Beach access rumble not over yet

Submitted by Suanne Z. Thamm

Reporter - News Analyst

July 9, 2015 3:52 p.m.

Beach Access 33

If anyone did not understand the commitment of the greater Fernandina Beach community to maintaining unfettered access to the beach, the outpouring of citizen unhappiness over the turn of events at Beach Access 33 at the July 7, 2015 Regular Meeting of the Fernandina Beach City Commission (FBCC) should have made that fact abundantly clear, especially to City Manager Joe Gerrity. Gerrity had exercised his authority to permit adjacent residential property owner Baxter Hayes to landscape the city’s right-of-way (ROW) leading to the beach. This followed an earlier ruling of the city’s Board of Adjustment (BOA), against the advice of city staff, to grant Hayes a variance to allow his roof to overhang the ROW.

While some may have thought the issue had been settled, they would have been wrong. Although the private property owner, who had followed all city rules and requirements for obtaining permits, later indicated a willingness to construct a handicapped beach access and pay for it himself to restore peace to the community, citizens were not mollified. And they lost no time in letting city commissioners and the city manager know that.

A discussion item entitled “Encroachments in Public Rights-of-Way” was placed on the July 7 FBCC meeting agenda at the request of Vice Mayor Johnny Miller. There was no back up to this item in the agenda packet, and many people, including Mayor Ed Boner, seemed confused over its meaning, especially since at previous meetings Miller had voiced concerns over people parking in or obstructing city ROWs in general.

Former Mayor and Commissioner Ron Sapp: "I want to speak in favor of a public beach access remaining public."

When the Mayor introduced the item, he immediately invited public input. Former Mayor and Commissioner Ron Sapp was the first to speak. Sapp provided the commissioners with a brief history of beach accesses. He said that as the city began to open these accesses, “everything rocked along” until the recent events surrounding Beach Access 33, where the adjacent property owner was allowed to encroach and plant and sod the ROW. Sapp said, “I want to speak in favor of a public access remaining public. I understand that this is not a beach access per se, because there is not a dune walkover. But when we established the street ends – and that’s what these are – as beach accesses, we knew that we had 60-foot ROWs, 40-foot ROWs, and on down. We were going to put dune walkovers with the help of the state on the 60-foot ROWs and 40-foot ROWs, where you could park cars. But, budget by budget with the help of state funding, we hoped to put dune walkovers on every single one of them.”

Sapp went on to say that he knew the private property owner followed procedures to obtain permission, but to his way of thinking, the city was setting a dangerous precedent by letting private property owners encroach public property. “I want to speak against that,” he said.

FBCC Candidate for Group 4 Roy Smith: "I don't see why we would give a ROW encroachment to anyone."

Roy Smith, candidate for FBCC Group 4, spoke next. Smith asked why Hayes got a variance to encroach into the ROW. He said that even though only the Hayes roof overhangs the ROW, a piece of equipment working in the ROW might damage the house, making the city liable for repairs. “I don’t see why we would give a ROW encroachment to anyone. Why couldn’t he have shifted his house plans six inches to the north?”

City Attorney Tammi Bach explained that the encroachment had been granted by the BOA on a variance request. Smith said, “I understand that, but it still should have come back to the FBCC for approval. I think before they do it again, somebody needs to take a look at that. I don’t think anything should encroach into a ROW. You’re just asking for trouble when you do that.”

[It should be noted that decisions of the Board of Adjustment are not reviewed by the FBCC as a matter of law. They may only be appealed through the court system.]

Joan Bean: "We'll always have to preserve those beach accesses."

Local citizen and business owner Joan Bean spoke next. Identifying herself as the oldest resident anywhere, she started her remarks with a joke. “When is a beach access not a beach access? When it’s landscaped to look like the neighbor’s yard,” she said. She said that the general public thinks the public access is private property because of the landscaping. She said that the reason that so many people are concerned is because of the changes that have happened over history to restrict beach access as development has occurred. She said that the state took over beaches at the north end of the island for Fort Clinch Park, and that the Amelia Island Plantation created a private beach at the south end. In the early 1980’s, the state reversed its position on opening beach accesses and allowed the city to build them. “It was a big deal then,” she said, “and it’s a big deal now. We’ll always have to preserve those accesses.”

Lowell Hall identified himself as past president and current spokesman for the Citizens for Preservation of Public Beaches, established in 1973 to defend the people’s right of access to their beaches and shores.

He said that he believed that both property owner Baxter Hayes and City Manager Joe Gerrity were honorable men. But he believed that many people do not understand the beaches are the sovereign property of the state of Florida and that they do not belong to individuals or other government entities. He reminded the city that it has constitutional and fiduciary responsibility to protect public access.

Hall said that in order to sell or lease recreational lands in the city, a public referendum is required. Hall said that his purpose for being at the meeting was to ask that the public beach accesses be put under the same protection as city recreational lands. “It would then take a vote of the people to sell, lease or encroach those properties,” he said.

Michael Leary was the final public speaker. He provided commissioners with information packets to back up his claims. Although Leary lives in Yulee, he grew up on the island and is a city property owner. He is also an experienced builder and surveyor as well as a freelance photographer. He opined that the landscaping of Beach Access 33 was more related to taking property for personal use than beautification of public property.

