Amelia Bluff - To be or not to be and other questions

By Adam Kaufman

February 25, 2019

9:30 p.m.

During the last few days I have been in conversations that either begin with or end with “it’s time for it to stop.” 

“It” for some is the loss and destruction of the city’s maritime tree canopy, for others “it” is “development,” however defined. For some “it” is both. When asked what I would do about residential development at Amelia Bluff, let’s just say that some conversations have been better than others.

Entrance to Amelia Bluff development today from Citrona Drive across from Fernandina Beach High School.

I am old enough to have organized and participated in events on the first Earth Day in 1970.  I have been on the Clearwater. I was part of an effort to establish a “Conservation Party” and place it on the New York State ballot. When Rochester, New York, lost thousands of trees as the result of an ice storm, I was a participant in discussions of how the City would restore its “urban forest.” The Amelia Island Fernandina Restoration Foundation, of which I am president, is playing a role in the potential rehabilitation of Bosque Bello Cemetery.  I have read Richard Powers’ “The Overstory” (spoiler alert, the real protagonists are the trees). 

I think I get “it.”

Commissioners Miller, Chapman and Kreger are now being pressed to change their votes cast on February 19, 2019 on “First Reading” that authorized a correction to the City’s Future Land Use Map (FLUM) that would permit continued low density residential development at Amelia Bluff.  The second vote on the amendment is scheduled for March 19.

For over 20 years I was General Counsel for the Rochester City School District, New York State’s 3^rd largest school system representing the District and a partisan seven member elected board. Virtually all litigation and potential litigation at that time was handled in my office.

Not infrequently, when faced with contentious and volatile issues, where the resolution was certain to offend one group or another, the School Board and/or Superintendent of Schools, would limit public comment to: “We did it on the advice of Counsel and in the interests of the students, citizens, and taxpayers of the City.”  A cliché, yes, but true.

In determining whether the FLUM should be corrected to allow residential development at Amelia Bluff to proceed, the Commission needs to consider the advice of its professional staff, and is obligated to assess the City’s potential exposure to damages and other costs. 

In the words of Commissioner Ross, how “expensive a lesson” would it be if the Commission fails to permit the project to continue?

To put that calculation in context, a mil for tax purposes produces about $500,000 of revenue to the City.

HOW DID WE GET HERE?

This is what we know about Amelia Bluff and the interactions of the City and the developer:

The land at issue was owned by the School Board as a potential construction site for a school or school facilities.

It was not a “conservation” property. It was ultimately declared surplus and advertised for sale.

The property (10 acres) was purchased by the developer with the proviso that a city right-of-way running through the property would be vacated.

The City, the School Board and the developer entered into an agreement in August 2017 that was approved by the City Commission. Wetlands on the property (3.63 acres) were transferred to the City and set aside as conservation land.  

The developer will donate $115,000 to the City for land conservation purposes when the final plat at Amelia Bluff is approved.

The developer has also paved a new sidewalk on Citrona at the High School.

Prior to the execution of the agreement, the developer received assurance from the City’s Planning Director, that the designation of the property on the FLUM as “conservation” was a “mapping error,” could be corrected, and was not an impediment to development.

The details of the conversation have been confirmed by the former Planning Director. The City Attorney has acknowledged his representation in her transmittal to the Commission of the proposed change to the FLUM.

In May 2018, city staff reported that the developer had fulfilled his obligations pursuant to the agreement, and the Commission approved the preliminary plat for the Amelia Bluff development. No one raised a question related to the FLUM.

City staff, the City Manager and the City Attorney at the February 19, meeting all continued to support the correction to the FLUM. “A FLUM change from Conservation to Residential (with regard to the remaining 6.4 acres) is consistent with the Comprehensive Plan and Land Development Code.”

Frank Santry, who serves on the Planning Advisory Board, emphasized that at every prior step in the approval process, staff had certified that the Amelia Bluff plans were consistent with the City’s Comprehensive Plan. Santry became aware of the discrepancy in the FLUM in November 2018.

Construction at the Amelia Bluff site continued through February 19, 2019.

The developer has estimated that over $2.3 million dollars has been spent on the project as of February 19.

The Amelia Bluff development is advertising 30 homes with 7 custom floor plans, ranging in size from 2,403 – 3,705 square feet starting from the high $500’s. Seven are under contract. It is not clear what the expected profit is on the sale of homes at Amelia Bluff.

At the February 19, Commission meeting, and in other public statements, the developer has maintained that he relied upon City staff and officials who he believed had actual or apparent authority regarding the project as well as relying upon the prior actions of the Commission itself related to Amelia Bluff.

At that Commission meeting, Commissioners were quick to publicly state that the City staff, the Commission, or the PAB were somehow at fault or had some responsibility for “mistakes” or “misleading” the developer.

Only Commissioner Kreger said he was convinced that the issue was a result of a “mapping error,” stressing that the land had been designated for school construction.

If, by action of the City Commission, the Amelia Bluff parcel could no longer be used for residential development:

• Would you sue the City of Fernandina Beach if you were the developer?
• If you sued, what would you include in your claim for damages?

WHAT WILL BE THE STATE OF AMELIA BLUFF?

