions requested by self-interested individuals. For that reason, I recently filed several legal challenges concerning zoning changes approved by the City Commissioners. Some may say these are irritating legal actions that cost the taxpayers money. Perhaps – but here is why I don’t think so.
The taxpayer money issue first; the City has a history of defending cases where the City simply should have fixed the wrong that sparked the legal challenge. If they fixed the problem, the legal challenge would disappear. In this case, multiple problems exist.
Comprehensive Plan Policy 1.07.09 requires the City to demonstrate a need to increase the land area in the Central Business District. The City simply expanded the Central Business District without showing a need for additional land area.
Comprehensive Plan Policy 3.01.01 requires the City to perform a housing needs assessment to be performed prior to December 2013. December 2013 has come and gone without any housing needs assessment being done. Instead, the City increased the density of the Central Business District to 34 units per acre and then increased the size of the Central Business District.
Comprehensive Plan Policy 3.02.08 requires the City to establish a City-wide neighborhood planning program to encourage the stabilization and preservation of neighborhoods. Instead of performing the City-wide neighborhood planning program to determine how to stabilize and preserve neighborhoods, the City Commissioners repeatedly passed Future Land Use Map amendments that increase density next to or in established neighborhoods without any studies or analysis on how those changes will impact the community character.
The entire Petition for Administrative Hearing can be viewed on the State of Florida Division of Administrative Hearings web site. [Floridahttps://www.doah.state.fl.us/ALJ/- Case No: 17-003286]
A local Comprehensive Plan is a statutorily mandated legislative plan to control and direct the use and development in the City. There is no rule which allows governments to disregard its own laws. If the City would follow the requirements required by the Comprehensive Plan and Florida Law, the legal challenge would be resolved. No need exists to hire lawyers. I am not seeking any monetary damages. I am only requiring the City to follow the law.
As to the second point, legal actions are irritating. Sometimes a legal challenge is the only way to change the way a government treats the laws and its citizens. Commissioner Kreger on multiple occasions has publicly asked the Commissioners to follow the Comprehensive Plan and implement requirements such as the above mentioned housing needs assessment. Silence generally follows.
I filed the legal challenges because the City Commissioners continue to pass Future Land Use Map amendments that increase the number of units developers are allowed to build without following the mandates of the Comprehensive Plan and examining the impact of development on our community. Hopefully the City Commissioners will implement the award winning City Comprehensive Plan that should be guiding our future development instead of the incessant call by developers and individuals to build more and more on the limited ground that is left.
chip ross
Sadly the City has dug in its heels and not worked with the homeowners of the rehabilitated home. Those homeowners ALSO requested that their property be rezoned to R-2 residential, just like their neighbors in the adjacent historic district. It is a historic home. The Planning Board turned them down. So in the middle of the Planning Board meeting, the homeowners went with what the board would allow them to do to get an occupancy permit, Central Business District. It is sad that people in a historic neighborhood, who lovingly restored a historic home cannot join the rest of the neighborhood because “someone” wants an expansion of the Central Business District. They were given no other option.