A Flagler County circuit judge quashed a November decision by the Flagler County Commission that had opened the way to a controversial 240-boat storage facility and restaurant in the Hammock, next to Hammock Hardware. But that doesn’t mean the project can’t eventually go forward in certain circumstances that aren’t yet clearly defined.
Circuit Judge Chris France in a July 28 order agreed with the Hammock Community Association and its attorney, Dennis Bayer, who had appealed the decision: the commission reached its without “competent substantial evidence.”
The commission had approved the development plan based on one commissioner’s personal, anecdotal observations of a boat storage facility elsewhere, on another’s “gut feeling,” and of similarly general rather than factual statements by other commissioners.
The court did not make a determination on a central issue: whether the boat storage facility “is or is not a permitted use” within the county’s zoning code, remanding the matter back to the county for further hearings. In essence, if the development is to go forward, the developer will have to go through the hearing process again, presenting evidence that substantiates his claim that the project fits permitted uses within existing zoning, and the commission would have to vote again based on that evidence, if it is provided.
“Unfortunately during the Circuit Court hearing,” Sean Moylan, the attorney handling the case for the commission wrote commissioners in a memo, “the judge did not seem interested in the language of the code whatsoever, or the role of the TRC in our processes for that matter, only in the process of our Commission hearing and the statements made by individual commissioners.” The TRC is the Technical Review Committee that reviewed the development application before it reached the planning board and the commission.
“The order in essence hits the resent button,” Moylan continued, “and while the order remands the matter to the Commission for further proceedings, what happens next is largely up to the property owner, Mr. Bob Million, who intervened in the appeal. At this time, staff is engaged in internal discussions as well as with Mr. Million’s counsel to determine next steps. Certainly whatever proceedings occur moving forward, we will endeavor to buttress any decision by the County with the evidence the judge feels is necessary.”
Even if temporary, the decision is a victory for the Hammock Community Association, a powerful group of Hammock residents who also played a central role in reversing the county’s approval in late 2018 of a new Captain’s BBQ at Bing’s Landing, causing Captain’s to file suit. That case is still pending.
The decision may be notable in another regard: the county planning board just recommended approval of key steps in The Garden development, a 355-house project planned for both sides of John Anderson Highway, and did so in part on a determination by the planning director that the application was in line with the county commission’s 2005 regulatory approvals. Opponents of The Gardens in its present form made similar arguments that the Hammock Community Association had made about Hammock Harbour: that the planning director’s determination was flawed and lacked due process. The Hammock Harbour decision points to the vulnerability of those determinations, if they lack solid data. Commissioners are certain to be at least conscious of the judge’s Hammock Harbour decision as they consider The Gardens in a coming meeting.
The boat-storage facility proposal is for a 4.26-acre site at 5658 North Oceanshore Boulevard in the Hammock. In 2000, the County Commission changed its zoning to allow for the manufacture of one or two luxury yachts a year there. At the time, Newcastle, the boat manufacturer that owned the parcel, employed a dozen employees or fewer.
Developer Jim Buckley now owns the site, which adjoins Hammock Hardware and several residential properties. He is planning the boat dry storage facility there and a 100-seat restaurant.
The site is zoned C-2 commercial. The designation does not include dry boat storage among permissible uses. Adam Mengel, the county’s planning director, determined that “boat storage is less intense than the previously approved boat manufacturing and would be a permitted use within a large building on a parcel purpose-built for manufacturing boats and located on a navigable waterway.”
Mengel’s claim is that both the boat storage facility and the restaurant would be less busy than the previous manufacturing plant. But his determination was just that: a determination. It was not based on substantial fact or evidence. The Hammock association is not disputing Mengel’s authority to make a determination. But it is disputing his conclusion.
Bayer presented evidence that the redesigned parcel would result in construction that would increase the so-called “floor area ratio and parking” (or impermeable areas) from 13 percent to 33, with parking increasing tenfold. “These huge increases contradict the decision by the Planning Director,” Bayer’s petition to the court stated. The boat storage facility itself would be four times the area of the current building, “20 percent larger than a football field and a 20 percent larger footprint than the Flagler County Government Services Building” in Bunnell, where the commission holds its meetings.
Before the commission considered the matter, County Commissioner Greg Hansen conducted his own personal observations of a boat storage facility at Ponce Inlet and determined that boat traffic would not be a problem.
The Hammock Community Association disagrees. It argues that boat storage is similar to warehousing or boat sales and repairs, both of which are prohibited by the zoning code at that particular parcel.
Well, I think it boils down to interpretation of it’s a warehouse or not. I mean, that’s pretty simple. It’s that most of arguments I heard today were pretty bogus, I got to tell you,” Hansen said. “The — the the driving in and out, the number of trips. That’s bogus. ” He said he’d gone to Ponce Inlet to watch a boat storage unit there. “The most I saw was three boats moved in an hour. So all those boats are not going out on any given day.” Hansen said it was “unfortunate” that Mengel had used the words “less intense.” Hansen thought it would be more intense–but that such a facility was needed in the area. To him the key was the definition of “warehouse.”
“If it’s a warehouse, then we can’t approve it. But it’s for us to decide,” Hansen said.
Commissioner Dave Sullivan spoke of his “gut feeling” that the boat storage facility was needed.
The “bogus” evidence Hansen was referring to included that of Thad Crowe, the only expert witness who spoke before the commission that day (he did so on behalf of the Hammock Community Association). Crowe is a planner with 32 years’ experience. He based his statement on a published engineering study about a Monroe boat storage facility of similar size, concluding that there would be 355 weekday trips, 368 Saturday trips and 768 Sunday trips in and out of the facility (numbers that could strain credibility: 768 trips on Sunday could mean a boat in or out every minute or two.) Factoring in the restaurant, another 433 trips could be added, totaling what Crowe described as “a whopping 1,201 Sunday trips.”
The developer for his part conceded that he was not providing any expert testimony and was basing his assumptions on anecdotal evidence. Mengel did not make a technical presentation to the commission, nor did his report include technical data.
The County Commission approved Hammock Harbour on Nov. 4 in a 5-0 vote.
The Court Documents:
See also HCA’s briefings: