The barnacles are thick and heavy around the now two-year-old hulking proposal of a 240-dry-boat storage facility in the Hammock–a proposal that the County Commission approved in late 2019, that two courts overruled, and that has since languished in a murky zone of end runs around county land rules as the county tries to redefine the problem away from legal roadblocks.
On Tuesday, the Flagler County Planning Board did exactly that.
First, the board said it was not addressing Hammock Harbour, the proposed redevelopment of an old boat-manufacturing plant at at 5658 North Oceanshore Boulevard, right next to Hammock Hardware. The board said it was only considering whether marinas are an allowed use in Scenic A1A’s commercial zones.
But no one had any illusions: It was Bob Million, the developer of Hammock Harbour, who’d asked the planning board to make that determination. It was his way of redefining the battlefield in his favor. And the county administration itself had showed its hand in January anyway.
The board voted 4-1, determining that, yes, marinas are an allowed use–a momentous change in itself, though Hammock residents argue there couldn’t possibly be any marinas there since that would require the sort of protective coves and width of the Intracoastal Waterway that are not geographically there.
Then the board gave its approval to the planning department to bring back an ordinance ratifying the change. The board will recommend approval of that ordinance at its next meeting and send it to the County Commission for approval.
Once that’s done, Hammock Harbour can again apply for approval, at least through a special exception. It had been approved without one before. It is almost certain to be approved with one next.
So in effect, all subterfuges aside, the planning board on Tuesday redefined the Million project as a “marina,” as he had asked, even though there won’t be any boat slips and it won’t look anything like a marina. By calling it that, the board hopes to get around the problem of a development that looks more like a warehouse. Warehouses are not allowed in the Scenic A1A Corridor, for the obvious reason that warehouses are not scenic (though marinas can be).
Opponents of the projects–chiefly the Hammock Community Association, which has fought the successful court battles–consider the facility a warehouse. Million himself had called it a warehouse in the plan’s early versions (though he indecorously blamed the planning director for that).
County administration officials strained to say that the request was not associated with Million’s development plans. Rather, that it was a broad definition applying to any zoning that fell within that category. “We’re not looking at his site plan, or his building, but rather looking at the uses in the code to determine if this type of use is similar, if this is the right zoning district for that type of use,” Assistant County Attorney Sean Moylan said.
But to Million, the distinction was irrelevant: he had asked for the definition–the item had actually been discussed last May and again at the July planning board meeting–and he finally got what he wanted in order to move his project forward again.
The Planning board’s Mike Goodman, who chaired Tuesday’s meeting and was the sole dissenter in the determination, had no illusions: “What we’re talking about is a new use.”
The board members tried to keep the discussion to the marina matter, but even they allowed the public comment period to devolve into a debate over Million’s project–allowing Million himself the right of reply, as if it were the sort of proceeding the board’s attorney said it wasn’t. The proceedings, in other words, illustrated the fact that no one was fooled, including the board.
“Our concern is,” Dennis Bayer, the attorney representing the Hammock Community Association said, “that this really is spot zoning, you’re really making this change just to benefit Mr. Million’s property. For example, how does he have standing to represent all of the [commercial zoned C-2] property owners in the Hammock area? Were any of them notified? Hey, we’re changing a use that’s allowed on your property, were they given notice that this is going on? And what’s the rush? If this is a general classification change, and you’ve got a draft ordinance for marinas and we’re not talking about Mr Millions property, let’s do the ordinance. Let’s finish the ordinance and get it done.”
It was Bayer who successfully argued the two court challenges, unraveling both the Planning Board’s and the County Commission’s earlier decisions. But if his statement to the Planning Board Tuesday was again intended to signal that the Planning Board was on thin legal ground, the board’s attorney later said anyone could do what Million did: ask for a determination.
And Million appeared confident about a majority of support from the board.