He said, “This whole thing has a rather sordid history coming out of the city manager’s office.” He cited various print and social media posts. He also presented related pages from deed books on property ownership and plats. He took issue with claims by the owner, architect and city manager that parking would not fit at Beach Access 33, citing comparative sizes of parking areas at other beach accesses. He criticized the granting of the variance over staff’s recommendation to deny. Leary said that the structure overhangs public ROW by two feet, not six inches as claimed.

Mayor Ed Boner halted Leary’s remarks after having granted him 6 minutes for his presentation. Leary asked that the matter be reserved for discussion at a public workshop because of the significant concerns of the local residents.

Boner began FBCC discussion by recognizing Vice Mayor Johnny Miller. Miller thanked everyone for coming out to speak on the issue. He said the issue brought to light larger problems that go beyond one beach access. “Our beach is our biggest resource,” he said.   “We promote our beach and spend a lot of time making this a beach community. He asked for a definition of the term “beach access,” since before the current controversy arose, Beach Access 33 had no access to the “shore that touches the water.” He said the city boasts 41 “beach accesses,” of which 19 have parking and 4 are handicapped accessible. “It’s not listed [on the city website]”, he said, “how many of these have actual access to the water.”

“The silver lining in this,” Miller continued, “is that the property owner will build an ADA compliant beach access at his own expense when there was no access previously.”

“It’s deceiving to say we have 41 beach accesses,” he said. “What we really have is 4, because not everyone can get to the beach from these spots. This is the discussion I’d like to have. Let’s have 41 beach accesses where everyone can get to the beach. Let’s make this a goal.” In the meantime, Miller suggested that the city relabel nonaccessible sites as “Home of Future Beach Access.”

Miller also wanted to discuss the process of gaining private access to city ROWs. While acknowledging that the city manager has the right to grant ROW encroachment permits and that the FBCC did not need to be involved in every decision around the city involving a homeowner’s desire to beautify a lawn, he expressed his opinion that any encroachment involving beach access needed to be brought to the commission, if not left for decision by a citizen referendum.

Commissioner Tim Poynter speaks with citizen during meeting break.

Commissioner Tim Poynter said that he supported holding a workshop to work out all these matters. “I don’t think we should be hammering it out tonight,” he said. Poynter spoke to all the matters raised by the public along with other issues involving rights-of-way. “This is something that clearly needs a workshop with everyone putting their best foot forward in explaining everything, but clearly not tonight.”

Commissioner Robin Lentz agreed with Poynter. She recounted her recent experience as a runner accessing Beach Access 33 and encountering a long vegetative dune at the end of the sod placed by property owner Baxter Hayes. She said there was not even a footpath to be able to walk further to the beach. She said, “There were a lot of things that came to light tonight that I was not aware of, so I support a workshop.”

Boner spoke to additional problems with encroachments in other parts of the city to be covered during a workshop: hardscaping, boulders, lighting, etc.

Gerrity said he would convene a workshop. Poynter added that he wanted it held at a time that would be convenient to citizens. While Boner was ready to move on, Miller was not.

Miller resumed discussing the topic and addressed his remarks to commissioners. “I must say I’m a little frustrated,” he said, “that I’m hearing that ‘this was the first time I was down there’ and ‘I’m still kind of confused what we’re talking about.’ This issue has been going on for a month now, and it’s been a hot topic issue. I want to take a long, hard look at this, make it into a 3-hour event. This has been a big deal to our community.”

Boner interrupted him, stating the title of the item on the evening’s agenda. He said the reason he thought it had to do with hardscapes is that people are actually pouring concrete and creating barriers “right at the edge of the curb.” “To me,” he said, “I think that is as big an issue as beach access.”

Boner recognized Poynter who said, “I think we all realize a mistake was made,” as he turned toward the city manager and said, “Wow. You screwed up.” This generated a laugh from the commissioners and even Gerrity. “I’m sorry. I’m just saying, if you had to do it all over again, you wouldn’t do it this way. But having said that, it’s a serious deal, and we’re going to get it fixed. I’m not sure what the solution on this particular thing is, but please let’s not make this guy out to be the bad guy. … It was a bad decision, and we’ve got to live with this. To what extent? This is why the workshop is necessary. It’s not possible to deal with this tonight. That’s the problem with these things. We are not forward thinking enough. If we do something today, we need to understand how it is going to affect things five years from now. Many of the beach accesses we do have are only big enough for a footpath. We should work as best as we can to make the most of what we’ve got.”

Boner began asking questions about parking requirements, but other commissioners asked that such discussion be left for the workshop.

Later in the meeting City Manager Joe Gerrity thanked Joan Bean and other citizens for their “civil discourse” over Beach Access 33 problems. He said, “Commissioner Poynter is right. If I had to do it over again, I’d do something different.” He said that some of the calls he has received were not nice, but he thanked everyone for calling him, acknowledging that this was a matter of concern for the community.

Editor's Note: Suanne Z. Thamm is a native of Chautauqua County, NY, who moved to Fernandina Beach from Alexandria,VA, in 1994. As a long time city resident and city watcher, she provides interesting insight into the many issues that impact our city. We are grateful for Suanne's many contributions to the Fernandina Observer.