Trees cleared for building at Amelia Bluff

As of today the removal of trees on the Amelia Bluff parcel is complete, the infrastructure for 30 home sites is in place, and streets and roads are ready to be paved. 

Is there a rationale for preventing construction on a parcel that the Nassau School Board had set aside for the building of a school facility, and where City staff has made the assessment and finding that the FLUM is in error? 

Does a campaign promise to stop “it” and never change the FLUM trump the findings and recommendation of City professional staff?

I note that in March the City Commission plans to enact a moratorium on subsequent FLUM amendments.

If the FLUM is not corrected, as City staff has recommended, and Amelia Bluff lies fallow, what would be the plan for the property, if any?

Does the City acquire the property, how and at what cost? 

Can the property somehow be restored to its former state, over what period of time, and at what cost?

What is the projected loss of revenue to the City if the property is not developed? The City millage rate is 5.8533.

BERT HARRIS TO THE RESCUE?

In discussing the City’s potential exposure to litigation, I have been told that “the City Attorney said that the Bert Harris Act protects the City.” I was at the Commission meeting and that is not quite what Tammi Bach said.

The Bert J. Harris, Jr., Private Property Rights Protection Act was enacted to provide protection to private property owners against burdens placed on their property rights by governmental entities. The property owner has to show “a specific action of a government entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property.”

For example, the fact pattern in Ocean Concrete, Inc. v. Indian River County Board of County Commissioners, where the plaintiff wanted to build a concrete batch plant and bought a piece of property zoned light industrial, a zoning that allowed for a concrete batch plant. After the plaintiff bought the property there was local opposition to the planned plant development. In response to that opposition, the County changed the allowed uses of property zoned light industrial, and concrete batch plants were no longer allowed. There was no “grandfather” exception. Ocean Concrete sued. The Fourth District Court of Appeal upheld the plaintiff’s Bert Harris Act claim and remanded the case to the trial court for a determination of an award of damages

Bert Harris litigation is complex and is evolving.  I leave it to law professors and the courts to opine on whether a governmental action not to correct a FLUM in circumstances such as those presented by Amelia Bluff is a “specific action of a governmental entity” that can “inordinately burden an existing use of real property or a vested right to a specific use of real property” pursuant to the Harris Act.

It is important to understand, however, that the Bert J. Harris Act was intended to provide property owners protection against government action. It is an additional arrow in a developer’s litigation quiver.

IS “TO BE OR NOT TO BE” A FALSE CHOICE?

Those who oppose the Amelia Bluff development are doing so to underscore their belief that it is time to stop the loss of conservation lands, protect the maritime tree canopy, and to control development.  In the words of Commissioner Ross, they want to teach the City, the Commission, and others “a lesson.” Whether a newly discovered error (new to them) in the FLUM is the appropriate platform from which to teach that “lesson” is problematic.

For the purposes of argument, let us assume that the Commission approves the correction to the FLUM -  whether because Commissioners believe the Map to be in error, or because, on balance, the prospect of litigation based upon the developer’s reliance on the City’s actions and the potential exposure to damages is determinative, or because they do not want to leave an open sore on Citrona and/or because there are no funds available to acquire and “rehabilitate” the site, or because Commissioners have based their vote on their reliance upon “the advice of the City Attorney and staff” or for some or all of the above.

Clearly, the Tree Conservancy and its supporters have been heard. There is a community consensus with regard conservation and the protection the tree canopy and of our “city forest.”   There is recognition of the importance of our historic downtown and the need for its preservation.  There is acknowledgment that Bosque Bello Cemetery and its tree canopy have been neglected.

These are not new discussions. There has been only limited or no funding on an ongoing basis to meet these needs. 

Does the Amelia Bluff/FLUM controversy provide the opportunity to address issues of preservation and conservation?  Is there an opportunity for mutual gain? Are there shared interests?

I understand the impatience and acknowledge the commitment of those who oppose the ordinance amending the FLUM. There is, however, no fundamental difference between this Commission and those who oppose correcting the FLUM with regard to issues of conservation. Acquiring conservation land, protecting and maintaining the tree canopy, and planting additional trees are goals set by this Commission less than three weeks ago.

Amelia Bluff is the wrong battle for the right reasons.

A Proposal

What if, upon approval of the amendment correcting the FLUM, the Commission adopts a resolution committing to allocate a portion (50%) of the proceeds generated from the City property tax assessed on the 30 Amelia Bluff homes, to be set aside each fiscal year going forward as dedicated funding for conservation and historic preservation.  

I understand that one Commission cannot bind another, but I am sure the Tree Conservancy and others in the community will be watching. 

It is hard to unring a bell and that also is the story of Amelia Bluff.

Adam Kaufman, Legal Analyst

Editor’s Note: Adam Kaufman, has been General Counsel, labor negotiator, and lobbyist for the Rochester City School; he was appointed by Governor Mario Cuomo as Counsel, Associate Director and First Deputy Attorney General to a New York State Special Commission; he served as an Administrative Law Judge, mediator and Regional Director of the New York State Public Employment Relations Board; now retired, for the last 13 years he was a labor arbitrator and mediator.  A graduate of the Northwestern Pritzker School of Law, he is a city resident.