A Flagler County circuit judge quashed a November decision by the Flagler County Commission that had opened the way to a controversial 240-boat storage facility and restaurant in the Hammock, next to Hammock Hardware. But that doesn’t mean the project can’t eventually go forward in certain circumstances that aren’t yet clearly defined.
Circuit Judge Chris France in a July 28 order agreed with the Hammock Community Association and its attorney, Dennis Bayer, who had appealed the decision: the commission reached its without “competent substantial evidence.”
The commission had approved the development plan based on one commissioner’s personal, anecdotal observations of a boat storage facility elsewhere, on another’s “gut feeling,” and of similarly general rather than factual statements by other commissioners.
The court did not make a determination on a central issue: whether the boat storage facility “is or is not a permitted use” within the county’s zoning code, remanding the matter back to the county for further hearings. In essence, if the development is to go forward, the developer will have to go through the hearing process again, presenting evidence that substantiates his claim that the project fits permitted uses within existing zoning, and the commission would have to vote again based on that evidence, if it is provided.
“Unfortunately during the Circuit Court hearing,” Sean Moylan, the attorney handling the case for the commission wrote commissioners in a memo, “the judge did not seem interested in the language of the code whatsoever, or the role of the TRC in our processes for that matter, only in the process of our Commission hearing and the statements made by individual commissioners.” The TRC is the Technical Review Committee that reviewed the development application before it reached the planning board and the commission.
“The order in essence hits the resent button,” Moylan continued, “and while the order remands the matter to the Commission for further proceedings, what happens next is largely up to the property owner, Mr. Bob Million, who intervened in the appeal. At this time, staff is engaged in internal discussions as well as with Mr. Million’s counsel to determine next steps. Certainly whatever proceedings occur moving forward, we will endeavor to buttress any decision by the County with the evidence the judge feels is necessary.”
Even if temporary, the decision is a victory for the Hammock Community Association, a powerful group of Hammock residents who also played a central role in reversing the county’s approval in late 2018 of a new Captain’s BBQ at Bing’s Landing, causing Captain’s to file suit. That case is still pending.
The decision may be notable in another regard: the county planning board just recommended approval of key steps in The Garden development, a 355-house project planned for both sides of John Anderson Highway, and did so in part on a determination by the planning director that the application was in line with the county commission’s 2005 regulatory approvals. Opponents of The Gardens in its present form made similar arguments that the Hammock Community Association had made about Hammock Harbour: that the planning director’s determination was flawed and lacked due process. The Hammock Harbour decision points to the vulnerability of those determinations, if they lack solid data. Commissioners are certain to be at least conscious of the judge’s Hammock Harbour decision as they consider The Gardens in a coming meeting.
The boat-storage facility proposal is for a 4.26-acre site at 5658 North Oceanshore Boulevard in the Hammock. In 2000, the County Commission changed its zoning to allow for the manufacture of one or two luxury yachts a year there. At the time, Newcastle, the boat manufacturer that owned the parcel, employed a dozen employees or fewer.
Developer Jim Buckley now owns the site, which adjoins Hammock Hardware and several residential properties. He is planning the boat dry storage facility there and a 100-seat restaurant.
The site is zoned C-2 commercial. The designation does not include dry boat storage among permissible uses. Adam Mengel, the county’s planning director, determined that “boat storage is less intense than the previously approved boat manufacturing and would be a permitted use within a large building on a parcel purpose-built for manufacturing boats and located on a navigable waterway.”
Mengel’s claim is that both the boat storage facility and the restaurant would be less busy than the previous manufacturing plant. But his determination was just that: a determination. It was not based on substantial fact or evidence. The Hammock association is not disputing Mengel’s authority to make a determination. But it is disputing his conclusion.
Bayer presented evidence that the redesigned parcel would result in construction that would increase the so-called “floor area ratio and parking” (or impermeable areas) from 13 percent to 33, with parking increasing tenfold. “These huge increases contradict the decision by the Planning Director,” Bayer’s petition to the court stated. The boat storage facility itself would be four times the area of the current building, “20 percent larger than a football field and a 20 percent larger footprint than the Flagler County Government Services Building” in Bunnell, where the commission holds its meetings.
Before the commission considered the matter, County Commissioner Greg Hansen conducted his own personal observations of a boat storage facility at Ponce Inlet and determined that boat traffic would not be a problem.
