Eleven members of the Hammock Community Association last week filed an appeal of the Flagler County Planning Board’s approval of a site plan for a new, larger Captains BBQ restaurant at Bing’s Landing.
The appeal of the Nov. 14 decision will be heard by the County Commission, which has not considered the site plan. On Nov. 19 the commission initially approved a new lease with Captain’s, without seeing the site plan, any documented analysis of the projected construction and its effects on the park or documentation on the existing structure, which the restaurant owners say is not viable in the long term because of structural issues. On Dec. 3, the commission reversed itself, voting to delay approval of the lease pending further talks.
The notice of appeal doesn’t address that part of the equation, focusing exclusively on the site plan. The appeal, filed by Flagler Beach attorney Dennis Bayer and St. Augustine attorney Jane West, and addressed to the county administration. It argues that the planning board–an advisory board to the County Commission–approved a use of the park that does not conform with the county’s Land Development Code “as the existing lease did not authorize the current level of activity and the proposed new use represents a substantial increase in the level of commercial use and it locates the commercial use in a new location.” The appeal also argues that the project “fails to follow procedural due process and Environmentally Sensitive Lands criteria.”
The county bought the 7.45 acres at Bing’s in 1989 with $1 million from the voter-approved Environmentally Sensitive Land fund, for the park’s rich, stately vegetation, including live oaks and cabbage palms, and its archaeological value.
The county, however, is disputing the Hammock group’s avenue of appeal. In an email to Bayer and West this morning, County Attorney Al Hadeed said Adam Mengel, the planning director, noted no provision in the Land Development Code that provides for appeals of a site plan to the commission.
The Planning Director points out that under the Land Development Code (LDC) there is no provision for appealing the site plan decision for this particular project to the Board of County Commissioners. Under the code, Hadeed wrote, “the right to appeal to the County Commission from a Planning and Development Board decision is limited to variances or special exceptions, a matter not involved in your appeal.” He asked the attorneys for their views as to how the matter may be appealed under the Land Development Code.
The section of the Land Development Code Hadeed initially cited referred to a different section of the code. Hadeed fixed the error. “This is a grandfathered public use under our code,” he said, proceeding from “different provisions” of the code.
“We’re framing our response right now but we believe it is an appealable order,” Bayer said in a brief interview this morning. He said the county staff was making an interpretation of the development code. The staff, for example, considers the site plan a “minor modification” to the park, an interpretation Bayer disagrees with.
Mengle’s reference to the Land Development Code also raises questions, not least of them the implication that any decision by a county advisory board would not have an avenue of appeal–or would have to be appealed directly to circuit court, bypassing the commission.
“I’ve used this mechanism before,” Bayer said, noting that he and West will have an answer to Hadeed’s question.
The appeal recalls how the restaurant started in 1990 as “a small concession operation” of 1,594 square feet. It expanded to 4,157 feet after Captain’s owners added an enclosed screened porch, expanded the kitchen and an enclosed cooking area. The latest proposal would have Captain’s abandon the current structure for a new, 5,200 square foot structure to be built north of the existing footprint, more toward the center of the greenest part of the park. The county would demolish the old building and use it either as green space or for parking, or a combination of both: the county has not produced those plans. Captain’s would build the new restaurant at its own expense, then turn over the building to county ownership, all the while remaining responsible for maintenance and insurance.
“The proposed relocation site is a treed area and as such, the application contemplates removing 71 inches of trees that are reflective of the Maritime Hammock community,” the appeal reads, “including a 12-inch Oak and a 22-inch Oak and multiple Cabbage Palms. Furthermore, the applied for Site Development Plan contemplates impacting 2 acres, a significant portion of this relatively small park that sits on a mere 7.45 acres.”
In sum, the appeal argues that the restaurant’s “expansion” (actually, its reconstruction on a separate footprint) “is not consistent with the original purpose of the ESL program as it elevates the level of commercial use at Bing’s [L]anding,” while the administration’s reference to a “minor modification” is “incorrect,” since the proposed building changes the complexion and purpose of the park. The appeal also noted that the site plan application was incomplete, lacking documentation of septic capacity, parking requirements and archaeological impacts, among other matters.
Opponents of the restaurant’s expansion have demonstrated outside Bing’s for the past several Sundays, drawing dozens every time, both to keep the pressure on the county to more fully reverse course and to build momentum for the legal steps opponents are now taking–steps that are costing them money. They’ve also established a GoFundMe account.
Several spoke Sunday, among them Charlotte Tomey: “The building has been renovated and built on to but not to the point of blocking public view of the river and beautiful scenery of this historic land,” Tomey said. “I’m certain the archeological dig that started in the center of this area has just scratched the surface of what is here yet to be found. We must realize that moving Captain’s and enlarging their capacity also means a much larger drain field, a big parking area and all this takes a huge chunk out of the middle of this beautiful park.”
