DEP Forbids Deck on Flagler Pier Restaurant–Unless It’s Called a “Pier Extension”
FlaglerLive | July 14, 2011
Government regulations work in mysterious ways.
When Flagler Beach agreed to leasing the Pier Restaurant to a new owner last month, part of the agreement was that the city would build a $50,000 deck extension for the restaurant, and seek that money from the publicly funded Tourist Development Council (which gets its dollars from the 4 percent bed tax supplement, not property taxes). That deck would certainly enhance dining at the restaurant. It would also enhance the restaurant’s profits. It would extend 20 feet toward the sea, beyond where the restaurant’s structure ends now.
To do so, the deck must have a permit from the Florida Division of Environmental Protection. And to get that permit, the structure of the restaurant may not go beyond the so-called seasonal high waterline. Right now, the restaurant’s structure stops evenly with that waterline. The deck would be entirely past that waterline.
DEP won’t allow it. It’s made that clear to the city. But here’s the weird part: according to a consultant hired by the city to study the matter, DEP will permit the 20 foot by 76 foot extension, Oceanside, as long as the city doesn’t call it a deck. It must call it an extension of the pier. If the city does so, then DEP would be fine with it since, presumably, a pier’s structure, by nature, encroaches on waterlines.
The proposal made several Flagler Beach City Commission members very uncomfortable Thursday evening. Absent a deck for the restaurant, Ray Barshay, the new restaurant owner, still has a window (until September) to drop the agreement. The city doesn’t want him to do that. But commissioners John Feind, Steve Settle and Marshall Shupe, along with Mayor Alice Baker, all were troubled about “circumventing” the law by playing word games to secure DEP’s permit, and hurt the city’s credibility with DEP or even the county along the way.
“We have a relationship with the county and the DEP and it involves a lot more than the restaurant,” Faind said. “I don’t want to make an application for money from the county under one guise and then have it be something else.” The city’s application to the county’s TDC is for an extension of the restaurant, not an extension of the pier. That application may well run into trouble, according to commission member Kim Carney, because it’s an extension to a business, not to city property. But that’s also why calling it an extension of the pier would work to the city’s advantage, Carney said.
Feind didn’t agree: DEP would see through the ruse. And it would open the city to other legal vulnerabilities. The pier is open to public access. Anyone who pays to walk the pier is, and must be, allowed on. If the extension of the restaurant is called part of the pier, wouldn’t people have a right to walk there, too, or fish off that portion of the deck-pier?
Barshay, understating his frustration, ridiculed the notion. “You’ve added on to the pier bathrooms, nobody’s going to fish off the bathrooms,” he said. “If you want to do this, to me this is the answer. It isn’t a circumvention, it isn’t a game of three-card monty that we’re trying to trick somebody.”
To Settle, however, that’s pretty much what it is. Settle usually takes pleasure in ridiculing government regulation. Not this time. “That’s what I call a circumvention of the law,” Settle says. He told Barshay that he’d support him if he wanted to change the law, but not otherwise.
The discussion looked like it might sink into another stalemate over the Pier Restaurant, and risk losing the deal with Barshay. But Commissioner Jane Mealy and Carney opened the way to a compromise, and Acting City Manager Bruce Campbell said even calling the deck an extension of the pier would not create legal contradictions: the pier-deck would be delimited as such, separate from the public pier; the city’s attorney, Drew Smith, said the city could simply lease that portion of the pier to the restaurant.
Commissioners had to act. The point of this evening’s discussion was whether to move forward with an application for a permit from DEP to build the deck. Mealy moved to do so, with caveats: Feind agreed to support the application as long as it fully disclosed today’s discussion, to make clear to DEP that the city was not intending to snake its way around the law.
Shupe also accepted Feind’s approach, and the commission voted 4-1, with Settle in dissent, to apply for a permit, and call the deck an extension of the pier.