The Hammock Community Association disagrees. It argues that boat storage is similar to warehousing or boat sales and repairs, both of which are prohibited by the zoning code at that particular parcel.
Well, I think it boils down to interpretation of it’s a warehouse or not. I mean, that’s pretty simple. It’s that most of arguments I heard today were pretty bogus, I got to tell you,” Hansen said. “The — the the driving in and out, the number of trips. That’s bogus. ” He said he’d gone to Ponce Inlet to watch a boat storage unit there. “The most I saw was three boats moved in an hour. So all those boats are not going out on any given day.” Hansen said it was “unfortunate” that Mengel had used the words “less intense.” Hansen thought it would be more intense–but that such a facility was needed in the area. To him the key was the definition of “warehouse.”
“If it’s a warehouse, then we can’t approve it. But it’s for us to decide,” Hansen said.
Commissioner Dave Sullivan spoke of his “gut feeling” that the boat storage facility was needed.
The “bogus” evidence Hansen was referring to included that of Thad Crowe, the only expert witness who spoke before the commission that day (he did so on behalf of the Hammock Community Association). Crowe is a planner with 32 years’ experience. He based his statement on a published engineering study about a Monroe boat storage facility of similar size, concluding that there would be 355 weekday trips, 368 Saturday trips and 768 Sunday trips in and out of the facility (numbers that could strain credibility: 768 trips on Sunday could mean a boat in or out every minute or two.) Factoring in the restaurant, another 433 trips could be added, totaling what Crowe described as “a whopping 1,201 Sunday trips.”
The developer for his part conceded that he was not providing any expert testimony and was basing his assumptions on anecdotal evidence. Mengel did not make a technical presentation to the commission, nor did his report include technical data.
The County Commission approved Hammock Harbour on Nov. 4 in a 5-0 vote.
The Court Documents:
Judge France’s Decision
The Original Petition
The County’s Response
The Hammock Harbor Response
See also HCA’s briefings:
Video from Planning Board with boat forklift example
HCA Hammock Harbour Overview
Commissioner Briefing Document (Steve Hatcher)
Illustrations of site plan and issues discussed
Concerned Citizen says
It’s sad that it took a Circuit Court Judge to do the right thing. When our BOCC would not. This BOCC is hell bent on ignoring it’s constiuents and siding with developers and special interests. But then again money talks and when you have no ethics or morals you are only concerned with lining your pockets.
Judge France needs to take a long hard look at The Gardens. And slow that down some. Maybe that will put our corrupt BOCC and County Attorney on notice and put them in check.
You nailed it. Its a wealthy persons playground and damn the residents or Environment. Keep the Faith
SASHAY AWAY says
More money for the “Fat Cats”
Not Surprised says
Looks like the BOCC continues to receive less than adequate legal counsel.
E. Hoffa says
Another “DEAL” that does NOT look RIGHT! And people wonder WHY Palm Coast has narrow plat roads with NO sidewalks and 30mph speed limits!
Joe C says
That property if every allowed to be a boat storage facility/restaurant area would have a very high Combustible area
This area is not a industrial use…
the combustible material of the boats flame spread of fiberglass boats and gasoline Diesel fuel would be in environmental nightmare if an accident was to occur this is not industrial zone!!!
Not a High hazard use!!!!
Hammock Community Association (the current residents) 1, FCBOCC 0.
Dennis McDonald says
Flagler Voters, if you are undecided about who to Vote for take a lead from the Judge.
Judge France is quite perceptive as he quickly went to the obvious flaw in this approval, the Flagler BOCC. What the Circuit Court found the day before our election was that that the Citizens of Flagler are VOID of commissioners that are “competent”!
Yes, Flagler has “Bogus” commissioners and the replacement process will start tomorrow for both city and county at the Voters Court operated by the SOE.
Congratulations Hammock Association.
Remember to Vote as Voter Remorse as you see here is painful and lasts four long years.
“”the commission reached its without “competent substantial evidence.” On the majority of the counties projects that go back into the Coffey era, this statement by the judge is pretty much the status quo with this commission to date. . Knee jerk reactions, good old boy favors and blind dart board assumptions. Pretty much they jump without first doing their due diligence or whom their decision impacts be it residents, traffic, or local operation structure.
