In a developer’s attempt to turn an old boat-manufacturing facility into dry storage for 240 boats along with a restaurant on 4.3 acres next to Hammock Hardware, certain things are clear, like the developer’s intent to win approval for a plan mired in controversy for two years. Many things are less so, including definitions of two terms–“marina” and “warehouse”–that have become the equivalent of fighting words for those proposing and opposing the re-development.
The County Commission had approved the development, called Hammock Harbour, in 2019. The Hammock Community Association challenged the decision in Circuit Court and won: a judge found the method by which the county’s planning board reached its recommendation improper, thus invalidating–or quashing–the subsequent county commission decision. An appeals court upheld the circuit court decision.
The county administration in its interpretation of the decisions has sought to specify that the decisions addressed the planning board, not the county commission–a distinction that is either moot or invalid: the commission had ratified the planning board’s decision fully aware of the challenge by opponents of the decision at the planning board level. The challenge was repeated before the commission, which then, by approving the redevelopment on evidence no less dubious than had the planning board, made itself complicit in what the judge described as a decision “not supported by competent substantial evidence.” The judge, at any rate, specified that the quashing applied to the commission’s decision.
But Judge Chris France limited his decision to whether due process had been followed and whether “the administrative findings and judgment” were supported by evidence. He did not rule on whether such a storage facility was allowable or not. That’s still in dispute.
Bob Million, a Flagler County resident and the developer of the site, still wants to develop what he now calls a marina. The HCA still opposes it, saying the facility has nothing to do with a marina. It calls it a warehouse. The land is zoned for commercial use, but warehouses are not allowed in that Scenic A1A “overlay” area.
So the battle lines have been drawn again, with HCA members now conducting weekly protests along State Road A1A, next to the proposed redevelopment site, and Million losing his patience, and seemingly focusing entirely on discrediting the HCA rather than on securing an application that would win regulators’ approval. On the other hand, the HCA hasn’t gone gently on Million, either. The HCA’s public campaigns have been effective before: it forced the county to back down from a plan to let Captain’s BBQ expand at Bings Landing, the county park. But the association also lost big battles, as with a 50-home subdivision that will recast Jungle Hut Road into a jumble of roofs or a much larger development at the north end of the county.
Million hasn’t submitted a new site plan for his project. But he is seeking a determination by the Planning Board at the board’s next meeting on May 11.
Million’s impatience spilled over at an April 21 county Technical Review Committee meeting and in an April 20 letter he sent planning board members, even though planning board and commission members are not supposed to be swayed by such lobbying–nor are applicants supposed to be lobbying board members–in land-use decisions. “I’ve been working on this for 29 months and we aren’t any further along,” he said at the technical review meeting, according to people in attendance. He was not interested in further changes and wanted to move directly back to the planning board for approval. (The committee gathers administrative level county staffers who review applications for technical rather than policy compliance with county regulations. Applications don’t necessarily have to “win” approval by the committee to move on to the planning board, but the committee step is usually helpful in preparing an application for approval.)
In his letter, he accused the association of “exploiting an ambiguity in the Flagler County LDC,” the land development code, “and creating confusion by intentionally misrepresenting facts.”
But Million may be overstating the issue. Million didn’t like the sort of comparisons the HCA made (such as comparing the proposed redevelopment to a building “four times the area of the existing structure,” a hangar, “or 20 percent larger than a football field.”) He called such comparisons “irrelevant,” which may be true, but he also called them misrepresentations of the facts, which they were not. The facts of the application are not in dispute. Definitions are. In that sense, Million is no less “exploiting” an ambiguity than is the association. That’s what advisory and elected board are for: to arbitrate such ambiguities. Both boards thought they had done just that. But they had done so, in the HCA’s interpretation and the courts’ ruling, more arbitrarily than according to law. So much of Million’s letter is irrelevant, because it restates debatable matters of definition that are still in dispute. (The name of the proposed redevelopment is, ironically, itself somewhat of a misnomer: a “harbour,” the more affected spelling of “harbor,” is neither marina nor warehouse, and is more accurately applied to ships and boats docking in port.)
The county administration has drafted a potential amendment to the land development code that would specifically allow for boat-storage facilities to be located in the Hammock. That amendment would have to go before the planning board and the commission for approval. If it is approved, it would appear to clear the way for Million’s redevelopment. But the association is objecting to that approach, which it considers an end-run around Scenic A1A regulations. That amendment has not been scheduled for a hearing before the planning board. “The LDC amendment is on hold for now,” Assistant County Attorney Sean Moylan said.
“Our position is if you’re going to add that, you need to define other elements of the code,” says Dennis Bayer, the attorney who represents the association.
But the planning board will reconsider Million’s renewed request for a determination on land use as what he calls a “marina.” He is doing so under a provision of the land development code that states: “Other commercial uses of a nature similar to those listed may be permitted upon determination by the planning board that such uses are appropriate in the C-1 district. The standard industrial classification manual will be used as a reference for these determinations.”
To the association, boat storage isn’t a marina. “It’s a different type of use altogether,” Bayer said.
“We know that this is a commercial warehouse, not a marina, and therefore specifically prohibited in the Scenic Corridor Overlay,” says the association’s Dennis Clark. “There are several marinas in Flagler County, but none of them is on a 300′ wide section of the ICW.” He says the proposed re-development “will be dangerous and will require a no-wake zone to be practical.”
So next week the planning board will not be considering Million’s site development plan–which wasn’t even submitted to the technical review committee in April–but only determine whether the land can be used as a boat storage facility. “The Planning Board will again consider the question, not as an appeal of the Planning Director, but based on the LDC provision cited” in the code, Moylan said.