FERNANDINA BEACH WEATHER

The Amelia Bluff Hearing – A Primer

By Adam Kaufman
Legal Analyst
July 15, 2019 1:33 a.m.

Editor’s Note: The hearing begins today at 9:00 AM in the  City Hall, Commission Chambers. There will be two hours set aside between 7:00 PM – 9:00 PM today for “public comment.”

Entrance to Amelia Bluff development from Citrona Drive across from Fernandina Beach High School. (File Photo)

The proposed construction of 30 homes on more than 10 acres* of Amelia Bluff has become the rallying point for many within the City and on Amelia Island who are troubled by “the rapid pace of development,” those who share an honest concern that our “fragile barrier island will be overrun with gated communities, hotels, and condos.”

They are disquieted by the construction of the Hilton hotel on Sadler, the housing development at 14th Street and Lime, the “car-centric” proposal at Amelia River, and a proposed condominium and hotel project at the south end of the island. There is sincere worry about the continued existence of the Island’s “Maritime Forest,” the tree canopy, and environmentally sensitive lands.

At City Commission meetings and in other forums addressing Amelia Bluff, individuals have been passionate, some urging that “the City put a stop to its ill-conceived, knee-jerk approval of development.”

The focus of the proceeding brought on behalf of the Amelia Tree Conservancy (ATC) joined by the Sierra Club (Sierra) against the City of Fernandina Beach (City) which begins today is a more constrained one.


THE CONTROVERSY

ATC and Sierra are challenging whether the Small Scale Future Land Use Map (FLUM) Amendment to the City’s Comprehensive Plan with regard to the 6.4 acre Amelia Bluff site is in compliance with Florida statutes. The Amendment, was passed and adopted on April 16, 2019, and would change the FLUM designation of the 6.4 acres from Conservation to Low Density Residential.

Small scale Comprehensive Plan amendments apply to 10 acres or fewer and are limited to FLUM changes for site-specific small scale development activities. The change must maintain internal consistency between elements of the comprehensive plan.

AMELIA BLUFF

Property totaling 15 acres, including the more than 10 acres* parcel, was purchased by the developer, Amelia Bluff, LLC (Amelia Bluff), from the Nassau County School Board in June 2016. The School Board, the City, and Amelia Bluff entered into a Memorandum of Understanding on August 10, 2017, which, among other things included the City’s agreement to vacate a portion of Gum Street extending through the property and the transfer to the City by Amelia Bluff of the wetlands portion of the property for conservation and its promise to donate $115,000 to the City for land conservation efforts. Since that agreement, Amelia Bluff has promised to contribute $10,000 to the City’s Conservation Trust Fund for each of the 30 homes upon issuance of a building permit for each lot, potentially $300,000 for land conservation.

In February 2018, Amelia Bluff filed for preliminary approval of the project.
The approval process continued and on October 18, 2018, Amelia Bluff applied for final plat approval. Thereafter, the inconsistency in the designation of the 6.4 acres became apparent: the property was designated Conservation under the Comprehensive Plan and would require an Amendment to the FLUM to change the property designation to Low Density Residential in order to permit continuation of the project.

Amelia Bluff made an application to change the designation. City professional staff determined that the land use amendment was consistent with the Comprehensive Plan and Land Development Code and furthered the objectives of the Comprehensive Plan. City staff maintained, in part, that the designation as Conservation was made in error. The City’s Planning Advisory Board approved the Amendment. The City Commission approved the Amendment on First reading on February 19, 2019, and on Second reading on April 16, 2019. In the interim, Amelia Bluff stopped work on the development. When work was stopped, significant infrastructure installation had been completed.

The Amelia Bluff project received appropriate permits from the St. Johns River Water Management District and the Florida Department of Environmental Protection.


COMPLIANCE WITH FLORIDA STATUTES

ACT and Sierra contend, in part, the FLUM Amendment at issue is part of a land use that “involves more than 10 acres” and does not qualify and cannot be adopted by the procedures for small scale comprehensive plan amendments.