Congratulations Hammock Community Association. Everyone needs to send them some money for their expenses and their endless efforts to protect The Hammock. Without them, The Hammock would be over run with commercialism and it’s character would be forever changed. The judge’s decision which totally disagrees with BOCC and points to irresponsible decisions to originally approve this 5-0, based on Adam Mengel’s over zealous efforts to convince people they need something they don’t need. I have attended BOCC and Planning Board meetings for years, and have yet to see a project or developer Adam Mengel doesn’t promote. To rely on an observation Greg Hansen claims to have made (with all his expertise) is foolish. Remember, he is the same guy who wanted to give Bing’s Landing Park away to Captain’s BBQ. It would be nice to have a waterfront restaurant, similar to Cap’s that would be an asset to the area, and give The County a huge tax revenue. However, a bustling boat storage, as described by That Crow, would be a detriment and disruptive to the Hammock. It’s a fire bomb waiting to happen. Maybe for once, Al Hadeed could stand up and say “We don’t need this. It would only benefit a minute percentage of The County, and it doesn’t fit into the 2005 regulatory approvals”. When some one stores their boat in March, and comes back in November, that is a warehouse.
To Mr. Hoffa here you are so right about Palm Coast and yes we have residential narrow winding roads with no sufficient right of ways some of them were homes seat barely 60 feet from speeding traffic and 30 and 40 MPH speed that is mostly violated! But they keep approving growth of multifamily housing among original residential areas with homes on lots between 10,000 and higher square feet. No proper road ,sewer and drainage with approvals based in flawed/skewed traffic and utilities studies done by selective picked consultants, that ignore our city charter about preserving first the current residents quality of life.
Gina Weiss says
Palmcoaster: You are exactly right, reminds me of the “HAND PICKED ROY SIEGER ENVIRONMENTAL CONSULTANT” who showed up at the so called “AIRPORT BS WORKSHOP” who had the audacity to think that we were not prepared and stupid enough to believe him when he said” DNL’S cannot be measured.” Well SURPRISE the DNL’S were measured by a very knowledgeable mechanical engineer and was WAY over the norm with PROOF! Finally everyone is getting the picture of how this BOCC with their crony’s operate not only on their other failed ventures and still want to do more damage to communities. AND I am asking Jerry Cameron once again, have you made any leeway with the FAA who according to you was to come into this community to do a noise abatement assessment as this can surely be done safely since it is done on the outside in the open fresh air, or was this just another insincere promise.
If Commissioner Dave Sullivan has a “gut-feeling” that a boat storage facility is needed, then he should put it in his backyard, NOT OURS. Good riddance already and these commissioner’s selling us out to developers because they have a “feeling”. VOTE these clowns out of office.
SASHAY AWAY says
Doug: According to the votes Sullivan is in again and Carney came very close too bad. Why no recount in such a close race, if we all ask for one maybe they will do it! If O’Brien wins in November then it will go back to the good ole boys club for another 4 years, so people get out there and vote!
“Fits permitted usage within existing zoning” says it all . This argument has been made for years on various projects. Back in 2015 a major exception was granted for a Hotel in the Hammock. Prior to that decision, the developer openly addressed the April HCA meeting, declaring their intent was to make A1A a bustling area of development in and around the Hammock corridor. Contrary to HCA and Scenic A1A planing concerns.
Still approved…Parcel was rezoned for a Hotel, 198 rooms in a deciding 2 AM vote,,,,,subsequently followed by Jungle hut 50 A1A homes, Matanzas 280 homes approved….. many others in the que based on these precedents.
It is refreshing for a ruling that protects original stakeholders and holds all parties accountable to existing land use provisions. The Hammock is a beautiful area that stands behind responsible development. However, high density projects should be appropriately placed within the Hammock, per the County master plan. We rely on BOCC officials to protect the rights of all and make smart decisions that affect our future (before reaching a Circuit Court hearing ).
Thank you Judge France, Mr. Bayer, HCA and vigilant citizens for preserving environmentally sensitive areas for all to enjoy.
Trump's Sharpie says
I have a “gut feeling” that this will be used by current BOCC members to show examples of the area not being “business friendly.” Because for them, someone making money (especially themselves and/or their friends) is always put above all other concerns – environmental, humanitarian, legal, ethical, moral.
Congrats to the HCA for not taking it lying down. I hope the other residents of this county do the same and vote most of them out.