Site Plan Appeal on Captain’s BBQ at Bing’s Landing (2018)
Click to access appeal-bings-landing.pdf
Damien says
Heres what needs to happen… Everybody loves Captains and quite frankly? We are lucky to have them here in our back yard. These guys UNDERSTAND slow cooked meat. Fantastic meal everytime. But as much as Floridians love a tender plate of brisket, we also love our nature. Clearly the old bait shop has blossomed into BBQ mecca. So heres what we do. Give them a temporary permit to erect temporary tent structures, raize the building and build a 2 story building in the EXACT SAME FOOTPRINT. Do not cut down a single tree. How fun is Finns on corner of Rt 100 and A1A? Roof deck structure in the canopy of ancient oaks, GOD it would be beautiful… I can see it as clear as day in my minds eye. Everybody wins, and is happy again. I’d go there every weekend.
Buylocal says
Hey Captains- Why don’t you do everyone including yourselves a favor and withdrawn this whole consideration.
christopher d romaine says
Thank you for some historical perspective that has been lost on longtime residents and newcomers alike. The Bings story is a lesson in the slippery slope of development. As you note, the Bings property was purchased with precious Environmentally Sensitive Land Funds– and Bings is land that harkens back to our past and to nature. We should all pause and think about what that means and about the role a park, such as Bings, plays in our lives. As we slip down the slope, we have converted a pristine park with a small concession stand on it, to a full-fledged commercial restaurant located on what was once a park. When all else is built up and over, we should have our beautiful Bings from which to serenely watch sunsets, experience the rich natural fauna and observe our teeming marine life. Or, I suppose, we can trade it all for BBQ. But that seems like an unwise (and perhaps immoral) trade.
Jane Gentile-Youd says
BRAVO!!!!! (Best news I heard since I lost my quest for County Commission). Mark and I will be happy to contribute some time and a donation. This is about preserving all of our rights in Flagler County and protecting how our taxes, how everyone’s taxes are used. THANK YOU FLAGLERLIVE for watching over us. I hope your $5,000 goal is reached before tonight’s meeting.
You deserve lots more for giving us front row seats to the almost daily Flagler Funny Farm Follies…..
Ben Hogarth says
In reviewing County code, Comprehensive Plan, and State Statute, it is clear that the County lacks a formal matter of both approval and appeal for this kind of use of a public facility. If we apply the second section of the code to which Mr. Hadeed referred, (§ 3.07.03. Procedure for variances and special exceptions), as a result of a provision found in (§ 3.06.11. A1A Scenic corridor overlay district)… it is not clear how this particular use fits the method of both approval and appeal. I’m of the opinion that no such use of a public facility was contemplated in the creation of either the ordinance or the comprehensive plan because… it is not lawful in the first place.
Dennis probably knows this already and is probably of the same opinion. Along the same thought, the lack of a formal process of appeal for a private structure built on a public grounds should further illustrate the incompatible use and lack of due process. If the issue continues, I simply cannot see how it could not avoid appeal to the circuit court.
It may be found that the County’s entire process was fundamentally flawed and illegal from the inception of the project. As such, it is not therefore surprising that there is no such formal process for review and/or appeal that fits the intended use. All I do know is that the use is entirely in conflict with the intent of Environmentally Sensitive Lands (ESL) and lacks significant transparency or adequate burden of proof. I’d love to see how a “vested rights” by the applicant could be determined within a public park.
Where is this document? Or have I missed something?
Diane says
Quite frankly I don’t think the food is that great . The sandwiches are skimpy and unappealing. And the inside that building is dirty .
Bob Ziolkowski says
Bigger place = more people & more cars. What did Smokin D’s do (corner of Rt206 & 1)? They opened a 2nd location! Enjoy the BBQ but save the park, and save the greed, except for a piece of cheesecake and the BBQ.
palmcoaster says
Kudos Ben I could not have say it better. The sneaky way they used to try and have us swallow this approval is unexcusable as is a too large pill. Is really sad that we have to appeal to our justice department to defend our rights from being walked allover “all the time” by those we elect to represent us.
Now they want to further commercialize our small water front public parks bought with ESL funds and maintained with our taxes ignoring the important foot print they have in our state and country history! https://www.staugustine.com/news/20181216/oldest-city-bings-landing-park-important-part-of-history.
Maybe next time elections come around we should ask these candidates their opinion about our land and parks preservation respect and hold their feet to the fire one’s elected, in case the flip! Lets do not forget what they try at Bings Landings. Lets do not forget also our marine life, birds and even domestic pets dying by contamination around and adjacent to our coastal water now:https://www.facebook.com/lori.marlowe.9/posts/2077980495596071
mark101 says
Ah come on, Flagler County is looking to support tourist. We residents can complain all we want, but as long as Coffey and the little lawyer are running things, this will get moved around like one of those shell games and before you know it, its done. Us long time residents might talk of not eating there anymore, BUT Its all about the tourist looking for boat launch, BBQ and to uphold Flagler County’s new recognition which was noted in the recent Daytona paper. . According to the.Flagler County Tourist Development Office, Palm Coast was recently named one of the best places in Florida for a weekend getaway by travel website TripAdvisor. So watch for a shell game to be played by the County. More to come.