Small scale amendments, as stated above, apply to 10 acres or fewer.

A small scale FLUM Amendment, by statute, is to be determined to be in compliance if the City’s determination is “fairly debatable.” The “fairly debatable” standard provides deference to a local government’s disputed decision. If the decision is reasonably subject to disagreement, it is “fairly debatable.”

If the action taken by the City on April 16, 2019, is a “small scale amendment” to the FLUM, then ACT and Sierra bear the burden of proving “beyond fair debate” that the challenged FLUM Amendment is not in compliance. If reasonable persons could differ as to the Amendment’s propriety, the FLUM Amendment must be upheld.

Florida statute requires that plan amendments are to be based upon relevant and appropriate data and analysis by a local government. ACT and Sierra will be required to prove “beyond fair debate” that the FLUM Amendment is not based upon relevant and appropriate data and analysis.

ACT and Sierra will argue that the FLUM Amendment renders the Comprehensive Plan internally inconsistent and is not based upon accurate data and appropriate analysis of the Amelia Bluff site. ACT and Sierra will contend that if the Amelia Bluff project is allowed to continue it would degrade and destroy the natural buffer that protects Egans Creek Greenway and adjacent land, have adverse impact on the Maritime Forest, wetlands, and the Fort Clinch State Park Aquatic Preserve.

The City and Amelia Bluff will argue that FLUM Amendment is compliant with Florida Statute.


THE HEARING

Administrative Law Judge E. Gary Early

The Administrative Law Judge (ALJ) assigned to the case is E. Gary Early. A 1981 Florida State Law School graduate, he is highly respected. He has been an ALJ since 2011 and was appointed as Senior Judge for the Northern District in 2016. He was Assistant General Counsel at the Department of Environmental Regulation for approximately 10 years. He has written on the subject of Environmental and Land Use Law.

The hearing is expected to continue for at least 3 days beginning today, starting at 9:00 AM at City Hall, Commission Chambers. There will be two hours set aside between 7:00 PM – 9:00 PM today for “public comment.”

Attorney Robert C. Apgar

ATC and Sierra are represented by Robert C. Apgar of Tallahassee, assisted by Alfred Laub. The City will be represented by its attorney Tammi Bach and the law firm of Carr Allison of Tallahassee. Amelia Bluff, which joined in the lawsuit as intervener, will be represented by the Rogers Towers law firm of Jacksonville.

Attendees should expect some 20 expert and other witnesses to testify on behalf of the parties to this proceeding, many familiar to our community e.g. Julie Ferreira, Nick Gillette, Ron Sapp, Andre Desilet, Frank Santry, Wit Beard, Robert Prager, City Manager Dale Martin, among others.

Because of procedural infirmities and current rulings by the ALJ, the following will not testify at the hearing: Margaret Kirkland, ATC; Richard Timm, Sierra; Chuck Oliva, Conserve Amelia Now (CAN); and Robert Weintraub, CAN. There is no apparent reason why these individuals cannot appear at the “public comment” session Monday evening.

I should note that CAN, at the close of business Friday July 12, asked the ALJ to reconsider his decision to dismiss CAN as a party to this proceeding for lack of standing.

*Since our initial report, we changed the development acreage from 6.4 acres to more than 10 after a reader called this error to our attention.  We apologize for the mistake.

Adam Kaufman, Legal Analyst

Editor’s Note: Adam Kaufman, has been General Counsel, labor negotiator, and lobbyist for the Rochester City School; he was appointed by Governor Mario Cuomo as Counsel, Associate Director and First Deputy Attorney General to a New York State Special Commission; he served as an Administrative Law Judge, mediator and Regional Director of the New York State Public Employment Relations Board; now retired, for the last 13 years he was a labor arbitrator and mediator. A graduate of the Northwestern Pritzker School of Law, he is a city resident.

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