Developer of Disputed 204-Boat Storage Facility on Scenic A1A Must Apply for Special Exception, County Rules
The Flagler County Commission Monday evening rejected a settlement agreement recommended by its own attorney to end the four-year-old dispute with a developer who wants to build a restaurant and 204-boat dry-storage facility in the Scenic A1A corridor. What would be called Hammock Harbor is a planned dry-storage marina, or warehouse , as the developer himself had described it in an early building plan, and as its opponents still describe it.
A lawsuit by the developer is likely. Bob Million, the developer of Hammock Harbour, next to Hammock Hardware, is not barred from building the nearly 50,000 square-foot development, which would include a restaurant. But when Million last submitted building plans, the county rejected them. Million had to apply for a special exception first, since marinas are not specified as permitted uses in the county's land regulations. The special exception would have to be approved by the county's planning board, along with any other conditions the planning board may fined necessary.
Million and his attorney, Milo Scott Thomas, reject that requirement. They say the special exception doesn't apply to their development. Terry Schmidt, a special magistrate, agreed. Monday's decision hinged on whether the commission would accept the special magistrate's recommendations–translated into a settlement agreement–or not.
It did not.
Commissioners found the special magistrate's recommended order deeply flawed if not premature, and based in part on irrelevant facts. They were also put off by the developer's refusal to follow standard regulatory steps. Commissioner Leann Pennington, in clear, forceful language, summed up the county's impatience with both as she prepared to make a motion rejecting the settlement. "How can the magistrate conclude a marina is permitted if it's not expressly listed" in the county's Land Development Code, or LDC, Pennington asked, twice expressing disappointment in Assistant County Attorney Sean Moylan for going along with the magistrate's recommendation on that score, or for overlooking the magistrate's equation of a public marina with a private marina (Hammock Harbour would be private).
To go along with the magistrate's recommendation and the settlement agreement, Pennington said, would mean that the county agrees with Hammock Harbour's claim that its plans are consistent with Flagler County's land regulations and the strictures of the Scenic A1A corridor.
"So I'm not willing to vote on record to that statement that's in that agreement, I'm not willing to make a precedent for others to completely walk over the process and findings of other boards to get here to what they want," Pennington said. "There was a finding, it was for a special exception. The owner has not been denied a development order. He simply needs to go forth with a special exception. And as to the attorney saying that a taking has occurred, we don't know what's occurred, because we don't know the outcome of the special exception." Thomas, Million's attorney, had repeated to the County Commission Monday what he'd said during the May mediation: that he's a litigator, that he was hired to litigate, not to appear before county commissions. As in May, his repeated allusions to litigation were barely veiled threats that a lawsuit is coming, if Hammock Harbour isn't approved. He claimed, and the special magistrate agreed, that while the planning board had spoken of a "special exception," the special exception was not part of its official motion. If that had been gray area, however, Pennington and the County Commission made it black and white on Monday.
"This board is not bound by that special magistrate's recommendation," Pennington said. "As such, I would recommend that we render it back to the planning board to go through the process for a public hearing and a special exception." Commission Chair Andy Dance noted that there'd never been a development order to start with–nothing for Million to take to a special magistrate. In other words, the county was all but nullifying the mediation process that had led the matter back before it.
The commissioners in sum put more stock in the arguments presented by Dennis Bayer, the attorney representing the Hammock Community Association, and S. Brent Spain, an Orlando land use attorney representing some of Hammock Harbour's neighbors, than they did in those of the special magistrate, of Thomas or even of Moylan.
The county came close to rewriting its land regulations to allow for marinas . But it was Million himself who rejected the proposed ordinance. The county had also previously approved the boat-storage facility, only to be sued by the Hammock Community Association, which has opposed the development, and lose: the county's approval had itself failed to follow proper regulatory procedures, the judge ruled. An appeals court upheld the ruling. "Special exceptions are not that complicated," Bayer said. Had Million applied for one, his project would have been under construction by now, he said. Skipping the public hearing before the planning board would be a "lack of respect."
"In Florida, the law is, you err on the side of the property owner," Moylan had said. "We have very strong private property rights in Florida, any ambiguity in zoning law, you err on the side of the property owner." Some of the Hammock residents who spoke in opposition to the special magistrate's recommendation challenged the County Commission on that count: "I'm going to ask each one of you, would you like that right next to your house? Because I don't understand how one property owner preempts residential owners when the majority of the structures are residential," one resident said.
Dance stressed that the development itself is not in question. "I think it was pretty clear from the research that whether it's a commercial, recreational use or others, the rezoning for the boatyard, that dry stack storage is reasonable, and that's what the planning board basically came up with–with protections of a special exception." The special exception "is appropriate within the scenic overlay, because we have that historical component to this, this parcel, it lives within the scenic overlay."
"There's a lot of a lot of people against this, and I don't think it hurts to put it through the special exception process," Commissioner Greg Hansen said, "get it everything aired public." The 4-1 vote in favor of Pennington's motion drew a dissent from Dave Sullivan, which he did not explain. It was Sullivan's and Commissioner Donald O'Brien's last votes on the commission as their two terms came to an end.
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