Eleven members of the Hammock Community Association last week filed an appeal of the Flagler County Planning Board’s approval of a site plan for a new, larger Captains BBQ restaurant at Bing’s Landing.
The appeal of the Nov. 14 decision will be heard by the County Commission, which has not considered the site plan. On Nov. 19 the commission initially approved a new lease with Captain’s, without seeing the site plan, any documented analysis of the projected construction and its effects on the park or documentation on the existing structure, which the restaurant owners say is not viable in the long term because of structural issues. On Dec. 3, the commission reversed itself, voting to delay approval of the lease pending further talks.
The notice of appeal doesn’t address that part of the equation, focusing exclusively on the site plan. The appeal, filed by Flagler Beach attorney Dennis Bayer and St. Augustine attorney Jane West, and addressed to the county administration. It argues that the planning board–an advisory board to the County Commission–approved a use of the park that does not conform with the county’s Land Development Code “as the existing lease did not authorize the current level of activity and the proposed new use represents a substantial increase in the level of commercial use and it locates the commercial use in a new location.” The appeal also argues that the project “fails to follow procedural due process and Environmentally Sensitive Lands criteria.”
The county bought the 7.45 acres at Bing’s in 1989 with $1 million from the voter-approved Environmentally Sensitive Land fund, for the park’s rich, stately vegetation, including live oaks and cabbage palms, and its archaeological value.
The county, however, is disputing the Hammock group’s avenue of appeal. In an email to Bayer and West this morning, County Attorney Al Hadeed said Adam Mengel, the planning director, noted no provision in the Land Development Code that provides for appeals of a site plan to the commission.
The Planning Director points out that under the Land Development Code (LDC) there is no provision for appealing the site plan decision for this particular project to the Board of County Commissioners. Under the code, Hadeed wrote, “the right to appeal to the County Commission from a Planning and Development Board decision is limited to variances or special exceptions, a matter not involved in your appeal.” He asked the attorneys for their views as to how the matter may be appealed under the Land Development Code.
The section of the Land Development Code Hadeed initially cited referred to a different section of the code. Hadeed fixed the error. “This is a grandfathered public use under our code,” he said, proceeding from “different provisions” of the code.
“We’re framing our response right now but we believe it is an appealable order,” Bayer said in a brief interview this morning. He said the county staff was making an interpretation of the development code. The staff, for example, considers the site plan a “minor modification” to the park, an interpretation Bayer disagrees with.
Mengle’s reference to the Land Development Code also raises questions, not least of them the implication that any decision by a county advisory board would not have an avenue of appeal–or would have to be appealed directly to circuit court, bypassing the commission.
“I’ve used this mechanism before,” Bayer said, noting that he and West will have an answer to Hadeed’s question.
The appeal recalls how the restaurant started in 1990 as “a small concession operation” of 1,594 square feet. It expanded to 4,157 feet after Captain’s owners added an enclosed screened porch, expanded the kitchen and an enclosed cooking area. The latest proposal would have Captain’s abandon the current structure for a new, 5,200 square foot structure to be built north of the existing footprint, more toward the center of the greenest part of the park. The county would demolish the old building and use it either as green space or for parking, or a combination of both: the county has not produced those plans. Captain’s would build the new restaurant at its own expense, then turn over the building to county ownership, all the while remaining responsible for maintenance and insurance.
“The proposed relocation site is a treed area and as such, the application contemplates removing 71 inches of trees that are reflective of the Maritime Hammock community,” the appeal reads, “including a 12-inch Oak and a 22-inch Oak and multiple Cabbage Palms. Furthermore, the applied for Site Development Plan contemplates impacting 2 acres, a significant portion of this relatively small park that sits on a mere 7.45 acres.”
In sum, the appeal argues that the restaurant’s “expansion” (actually, its reconstruction on a separate footprint) “is not consistent with the original purpose of the ESL program as it elevates the level of commercial use at Bing’s [L]anding,” while the administration’s reference to a “minor modification” is “incorrect,” since the proposed building changes the complexion and purpose of the park. The appeal also noted that the site plan application was incomplete, lacking documentation of septic capacity, parking requirements and archaeological impacts, among other matters.
Opponents of the restaurant’s expansion have demonstrated outside Bing’s for the past several Sundays, drawing dozens every time, both to keep the pressure on the county to more fully reverse course and to build momentum for the legal steps opponents are now taking–steps that are costing them money. They’ve also established a GoFundMe account.
Several spoke Sunday, among them Charlotte Tomey: “The building has been renovated and built on to but not to the point of blocking public view of the river and beautiful scenery of this historic land,” Tomey said. “I’m certain the archeological dig that started in the center of this area has just scratched the surface of what is here yet to be found. We must realize that moving Captain’s and enlarging their capacity also means a much larger drain field, a big parking area and all this takes a huge chunk out of the middle of this beautiful park.”