Still battling a lawsuit by Captain’s BBQ at Bing’s Landing, the Flagler County Commission now faces another one regarding its decision in early November to allow a 240-boat storage facility to go forward a short distance from Bing’s. The facility would be known as Hammock Harbor. (It is registered as Hammock Harbour LLC at the Division of Corporations.)
The Hammock Community Association appealed the county’s Nov. 4 decision to Circuit Court in a filing Tuesday that argues the commission erroneously accepted its planning director’s determination that the use of the parcel for boat storage was allowed under current land-use rules.
Planning Director Adam Mengle had ruled that boat storage at the 4.26-acre parcel at 5658 North Oceanshore Boulevard, next to Hammock Hardware, is a less “intense” use than when the parcel was used for boat manufacturing, and therefore would be a permitted use. The association contends that dry boat storage “is more similar to warehousing or boat sales and repairs with both uses expressly prohibited by the zoning codes for this parcel,” the petition, filed by Flagler Beach attorney Dennis Bayer, reads.
The association also charges that the decision was “improperly based upon ex parte communications and investigations by commissioner [sic.] that were not disclosed prior to deliberations.” There were several such communications, among them County Commissioner Greg Hansen’s, who disclosed during the hearing that he’d observed a boat-storage facility in St. Johns for comparative purposes, and noted only light traffic.
Much of the conflict reverts to a decision by the County Commission in 2000 that changed the zoning to allow manufacturing of one to two luxury boats per year. Newcastle, the manufacturer at the time, employed from nine to 12 people and only built about one yacht per year until it ceased operations several years ago.
Jim Buckley of Ormond Beach bought the parcel in 2018 for $835,000. He’s assured Hammock association members that his intention is to build just the 240-boat storage facility and a 100-seat restaurant, with no additional businesses planned there. While Mengle said that the activity would not be more intense than the boat manufacturing facility, he did not provide technical data supporting the conclusion.
The association challenged the arbitrariness of the approach before the county planning board and the county commission, pointing to the Flagler County Land Development Code, which explicitly states that permitted uses, while not strictly limited, must be based on the “standard industrial classification manual,” which does not list boat storage as a permitted use in the A1A Scenic Corridor. “However,” the petition argues, “it is similar to Commercial warehousing and miniwarehousing, both of which are prohibited uses in the Scenic Corridor Overlay in the C-2 zoning district. Boat sales and repairs are also prohibited.”
The county’s land development code also makes this explicit: “In the event of any conflict between the provisions of this section and other requirements of this article, the provisions of this section shall prevail.”
Based on what the commission approved, the parcel’s floor area ratio–a measure of intensity–will almost triple from 12.8 percent to 33.4 percent while parking will increase tenfold. “These huge increases contradict the decision by the Planning Director,” the petition claims. “7) The proposed new boat storage would be over four times the area of the existing building it replaces. 20% larger than a football field and a 20% larger footprint than the Flagler County Government Services Building.”
Hammock Harbour would rise in an area surrounded by 25 homes and Hammock Hardware, one of the oldest businesses in the county.
The association submitted expert testimony to back up its claims, the petition notes, while the developer did not. “The developer basically stated that, based upon his other boat storage facility in another county, the project should be approved and he admitted that he was not providing expert testimony,” the petition reads. “He made vague reference to another boat facility in the area which used to be in operation but he did not provide any technical data related to intensity of uses.” Mengle’s analysis was similarly lacking in independent data, relying on his own staff report. That led to what amounted to a generally haphazard discussion by county commissioners, who based their approaches on personal observation, “gut feeling” and what they thought the area needed: two commissioners said the Hammock needed boat storage.
The developer had initially submitted his plans to the county’s Technical Review Committee, where the plan was rejected because it requested two exceptions (for greater heights and set-backs) that would not have been permissible. The developer scrapped the exceptions and resubmitted the plan, which was accepted. At that point, the plan could have gone forward, without needing approval from either the Planning Board or the County Commission. But the association ensured a pair of hearings before the two boards by filing its challenge of the Mengel determination. When the commission voted, it did not consider the original plan, but only whether the Mengel determination was valid or not: it voted on the association’s appeal, in effect, voting down the appeal.
That’s the decision the association is now appealing to circuit court, arguing in part that the “quasi-judicial” proceedings did not afford the association due process, while the county’s decision was not “supported by competent and substantial evidence.”
“In the present situation, the HCA is not requesting that this Court re-weigh the evidence as there is no competent substantial evidence to support the Board’s decision,” the petition argues wryly. “In fact the Board never addressed the zoning code or technical data in its deliberations or considered any technical evidence as to the intensity or nature of the proposed use in comparison to the prior use. The Planning Director, in his staff report to the Planning Board, and the Board completely ignored the limitations placed on the defunct boat manufacturing facility that made the use compatible with the neighboring properties. Consequently there is no evidence to re-weigh as the decision was not supported by any evidence whatsoever.”
Hammock Harbour’s intended use is “clearly a warehouse use, which, as established at the hearing, is prohibited by the code,” the association concludes. “In this situation, the Board ignored the regulations and made a decision based solely upon a perceived need for a certain land use and based upon an observation that a new building would look better than the old one.”
The petition calls on the court to require the county to respond. following which the court would either set a hearing for oral arguments or make a ruling. The process is not likely to be quick.