For Release: Wednesday, May 15, 2019
From: R.M. Weintraub
Local organizations file legal action
against Fernandina Beach over Amelia Bluff
Local environmental- and conservation-focused organizations have filed a complaint with the Florida Division of Administrative Hearings (DOAH) that the City of Fernandina Beach violated state law and the city’s Comprehensive Plan in approving the Amelia Bluff residential development on Citrona Drive.
The Amelia Tree Conservancy and the newly formed Conserve Amelia Now! are the initial plaintiffs asking for an administrative review of the city action according to the petition filed with DOAH May 14.
The Sierra Club’s Nassau County Group will be joining the legal action as soon as required protocols with National Sierra are completed reported Julie Ferreira, Nassau Sierra chairwoman.
The plaintiffs are represented by attorney Robert C. Apgar of Tallahassee.
The complaint lists ten state laws embodied in Florida Statutes and ten Objectives and Policies of the Fernandina Beach Comprehensive Plan that it claims were violated by the approval of the Amelia Bluff development.
“The city commission ignored the objections of the public to the loss of this important part of our dwindling maritime forest and the development’s threat to the Egans Creek Greenway,” Ferreira said in explaining the legal action.
“We tried to negotiate a way out of this situation to avoid the legal costs on both sides, but we were rebuffed by the city manager and city attorney,” Ferreira said. “They in effect said, ‘case closed’.”
The Florida Department of Administrative Hearings adjudicates administrative disputes with independent administrative law judges who conduct hearings on complaints. It is anticipated that a hearing on the complaint will be held in Fernandina Beach in the near future. The administrative law judge typically schedules time during the hearing for public testimony. Due to the filing of this petition for administrative review, the approval of the Amelia Bluff FLUM change cannot take effect until the matter is resolved and work on the site, which has been stopped, cannot proceed.
At the crux of the issue was a conflict between the FLUM Conservation designation and an R-1 designation of the property on the city’s zoning map. The FLUM shows a large triangle of Conservation land extending from the Egans Creek Greenway into the center of the property.
As the Comprehensive Plan is the city’s controlling law, the Amelia Bluff development, a 30-home project across Citrona from Fernandina Beach High School, could not continue unless the FLUM was changed. The developer, Amelia Bluff LLC, has acknowledged knowing about the conflict but was told by city planners it was a scrivenor’s error that would be corrected. The conservation issue never came up again in the many meetings of the city’s Technical Review Committee, Planning Advisory Board and City Commission. At each meeting there was a staff report that included the statements that the development is “significantly compliant with the Comprehensive Plan” and is “consistent with the underlying FLUM category of low density residential.”
In November 2018 the new chairman of the PAB, Frank Santry, discovered the conflict and called attention to it. As a result, the city brought an amendment to the Future Land Use Map that would change the Conservation designation to Residential. At three city commission meetings, hundreds of protestors overflowed city commission chambers and more than 90 speakers voiced their opposition to the FLUM change decrying the potential loss of maritime forest and danger to the Egans Creek Greenway. Despite the overwhelming opposition, the city commission voted twice to approve the FLUM change on 3-2 votes. Voting for the change were Mayor Johnny Miller and Commissioners Len Kreger and Phil Chapman. Voting against the change were Commissioners Chip Ross and Mike Lednovich.
The petition for an administrative review of the decision cites 10 violations of Florida Statutes Chapter 163 that it says make the FLUM amendment not “incompliance”with the law:
* The amendment is part of a “use” that exceeds 10 acres, and therefore cannot be adopted pursuant to the process for a small scale amendment. The city considered the plan change as a small scale plan amendment which has different requirements. The Amelia Bluff development is 11.7 acres;
* The amendment conflicts with and fails to implement the special protections of the Egan’s Creek Greenway, and thus renders the City’s comprehensive plan inconsistent;
* The amendment is not based upon surveys, studies, and data regarding the area, including the character of undeveloped land;
* The amendment does not ensure the protection of natural resources and the compatibility of adjacent land uses;
* The amendment is inconsistent with the statutory requirements to protect water, wetlands, estuarine marshes, wildlife, and other natural and environmental resources;
* The amendment is not based on an analysis of the character of the undeveloped land, soils, topography, natural resources, and the suitability of the property for the proposed use;
* The amendment fails to conserve or protect estuarine waters, soils and native vegetative communities, including forests, wildlife, wildlife habitat, and marine habitat;
* The amendment fails to protect the existing natural preservation area of the Egan’s Creek Greenway, its wetlands, and the natural functions of its wetlands.
