Submitted by Suanne Z. Thamm
Reporter – News Analyst
January 20, 2016 7:47 p.m.
First reading of two proposed Ordinances accounted for the capacity crowd in City Hall Commission Chambers during the January 19, 2016 Regular Meeting of the Fernandina Beach City Commission (FBCC). Ordinance 2015-36 (Tree Ordinance), amending the Land Development Code specific to tree protection and landscape requirements, drew members and supporters of the Amelia Island Tree Conservancy as well as representatives of the mills. Historic District residents showed up in force to oppose Ordinance 2016-01, which proposed to change the city’s Future Land Use Map (FLUM) to assign a category of Central Business District (C-3) from Mixed Use (MU) for a parcel located at 112 S. 3rd Street.
After much staff and citizen input, the FBCC moved to approve on first reading the Tree Ordinance without the controversial section exempting the mills from compliance. That particular section of the code will return to the Planning Advisory Board (PAB) for further study that will include input from the mills and industrial- zoned property owner Shannon O’Conner.
Clark Brook, the applicant for the proposed FLUM change on S. 3rd Street, withdrew his application with apologies to the neighbors after a half-hour of public opposition to the plan, ending his plans to build a restaurant in a former daycare facility that has been vacant for over 2 years.
Ordinance 2015-36 as amended will return to the FBCC for second reading and public hearing at a future meeting.
Ordinance 2015-36 (Tree Ordinance)
The city has maintained a tree ordinance since 1891. The most recent version was passed in 2006. City code addressed trees and landscaping separately. In 2014 the city convened a working group with broad community and professional expertise to review existing tree protection and landscaping elements of the Land Development Code (LDC) and to address issues that had arisen over the last 8 years in working with existing code. That group and city staff found that the existing ordinance was working fairly well.
After reviewing the proposed revisions in 2014, the Planning Advisory Board (PAB) directed staff to consider the impact of the revisions on non-residential property. Following review by a local architect and a local engineer, it was determined that the proposed changes would create a hardship in developing vacant commercially zoned property. Staff made adjustments and returned the ordinance to the PAB for further consideration.
In October 2015 the PAB approved the changes and added one of their own that had not been part of the review process: removing a longstanding exemption for the mills. When the FBCC first heard this ordinance, they tabled consideration to the January 19 meeting to give staff more time to consider alternatives. Staff did not feel comfortable giving industrial property owners a complete exemption, as the industrial property owners requested.
Senior planner Kelly Gibson provided three options for the commissioners to consider: removing the exemption, which would require industrial property owners to request variances to the ordinance; exempt existing industrial properties from landscaping and tree requirements except for portions of their property within 75 feet of non-complimentary land uses; and exempt existing industrial operations from landscaping requirements but not tree requirements, but allowing for 100% of the trees to be mitigated through a fee.
During public comment representatives of both mills and the owner of an industrial parcel near the airport voiced strong objection to removing the exemption. Four individuals associated with the Amelia Island Tree Conservancy voiced strenuous objections to exempting industrial properties from the ordinance requirements.
WestRock representative Colin Campbell reiterated concerns that have been raised over PAB recommendations over the past year that have not conformed to the usual process of amending the land code. He said, “[WestRock] has been a good citizen.” He said that the current recommendation to make the mills comply with regulations that appear to be more relevant to residential development came suddenly out of a process that had been set in motion to “clean up a little bit of language.” At this time he said that WestRock would oppose all three options.
Russell Schweiss, representing Rayonier Advanced Materials, reminded commissioners that in building their plant, Rayonier had literally created the land on which the plant sits. There were no trees. He said that requiring industry to request a variance every time they built a new road or facility on their property would create undue burdens for the industrial concerns.
Shannon O’Conner, owner of the industrial park property contiguous to the airport, also disagreed with the options and asked that he be considered as well as the mills for any exemption. He reminded commissioners that by far the most significant destruction of trees results from clearing land for residential development. “I would suspect,” he said, “that they destroy 75-85 percent of the trees when they create a residential development.”
Robert Prager, a civil engineer, said that there should be no exemptions for industrial property and that their operations can request variances, “just like everyone else,” if they feel the ordinance is burdensome.
Landscape architect Arthur Herman and his wife Diana Herman agreed. Arthur Herman renewed the Amelia Island Tree Conservancy’s request for a Tree Commission, suggesting that such a body could provide advice and professional services and be part of a building permit review process and help both developers and city staff. In enumerating all the ways in which such a committee could be helpful he reminded commissioners that the city once had an Environmental Policy Review Board that existed between 1991-2004. He said that we are at a critical point in the destruction of maritime forest on the island. Diana Herman agreed and opined that people come to Fernandina Beach for the beach and the trees. She supported the idea of a Tree Commission. “Help us help you,” she said. “We fight for the island because it cannot fight for itself.”
Environmental activist Julie Ferreira said, “We have to put up with a lot from the mills.” She claimed that she has been unable to sleep at night since she moved to the island due to noise from the Rayonier operation. In addition to agreeing with the previous speakers who opposed exemptions, she reminded commissioners that trees take pollution out of the air.
Two other speakers also came forward. PAB Chair Judith Lane told the commissioners that the mills had not been singled out in this ordinance. She urged the commission to move on this ordinance, which has been under review for almost two years. She said that she believes in the 80 percent rule, and that if the FBCC did not feel comfortable with the PAB recommendation to remove the exemption for the mills, they could send that particular section back to the PAB for further study while passing the remainder of the ordinance and keeping the current exemptions intact for now.
Jan Cote Merow asked questions about the city’s experience with violations of the current ordinance. “I was just wondering,” she said, “given the current tree ordinance, the number of businesses and developers who have been found in violation of the ordinance. Were they fined? Who assessed the fine and where did the money from the fines go?”
Gibson responded that developers work closely with city staff to avoid violations and that the city has no recent violations by developers. Over the past 8 years, the handful of violations have come from residential property owners cutting down trees on their own property. Mitigation monies collected go into a city tree fund to plant trees around the city. Cote Merow said she found it interesting that there had been no commercial or industrial violations reported.
Commissioner Roy Smith said, “Just listening here, and I’m not taking any sides, it seems like all the committees don’t have anybody from the mills on them, so they are all going against the mills. When I campaigned, I said I wanted compromise and negotiation on different things. I don’t see any here. Everybody has to be happy as much as they can, but nobody is going to be happy 100 percent.”
Addressing his comments to the exemption opponents, he continued, “The way this is coming out, it’s my way or the highway. You’ve got to have the mills and the industrial park included. You can’t say to people who have had this property and run these operations for years, ‘You can’t do it anymore because we don’t like it.’ If it was the opposite, you’d feel the same way. It can’t be a one-way street. I want to see more compromise and negotiation. I’d say just leave it like it is if that can’t happen. I told you what I wanted, and I don’t see it here.”
Mayor Johnny Miller respectfully disagreed with Smith, saying, “I believe that all three options give good impact in getting input for the mills, and I thank staff for putting these together.” Miller went on to support the creation of a Tree Commission and wanted to begin the process of creating such a city board.
City Attorney Tammi Bach said that in considering the creation of such a board, the commission needed to be mindful that many in the community would oppose such an action on the grounds that it would create one more level of bureaucracy that developers would need to deal with. Bach said that the contributions of the Amelia Island Tree Conservancy in drafting the other areas of the proposed ordinance had been significant because of their knowledge and degree of professional certification.
Miller said that he didn’t see this as another layer, but adding a process that could work alongside other processes to speed up a project. Vice Mayor Robin Lentz said that she felt the topic should be postponed for further discussion at a future meeting,
Commissioner Tim Poynter said, “We might be speeding things up; we might be slowing things down. But I don’t think any of us have thought enough about this to take action tonight. There’s always unintended consequences on things, and I foresee this as having them.” Poynter added, “It’s worked great with the mills for 70 years, and all of a sudden it’s a problem. I know things change, but I don’t want to rush to form another committee right now.”
Miller said he agreed with Poynter that the commissioners need to do more research, adding that he has already done a lot of research and found Florida communities where such a Tree Commission works well.
Kreger agreed with Poynter, saying that the commission has a lot of things to examine. Before creating any Tree Commission, he wanted to get the present ordinance passed.
Commissioner Tim Poynter moved the approval of the ordinance with the exception of the section dealing with the mills, which would be sent back to the PAB for consideration and input from all the industrial property owners. Commissioner Len Kreger seconded the motion. Kreger asked that the section in question be returned to the FBCC within a specific time frame, thereby allowing the city to begin working with Nassau County on an island-wide tree ordinance/policy. Vice Mayor Robin Lentz concurred. Gibson responded that the soonest this item could return to the FBCC would be June.
The motion passed unanimously.
Ordinance 2016-01 – 112 S. 3rd Street
A former daycare center at 112 S. 3rd Street has been vacant since 2013. It is located in an area designated as Mixed Use, which would allow for commercial or residential development. But Clark Crook (the applicant), who wanted to open what he termed on his application “a family friendly restaurant,” found that he needed to expand the facility from plans for 50 seats to 150 seats in order to obtain a liquor license. Expansion plans under the current zoning would have triggered a requirement for significant onsite parking. However, by changing the FLUM to Central Business District, the on-site parking requirement would have been eliminated.
City staff, in considering that the property adjoins Central Business District and is located across the street from a restaurant and a lumberyard, supported the change as a means to bring an empty piece of property back to life. Staff noted that because of changes in the FEMA flood insurance map, the applicant’s intent to repurpose the existing structure would be very costly.
Although city staff recommended approval of the ordinance, the Planning Advisory Board (PAB) unanimously rejected the change, following significant input from surrounding residential property owners.
Eight speakers rose to oppose the change, citing current parking issues in the neighborhood that would be exacerbated by eliminating the onsite parking requirement. Residents said that they understood that under the current land use, the subject property could become a restaurant, but expressed concern that what seemed to have started out as a 50-seat restaurant was now envisioned as a 150-seat restaurant to allow the applicant to get a liquor license.
Rob Psulkowski, a neighbor, presented commissioners with a petition signed by even more surrounding residents. He said that once the land use is changed to Central Business District, it will never revert to Mixed Use, meaning that if the proposed restaurant were to go out of business or not materialize, a used car lot could take its place.
Following the public input, Mayor Miller recognized the applicant, Clark Crook. Crook said that he had come to the meeting in order to apologize. He said that his original intent had been to open a neighborhood bar with a 50-seat restaurant. That would have required 15 parking spaces that he could have provided on property. Pursuit of a liquor license, however, meant that he would need to increase restaurant seating to 150, completely changing the parking situation. He agreed with staff that it would be very costly to pursue upgrading the structure to meet the FEMA standards. “I love this community as much as you do,” Crook said to the neighbors. He asked to withdraw his application. City Attorney Tammi Bach verified that he was withdrawing his application for a land use change and a zoning change. He concurred.
There was no additional discussion.
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.
To clarify my position on ordinances, what I said in part was, “Setting up special interest organizations in any ordinance is bad public policy and undermines public trust. Exemptions lead to challenges.” Mr. O’Connor’s comments illustrate my point. I was certainly not singling out industrial concerns or any other entity. I am not anti mills. I am pro good governance. The purpose of variances is to allow accommodations under very specific circumstances. In contrast, blanket exemptions for any special group or entity sets the table for unintended consequences.
Commissioner Smith is quoted as saying, “You can’t say to people who have had this property and run these operations for years, ‘You can’t do it anymore because we don’t like it.’” This statement is fundamentally false. We used to dump our sewage and industrial waste directly into our rivers and oceans. We don’t allow this anymore because it was detrimental to us all.
Robert,
I agree completely. I don’t understand what the mills objection is other than not wanting to have to comply with another ordinance. If you look at an aerial view of their property, Rayonier has hardly any trees at all on their property except for the triangle of land at the extreme north end that they initially offered to sell to the City but later withdrew. WestRock has a number of huge oaks on the eastern edge of their property. There is a provision that for property more than 10 acres, the owner can get a tree removal permit for maximum fee of $10,000 that exempts them from ANY tree replacement. This is what the City Airport fund paid for all of its tree removal.
If the objection is the landscaping, I would have to have a better understanding of the exact nature of their issue with those provisions.
Arthur Herman is not an arborist, but a landscape architect.
Sorry. Correction made.