Appeals Court Sides With Hammock Association Against County and Developer on 240-Boat Storage Facility

The one-line order by a three-judge panel of the Fifth District Court of Appeal denies the appeal by Hammock Harbour, owned by developed by Jim Buckley, of a July decision by Circuit Judge Chris France in Flagler County, who’d ruled that the Flagler County Commission was wrong to let development go forward on the 4.26-acre site. France agreed with the association: the commission had based its decision on insubstantial or incompetent evidence.

The immediate result of the decision is that the plan for a boat launch in the Hammock remains halted. The next step is either up to the county or up to the developer.

“They either have to reapply to get a definition from the planning department, or they need to revise or amend the ordinance. Or just keep the status quo,” Dennis Bayer, the Flagler Beach attorney the Hammock Community Association retained, said this evening.

The county could change its zoning, allowing for the development. But that would be an immensely controversial move that either creates a warehousing enclave in the Scenic A1A corridor or sets a precedent that throws out A1A’s overlaid protections in favor of more intense development. Alternately, the developer could submit scaled down plans that fit within existing land-use allowances, as the previous plan did not (according to the the courts).

Judges are also sending a message.

The two courts’ decisions amount to an indictment of what had been a clumsy, bumbling way for commissioners to make a land-use decisions. Those decisions are by law expected to be based on solid evidence and documentation. Instead, commissioners relied on “gut feelings” and personal, anecdotal observations, betraying an increasingly zealous indulgence of development at the expense of legal standards–and, in the association’s view, of community interests and historical uses of the property in question.
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The association, backed by engaged and, when necessary, financially committed members, is building a strong record of challenging county decisions where it sees fit–and where it sees arbitrariness displacing more deliberate decision-making. It was the association that caused the county to back down from its original plans to allow Captain’s BBQ to build a new, larger restaurant in the middle of Bings Landing. (Once the county backed down, Captain’s sued the county. That case is continuing.)

The parcel at 5658 North Oceanshore Boulevard. It had once been a Newcastle boating company manufacturing plant, when it employed a handful of people and built about a boat a year. It was not an “intensive” operation. That ended several years ago. Buckley is seeking to level the existing hangar and build a storage facility and a restaurant. The application did not have to go before the county commission. It would normally have been handled by regulators within the county administration, with the County’s Technical Review Committee signing off. It did, once Buckley agreed to stay within certain parameters.

But it did so based on a key and “informal” determination by Planning Director Adam Mengel: that the boat storage facility would not be a more intensive use of the property than the previous boat-manufacturing operation, and therefore, was allowable without further land-use changes. (The “informal” characterization of the determination is conceded by Hammock Harbour.)

The Hammock Community Association disagreed with Mengel’s determination, seeing boat storage as a warehousing operation that would significantly change the footprint of the current hangar and, with a restaurant, generate substantially more traffic. The association was not against a restaurant, nor against a boat storage facility per se. But it was against Mengel making a determination that did not appear to be documented. The association hired Dennis Bayer, the Flagler Beach attorney who often handles land use matters, and filed an appeal of Mengel’s determination. The County Commission heard the appeal in November 2019, after the issue was heard at the county’s planning board.
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“There is a significant difference in intensity of what’s being discussed under this current boat storage facility because,” Bayer told commissioners at the time. “The existing building that’s there is completely going away. Parking is increasing substantially,” with what the Hammock Association estimates will be a tenfold increase in parking and the installation a 10,000-gallon fuel tank to enable daily boat launches. The facility, in other words, would be a warehouse. Warehouses are not allowed under current zoning regulations there. If the commission were to allow it, it would have to change the zoning, a tall order in the Scenic A1A corridor that the county, under a different commission, worked hard to secure. A1A is a central artery in the county’s tourism anatomy.

Greg Hansen, one of the county commissioners, relied on his own, one-time, undocumented observations or another boat storage facility to declare that the one Buckley was proposing would be no different. He called claims by the association “bogus.” And with that, likely invited the lawsuit that followed, once the commission voted unanimously to deny the association’s appeal of Mengel’s determination.

In its appeal of the lower court decision siding with the association, Hammock Harbour argued that the circuit court “failed to observe the essential requirements of law and did not analyze the petition in accordance with” the usual standards of review. Hammock Harbour also argued that the lower court’s order was unclear: though it returned the matter to the county commission to decide, is the county to assume that dry storage is an allowable use? Nor was the sort of competent, substantial evidence that was sought defined, according to the appeal.

The appeals court did not shed greater light, at least not the sort of light hammock Harbour was seeking. It merely disagreed with the appeal, rejecting it. Hammock Harbour’s questions in the appeal are, in essence, irrelevant, or rendered moot, leaving only one question standing, assuming the county is uninterested in fighting Hammock Harbour’s battle” what form will Hammock Harbour’s development application take now, if any?