* The amendment authorizes future land uses that are incompatible with the protection of the Egan’s Creek wetlands and wetland functions and fails to minimize the adverse effect and impact on wetlands.
* The amendment is not based on an accurate analysis of the effects of the Amelia Bluff drainage system on estuarine water quality.
In addition, the complaint cites these ten objectives and policies in the city’s Comprehensive Plan that the city’s action violates:
* Objective 6.05: Open spaces shall be protected within urbanized areas for their aesthetic, health, environmental, and economic benefits. The city shall continue to maintain standards in its land development regulations for the provision and maintenance of open space in the community, including in private developments and publicly-owned lands.
* Policy 6.05.03 Privately-owned open space, such as those within subdivisions or PUD developments, which consist of a conservation future land use or contains environmentally sensitive lands, shall be protected through the acquisition of conservation easements.
* Objective 6.10: The City shall protect Egans Creek Greenway for its value as a recreational asset, for its significance as an outstanding natural resource, and for its role in providing wildlife habitat.
* Policy 5.07.06: The City shall consider expanding the Coastal Upland Protection Zone and implementing upland protection zones for areas adjacent to Egans Creek in order to protect and improve water quality.
* Policy 5.07.09: The City shall prohibit any development activity that would potentially endanger lives and/or harm property, water quality and quantity of any other valued environmental system resulting from an alteration to existing drainage structures and natural drainage patterns.
* Policy 5.07.12: The City shall require low-impact development strategies or conservation-based landscape planning and installation, water efficient irrigation, and appropriate measures that promote conservation of water resources and reduction of non-point source pollution as part of sustainable water management for new public and private development. New waterfront development shall be designed so that stormwater runoff and erosion are retained on-site or are channeled so as not to degrade water quality of adjacent waters .
* Objective 5.08: The City shall direct incompatible land uses away from wetlands, and shall protect and preserve wetlands from physical and hydraulic alterations, in order to maintain the following functions: natural biological functions including food chain production; general habitat; nesting, spawning, rearing and nesting sites for aquatic or land species; natural drainage systems impacting sedimentation patterns, salinity distribution, flushing characteristics; shielding other areas from wave action, erosion, or storm damage; storage areas for stormwater and flood waters; natural recharge areas; and natural water filtration processes that serve to purify water.
* Policy 5.08.05 The City shall continue to ensure the protection and mitigation of wetlands…and shall ensure … land uses that have little or no adverse impact on wetlands
* Policy 5.08.06: The City shall protect wetlands from impacts of adjacent development, and shall ensure through regulations included in the Land Development Code:
a. Proper siting of development structures and infrastructure, including clustering of development away from wetlands;
b. Location of buffer zones of native vegetation around wetlands and surface water bodies to prevent erosion, retard runoff, and provide habitat; and
c. Setback of buildings and other structures from wetlands and water bodies.
* Policy 5.08.08: In instances in which development is proposed that is adjacent to a wetland, the boundary of a wetland transition area shall be established by an on-site field survey by a professional biologist or registered engineer provided the applicant and coordinated with the SJRWD, the DEP and/or the U.S. Army Corps of Engineers. The City shall maintain land development regulations which ensure that the transition area provides a buffer between wetlands and upland development. Such buffer shall ensure existing vegetation is not disturbed; where new vegetation is required, plants or ground cover native or appropriate to a wetlands transition area shall be used.
The complaint further states that the Northeast Florida Regional Policy Plan identifies the Egan’s Creek Greenway as a “Natural Resource of Regional Significance,” deserving special protection as it is part of the region’s “green infrastructure.” The Regional Policy Plan states according to the complaint: “In the absence of consideration of green infrastructure as a Regional system, individual development practices in Northeast Florida can have the unintended consequence of increasing the potential for storm water, pollutants, and chemicals flowing into the water supply and systems, resulting in health risks, flood damage, and increased taxpayers’ dollars to treat the water.”