Mark Langello, a planning board member and a developer, compared the uses of a marina to “shopping,” because a marina typically sells fuel and food as well. He made a distinction with warehouses, saying “you see them only in industrial districts.” He agrees that warehouses shouldn’t be included in the Scenic A1A overlay district. But he doesn’t include marinas in that prohibition. “They should be a special exception and not an automatic use,” he said of such marinas, his eyes clearly on Hammock Harbour. “Scenic A1A is an area that is a lot of entertainment, I mean it is people boating and fishing and going out to dinner,” he said, distinct from a bedroom community. That’s what Bings Landing is doing, he said.
Other board members concurred, saying marinas fall into commercial zoning.
Goodman was the exception. “It’s not a true Marina, it’s a warehouse,” he said. “What is a marina? A Marina in my mind has a safe harbor where you can tie your boat up, get off your boat, where you can get gas, where you can get a bite possibly, you can get repairs, then that’s a marina. When something is built as a storage facility, in my mind it’s still a warehouse.” Goodman was showing that even by keeping the discussion focused on the word “marina,” it was difficult to do so without other points of reference–among them the possibility that warehouses would be masked as marinas.
“A marina in the true sense of Marina might work within certain parameters,” Goodman added, “but I’m not too sure how we’re going to get to that point.”
Langello made the motion determining marinas as “appropriate” to the area. Only then did public comment begin–starting with Million.
Million was giving a history lesson to the board rather than addressing the motion, and reacted dryly when Goodman reminded him that he had to address the motion at hand: “I believe I’ve earned the opportunity to speak,” Million, irascible then as he’s been in written documentation in his project’s history, said. (Goodman was right: Million hadn’t “earned” an opportunity to speak anymore than anyone else had: he was required to stick to the motion at hand, according to parliamentary rules.)
Million went on the claim that marina “is an approved use already”–a broad interpretation that does not conform with the county’s record so far. Having asserted his premise as a presumed fact (rather than as county code: the county hasn’t gotten that far), he then said: “A Marina is a permitted use, and a boat storage facility is a component of a marina.”
“I’m not the one that called it a warehouse, you’re the one that called the warehouse,” Goodman pointedly told Million, reminding the developer of his earlier documentation. Million alone spoke in favor of the redefinition.
Several people from the association spoke in opposition to the board’s marina ploy, though every time the board could ignore the comments since they did not technically pertain to its motion. Jan Cullinane, a member of the HCA, unmoored her Orwell: “We all read ‘1984,’ where they talked about doublespeak and newspeak,” she said, “things like ‘War is Peace,’ ‘Freedom is slavery,’ ‘Ignorance is Strength.’ You know–a warehouse is a marina. No, it’s not. They’re two separate things. We’re talking about a warehouse here.”
One of the speakers quoted from a Broward County planning document that specifically referred to a 40,000 boat-storage facility as a warehouse. Other speakers were critical of the marina definition, at least in the context of Million’s “warehouse,” as they repeatedly called it.
Dennis Clark, a member of the HCA, told the board, said placing a storage facility the size of Hammock Harbour next to Hammock Hardware would be “obscene,” and that “That’s just dry boat storage. Nobody in their right mind would put a marina in this narrow part of the ICW without a protective cove.”
The Planning Board discussion got very intricate, technical and at times arcane. Adam Mengel, the county’s planning director, himself conceded that the way the matter was laid out in the agenda was “beyond confusing” but repeatedly asked the board members to stay out of “the rabbit hole” of Million’s project.
“All the comments referring to ‘warehouse’ were clearly referring to his specific application which is not what you’re deciding right now,” Sean Moylan, the board’s attorney, said. “That is not what you’re deciding. That would be decided in a different item, not in your legislative capacity, when you’re interpreting the code. It’s a much more abstract intellectual exercise that you are looking at.”
That gave the board the sort of cover it was looking for before its 4-1 vote.
It got even more arcane after that, when the board listened to Mengel explain what will become the proposed ordinance including the marina language, with detailed definitions. “What I’ve done is I’ve added language specific to docks, boat houses and piers,” he said, qualifying his work, which he said he was “not particularly proud of.” He invited planning board members to “poke holes in it.” They didn’t, asking to see the finished product at their next meeting so they could vote on it then and send it on to the County Commission. It was another victory for Million.
On the other hand, Clark said Wednesday in an email: “We will very likely appeal the determination of use.”