The Amelia Bluff Day 1: Notes

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By Adam Kaufman
Legal Analyst
July 16, 2019 6:10 a.m.

At 8:20 pm, Monday evening, after approximately 7 ½ hours of testimony on behalf of Petitioners, the Amelia Tree Conservancy (ATC) and the Sierra Club (Sierra), and 80 minutes of “public testimony,” Judge E. Gary Early concluded the first day of proceedings concerning Amelia Bluff.

The hearing resumes Tuesday. The Petitioners will continue their challenge as to whether the Future Land Use Map (FLUM) Amendment to the City’s Comprehensive Plan, changing the designation to Low Density Residential from Conservation at the Amelia Bluff site, is in compliance with Florida Statute.

Julie Ferreira, Sierra Club, Nassau; Sean E. McGlynn, Ph.D., an expert in eco-system management and water quality; Arthur Herman, a former horticulturist at New York’s Bronx Botanical Gardens and Director of Landscape Maintenance at Fordham University’s Rose Hill and Lincoln Center campuses; Robert D. Prager, a Civil Engineer, Value Engineer, Water Resources Engineer, and an expert in geomorphology; and Munsell McPhillips, Ph.D., an expert in eco-system restoration and geomorphology, all testified as to their assessment of the environmental degradation that would take place if the Amelia Bluff project was allowed to continue.

With varying degrees of emphasis, the Petitioners’ witnesses testified as to their evaluation of the Amelia Bluff project’s impact, if implemented, on water quality, stormwater management, wetlands, wildlife habitat, soils, native vegetation, and the Maritime Forest, with particular weight given to the project’s potential effect on the Egans Creek Greenway.

Ms. Ferreira’s testimony included a video presentation resulting from a drone flyover of the 6.4 acre Amelia Bluff site, the Egans Creek Greenway and the Fort Clinch State Park Aquatic Preserve. The video provided orientation and a visual context for her testimony and the testimony that followed.

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Prager was the only witness who advanced a theory as to why the prior designation on the FLUM of the parcel that includes the 6.4 acre Amelia Bluff site as “Conservation” was not in error. Prager admitted, on cross examination, that he had not reviewed contemporaneous documents with regard to the adoption of the Conservation designation, but that his hypothesis was based upon his expertise. Prager’s testimony on this issue was challenged as speculative and conjecture.

During the public comment period, 22 individuals came forward to ask Judge Gray to prevent the development project at Amelia Bluff from being completed and to undo the actions of the Fernandina Beach City Commission. Virtually all had previously testified at City Commission meetings at which the FLUM Amendment to the City’s Comprehensive Plan was considered. They include Margaret Kirkland, Ron Sapp, Robert Weintraub, Chuck Oliva, Joanne Bean, and Diana Herman. The testimony given during the public comment session will be made part of the record of the proceeding.

At the opening of the Hearing, Judge Gray denied Conserve Amelia Now’s (CAN’s) motion to reconsider his decision to dismiss CAN from the proceeding for lack of standing.

Robert Weintraub was allowed to testify for the limit purpose of identifying photographs he took during a June site visit to Amelia Bluff.

Adam Kaufman, Legal Analyst

To read “Amelia Bluff – A Primer” click here.

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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19 Responses to The Amelia Bluff Day 1: Notes

  1. Herb Dickens says:

    There is overwhelming evidence why the Amelia Bluff developmental project will be rejected. The major issue facing us comes down to “Water” and degradation of our way of life on Amelia Island. We are closely reaching the point of “No Return” with “Water” and once that point is breached we will all suffer catastrophic consequences.

  2. Pam Hart says:

    The more pavement on this small island, the more any flooding will be exacerbated. And the less trees we have, the less water will be absorbed into root systems. We have a reached a critical juncture and if we don’t respect and preserve our environment, we will all suffer because of it. Many thanks to those who took the time to gather information and testify on this subject. Sounds like they did their homework.

  3. Dave Lott says:

    The issue before the judge is not what impact the Amelia Bluff development will have on the ecosystem, but whether the City adhered to designated procedures in changing the FLUM designation on part of the parcel from Conservation to R1. Despite the passion about conservation, I believe the judge will ultimately rule in the City’s favor. The argument of environmental impact is one that can be made for almost any development effort for any property on the island or elsewhere. The owners of remaining undeveloped property should not be restrained from the development of their property in compliance with land use and zoning designation.

    • Bill Owen says:

      I can’t say how the judge will rule, but you are absolutely correct with respect to the nature of the hearing. It is a LEGAL ruling, not a environmental one. I’m surprised that the judge allowed all the non-expert ‘witnesses’ to even present. Your point about property owner rights under the 5th and 14th amendments is also relevant. If these groups truly want to stop development, the best way is for them to purchase land for conservation themselves.A win-win situation – the land is conserved, and taxpayers are spared the cost of government purchasing property.

    • Vince Cavallo says:

      Sadly I agree with you comment about the purpose of the hearing Dave. The legal issue they should be addressing in this forum is whether the commission followed procedures for remaking zone boundaries. The issue that may have to be decided in court if this fails to show the city violated procedure is whom and to what degree an official has any authority to change a zone map. IMO, only the commission had the authority to do so. The salient issue is the developer plowed ahead based on a supposed verbal commitment to make a map change rendered by an official who did not have the authority to make that decision.

