By Adam Kaufman
July 17, 2019
The hearing resumes for a third day, Wednesday, at 8:00 am at City Hall.
It is expected that this will be the last hearing day of the proceedings.
For those in the community who have learned of the doctrine of “Scrivener’s Error,” and have debated its application with regard to the Amelia Bluff controversy, it may now be possible to rest easy.
At the close of the hearing Tuesday, addressing a motion by Petitioners’ Amelia Tree Conservancy (ATC) and the Sierra Club (Sierra) counsel to strike testimony with regard to “scrivener’s error,” Judge E. Gary Early suggested the issue might be of insignificant consequence. He indicated that it may not be what motivated a local government to consider an alteration in a land use designation that is pivotal, but whether based upon appropriate, relevant data and analysis, the local government’s decision meets the statutory criteria for adoption of that modification.
Tuesday’s hearing began with the testimony of V. Rebecca Jetton on behalf of ATC and Sierra, who was accepted as an “expert witness” with experience in land planning and comprehensive planning with an emphasis on wetland protection.
Jetton asserted, based upon her review of documents in the record, that modification to the Future Land Use Map (FLUM) that applied to the Amelia Bluff site should not have been adopted as a “small scale amendment.” Jetton maintained that the project site is part of a subdivision which she identified as over 11 acres and therefore would require application to the State for an “expedited amendment.” As noted before, small scale amendments apply to 10 acres or fewer.
The calculation was an apparent reference to the entire parcel that was subject to the March 2018 Memorandum of Understanding by and between Amelia Bluff, LLC (Amelia Bluff), the Nassau County School Board, and the City of Fernandina Beach (City) wherein Amelia Bluff conveyed 3.76 acres of jurisdictional wetlands to the City, dedicated 0.917 acres for the right-of-way connection between Hickory Street and FDOT property and retained 6.4 acres at the project site.
Jetton maintained that no “competent” or “responsible” planner would support a FLUM Amendment to a Comprehensive Plan that would allow for the implementation of the Amelia Bluff project as presently designed.
Jetton contended that the Amelia Bluff project as designed, and the City’s approval process of that project, violates and did not adhere to statutory prescription. Jetton asserted that there was no appropriate evaluation or analysis of the effect of the proposed FLUM Amendment given to the City’s Planning Advisory Board.
Jetton maintained that the City failed to follow the criteria and requirements contained in the policies of its Comprehensive Plan with regard to water quality, stormwater runoff and drainage patterns, wetland protection, location of buffer zones of native vegetation around wetlands and the Maritime Forest, among others.
Jetton allowed that a “revised residential design” could be approved on the Amelia Bluff site if the home sites were moved to the uplands.
ATC and Sierra concluded their case after Jetton’s testimony.
The City of Fernandina Beach’s first witness was to be Kelly N. Gibson, its Director of Planning and Conservation. Gibson has a Master’s in Science in Urban Planning with an emphasis on Growth Management and Comprehensive Planning. She is an American Institute Certified Planner.
Kelly Gibson is on maternity leave.
At the request of the City’s Attorneys, Gibson’s 4 hour pre-hearing video-taped deposition was played at the hearing. A deposition is generally used to gather information in the discovery phase of a proceeding. Attorneys for all the parties were present at Gibson’s deposition
Gibson testified, in that deposition, that her first involvement with the property that contains the Amelia Bluff site was when she was contacted in 2016 by a representative of the Nassau County School Board with preliminary questions about the City’s right-of-way on the property. It was School District owned property at the time, and apparently the District was considering construction on the site.
Gibson testified as to the property’s changing designations: residential, wetlands, low density residential and in 2006 conservation. She testified that she was aware of land use designation errors in the area of the City where the Amelia Bluff site is located.
Gibson described her interaction with Amelia Bluff, LLC in 2018, and her role over a 9 month period in the negotiated modification of plans for the Amelia Bluff project.
She testified as to the ultimate consistency of the Amelia Bluff project’s plans with the Comprehensive Plan. She explained that the modifications to the project’s plans included protection of sensitive features on the site, including significant tree canopy. She explained the roles of a biologist, and arborist in the plan development, as well as, the roles of the City’s Stormwater Manager and the St. John’s Water Management District. Gibson spoke to the Amelia Bluff project’s consistency with other residential developments on Citrona Drive.
Gibson explained that the Egans Creek Greenway Management Plan is not part of the City’s Comprehensive Plan, and that the Amelia Buff site does not border on the Greenway.
She charted the approval process for the Amelia Bluff project and detailed the roles of the City’s Technical Review Committee and Planning Advisory Board, and described her interaction with those bodies and with the City Commission. All the documents related to that process were entered in the record. Gibson defended the integrity of the approval process.
Gibson defended her assessment and evaluation of the Amelia Bluff project as consistent with the City’s Comprehensive plan. She underscored that, as a result of the conveyance of the 3.76 acres of jurisdictional wetlands to the City, that the 6.4 acre site was “upland property.” Gibson maintained that to claim otherwise would be misleading.
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.