After a court of appeal reaffirmed the judgment of the local circuit court that the Flagler County Commission had improperly approved a 240-boat indoor storage facility in the Hammock, the matter was back in the county’s hands, or that of the developer. So the question was: what will the developer and the county do next?
Sean Moylan, the assistant county attorney on the case, Wednesday in an email to commissioners answered both questions lucidly and, to some, worrisomely: the county is proposing a one-line amendment to its Land Development Code that would potentially end-run the legal barrier and specifically permit the boat storage facility, setting up a precedent for other warehousing operations that might seek cover under a different definition. Warehouses are not allowed in the Scenic A1A corridor.
The developer has submitted a revised plan to the county.
“The original intent of A1A would be gutted by allowing it,” Dennis Bayer, the attorney the grass-roots Hammock group hired to battle the county over the original boat-storage proposal, said after hearing of the proposed ordinance. The ordinance is scheduled to go before the county planning board in March for a recommendation, then on to the County Commission for a vote.
The 4-acre parcel at 5878 North Oceanshore in the Hammock is zoned for commercial use, but within bounds. It was formerly a New Castle Marine boating yard, with one or two boats manufactured every year by a small crew. The commission had previously allowed that use. The developer of the boat storage facility was in compliance with all regulatory requirements and didn’t need to appear before either the planning board or the county commission. But the administrative approval of the developer’s site plan, secured through the county’s Technical Review Committee, rested on a determination by Planning Director Adam Mengel that the storage facility would not be a more “intensive” use than the previous manufacturing yard.
The Hammock Community Association, a group of local residents, disagreed. It considers the boat storage no different than a warehouse. It filed an objection to Mengel’s determination, in essence, appealing it. It had to be heard by the commission. The commission upheld Mengel’s determination, triggering the association’s lawsuit.
When Circuit Court Judge France ruled that the county’s decision–he referred specifically to the step taken at the planning board, which mirrored that of the commission subsequently–as not grounded in “competent, substantial evidence,” he did not address the validity of the boat-storage facility as such. He only returned the issue to the county, the implicit directive being that if the plan was to go forward, it would have to be based on expert evidence. It was Hammock Harbour that appealed France’s decision in hopes of getting more clarity on the heart of the issue. It did not get it. The one-line opinion simply upheld France’s decision which left the matter “in the lurch,” in Moylan’s words.
“No court ruled that indoor boat storage is prohibited in C-2 zoning within the Overlay District, only that the Planning Board’s determination wasn’t based on competent substantial evidence. One option is to process a revised site development plan recently submitted by Mr. Million under our existing rules.” Bob Million represents the owner of the site, Jim Buckley. “It would be reviewed for conformance with the LDC by the Technical Review Committee. I have not evaluated the revised plan yet, but safe to say the HCA will oppose it although it is impossible to know in what way.”
The other option, Moylan wrote, is to “process the revised site development plan” and amend the Land Development Code with wording specific to boat storage. (See the proposed amendment here.) The preamble to the proposed ordinance states that “the County Commission never intended to prohibit indoor boat storage in unincorporated Flagler County,” and that ” such use is not specifically listed as a principle use or permitted special exception within any zoning district”–language that echoes that spoken by Million to the commission in November before the commission’s vote: “You realize that grocery stores are not an approved use–specifically approved? There’s some interpretation in all of these codes.” (The proposal also calls for a restaurant.)
The preambles also assert that the County Commission “desires to exercise its legislative power to make explicit that indoor boat storage is a permissible use of general commercial, C-2 zoned land; and … finds that indoor boat storage facilities, which otherwise meet the strictures of C-2 zoning under the LDC, do not amount to warehouses or miniwarehouses and are therefore permissible within C-2 zoned premises within the A1A Scenic Overlay District.”
Because it would be a legislative act by the commission, that approach “would be more difficult, although not impossible, to challenge in court,” Moylan said. In other words, while courts are willing to question the legality of procedures in local government decisions, they are much less willing to challenge the validity of ordinances absent more blatant violations of law or constitutional language.
The proposal is of course still in draft form “and will likely undergo further edits,” Moylan said in a separate email.
Nevertheless, there’s also no question that the county’s proposed approach is a direct response to the HCA challenge, an approach that has its own legal pitfalls. If boat storages are allowed, as the developer and the county have maintained, why would the county feel compelled to make that allowance explicit by the rather considerable way of an ordinance? Courts are loath to question the legislative acts of a government, but lawyers are adept at pointing out allowances specific to a particular business or end runs around the law and the county’s own hard-fought designation of A1A as a scenic corridor.