  4. Peg Lehosit says:

    This lawsuit should be a wake up call for the City of Fernandina. We cannot continue to do business as usual. It’s time for a moratorium on all development while brighter minds than our city staff rewrite our Land Development Codes with conservation at the core. Start thinking of the greater good rather than the greater greed.

    • Dave Lott says:

      Peg, you cannot just put in place a moratorium on development unless there is an overriding public health issue (i.e. insufficient water supply or wastewater treatment – neither of which applies within the City). There has been a moratorium on land use changes while City staff deals with the seventy or so discrepancies that have been said to have been discovered where there is a conflict between the zoning designation and the land use. You cannot deny a property owner the right to develop their property within the confines of their existing zoning and land use. Such an action could be considered a “taking” and would launch a multitude of lawsuits that the city would lose.

  5. Thomas Lohman says:

    Did the School Board own this property for expansion of the schools next to it? If so, has anyone explained how they going to build on this property if it was all “conservation? Sorry if this has already been addressed and I missed it.

    • Vince Cavallo says:

      The point is the whole parcel was not deemed in conservation, just a portion of it. (by my reckoning maybe 20%) I believe part of the parcel, outside the conservation area, was noted as a city right of way. The parcel is across Citrona from the current school properties, not next to it.

  6. Marlene Chapman says:

    Dave and Bill….I agree wholeheartedly with your points and find one of the things that many disagree with is the approximately $27,000 that these groups raised to fight this battle most assuredly would have been better spent to buy some of the parcels of land around the city for conservation that they so deeply care about.

    • Dave Lott says:

      Questions have been raised about what will happen to the CAN raised funds since the rules of the funding social media group is that the monies must be returned if they are not used for the purpose advertised. Since CAN was declared to not be allowed as a participant, I would think this would apply.

      • Marlene Chapman says:

        Dave, there are SO many questions about the entire thing. I know that they were in desperate need of additional donations to continue their fight. I am not certain that since they were not a legal entity at the time of this suit, and that’s what they asked for the monies, they would have to return those funds? Also, why is it that everyone is so upset about developers coming in and building homes, etc, but when individuals build a home here and there, that is not an issue? If you drive around town, you can see exactly how many single family homes (some with “accessory dwellings” that means more trees taken down, more population, more traffic, more wear and tear, etc) have been built, I guarantee you that the numbers is quite high! I am not for over development, but it all has to be fair.

      • Chuck Oliva says:

        Dave, you are in error. First of all, the money was collected prior to CAN setting out our plans to file for an administrative hearing. There was a strong sense that someone had to do “something” in the wake of the vote approving the FLUM amendment, but an announcement to file for an administrative review was not made until over a month later. Secondly, this money was used in support of the administrative hearing. That CAN was removed from the petition due to a technicality does not change the fact that the members of CAN were the primary source of support of this legal action – having raised far more than Sierra Club or ATC combined.

    • Chuck Oliva says:

      Marlene,

      While it is true that the purchase of land that would be put into conservation is a very good way to address this situation, the purchase of land is prohibitively expensive. There is another way to protect land: hold local government accountable for their actions, their missteps, and to the Comp plan and underlying FLUM that is, after all, an expression of our hopes and intentions regarding the future of our island. If elected officials do not feel compelled to follow the protections set forward in our Comp Plan, no piece of land will be safe. Disabusing local government of the notion that they can act with impunity and ignore the clearly stated will of the people who call Amelia Island their home is the most important way for us to protect land in the future.

    • Chuck Oliva says:

      Marlene, it is simply not the case that this money would have been better spent in the direct purchase of land to put into conservation. The money that was raised by CAN – while it is a wonderful example of direct citizen action – is a drop in the bucket if you consider the very high cost of buying property. This money was clearly better spent holding local government accountable. It was an important citizen’s response to come together to disabuse local government that running roughshod over the Comp Plan and FLUM is an appropriate way to govern. The Comp Plan and FLUM are intended to be documents that set out our vision for the future. Each directive starts with the phrase “government shall.” It is not aspirational. If our government reduces these protections to “guidelines” or “suggestions” then we really cannot trust that there are any protections. The citizens of Amelia Island felt betrayed by the Commissioner’s vote in April. And they felt that their concerns were ignored. That is no way to govern.

  7. Marlene Chapman says:

    The above reply was from myself, Marlene Chapman only.

  8. Betsie Huben says:

    For once, I have to agree with Dave Lott. The judge’s decision will most certainly rise or fall on the matter of how the preliminary permit came to be approved. But where I vehemently disagree with Mr. Lott is – the entire process for permitting this project was ignored and/or abused. When the judge reviews the video tapes of the various meetings and comes to understand the shenanigans that went on, he will see the land was and should remain conservation. No city official (McCreary) should have ever given a wink, a nod and a verbal assurance to any developer as to future outcome of the permitting process outside of the process itself. And that was only the first of many many missteps along the way that have brought us to this moment in time.

  9. Bob Sturgess says:

    Was Prager deemed qualified as an ‘expert witness’?

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